Assuming discrimination exists in order to justify discriminatory policies in response is a doozy of a begging the question fallacy.

> What argument is there to explain the underrepresentation that doesn't ultimately confirm that it is actually discrimination?

There are myriad reasons applicable to different groups. Age and immigration status are big ones. Almost all of the so-called “bamboo ceiling” (the theory that Asians are underrepresented in management and board positions) can be explained by the fact that the older cohorts from which board members are drawn typically have a lot fewer Asians than the 6-7% average for the overall population, and the fact that most Asians are first generation immigrants and many don’t speak English fluently or lack US citizenship.

Similarly for Hispanics, a lot of disparities are simply due to recency of immigration. Lots of Hispanics are recent immigrants from very poor countries who come here for economic reasons. Within a couple of generations, however, Hispanics more or catch up to native born whites: https://academic.oup.com/qje/article/135/2/711/5687353.

A lot of these “lack of proportionality proves discrimination” arguments are just lazy and don’t compare like with like.

Those arguments don't really work for gender discrimination or discrimination against African-Americans. It's not as if women or black people only just got here.

The law that was struck down lumps everyone who isn’t a straight white male into the same category. At least as to race, the majority of non-whites are immigrants or children of immigrants, so immigration recency is an important factor that laws like this fail to consider.

Moreover, the category of “white” is deceptive. I suspect that corporate boards have few people of Appalachian descent, and many people of New England Puritan descent. Understanding what causes that disparity would probably reveal structural mechanisms that affect other groups as well.

At bottom, this law suffers from the same defect identified by Judge Thapar in striking down racial preferences for SBA loans: https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0120p-06.pd.... Maybe there is a kernel to this law that passes Constitutional muster because it addresses concrete harms to specific groups that can’t be remediated in a less discriminatory way. But the intersectionality approach of lumping everyone from ADOS to immigrants to LGBT people into one category for favorable treatment isn’t going to fly under civil rights laws.

The difficulty is that as a society we have already gone some way towards identifying protected group status, even though there is some disagreement near the edges. The definition does not cover the distinction between people of Scots-Irish descent living in Appalachia and those from Northern English Puritan descent with a history in New England. Perhaps it should, but it currently does not, and so until we shift the broad definition of protected group status, that sort of distinction is casually tossed into the "don't care" bin by current social and legal norms.

I personally am in the "class matters more in terms of discriminiation than race", but I acknowledge serious and well-intentioned and well-informed objections to this understanding. I would prefer to see us focus on class-based discrimination (with class defined primarily in economic terms), because I think this more equitable and ultimately gives us greater (social) bang for each (legal) buck. That said, the category of "underrepresented" in the CA law is broadly (though not precisely) in line with current legal understanding, and I'm not sure it's based on a different concept that current civil rights laws or jurisprudence. The real issue is whether the state can pro-actively discriminate in an attempt to remediate the discrimination it has stated as its target.

There’s no such thing as a “protected group” in the law. There are “suspect categories” such as race, religion, etc. But it’s not any more legal to discriminate against whites or men than to discriminate against Hispanics or women.

Moreover, the California law improperly conflates discrimination with structural disadvantage. It’s definition of “underrepresented” reflects people who might face discrimination. But that’s a different thing than facing structural disadvantages—persistent disparities that can’t be remediated simply by addressing prejudices conduct—which is the linchpin of affirmative action programs.

Hispanics and Asians are just modern day Italians or Irish. They may face discrimination, but the data shows that they don’t really face structural barriers to closing gaps with “white” Americans. Appalachians, by contrast, likely don’t face much discrimination, but face large and persistent structural gaps. These are two quite different categories and it’s nonsensical to conflate them.

> There’s no such thing as a “protected group” in the law.

No such thing as a protected group ... sure, but there are characteristics that is legal to discriminate on the basis of (e.g. you like King Crimson too much) and ones that are illegal (e.g. you have a Y chromosome)

CA's definition of "underrepresented" does not reflect who might face discrimination; it reflects people who are underrepresented in certain kinds of positions in society and are prima facie concluded to therefore be discriminated against.

For what it's worth, I've been reading your writing here for a long time, and to see you make a comment which allows for the possible existence of either structural barriers or discrimination in the contemporary United States made me feel as though today's discussion was less than 100% hopeless. That the structural barriers you cite apply to Appalachians doesn't bother me, they're a good example.

For women and Black people both, full participation in work and politics wasn't really permitted until the mid-late 20th century.

Excellent point! Need to think about this affects what I was trying to say there.

> Of course, you may not accept that there is de facto discrimination by private actors, but then you need to explain the underrepresenation of different demographics, and likely in order to appear reasonably sane, your argument needs to be something other than "that's just the way it is". What argument is there to explain the underrepresentation that doesn't ultimately confirm that it is actually discrimination?

Why do you believe that all positions in all domains should be perfectly proportional with the underlying population across the six dimensions you've decided to care about? Is that reasonable?

