Fifth Circuit Deals Blow to DEI on Wall Street

The Fifth Circuit Court of Appeals has delivered a landmark decision striking down Nasdaq’s board diversity rules, marking a significant setback for corporate diversity initiatives imposed by regulatory bodies. 

While the rules aimed to increase representation of women and minorities on corporate boards, the court found them inconsistent with federal securities laws, emphasizing limits on the authority of regulatory agencies to shape corporate governance. The Fifth Circuit’s ruling deals a blow to recent, progressive trends in the corporate world – pushed by government agencies like the Securities and Exchange Commission (SEC) – calling for more diversity, equity, and inclusion (DEI) on corporate boards.

Background on Nasdaq’s Diversity Mandate

Nasdaq’s rules, introduced in 2021 in the wake of George Floyd’s killing and heightened focus on racial equity, required companies to either ensure at least one woman and one minority or LGBTQ+ director on their boards or explain their non-compliance. The rules also imposed annual disclosure requirements for board diversity statistics, standardizing data reporting across listed companies.

Advocates argued these rules aligned with evolving investor priorities and societal expectations. The SEC, under Democratic leadership, approved the rules, contending that they provided vital transparency for shareholder decision-making.

The Legal Challenge and the Fifth Circuit Ruling

The challenge to these rules came from conservative groups such as the National Center for Public Policy Research and the Alliance for Fair Board Recruitment. The latter is led by Edward Blum, an architect of legal battles against affirmative action, including the recent Supreme Court case striking down race-based college admissions policies.

The Fifth Circuit, known for its conservative jurisprudence, ruled 9-8 to overturn the regulations. Judge Andrew Oldham, writing for the majority, dismissed the SEC’s argument that the rules were within its mandate to promote “just and equitable principles of trade.” Oldham asserted that “It is not unethical for a company to decline to disclose information about the racial, gender, and LGBTQ+ characteristics of its directors.”

It is obviously unethical to violate the law or to disregard a contractual promise. It is not unethical for a company to decline to disclose information about the racial, gender, and LGTBQ+ characteristics of its directors. We are not aware of any established rule or custom of the securities trade that saddles companies with an obligation to explain why their boards of directors do not have as much racial, gender, or sexual orientation diversity as Nasdaq would prefer.

The court deemed the rules “far removed” from the Securities Exchange Act of 1934, which governs market fairness and stability. Critics of the ruling have noted its alignment with broader conservative resistance to DEI (Diversity, Equity, and Inclusion) initiatives perceived as veering into the realm of quotas.

This decision is not isolated, either. Similar diversity initiatives have faced legal obstacles elsewhere. In 2022, a California law mandating corporate board diversity was struck down as unconstitutional. These rulings spotlight the increasing legal scrutiny surrounding DEI efforts, particularly those that could be interpreted as imposing quotas.

Implications for DEI in Commerce

The ruling redefines the landscape for diversity efforts in corporate America. It underscores that DEI goals must be pursued voluntarily and market-driven rather than through regulatory mandates. Nasdaq, acknowledging the court’s decision, stated it would not seek further review. Meanwhile, the SEC is evaluating its response.

Corporate entities are still free to implement diversity policies as part of their governance frameworks. However, the decision could dissuade other regulatory bodies from attempting similar initiatives, creating a more cautious environment for ESG (Environmental, Social, and Governance) policy-making.

While some investors view board diversity as a marker of sound governance, the Fifth Circuit’s decision suggests that courts will closely scrutinize the legal basis of regulatory measures tied to ESG objectives. Companies that wish to maintain diverse boards must now rely on market forces and voluntary commitments rather than regulatory compulsion.

A Defining Moment for Corporate Governance

The Fifth Circuit’s ruling is a pivotal moment in the intersection of regulation and corporate governance. It affirms a principle that regulatory agencies must operate within clearly defined statutory boundaries, even as societal values evolve.

For companies, this decision presents both a challenge and an opportunity: to reaffirm their commitment to diversity through self-governance and to navigate an environment where such initiatives must align with both market expectations and legal frameworks.

As the regulatory momentum for DEI policies slows, the private sector must innovate to meet stakeholder demands for inclusion without reliance on mandates. The court’s decision is a call to action for corporate leaders to demonstrate that diversity and inclusion can thrive in a framework that respects the rule of law.

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