In 2020, Gov. Gavin Newsom signed Assembly Bill 979, which requires publicly traded companies headquartered in California to have a minimum number of board members from “underrepresented” communities. He certainly was aware of the constitutional implications of the measure, but instead decided to make a point about “empowerment.”

It was no surprise, then, that Los Angeles County Superior Court Judge Terry Green last week found that the law violated the state constitution. Although the judge didn’t detail his reasoning, he had described the law during the hearing as “a bit arbitrary.”

It is arbitrary indeed, as the state government is dictating the makeup of private boards based on their own particular preferences. The law also imposes onerous recordkeeping requirements on California companies — and is another example of the hurdles the state continually places on its biggest job creators, but that’s a secondary matter.

Lawmakers modeled AB 979 on a previous law that requires private companies to include women on the board. Litigation continues on that measure (Senate Bill 826), but this one expanded the board criteria to members who are “Black, African American, Hispanic, Latino, Asian, Pacific Islander, Native American, Native Hawaiian, or Alaska Native” and “gay, lesbian, bisexual or transgender.”

As the legislation was under consideration, the Senate floor analysis noted that, “Under the current, prevailing judicial interpretation of both the federal and California constitutions’ Equal Protection clauses, a statute that draws a distinction based upon race or ethnicity … only passes constitutional muster if it can meet the strict scrutiny test.”

Any statute that gives preferences to people of specific race, ethnicity or sexual identification must meet a compelling governmental interest. As the analysis added (and as was noted in the lawsuit), “the existence of general societal discrimination will not ordinarily satisfy the courts.” Yet the bill’s backers focused almost entirely on general societal discrimination as justification for its passage.

“Today, the Legislature showed that we can bring solutions to create equity in society,” said Assemblymember Chris Holden, in a statement. His co-author pointed to a lack of diversity on corporate boards — and argued that boards that are more reflective of society will create a more diverse workforce. Those arguments do not suggest any compelling state interest.

“As California cannot make these difficult showings, AB 979 is unconstitutional and any expenditure of taxpayer funds or taxpayer-financed resources in furtherance of, ensuring compliance with, or otherwise effectuating the racial, ethnicity, sexual preference, and transgender quotas required by AB 979 is illegal,” noted Judicial Watch, the conservative legal group that filed the lawsuit.

There’s no clear link between board membership and hiring policies, but it is clear the government shouldn’t impose quotas on private firms. California-based corporations already are subject to state and federal equal opportunity laws. Corporations embrace policies that expand employee diversity — and have plenty of business-based reasons for being inclusive.

In 1996, California voters approved Proposition 209, which bans quotas in public accommodations including university admissions and public contracting. Although AB 979 and SB 826 do not run afoul of that initiative because it applies only to government preferences, they clearly violate its spirit as well as other aspects of state law.

Lawmakers knew these bills might tread on the state Constitution, yet passed them anyway. That, perhaps, is our biggest disappointment.