Litigation Update: Alliance for Fair Board Recruitment v. Weber

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Sam Fendler:  Hello, everyone, and welcome to this Federalist Society virtual event. My name is Sam Fendler, and I’m an Assistant Director of Practice Groups with The Federalist Society. Today, we’re excited to host a litigation update on Alliance for Fair Board Recruitment v. Weber.

 

      We’re joined today by Josh Thompson. Josh Thompson is the Director of Equality and Opportunity Litigation with Pacific Legal Foundation. Josh has been with PLF since 2007, and his practice has touched all of PLF’s subject areas since then. In 2021, Josh argued before the Supreme Court in Cedar Point Nursery v. Hassid. Josh’s writings have appeared in law journals and news outlets such as the Wall Street Journal and Washington Post. If you’d like to learn more about Josh, his full bio can be viewed on our website, fedsoc.org. 

 

      After Josh gives his opening remarks, we will turn to you, the audience, for questions. If you have a question, please enter it into the Q&A function at the bottom of your Zoom window, and we’ll do our best to answer as many as we can.

 

      Finally, I’ll note that, as always, all expressions of opinion today are those of our guest speaker and not The Federalist Society. With that out of the way, Josh, thank you very much for joining us today, and the floor is yours.

 

Josh Thompson:  Thank you, Sam. Thank you to The Federalist Society. Thank you to the Civil Rights Practice Group for hosting this webinar on Alliance for Fair Board Recruitment—a very important decision that came out of the Eastern District of California this past May. My talk is going to certainly focus on that case, but the broader issue of the gender and race quota bills that were passed in California and have been challenged. And what the saga of these statutes and the lawsuits that came after them is, is largely an issue in civil procedure—a snapshot of how standing works in state court and federal court, how cases can be held in abeyance and stays. And hopefully, by the end of my talk, you’ll understand where these challenges lie, what’s coming next, and why -- and where we go from here.

 

      So with that, I want to first start off with -- put us back into September of 2018, when the California legislature adopted SB 826. SB 826 is the gender quota—the sex quota—bill that requires every corporate board that is headquartered in California to have various numbers of women on their board—self-identified women. How the law works is the first year, every corporate board headquartered in California needed to have one woman, and then it progressively goes up in subsequent years, up to the point where parity is reached and the corporate boards have as many women on their board as men.

 

      Any violation of this law would result in a $100,000 initial fine and a $300,000 second fine every member that you fail to meet the quota. So if you’re two below, that would be two violations, three below, three violations. So the fines rack up pretty quickly.

 

      That was adopted in September of 2018. In August of 2019, the first lawsuit challenging the sex quota was filed in California State Court. That case is called Crest v. Padilla, and this was brought by three California taxpayers. One of the good things about California’s civil procedure is they allow very robust taxpayer standing. So these taxpayers brought suit in saying that their tax dollars are being wasted in an unconstitutional manner by enforcement of this law.

 

      Let me take one quick step back and talk about what was the difficulty in challenging these laws. As you can imagine, corporations headquartered in California are million-dollars or billion-dollar outfits, and they don’t want to draw the ire of California government, and the California legislature is pretty aware of this fact. In fact, when SB 826 was first enacted into law, Jerry Brown signed the bill and said, “I recognize that this is unconstitutional or likely unconstitutional or raises constitutional problems, yet we need to send a message, and so I’m going to sign this bill into law anyway.” And no corporation came forward.

 

      I work for a non-profit. We certainly spoke with a number of them that we were interested in bringing a challenge to this law and thought that a corporation that was subject to it would be the entity that had the best Article III standing to challenge it. We were unable to find a corporation willing to stand up and challenge the law.

 

      So this taxpayer lawsuit that was filed in August of 2019 was the first challenge to it, and it alleged that these taxpayers -- these taxpayers alleged that it was unconstitutional under the California Constitution because it was an unconstitutional use of their tax dollars. Shortly after that, my organization—Pacific Legal Foundation—did file a lawsuit in federal court challenging SB 826. We filed on behalf of a shareholder of a corporation.

