On June 29, 2023 the Supreme Court decided, in a 6-3 ruling, to strike down the use of affirmative action at colleges and universities. But the effects of the decision, which found that race-conscious admissions programs were unlawful, could impact corporate boards as well.

In August 2021, the SEC approved Nasdaq Rules 5605(f) and 5606 with the intention of improving diversity on the Boards of Directors of companies listed on Nasdaq.  Under the rule, Nasdaq-listed companies must, by December 31, 2023 (subject to certain exceptions), appoint at least two diverse directors — including one self-identified as female and another who is either an underrepresented minority or LGBTQ+ — or explain why they have not done so.  Companies would be required to publish a Board Diversity Matrix, disclosing the racial and gender identity of the members of its Board of Directors.

The Supreme Court's decision on affirmative action could call the Nasdaq diversity rules into question and could impact an already pending case challenging the Nasdaq rule, resulting in Rule 5606 being eliminated.  If Rule 5606 is eliminated, Nasdaq listed companies would not be required to report on Board composition.

California's Board Diversity Statute, which required public companies headquartered in California to meet certain diversity requirements, was previously struck down by a federal court in May 2023.