Texas and Florida AGs Target DEI Programs

On January 19, 2026, Texas Attorney General Ken Paxton and Florida Attorney General James Uthmeier issued separate legal opinions declaring several state laws, regulations, and agency programs that consider characteristics such as race or sex in hiring, contracting, or agency actions are unconstitutional.

For employers, universities, and contractors in Texas and Florida, these attorney general opinions signal a sharp escalation in legal scrutiny of diversity, equity, and inclusion (DEI) programs that consider race or sex. These opinions do not change the law overnight, but they create a clear roadmap for challenges to public‑sector DEI initiatives—and, in Texas, an explicit warning shot at private‑sector policies as well.

Below is an overview of the key takeaways from both legal opinions.

I. Applying “Equality” and “Strict Scrutiny” in Texas

Texas Attorney General Ken Paxton published Opinion KP-0505 (“the Opinion”), an expansive 75-page legal analysis asserting that Texas policies, programs, regulations, and statutes implementing Diversity, Equity, and Inclusion (DEI) frameworks are presumptively unconstitutional when they involve race-based or sex-based classifications. The core theme of Attorney General Paxton’s Opinion is that DEI frameworks embedded in Texas laws, regulations, and agency practices—particularly those that assign differential treatment or outcomes based on race or sex—violate constitutional guarantees of equal treatment.

According to the Opinion, both the United States and Texas constitutions embody commitments to equality and prohibit the State from evaluating or treating individuals differently based on immutable characteristics such as race or sex. Any race- or sex-based classification by a government entity must withstand strict scrutiny—the highest level of judicial review—and the government must demonstrate a “compelling interest” and show that the classification is “narrowly tailored” to achieve that interest. The Opinion declares that “race- and sex-based public-sector preferences … cannot survive strict scrutiny and are therefore unconstitutional,”  emphasizing that, under current U.S. Supreme Court precedent, most race-based governmental decision-making is viewed with skepticism and will survive only in limited circumstances. The Opinion further asserts that Texas DEI policies do not meet these criteria because they seek outcome equality rather than remedying specific, identified instances of past discrimination. As a result, such policies are deemed not narrowly tailored to a compelling governmental interest.

The Opinion lays out the legal basis for the Attorney General’s conclusions about the lawfulness of specific Texas statutes and programs that authorize or require race-based or sex-based considerations to achieve equity outcomes. According to the Opinion, these measures are presumptively unconstitutional under equal protection doctrine.

DEI in the Public Sector

The Opinion characterizes decades of DEI initiatives reflected in more than 100 state laws and policies as unconstitutional where they entail race- or sex-based classifications. The Opinion does not identify every Texas statute that it considers unlawful; instead, it addresses the issue categorically. It asserts that state laws and policies, adopting DEI language or pursuing what the Opinion characterizes as “equity outcomes,” are unconstitutional where they rely on protected-characteristic classifications. Examples include:

• DEI offices and positions at public entities: Government offices, commissions, or policy units whose missions include promoting or measuring outcomes for historically underrepresented groups based on race or sex.
• Admissions and employment criteria in public universities and agencies: Any formal or informal higher-education policy that grants preferences or affirmative consideration based on race, ethnicity, or sex—even if framed as promoting diversity.
• State contracts and procurement preferences: Any Texas statute or regulation that awards contracts or benefits preferentially to businesses owned by members of specific racial or gender groups.
• Texas Educational Programs: Regulations that mandate or authorize public universities, school districts, or other educational entities to pursue outcomes based on group identity (e.g., race or sex).
• DEI training and compliance monitoring: Government-mandated or government-supported training that treats immutable traits as a basis for opportunity or disadvantage is considered unconstitutional where it imposes classifications or preferences. The AG’s opinion with respect to DEI training contrasts with the federal government’s recent decision to drop its appeal of a Maryland federal court injunction blocking a U.S. Department of Education memo that required K-12 schools to certify that they did not engage in or teach DEI. The court found the guidance unconstitutional as it stifled teacher’s free speech.

The Opinion broadly asserts that Texas government entities should treat individuals as individuals—not as members of racial or sex-based classes—when awarding opportunities, benefits, or advantages.

