California reparations bill on licensing unconstitutional say critics

(The Center Square) - A California reparations bill prioritizing black applicants in state professional licensing is likely unconstitutional and violates the U.S. Constitution’s equal protections clause under the 14th Amendment, says the Pacific Legal Foundation.

AB 2862, authored by Assemblymember Mike Gipson, D-Carson, would “require boards to prioritize African American applicants seeking licenses under these provisions, especially applicants who are descended from a person enslaved in the United States.” The bill was introduced in February as a broader package of reparations for Black Californians, a package that did not include direct cash payments.

Gipson's office did not respond to requests for comment by time of publication.

California requires licenses for a wide variety of professions, ranging from manicurists to doctors. According to the Institute for Justice, one out of six Californians must hold an occupational license in the state to legally work, and low and moderate-income workers are most affected by licensing requirements.

Low and moderate-income workers require an average of 837 days of education and experience to qualify for their licenses. Cosmetology, one of the state’s most in-demand licenses, requires over 1,000 hours of classes at a typical cost of over $17,000, while the average California cosmetologist makes less than $28,000 per year, or less than three quarters of the state's median income.

"AB 2862 denies working Californians individualized consideration and subjects them to separate and unequal evaluation based on their race, which is plainly unconstitutional,” wrote PLF attorney Andrew R. Quinio in a formal letter opposing the bill. “California must reduce barriers for all, not erect more of them.”

Quinio noted courts have upheld only two exceptions for race-based government actions under the Equal Protections clause — the first, for “remedying specific, identified instances of past discrimination, and the second in avoiding “imminent and serious risks to human safety in prison.”

Even if AB 2862 were passed and found to be sufficiently remedying specific discrimination, Quinio says such remedies typically require “narrowly tailored” solutions after “serious, good faith consideration of workable race-neutral alternatives” and “limited in time.”

With no expiration, and AB 2862 not including proposed licensing reforms suggested even by the state’s Reparations Task Force, such as reducing barriers for individuals with criminal records, Quinio says the bill fails to meet either of these requirements.