2 state AGs challenge DEI, racial quota policies as unconstitutional

In separate opinions Monday, two state attorneys condemned racial discrimination in hiring – even to meet “racial quotas” or diversity, equity and inclusion (DEI) standards.

“This may come as a news flash to the radicals on the far-left, but our Constitution and the rule of law do not allow woke, race-based favoritism that tears our country apart,” Texas AG Ken Paxton said in a press release Monday.

“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. We must return to the basic principles of equal opportunity for all.”

Florida AG James Uthmeier also deemed any state law requiring “race-based state action” unconstitutional.

“Racial discrimination is wrong. It is also unconstitutional,” he said in his opinion. 

In Texas, DEI frameworks taint more than 100 state laws, which Paxton called unconstitutional – forcing many companies to face “significant legal liability under state and federal law,” according to the release. 

“Our nation was founded on the radical notion that all are created equal,” Paxton said in his 74-page opinion. “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.” 

Paxton said DEI policies have infiltrated both public and private sectors, including academia and business – in violation of the Texas Commission on Human Rights Act, as well as state and federal law. For example, the Disadvantaged Business Enterprise (“DBE”) and Historically Underutilized Business (HUB) programs both standardize “discriminatory preferences” for hiring. 

“The worth of a person cannot be measured by race, sex, or any other immutable feature bestowed at birth – beyond the reach of individual choice,” Paxton said in his opinion. “Rather, people are to be judged by the quality of their character and skill they have worked to obtain. Ours is a merit-based society.” 

The opinion overrules former Texas AG John Cornyn’s 1999 opinion that allowed DEI and other discriminatory policies to invade state laws, Paxton said. 

Paxton and Uthmeier referenced the 2023 Supreme Court ruling in Students for Fair Admissions Inc. v. Harvard, which abolished affirmative action in college admissions recruitment. 

 “‘The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,’” Uthmeier wrote, quoting the Supreme Court opinion. 

He cited the Equal Protection Clause of the 14th Amendment and article 2, section 1 of Florida’s Constitution – both of which prohibit discrimination based on race, origin or disability. 

“Any Florida law that seeks to mandate discrimination based on race by giving preferences to certain racial groups, using race-based classifications, or by employing racial quotas is unconstitutional,” Uthmeier wrote. 

Both AGs promised to investigate companies, agencies or schools that use DEI or racial discriminatory policies and to hold violators accountable.  

“Our Constitution and our governmental system exist to protect life, liberty, and the pursuit of happiness for all American citizens,” Paxton said in the release. “Core to those foundational principles is the fact that racial discrimination is not only morally wrong, but it’s illegal as well.”