Board Diversity Momentum Hits Constitutional Speedbump

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Board Diversity Momentum Hits Constitutional Speedbump
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It’s not the end of the world by any means, but board diversity efforts now may require more leadership support going forward.

There’s an open question of whether the state will appeal the ruling . There’s also a question over the fate of the challenge to the 2018 Law. Until then, boards are left with the summary judgment decision and its uncertain implications for the efforts of California, and other states, to mandate diversity requirements for corporate boards. And there’s a similar uncertainty with the challenges to NASDAQ’s new board diversity rules.

But it is to suggest that if corporate boards are to vigorously pursue diversity across the spectrum – as all statements of governance principles recommend – they are best to rely on their own initiative to do so, rather than to rely on government to require that they do so. They’ve got to make it happen – and that might require several steps.

Second is to pass on criticizing the Superior Court’s decision as “out of the mainstream” or marginalizing because it was a trial court. The plaintiff’s constitutional arguments weren’t totally absurd; the “equal protection” theme is going to arise when legislatures pursue measures that resemble in some sense a “quota” arrangement. The opinion was lengthy and thoughtful, and merits consideration by governance observers.

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