Untitled Texas Attorney General Opinion: KP-0505

January 19, 2026

Opinion No. KP-0505

Re: “Diversity, Equity, and Inclusion” in Texas

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. Ours is a merit-based society.

This moral imperative preexists any political or legal document. Still, the concept is

engrained within each of the sovereign charters under which Texans conduct all affairs: the U.S.

and Texas Constitutions. Over the course of decades, however, some people have become obsessed

with the notion that race and sex are to shape every opportunity in public and private life. Under

the tacit guise of sociological reparations, this broken worldview—better known as “Diversity,

Equity, and Inclusion” or “DEI,” under which immutable traits have become the currency of

advancement—has invaded academia, the halls of government, and virtually every corner of

private industry. But no one can be freed by the hand of injustice that once bound them.

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. See generally Tex. Att’y Gen. Op. No. JC-0107 (1999)

(withdrawing Tex. Att’y Gen. LO-97-001 (1997)). 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. Id. This was as wrong then as it is now, and the opinion is overruled. 1

As the “chief law officer of the State” with solemn duties “involving at all times the

exercise of broad judgment and discretion,” Webster v. Comm’n for Law. Discipline, 704 S.W.3d

478, 495 (Tex. 2024) (citation omitted), the Attorney General is dutybound to clarify the current

state of the law and right the wrongs of prior administrations. Doing so compels that we observe

the obvious: 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.

We therefore begin by detailing the arc of our nation’s commitment to first principles,

see infra Part I, and then analyze the extent to which DEI has unlawfully invaded both the public

and private sectors alike, see infra Parts II–III (addressing each, respectively).

1

For similar reasons, Attorney General Opinions JC-0315 (2000), DM-226 (1993), and DM-184 (1992) are

also overruled to the extent inconsistent with this opinion. See infra Part II.A.

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I. Historical and legal backdrop

A. First principles among the United States

The Declaration of Independence consecrated the American revolution with “self-evident”

truths—rooted in equal liberty, not feigned equity. THE DECLARATION OF INDEPENDENCE para. 2

(U.S. 1776). It declared that “one people” could “dissolve the political bands [that] ha[d] connected

them with another[] . . . to assume . . . [their] separate and equal station” because “all men are

created equal.” Id. All were likewise united in their “unalienable rights,” including that to “Life,

Liberty and the pursuit of Happiness.” Id. But these were “not . . . new principles[] or new

arguments, never before thought of.” Letter from Thomas Jefferson to Henry Lee (Monticello May

8, 1825), https://tjrs.monticello.org/letter/436#X3184736. Instead, the Declaration embodied a

“common sense . . . expression of the American mind.” Id.

That shared consciousness was steeped in a familiar reality: “[N]othing [was] more

evident” than mankind’s endowment to “the same advantages of nature” and “the use of the same

faculties[] . . . without subordination or subjection.” JOHN LOCKE, SECOND TREATISE OF

GOVERNMENT ch. 2, § 4 (1690). Over a century of Jurisprudence—from Locke to Hobbes,

Blackstone, and Montesquieu—observed that all were born into “a state of perfect freedom” and

thus “equality, wherein all . . . power and jurisdiction is reciprocal.” Id.; accord 1 MONTESQUIEU,

The SPIRIT OF LAWS bk. VIII, ch. 3 (1777) (noting “[i]n the state of nature, indeed, all men are

born equal”); 1 WILLIAM BLACKSTONE, COMMENTARIES *127 (1765) (noting “[t]he absolute rights

of every Englishman . . . are founded on nature and . . . are coeval with our form of government”);

THOMAS HOBBES, LEVIATHAN 76 (1651) (noting “[n]ature hath made men so equal in the faculties

of body and mind . . . that” none can “claim to himself any benefit to which another may not

pretend as well as he”). This sat comfortably beside mankind’s accepted “inequalit[ies] . . . [in]

virtue, talents, taste, and acquirements” because “all . . . [were] equal” in “natural rights and

duties,” meaning “the weak and artless” could not be deprived of “their small acquisitions” any

more than “the strong and artful” could be loosed of “their large ones.” JAMES WILSON, LECTURES

ON LAW (1789–1791), in 1 THE WORKS OF THE HONOURABLE JAMES WILSON 283, 308

(Bird Wilson ed., 1804) (highlighting that none could validly “claim, in preference to another,

superior right” or “authority”); accord JAMES WILSON, CONSIDERATIONS ON THE NATURE AND

EXTENT OF THE LEGISLATIVE AUTHORITY OF THE BRITISH PARLIAMENT 3 (1774) (observing “[a]ll

. . . are, by nature, equal and free”). At bottom, the “equal rights of nature” could not justify

“exalting one man . . . above the rest” and betrayed the traditional “distinction of men into kings

and subjects.” THOMAS PAINE, COMMON SENSE (1776), reprinted in THE GREAT WORKS OF

THOMAS PAINE 12 (D.M. Bennett 1878); accord ALEXANDER HAMILTON,

THE FARMER REFUTED (1775), reprinted in 1 THE WORKS OF ALEXANDER HAMILTON (Henry

Cabot Lodge ed., Fed. ed. 1904).

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Of course, this backdrop was not lost by the summer of 1787. Statesmen drawn from the

newly united states—some of whom had shaped the Declaration itself, 2 cf. VA DECLARATION OF

RIGHTS, § 1 (June 12, 1776)—convened to frame the Declaration’s “apple of gold” with a

constitutional “picture of silver.” 4 COLLECTED WORKS, supra, at 168–69. To that end, the Framers

did not vault equity of condition over the Lockean equality that called them to Philadelphia; they

openly acknowledged that “inequality” would “result from” and “exist as long as . . . liberty

itself.” 3 THE FEDERAL CONVENTION AND THE FORMATION OF THE UNION OF THE AMERICAN

STATES 166 (Winton U. Solberg ed., 1958). Free society came with “diversity in the faculties of

men,” which in turn produced unequal fruits of their labor as well as “division . . . into different

interests and parties.” THE FEDERALIST NO. 10, at 73 (James Madison) (C. Rossier ed., 1999); see

also, e.g., JAMES WILSON, LECTURES ON LAW (1789–1791), in 1 THE WORKS OF THE HONOURABLE

JAMES WILSON, supra, at 308 (disclaiming equality of “virtues,” “talents,” “dispositions,” or

“acquirements”). Yet “the mortal disease[] under which popular governments . . . perished” did

not lie in the cause of these factions; it was the “factious spirit [that] tainted . . . public

administrations.” FEDERALIST NO. 10, supra, at 71–72 (James Madison); accord NOAH WEBSTER,

THE REVOLUTION IN FRANCE (1794), in 2 Political Sermons of the American Founding Era, 1730–

1805, at 1271 (Ellis Sandoz ed., 1991) (observing the French and Roman revolutions also revealed

the “faction” as “death to the existing government” (emphasis omitted)).

“[W]hether amounting to a majority or a minority of the whole,” factions were no less

“united and actuated by some common impulse of passion[] . . . adversed to the rights of other

citizens[] or . . . [the] aggregate interests of the community.” FEDERALIST NO. 10, supra, at 72

(emphases added); see also id. at 79 (forecasting these “wicked project[s]” could include a “rage

for paper money, for an abolition of debts, [and] for an equal division of property”). A government

held captive to this self-interested spirit could not be ransomed “by destroying the liberty . . .

essential to its existence” or “by giving to every citizen the same opinions,” “passions,” and

“interests.” Id. at 72–73. The latter was “as impracticable as the first . . . unwise.” Id. at 73. Neither

could the nation rely on “enlightened statesmen” to “adjust these clashing interests[] and render

them all subservient to the public good” when, ultimately, “statesmen [would] not always be at the

helm.” Id. at 75. As a result, “the diseases most incident to republican government” called for a

democratic republic that could “break and control the violence of faction,” id. at 71, 78–79—to

2

Thomas Jefferson famously began with George Mason’s draft of the Virginia Declaration of Rights, which

first professed “that all men are born equally free and independent.” PAULINE MAIER, AMERICAN SCRIPTURE: MAKING

THE DECLARATION OF INDEPENDENCE 104 (1997) (citing GEORGE MASON, FIRST DRAFT OF THE VIRGINIA

DECLARATION OF RIGHTS § 1 (1776)).

3

Other influential figures—like John Adams, who was then serving as Ambassador to Great Britain—also

expressed the same view, going as far to suggest it was “gross . . . fraud” to teach “that all Men are born with equal

Powers and Faculties,” “to equal Influence,” or “to equal property and Advantages through Life.” Letter from John

Adams to John Taylor (Apr. 19, 1814), FOUNDERS ONLINE, NAT’L ARCHIVES, https://founders.archives.gov/

documents/Adams/99-02-02-6282; see also, e.g., 6 CHARLES FRANCIS ADAMS, THE WORKS OF JOHN ADAMS, SECOND

PRESIDENT OF THE UNITED STATES 8–9 (Charles C. Little & James Brown eds., 1851) (observing a government set on

“making all things common to all” would be “scandal fastened by the cunning of the common enemy upon this kind

of government”).

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secure the blessings of liberty. See also, e.g., FEDERALIST NO. 51, supra, at 317–22 (James

Madison) (highlighting how the government’s architecture guards against “majority faction”).

Unsurprisingly, the Declaration’s proto-constitutional force continued in the years ahead.

Various states echoed Lockean equality in their own declarations, e.g., DEL. DECLARATION OF

RIGHTS OF 1776, § 10; N.C. DECLARATION OF RIGHTS OF 1776, arts. I, III; PA. DECLARATION OF

RIGHTS OF 1776, art. I; VT. DECLARATION OF RIGHTS OF 1777, art. I, or constitutional preambles—

New York going as far as to incorporate the entire Declaration, N.Y. CONST. OF 1777, pmbl.; see

also, e.g., PA. CONST. OF 1776, pmbl.; VT. CONST. OF 1777, pmbl. Yet more placed corresponding

provisions into their full constitutions. E.g., MD. CONST. OF 1776, § 10; N.H. CONST. OF 1784,

arts. I–II. In the public square, too, America’s statesmen commended the degree to which these

sovereign charters were “conformable to the Declaration.” Letter from Thomas Paine to the

Citizens of Pennsylvania, on the Proposal for Calling a Convention (Aug. 1805), in 2 THE

POLITICAL AND MISCELLANEOUS WORKS OF THOMAS PAINE 161, 169 (London, R. Carlile 1819)

(commenting on the Pennsylvania Constitution); see also, e.g., John Quincy Adams, Letter to the

Editors of the Old Colony Memorial, the Hingham Patriot, and the Quincy Patriot, in the Twelfth

Congressional District of Massachusetts, July 23 1841, LIBERATOR, Aug. 20, 1841, at 134

(highlighting Massachusetts’ shared foundation in “universal human liberty”). Thus while Europe

had embraced “charters of liberty . . . granted by power,” the United States championed “charters

of power granted by liberty.” JAMES MADISON, CHARTERS (Jan. 19, 1792), in JAMES MADISON—

WRITINGS 733, 736 (Jack N. Rakove ed., 1999) (emphasis added).

But the foundation on which early America was first united would become a battlefield.

The Declaration had not professed equality “in color, size, intellect, moral developments, or social

capacity” any more than “the obvious untruth[] that all were then actually enjoying” or could

immediately receive the right to “life, liberty, and the pursuit of happiness.” 2 COLLECTED WORKS,

supra, at 405–06. Neither did the U.S. Constitution immediately do away with slavery;

compromises were made to secure the support of southern delegates. 4 See generally U.S. CONST.

art. I, §§ 2, cl.3 (Three-Fifths Clause), 9, cl.1 (Importation Clause); id. art. IV, § 2, cl.3 (Fugitive

Slave Clause). The tension between the founding principles and slavery grew as the nation

expanded, and the Supreme Court—with its first foray into substantive due process—vitiated

Congress’ effort to quarantine slavery with the Missouri Compromise. See generally Dred Scott v.

Sandford, 60 U.S. 393 (1857). A “want of national spirit” plagued the country and, as Madison

4

Far from enshrining a right to slavery, however, these constitutional compromises provided a means by

which the Declaration’s promise of liberty “might follow as fast as circumstances should permit.” 2 COLLECTED

WORKS, supra, at 405–06 (Lincoln). Even Frederick Douglass eventually observed that the Three-Fifths Clause

practically diminished the southern states’ representative power and created a constitutional incentive for “becoming

a free State.” FREDERICK DOUGLASS, THE AMERICAN CONSTITUTION AND THE SLAVE, Speech in Glasgow, Scotland

(Mar. 26, 1860), in 3 THE FREDERICK DOUGLASS PAPERS, SERIES ONE: SPEECHES, DEBATES, AND INTERVIEWS: 1855–

1863, at 359 (John W. Blassingame et al. eds., 1985). Even more, the Importation Clause—a compromise that required

Congress wait “twenty years” before it “may terminate forever” the “unnatural traffic” that had “so long and so loudly

upbraided the barbarism of modern policy,” FEDERALIST NO. 42, supra, at 262–63 (James Madison) (describing this

“as a great point gained in favor of humanity”)—presaged the immediate prohibition of the American slave trade in

1808. See generally Act Prohibiting Importation of Slaves, ch. 22, 2 Stat. 426 (1807) (outlawing slavery once the

twenty-year window closed).

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had forecast, the young nation was torn apart by the South’s fixation on “their peculiar interests

and institutions in preference to those which they had in common with the rest of the American

people.” S. Exec. Doc. No. 2, 39th Cong., 1st Sess. (1865). Ultimately, it would take civil war to

sharpen the reality that the Constitution was made “for the [Declaration’s] apple—not the apple

for [its] picture.” 4 Collected Works, supra, at 168–69.

B. Reconstruction efforts

The Reconstruction Era was marked by the federal government’s color-blind effort to

secure equality in the aftermath of war. To start, the Thirteenth Amendment commanded that

“[n]either slavery nor involuntary servitude[] . . . shall exist within the United States.” U.S. CONST.

amend. XIII, § 1. This served not only to emancipate slaves then existing but, to the same extent,

“forb[ade] any other kind of slavery . . . [even if] the party interested may not be of African

descent.” Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 72 (1872). Congress also established the

Freedman’s Bureau—an entity charged with serving “refugees and freedmen” alike. Act of Mar. 3,

1865, ch. 90, 13 Stat. 507–09; accord Act of July 16, 1866, ch. 200, 14 Stat. 173–77. As Congress

had been warned by President Johnson, “the future peace and harmony of the Union” required that

the South “not [be] permitted to build up another ‘peculiar institution’ whose spirit is in conflict

with the fundamental principles of [the nation’s] political system.” S. Exec. Doc. No. 2, 39th

Cong., 1st Sess. (1865). The foundation of that political system, of course, recognized the inherent

station of all mankind—equal in rights.

Former confederate states nonetheless passed defiant legislation, better known as “Black

Codes,” that aimed to limit the newfound freedom of black Americans. See generally 1 WALTER

L. FLEMING, DOCUMENTARY HISTORY OF RECONSTRUCTION 273–311 (1906) (excerpting laws in

Alabama, Arkansas, Florida, Louisiana, Mississippi, North Carolina, and Tennessee). These laws

made use of the Thirteenth Amendment’s exception for conviction-based servitude, U.S. CONST.

amend. XIII, § 1, and preserved “slave trade under the guise of vagrancy and apprenticeship laws,”

W.E.B. DU BOIS, BLACK RECONSTRUCTION IN AMERICA 167 (1935). Mississippi, for example,

outlawed blacks from being “found . . . with no lawful employment or . . . unlawfully assembling

. . . together either in the day or nighttime” and also provided that “all white persons so assembling

. . . or usually associating with freedmen[] . . . shall [also] be deemed vagrants.”

MISSISSIPPI VAGRANCY LAW, 1865 MISS. LAWS §§ 2, 5 (imposing race-based tiers of punishment

and mandating that convicted freedmen be “hire[d] out . . . to any person who will, for the shortest

period of service, pay said fine”), reprinted in 1 DOCUMENTARY HISTORY OF RECONSTRUCTION,

supra, 284–85. Further, states disarmed “freedmen” by outlawing the possession of “fire-arms of

any kind” and similarly prohibited “any white person” from supplying such weapons. 1

DOCUMENTARY HISTORY OF RECONSTRUCTION, supra, 289–90 (quoting CERTAIN OFFENSES OF

FREEDMEN, 1865 MISS. LAWS §§ 1, 3); see also, e.g., id. 279–80 (quoting similar offenses in

Louisiana); EDWARD MCPHERSON, THE POLITICAL HISTORY OF THE UNITED STATES OF AMERICA

DURING THE PERIOD OF RECONSTRUCTION 33, 40 (1871) (quoting similar offenses in Alabama and

Florida, respectively). Suffice it to say these laws were “consciously conceived methods of

resurrecting the incidents of slavery,” Gen. Bldg. Contractors Ass’n v. Pennsylvania, 458 U.S.

375, 386–87 (1982), and “curtailed . . . the pursuit of life, liberty, and property to such an extent

that . . . freedom was of little value” in the South, Slaughter-House Cases, 83 U.S. (16 Wal.) at 70.

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See generally Cong. Globe, 39th Cong., 1st Sess. 399, 1124, 1151–1152, 1159, 1785, 1839 (1866)

(Reps. Cook, Thayer, Windom, Stewart, and Clarke).

Congress responded with statutory and constitutional force. First came the Civil Rights Act

of 1866, which aimed “to carry into effect the [Thirteenth] amendment.” CONG. GLOBE, 39th

Cong., 1st Sess. 474 (1866) (Senator Trumbull). The Act confirmed “[t]hat all persons born in the

United States and not subject to any foreign power[] . . . are . . . citizens . . . and such citizens, of

every race and color,” possessed the “same right[s]” in various fora—e.g., the right to make and

enforce contracts, acquire and dispose of property, as well as testify in court. Civil Rights Act of

1866, ch. 31, § 1, 14 Stat. 27 (1866) (emphases added); see also, e.g., McDonald v. Santa Fe Trail

Transp. Co., 427 U.S. 273, 286–87 (1976) (explaining that “the language and history of [§] 1981”

reveals it “is applicable to racial discrimination in private employment against white persons” just

as it is against “nonwhites”). By “extending the right of citizenship and equality before the law to

persons of every race and color,” Justice Bradley observed while riding circuit, Congress refuted

the insidious claim “that none but the white race were entitled to the rights of citizenship in this

country.” United States v. Cruikshank, 25 F. Cas. 707, 711 (C.C.D. La. 1874) (Bradley, J.), aff’d,

92 U.S. 542 (1875); accord CONG. GLOBE, 39th Cong., 1st Sess. 399, 474 (1866) (Senator

Trumbull) (professing “to secure equal rights to all the citizens” and thereby vindicate the

Thirteenth Amendment’s “declar[ation] that all persons in the United States should be free”

(emphasis added)). Other justices on circuit likewise recognized that, without the Act, the “simple

abolition” of slavery “would have been a phantom of delusion.” United States v. Rhodes, 27 F.