 

      Now, we recognized going into this that the difficulty was going to be proving standing of the shareholder. Our argument was the -- SB 826 requires shareholders to vote in a sex-conscious manner. By putting that pressure on individual shareholders to vote sex-consciously, it runs afoul of the Constitution, and you are injured in that way. The district court did not buy our argument, dismissed us for failing to have Article III standing, and we appealed that case to the Ninth Circuit—and I’ll get to, briefly, what happened with that appeal.

 

      But as that case, which was called Meland, was on appeal, California was feeling pretty good about itself and decided to double down and enact a race and LGBT quota, called AB 979. So this now added on to the sex quota that was already in place—the woman quota—and required corporate boards that are headquartered in California to also reach underrepresented groups, which was defined in strictly racial terms and in sexual-orientation terms. So now, not only do corporate boards in California have to have parity in women but they also have to have parity in underrepresented groups.

 

      AB 979 was adopted in September 2020. The next -- and it was -- basically, the very next week was challenged by the same taxpayers that had challenged the woman quota. So by October 2020, there are two separate state court actions challenging the woman quota and the race quota in California State Court—the superior court in Los Angeles—under a taxpayer-standing theory. 

 

      Those cases were going forward. The sex quota actually went to trial, but while that was being litigated in state court, the Ninth Circuit issued its decision in our Meland challenge—that’s the sex quota, the woman quota challenge—in federal court. And it said that we did have standing, that the taxpayer was being injured by the law by being required to vote in a race -- or a sex-conscious manner and remanded our case back down to the district court to proceed.

 

      So a month after the Ninth Circuit ruled in our case, the Alliance for Fair Board Recruitment filed their case in the federal court in Los Angeles in the Central District of California. The Alliance for Fair Board Recruitment, I think, genuinely were concerned that our case didn’t have standing. The district court had already ruled it, so they filed their own case with a group of individuals who sought to be placed on corporate boards but, because of the quota, were being discriminated against, much in the same way that Students for Fair Admissions was an organization created to challenge the admissions at Harvard and North Carolina.

 

      The Alliance for Fair Board Recruitment was structured in a similar way, and they brought a federal court challenge to both the race and the sex quotas in federal court in Los Angeles. And that was filed in July of 2021. As they were litigating that case, the State of California moved to transfer their case to the Eastern District, where the Meland decision was just remanded back down. They fought that. They wanted their case heard in Los Angeles, but it did get transferred back to the Eastern District.

 

      Around the same time, Pacific Legal Foundation, in conjunction with the National Center for Public Policy Research, filed a subsequent challenge to the race quota, this one also in the Eastern District of California. So at this point, there are now three cases in the Eastern District of California. All three of them are challenging the sex quota—Meland, NCPPR, and Alliance for Fair Board Recruitment—and two of them are challenging the race quota.

 

      The Meland case, after it got remanded, plaintiff sought a preliminary injunction, saying that this law was clearly unconstitutional and sought a preliminary injunction in the district court. The district court denied that preliminary injunction in December of 2021, and Meland quickly appealed to the Ninth Circuit, arguing that the preliminary injunction should be reinstated -- or instated.

 

      Now we’re in January 2022, when that appeal was filed; the NCPPR lawsuit, the Alliance for Fair Board Recruitment lawsuits, those are both proceeding to motions to dismiss and discovery in various capacities. Meanwhile, now in April and May of 2022, the state court actions, Crest v. Padilla one and Crest v. Padilla two, were decided on by the California trial court. The first case to reach a decision was actually the race quota—Crest v. Padilla two—where the court granted summary judgment to the taxpayer plaintiffs, holding that under the California Constitution, this requirement that corporations hold certain spots open on the basis of race was unconstitutional.

 

      About a month later, after a trial in Crest one, the superior court—a different superior court -- a different judge in the same superior court of Los Angeles: Superior Court of Los Angeles County—held that the gender quota, the woman quota, was also unconstitutional. So now both of those cases are held unconstitutional, they are enjoined by the superior court in California, and they are then appealed by the State of California. The State of California quickly sought to stay the injunction there. That was denied, but the appeals on the merits proceeded to the courts of appeals. 

