Texas Attorney General Ken Paxton
AUSTIN — Attorney General Ken Paxton has issued a legal opinion declaring the unconstitutionality of Diversity, Equity, and Inclusion policies and programs in Texas government, while warning the private sector that DEI practices “triggers liability.”
The opinion declares decades’ worth of DEI frameworks unconstitutional, including DEI programs in schools and state and local governments across Texas.
Along with public institutions, Paxton’s opinion warns that every private company engaging in woke DEI practices is exposing themselves to significant legal liability under state and federal law.
Paxton released a statement saying that his opinion “helps fulfill the vision” of Martin Luther King, Jr.
“America is waking up to the egregious unfairness of DEI policies,” he said. “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.”
Paxton also went after a political opponent in his opinion, incumbent U.S. Sen. John Cornyn, whom the AG will face in the Republican Primary.
“To make matters worse, when given an opportunity to confront DEI in the context of higher education, then-Attorney General Cornyn not only declined to give an answer but withdrew the only actionable guidance on the topic,” the opinion states. “Adding insult to injury, he deferred to a pending Fifth Circuit court decision without any guidelines with which to navigate the legal morass that is DEI.
“This was as wrong then as it is now, and the opinion is overruled.”
Paxton asserts Cornyn “muddied the waters” in 1999 by overturning a legally sound opinion that affirmed constitutional principles.
“His actions left critical constitutional questions unresolved, which then allowed decades of DEI and discriminatory practices to proliferate across state government unchecked,” states Paxton’s release. “Attorney General Paxton’s opinion restores clarity, order, and constitutional integrity.”
The opinion states that historically underutilized business programs establish a pervasive regime of racial, ethnic, and sex-based classifications in violation of the U.S. Constitution’s Equal Protection Clause and the Texas Constitution’s Equal Rights Amendment.
By prioritizing public grants for certain businesses based on race and sex, the programs blatantly violate the law and use these factors as proxies for merit, which Paxton says is a failure to rightly steward taxpayer dollars.
While the opinion finds it is unconstitutional for programs to operate and judge based on skin color, sex, race, or other immutable traits bestowed at birth, it states that programs and policies for veterans and veteran-owned businesses should remain in place.
“Our nation was founded on the radical notion that all are created equal,” the opinion states. “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.”
Opinion No. KP-0505