Cas. 785, 794 (C.C.D. Ky. 1866) (Swayne, J.); see also, e.g., In re Turner, 24 F. Cas. 337 (C.C.D.

Md. 1867) (Chase, C.J.) (holding an apprenticeship contract violated the Act’s equal protection

clause).

That same year gave birth to the Fourteenth Amendment. Beyond eliminating any question

as to whether the 1866 Civil Rights Act reached beyond the Legislature’s station—as well as

eliminating any remaining taint of Dred Scott—the Amendment “facilitated the enforcement of

rules that had already existed but . . . could not have [been federally] enforced on their own.”

William Baude et al., General Law and the Fourteenth Amendment, 76 STAN. L. REV. 1185, 1208–

10 (2024) (emphasis added) (describing how “[i]t facilitated the federal enforcement of basic rights

without nationalizing the rights themselves”); see also, e.g., ROBERT J. KACZOROWSKI, THE

POLITICS OF JUDICIAL INTERPRETATION: THE FEDERAL COURTS, DEPARTMENT OF JUSTICE, AND

CIVIL RIGHTS, 1866-1876 (2005) (highlighting the importance of federal enforcement during

Reconstruction). Chief among its terms was an unmistakable command: “No state shall make or

enforce any law . . . abridg[ing] the privileges or immunities of citizens of the United States;”

“deprive any person of life, liberty, or property[] without due process of law; nor deny to any

person within its jurisdiction the equal protection of the laws.” U.S. CONST. amend. XIV, § 1

(emphasis added). In doing so, the Constitution guaranteed “equal protection and security should

be given to all under like circumstances in the enjoyment of their personal and civil rights.” Barbier

v. Connolly, 113 U.S. 27, 31 (1884).

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Congress next championed the 1875 Civil Rights Act. Though ultimately held

unconstitutional by the Supreme Court, 5 The Civil Rights Cases, 109 U.S. at 24–25, the 1875 Act

provided unique insight into the scope of the Fourteenth Amendment: Both “[s]upporters and

opponents of the [1875 Act] alike agreed that the Fourteenth Amendment had no bearing on ‘social

rights,’” given the “universally accepted . . . but [now] forgotten . . . [distinction] between civil

rights, political rights, and social rights.” Michael W. McConnell, Originalism and the

Desegregation Decisions, 81 VA. L. REV. 947, 1016 (1995). “To the Republicans of the

Reconstruction period,” of course, “equality of civil rights was not necessarily linked to equality

in general” or “social equality” but rather the “realization of an ideal of . . . citizens who were

equal in their rights before the law, however unequal they might be in other respects.” Id.

(emphasis added).

C. The Jim Crow era

The Supreme Court nonetheless ushered a new era of de jure segregation by endorsing the

social and constitutional myth of “separate but equal” in Plessy v. Ferguson, 163 U.S. 537 (1896).

Abandoning the text and spirit of the Fourteenth Amendment, the Court upheld a Louisiana statute

that consecrated “separate railway carriages for the white and colored races.” Id. at 540–42. In

addition to rejecting a challenge brought under the Thirteenth Amendment, the Court upheld the

statute under the Fourteenth Amendment’s Equal Protection Clause because, according to the

Court, the amendment “could not have been intended to abolish distinctions based upon color, or

to enforce social, as distinguished from political, equality, or a commingling of the two races upon

terms unsatisfactory to either.” Id. at 544. But as Justice Harlan correctly explained in his forceful

dissent, there can be no claim that the Constitution leaves room for a “superior, dominant, ruling

class of citizens.” Id. at 559 (Harlan, J., dissenting). “Our constitution is color-blind,” he continued,

and that charter “neither knows nor tolerates classes among citizens.” Id. (Harlan, J., dissenting).

Put simply, “[t]he law regards man as man, and takes no account of his surroundings or of his color

when his civil rights as guaranteed by the supreme law of the land are involved.” Id. (Harlan, J.,

dissenting).

Over a half-century would pass before the Court would come to vindicate Justice Harlan’s

position with Brown v. Board of Education, 347 U.S. 483, 491 (1954). The Court embraced

appellants’ constitutional reliance on the equality principle—arguing that any “racial criterion is a

constitutional irrelevance,” Brief for Appellants at 7, Brown v. Bd. of Educ., 347 U.S. 483 (1954)

(No. 1)—and held that “the doctrine of ‘separate but equal’ has no place” in public education.

Brown, 347 U.S. at 495. “To separate [black students] from others of similar age and qualifications

solely because of their race,” the Court explained, “generates a feeling of inferiority as to their

5

Ironically, the Supreme Court invalidated the 1875 Act because “[i]t applie[d] equally to cases arising in

States which have the justest laws respecting the personal rights of citizens, and whose authorities [were] ever ready

to enforce such laws, as to those which arise in States that may have violated the prohibition of the [Fourteenth]

amendment.” The Civil Rights Cases, 109 U.S. 3, 14 (1883). There was no question of Congress’s “full power to

afford a remedy under [the Fourteenth] amendment” where “the laws themselves make any unjust discrimination,”

but the Court held the federal government had no power to interfere in the local domain “without referring in any

manner to any supposed action of the state or its authorities.” Id. at 23–25.

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status in the community that may affect their hearts and minds in a way unlikely ever to be

undone.” Id. at 494. Regardless of whether the facilities were of equal quality, segregating races

in separate facilities was “inherently unequal.” Id. at 495. Brown therefore proved pivotal in

recognizing the constitutional promise of equal protection.

D. The Civil Rights Act of 1964

Still, black Americans faced segregated spaces in public accommodations, interstate and

intrastate transportation, restaurants, theaters, hotels, public parks, and swimming pools. The Civil

Rights Movement, under the leadership of Dr. Martin Luther King, Jr., thus sought to dismantle

this system of de jure and de facto segregation. And the movement would achieve incredible

success, in part because Dr. King was committed to the goal of a color-blind society in which race

would become legally irrelevant. Drawing upon “the magnificent words of the Constitution and

Declaration of Independence,” which Dr. King described as “a promissory note to which every

American was to fall heir,” he publicly championed “a dream” of a nation where his children

would “not be judged by the color of their skin but by the content of their character.” Martin Luther

King, Jr., I Have a Dream (Aug. 28, 1963), in I HAVE A DREAM: WRITINGS AND SPEECHES THAT

CHANGED THE WORLD 102–04 (James M. Washington ed., 1992). Just as the founding statesmen

before him, see supra pp. 2–3, Dr. King fought for “a society in which all men are equal, not in

the sense that they have the same talents, but in the sense that they have an equal opportunity to

develop whatever talents they have.” Martin Luther King, Jr., Commencement Address at

Wesleyan University (June 7, 1964), in THE PAPERS OF MARTIN LUTHER KING, JR., VOLUME VII:

TO SAVE THE SOUL OF AMERICA 408, 410 (Clayborne Carson et al. eds., 2014).

Dr. King’s embrace of a color-blind society was likewise reflected in the landmark

legislation of the Civil Rights Movement: The Civil Rights Act of 1964. Broken into titles that

address public accommodations, public facilities, public education, federally assisted programs,

and equal employment opportunities, 42 U.S.C. §§ 2000a–2000a-6 (“Public Accommodations”),

2000b–2000b-3 (“Public Facilities”), 2000c–2000c-9 (“Public Education”), 2000d–2000d-

7(“Federally Assisted Programs”), 2000e–2000e-17 (“Equal Employment Opportunities”), the Act

erected a federal civil rights regime to serve as a bulwark against unfair exclusion or discrimination

by virtue of any person’s race or protected characteristic. See, e.g., id. §§ 2000a(a) (“All persons

shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges,

advantages, and accommodations of any place of public accommodation . . . without

discrimination or segregation on the ground of race, color, religion, or national origin.” (emphases

added)), 2000e-2(a)(1) (“It shall be an unlawful employment practice for an employer[] . . . to fail

or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual

with respect to his compensation, terms, conditions, or privileges of employment, because of such

individual’s race, color, religion, sex, or national origin[] . . . .” (emphases added)).

The principal architects of the Act made clear that it provided for absolute, unflinching

equality under the law—not preferential treatment for certain races. During a debate regarding

Title VII, for example, Senator Hubert Humphrey offered to “start eating the pages one after

another” if his senate colleague could “find . . . any language which provides that an employer will

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have to hire on the basis of percentage or quota related to color, race, religion, or national origin.”

110 Cong. Rec. 7420 (1964) (statement of Sen. Humphrey); accord 110 Cong. Rec. 7247 (1964)

(memorandum of Sens. Clark & Case) (explaining that Title VII “expressly protects the

employer’s right to insist that any prospective applicant[] . . . meet the applicable job qualifications

. . . [and] does not provide that any preferential treatment in employment shall be given to Negroes

or to any other persons or groups”). Indeed, the bipartisan congressional leadership that enacted

the Civil Rights Act of 1964 understood that the Act did precisely what it said: mandating equal

treatment without regard to race, not equality of condition or result, wrought from racial quotas or

preferential treatment for the chosen few. ANDREW KULL, THE COLOR-BLIND CONSTITUTION 180–

86 (1992). Suffice it to say that Congress forbid “[d]iscriminatory preference for any group,

minority or majority,” and thereby mandated “the removal of artificial, arbitrary, and unnecessary

barriers . . . [that] operate invidiously to discriminate on the basis of racial or other impermissible

classification.” Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971) (commenting on Title VII).

E. Texas’ independent pursuit of equality

Texas also made its own contributions to the national pursuit of genuine equality. In 1972,

Texans “adopted [the Equal Rights Amendment] by a four to one margin.” In re McLean, 725

S.W.2d 696, 696–98 (Tex. 1987). This constitutional provision, better known as the “ERA,” makes

clear “that ‘[e]quality under the law shall not be denied or abridged because of sex, race, color,

creed, or national origin.’” Bell v. Low Income Women of Tex., 95 S.W.3d 253, 257 (Tex. 2002)

(quoting TEX. CONST. art. I, § 3a). Far from a constitutional “exercise in futility,” the ERA

memorialized a “more extensive and . . . more specific protection” than that found in our national

charter. McLean, 725 S.W.2d at 697; accord Bell, 95 S.W.3d at 262 (highlighting that sex is

“elevat[ed] . . . to a suspect class” and therein “subject[ed] . . . to heightened strict-scrutiny

review”). Thus “[e]ven the loftiest goal does not justify . . . discrimination” in Texas, and all forms

of this pernicious enterprise receive equal treatment: They are invalid unless “no other manner”

can protect a “compelling interest.” Id. at 697–98. Even more, the ERA also catalyzed several

legislative efforts to remove sex-based discrimination as it related to property and labor rights.

Sherilyn Brandenstein, The Texas Equal Rights Amendment: A Historical Overview, TEX. STATE

HIST. ASS’N (Feb. 1, 1996).

The next load-bearing pillar of Texas’s effort took shape with the Texas Commission on

Human Rights Act (“TCHRA”) of 1983. See Brooks William Conover, III, Jurisdictional and

Procedural Issues Under the Texas Commission on Human Rights Act, 47 BAYLOR L. REV. 683,

686 (1995) (explaining the TCHRA’s history and development). Among the TCHRA’s “general

purposes” is “the execution of . . . Title VII[’s policies] and . . . subsequent amendments.” TEX.

LAB. CODE § 21.001(1); accord, e.g., Prairie View A&M Univ. v. Chatha, 381 S.W.3d 500, 504

(Tex. 2012) (“The TCHRA was ‘enacted to address the specific evil of discrimination and

retaliation in the workplace,’ as well as to coordinate and conform with federal anti-discrimination

and retaliation laws under Title VII.” (quoting City of Waco v. Lopez, 259 S.W.3d 147, 153–55

(Tex. 2008))). But the TCHRA and Title VII are not identical in all respects. While the TCHRA

was “patterned after Title VII,” Texas law reaches farther than its federal counterpart and imposes

liability where any protected characteristic—including “age and disability,” which Title VII does

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not protect—served as a “motivating factor” for an unlawful employment practice. Quantum

Chem. Corp. v. Toennies, 47 S.W.3d 473, 476–80 (Tex. 2001) (adhering to the Labor Code’s “plain

meaning” over federal precedent on Title VII).

F. Backslide into demographic-based preferences and carveouts

Unfortunately, this progress would soon be overtaken by a nationwide embrace of policies

that treated certain forms of racism as “politically acceptable.” Metro Broad., Inc. v. FCC, 497

U.S. 547, 610 (1990) (O’Connor, J., dissenting).

1. Federal contracts and “affirmative action”

In the Fall of 1965, President Lyndon B. Johnson issued Executive Order 11246—one of

the earliest steps in the proliferation of federal affirmative action policies and programs. See

generally Exec. Order No. 11246, 30 Fed. Reg. 12319 (Sept. 24, 1965), revoked by Exec. Order

No. 14173, 90 Fed. Reg. 8633 (Jan. 21, 2025); see also Exec. Order No. 11375, 32 Fed. Reg.

14303 (Oct. 13, 1967) (expanding affirmative action to include sex as a protected category). This

executive order not only mandated that federal contractors and subcontractors refrain from

discriminating based on race, color, religion, or national origin but also required these entities take

“affirmative action” to ensure equal employment opportunities for minorities. Exec. Order

No. 11246, 30 Fed. Reg. at 12320. This directive, enforced by the Department of Labor, compelled

contractors to develop written affirmative action plans with goals and timetables related to hiring

and promoting certain groups over others. Id. at 12320, 12325; see also 41 C.F.R. §§ 60-1.40, 60-

2.1–.36. While the order directly bound only federal contractors, its ripple effects caused state

agencies and universities engaged in federal contracting to align their own procurement and

employment practices with the new federal standards—fearing forfeiture of lucrative contracts tied

to national defense, infrastructure, and research initiatives.

President Nixon inherited and expanded upon his predecessor’s framework and used

express racial quotas as a means of consecrating tangible benchmarks. Northern trade unions had

been a major obstacle in achieving Johnson’s goals for representative employment in federal

contracting, as the unions had long excluded black workers from skilled construction jobs through

closed-shop practices and apprenticeship barriers. See James A. Hardgrove, Philadelphia Plan,

45 NOTRE DAME L. REV. 678, 679 (1970) (discussing the exclusionary practices of northern trade

unions). Those exclusionary practices meant that federal contractors could not comply with

Johnson’s Executive Order 11246 unless the union bottleneck was addressed and, in turn, the

Nixon Administration imposed its own affirmative action plans. See id. The most notable example

was the Philadelphia Plan of 1969, which required contractors in six major trades in the

Philadelphia Area to meet specific, numeric benchmarks for minority participation in federal

contracting. See id. at 682–83. Nixon’s Labor Department reframed the issue as one of economic

efficiency: With federal spending on infrastructure surging, the government could not afford an

artificially restricted labor supply. See Contractors Ass’n of E. Pa. v. Sec’y of Lab., 442 F.2d 159,

171 (3d Cir. 1971); see also Hardgrove, supra, at 696 n. 115. When challenged, the Third Circuit

upheld the policy. See Contractors Ass’n, 442 F.2d at 174. The Philadelphia Plan thus marked the

first large-scale use of numerical diversity targets in federal contracting and created “[a]ffirmative

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action as we know it today[,] [defined as] ‘any measure[] . . . beyond simple termination of a

discriminatory practice, adopted to correct or compensate for past or present discrimination or to

prevent discrimination from recurring in the future.’” Anthony M. Platt, The Rise and Fall of

Affirmative Action, 11 NOTRE DAME J.L. ETHICS & PUB. POL’Y 67, 72 (1997) (quoting U.S.

Comm’n on Civil Rights, Statement of Affirmative Action 2 (1977)).

In the 1970s, the federal commitment to race-conscious policies expanded beyond federal

procurement into business development, most notably through the Small Business

Administration’s Section 8(a) program. That program was rooted in the Small Business Act of

1953, which authorized the SBA to enter into contracts with federal agencies and subcontract to

small businesses. See Pub. L. No. 83-163, 67 Stat. 230, 232 (1953) (codified as amended at 15

U.S.C. §§ 631 et seq.). However, a decisive turn occurred in 1970, as the program was reoriented

to assist small businesses “owned by disadvantaged persons” so that these enterprises might

“become self-sufficient, viable businesses capable of competing effectively in the market place.”

13 C.F.R. § 124.8-1(b) (1970). Three years later, a definition of “disadvantaged persons” was

adopted that specifically included “black Americans, Spanish-Americans, oriental Americans,

Eskimos, and Aleuts,” accompanied by a rebuttable presumption that such individuals were indeed

“disadvantaged.” 13 C.F.R. § 124.8(c) (1973). Notably, this entire initiative operated in a statutory

vacuum until 1978, when Congress ratified the program to continue benefitting “disadvantaged”

firms in federal procurement. Pub. L. No. 95-507, 92 Stat. 1757 (1978) (codified at 15 U.S.C.

§ 637). In so doing, Congress defined “socially disadvantaged individuals” to include those

“subjected to racial or ethnic prejudice or cultural bias because of their identity as a member of a

group without regard to their individual qualities,” id. at 1762 (codified at 15 U.S.C. § 637(a)),

and set forth mandatory contractual language requiring contractors to “presume that socially and

economically disadvantaged individuals include Black Americans, Hispanic Americans, Native

Americans, and other minorities,” id. at 1767 (codified at 15 U.S.C. § 637(d)). States then began

to mirror these efforts in their own procurement processes. See, e.g., MISS. CODE § 57-75-21;

N.C. GEN. STAT. § 143-128.2. This harmonization effectively tied state policies to federal race-

conscious frameworks, as non-compliance could disadvantage states in broader economic

competition.

The federal government next extended race-conscious policies into infrastructure with the

Department of Transportation’s Disadvantaged Business Enterprise (DBE) program. Established

in 1983 through the Surface Transportation Assistance Act, the DBE program adopted by reference

Section 8(a)’s definition of “socially and economically disadvantaged individuals.” Pub. L. No.

97-424, § 105(f), 96 Stat. 2097, 2100 (1983) (codified at 49 U.S.C. § 47113(a)(2)). The program

required that recipients of Department of Transportation funds—primarily states, localities, and

transit authorities—ensure at least ten percent of federal highway and transit dollars go to small

businesses owned by socially and economically disadvantaged individuals. 49 U.S.C. § 47113(b).

The program also imported Section 8(a)’s racial presumptions, with regulations providing that

“Black Americans,” “Hispanic Americans,” “Native Americans,” “Asian-Pacific Americans,” and

“Subcontinent Asian Americans” are “rebuttably presumed to be socially and economically

disadvantaged.” 49 C.F.R. § 26.5. Even more, this DBE program required that those receiving

funding take “race-conscious measures” when race-neutral alternatives are deemed insufficient.