 

      So as a result of that, the preliminary injunction in Meland that was pending in the Ninth Circuit was then held in abeyance by the Ninth Circuit. It said, “Well, why do we need to issue a preliminary injunction now because the superior court has already enjoined this law? And if that injunction is lifted, then you can reapply to open up the preliminary injunction motion. But in the meantime, there’s no reason to get this preliminary relief.” So Meland, at the Ninth Circuit, is held in abeyance in June of 2022, after the two state-court decisions.

 

      Then in April of -- excuse me. Then -- I’m trying to read my notes. It’s hard to keep all of this in line. There’s so many different cases going on. Ultimately, then, as the state court cases are being appealed, the Alliance for Fair Board Recruitment case is going forward in the trial court, as is the NCPPR case. The Eastern District of California rules that the sex quota -- the woman quota challenges in those two lawsuits are dismissed because the court had ruled that the Meland PI could not issue. So it dismissed, on the merits, the sex quota challenges to those two lawsuits but then proceeded to rule on the race quota lawsuit in the Alliance for Fair Board Recruitment case.

 

      And this is the huge decision that, mostly, I’m here to talk about today -- that in May of 2023, the Eastern District of California ruled that the race quota -- the race and LGBT -- the race quota in this lawsuit was unconstitutional. And it did it not because it failed strict scrutiny, but the court said, “Quotas are per se unconstitutional. This is a quota.” I don’t need to go any further than that. The opinion is three or four pages long and enjoined the race quota from being enforced in California. 

 

      So now we have three injunctions that are live. You have two state court injunctions that have enjoined—both the race and the woman quota—and then you have one federal court that has enjoined the race quota and dismissed the woman quota.

 

      What follows then is a lot of appeals. In Alliance for Fair Board Recruitment, there are cross-appeals. The Alliance for Fair Board Recruitment appeals the dismissal of the woman quota component, and the State of California dismisses the summary judgment grant, holding the race quota component unconstitutional, and they both go to the Ninth Circuit. So now there are three appeals at the Ninth Circuit: one by the State of California, one by NCPPR—National Center for Public Policy Research—which is challenging just the woman quota, and then an appeal by Alliance for Fair Board Recruitment on the woman quota as well.

 

      Those appeals were filed in May, shortly after the Alliance for Fair Board Recruitment decision was issued by the Eastern District. But by June, the Ninth Circuit decides to stay those, adjudicating those appeals. It issues its stay because it says that the California State Court cases are ongoing, they’re in the court of appeal, they’re being briefed, and there’s no reason for the Ninth Circuit to rule on those three appeals while the state court cases are active and those injunctions are active. 

 

      So that is where we stood. That’s where I thought we stood, at least, until a couple days ago. But there’s a little bit more to this story because I come to find out that although both of those appeals in state court were currently ongoing and that’s the reason that they were stayed in the Ninth Circuit, they have also been stayed in, now, the California Court of Appeal. So both of the state court cases are stayed. And why would they be stayed?

 

      Well, it turns out that there is a separate case that has nothing to do with either the race or the woman quota, and that is a case called Taking Offense v. The State of California. This case has to do with a separate law that California passed three/four/five years ago—I’m not exactly sure when—that requires individuals in, I think, nursing homes to use proper pronouns when referring to the patients there. A challenge was brought that that violated the First Amendment under the California -- or the Free Speech Clause under the California Constitution, and it was also brought as a taxpayer lawsuit.

 

      Now, what happened with Taking Offense is the court of appeal in California agreed that this was a violation of free speech rights and enjoined the pronoun law. That was then -- sought review in the California Supreme Court, which granted review. Briefing when on in that, and nobody thought anything of it, or it -- certainly nobody thought anything -- it related in any way to the board challenges. However, after briefing was complete in Taking Offense v. California, the California Supreme Court asked for supplemental briefing on the issue of whether taxpayer standing applies to state officials as opposed to, say, county and municipal officials.

