Recent opinions by the Texas attorney general (AG) and the Florida AG assert that their states’ race- and sex-conscious laws and policies are unconstitutional. The opinions align with President Donald Trump’s 2025 Executive Orders 14151 and 14173 (collectively, the executive orders), which seek to end gender- and race-based contracting practices and dismantle diversity, equity, and inclusion (DEI) initiatives. Like the executive orders, the AG opinions target DEI-related policies affecting state contracting, appointments, and employment; the Texas AG also specifically asserts that private employers’ applicable DEI policies (as described within the opinion) violate Texas and federal law, thereby targeting both the private and public sectors. Although not legally binding on courts, such opinions provide a guide for the likely contours of future enforcement action by these state attorneys general.
The scope and reasoning of the AG opinions are briefly summarized below.
Florida AG Opinion No. AGO 2026-02 (Florida AG opinion)
The Florida AG opinion concludes that any law requiring race-based state action is unconstitutional under the Equal Protection Clause of the Fourteenth Amendment and comparable provisions of the Florida Constitution. An appendix to the opinion identifies a nonexhaustive list of Florida statutes the Florida AG characterizes as requiring race-based decision making, and the opinion reaches the following conclusions:
Race-Based Employment and Hiring Mandates. Laws and administrative rules requiring agencies to implement affirmative action hiring plans, set diversity targets, or conduct recruitment based on race — rather than race-neutral criteria — are deemed unconstitutional.
Minority Contracting Preferences and Set-Aside Programs. Statutes that require or encourage government contracts to be awarded based on racial or ethnic classifications, including mandatory percentage quotas or contracting advantages for minority-owned businesses, are deemed unconstitutional.
Mandatory Minority Representation Requirements. Mandates requiring boards, councils, commissions, and advisory groups to include members from specified racial or ethnic groups are viewed as impermissible racial classifications lacking narrowly tailored justification.
Minority Business Development and Financial Incentive Programs. Programs providing grants, loans, investment incentives, or certification benefits specifically for minority-owned businesses — including state-funded loan programs, minority business certification programs, and targeted development initiatives — are identified as unconstitutional.
Education, Scholarship, and Training Programs Restricted by Race. Education and workforce development programs designed to increase participation of particular racial or ethnic groups, such as minority-exclusive scholarships, advisory councils, outreach initiatives, and recruitment programs, are deemed unconstitutional when eligibility or participation is based on race.
Public Policy and Reporting Requirements Based on Racial Metrics. Statutes requiring agencies to track, report on, or implement policies specifically designed to increase minority participation in employment, contracting, licensing, or program participation are likewise characterized as unconstitutional.
Texas Attorney General Opinion No. KP-0505 (Texas AG opinion)
The Texas AG Opinion reaches similar constitutional conclusions and extends its analysis to private employers.
DEI Programs in Government. The Texas AG concludes that DEI programs in Texas state and local government that use race or sex as decision-making criteria are unconstitutional under the Equal Protection Clause of the Fourteenth Amendment and the Texas Constitution’s Equal Rights Amendment. This reasoning applies to policies involving employment, contracting, education, and the distribution of public benefits when race or sex is a factor.
Historically Underutilized Business (HUB) programs and Disadvantaged Business Enterprise (DBE) Programs. According to the Texas AG opinion, HUB and DBE programs establish racial, ethnic, and sex-based classifications by prioritizing access to public funds and contracts based on demographic characteristics, and therefore violate constitutional equal protection guarantees. By contrast, programs that provide benefits to veterans or veteran-owned businesses are described as constitutionally permissible because they rely on service-based, rather than race- or sex-based, criteria.
Representation Requirements on Boards and Commissions. The Texas AG opinion analyzes statutes and policies that require or encourage racial or sex-based representation on state boards, commissions, and committees, and concludes that such requirements rely on impermissible demographic classifications and, thus, are unconstitutional. The Texas AG opinion states that government may not assume that individuals represent particular viewpoints or interests based on race or sex.
Implications for Private Employers. The Texas AG opinion goes beyond the executive orders and the Florida AG opinion by questioning the legality of private employers’ DEI practices, asserting that such practices may trigger liability under:
- Title VII of the Civil Rights Act of 1964;
- The Texas Commission on Human Rights Act;
- Section 1981 of the Civil Rights Act of 1866; and
- State and federal securities laws, if corporate disclosures or commitments regarding DEI are misleading.
Conclusion
Employers operating in or contracting with Texas and Florida should familiarize themselves with the Texas and Florida AG opinions to assess whether their DEI programs, hiring practices, contracting policies, and public disclosures may be implicated. In particular, businesses should understand how these opinions interpret race- and sex-conscious policies and the potential exposure they create under state and federal law to help mitigate the risk of state AG investigations or enforcement actions.