Id. §§ 26.5, .45, .47, .51. Recipients that failed to achieve DBE participation goals would bear the

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burden of conducting analyses of those shortfalls, on pain of suspension or termination of federal

funding. Id. §§ 26.47, .101. This regime therefore coupled continued access to billions in

transportation aid with state adoption of race-conscious programs—prompting nearly every state

to create DBE offices and integrate racial considerations into bidding processes. Put simply, the

program cemented federal affirmative action policies into subnational governance and

fundamentally reshaped states’ approach to public works.

2. Supreme Court

Even the U.S. Supreme Court endorsed the constitutionally pernicious notion of racial

carveouts for a season. In Fullilove v. Klutznick, 448 U.S. 448 (1980), for example, the Court

confronted whether Congress could lawfully set aside no less than ten percent of federal public-

works for minority-owned businesses under Public Works Employment Act of 1977. Id. at 453.

Chief Justice Burger’s narrow plurality opinion reasoned that Congress could remedy the effects

of past discrimination given its remedial power under section 5 of the Fourteenth Amendment and

broad spending power. See id. at 472–78, 480–82 (noting that the program was a “strictly remedial

measure” and outlining the conditions that prevented a pure racial quota). Justice Powell concurred

separately, stressing that Congress had developed an adequate factual record and that the program

was flexible and temporary. See id. at 495–517 (Powell, J., concurring); see also id. at 516 (“[T]he

use of racial classifications, which are fundamentally at odds with the ideals of a democratic

society implicit in the Due Process and Equal Protection Clauses, cannot be imposed simply to

serve transient social or political goals, however worthy they may be.”). Though no single opinion

commanded a majority, let alone more than three votes, Fullilove broadly stood for the proposition

that Congress could use racial preferences to remedy historic discrimination in federal spending.

A narrow majority in Regents of University of California v. Bakke, 438 U.S. 265, 272–276

(1978) (plurality op.) also upheld the consideration of race within the context of higher education.

The case arose from the U.C. Davis Medical School’s admissions program, which gave priority to

minority applicants through a separate admissions track. Id. at 269–70. Allan Bakke, a white man,

was denied admission while minority applicants with lower grade point averages and standardized

test scores were admitted through the special admissions program. Id. at 276–77. Bakke responded

by challenging the university’s race-based preferences under the Title VI as well as the California

and U.S. Constitutions. Id. at 277–78. Though the California Supreme Court concluded the

admissions program was unlawful and ordered Bakke to be admitted, id. at 280–81, the U.S.

Supreme Court reversed and partially upheld the admissions program to the extent “the State has

a substantial interest that legitimately may be served by . . . involving the competitive

consideration of race and ethnic origin.” Id. at 320 (opinion of Powell, J.).

The case nonetheless fractured the Court. Four justices believed Bakke’s exclusion was

unlawful under Title VI because “[r]ace cannot be the basis of excluding anyone from participation

in a federally funded program,” id. at 418–21 (joint opinion of Stevens, Stewart, Rehnquist, JJ.,

Burger, C.J., concurring in judgment in part and dissenting in part), and this contingent declined

to address the issue under the Equal Protection Clause on grounds of constitutional avoidance. id.

at 411–12 (joint opinion of Stevens, Stewart, Rehnquist, JJ., Burger, C.J. concurring in judgment

in part and dissenting in part). Another four justices believed the admissions program was lawful

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and concluded that U.C Davis could use race for the purpose of “remedying the effects of past

societal discrimination.” Id. at 362 (joint opinion of Brennan, White, Marshall, and Blackmun, JJ.,

concurring in judgment in part and dissenting in part). But it was Justice Powell who ultimately

provided the decisive fifth vote and controlling opinion, announcing the Court’s judgment. He

accepted only one of the rationales offered by U.C. Davis in support of its affirmative action

program—a First Amendment right “to make its own judgments as to education” in pursuit of “a

diverse student body,” id. at 312—and concluded that “race or ethnic background” as “a ‘plus’ in

a particular applicant’s file” was “flexible enough to consider all pertinent elements of diversity in

light of the particular qualifications of each applicant.” 6 Id. at 317.

Bakke’s limited endorsement of a “diversity” interest reared its head twenty-five years later

in Grutter v. Bollinger, 539 U.S. 309 (2003), which upheld yet another university’s race-conscious

admissions program. The Court “endorse[d] Justice Powell’s view that student body diversity is a

compelling state interest that can justify the use of race in university admissions.” Id. at 325. With

that came an examination of the professed diversity rational and its associated “benefits.” See id.

at 327–33. The Court explained that “[t]hese benefits are not theoretical but real” given that “major

American businesses have made clear that the skills needed in today’s increasingly global

marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and

viewpoints.” Id. at 330. So the Court deferred to the university’s “educational judgment that such

diversity is essential to its educational mission.” Id. at 328. Just as Justice Powell had done twenty-

five years earlier, the Court rooted its deference in the university’s First Amendment claim to

academic freedom and concluded the pursuit of a “critical mass” was flexible enough to avoid

constitutional criticism as an impermissible quota. 7 Id. at 328–29, 335–38. But this constitutional

volley came with a chronological boundary.

The Court emphasized that “race-conscious admissions policies must be limited in time”

precisely because a “core purpose of the Fourteenth Amendment was to do away with all

governmentally imposed discrimination based on race.” Id. at 341–42; see also id. at 343

(highlighting deference to the university’s representation that “it would ‘like nothing better than

to find a race-neutral admissions formula’ and will terminate its race-conscious . . . program as

soon as practicable”). This non-negotiable “termination point” served to “assure[] all citizens that

6

Justice Powell nonetheless made clear that strict scrutiny applied to any racial classification, whether

burdening a majority or minority class, and acknowledged that “[t]he guarantee of equal protection cannot mean one

thing when applied to one individual and something else when applied to a person of another color.” Bakke, 438 U.S.

at 289–90 (adding that “if both are not accorded the same protection, then it is not equal”). “We have never approved

a classification that aids persons perceived as members of relatively victimized groups at the expense of other innocent

individuals in the absence of judicial, legislative, or administrative findings of constitutional or statutory violations,”

he continued, and the notion of prior societal discrimination was itself an “amorphous concept of injury” that could

prove “ageless in . . . reach.” Id. at 307. Likewise, Justice Powell explained that U.C. Davis’s goal of “reducing the

historic deficit of traditionally disfavored minorities in medical schools and in the medical profession” was little more

than “discrimination for its own sake” and thus “facially invalid.” Id. at 306–07.

7

A companion case decided on the same day, however, confronted the outer limit of permissible

consideration of race—holding that another university’s point-based admissions system failed constitutional scrutiny

for want of “individual consideration” and because it “ha[d] the effect of making ‘the factor of race . . . decisive.’”

Gratz v. Bollinger, 539 U.S. 244, 271–72 (2003) (alteration in original) (quoting Bakke, 438 U.S. at 317).

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the deviation from the norm of equal treatment of all racial and ethnic groups is a temporary . . .

measure taken in the service of . . . equality itself.” Id. at 342 (citation omitted). Yet a quarter

century had passed “since Justice Powell first approved the use of race . . . in the context of public

higher education,” and, “[s]ince that time, the number of minority applicants with high grades and

test scores ha[d] indeed increased.” Id. at 343. As such, the Court offered an unambiguous forecast:

“We expect that [twenty-five] years from now, the use of racial preferences will no longer be

necessary to further the interest approved today.” Id. (emphasis added).

3. Corporate Diversity Movement

This malignant fixation on “diversity” also spread to the private sector. Corporate diversity

initiatives first arose as institutional reactions to expanding federal mandates and the threat of

litigation—ushering “an era of training” that included “recitations on the law and company

policies.” Rohini Anand & Mary-Frances Winters, A Retrospective View of Corporate Diversity

Training from 1964 to the Present, in 7 ACAD. OF MGMT. LEARNING & EDUC. 356, 357 (2008); see

also, e.g., Lauren B. Edelman, Legal Ambiguity and Symbolic Structures: Organizational

Mediation of Civil Rights Law, in 97 AM. J. OF SOCIO. 1531, 1535, 1545 (1992). Yet the effort

slowly shifted from proactive compliance to the pursuit of financial advantage, Anand & Winters,

supra, at 358–59, presaging the eventual “business case for diversity.” Alison M. Konrad,

Leveraging Workplace Diversity in Organizations, in 3 ORG. MGMT. J. 164, 166 (2006).

The 1980s confronted a “startling revelation” in a publication, commissioned by the

Department of Labor and dubbed Workforce 2000, that found eighty-five percent of net new

entrants to the workforce between 1985 and 2000 would be women and minorities. 8 Anand &

Winters, supra, at 358. See generally WILLIAM B. JOHNSTON & ARNOLD E. PACKER, HUDSON

INST., WORKFORCE 2000: WORK AND WORKERS FOR THE TWENTY-FIRST CENTURY 14, 21–22, 122

(1987). While this “was commonly misinterpreted in the press as intimating that there would be a

total rather than a marginal change in ethnic and gender diversity,” Anand & Winters, supra, at

358 (emphases added), the publication “[n]onetheless” started a conversation about the “future

composition of the workforce” and is even credited with adding “‘workplace diversity’ into the

business lexicon.” Id. Workforce 2000 is thus described as “the first document to argue that

workplace diversity was a topic deserving the attention of business managers, not for moral . . .

8

Fortuitously, academic theories like “Critical Race Theory” also arose during the 1970s and 1980s. See

generally RICHARD DELGADO & JEAN STEFANCIC, CRITICAL RACE THEORY: AN INTRODUCTION 4 (1st ed. 2001).

Originating as an offshoot of Critical Legal Studies—a radical, overtly leftist movement within the academy that

reduced law to little more than an ideological instrument for advancing the interests of the powerful and privileged—

early critical-race theorists sought to remedy the “insufficient attention” that had been paid “to racial domination.”

Kimberle Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in

Antidiscrimination Law, 133 HARV. L. REV. 1331, 1350 (1988). Put simply, this academic franchise deemed white

supremacy as the central principle of American society: insisting that racism is normal and permanent rather than

aberrational, DELGADO & STEFANCIC, supra, at 8–10; that neutral principles of colorblind objectivity and merit serve

as ideological weapons for advancing racial subordination, Crenshaw, supra, at 1346, 1367–81; and that incremental

reform is structurally inadequate, DERRICK A. BELL, JR., AND WE ARE NOT SAVED: THE ELUSIVE QUEST FOR RACIAL

JUSTICE 48–64 (1987). CRT therefore championed “equality as a result” or in outcome—as opposed to the sense of

equality on which the nation was founded, see supra Part I.A—to be measured by wealth, employment, education,

and goods. See Crenshaw, supra, at 1341.

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but . . . business reasons, and its conclusions formed the basis of what was to become the business

case for diversity.” Konrad, supra, at 166.

The rhetoric that diversity is essential for “business survival” continued to take form and

brought with it a cottage industry of diversity training programs, networking, and mentoring

programs that fixated on the advancement of women and minorities. Frank Dobbin & Alexandra

Kalev, The Origins and Effects of Corporate Diversity Programs at 40 (June 6, 2013),

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2274946. Eventually, companies began

institutionalizing diversity in and of itself with the creation of the “Chief Diversity Officer,” a role

often responsible for “linking diversity strategy with the company’s overall business strategy” and

a “diversif[ied]” workforce. Anand & Winters, supra, at 368–69; Lucy Buchholz, The Rise and

Impact of Chief Diversity Officers, SUSTAINABILITY MAG. (July 7, 2023), https://sustainability

mag.com/articles/breaking-barriers-the-rise-and-impact-of-chief-diversity-of; see also Sonari

Glinton, The Real History Behind DEI and Workplace Equity in America, FORBES (June 26, 2025),

https://www.forbes.com/sites/sonariglinton/2025/06/26/the-real-history-behind-dei-and-workplac

e-equity-in-america/. “Equity” and “inclusion” joined the list of corporate buzzwords, and

companies developed even more formalized, comprehensive programs, policies, and goals under

the heading of DEI, Glinton, supra—including mandatory training, recruiting, and hiring practices

based at least in part on an individual’s membership in chosen demographics. See, e.g., Matthew

Lavietes, ‘Watershed Moment’: Corporate America Looks to Hire More Black People, REUTERS

(Aug. 19, 2020), https://www.reuters.com/article/us-usa-race-hiring-idUSKCN25F2SY/

(exemplifying that companies have promised a certain percentage of positions would be filled with

individuals of specific demographic groups); Lauren Feiner, Tech Companies Made Big Pledges

to Fight Racism Last Year—Here’s How They’re Doing So Far, CNBC (June 6, 2021),

https://www.cnbc.com/2021/06/06/tech-industry-2020-anti-racism-commitments-progress-check

.html (exemplifying race-based practices in the workplace in the name of committing to diversity

and inclusion efforts); Rachel Minkin, Diversity, Equity and Inclusion in the Workplace, PEW

RSCH. CTR. (May 17, 2023), https://www.pewresearch.org/social-trends/2023/05/17/diversity-

equity-and-inclusion-in-the-workplace/ (referring to DEI initiatives involving hiring, pay,

promotions measures, affinity groups, and trainings). Thus what started as a compliance-focused

initiative by companies had since transformed into a multi-billion dollar industry with virtually

every Fortune 500 company maintaining some variety of internal DEI infrastructure by 2024,

Jonathan Butcher, Restoring Equality in Employment: Sinking the DEI Ship, HERITAGE FOUND.

(Nov. 27, 2024), https://www.heritage.org/progressivism/report/restoring-equality-employment-

sinking-the-dei-ship; Global Diversity & Inclusion (D&I) Strategic Research Report: Market to

Reach $24.4 Billion 2030 (Mar. 1, 2024), https://www.prnewswire.com/news-releases/global-

diversity-and-inclusion-di-strategic-research-report-2024-market-to-reach-24-4-billion-by-2030--

-top-diversity-equity-and-inclusion-trends-for-2023-and-beyond-302077414.html, replacing the

ideal of equal opportunity with a perversely ironic system of exclusion.

The U.S. Supreme Court’s decisions in Bakke and Grutter, see supra Part I.F.2, added fuel

to the trending rhetoric that permissible discrimination can exist in a business setting for the sake

of “diversity.” The Court’s recognition of diversity as a compelling government interest sparked

discourse as to whether such a justification can extend beyond higher education and into the

employment context. See, e.g., Richard N. Appel et al., Affirmative Action in the Workplace Forty

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Years Later, 22 HOFSTRA LAB. & EMP. L. J. 549, 570–74 (2005); Eric A. Tilles, Lessons From

Bakke: The Effect of Grutter on Affirmative Action in Employment, 6 UNIV. PA. J. OF BUS. L. 451,

459–63 (2004); see also, e.g., Petit v. City of Chicago, 352 F.3d 1111, 1112, 1114–15 (7th Cir.

2003) (applying “the Grutter standards” to public employment). Grutter openly relied on amicus

briefs submitted by the American business community to validate the avowedly exclusive link

between diversity and “the skills needed in [an] increasingly global marketplace,” Grutter, 539

U.S. at 330, and was thus widely understood as effectively “endors[ing] the ‘business case for

diversity’ itself,” Cynthia L. Estlund, Putting Grutter to Work: Diversity, Integration, and

Affirmative Action in the Workplace, 26 BERKELEY J. OF EMP. & LAB. L. 1, 20 (2005); see also,

e.g., David B. Wilkins, From “Separate is Inherently Unequal” to “Diversity is Good for

Business”: The Rise of Market-Based Diversity Arguments and the Fate of the Black Corporate

Bar, 117 HARV. L. REV. 1548, 1558 (2004) (explaining Grutter put “strong pressure” on “future

advocates for racial justice in both the court of law and the court of public opinion” to “not only

. . . argue in the language of diversity but also to justify diversity in terms of the efficient

functioning of institutions and the market”). In short, these decisions begged whether the Court

would prove equally receptive to affirmative action as a corporate lodestar that the colorblind text

of the 1964 Civil Rights Act would otherwise prohibit. See, e.g., Rebecca Hanner White,

Affirmative Action in the Workplace: The Significance of Grutter?, 92 KY. L.J. 263, 278 (2003)

(concluding that “Grutter’s impact on the workplace” created “an open question,” including how

it fits within the framework of statutory claims).

The decades following Grutter saw corporations increasingly embrace discriminatory

employment practices under the banner of promoting workplace “diversity and inclusion.” Race-

and sex-based recruitment, hiring, and promotion became standard practice. Nat’l Ass’n of Colls.

& Emps., 2010 Recruiting Benchmarks Report (2010), https://files.eric.ed.gov/fulltext/

ED526916.pdf; see also, e.g., Wei Cai et al., Diversity Targets, 29 REV. ACCT. STUD. 2157, 2157,

2169, 2171–72 (2024); NAT’L ASS’N OF COLLS. & EMPS., 2023 RECRUITING BENCHMARKS REPORT

(2023), https://www.naceweb.org/store/2023/2023-recruiting-benchmarks-report-and-dashboard;

Nat’l Ass’n of Colls. & Emps., 2017 Recruiting Benchmarks Report (2017), https://www.nace

web.org/uploadedFiles/files/2018/about-us/2017-nace-annual-report.pdf; Graduate Mgmt.

Admission Council, Diversity Recruiting: Why It’s Important—for Companies and Schools—and

What Really Works (Nov. 14, 2016), https://www.gmac.com/market-intelligence-and-research/

research-insights/recruitment-and-marketing/diversity-recruiting-why-its-important. A corporate

arms race in virtue signaling also ensued—reaching recent heights of nearly $340 billion in “racial

equity commitments” by Fortune 1000 companies, Earl Fitzhugh et al., It’s Time for a New

Approach to Racial Equity, MCKINSEY & CO. (Dec. 2, 2020), https://www.mckinsey.com/featured

-insights/diversity-and-inclusion/its-time-for-a-new-approach-to-racial-equity, and “nearly all

Fortune 500 companies . . . list[ing] commitments to DEI on their websites” as of 2024, Johnathan

Butcher, Restoring Equality in Employment: Sinking the DEI Ship, HERITAGE FOUND.,

Backgrounder No. 3875 (Nov. 27, 2024). See also, e.g., Atinuke O. Adediran, Disclosing

Corporate Diversity, 109 VA. L. REV. 307, 345–48 (2023).

