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Takeaways
- The Florida and Texas attorneys general issued opinions asserting that many DEI and affirmative action measures in both public and private sectors constitute unlawful race‑based discrimination under federal and state law.
- Florida AG James Uthmeier opined that several state statutes involving race‑based hiring goals, contracting goals and representation requirements violate the Equal Protection Clause, stating his office will not defend or enforce such laws.
- Texas AG Ken Paxton similarly deemed DEI‑related programs unlawful and warned that employers' DEI‑informed hiring, promotion, compensation, affinity groups, training, and governance practices could lead to liability under federal and state laws.
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On Jan. 19, 2026, the attorneys general (AGs) of Florida and Texas released separate formal legal opinions asserting that certain diversity, equity, and inclusion (DEI) and affirmative action measures in the private and public sectors constitute unlawful race-based discrimination under federal and state law. The Florida and Texas AG opinions signal the states' enforcement priorities and legal interpretations.
Florida AG Opinion
Florida AG James Uthmeier issued a written opinion concluding that numerous Florida laws are presumptively unconstitutional under the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution and Article I, section 2 of the Florida Constitution.
In the advisory opinion, AG Uthmeier identified several categories of state laws that, in his view, unlawfully discriminate on the basis of race. These include:
- Statutes requiring state agencies to adopt affirmative action
plans with race-based hiring goals;
- Provisions establishing race-based spending goals in government
contracting; and
- Laws mandating or encouraging minority representation or quotas on boards, councils, and similar governmental bodies.
Relying heavily on recent U.S. Supreme Court precedent, including Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, the opinion concluded that the measures he identified do not satisfy strict scrutiny and therefore cannot be enforced. AG Uthmeier states that his office will not defend or enforce laws that mandate race-based discrimination.
Texas AG Opinion
The same day, Texas AG Ken Paxton issued an advisory opinion asserting that "decades' worth of DEI frameworks" embedded in Texas law are unconstitutional.
Paxton specifically highlighted Texas's Historically Underutilized Business (HUB) and Disadvantaged Business Enterprise (DBE) initiatives, as well as race- or sex-conscious policies in public employment, contracting, higher education, and appointments as examples of unconstitutional programs, alleging they are not narrowly tailored to a compelling governmental interest.
The opinion warned private employers that DEI-related practices such as hiring and promotion policies, compensation programs, affinity groups, training initiatives, and governance goals could expose employers to liability under Title VII, Section 1981, the Texas Commission on Human Rights Act, and federal and state securities laws.
AG Paxton characterized the impact of his non-binding opinion as "dismantling" DEI programs.
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Employers in Florida and Texas should continue to assess DEI, affirmative action, supplier diversity, and related programs and practices. At least these two AGs have signaled their intention to investigate and challenge DEI practices and programming.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
