C Boyden Gray vs NASDAQ

I know who should be winning. I know how the matter should be resolved.

Recall that NASDAQ wants to require companies, as a condition of being listed on the NASDAQ exchange, to have quotas of particular groups of Americans on those companies’ boards of directors:

“at least one director who self-identifies as female,” and “at least one director who self-identifies as Black or African American, Hispanic or Latinx, Asian, Native American or Alaska Native, two or more races or ethnicities, or as LGBTQ+.”


Noncompliant firms must publicly “explain”—in writing—why they don’t meet Nasdaq’s quotas.

Gray’s and his colleague, Jonathan Berry’s, summary of their Comment filing before the SEC is spot on.

Nasdaq’s discriminate-or-explain rule is unlawful, unconstitutional, and unsupported by the evidence. Quota systems like this unjustifiably classify people by arbitrary categories of sex and race in violation of equal-protection principles, and the “alternative” of explaining why a firm won’t discriminate compels speech in violation of the First Amendment.

Yet, this is the damage the social justice warriors that infest our government at all levels would inflict.

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