Concepts drawn from “Critical Race Theory,” see supra n. 8, also found greater purchase

within business discourse and reoriented the discussion of workforce representation around terms

such as “structural racism” and “white privilege.” Mark R. Kramer, The 10 Commitments

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Companies Must Make to Advance Racial Justice, HARV. BUS. REV. (June 4, 2020), https://hbr.org/

2020/06/the-10-commitments-companies-must-make-to-advance-racial-justice; see also, e.g.,

Akwasi Opoku-Dakwa & Darryl B. Rice, A Place for Critical Race Theory and Wokeness in

Diversity Strategies, 38 ACAD. MGMT. PERSP. 214 (2024). Far from mere vernacular, however,

CRT advocates themselves entered the corporate setting under the guise of “DEI consultants” paid

to provide diversity training, implicit-bias workshops, and help shape hiring practices, SOCIAL

JUSTICE VERSUS SOCIAL SCIENCE: WHITE FRAGILITY, IMPLICIT BIAS, AND DIVERSITY TRAINING 2–

4, 55–75 (Craig Frisby & Robert Maranto eds., 2023); see also, e.g., ROBIN DIANGELO, WHITE

FRAGILITY: WHY IT’S SO HARD FOR WHITE PEOPLE TO TALK ABOUT RACISM 22–25 (2018)—

culminating in a $3.8 billion industry that was previously projected to quadruple by 2026. Zak Ali,

With Global Spending Projected to Reach $15.4 Billion by 2026, Diversity, Equity & Inclusion

Takes the Lead Role in the Creation of Stronger Businesses, PR NEWSWIRE (Nov. 3, 2021),

https://www.prnewswire.com/news-releases/with-global-spending-projected-to-reach-15-4-billio

n-by-2026--diversity-equity--inclusion-takes-the-lead-role-in-the-creation-of-stronger-businesses

-301413808.html.

4. Affirmative action invades Texas

Texas, unfortunately, was no stranger to this nationwide movement. Affirmative action in

Texas began in the late 1980s with race conscious legislation in relation to local government

contracting. See, e.g., Act of May 26, 1987, 70th Leg., R.S., ch. 790, § 4, 1987 Tex. Gen. Laws

2774, 2776–77 (codified at TEX. TRANSP. CODE § 451.252) (local transportation authorities); Act

of May 27, 1987, 70th Leg., R.S., ch. 1058, § 1, 1987 Tex. Gen. Laws 3590, 3590 (codified at

TEX. CIV. PRAC. & REM. CODE § 106.001) (large home-rule municipalities); Act of May 4, 1989,

71st Leg., R.S., ch. 124, § 2, 1989 Tex. Gen. Laws 483, 485 (codified at TEX. TRANSP. CODE

§ 22.084) (jointly operated airports); Act of May 29, 1989, 71st Leg., R.S., ch. 1060, § 3, 1989

Tex. Gen. Laws 4305, 4307 (codified as TEX. LOC. GOV’T CODE § 381.004) (community and

economic development plans for counties). Some measures overtly applied to a “minority

business” or “minority business enterprises,” with the term “minority” defined to “include[]

blacks, Hispanics, Asian Americans, American Indians, and Alaska natives.” Act of May 27, 1987,

70th Leg., R.S., ch. 1012, § 4, 1987 Tex. Gen. Laws 3414, 3414–15 (codified at TEX. TRANSP.

CODE § 452.201) (regional transportation authorities); Act of May 27, 1987, 70th Leg., R.S.,

ch. 1058, § 1, 1987 Tex. Gen. Laws 3590, 3590 (codified at TEX. CIV. PRAC. & REM. CODE

§ 106.001); Act of May 28, 1989, 71st Leg., R.S., ch. 734, § 3, 1989 Tex. Gen. Laws 3296, 3297–

98 (codified at TEX. TRANSP. CODE § 451.253) (metropolitan rapid transit authorities); Act of May

29, 1989, 71st Leg., R.S., ch. 1060, § 3, 1989 Tex. Gen. Laws 4305, 4307 (codified at TEX. LOC.

GOV’T CODE § 381.004). Other legislation employed euphemisms such as “disadvantaged

business” while still defining the enterprises in race-oriented terms, requiring ownership by

“socially disadvantaged” persons such as “black Americans, Hispanic Americans, women, Asian

Pacific Americans, and American Indians.” See Act of May 29, 1989, 71st Leg., R.S., ch. 479, § 4,

1989 Tex. Gen. Laws 1650, 1651–52 (codified at TEX. LOC. GOV’T CODE § 351.1035) (contracts

with counties for correctional facilities); Act of Mar. 25, 1991, 72d Leg., R.S., ch. 16, § 13.05(a),

1991 Tex. Gen. Laws 244, 347 (codified at TEX. LOC. GOV’T CODE §§ 375.003, .222) (municipal

management districts). Seeking to avoid the appearance of imposing racial quotas, many of these

measures authorized the relevant governmental entity to establish a “goal” for awarding a certain

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proportion of contracts to businesses associated with certain minority groups or women. Act of

May 27, 1987, 70th Leg., R.S., ch. 1012, § 4, 1987 Tex. Gen. Laws 3414, 3414–15 (codified at

TEX. TRANSP. CODE § 452.201); Act of May 27, 1987, 70th Leg., R.S., ch. 1058, § 1, 1987 Tex.

Gen. Laws 3590, 3590 (codified AT TEX. CIV. PRAC. & REM. CODE § 106.001); Act of May 29,

1989, 71st Leg., R.S., ch. 1060, § 3, 1989 Tex. Gen. Laws 4305, 4307 (codified at TEX. LOC.

GOV’T CODE § 381.004); Act of May 28, 1989, 71st Leg., R.S., ch. 734, § 3, 1989 Tex. Gen. Laws

3296, 3297–98 (codified at TEX. TRANSP. CODE § 451.253); Act of Mar. 25, 1991, 72d Leg., R.S.,

ch. 16, § 13.05(a), 1991 Tex. Gen. Laws 244, 347 (codified at TEX. LOC. GOV’T CODE §§ 375.003,

.222).

This early focus on local contracting soon expanded to statewide legal frameworks,

addressing areas such as agriculture, corrections, and even the administration of the newly created

state lottery. Act of May 26, 1989, 71st Leg., R.S., ch. 230, § 18, 1989 Tex. Gen. Laws 1026,

1032–33 (codified at TEX. AGRIC. CODE § 12.029); Act of Aug. 13, 1991, 72d Leg., 1st C.S., ch.

6, § 2, 1991 Tex. Gen. Laws 197, 203, 206 (codified at TEX. GOV’T CODE §§ 466.107, .151); Act

of Aug. 25, 1991, 72d Leg., 2d C.S., ch. 10, § 19.06, 1991 Tex. Gen. Laws 180, 221 (codified at

TEX. GOV’T CODE § 493.012). Likewise, race conscious measures were not confined to

government contracting with private entities. Race even became a statutorily required factor in the

appointment to certain government positions. See, e.g., Act of May 17, 1991, 72d Leg., R.S.,

ch. 269, § 1, 1991 Tex. Gen. Laws 1178, 1178–79 (codified at TEX. HEALTH & SAFETY CODE

§ 103.002) (stating that “the governor shall attempt to appoint members of different minority

groups including females, African-Americans, Hispanic-Americans, Native Americans, and

Asian-Americans” to the Texas Diabetes Council); Act of May 17, 1991, 72d Leg., R.S., ch. 768,

§ 1, 1991 Tex. Gen. Laws 2735, 2735–37 (codified at TEX. OCC. CODE § 252.001) (same, State

Board of Dental Examiners); Act of Aug. 25, 1991, 72d Leg., 2nd C.S., ch. 8, § 1.03, 1991 Tex.

Gen. Laws 137, 137 (codified at TEX. GOV’T CODE § 2152.052) (same, State Purchasing and

General Services Commission).

The Legislature attempted to soften affirmative racial targets as public criticism of racial

quotas grew. For example, the Legislature began requiring that “good faith efforts” be undertaken

toward predetermined numerical goals. See Act of Aug. 25, 1991, 72d Leg., 2nd C.S., ch. 10,

§ 19.06, 1991 Tex. Gen. Laws 180, 221 (codified at TEX. GOV’T CODE § 493.012) (mandating “a

good faith effort to assist disadvantaged businesses to receive at least [twenty] percent of the total

value of each construction contract”); Act of May 23, 1991, 72d Leg., R.S., ch. 677, § 5, 1991

Tex. Gen. Laws 2457, 2458 (codified at TEX. GOV’T CODE § 2161.181) (mandating “a good faith

effort to assist disadvantaged businesses to receive at least [ten] percent of the total value of all

contract awards”); Act of May 12, 1993, 73d Leg., R.S., ch. 242, § 1.15, 1993 Tex. Gen. Laws

502, 505–06 (codified at TEX. NAT. RES. CODE § 161.131) (mandating “a good faith effort to award

to minority-owned businesses” at least twenty percent of bond-related contracts). The Legislature

also implemented subjective “best value” criteria—infusing race and sex within the government

contracting arena, Act of Mar. 7, 1995, 74th Leg., R.S., ch. 3, § 3, 1995 Tex. Gen. Laws 23, 24–

25 (codified at TEX. EDUC. CODE § 73.115) (requiring the M.D. Anderson Cancer Center to

“consider the impact on the ability of the institution to comply with laws and rules relating to

historically underutilized businesses” in determining the “best value” for acquiring goods and

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services); Act of May 27, 1995, 74th Leg., R.S., ch. 736, § 1, 1995 Tex. Gen. Laws 3846, 3847

(codified at TEX. EDUC. CODE § 51.9335) (medical and dental units of a public institution of higher

education); Act of May 31, 1997, 75th Leg., R.S., ch. 1045, §§ 1–2, 4–5, 1997 Tex. Gen. Laws

3975, 3975–80 (codified at TEX. GOV’T CODE § 2155.144; TEX. HUM. RES. CODE § 32.043; TEX.

HEALTH & SAFETY CODE §§ 12.055, 533.016) (governmental units, public hospitals, and agencies

related to health and human services).

The statutory language of affirmative action continued to evolve, with the concept of a

“historically underutilized business” (i.e., “HUB”) becoming the favored term across various

statutory frameworks. See Act of May 28, 1993, 73d Leg., ch. 684, § 1, 1993 Tex. Gen. Laws

2537, 2537–38 (amending the predecessor to Chapter 2161 of the Government Code from

“disadvantaged business” to “historically underutilized business”); Act of May 31, 1993, 73d Leg.,

R.S., ch. 881, §§ 1–5, 1993 Tex. Gen. Laws 3503, 3502–04 (codified at TEX. GOV’T CODE

§§ 2252.121–.125) (public contracts with HUBs); Act of May 30, 1993, 73d Leg., R.S., ch. 906,

§ 1.06, 1993 Tex. Gen. Laws 3811, 3812–13 (codified at TEX. GOV’T CODE § 2161.063) (requiring

state agencies to prepare a written plan for increasing the use of HUBs); Act of May 28, 1993, 73d

Leg., R.S., ch. 988, § 4.07, 1993 Tex. Gen. Laws 4274, 4300–01 (amending section 493.012 of

the Government Code from “disadvantaged businesses” to “historically underutilized

businesses”). Similarly, grants for parks and recreational areas were newly directed to “recreation,

conservation, or education programs for underserved populations,” with such populations defined

to include “any group of people that is . . . minority . . . or female.” Act of May 14, 1999, 76th

Leg., ch. 267, §§ 1–2, 1999 Tex. Gen. Laws 1130, 1130–31 (codified at TEX. PARKS & WILD.

CODE §§ 24.001, .005).

Despite legal scrutiny, the 2000s saw affirmative action policies expand still further into

new areas such as navigation districts, clean energy projects, and water funds. See Act of May 25,

2003, 78th Leg., R.S., ch. 307, § 1, 2003 Tex. Gen. Laws 1287, 1290 (codified at TEX. WATER

CODE § 60.458); Act of May 29, 2007, 80th Leg., R.S., ch. 1277, § 1, 2007 2003 Tex. Gen. Laws

4261, 4261–62 (codified at TEX. GOV’T CODE § 447.013); Act of May 21, 2013, 83d Leg., R.S.,

ch. 207, § 2.02, 2013 Tex. Gen. Laws 877, 881–83 (codified at TEX. WATER CODE §§ 15.009,

.435). However, those efforts slowed significantly in the last decade—perhaps reflecting legal risks

and public skepticism about the efficacy of these policies. Very little race-conscious legislation

has been enacted since 2015. See generally Act of Mar. 30, 2015, 84th Leg., R.S., ch. 1, § 3.1335,

2015 Tex. Gen. Laws 1, 557–58 (codified at TEX. HEALTH & SAFETY CODE § 533A.016) (allowing

consideration of compliance with laws and rules relating to HUBs as part of “best value”

determination for public expenditures related to intellectual disability services); Act of May 21,

2019, 86th Leg., R.S., ch. 577 (S.B. 300), § 1, 2019 Tex. Gen. Laws 1615, 1615 (codified at TEX.

NAT. RES. CODE § 31.069) (requiring the General Land Office to observe laws and rules relating

to HUBs when awarding indefinite quantity contracts in disaster areas); Act of May 26, 2025, 89th

Leg., R.S., ch. 603, § 1, 2025 Tex. Gen. Laws 1403, 1403–04 (codified at TEX. LAB. CODE

§ 352.060) (allowing consideration of compliance with laws and rules relating to HUBs as part of

“best value” determination for contracts related to provision of vocational rehabilitation services).

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G. A return to first principles

Eventually, however, the nation embarked on a return to the first principles on which it was

founded.

1. U.S. Supreme Court

Less than a decade after endorsing racial carveouts within federal government contracting,

see supra pp. 11–13, the Court in City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989)

(plurality op.), the Court rejected the practice at the state level. The city of Richmond, Virginia

had adopted an ordinance requiring prime contractors on city projects to subcontract at least thirty

percent of construction costs to minority-owned firms. See id. at 477–78. Justice O’Connor’s

plurality opinion reasoned that Fullilove’s lesser scrutiny did not extend to Richmond’s program

because the Fourteenth Amendment grants remedial power to the Federal Government while

restricting state government action based on race. See id. at 490 (explaining “[t]hat Congress may

identify and redress the effects of society-wide discrimination does not mean that, a fortiori, the

States and their political subdivisions are free to decide that such remedies are appropriate”

because “Section 1 of the Fourteenth Amendment is an explicit constraint on state power, and the

States must undertake any remedial efforts in accordance with that provision” (emphasis added)).

Justice O’Connor also emphasized that “a generalized assertion that there has been past

discrimination in an entire industry provides no guidance for a legislative body to determine the

precise scope of the injury it seeks to remedy,” id. at 498, and the City did not provide a “strong

basis in evidence” of its own past discrimination that would justify a race-based remedy, id. at 500.

The plurality therefore rejected Richmond’s claim that “past societal discrimination alone can

serve as the basis for rigid racial preferences.” Id. at 505.

In 1995, the Court closed the loop—overruling Fullilove and extending strict scrutiny to

racial classifications in the context of federal contracting—in Adarand Constructors, Inc. v. Pena,

515 U.S. 200 (1995). There, a Colorado subcontractor challenged a U.S. Department of

Transportation program that gave prime contractors financial incentives to hire “socially and

economically disadvantaged” subcontractors, as determined by “race-based presumptions.” Id. at

204. The Court held that “all racial classifications, imposed by whatever federal, state, or local

governmental actor, must be analyzed by a reviewing court under strict scrutiny.” Id. at 227.

Remanding rather than striking down the program outright, the Court left open the possibility that

a narrowly tailored, evidence-based remedial program could survive review. Id. at 237–39. But the

Court reiterated what it had held repeatedly: the Equal Protection Clause protects all races equally,

and those who have been “disadvantaged by the government because of his or her race, whatever

that race may be,” without doubt “suffer[] an injury.” Id. at 230.

Justice Scalia, who provided the fifth vote, explained that “government can never have a

‘compelling interest’ in discriminating on the basis of race in order to ‘make up’ for past racial

discrimination in the opposite direction.” Id. at 239 (Scalia, J., concurring). While “[i]ndividuals

who have been wronged by unlawful racial discrimination should be made whole[,] . . . under our

Constitution there can be no such thing as either a creditor or a debtor race” because “[t]hat concept

is alien to the Constitution’s focus upon the individual.” Id. (citing U.S. CONST. amend. XIV, § 1).

- Page 21

He went on to explain that “pursu[ing] the concept of racial entitlement—even for the most

admirable and benign of purposes—is to reinforce and preserve for future mischief the way of

thinking that produced race slavery, race privilege and race hatred.” Id. “In the eyes of

government,” he continued, “we are just one race here. It is American.” Id. Justice Scalia thus

concluded “[i]t is unlikely, if not impossible, that the challenged program would survive under this

understanding of strict scrutiny.” Id.

The Court next turned to the public education context in Parents Involved in Community.

School v. Seattle School District No. 1, 551 U.S. 701 (2007), and rejected race-based decision

making in the absence of a valid remedial interest. Two public school districts in Washington and

Kentucky had “relie[d] upon an individual student’s race in assigning [them] . . . to a particular

school” in pursuit of “racial balance . . . within a predetermined range.” Id. at 710. Applying strict

scrutiny, the Court noted that “prior cases, in evaluating the use of racial classifications in the

school context, have recognized two interests that qualify as compelling.” Id. at 720. The first,

“remedying the effects of past intentional discrimination,” did not apply because Seattle had never

segregated schools and Jefferson County had been released from a desegregation decree many

years prior and did not advance a remedial interest. Id. at 720–21. The second, “the interest in

diversity,” was limited to higher education and “was not focused on race alone but encompassed

‘all factors that may contribute to student body diversity.’” Id. at 722 (quoting Bakke, 438 U.S. at

337). “In the present cases, by contrast, race is not considered as part of a broader effort to achieve

‘exposure to widely diverse people, cultures, ideas, and viewpoints,’ race, for some students, is

determinative standing alone.” Id. at 723 (citation omitted). Ultimately, the Court held that

diversity in primary and secondary education does not justify explicit racial classifications—

signaling the Court’s continued return toward a colorblind constitutional baseline, which

recognizes that “[t]he way to stop discrimination on the basis of race is to stop discriminating on

the basis of race.” Id. at 748; see also, e.g., Schuette v. Coalition to Defend Affirmative Action, 572

U.S. 291 (2014) (affirming a state’s right to adopt color-blind policies like banning affirmative

action in public education).

But another sixteen years would pass before the Court fulfilled Grutter’s promise in the

context of higher education and dealt the final constitutional blow to affirmative action in Students

for Fair Admissions, Inc. v. President & Fellows of Harv. Coll., 600 U.S. 181 (2023) (“SFFA”).

