Boyden Gray & Associates partner Jonathan Berry published an editorial in the New York Post on September 11, 2022, arguing that Nasdaq’s board-diversity rule is unconstitutional and driven by elitism. He writes, 

Today a new elite club that wants to set itself apart from the rest of America: progressive activists and their friends in the business world. They are highly motivated, ideologically and financially, to channel the immense wealth of corporate America to their goals. And they have decided that dictating the identity — racial, sexual and otherwise — of business leadership is a key means to that end. 

A key purpose of the rule, Berry says, is to place “crushing pressure to discriminate in pursuit of a woke agenda.” He writes,  

Being delisted on a major stock exchange is no small penalty. Delisting was formerly reserved for the worst cases of fraud, misreporting and insolvency. It now hangs over the head of every director or executive of an American company who holds the unfashionable belief that Americans should be judged by merit, not their race, sex or sexual identity. 
The decree is an unmistakable message from the reigning ideological and financial elite to the rest of corporate America: Play by the new rules of identity politics or get out.   

The full op-ed, entitled Nasdaq’s board-diversity rule pits corporate elites against the Constitution, is available here. 

Berry recently argued a case challenging Nasdaq’s rule before the United States Court of Appeals for the Fifth Circuit in Alliance for Fair Board Recruitment v. SEC.