 

      So that’s a big wrinkle for California litigators that -- what was never questioned—certainly wasn’t questioned by the plaintiffs or the State of California in that lawsuit—is whether taxpayer standing can be had against the State of California. That is now -- supplemental briefing on that issue before the California Supreme Court has been completed. But California, cleverly, of course, sees that that result would have a significant impact on the state court lawsuits—Crest v. Padilla, the two of them—that are challenging and were successful to challenge the board quota laws, and so they asked the California Court of Appeal to stay those cases, pending the results of the California Supreme Court’s decision on taxpayer standing in the Take Offense.

 

      So that brings you up to date. We have two California State Court cases that have both held -- that have individually held the woman quota and the race quota unconstitutional. They are both stayed in the California Court of Appeal. You have three federal court lawsuits. Meland, which was Pacific Legal Foundation’s challenge by a shareholder that challenged only the woman quota, that is being held in abeyance on a preliminary injunction motion in the Ninth Circuit. And then you have Alliance for Fair Board Recruitment v. Weber, which is a -- which held the race quota unconstitutional and enjoined it and held that the sex quota could not state a claim. There are cross-appeals on that in the Ninth Circuit, which are being stayed. And lastly, there’s the National Center for Public Policy Research—which, at this point, only raises a sex quota claim—that is also stayed in the Ninth Circuit.

 

      So you have lots of stays, lots of abeyances, no action happening in any of the cases right now. However, the good news is that this law is present -- at present enjoined and cannot be enforced by the State of California, but there -- and it has been held unconstitutional by at least three courts.

 

      So although there is no final decision here and there’s, in fact, no action going on on any of these cases right now, we’re hopeful that -- I’m certainly hopeful that if this case does reach the Ninth Circuit on the merits that it’ll affirm what the district court held in the race quota and that the sex quota will also be held unconstitutional for similar reasons.

 

      With that, I know there’s a lot to unpack here. There’s a lot of different decisions, and it can be confusing. I’m happy to answer any questions that come in. Thank you.

 

Sam Fendler:  Excellent. Well, thank you so much, Josh, for giving us that really wonderful overview to begin with. We will now turn to audience Q&A. So, again, if you have a question, please enter it into the Q&A function at the bottom of your Zoom window.

 

      Josh, I want to ask you very quickly -- I know you said that there are – first of all, there’s a lot of litigation going on, there are several cases, and you said a couple times that there are a lot of stays. So it seems like things are on a bit of a tactical pause right now. Moving forward—correct me if I’m wrong—the hope is that these cases get picked up by the Ninth Circuit and reach some level of final adjudication there. Is that right?

 

Josh Thompson:  Yeah. I mean, I’m certainly hopeful that the state court cases are successful as well. Ultimately, I think a federal court decision will have broader impact across the country, but I’m -- what needs to happen is these laws need to be held to be unconstitutional. They are very offensive. They reach into private affairs of corporations and require them to discriminate on the basis of sex and race and sexual orientation. I think these laws are patently unconstitutional under both state and federal law. What court gets to rule on them first? I would prefer a federal court, but I’m certainly hopeful that the state court is successful as well. In any event, we’ll be cheering on all the cases as they go forward.

 

Sam Fendler:  So, again, as both you and I now have mentioned, there are multiple lawsuits going on. We’re principally talking today about the Weber case, but I wanted to ask you—and feel free to answer as it relates to this case in specific or if you have a more general idea -- but there are cases that share a similar thread that have to do with private action on the one hand and state action on the other. So if it’s the state mandating these quotas versus if it’s a private company mandating these quotas, that changes the calculus.

 

      It seems like in this Weber case, it's California that’s mandating these actions, and so you’re going to pursue one sort of approach to these cases. But could you break down for us the difference between the private action and the state action, what it is you’re dealing with, and maybe a little bit more about the broader landscape of these two diverging types of cases on a similar question?

 

Josh Thompson:  Sure. So insofar as you’re talking about constitutional challenges, there you either need a government doing the unconstitutional behavior or the government encouraging private actors to engage in unconstitutional behavior. At PLF, we deal almost exclusively with that sort of public lawsuit, so we’re challenging government behavior exclusively.