Harvard and the University of North Carolina used admissions processes where race sometimes

decided a student’s fate. Id. at 192–97. The programs failed strict scrutiny, serving no compelling

interests and lacking narrow tailoring. Id. at 214–18. The universities’ asserted interests—training

leaders, fostering pluralism, educating through diversity, refining cross-racial understanding, and

others—were of a variety that precluded meaningful judicial review. Id. at 214–15. The programs

also failed narrow tailoring because the universities “fail[ed] to articulate a meaningful connection

between the means they employ and the goals they pursue.” Id. at 215. Their racial categories

proved both overinclusive and underinclusive, again undercutting purported diversity aims. Id. at

216. This “mismatch between the means respondents employ and the goals they seek” further

hindered judicial scrutiny. Id. at 217. The programs further violated the constitutional prohibitions

against using race as a “negative” or as a stereotype. Id. at 218–21. College admissions operate as

“zero-sum,” so advantages for some racial groups inherently disadvantage others. Id. at 218–19.

- Page 22

Race-based admissions thus acted as a “negative” because some racial groups would have gained

more benefits without racial considerations. Id. at 219. Such programs also presumed uniform

thinking by members of the same race, perpetuating stereotypes that subordinate individual merits

to racial ancestry. Id. at 220–21.

SFFA also relied heavily on the “one final limit on race-based admissions programs”

imposed by Grutter: “At some point, the Court held, they must end.” Id. at 212 (citing Grutter,

539 U.S. at 342). Indeed, that “critical” requirement “was the reason the Court was willing to

dispense temporarily with the Constitution’s unambiguous guarantee of equal protection.” Id. That

willingness ended with SFFA, as the lack of a logical end point doomed Harvard and UNC’s race-

based admissions programs. Id. at 221–25. Vague pledges to end the programs once achieving

“meaningful representation and meaningful diversity” without considering race fell short. Id. at

221. Claims that the endpoint would arrive when students could receive the educational benefits

of diversity proved unmeasurable. Id. at 224. Nor would the Court grant a five-year reprieve tied

to Grutter’s expectation that racial preferences would be unnecessary in [twenty-five] years, as

neither university planned to discontinue race-based admissions within that timeframe. Id. Nor

could periodic review of their continued necessity salvage the plans, since “Grutter never

suggested that periodic review could make unconstitutional conduct constitutional.” Id. at 225.

This absence of measurable objectives, inevitable negative use of race, racial stereotyping, and

lack of end points rendered the programs unconstitutional. Id. at 230.

Two years after rejecting race-based admissions in higher education, the Court in Ames v.

Ohio Department of Youth Services, 605 U.S. 303 (2025), extended similar principles to the

employment context under Title VII, rejecting heightened evidentiary burdens on majority-group

plaintiffs alleging discrimination in favor of protected minorities. There, a heterosexual woman

challenged her employer’s denial of a promotion to a management position in favor of a less

experienced lesbian candidate, followed by her demotion in favor of a gay man, both allegedly

motivated by sexual-orientation based favoritism. Id. at 306. The Court held that Title VII imposes

no special requirements on such “reverse discrimination” claims, emphasizing that the statute’s

disparate-treatment provision protects “any individual” from sex-based discrimination and “draws

no distinctions between majority-group plaintiffs and minority-group plaintiffs.” Id. at 309. The

Court thus invalidated the “background circumstances” rule imposed by some circuits, which

“effectively requires majority-group plaintiffs (and only majority-group plaintiffs) to produce

certain types of evidence . . . that would not otherwise be required to make out a prima facie case”

of discriminatory motive. Id. at 311. While that step “is not onerous” for most plaintiffs, “plaintiffs

who are members of a majority group bear an additional burden” under the background

circumstances rule. Id. at 309. But “Congress left no room for courts to impose special

requirements on majority-group plaintiffs alone.” Id. at 310. The background circumstances rule

thus “flouts [the] basic principle” that “the standard for proving disparate treatment under Title

VII does not vary based on whether or not the plaintiff is a member of a majority group.” Id. The

Court therefore held that “Title VII does not impose such a heightened standard on majority-group

plaintiffs,” id. at 313, punctuating its commitment to symmetrical application of antidiscrimination

standards and ensuring consistent protections for all employees, regardless of sex or race.

- Page 23

2. Federal Government

The federal government, too, has made recent progress renewing our national commitment

to equality as opposed to feigned equity. Executive Orders 14151 and 14173, for example, aimed

to swiftly dismantle DEI programs across both the public and private sectors. 9 The former required

termination of DEI “mandates, policies, programs, preferences, and activities in the Federal

Government.” Exec. Order No. 14151, 90 Fed. Reg. 8339, 8339 § 2(a) (Jan. 20, 2025). It also

directed federal agencies to terminate ‘‘‘equity-related’ grants or contracts,” along with “all DEI

. . . performance requirements for employees, contractors, or grantees.” Id. at 8339 § 2(b)(i).

Meanwhile, Executive Order 14173 targeted DEI programs in federal contracting by revoking

Executive Order 11246, Exec. Order No. 14173, 90 Fed. Reg. 8633, 8634 § 3(b)(i) (Jan. 22, 2025),

and requiring federal contractors and subcontractors “to comply with . . . civil-rights laws” and

certify in “every contract” that they “do[] not operate any programs promoting DEI that violate

any applicable Federal anti-discrimination laws,” id. at 8634 § 3(b)(iv)(B). Executive Order 14173

also aimed to deter DEI programs in the private sector by directing federal agencies to, inter alia,

“identify up to nine potential civil compliance investigations of publicly traded corporations” and

other private employers. Id. at 8635 § 4(b)(iii). These executive orders set a clear policy to combat

unlawful DEI initiatives and paved the way for further action by government agencies to advance

this goal.

Recent actions by the U.S. Equal Opportunity Commission and Department of Justice

reflect this shift in policy. The EEOC, for example, issued information requests to twenty major

law firms in March 2025 concerning potentially unlawful DEI recruitment, fellowship, and

advancement programs operating along race or gender lines. Press Release, U.S. EQUAL EMP.

OPPORTUNITY COMM’N, EEOC Acting Chair Andrea Lucas Sends Letters to 20 Law Firms

Requesting Information About DEI-Related Employment Practices (Mar. 17, 2025),

https://www.eeoc.gov/newsroom/eeoc-acting-chair-andrea-lucas-sends-letters-20-law-firms-requ

esting-information-about-dei. While several firms settled with the agency and publicly reaffirmed

their commitment to merit based, nondiscriminatory employment practices, the EEOC’s actions

signal a willingness to aggressively enforce Title VII against unlawful DEI initiatives in the private

sector. Press Release, U.S. EQUAL EMP. OPPORTUNITY COMM’N, In EEOC Settlement, Four ‘Big

Law’ Firms Disavow DEI and Affirm their Commitment to Merit-Based Employment Practices

(Apr. 11, 2025), https://www.eeoc.gov/newsroom/eeoc-settlement-four-biglaw-firms-disavow-

dei-and-affirm-their-commitment-merit-based. The EEOC and DOJ have published guidance

further confirming that “DEI policies, programs, or practices may be unlawful” under Title VII “if

they involve an employer or other covered entity taking an employment action motivated—in

whole or in part—by an employee’s race, sex, or another protected characteristic.” U.S. EQUAL

EMP. OPPORTUNITY COMM’N, WHAT TO DO IF YOU EXPERIENCE DISCRIMINATION RELATED TO

9

Executive Orders 14151 and 14173 are, of course, subject to ongoing litigation. See Nat’l Ass’n of Diversity

Officers in Higher Educ. v. Trump, No. 25-333 (D. Md. filed Feb. 3, 2025); Nat’l Ass’n of Diversity Officers in Higher

Educ. v. Trump, No. 25-1189 (4th Cir. argued Sept. 11, 2025); Nat’l Urb. League v. Trump, No. 1:25-cv-00471

(D.D.C. filed Feb. 19, 2025); Chi. Women in Trades v. Trump, No. 25 C 2005 (N. D. Ill. filed Feb. 26, 2025). Other

than Executive Order 14173’s certification provision—an aspect that is subject to preliminary injunction, Chi. Women

in Trades v. Trump, No. 25 C 2005 (N. D. Ill. Oct. 30, 2025)—both remain in effect.

- Page 24

DEI AT WORK, https://www.eeoc.gov/sites/default/files/2025-03/One_Pagers_2025-

2_%28002%29_508.pdf (last visited Dec. 15, 2025) (emphasis omitted); see also Memorandum

from Pam Bondi, U.S. Att’y Gen., to All Fed. Agencies (July 29, 2025), https://www.justice.gov/

ag/media/1409486/dl (listing unlawful DEI practices).

Other federal agencies have followed suit in their respective spheres. The Office of

Personnel Management, for instance, directed the closure of all government DEI offices and placed

all workers in those offices on leave. Memorandum from Charles Ezell, Acting Dir., U.S. Off. of

Pers. Mgmt., to Heads and Acting Heads of Dep’ts and Agencies (Jan. 21, 2025),

https://www.opm.gov/media/e1zj1p0m/opm-memo-re-initial-guidance-regarding-deia-executive-

orders-1-21-2025-final.pdf. The Department of Education has also acted to eliminate DEI

initiatives, instructing educational institutions that receive federal funding to cease using race “as

a factor in their admissions, hiring, promotion, compensation, scholarships, prizes, administrative

support, sanctions, discipline, and beyond,” or risk investigation and loss of federal funding. 10

Press Release, U.S. DEP’T OF EDUC., U.S. Department of Education Directs Schools to End Racial

Preferences (Feb. 15, 2025), https://www.ed.gov/about/news/press-release/us-department-of-

education-directs-schools-end-racial-preferences. Such agency actions demonstrate the far-

reaching nature of the federal government’s renewed commitment to a long-forgotten truth: “Any

allocation of benefits and burdens based on a person’s race is an anathema to the U.S.

Constitution.” 49 Op. O.L.C. __ (Dec. 2, 2025).

3. Texas

Likewise, Texas has made significant strides toward eliminating all forms of

discrimination. For example, in 2023, the Legislature passed Senate Bill 17, which banned DEI

programing in higher education. The Education Code now defines DEI office to include those

established for the purpose of (1) influencing hiring practices with respect to race, sex, color, or

ethnicity; (2) promoting differential treatment based on these protected characteristics;

(3) promoting policies or procedures with respect to these characteristics; (4) and conducting

training programs and activities implemented in reference to these protected characteristics. TEX.

EDUC. CODE § 51.3525(a). This prevents institutions of higher education from maintaining a DEI

office, hiring anyone to perform the work of DEI offices, compelling or soliciting DEI statements,

giving preference to applicants based on protected characteristics, and requiring students to

participate in DEI training. Id. § 51.3525(b)(1). The statute also prevents institutes of higher

education from spending money appropriated to the institution for a state fiscal year until the

governing board of the institution certifies compliance to the Legislature and the Texas Higher

Education Coordinating Board. Id. § 51.3525(e).

10

To be sure, a district court recently held that the Department of Education’s “Dear Colleague Letter” setting

out its DEI policy was unconstitutional. Am. Fed’n of Tchrs. v. U.S. Dep’t of Educ., 796 F. Supp. 3d 66 (D. Md. 2025).

But an appeal of this decision was recently filed in the United States Court of Appeals for the Fourth Circuit, Am.

Fed’n of Tchrs. v. U.S. Dep’t of Educ., No. 25-2228 (4th Cir. Oct. 15, 2025), and we offer no comment on that ongoing

litigation.

- Page 25

The Governor has also acted to curb racial discrimination through executive order. On

January 31, 2025, Governor Abbott issued Executive Order No. GA-55, directing state agencies

to comply with the “color-blind guarantee of our state and federal Constitutions by prohibiting all

forms of government race discrimination.” Tex. Gov. Exec. Order No. GA-55, 50 Tex. Reg. 810

(Feb. 14, 2025). The executive order explained that the Texas and U.S. Constitutions “require that

state governments always treat people equally regardless of membership in any racial group,

refusing to place a thumb on the scale for or against anyone based on race.” Id. at 1. But “in recent

years, there has been a concerted effort to invert this commitment to equal treatment through

diversity, equity, and inclusion (DEI), critical race theory (CRT), affirmative action, and other

divisive agendas.” Id. The executive order explained that these “blatant efforts to divide people

are just new forms of racism, often weaponized in reverse and rooted in the idea that a person may

be inherently good or bad, the oppressed or the oppressor, based on racial identity.” Id. Moreover,

by “promoting ideas like inherent bias, collective guilt, racial superiority, cultural appropriation,

and other similar notions,” these “racist efforts seek to establish creditor and debtor races,” which

is “inherently antithetical to a society in which ‘all men are created equal.’” Id. The executive order

also explained that “no state agency” may “employ practices or communicate speech rooted in the

unlawful idea that a person is inherently good or bad, blameworthy or innocent, or entitled or

disentitled based on race.” Id. Therefore, the Governor directed “all state agencies to comply with

the color-blind guarantee of both the state and federal Constitutions, including by ensuring that all

agency rules, policies, employment practices, communications, curricula, use of state funds,

awarding of governmental benefits, and all other official actions treat people equally, regardless

of race.” Id. at 2.

This past legislative session, the Legislature again acted to eliminate racial discrimination

in education—this time in kindergarten through twelfth grade. Senate Bill 12 amended the Texas

Education Code by adding Section 11.005. This provision prohibits DEI duties in public schools.

The statute defines those duties to include (1) influencing “hiring or employment practices with

respect to race, sex, color, or ethnicity;” (2) “promoting differential treatment of or providing

special benefits to individuals” on the basis of these protected characteristics (with noted

exceptions); (3) developing policies or procedures that reference these protected characteristics

(with exceptions); and (4) requiring or soliciting a DEI statement or giving preferential treatment

because of such a statement. TEX. EDUC. CODE § 11.005(a). As such, Texas school districts are

forbidden from assigning these duties and must actively prohibit employees, contractors, or

volunteers from engaging in such duties. Id. § 11.005(a). Like Senate Bill 17, Senate Bill 12 aims

to prevent all race-based discrimination, including preferential treatment or benefits tied to race.

Likewise, as of December 2, 2025, the Comptroller announced the removal of women- and

minority-owned businesses from Texas’ HUB program—focusing instead on HUB certification

for businesses owned by disabled veterans. Paul Cobler, Texas Removes Women and Minorities

from Historically Underutilized Business Program for State Contracts, TEX. TRIBUNE (Dec. 2,

2025), https://www.texastribune.org/2025/12/02/texas-historically-underutilized-business-progr

am-hub-women-minorities/. The Comptroller announced that the change was made to restore

“constitutional integrity” to the HUB program and ensure that “Texas’ state contracting is free

from gender or race discrimination.” Id. Still, the statutory race- and sex-preferences memorialized

- Page 26

within the HUB program remain in force and are subject to constitutional challenge. See infra Part

II.A.1 (discussing the HUB program’s constitutional infirmities).

II. DEI in Texas

It is with the foregoing foundation established that we proceed to apply these principles in

Texas. Questions concerning DEI arise in multiple settings, and the law does not treat all alike.

Meaningful analysis therefore requires attention to context—particularly the material distinctions

between DEI in the public and private sectors, which we treat separately in Parts A and B.

A. Public Sector

1. Texas’ HUB programs are unconstitutional

Texas’s HUB framework erects a pervasive, discriminatory regime that violates the U.S.

Constitution’s Equal Protection Clause as well as the Texas Constitution’s Equal Rights

Amendment through indefensible fixation on sex and race. 11 This statutory scheme defines HUB

status (and thus access to lucrative government benefits) by race and sex, rendering the HUB

program presumptively discriminatory and triggering strict scrutiny. See infra Part II.A.1.i. This

scheme mandates “good faith efforts” to meet race- and sex-based targets, which masquerade as

goals but function as de facto quotas that want for any legitimate governmental end. See infra

Part II.A.1.ii. The HUB program also extends these race- and sex-based preferences to

subcontractors, further eroding any notion that these government benefits are coupled with any

claim of the government’s own past direct discrimination. See infra Part II.A.1.iii. Likewise, under

the guise of “best value” procurement, a variety of statutes empower bureaucrats to disregard lower

bids from disfavored bidders while treating race and sex as proxies for competence. See infra

Part II.A.1.iv. Exclusive training, outreach forums, and insider access further benefit HUBs, while

competitors incur penalties for attempting to participate. See infra Part II.A.1.v. At bottom, this

regime lacks any constitutional foundation on which to legitimately distribute burdens and benefits

based on immutable traits like race or sex and requires invalidation—from root to branch. 12

11

We recognize that “race” and “ethnicity” are distinct concepts that respectively relate to “one’s phenotypic

constitution” and “one’s anthropological and cultural identity.” Nuziard v. Minority Bus. Dev. Agency, 721 F. Supp.

3d 431, 479 n.53 (N.D. Tex. 2024). “Both are protected classes the consideration of which merits strict scrutiny.” Id.;

see also, e.g., In re Shaw, 204 S.W.3d 9, 17–18 (Tex. App.—Texarkana 2006, pet. ref’d) (“[L]aws involving

government intrusion which impact persons based on their race or ethnicity are subject to strict scrutiny . . . .”). But,

like the court in Nuziard, we use the term “race” to cover both “simply because precedents use that verbiage more.”

Nuziard, 721 F. Supp. 3d at 479 n.53.

12

This opinion embraces a unified approach to race- and sex-based discrimination under the strict scrutiny

standard that inheres to both the U.S. and Texas Constitutions alike. As detailed earlier, see supra Part I.E, sex-based

classifications are also subject to strict scrutiny under the Texas Constitution—obviating any need to consider such

provisions under the U.S. Constitution’s less stringent intermediate scrutiny standard. Cf., e.g., Richards v. League of

United Latin Am. Citizens, 868 S.W.2d 306, 311 n.3 (Tex. 1993) (recognizing shared scrutiny under both the U.S.

Constitution and Texas’ Equal Rights Amendment). That said, nothing in this opinion should be taken to suggest that

sex-based classifications would survive a less rigorous standard of review.

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i. Explicit racial and sex-based classifications render HUB

programs presumptively discriminatory

Chapter 2161 of the Government Code erects a common scaffolding that resides, to varying

degrees, within almost every HUB program in Texas. 13 See generally TEX. GOV’T CODE

§§ 2161.001–.253. Framed simply, the scheme endows a competitive edge to minority- and

women-owned businesses through “preferential treatment” in government contracting and

procurement. See, e.g., Grant v. Pivot Tech. Sols., Ltd., 556 S.W.3d 865, 870–71 (Tex. App.—

Austin 2018, pet. denied); see also, e.g., TEX. GOV’T CODE § 2161.004. This professes to serve

those who have “suffered the effects of discriminatory practices or other similar insidious

circumstances over which the person has no control.” TEX. GOV’T CODE § 2161.001(3)(B).

To this end, the Comptroller of Public Accounts is charged with administering the HUB

program, adopting rules, 14 and requiring associated information from state agencies. Id.

