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.