# Untitled Texas Attorney General Opinion: KP-0505

> Texas Attorney General Reports · January 16, 2026

URL: https://www.frixlaw.com/law-library/cases/11243050

## Case

- **Court:** Texas Attorney General Reports
- **Decided:** January 16, 2026
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11243050

## How later opinions describe it (automated extraction)

- stating that “using race simply to achieve racial balance would be patently unconstitutional” (internal quotations omitted)
- applying federal equal protection to programs disbursing race-based benefits and burdens
- 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”

## Opinion text

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.
- Page 2

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).
- Page 3

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”).
- Page 4

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).
- Page 5

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.
- Page 6

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).
- Page 7

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.
- Page 8

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).
- Page 14

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.
- Page 15

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
- Page 17

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
- Page 18

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
- Page 19

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).
- Page 20

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.
- Page 27

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 provision

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11243050. Public record. Not legal advice.