§§ 2161.0012, .002(a). Among the Comptroller’s wide-ranging powers and duties is the obligation

to “certify” as well as “maximize the number of certified” HUBs through agreements with local

governments and nonprofits. Id. § 2161.061(a)–(c); see also id. § 2161.061(d)–(e) (providing that

participating entities must follow Comptroller timelines for certification and maintain searchable

databases of HUB information). Additionally, the Comptroller is commanded to “encourage”

agencies’ use of HUBs by collaborating on “statewide policy for increasing the use of historically

underutilized businesses” and “assisting” these agencies “in seeking historically underutilized

businesses capable of supplying required goods or services,” “identifying and advising historically

underutilized businesses on the types of goods and services the agencies need,” and “increasing

the amount of business placed with historically underutilized businesses.” 15 Id. § 2161.063(a). The

Comptroller is also expected to compile, maintain, and update a HUB directory for state

purchasing and public works awards; biannually distribute that compilation to municipalities; and

13

Other statutes incorporate Chapter 2161 and extend its reach. See, e.g., TEX. GOV’T CODE §§ 791.011(g)

(purchases or purchasing services pursuant to interlocal contracts), 825.514 (Teacher Retirement System),

2054.381(b) (contracting and procurement related to statewide technology centers). Yet more statutes identify

additional entities—like the Texas Economic Development and Tourism Office—who play a key role in HUB

programs through the Small Business Advocate and Office of Small Business Assistance. See id. §§ 481.0067, .0068.

Both entities serve as “the principal focal point in the state” for HUBs, id. §§ 481.0067(c)(1), .0068(b)(2), and identify

financial and regulatory barriers for HUBs as well as funding sources, id. §§ 481.0067(c)(2), .0068(b)(4), (11). These

entities also “perform research, studies, and analyses” on HUB issues. Id. §§ 481.0067(c)(4), .0068(b)(14); see also,

e.g., id. § 481.0068(b)(3), (6)–(8) (detailing OSBA-specific endeavors).

The Comptroller recently adopted emergency rules—effective from December 2, 2025 until April 1, 2026,

14

50 Tex. Reg. 7945, 7953–61 (2025)—substantively altering the regulatory framework for HUBs. See supra Part I.G.3.

But the propriety of these rules is beyond the scope of this opinion, which speaks to the underlying statutory

frameworks that remain in force.

15

The chapter itself bolsters encouragement by requiring that certain, larger state agencies designate a HUB

coordinator to manage training on HUB recruitment and retention, report to the Comptroller, and connect HUBs with

staff. TEX. GOV’T CODE § 2161.062(e). Provisions outside the chapter also authorize agencies to dedicate additional

resources toward HUBs as well. See, e.g., id. § 651.010(b)(1) (authorizing agencies to “hire an entrepreneur-in-

residence or contract with an individual, chamber of commerce, or nonprofit entity” to improve HUB outreach).

- Page 28

provide that information to other local governments on request. 16 Id. § 2161.064. Additionally, the

Comptroller is to create HUB initiatives like the mentor-protégé program and exclusive business

forums. Id. §§ 2161.065–.066.

Chapter 2161 bases HUB status on one of five criteria linked to “economically

disadvantaged persons.” 17 Id. § 2161.001(2). The chapter expressly defines such persons to

include “Black Americans,” “Hispanic Americans,” “women,” “Asian Pacific Americans,” and

“Native Americans.” 18 Id. § 2161.001(3)(A). In turn, to qualify as a HUB, an entity must be either

a corporation majority-owned by economically disadvantaged persons; a sole proprietorship

completely owned and controlled by an economically disadvantaged person; a for-profit

partnership majority owned by economically disadvantaged persons; a joint venture in which each

entity qualifies as a HUB; or a supplier contract in which the HUB manufactures, distributes, or

warehouses and ships supplies and materials. Id. § 2161.001(2)(A)–(E). Were there any doubt,

Chapter 2161 confirms its fixation on race- and sex-based groups by requiring consolidated reports

on contract awards that are themselves categorized “by sex, race, and ethnicity.” Id. § 2161.125.

Other HUB variants follow suit and incorporate some or all of the five HUB definitional

categories. 19 See, e.g., TEX. TRANSP. CODE §§ 284.007(d), 431.109(e) (listing the same five

categories); TEX. GOV’T CODE § 493.012(c)(1) (listing two categories of majority-owned for-profit

businesses); TEX. TRANSP. CODE § 223.041(b) (referencing Section 2161.001); TEX. GOV’T CODE

§§ 2252.121(2), .124 (referencing Section 2161.001 with added requirements). Dispensing with

secondary euphemisms like “economically disadvantaged persons,” these frameworks openly

trace the scope of HUBs with race- and sex-based definitions. See, e.g., TEX. TRANSP. CODE

16

The Comptroller also “maintain[s] a centralized master bidders list” for procurement by state agencies, id.

§§ 2155.261–.270, which state agencies may supplement with their own list of HUBs to increase the number of HUBs

submitting bids to the agency, id. § 2155.268(b). Registration for the master bidders list supports Chapter 2161 through

the collection of registration fees used to prevent fraud in the HUB program. Id. § 2155.266(b).

17

This definition extends beyond Chapter 2161, as other provisions of state law specifically incorporate that

chapter’s HUB definition by reference. See, e.g., id. § 1232.124(2); TEX. HEALTH & SAFETY CODE § 102.259; TEX.

LOC. GOV’T CODE § 335.076(b); TEX. WATER CODE § 15.431(3).

18

Subsection 2161.001(3)(A) additionally includes “veterans as defined by 38 U.S.C. Section 101(2) who

have suffered at least a [twenty] percent service-connected disability as defined by 38 U.S.C. Section 101(16)” as

economically disadvantaged persons. See Act of May 26, 2013, 83d Leg., R.S., ch. 1255, § 1, 2013 Tex. Gen. Laws

3178, 3178–79 (codified at TEX. GOV’T CODE § 2161.001(3)(A)(vi)). Veterans are not a suspect class, so such a

provision is subject to, and easily passes, rational basis review. See generally Pers. Adm’r of Mass. v. Feeney, 442

U.S. 256 (1979). Further, the statute’s explicit inclusion of disabled veterans supersedes a previous attorney general’s

dubious statement that “[b]ecause the term ‘historically underutilized business’ as defined by [the predecessor statute]

is limited to businesses owned by persons identified as members of groups defined by gender, race, or ethnicity, we

must conclude that the commission is not authorized to promulgate a rule to deem businesses owned by individuals

with disabilities as ‘historically underutilized businesses.’” Tex. Att’y Gen. Op. No. DM-328 (1995) at 4.

19

Of note, some provisions incorporate by reference HUB definitions from statutes that have since been

repealed. See, e.g., TEX. GOV’T CODE § 447.013(i) (defining HUBs with reference to “former Section 481.191, as that

section existed on January 1, 2015”); TEX. UTIL. CODE §§ 39.909(a), 52.256(a) (same); see also Act of May 20, 2015,

84th Leg., R.S., ch. 364, § 1(1), 2015 Tex. Gen. Laws 1554, 1554 (repealing Subchapter N of Chapter 481 of the

Government Code, including subsection 481.191(4), which defined HUBs in terms of the first four categories but did

not include a supplier contract).

- Page 29

§§ 284.007(d)(1), 431.109(e)(1) (listing “African Americans, Hispanic Americans, women, Asian

Pacific Americans, and Native Americans”); TEX. GOV’T CODE § 493.012(c)(1) (listing “women,

African Americans, Hispanic Americans, Native Americans, and Asian Americans”).

The problem, of course, is that these “[f]acial classifications engender a presumption of

discriminatory purpose.” Communities for Equity v. Mich. High Sch. Athletic Ass’n, 459 F.3d 676,

694 (6th Cir. 2006)); accord, e.g., SECSYS, LLC v. Vigil, 666 F.3d 678, 685 (10th Cir. 2012). Such

classifications can only rest upon the narrowly tailored pursuit of a compelling, governmental end.

Lewis v. Ascension Par. Sch. Bd., 662 F.3d 343, 348 (5th Cir. 2011); accord Virdi v. DeKalb Cnty.

Sch. Dist., 135 F. App’x 262, 267 (11th Cir. 2005). Good intentions fail this exacting standard for

the simple reason that “[a] racial classification, regardless of purported motivation, is

presumptively invalid and can be upheld only upon an extraordinary justification.” Feeney, 442

U.S. at 272. But virtually every aspect of Texas’ approach to HUBs lacks constitutional

justification and, as discussed below, the “moral imperative of racial neutrality” thus demands

invalidation. See Bartlett v. Strickland, 556 U.S. 1, 21 (2009) (quoting Croson, 488 U.S. at 518

(Kennedy, J., concurring in part and concurring in judgment)).

ii. Requirements for “good faith efforts” to meet HUB

utilization “goals” create a de facto race- and sex-based

quota system that fails strict scrutiny

Chapter 2161 requires that the Comptroller “adopt rules to provide goals for increasing the

contract awards” to HUBs based on the results of the 1994 “State of Texas Disparity Study”

prepared by the National Economic Research Associates. 20 TEX. GOV’T CODE §§ 2161.002(c),

.181–.82. As such, the Comptroller traditionally promulgates “statewide HUB utilization goals.”

See, e.g., 41 Tex. Reg. 8746, 8772 (2016) (proposing former 34 TEX. ADMIN. CODE § 20.284(b));

see also 42 Tex. Reg. 225, 235 (2017) (adopting proposed regulation). The most recent iteration

of those regulatory benchmarks targeted “11.2% for heavy construction other than building

contracts,” “21.1% for all building construction, including general contractors and operative

builders contracts,” “32.9% for all special trade construction contracts,” “23.7% for professional

services contracts,” “26.0% for all other services contracts,” and “21.1% for commodities

contracts.” 50 Tex. Reg. 7935, 7955–56 (2025). With these starting points, agencies are obligated

to develop “strategic plan[s]” that articulate “a policy or mission statement relating to increasing

the use of [HUBs]” as well as “goals” and “specific programs” serving these memorialized ends—

with the Comptroller’s assistance, on request—that are subject to “random periodic monitoring.” 21

TEX. GOV’T CODE § 2161.123; see also id. § 2161.127(b) (explaining these goals and agencies’

compliance therewith are to be submitted in legislative appropriation requests). Other schemes set

20

Those rules are subject to revision “in response to the findings of any updates of the study that are prepared

on behalf of the state.” TEX. GOV’T CODE § 2161.002(c).

21

Other statutes sometimes impose additional consequences for failing to reach statewide HUB utilization

goals. See, e.g., TEX. WATER CODE § 15.009(o) (requiring the Texas Water Fund Advisory Committee to make

recommendations to the Texas Water Development Board for improving HUB participation levels if the “aggregate

level of participation” in certain projects funded by bond enhancement agreements “does not meet statewide annual

goals adopted under Chapter 2161”).

- Page 30

similar goals that are independently linked to other metrics. See, e.g., TEX. TRANSP. CODE

§§ 284.007(b), 431.109(c) (involving federal requirements or goals for “disadvantaged

businesses” under Section 201.702 of the Transportation Code).

Rather than flagrantly branding this as a quota system, of course, HUB frameworks require

“good faith efforts” toward the designated goals. This pertains to both the initial goals articulated

in their strategic plans, TEX. GOV’T CODE § 2161.123(d)(5), as well as their attempts to increase

fiscal-year contract awards to HUBs, id. §§ 2161.181 (contract awards for the purchase of goods

and services), .182(a) (contract awards for construction). 22 Sections 2161.181 and 2161.182

influence other frameworks through direct reference to the Comptroller’s HUB rules. See, e.g., id.

§ 2155.137(b) (subjecting emergency purchases by a state agency to Section 2161.181); TEX. LOC.

GOV’T CODE § 335.076(c)–(d) (referencing sections 2161.181 and 2161.182 with regard to certain

sports and venue projects); TEX. TRANSP. CODE § 223.041(b) (requiring transportation

expenditures “in accordance with the good-faith-effort procedures outlined in the rules adopted by

the comptroller”). Yet more statutes independently mandate good faith efforts toward HUB-related

goals as well. 23 See, e.g., TEX. TRANSP. CODE §§ 284.007(a) (contracts for transportation projects

in certain counties), 431.109(b) (contracts for public transportation in certain counties). Others

simply provide that the government entity “shall consider” contracting with HUBs. See, e.g., TEX.

GOV’T CODE § 1232.124(2); TEX. HEALTH & SAFETY CODE § 102.204. Some statutes even set

numerical goals directly. See TEX. GOV’T CODE § 493.012(a) (requiring “a good faith effort to

assist historically underutilized businesses to receive at least [thirty] percent of the total value of”

certain contracts).

In terms of constitutional propriety, however, these race- and sex-based utilization goals

necessarily fail strict scrutiny’s “daunting two-step examination.” See SFFA, 600 U.S. at 206–07.

First, any “effort to alleviate the effects of societal discrimination is not a compelling interest.”

Shaw v. Hunt, 517 U.S. 899, 909–10 (1996). Neither can outdated disparity studies support a

compelling interest where they rest on “an amorphous claim that there has been past discrimination

in a particular industry.” Croson, 488 U.S. at 499. While “significant statistical disparities can

support an inference of discrimination,” “disparities [without more] don’t cut it.” Nuziard, 721 F.

22

A prior attorney general concluded that certain state boards were required to comply with a predecessor to

Section 2161.181 “when contracting for the services of investment brokers.” Tex. Att’y Gen. Op. No. DM-184 (1992)

at 4. This opinion observed that the relevant boards of trustees were “required to make a good faith effort to assist

disadvantaged businesses to receive at least [ten] percent of the total value of all contract awards.” Id. Because that

requirement is no less unconstitutional today than before, Miller v. Davis, 150 S.W.2d 973, 978 (Tex. 1941) (“If an

Act is unconstitutional, it is no law at all.”), DM-184 is overruled.

23

Some prove less exacting and require good faith efforts without quantitative goals. See, e.g., TEX. GOV’T

CODE §§ 2157.068(c), 2306.5553(a) (both requiring “good faith efforts to provide contracting opportunities for, and

to increase contract awards to, historically underutilized businesses”). Even less rigorous standards control in other

contexts. See, e.g., TEX. UTIL. CODE § 12.252 (authorizing the Public Utilities Commission to require regulated

utilities “to make an effort to overcome the underuse of historically underutilized businesses” without reference to

good faith); TEX. INS. CODE § 443.0135(a) (requiring that the bidding process for special deputies to include

“procedures to promote the participation” of HUBs); TEX. GOV’T CODE § 447.013(i) (providing that recipients under

the advanced clean energy project grant and loan program are “encouraged to purchase goods and services” from

HUBs). Regardless, none bears claim to constitutional reprieve for the race- and sex-based preferences therein.

- Page 31

Supp. 3d at 480 (cleaned up). Studies that want for “the who, what, when, where, why, and how

of relevant discrimination” provide nothing by way of “guidance for a legislative body to

determine the precise scope of the injury it seeks to remedy.” Id. at 480–81 (cleaned up).

Nor is it of any moment that the HUB framework calls for a “good faith effort” when

utilization goals serve as de facto quotas that are anything but narrowly tailored. “Whether . . .

described as a quota or a goal,” these statutory imperatives inescapably reflect “a line drawn on

the basis of race and ethnic status.” Bakke, 438 U.S. at 289. Public institutions “cannot establish

quotas for members of certain racial groups or put members of those groups on separate . . . tracks”

for government benefits, “insulate applicants who belong to certain racial or ethnic groups

from . . . competition,” or justify differential treatment in public programs through an interest in

achieving “some specified percentage of a particular group merely because of its race or ethnic

origin.” Grutter, 539 U.S. at 334, 329–30 (cleaned up). This system of race- and sex-based

benchmarking therefore proves unlawful in that it inescapably treats “two or more classifications

of similarly situated persons . . . differently,” Gallegos-Hernandez v. United States, 688 F.3d 190,

195 (5th Cir. 2012), and any “semantic distinction is beside the point,” Bakke, 438 U.S. at 289.

See also, e.g., W.H. Scott Const. Co. v. City of Jackson, 199 F.3d 206, 215 (5th Cir. 1999)

(explaining “it is irrelevant whether the [program itself] establishes ‘goals’ or ‘quotas’ for . . .

participation” in a minority- and women-owned business contracting program); Bras v. Cal. Pub.

Utilities Comm’n, 59 F.3d 869, 874–75 (9th Cir. 1995) (same, emphasizing “the economic realities

. . . rather than the label” and holding statutory preferences were not “immunized from scrutiny”).

iii. Race- and sex-based preferences in HUB subcontracting

mandate, and fail, strict scrutiny

HUB programs also impermissibly extend race- and sex-based preferential treatment to

subcontractors. Some provisions allow state agencies to satisfy utilization goals indirectly through

HUB subcontractors. See, e.g., TEX. GOV’T CODE § 2306.5553(c) (providing that the Texas State

Affordable Housing Corporation “may achieve annual procurement goals under this section by

contracting directly with historically underutilized businesses or by contracting indirectly with

those businesses through the provision of subcontracting opportunities”). More commonly, HUB

provisions mandate “good faith” efforts to expand HUB subcontracting. See, e.g., id. § 2155.505(c)

(requiring the Comptroller to “strongly encourage” non-HUB vendors on multiple award schedules

to use HUBs or small businesses, with vendors that do not make “a good faith effort” subject to

award-schedule exclusion); see also, e.g., TEX. INS. CODE § 443.0135(b) (requiring that bidders

seeking selection as special deputies for a receiver rehabilitating or liquidating an insurer detail

their “efforts” to engage HUBs as subcontractors and plans for using HUBs to administer the

receivership estate).

Under Chapter 2161, agencies must “determine whether there will be subcontracting

opportunities” under certain large contracts “before the agency solicits bids, proposals, offers, or

other applicable expressions of interest for the contract.” TEX. GOV’T CODE § 2161.252(a). If

subcontracting appears probable, bidders must submit HUB subcontracting plans to qualify as

responsive. Id. § 2161.252(a)–(b). Awarded contracts then incorporate these plans as binding

- Page 32

terms, requiring prime contractors to “make good faith efforts to implement the plan.” 24 Id.

§ 2161.253(a). Contractor participation in a mentor-protégé program and protégé subcontracting

are said to evince such good faith efforts. Id.; see also id. § 2161.065(a) (requiring the comptroller

to “design a mentor-protege program to foster long-term relationships between prime contractors”

and HUBs to increase the latter’s ability “to receive subcontracts under a state contract”).

Moreover, should subcontracts deviate from the plan, the prime contractor must explain the

discrepancy to the agency and “describe the good faith efforts made to find and subcontract with

another [HUB].” Id. § 2161.253(b). Noncompliance ultimately triggers penalties, as agencies may

bar prime contractors from future contracting opportunities. Id. § 2161.253(d).