 

      There are other organizations that I hold in high esteem that also challenge discriminatory actions by private organizations. I know that there is the—I’m going to get the name wrong now—Alliance for Fair Treatment, it might be called -- is challenging diversity quotas at law firms. They also have a challenge to a -- I believe it’s a grant program by a large hedge fund. And those are private challenges, and they are using the civil rights laws. 

 

      The civil rights laws that were enacted in 1964 prohibit discrimination by private actors as well as public actors. So those aren’t constitutional challenges, but they are bringing challenges either under Title VI or Title VII or for violations of individual’s right to be treated equally under the law. So those civil rights challenges are not constitutional challenges, but they’re still prohibited. Private industry in America is still prohibited from discriminating on the basis of race, and those challenges are going forward on that basis.

 

Sam Fendler:  Josh, I want to ask you a quick question from the audience. We have an audience member that is asking for the full name of the Supreme Court of California case on taxpayer standing to challenge state actions. They ask, “Was that the Take Offense case that you referred to?”

 

Josh Thompson:  Yeah. It’s called Taking Offense v. State of California. I just found out about this case today. I wish I had known about it earlier. But as I was researching for this webinar, I found out that the two taxpayer suits against the board challenges had been stayed, and I did a little digging. I found out that it was this Take -- Taking Offense v. California decision. And the supplemental briefing, in particular, that was requested by the California Supreme Court is the reason why those cases have been stayed.

 

Sam Fendler:  Josh, I want to ask you a question about Students for Fair Admissions. Obviously, huge decision. I think people are, of course, opining on exactly how far-reaching that decision will be. Of course, it’s going to affect college admissions, but the question is what else will it affect? The principle question probably derives from the very clear interpretation of the Fourteenth Amendment as colorblind, and that’s going to affect some things. Have you taken that case into effect in this current litigation? Obviously, it’s been stretching on for quite some time, but, a, have you, b, if you have, what does it look like?

 

Josh Thompson:  Yeah. So all of the federal challenges had been stayed prior to the issuance of the opinion in Students for Fair Admissions, so there’s, frankly, no opportunity for us or for the Alliance for Fair Board Recruitment to raise that -- the impact of that decision in these cases. At PLF, we have filed a few cases in the wake of SFFA. We filed a case challenging contracting by the City of Houston where they’re using racial set-asides, and we think that SFFA does have a lot to say about that.

 

      I think SFFA is a very -- I mean, in some respects, it is a narrow decision. It holds race-based admissions in universities unconstitutional, but there’s a lot of really telling language in there: the fact that the court talks about what interests would suffice for racial -- to enact a racially discriminatory policy—it’s very narrow. The court talks about how racial groups are themselves stereotypical—that, like, Asian Americans, for example, is a stereotype classification, in that what do Chinese Americans have to do with Iranian Americans, for example, or Filipinos—and that these broad racial groups themselves may be challenged.

 

      So I think that that opinion has a lot of -- will have a lot of legs in how it relates to other racial classifications that are ubiquitous in the United States, from these contracting preferences to there are a lot of government boards that require certain racial classifications. There are different grants and funding mechanisms, from COVID relief to medical science research, that are race-based. And I think that SFFA has a lot to say about the continued constitutionality of a lot of those race-based programs.

 

Sam Fendler:  So is it safe to say that if this case does wind up in the Ninth Circuit that it will factor into your argument there?

 

Josh Thompson:  Absolutely. I don’t think any court will rule on a racial classification going forward without considering what the Supreme Court had to say in SFFA. It was a profound, lengthy, well-reasoned decision that requires courts to think and give real scrutiny. I mean, strict scrutiny, I think, is the term, and the Supreme Court explains, I think, in great detail in SFFA what that actually entails. Racial classifications are abhorrent. They should be rooted out of American law, and they can only be justified via the utmost compelling justification. And district courts, courts of appeal, litigants will be citing SFFA for that purpose going forward.

 

Sam Fendler:  Josh, I want to ask you about the affected parties by this California law. Is it the case that these laws only apply to corporations headquartered in California?