DEI in the Private Sector

Although the Opinion primarily addresses Texas government programs, it also comments on private-sector employment and corporate DEI practices.  Attorney General Paxton warns that corporate DEI initiatives in Texas that involve classifications or preferences based on race, sex, or other immutable traits may expose companies to legal liability under Texas and federal anti-discrimination laws.  The Opinion cautions companies doing business in Texas against adopting or implementing hiring, promotion, or retention policies that classify individuals by protected status in pursuit of diversity outcomes.

II. Florida AG Opinion Extends Equal Protection Analysis Beyond Higher Education

Issued on the same day as the Texas opinion, Attorney General James Uthmeier’s Opinion similarly includes an equal-protection analysis under the U.S. and Florida Constitutions. Citing the Fourteenth Amendment and Article I, Section 2 of the Florida Constitution, the Opinion emphasizes that individuals are equal before the law and highlights Supreme Court precedent describing the Equal Protection Clause’s core purpose as preventing government discrimination based on race.

The Opinion relies heavily on the U.S. Supreme Court’s decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (“SFFA”), which invalidated Harvard’s race-based admissions policies as violations of the Equal Protection Clause and Title VI of the Civil Rights Act. The Court held that such policies must satisfy strict scrutiny by serving a compelling governmental interest and being narrowly tailored to achieve that interest.

The Florida Opinion applies the Supreme Court’s reasoning in SFFA beyond higher-education admissions to all Florida laws and programs that employ race-based classifications, preferences, or quotas, and reiterates that any Florida law mandating discrimination based on race—whether through preferences, classifications, or quotas—is unconstitutional. An appendix to the Opinion lists 83 specific Florida statutory provisions deemed to violate the U.S. and Florida Constitutions.

Race-based classifications by Florida agencies

The Opinion asserts that Florida law “currently employs a system of race-based classifications that seeks to compel state agencies and other entities to discriminate based on race.” Citing section 110.112, Florida Statutes, which requires statewide participation in “programs of affirmative and positive action” and requires agency heads to develop and implement affirmative-action plans that include race-based hiring goals, the Opinion concludes that this statute would not survive strict scrutiny.

Race-based preferences in government contracting

The Opinion further concludes that various Florida contracting statutes violate the U.S. and Florida Constitutions. For example, it determines that programs earmarking opportunities for minority contractors without a “strong basis in evidence” to justify race-based action are unconstitutional. Specifically, the opinion cites section 287.09451, Florida Statutes, which establishes race-based spending goals for state contracts, as failing strict scrutiny.

Race-based quotas in boards and councils

The Opinion also identifies Florida programs that impose explicit or implicit racial quota requirements for representation on boards, councils, and similar entities. As an example, it cites the Florida Cancer Control and Research Advisory Council, which requires that at least four council members be minorities, concluding that such a requirement fails strict scrutiny.

III. Practical effects of Attorney General opinions

While Attorney General opinions are not legally binding on courts and do not have the authority to invalidate laws, AG opinions interpret existing law and can impact litigation and policy implementation. The Texas and Florida Attorney General opinions are likely to influence:

• State agency rulemaking and enforcement: Agencies may review and revise existing DEI policies to align with the Attorney General’s interpretations and may discontinue certain programs.
• Litigation: Parties challenging DEI programs in Texas and Florida courts may cite these AG opinions as persuasive authority, and advocacy groups may rely on them to support efforts to invalidate DEI-related laws and initiatives. At the same time, enforcement actions brought by State AGs based on these opinions are likely to prompt legal challenges.
• Employer and private-sector responses: Agencies in both states are likely to revisit DEI‑related rules, programs, and contracting preferences in light of these new interpretations. The opinions also provide plaintiffs and advocacy groups with a roadmap for challenging public‑sector DEI initiatives. Particularly in Texas, companies face explicit warnings that race‑ and sex‑conscious DEI policies may become targets for litigation or enforcement. Private employers in Texas with DEI initiatives are warned of potential legal risks affecting corporate policies.

Companies with operations, contracts, or employees in Texas or Florida should promptly assess their DEI and affirmative‑action frameworks, distinguishing compliance‑driven nondiscrimination efforts from any initiative that allocates opportunities, benefits, or targets by race or sex.