Under strict scrutiny, however, a compelling governmental interest demands proof of either

“prior discrimination by the governmental unit involved” or “passive participa[tion] in a system

of racial exclusion.” Croson, 488 U.S. at 492 (cleaned up); Lomack v. City of Newark, 463 F.3d

303, 307 (3d Cir. 2006) (same). Absent that, “race-based remedial measures violate equal-

protection principles.” Vitolo v. Guzman, 999 F.3d 353, 361 (6th Cir. 2021). Yet past

discrimination arising from the independent subcontracting decisions of prime contractors will, by

its very nature, rarely implicate direct government participation. Discrimination by the government

itself would instead involve its refusal to engage prime contractors on the basis of race or sex.

Moreover, to the extent that the HUB program purports to remedy the government’s own prior

direct discrimination, its extension into subcontracting proves “overinclusive” and lacks the

requisite “close fit” to the targeted harm—again failing strict scrutiny. Nuziard, 721 F. Supp. 3d

at 489; see also Croson, 488 U.S. at 493 (explaining that strict scrutiny “ensures that the means

chosen ‘fit’ this compelling goal so closely that there is little or no possibility that the motive for

the classification was illegitimate racial prejudice or stereotype”).

HUB provisions targeting subcontractors also falter on claims of the government’s bygone

passive participation. The disparity study does not “target a specific episode of past

discrimination,” Vitolo, 999 F.3d at 361, and merely highlights statistical disparities between

groups. Neither does the report demonstrate that the government “induce[d], encourage[d] or

promote[d] private persons to accomplish what it is constitutionally forbidden to accomplish.” See

Norwood v. Harrison, 413 U.S. 455, 465 (1973); see also Nuziard, 721 F. Supp. at 483 (observing

the record “contains no concrete evidence of government ‘induction, encouragement, or

24

As one opinion by then-Attorney General Cornyn unfortunately demonstrated, such “good faith efforts”

oftentimes amount to little more than added costs to taxpayers without any accompanying benefits. Specifically, that

administration determined that use of a so-called “pass-through” entity could count toward a vendor’s good faith HUB

participation goal. See generally Tex. Att’y Gen. Op. No. JC-0315 (2000). But these schemes are rightly subject to

criminal prosecution at the federal level. See, e.g., Kousisis v. United States, 605 U.S. 114, 119 (2025) (observing that

participation “as a mere ‘pass-through’ entity” was fraudulent and “contravened DOT’s rule that a contributing

disadvantaged business must ‘perfor[m] a commercially useful function’”). And even were they not, such practices

not only run afoul of the Texas Equal Rights Amendment but may implicate the Texas Gift Clauses as well. See

Borgelt v. Austin Firefighters Ass’n, IAFF Loc. 975, 692 S.W.3d 288, 301 (Tex. 2024) (providing that an expenditure

of public funds must not be “gratuitous” and must have as its “predominant objective” the accomplishment of “a

legitimate public purpose, not to provide a benefit to a private party”). This leaves no lawful foundation for contractual

arrangements that provide participants with compensation for fulfilling racial or sex-based criteria rather than valid

commercial contributions. We therefore overrule JC-0315.

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promotion’ of credit discrimination”). At bottom, “[p]recedent requires specifics to prove even

passive participation.” Nuziard, 721 F. Supp. 3d at 483. But there are no such specifics on which

to shore these subcontracting provisions and, as such, they cannot survive constitutional scrutiny.

iv. The procurement process is infused with race- and sex-

based priority for HUBs over lower bids by competitors

HUBs also receive significant advantages in contracting and procurement. Various statutes

require that government entities consider their ability to comply with “laws and rules” involving

HUBs when dispensing lucrative awards. See, e.g., TEX. EDUC. CODE § 44.031(b)(6) (School

Districts); TEX. NAT. RES. CODE § 31.069(f) (General Land Office); TEX. GOV’T CODE

§ 2269.055(a)(4), (b)(1) (Construction Projects); TEX. WATER CODE § 60.458(6) (Navigation

Districts). Yet more graft this express fixation on HUB compliance into the mandatory “best

value” considerations. See, e.g., TEX. EDUC. CODE §§ 51.9335(b)(6) (Institutions of Higher

Education), 73.115(b) (M.D. Anderson Cancer Center), 74.008(b)(6) (University of Texas Medical

Branch at Galveston); TEX. LAB. CODE § 352.060(c)(6) (Rehabilitation Council of Texas).

Likewise, other statutes provide that government entities “may” choose to do so themselves, 25

TEX. GOV’T CODE § 2155.144(d)(6) (Health and Human Services Agencies); TEX. HEALTH &

SAFETY CODE §§ 12.055(c)(6), 533.016(c)(6), 533A.016(c)(6) (Department of State Health

Services and Local Health Authorities); TEX. HUM. RES. CODE § 32.043(c)(6) (Public

Disproportionate Share Hospitals); TEX. LOC. GOV’T CODE § 252.043(b)(6) (Municipalities)—

though this frequently comes with a requirement that the entity document whether they

“considered . . . relevant factors” like HUB compliance in making their decision, see, e.g., TEX.

GOV’T CODE § 2155.144(c); TEX. HEALTH & SAFETY CODE §§ 12.055(b), 533.016(b),

533A.016(b); TEX. HUM. RES. CODE § 32.043(b). This collectively operates to throw open the

public coffers for HUBs that are not “the lowest bidder.” Walker v. Univ. of Tex. Med. Branch,

No. 1:08-CV-417, 2009 WL 2461024, at *8 (E.D. Tex. Aug. 7, 2009) (citing TEX. EDUC. CODE

§ 74.008(b)); accord E-Transit, Inc. v. City of Eagle Pass, No. DR-23-CV-00021, 2023 WL

3681722, at *2 (W.D. Tex. Apr. 13, 2023) (citing TEX. LOC. GOV’T CODE § 252.043(b)); see also,

e.g., TEX. GOV’T CODE § 2267.053(b-1); TEX. LOC. GOV’T CODE § 252.043(a). Even more, state

agencies subject to sunset review find themselves in a situation where HUB consideration takes

on existential importance: The Sunset Review Commission evaluates compliance with “state law

and applicable rules of any state agency regarding purchasing guidelines and programs for

historically underutilized businesses” when determining whether a public need exists for the

agency’s continued existence. See, e.g., TEX. GOV’T CODE § 325.011(9)(B).

Ultimately, the incorporation of HUB compliance into contracting and procurement

decisions unconstitutionally treats race and sex as proxies for merit. This preferential pipeline is

nothing short of “discrimination for its own sake, which the Constitution forbids.” SFFA, 600 U.S.

at 209 (cleaned up); see also TEX. CONST. art. I, § 3a. Protected characteristics “may never be used

25

Another category of statutes proves similar in focusing on the would-be recipient’s own compliance with

HUB-related goals. See, e.g., TEX. GOV’T CODE § 2267.053(b-1)(7) (Infrastructure Projects); see also, e.g., TEX.

WATER CODE § 15.435(h)(2) (predicating financial assistance related to bond enhancement agreements on an

applicant’s professed willingness to “comply with . . . law[s] relating to” HUBs).

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as a ‘negative’” against disfavored groups, and legislative reimagination of what constitutes the

“best value” to a governmental entity is “hard to take seriously.” SFFA, 600 U.S. at 218. Both

government contracting and procurement are no different from college admissions in that they are

“zero-sum,” meaning “[a] benefit provided to some . . . but not . . . others necessarily advantages

the former group at the expense of the latter.” Id. at 218–19; see also, e.g., Parents Involved, 551

U.S. at 719. Neither does it matter “whether a statute ‘requires’ the use of such measures” when

the question is instead “whether it authorizes or encourages them.” Bras, 59 F.3d at 874–75

(emphasizing “economic realities . . . rather than the label” in the context of a minority- and

women-owned businesses contracting program); see also, e.g., W.H. Scott Const., 199 F.3d at 215

(describing such labels as constitutionally “irrelevant”). Bidders are, by definition, competing

directly against each other for a limited number of opportunities—meaning race- or sex-based

winners come with race- or sex-based losers. See, e.g., Hou. Contractors Ass’n v. Metro. Transit

Auth. of Harris Cnty., 993 F. Supp. 545, 548 (S.D. Tex. 1997) (invalidating a minority-owned

business program because, inter alia, it “allows [the government] to take current opportunities

from a non-offending [demographic] and allocate them to an uninjured [demographic]”), vacated

and remanded on other grounds sub nom., Hou. Contractors Assoc. v. Metro. Transit Auth. of

Harris Cnty., 189 F.3d 467 (5th Cir. 1999). This crudely reduces the protected characteristics of

those outside the chosen demographic to a negative factor when, “in its absence, members of some

. . . groups would be [benefitted] in greater numbers than they otherwise would have been.” SFFA,

600 U.S. at 219; accord W.H. Scott Const., 199 F.3d at 215.

v. HUB programs offer exclusive race- and sex-based

assistance, training, outreach, and access to the

detriment of non-HUBs

HUB programs also provide targeted assistance, training, outreach, and access that is

unavailable to those who want for membership in the chosen race- or sex-based classes. Under

Chapter 2161, for example, the Comptroller offers HUBs assistance and training on state

procurement procedures, advises them of available state contracts, and encourages registration on

the Comptroller’s master bidders list. TEX. GOV’T CODE § 2161.062(b)–(c). This extends beyond

Chapter 2161 to include specific procurement methods, like reverse auctions. Id. § 2155.085(a)(2).

The Comptroller even notifies HUBs of contracts that are available using the reverse auction

procedure. Id. § 2155.085(a)(3). Moreover, HUBs are given assistance with compliance and

government relations. For instance, the Small Business Advocate and OSBA assist HUBs in

dealing with federal, state, and local governmental agencies and in complying with the laws

administered by every level of government. Id. §§ 481.0067(c)(3), .0068(b)(5), (13). OSBA also

supplies information, training, operational assistance, and other outreach. Id. § 481.0068(b)(10),

(12), (15)–(16), (18).

Targeted outreach and access are equally prevalent. The Comptroller provides HUBs with

orientation packages on certification or recertification with lists of state purchasing personnel,

information on electronic commerce opportunities, and procurement process details. Id.

§ 2161.062(d). Outreach extends to local governments and certain highly regulated sectors, like

utilities. Certain municipalities, for example, must contact at least two HUBs on a rotating basis

for expenditures between $3,000 and $100,000. TEX. LOC. GOV’T CODE § 252.0215. And the

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Public Utility Commission and Department of Economic Development inform HUBs of

aggregator operation opportunities. TEX. UTIL. CODE § 39.353(h). HUBs are also granted special

access to senior managers and procurement personnel through forums held at state agency offices.

TEX. GOV’T CODE § 2161.066(a)–(b). Agencies with biennial appropriations over $10 million must

participate, send personnel, and notify contractors of subcontracting opportunities. Id.

§ 2161.066(c). Even more, agencies with HUB coordinators must design their own HUB forum

program and sponsor HUB presentations at the agency. Id. § 2161.066(d). The Comptroller and

other agencies must “aggressively identify and notify” HUBs of presentation opportunities and

must advertise those opportunities in HUB-targeted trade publications. Id. § 2161.066(e).

But this collective scheme runs headlong into the “well established” reality “that when the

government distributes burdens or benefits on the basis of individual racial classifications, that

action is reviewed under strict scrutiny.” Parents Involved, 551 U.S. at 720. Exclusive assistance,

training, outreach, and access for HUBs impermissibly distributes benefits based on protected

demographics on pain of severe criminal and civil penalties for attempted participation by entities

who, for example, cannot qualify as HUBs simply because of their racial or gender composition.

See TEX. GOV’T CODE §§ 2161.231, 2252.123, 2252.125. Nor can there be any compelling interest

in such programs when the disparity study on which they rely does not “target a specific episode

of past discrimination,” Vitolo, 999 F.3d at 361, let alone invoke evidence that Texas directly or

passively participated in specific discrimination, Norwood, 413 U.S. at 465. As such, the HUB

framework openly endorses stripping “current opportunities from a non-offending [demographic]

and allocat[ing] them to an uninjured [demographic],” Hou. Contractors Ass’n, 993 F. Supp. at

548—without “reasonable durational limits” or “logical end point,” which belies any constitutional

foundation. SFFA, 600 U.S. at 212.

2. Texas’ DBE programs are unconstitutional

Texas’s Disadvantaged Business Enterprise (DBE) programs ostensibly mirror the federal

model and regulate transportation contracting across state, regional, and local governments. Yet

while federal rules are curated to require case-by-case assessments of social and economic

disadvantage, which proves constitutionally critical, Texas DBE programs embrace categorical

preferences that are presumptively discriminatory. See infra Part II.A.2.i. Not only do these

programs openly rely on sweeping race- and sex-based advantages that are unmoored from

cognizable claims of past discrimination, but the inclusion of avowedly neutral mechanics does

nothing to redeem the programs’ facially invalid ends. See infra Part II.A.2.ii. In short, Texas’

DBE programs prove unconstitutional.

i. DBE programs rely on facial distinctions between race

and sex, triggering strict scrutiny

The Texas Department of Transportation (“TXDOT”) administers the statewide DBE

program. TEX. TRANSP. CODE § 201.702; 49 C.F.R. §§ 26.1–Pt. 26, App. D. Aiming to award

“state or federally funded contracts[] . . . to disadvantaged businesses,” TEX. TRANSP. CODE

§ 201.702(a)(1) (discussing “construction, maintenance, supply, and service contracts”), the

program applies to “all department contracts and purchases funded in whole or in part with

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[certain] federal funds.” 43 TEX. ADMIN. CODE § 9.200(b). See also, e.g., 43 TEX. ADMIN. CODE

§ 9.201(a) (articulating TXDOT’s general policy of accommodating DBEs). Other DBE programs

likewise extend to regional and local governance as well. See, e.g., TEX. LOC. GOV’T CODE

§§ 351.1035 (county jail facilities), 375.222 (municipal management districts); TEX. TRANSP.

CODE §§ 91.053 (state rail facilities), 366.184 (regional tollway authorities), 370.183 (regional

mobility authorities), 451.251 (metropolitan rapid transit authorities); TEX. TAX CODE § 311.0101

(county or municipally created reinvestment zones).

Texas DBE programs largely reference, incorporate, and build on aspects of the federal

DBE program. 26 See generally 43 TEX. ADMIN. CODE § 9.200(a) (professing “compliance with . . .

Title 49, Code of Federal Regulations, Part 26”); Tex. Dep’t of Transp. v. Jones Bros. Dirt &

Paving Contractors, Inc., 92 S.W.3d 477, 483 (Tex. 2002) (explaining “it is the federal regulations

about DBEs with which TxDOT had to comply to receive federal funding for the project”).

TXDOT’s annual DBE award goals, for example, must “approximate the federal requirement for

federal money used for highway construction and maintenance consistent with other applicable

state and federal law.” TEX. TRANSP. CODE § 201.702(b). Additionally, federal standards are tied

to bidders’ good faith efforts to meet DBE contract goals. 43 TEX. ADMIN. CODE §§ 9.226,

.227(b)(2), .237(a). TXDOT is also obligated to “assess the availability” of DBEs in Texas, TEX.

TRANSP. CODE § 201.702(a)(2); accord 49 C.F.R. § 26.45(b), and identify DBEs capable of

providing supplies, materials, equipment, or services, TEX. TRANSP. CODE §§ 91.053(a)(2),

201.702(a)(3), 366.184(a)(2), 370.183(a)(2); accord 49 C.F.R. § 26.45(c); see also, e.g., TEX. TAX

CODE § 311.0101(b)(4) (requiring identical consideration for DBEs in designated zones).

On this backdrop, state and local DBE programs typically define a “disadvantaged

business” by reference to “socially and economically disadvantaged” individuals or “socially

disadvantaged” persons. 43 TEX. ADMIN. CODE § 9.202(4); see also, e.g., TEX. LOC. GOV’T CODE

§§ 351.1035(a), 375.003(4). TXDOT regulations offer two paths to “socially and economically

disadvantaged” status: The race- and sex-neutral path follows the federal approach. 27 See 43 TEX.

ADMIN. CODE § 9.202(15)(A) (defining such individuals as those “whom a recipient finds to be a

socially and economically disadvantaged individual on a case-by-case basis”). The second path,

26

Statewide policy also notes that the DBE program is “consistent, to the extent possible, with [the HUB

program under] Government Code, Chapter 2161,” 43 TEX. ADMIN. CODE § 9.200(a), and thereby prioritizes federal

congruence over full HUB integration. See also, e.g., TEX. GOV’T CODE § 2161.004(c) (providing that the HUB

program is inapplicable “to a project or contract subject to [Transportation Code] Section 201.702,” which governs

TXDOT’s statewide DBE program). Nevertheless, the memorandum between TXDOT and the Comptroller

recognizes TUCP-certified DBEs as HUBs. 43 TEX. ADMIN. CODE § 9.353(a).

27

Although the federal rules define DBEs as businesses owned by “socially and economically disadvantaged

individuals,” they prohibit determinations “based in whole or in part on race or sex” and mandate “case-by-case”

evaluations. Id. § 26.5. This is no accident: The federal DBE framework received significant overhaul in 2025—after

the U.S. Solicitor General notified Congress that the program was “unconstitutional to the extent . . . it creates a

presumption of social or economic disadvantage based on race or sex,” Letter from D. John Sauer, U.S. Solicitor

General, to Hon. Mike Johnson, Speaker, U.S. House of Representatives (June 25, 2025), https://www.justice.gov

/oip/media/1404871/dl?inline—to ensure DBE programs operate “in a nondiscriminatory fashion.” Disadvantaged

Business Enterprise Program and Disadvantaged Business Enterprise in Airport Concessions Program Implementation

Modifications, 90 Fed. Reg. 47,969 (Oct. 3, 2025) (codified at 49 C.F.R. pts. 23, 26).

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on the other hand, sets out a rebuttable presumption that “Black Americans,” “Hispanic

Americans,” “Native Americans,” “Asian-Pacific Americans,” “Subcontinent Asian Americans,”

and women are socially and economically disadvantaged individuals. Id. § 9.202(15)(B)(i)–(vi).

Local Government Code provisions similarly deem “black Americans, Hispanic Americans,

women, Asian Pacific Americans, and American Indians” socially disadvantaged by blithely

invoking “the effects of discriminatory practices or similar insidious circumstances” beyond their

control. TEX. LOC. GOV’T CODE §§ 351.1035(a)(1), 375.003(4)(A).