 

Josh Thompson:  I believe it’s -- it could either be -- there’s two ways it can apply to a California corporation. Either your principal place of business is in California, or it was organized under the laws of the State of California. If either of those apply to your corporation, then California law can reach in and demand that you structure your board in a way that is discriminatory, and that’s what’s being challenged.

 

Sam Fendler:  So have your friends on the other side made some kind of Tenth Amendment argument, or are they saying, “Hey. By being headquartered in California, you are implicitly agreeing to these kinds of behaviors.” Is there anything like that, or is it what we see a lot of— is it mainly just social-science based?

 

Josh Thompson:  Well, I mean, it’s true that because they’re headquartered in California or their principal base of business is in California that California law can govern their actions to a certain extent. But that doesn’t give California the right to violate the Constitution—either the California Constitution, as the taxpayer lawsuits allege, or the federal Constitution. California is a government entity that is required and bound by the United States Constitution that prohibits them from treating people unequally under the law. This law does that, so notwithstanding the fact that they have the right to pass laws that govern corporations that are headquartered in California, they don’t have the authority to pass laws that abridge individual’s right to equal protection of the laws.

 

Sam Fendler:  Josh, I mentioned the social-science backing there very briefly, but some argue that laws like this one or, I suppose, just the idea of diversity in general are beneficial to companies, to stakeholders, to the general public. Have you found it necessary or has it been a part of this case to take on arguments like that at all? Or for you, is it simply a matter of the constitutionality?

 

Josh Thompson:  A little bit of both because what California does is they say -- they have to justify this law. The burden is on them to show that this law furthers a compelling interest. Now, they try to say that both laws are needed to remedy discrimination against women. I think that that is a difficult position for them for two reasons. First off is the legislature was pretty clear when adopting the law that they wanted to do this to create gender and race parity on these corporate boards, that there is very little discussion of remedying discrimination.

 

      Secondly, they frankly don’t have any evidence of discrimination. There’s no evidence that these corporate boards are discriminating against women. It’s conjecture. It’s disparities. It’s evidence like that, so they don’t have any direct evidence of discrimination. And frankly, if they did, the remedy would be to tell that corporation to stop discriminating. It’s pretty simple. That’s what it means to be narrowly tailored: you remedy the discrimination where it’s happening.

 

      So what does California then rely on? Well, it relies on these disparities. It relies on a lot of social science research, saying that parity’s in the best interest of corporations and that this will benefit California’s economy by requiring race and sex parity on these corporations. But maybe it does, maybe it doesn’t. I’m not really here to say. I’m sort of skeptical that if it’s in the corporation’s best interest, the corporation will probably do that, notwithstanding a mandate by the California government to do so. But it doesn’t change the fact that they can’t mandate that sort of discriminatory actions consistent with the Constitution. Ultimately, the Constitution gives every individual citizen the right to equal protection of the laws, notwithstanding if it’s not in the best interests of the corporation. So that, I do not think, suffices, especially in the wake of SFFA, to overcome the strong presumption that any racial classification is unconstitutional.

 

Sam Fendler:  Josh, another question that proponents of something like this may argue—I saw it in a related case’s amicus brief. But some will argue that these rules are not burdensome to the affected companies, for one reason or another. I saw some of these rules. If you need, let’s say, a recruiting company to help you recruit a diverse board, it’s either subsidized or provided at a free rate, something like this. So the idea is that the impact on these companies will fall under the jurisdiction of the law is actually quite low. Have you or your team had any reason to assess this impact, and if so, what do you think it is?

 

Josh Thompson:  Yeah. As I sort of started out the talk, corporations, for a lot of reasons, are unwilling to speak out and stand up against the California government. I think this is where they do business, this is -- or maybe they’re organized under the laws of California. Why would you want to draw the ire of the attorney general? So that’s part of the reason why I think we would never know how burdensome it is. So maybe it is simple for them to comply with, but that doesn’t change the fact that it denies individuals their constitutional rights.

