Texas Attorney General Ken Paxton has come to a shocking conclusion: Racist discrimination is illegal.
Texas Attorney General Ken Paxton has issued a sweeping new legal opinion declaring that “Diversity, Equity, and Inclusion” programs rooted in race- and sex-based preferences are unconstitutional in the public sector and expose private companies to significant legal liability.
The 74 page opinion argues that government policies awarding opportunities or benefits based on “skin color or sex” cannot survive strict constitutional scrutiny and should be dismantled across Texas.
An attorney general opinion is a formal written interpretation of the law issued by the state’s top lawyer, typically in response to a legal question about how existing statutes or constitutional provisions should be applied.
Paxton’s office said the opinion targets decades of DEI frameworks embedded throughout state and local government, including programs in public institutions and schools. The attorney general framed the action as a return to equal opportunity and a rejection of what he called “woke, race-based favoritism.”
“This action to dismantle DEI in Texas helps fulfill the vision articulated by Martin Luther King, Jr. when he dreamed that his children would one day live in a nation where they were judged not by the color of their skin, but by the content of their character,” Paxton said. “America is waking up to the egregious unfairness of DEI policies. People should be judged based on merit and the quality of their character and qualifications, not their race, sex, or any other inherent characteristic conferred at birth.”
Seems like apt phrasing for a decision issued on Martin Luther King Jr. Day.
Paxton added that “it’s imperative that all private-sector employers, schools, and state and local government entities—based on this legal opinion—immediately abolish any DEI, affirmative action, or unconstitutional discrimination programs under their authority.”
In the opinion itself, Paxton’s office contends that DEI has evolved into a system in which immutable traits have become “the currency of advancement,” spreading through academia, government, and private industry.
While an AG opinion can carry significant weight for state agencies and local governments—often shaping how officials administer programs and avoid legal risk—it does not, by itself, change the law, repeal statutes, or carry the force of a court order.
It does, however, signal how his office will treat DEI going forward.
If you read the decision, it goes into considerable detail not just on how racial preferences violate the Civil Rights Act of 1964, but the Civil Rights Act of 1866, and the Civil Rights Act of 1875, and the spirit of the Declaration of Independence, and Paxton cites the words of American Founding Fathers such as Thomas Jefferson, James Madison, Thomas Paine and George Mason.
It also fiercely critiques the reintroduction of official support for racial preferences and the introduction of racial quotas under President Lyndon Baines Johnson in the name of “affirmative action,” as well of the slight-of-hand by which temporary solutions to address past discrimination have been transformed into permanent “diversity” bureaucracies. “The rhetoric that diversity is essential for ‘business survival’ continued to take form and brought with it a cottage industry of diversity training programs, networking, and mentoring programs that fixated on the advancement of women and minorities.”
Back to Texas Scorecard:
The legal opinion concludes that race- and sex-based preferences in public institutions “cannot survive strict scrutiny and are therefore unconstitutional.”
It also warns that many private-sector DEI practices could trigger liability under Title VII of the Civil Rights Act, the Texas Commission on Human Rights Act, and federal civil rights law, including Section 1981, as well as potential exposure under state and federal securities laws.
A major focus of Paxton’s opinion is Texas’ historically underutilized business (HUB) contracting framework, which Paxton describes as a “pervasive, discriminatory regime” that violates both the U.S. Constitution’s Equal Protection Clause and the Texas Constitution’s Equal Rights Amendment.
The opinion argues the state’s HUB structure defines eligibility and access to government benefits by race and sex, triggering strict scrutiny and creating what it calls de facto quotas through race- and sex-based “targets.”
Plus a slam at current Senate race rival John Cornyn for failing to address DEI when he was Attorney General.
Our nation was founded on the radical notion that all are created equal. Though we have often failed to live up to that promise, it remains as a constitutional lodestar—both in the U.S. and Texas Constitutions. The race- and sex-based, public sector preferences discussed in this opinion cannot survive strict scrutiny and are therefore unconstitutional. Furthermore, a large body of DEI practices in the private sector triggers liability under Title VII, the Texas Commission on Human Rights Act, and Section 1981 in addition to state and federal securities law.
That should be the proper death-knell for DEI in Texas. The question remains how much resistance will Democrat-run blue locales like Austin and Houston, who desperately want to continue discriminating on the basis of race, put up against the ruling, and long will it take private sector entities to fall in line to limit their legal liability?