Florida and Texas AGs Issue Sweeping Anti-DEI Opinions on MLK Day

Quick Hits

• Relying heavily on the Supreme Court of the United States’ June 2023 Students for Fair Admissions decision, the attorneys general assert that strict scrutiny applies to all race-based government action and that most DEI programs cannot survive that standard.
• The Texas opinion identifies specific private-sector DEI practices—including “diverse slate” policies, demographic hiring goals, DEI-linked compensation, and restricted fellowship or other pipeline-type programs—as potential violations of Title VII of the Civil Rights Act of 1964, the Texas Commission on Human Rights Act, and Section 1981.
• Florida Attorney General James Uthmeier has announced that his office “will not defend or enforce” state laws requiring race-based classifications, preferences, or quotas in government employment and contracting.

The Florida Attorney General’s Opinion

The Florida opinion focuses exclusively on public-sector, race-conscious programs, concluding that state laws mandating race-based discrimination are unconstitutional under the Fourteenth Amendment and the Florida Constitution. Attorney General Uthmeier identifies three categories of unlawful programs:

• Affirmative Action in State Employment. The opinion targets Section 110.112, Florida Statutes, which requires executive agencies to develop affirmative action plans with race-based hiring goals. The opinion argues these classifications fail strict scrutiny because they do not address specific, identified past discrimination and lack durational limits.
• Race-Based Contracting Preferences. Section 287.09451, Florida Statutes, establishes specific racial “spending goals” for state contracts-for example, 4 percent for Black Americans in construction, 9 percent for Hispanic Americans in architectural services, and 36 percent for American women in contractual services. The opinion notes that a federal court has already found this statute unconstitutional.
• Minority Representation Quotas. The opinion identifies statutes requiring minimum minority representation on state boards and councils, such as the Florida Cancer Control and Research Advisory Council.

The opinion includes an appendix cataloging dozens of additional statutes across state agencies that the Attorney General contends are unconstitutional.

The Texas Attorney General’s Opinion

The Texas opinion is substantially more expansive, spanning approximately seventy-five pages and addressing both public and private sectors. Attorney General Paxton expressly overrules several prior attorney general opinions that had permitted race- and sex-conscious programs.

Public Sector. The opinion declares unconstitutional Texas’s Historically Underutilized Business (HUB) Program, which sets race- and sex-based contracting benchmarks, as well as Disadvantaged Business Enterprise (DBE) Programs that presume certain racial groups are “socially and economically disadvantaged.” The opinion also targets statutes requiring race and sex considerations in government appointments and state agency hiring.

Private Sector. Notably, the Texas opinion provides a detailed analysis of private-sector liability exposure. While it acknowledges that “the ‘mere existence’ of a DEI policy, in isolation, may not impose liability under Title VII,” it identifies the following practices as potentially violating Title VII, the Texas Commission on Human Rights Act, or Section 1981:

• Demographic workforce goals and quotas
• Board diversity mandates
• Diverse slate and interview panel requirements
• Diversity fellowships and pipeline programs limited to specific demographics
• Compensation and promotion criteria tied to DEI metrics
• Supplier diversity programs with fixed numerical targets or spending commitments

The opinion also warns that DEI training programs requiring “compulsory affirmation of ideological positions or confessions of bias and privilege based on protected characteristics” may create hostile work environment liability. The opinion considers “[o]rganized internal programs like employee resource groups, affinity groups, mentoring, and trainings” and states that it is “reasonable to conclude that private-sector DEI initiatives that either mandate or practically result in known segregation would raise liability.” Beyond the antidiscrimination laws, the opinion suggests public companies may face securities liability for failing to disclose risks associated with DEI initiatives.

Next Steps

While attorney general opinions do not have the force of law, they carry significant persuasive authority and signal enforcement priorities. These opinions arrive almost a year after the federal administration issued several executive orders targeting DEI programs and reflect a broader legal environment of increased scrutiny. Employers operating in Florida or Texas or with employees, contractors, or business interests in those states face a heightened risk of enforcement actions, litigation, and reputational exposure.

Organizations may wish to evaluate current DEI policies and practices against the specific concerns raised in these opinions, particularly programs involving demographic hiring goals, restricted fellowships or internships, diverse slate requirements, and DEI-linked compensation. Government contractors should assess compliance with HUB, DBE, and minority business enterprise requirements, recognizing that the underlying frameworks may be subject to legal challenge.

Employers may also want to monitor whether other state attorneys general issue similar opinions, how federal agencies implement recent executive orders targeting DEI, and whether courts adopt the legal reasoning articulated in these opinions.

For more information on DEI enforcement, please join us for our upcoming webinar, “DEI Programs and Enforcement: What Employers Can Expect in 2026,” which will take place on February 24, 2026, from 2:00 p.m. to 3:00 p.m. EST. The speakers, T. Scott Kelly and Nonnie L. Shivers, will discuss the latest updates. Register here.

Ogletree Deakins’ Diversity, Equity, and Inclusion Compliance, Government Contracting and Reporting, Governmental Affairs, and Workforce Analytics and Compliance practice groups will continue to monitor developments and will provide updates on the Diversity, Equity, and Inclusion Compliance, Employment Law, Government Contracting and Reporting, Governmental Affairs, State Developments, and Workforce Analytics and Compliance blogs as additional information becomes available.

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