SB 826: Sometimes laws are good at scaling justice

The Nov. 30 story, "Some women on corporate boards disagree with quotas," made me think back on articles I have written on bias and the law regarding public policy.

The following is an excerpt from "The Amplification of Bias in Family Law and Its Impact," which was published in the Bias Edition of the Journal of the American Academy of Matrimonial Lawyers in 2020:

"Speaking of institutionalized bias through legislation, laws pertaining to legal process seem particularly relevant to the information set forth in this article. In that regard, examples of how public policy has been used to force a reckoning with bias and change the culture compared to how it can be used to ingrain and worsen existing bias seems fitting.... People's biases can and do impact public policy and public policy then influences people's biases."

In a forthcoming article in the Winter 2022 Bias Edition of Family Advocate Magazine, a publication of the Family Law Section of the American Bar Association, I state: "Policies can be used to ingrain and worsen existing societal biases or challenge them to effectuate cultural change."

Wanting or having "good faith intentions" for diversity and inclusion does not mean it comes to fruition because of systemic and deeply ingrained and unchecked biases, along with a lack of implementation of appropriate policies designed to effectively lead to satisfactory diversity and inclusion.

"If corporate boards might become more diverse naturally as women are becoming more dominant in the ranks of some professions," why is that not true in the legal profession, which is notorious for its lack of diversity and inclusion within the management and control of law firms, or even as equity partners?

Whether or not corporations recruit the most suitable candidates for inclusion on their boards rather than "just to check a box" depends on the corporation itself and has nothing to do with the quotas themselves. With or without quotas, corporations can and do bring on board members whose involvement involves reasons having nothing do with them being the most suitable candidates.

Nobody and nothing is perfect. And, nobody ever said that there is "a right number of women or minorities to have on a board." This issue is not about "a right number;" rather, it's about using the law to effectuate much needed and long overdue cultural change that has not occurred organically. These quotas came about to combat discrimination based on race and gender and because the diversity provides a diversity of thought which decreases impaired critical thinking caused by a lack of such perspectives. Whether or not the "laws that mandate a quota of women and members of certain racial and sexual minorities on boards of directors" are found "unconstitutional because they discriminate based on race and gender," it is important to keep in mind that what is and is not constitutional depends upon the composition of the judges and justices deciding what is and is not constitutional and how their unchecked biases impact such determinations.

Winning in court is about "legal justice" and it is a grave mistake to confuse "legal justice" with the truth, and what is fair, just, ethical, and moral. As Olga V. Mack, a professor at UC Berkeley School of Law, who helped draft Senate Bill 826 stated in the article, while she has "reservations about quotas," she has become "convinced that sometimes laws are good at scaling justice." 

-- Mark Baer

Pasadena