Texas AG Paxton Takes on DEI Programs in MLK Jr. Day Opinion

Texas Attorney General Ken Paxton issued an opinion Monday excoriating governmental diversity, equity, and inclusion efforts in his state as unconstitutional and said private sector efforts may violate federal and state anti-discrimination and securities laws.

“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. Rather, people are to be judged by the quality of their character and skill they have worked to obtain,” Paxton wrote, adding “This moral imperative preexists any political or legal document.”

Paxton’s 74-page opinion, which was issued on the Martin Luther King Jr. holiday, comes as the conservative AG has been at the forefront of a rising tide of Republican officials aiming to dismantle DEI initiatives. The Trump administration has implemented sweeping executive orders to curb DEI during President Donald Trump’s second administration and is defending the moves in federal court in multiple lawsuits. At the same time, the Justice Department is challenging DEI practices in various states, with a suit filed against a state hiring program in Minnesota just last week.

The Texas AG’s memorandum outlines the history of equality principles from the nation’s founding through recent Supreme Court decisions, ultimately concluding many DEI initiatives violate both the US and Texas constitutions. Private sector DEI practices may violate federal law including Title VII and Section 1981, as well as the Texas Commission on Human Rights Act, among other state and federal statutes, he also said.

“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 in a Monday press release.

Paxton took aim at various public sector programs in Texas, including Historically Underutilized Business initiatives, Disadvantaged Business Enterprise programs, and minority and women-owned business preferences, contending they create unconstitutional race and sex-based preferences that fail constitutional muster because they do not survive strict scrutiny.

He also cited the US Supreme Court’s 2023 landmark ruling in Students for Fair Admissions Inc. v. President & Fellows of Harvard Coll., which ended racial classification as a factor in college admissions and undid decades of affirmative action precedent. Higher education initiatives targeting specific racial groups for recruitment and retention are unconstitutional, Paxton said.

The AG highlighted potential liability under federal and state law for private sector employers using DEI practices in hiring, promotion, compensation, and training. Paxton also raised concerns about certain DEI trainings creating hostile work environments, race-conscious contracting practices violating federal civil rights law under Section 1981, and potential securities law violations over not disclosing DEI-related risks to investors.

“DEI initiatives related to hiring or compensation—like hiring goals or quotas, diversity board mandates, structured interview requirements, internships, fellowships, pipeline programs, and targeted recruitment—may also constitute unlawful employment actions,” Paxton wrote in the opinion.