But these overt race- and sex-based classifications render Texas’ DBE framework

presumptively discriminatory. 28 See Communities for Equity, 459 F.3d at 694; SECSYS, 666 F.3d

at 685. It bears repeating that government-sponsored sorting “on the basis of race, alienage, or

national origin trigger strict scrutiny.” United States v. Skrmetti, 605 U.S. 495, 510 (2025); accord

McLean, 725 S.W.2d at 697–98 (same, Texas ERA). As discussed in further detail below,

however, this anachronistic approach to DBEs lacks any constitutional foundation and the “moral

imperative of . . . neutrality” demands invalidation. See Bartlett, 556 U.S. at 21 (citation omitted).

ii. DBE programs create de facto race- and sex-based

quotas and want for any narrowly tailored pursuit of a

compelling governmental end

Texas’ DBE programs provide preferred access to valuable contracts that are unavailable

to, or more difficult to obtain by, similarly situated persons outside of the preferred demographics.

See, e.g., 43 TEX. ADMIN. CODE §§ 9.201(a)(4) (limiting DBE participation to firms that fully meet

the program’s eligibility standards), .202(4) (defining DBEs in terms of socially and economically

disadvantaged individuals), .202(15)(B) (defining socially and economically disadvantaged

individuals in terms of race and sex); see also, e.g., id. § 9.305 (providing that certain DBEs are

“automatically certified” for participation in the Small Business Enterprise Program, a

supplementary regime for TXDOT contracts that lack a DBE or HUB goal). Municipal

management districts, for instance, must increase DBE awards, assess disparities between

available DBEs and actual awards, and remedy any gaps. TEX. LOC. GOV’T CODE § 375.222.

Various DBE frameworks also set numerical goals for contract or fund shares allocated to DBEs.

See, e.g., TEX. TRANSP. CODE §§ 366.184(a)(1), 451.251; 43 TEX. ADMIN. CODE § 9.221(a).

Governmental entities may even intensify race-conscious measures by adjusting contract goals if

benchmarks seem beyond reach. 43 TEX. ADMIN. CODE § 9.222(b). To enforce these objectives,

entities must at times specifically consider DBEs during contract awards and require prime

contractors’ bids or proposals to demonstrate their intent to utilize DBEs as subcontractors. TEX.

LOC. GOV’T CODE § 351.1035(b), (c)(3). Governmental entities may also restrict awards to bidders

demonstrating good faith efforts to achieve DBE participation targets. 43 TEX. ADMIN. CODE

28

To be sure, some DBE provisions neither define nor reference race and sex. See, e.g., TEX. TRANSP. CODE

§§ 91.053 (state rail facilities), 370.183 (regional mobility authorities); TEX. TAX CODE § 311.0101(a)–(c)

(reinvestment zones); cf. also, e.g., TEX. TAX CODE § 311.0101(d) (referencing “minority business enterprises and

women-owned business enterprises” without indicating such entities are synonymous with DBEs). While it is unclear

whether these provisions follow the federal government’s newly refined, case-by-case approach—ignoring race and

sex, 49 C.F.R. § 26.5—anything less would confront the same constitutional infirmities discussed herein.

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§ 9.226. Further support comes through mandates that DBEs receive targeted notice of

opportunities, procedural explanations, and offers of assistance in the overall process. See TEX.

TRANSP. CODE §§ 201.702(a)(4), 366.184(a)(3); TEX. LOC. GOV’T CODE § 351.1035(c)(1)–(2).

This backdrop raises various problems that betray any claim of constitutional propriety.

First, the participation benchmarks function as de facto racial and sex-based quotas by

apportioning public benefits on the basis of protected characteristics—without any “reasonable

durational limits” or “a logical end point,” no less. SFFA, 600 U.S. at 212 (quoting Grutter, 539

U.S. at 342). These programs consecrate fixed, alternate tracks: presumed qualification for some

demographics and either case-by-case scrutiny or extra hurdles for others. Compare 43 TEX.

ADMIN. CODE § 9.202(15)(A) (requiring a “case-by-case” determination of an individual’s

“socially and economically disadvantaged” status), with id. § 9.202(15)(B) (listing racial and

ethnic groups that are “rebuttably presumed” to qualify). This means that “[c]ontractors who are

not DBEs must compete . . . under . . . actual and identifiable impediments.” Hou. Contractors

Ass’n, 993 F. Supp. at 557. Nor would expanding this “two-track system into a multitrack

program” remedy the underlying constitutional flaw. Bakke, 438 U.S. at 315. Again, schemes like

this invariably “distribute[] burdens or benefits” on the basis of protected characteristics. Parents

Involved, 551 U.S. at 720.

Second, this preferential system also lacks the “extraordinary justification” that must

underlie a compelling governmental interest. See Feeney, 442 U.S. at 272. The DBE framework’s

fixed catalogue of preferred demographics is said to represent those who have “suffered the effects

of discriminatory practices or similar insidious circumstances over which they have no control.”

See, e.g., TEX. LOC. GOV’T CODE §§ 351.1035(a)(1), 375.003(4)(A). But this glibly embraces “a

generalized assertion that there has been past discrimination in an entire industry.” Croson, 488

U.S. at 498. That is no more of a compelling interest than a professed “effort to alleviate the effects

of societal discrimination.” Shaw, 517 U.S. at 909–10. Indeed, courts have previously invalidated

DBE programs for this very reason. See, e.g., W.H. Scott Const., 199 F.3d at 219 (rejecting a DBE-

participation goal for want of “particularized findings of discrimination” in the city’s construction

industry); Hou. Contractors Ass’n, 993 F. Supp. at 556, 558 (same, Harris County’s former DBE

system); Kossman Contracting Co. v. City of Houston, No. CV H-14-1203, 2016 WL 1104363,

at *5 (S.D. Tex. Mar. 22, 2016) (same, Houston’s “Minority and Women Owned Business

Enterprise . . . Program”); see also, e.g., Monterey Mech. Co. v. Wilson, 125 F.3d 702, 713 (9th

Cir. 1997) (observing that a minority- and women-owned business program failed constitutional

scrutiny where “the legislative findings [did] not say whether the ‘economically disadvantaged

position’ has to do with past active or passive discrimination”). Were it enough to identify “general

social ills and call it a day,” of course, “any race-based program could be justified considering our

country’s history of race-based discrimination.” Nuziard, 721 F. Supp. 3d at 480. But our

constitutional foundation “forbids the punishment of [one] generation for the wrongs of the last,”

Hou. Contractors Ass’n, 993 F. Supp. at 558, and equal protection is what “guarantees individuals

that their ethnicity or sex will not turn into legal disadvantages as the political power of one or

another group waxes or wanes.” Monterey Mech., 125 F.3d at 715.

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Were there remaining doubt, these terminal failures are confirmed by the overinclusive

scope of DBE beneficiaries. Included among the groups TXDOT “presume[s] to be socially and

economically disadvantaged,” for example, are all “women;” all “persons of Mexican, Puerto

Rican, Cuban, Dominican, Central or South American, or other Spanish or Portuguese culture or

origin, regardless of race;” all “persons who are American Indians, Eskimos, Aleuts, or Native

Hawaiians;” as well as all “persons having origins in any of the Black racial groups of Africa” or

“whose origins are from Japan, China, Taiwan, Korea, Burma (Myanmar), Vietnam, Laos,

Cambodia (Kampuchea), Thailand, Malaysia, Indonesia, the Philippines, Brunei, Samoa, Guam,

the U.S. Trust Territories of the Pacific Islands (Republic of Palau), the Commonwealth of the

Northern Mariana Islands, Macao, Fiji, Tonga, Kirbati, Juvalu, Nauru, Federated States of

Micronesia, or Hong Kong” in addition to “India, Pakistan, Bangladesh, Bhutan, the Maldives

Islands, Nepal, or Sri Lanka.” 43 TEX. ADMIN. CODE § 9.202(15)(b)(i)–(vi). Reduced simply, these

categories presume disadvantage for virtually the entire global population—save a narrow class of

men defined by ancestry. Not only is this sweeping list lifted verbatim from the federal regulatory

presumptions that were struck after the U.S. Solicitor General notified Congress in 2025 that its

DBE program was “unconstitutional to the extent . . . it creates a presumption of social or economic

disadvantage based on race or sex,” Letter from D. John Sauer, U.S. Solicitor General, supra n. 27;

see also 26 C.F.R. § 26.5 (2024) (prior categories), but it reflects the haphazard brand of

overinclusion that “illustrates the undifferentiated nature of the plan,” Wygant v. Jackson Bd. of

Educ., 476 U.S. 267, 277 (1986). This “strongly impugns . . . [any] claim of remedial motivation”

and invites “one [to] legitimately ask why [some beneficiaries] are forced to share this ‘remedial

relief’ with an Aleut citizen who moves [in] . . . tomorrow.” Croson, 488 U.S. at 506.

Neither does the inclusion of race- or sex-neutral mechanics redeem the DBE program’s

facially invalid ends. To be sure, TXDOT’s regulations profess prioritization of “race-neutral

means” to achieve annual DBE participation goals on federally assisted contracts. 43 TEX. ADMIN.

CODE § 9.220(a). These means promote participation by all small businesses—not merely DBEs—

and include avowedly demographic-neutral approaches. 29 Id. § 9.202(13); see also id. § 9.220(b)

(providing examples). TXDOT may nonetheless resort to openly race- and sex-conscious measures

if those neutral efforts falter. Id. § 9.221(a). Every three federal fiscal years, TXDOT sets overall

annual DBE goals and projects the portion of each overall goal it expects to meet through race-

neutral and race-conscious means. Id. §§ 9.213(a), .214(b), .217(b)(3). If TXDOT expects to

exceed the overall DBE participation goal, it reduces or eliminates contract goals for the fiscal

year’s remainder. Id. § 9.222(a). TXDOT likewise forgoes contract goals entirely if neutral means

alone will meet the goal or if the goal was achieved or surpassed using neutral methods during the

prior two years. Id. § 9.223. Either way, these measures ultimately target DBEs—including those

who qualify simply because they are owned by women or racial minorities. Id. § 9.202(12).

But use of ostensibly race- and sex-neutral tools becomes constitutionally infirm when

subordinated to the greater pursuit of demographic-specific participation goals. Programs like

29

Though we need not belabor the point, it is unclear how “ensuring distribution of the DBE directory to the

widest feasible number of potential contractors” can be used to assist all small businesses rather than DBEs alone. See

43 TEX. ADMIN. CODE § 9.220(b)(8).

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these can survive constitutional scrutiny only if founded on “serious, good faith consideration of

workable race-neutral alternatives.” Grutter, 539 U.S. at 339; accord 43 TEX. ADMIN. CODE

§ 9.201(a)(3) (requiring TXDOT to “ensure that [its] DBE program is narrowly tailored”). But

narrow tailoring is only one prong of the “daunting two-step examination known in our cases as

‘strict scrutiny.’” SFFA, 600 U.S. at 206. A provision must also “further compelling governmental

interests.” Id. at 207. Here, of course, the manifest purpose of DBE programs is to increase DBE

participation in transportation contracting and procurement. To that end, TXDOT sets annual goals

for awarding contracts to DBEs and strives to meet them. TEX. TRANSP. CODE § 201.702(a)(1);

see also 43 TEX. ADMIN. CODE § 9.213(a) (confirming these goals target “DBE participation in

DOT-assisted contracts”). TXDOT’s policies remove barriers to DBE participation in contracts,

foster DBE development to promote competition, and equip recipients with tools to curate DBE

opportunities. 43 TEX. ADMIN. CODE § 9.201(a)(5)–(7). Specialized measures reinforce these

objectives: TXDOT mandates use of financial institutions owned by socially and economically

disadvantaged individuals, encourages contractors to do the same, and offers technical assistance

for DBEs to compete in highway construction. Id. §§ 9.207, .211, .241. Texas’ DBE programs

therefore reduce to nothing short of open, discriminatory exclusion of contractors that were born

into one of the disfavored demographics.

Suffice it to say that race- and sex-neutral means cannot validate unconstitutional ends. A

government’s “preferential purpose” of increasing participation by “a particular group merely

because of its race or ethnic origin . . . must be rejected not as insubstantial but as facially invalid.”

Bakke, 438 U.S. at 307; see also Parents Involved, 551 U.S. at 740 (stating that “using race simply

to achieve racial balance would be patently unconstitutional” (internal quotations omitted)). Far

from compelling, such an interest in “[p]referring members of any one group for no reason other

than race or ethnic origin” represents the very “discrimination for its own sake” that “the

Constitution forbids.” SFFA, 600 U.S. at 208–09 (quoting Bakke, 438 U.S. at 306–07). To describe

this pernicious pursuit is to condemn it under the U.S. and Texas Constitution alike.

3. Programs targeting minority- and women-owned businesses for

government largesse also fail strict scrutiny

Yet more statutes systematically authorize preferences for minority- and women-owned

businesses in public contracting and, in turn, purport to insulate race- and sex-based

classifications—triggering strict scrutiny. See infra Part II.A.3.i. Preferential treatment for these

businesses based on race and sex advances no compelling governmental interest. See infra

Part II.A.3.ii. Likewise, the framework’s avowed aspirational goals are nothing more than de facto

quotas that fail narrow tailoring. See infra Part II.A.3.iii. The scheme also provides preferential

treatment in contracting, direct assistance, and targeted forms of outreach—all on the basis of sex

and race. See infra Part II.A.3.iv. And finally, advantaging nonprofit organizations based on these

same immutable traits proves equally unconstitutional. See infra Part II.A.3.v. These measures

violate the U.S. and Texas Constitutions by imposing burdens and benefits based on race and sex,

perpetuating stereotypes and eroding the constitutional imperative of equal treatment.

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i. Texas law mandates preferences for minority- and

women-owned businesses, triggering strict scrutiny

Texas law embeds pernicious demographic preferences throughout its public-contracting

regime. A host of agencies are statutorily commanded to prioritize minority- and women-owned

businesses. See, e.g., TEX. AGRIC. CODE § 12.029 (Department of Agriculture); TEX. GOV’T CODE

§§ 466.107, .151 (Department of Licensing and Regulation), 2306.6734 (Department of Housing

and Community Affairs); TEX. HUM. RES. CODE § 122.019 (Workforce Commission); TEX. NAT.

RES. CODE §§ 161.131–.132 (Veteran’s Land Board); TEX. OCC. CODE § 2026.152 (Racing

Commission). Various political subdivisions, too, shoulder similar obligations. See, e.g., TEX. LOC.

GOV’T CODE § 381.004 (counties); TEX. HEALTH & SAFETY CODE §§ 262.035 (municipal housing

authorities), 281.051 (county hospital districts), 775.306 (county emergency services districts).

Even boards of regents are commanded to make good-faith efforts in awarding contracts—with

minimum targets—to women- and minority-owned businesses. TEX. EDUC. CODE § 55.03(a).

Likewise, statutory preference for these preferred demographics extends to transportation

authorities and other entities that are typically subject to the DBE framework. See, e.g., TEX.

TRANSP. CODE §§ 22.084 (joint boards for airports), 451.253 (metropolitan rapid transit

authorities), 452.201 (regional transportation authorities); compare TEX. TAX CODE

§ 311.0101(a)–(c) (DBE participation in reinvestment zones), with id. § 311.0101(d) (authorizing

“goals for the participation of minority business enterprises and women-owned business

enterprises in the awarding of state contracts for professional services”).

As with HUB and DBE programs, many minority- and women-owned business

frameworks openly classify beneficiaries by race and sex. 30 Phrases like “minority business,”

“minority-owned business,” or “minority enterprise” consistently refer to a business that is

sufficiently owned and controlled by minority group members. See TEX. EDUC. CODE

§ 55.03(c)(1); TEX. GOV’T CODE §§ 466.107(b)(1)(A), 2306.6734(c)(1); TEX. LOC. GOV’T CODE

§ 381.004(a)(3); TEX. NAT. RES. CODE § 161.131(c)(1); TEX. TRANSP. CODE §§ 451.253(d)(2),

452.201(e)(2). These statutes typically identify the preferred demographics as “blacks” or “African

Americans,” “American Indians,” “Asian Americans,” as well as “Hispanics” or “Mexican

Americans and other Americans of Hispanic origin.” See TEX. EDUC. CODE § 55.03(c)(1); TEX.

GOV’T CODE §§ 466.107(b)(2), 2306.6734(c)(2); TEX. LOC. GOV’T CODE § 381.004(a)(2); TEX.

NAT. RES. CODE § 161.131(c)(2); TEX. TRANSP. CODE §§ 451.253(d)(1), 452.201(e)(1). But see

30

This is true even of the statutes that leave terms like “minority” undefined. Compare TEX. HEALTH &

SAFETY CODE §§ 262.035(b)(6), 281.051(c), 775.306 (all pairing minorities and women), and TEX. GOV’T CODE

§ 466.151(c); TEX. OCC. CODE § 2026.152(b) (all referring to minority businesses alone), with TEX. TAX CODE

§ 311.0101(d); TEX. TRANSP. CODE § 22.084(a) (combining both). An undefined term with “multiple common

meanings . . . is not necessarily ambiguous,” of course, and courts resolve this dilemma by “apply[ing] the definition

most consistent with the context of the statutory scheme.” Sw. Royalties, Inc. v. Hegar, 500 S.W.3d 400, 405 (Tex.

2016). Here, both ordinary usage and context favor construing “minority” as a “member of” a “racial” or “national”

group “regarded as different from the larger group.” THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH

LANGUAGE 1151 (3d ed. 1992); see also, e.g., Loco Brands, LLC v. Butler Am., LLC, No. 6:18-CV-69-JDK-KNM,

2020 WL 6815167, at *5 (E.D. Tex. Jan. 30, 2020) (explaining that “[m]inority ownership imbues a minority racial

identity to the company itself”), report and recommendation adopted, No. 6:18-CV-69-JDK-KNM, 2020 WL

1536043 (E.D. Tex. Mar. 31, 2020).

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also TEX. LOC. GOV’T CODE § 381.004(a) (also including “Alaska natives”); TEX. TRANSP. CODE

§§ 451.253(d), 452.201(e) (same). Others cater to “women-owned businesses” or “women owned

business enterprises,” see TEX. EDUC. CODE § 55.03(c)(3); TEX. LOC. GOV’T CODE

§ 381.004(a)(4); TEX. NAT. RES. CODE § 161.132(c)(1); TEX. TRANSP. CODE §§ 451.253(d)(3),

452.201(e)(3)—though the intersection between these race- and sex- dependent groups sometimes

proves inconsistent or illogical. See, e.g., TEX. GOV’T CODE § 2306.6734(c)(2)(A) (defining

“minority group” to include “women,” unlike other definitions); TEX. NAT. RES. CODE

§ 161.132(c)(2) (listing racial and ethnic groups to define “minority group,” despite only applying

to a “women-owned business”). A final category takes a unified approach and borrows DBE

language, giving preference to “minority and female-owned small business[es]” under “control[]

by one or more . . . persons” whom “are socially disadvantaged because of their identification as

. . . women, black Americans, Mexican Americans and other Americans of Hispanic origin, Asian

Am

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