(The Center Square) – The attorneys general of Florida and Texas issued legal opinions on race- and sex-based policies and programs, both arguing they are illegal and unconstitutional under the U.S. and their respective state constitutions.
Both of their opinions cite the U.S. Supreme Court’s 2023 decision stating that race-based affirmative action admissions policies used by Harvard University and the University of North Carolina were unconstitutional. The court held that, “Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.” The ruling ended affirmative action in higher education.
The opinions were published on Monday, a national holiday honoring Dr. Martin Luther King, Jr., who said in his famous, “I have a Dream” speech that he dreamed his children would one day “live in a nation where they will be judged not by the color of their skin, but by the content of their character.”
Florida Attorney General James Uthmeier’s 14-page opinion states that Florida laws still on the books “requiring race-based state action are presumptively unconstitutional under the Fourteenth Amendment’s Equal Protection Clause and Article I, section 2, of Florida’s Constitution.”
“Racial discrimination is wrong. It is also unconstitutional,” Uthmeier says. “Yet Florida maintains several laws on its books that promote and require discrimination on its face.”
His opinion begins by expounding on constitutional clauses and cites major Supreme Court rulings, including stating, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
He cites legal arguments and opinions from the Supreme Court’s higher education affirmative action ruling and from a recent Florida Supreme Court Fourteenth Amendment ruling addressing a different issue unrelated to education.
Despite constitutional mandates, Florida “still has numerous race-based discrimination laws on its books,” Uthmeier said. They include classifications “that seek to compel state agencies and other entities to discriminate based on race,” that do not further a compelling government interest, he said.
One is section 110.112 Florida Statutes, which mandates affirmative action. Another is section 287.09451 Florida Statutes, which includes criteria for state contracts awarded for services based on the race and gender of the contractor. Other examples include quota requirements for minority representation on boards, councils and other entities.
Because the statutes and subsequent policies are unconstitutional, Uthmeier says his office will not defend or enforce them.
In Texas, Attorney General Ken Paxton issued a 74-page opinion stating Diversity, Equity and Inclusion (DEI) policies are unconstitutional in both the public and private sector.
“DEI has no place in our Republic, and the time for evaluating any candidate, employee, or recipient of government largesse based on their skin color or sex has come to an end,” he said.
The opinion identifies more than 100 “woke state laws” as unconstitutional, including DEI programs in public schools and state and local governments.
Many fall under Texas’ historically underutilized business (HUB) programs, administered by the state comptroller’s office. They include explicit race- and sex-based HUB classifications, goals, quotas, contracts and a contract bidding process, as well as training, outreach and other policies.
Others fall under Texas Disadvantaged Business Enterprise (DBE) programs that create de facto race- and sex-based quotas. DBE programs give preference to minority- and women- owned businesses for public contracts and other benefits. They are unconstitutional and do not advance a compelling governmental interest, the opinion states.
“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 said. “Our Constitution and our governmental system exist to protect life, liberty, and the pursuit of happiness for all American citizens. Core to those foundational principles is the fact that racial discrimination is not only morally wrong, but it’s illegal as well.”
Paxton also called on “all private-sector employers, schools, and state and local government entities,” based on his legal opinion, “to immediately abolish any DEI, affirmative action, or unconstitutional discrimination programs under their authority.”
“Our nation was founded on the radical notion that all are created equal. 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,” Paxton states. “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.”