That is not to say that discrimination is imaginary. It is not to say we should ignore it. It is to say that disproportionate outcomes are not evidence of discrimination. In other words, the fact that 20% of Nobel prize winners are Jews is not evidence of a global Jewish cabal. Nor should you stay up at night wondering where all the white rappers are.

If you actually want to help disadvantaged groups, focus on existing programs that don't effectively serve those groups. Like public schools. How can we make public schools work better?

The truly inane thing about mandating one black/gay/woman/whatever on every board is that those people won't be disadvantaged. They aren't going to invite people off the street to sit on their boards. It's just cosmetic bullshit.

> the fact that 20% of Nobel prize winners are Jews is not evidence of a global Jewish cabal

Two points:

1. when there are relatively small numbers of X, I agree that we should not expect the set of all X to proportionally represent the whole population. This leads to the question of what a "relatively small number" is, and while there is a mathematical/statistical way to answer this (sampling/set theory etc.), I think there's room for there to be a political/social dimension to it as well.

2. it is true that the Nobel situation does not indicate a Jewish cabal. However, it is interesting enough to raise questions about the specific histories of those winners, and whether there was anything about their being Jewish that helps to explain their success (I have no idea of the answer). Likewise, I think it is absolutely worth wondering where all the white rappers are, even though their absence doesn't indicate discrimination or a cabal.

I largely agree with your final paragraph.

Representation matters. It matters when all white juries try black defendants. It matters when all-male boards decide that sexual harassment isn't a big deal.

Juries are randomly drawn from the population...

Yes, they are now. (As far as I know.) But such was not always the case, for example in the Jim Crow south — where all-white juries routinely convicted innocent black defendants and routinely exonerated guilty white defendants. Proper Jury representation had to be foisted on Southern states, who resisted it mightily.

As far as I know there is no law that says that all juries must have a black/gay/woman/whatever on them.

Is your point that board members should be randomly drawn from the population like jury members?

I'm not proposing a specific remedy at this time. My point is that representation matters. Which I don't imagine we'll ever agree about.

Representation matters when it's the result of discrimination. You're assuming that any deviation from proportional representation is due to discrimination. I see no reason to assume that.

There are a number of mechanisms by which differential results can be arrived to by mechanisms that can reasonably be described as non-discriminatory. The easier to describe one is a winner take all election system (like most U.S. elections.) If an identity group minority has a strong and cohesive set of preferences that are in opposition to the majority, then the results of fair elections can look discriminatory and non representative. If 65% of group A that represent 80% of the population prefer option X and 90% of group B that represents 20% of the population prefer option Y, then a huge portion of group B is going to be disappointed that they don’t win free and fair elections. What’s more, if candidates are randomly selected from the pool of people that support X or Y, the victors will come from group A close to 96% of the time, despite group A only representing 80% of the population.

All that’s to say that if shareholders (who theoretically appoint and are represented by the board) as a group have legitimate and real preference differences from the average person from the these other minority groups, you can get easily get boards that are unrepresentative of the minority groups.

Now, as to why those shareholders might have preferences that differ from those minority groups so much, you can start making class based or structural inequality/racism arguments. But I’ve written enough :)

> All that’s to say that if shareholders (who theoretically appoint and are represented by the board) as a group have legitimate and real preference differences from the average person from the these other minority groups, you can get easily get boards that are unrepresentative of the minority groups.

Sure. But the point of the CA law was to say, "nuh-uh, you can't do that. Society has its own interest in board composition, and that trumps (on the grand scale) the shareholder preference." I'm not saying I necessarily agree with that, but I think it's not a ridiculous or even obviously unconstitutional law.

> If you accept for a moment that there is de facto discrimination arising from the actions of private actors, and you believe that this is a net negative for society, how would you go about reducing or elimination it?

Laws can’t make people love each other. We have to make that choice on our own. We learn to accept and include others through our life experiences and the examples set by leaders in our society. If you want people to change their behavior, set a good example for others to follow and encourage others to follow suit.

The board of directors of a company does not exist to shower love among the members. It's there to provide oversight and steerage to a corporation. The members could all hate each other and (at least theoretically) still perform that role with skill and committment.

Let me tell you that growing up off the rez I have a pretty good idea of why indigenous kids growing up on the rez aren’t building wealth and it has largely to do with two things:

1) intergenerational trauma needs to be called what it is which is neglect and child abuse.

2) PC victimhood culture and the politicians who take advantage of it to convince people they just need more handouts instead of to stop abusing their children and take responsibility for their lives.

There is real discrimination in society things like Japanese internment but you don’t see any issue with Japanese people lifting themselves out of poverty.

I have a neighbor couple who lived on- and off-rez (Hopi) over the years. They would agree with your point #1, and would not agree with your point #2. Because #2 seems to be a matter of debate, I'd propose that we (as a society) should probably focus on #1.

> If you accept for a moment that there is de facto discrimination arising from the actions of private actors, and you believe that this is a net negative for society, how would you go about reducing or elimination it?

Reduce the difficulty of proving discrimination, so there's less plausible deniability

That's not the way reality works. Lowering the evidentiary standard also lowers the credibility of the claims therefore increasing plausible deniability.