 

      I also have a significant problem with the idea that a woman qua woman or someone, because of their race, brings a certain perspective because of their race. Individuals ought to be treated as individuals and not as embodiments of their sex or as embodiments of their sexual orientation or certainly not as embodiments of their race. So the law is demeaning. It stereotypes individuals. Even if it were easy to comply to, that doesn’t change the fact that it’s offensive, it’s discriminatory, and ought to be held unconstitutional.

 

Sam Fendler:  Absolutely. Well, Josh, it seems to me that a lot of what California does, and certainly in this vein -- you mentioned at the beginning of your talk, they sort of will come out from time to time and say, “Hey. Maybe it is unconstitutional,” as you said. “We’re going to do it anyway. Let’s see if somebody challenges it and see what happens.” I mean, do you think that this -- that people like yourself, organizations like PLF challenging these laws is a necessary method of doing business in California—perhaps a new and reinvigorated version of federalism? I mean, what is your take on California’s way of doing business in that regard?

 

Josh Thompson:  Yeah. I think -- well, I certainly think that nonprofits—Alliance for Fair Board Recruitment as well as PLF—serve a vital function in ensuring that all American civil rights and civil liberties are upheld. I think California, in particular, is quite willing to enact laws that skirt the Constitution, and you also have businesses and individuals in California that are quite uncomfortable challenging those actions in the State of California because they are social pariahs. So there is a need, and this gets a little bit to the taxpayer standing issue that is being raised in the Taking Offense case and that was raised in the Crest v. Padilla cases.

 

      It’s hard to find individual plaintiffs -- and I do civil rights work every day. And even in states that aren’t California, it’s hard to find people that are willing to take a stand and stand up for their civil rights. I’m grateful for all the clients that are willing to do that.

 

      In California, having taxpayer standing as a way to challenge unconstitutional behavior -- we have a taxpayer standing case right now challenging Alameda County where Oakland is. And these are -- it’s a crucial civil rights tool in California where saying the wrong thing can get you blackballed. So I’m grateful that that statute exists in California. I’m hoping that the California Supreme Court doesn’t gut it with the Taking Offense case.

 

      But I’m a little bit lost where we started this question off, but I do think that there is a vital role for organizations to uphold the civil rights of all Americans, and I think PLF does a good job at that. Alliance for Fair Board Recruitment, Students for Fair Admissions, all these organizations are doing a fantastic job of ensuring the Constitution is followed by abusive government. 

 

Sam Fendler:  Absolutely. Well, Josh, this has been a very helpful discussion. I feel grateful that I was able to ask you a lot of questions that I had. We got to some questions from the audience. Before we sign off, I want to ask you, one, if you have any final thoughts, and two, what maybe our viewers should be paying attention to on the horizon?

 

Josh Thompson:  Yeah. I don’t have -- I mean, this is a complicated issue, not because of the legal issues involved, but as I said, the civil procedure that’s going on revolving all these cases -- involving all these cases. It’s only getting, it seems, a little bit more complicated. So I would imagine we’ll probably be doing another one of these updates in a year or so, hopefully with better news that some of these cases are moving forward to final resolution. But I think a bigger picture—and you sort of hinted at this—is we’re in the moment right now where we’re three months out of SFFA. The Supreme Court has indicated that ending discrimination means ending all of it. I think that I look forward to litigating and challenging race consciousness throughout government in America. I hope other organizations do the same. I know some of them are. I’m grateful for all of the work. If you have things that you think should be challenged, you think are unconstitutional, you can find me on Fedsoc’s website, PLF—pacificlegal.org as well. I encourage you to stand up for your civil rights, find somebody that will take on your case, and let’s end government discrimination once and for all.

 

Sam Fendler:  Wonderful. Well, Josh, on behalf of The Federalist Society, I want to thank you very much for the benefit of both your time and your expertise today. It was a really wonderful discussion.

 

 

      I want to thank our audience, as well. We greatly appreciate your participation. Please check out our website, fedsoc.org, or follow us on all major social media platforms @fedsoc to stay up to date with announcements and upcoming webinars. Thank you all once more for tuning in, and we are adjourned.