I recently noted an inconvenient fact buried in the Alabama Code: certain seats on our state boards and commissions are reserved for citizens of particular races. The point drew the usual feedback, some of it indignant that such a claim could still be made in 2026, some of it indignant that anyone would object to it.

Both camps, it turns out, were reacting to the easy part. The harder point—the one worth returning to—concerns not merely Alabama’s peculiarity but its company.

It bears repeating, for readers who missed the earlier column or assumed the matter was merely academic, that a citizen need not prove that he or she was denied a seat on the board because of his or her race to obtain standing to challenge these statutes. The Supreme Court settled this in 1993, holding that the injury in an equal protection challenge to a racial classification is the denial of an equal opportunity to compete, not the denial of the ultimate prize.

So, anyone who wished to serve on one of these boards but was denied an equal chance to do so because of a racial qualification could sue over that qualification today. That this remedy sits unused is less a comment on the law’s clarity than on litigants’ awareness.

>>> The Racial Quotas Embedded in Alabama Law

Consider this fascinating report from the Pacific Legal Foundation (PLF), which suggests that Alabama’s situation is disturbingly common. PLF’s researchers, Laura D’Agostino and Angela C. Erickson, found that 25 states maintain laws requiring race- or sex-conscious appointments to at least some public boards or commissions.

Fifteen states impose statewide requirements of this kind, applicable broadly across their public boards. Beyond these, the report identifies 63 individual boards across 14 states carrying board-specific demographic mandates. All 63 of those boards impose racial requirements; 32 layer sex-based requirements atop them. Eight boards go further still, establishing what can only be called quotas, reserving one or more seats explicitly for members of designated racial minority groups. Three of these require, by statute, a black member.

One admires the authors for a useful taxonomy: they distinguish “representation mandates,” which merely direct appointing authorities to aim for boards reflecting the racial or gender composition of the relevant population, from outright quotas, which reserve fixed seats for particular groups. The distinction matters legally, though both species trouble the Constitution’s insistence that government must treat citizens as individuals rather than specimens of an ethnic category.

The constitutional analysis is not complicated. Racial classifications by government trigger strict scrutiny—the most exacting standard American law provides—one that has proven, outside a narrow band of remedial contexts, nearly always fatal. Sex-based classifications receive intermediate scrutiny, a somewhat gentler but still demanding test.

D’Agostino and Erickson argue, persuasively, that most demographic appointment mandates fail both standards because they are not narrowly tailored remedies for specific, proven instances of government discrimination; they are instead exercises in what might charitably be called statistical aesthetics, an official preference that public bodies look a certain way, unmoored from any particular wrong they are meant to correct.

>>> Alabama’s Path to Leading the South’s Economy

The report’s animating premise is that the equal protection guarantee belongs to persons, not to demographic categories. A board seat is not owed to a race; it is available, or ought to be, to a citizen. The recommendations are correspondingly modest, even conservative in the literal sense: legislatures should repeal race- and sex-based appointment requirements, adopt merit-based systems in their place, resist the perennial temptation toward demographic balancing, and ensure that all qualified citizens remain eligible to serve regardless of race or sex.

None of this is radical. It is, if anything, a return to the colorblind constitutionalism that once commanded bipartisan assent before it became, oddly, a partisan position.

The Pacific Legal Foundation deserves credit for doing the unglamorous work of cataloging these statutes, board by board, state by state, the sort of empirical spadework that makes litigation possible and legislative reform harder to evade. PLF informed me by email that it has “challenged quotas/preferences in 11 states, with five legislative victories and two litigation victories so far … [with] three cases currently pending.”

If Alabama’s racial quotas are not dismantled by a plaintiff with standing and a good lawyer, they should be dismantled by the legislature next session. Whether legislators seize this opportunity or not is a separate question from whether they should. History, and the 14th Amendment, suggest they should. A hunch, admittedly unscientific, suggests they might.