Previously reported in this space were a California statute requiring corporations to have specified numbers of female and minority directors, and a NASDAQ rule requiring covered companies to have at least one female and one minority board member or report the reason for not doing so.  Recently a Federal Circuit Court struck down the California law, and now the Federal Fifth Circuit (a majority of which are Republican appointees) will shortly rule on whether the less restrictive NASDAQ articulation passes constitutional muster.

There is substantial “noise” in the marketplace on both sides of this question.  Some major corporations are supportive of the NASDAQ rule (Comcast, Microsoft, Starbucks among others); many are opposed, including 12+ Republican State-Attorneys-General who claim unconstitutionality.

Core issue is: do such requirements for diversity themselves constitute discrimination.  Same issue being raised generally about quotas in other contexts.  The culture war, and reliance on originality as a legal doctrine, continues in multiple arenas.