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Texas Attorney General Ken Paxton recently released a lengthy legal opinion asserting that many public-sector DEI initiatives violate state and federal law. Other experts disagree.
In this article, we explain how this recent opinion affects the workplace and employee rights across Texas.
What Did Paxton’s Opinion Say?
Paxton’s January 2026 opinion argues that many public-sector DEI initiatives likely violate constitutional and statutory anti-discrimination protections.
Paxton relies primarily on a U.S. Supreme Court case limiting the use of race in deciding higher education admissions.
Specifically, Paxton asserts that certain DEI initiatives implemented by public universities and governmental entities may violate:
- The Equal Protection Clause of the U.S. Constitution
- Title VI and Title VII of the Civil Rights Act
- Texas anti-discrimination statutes
- State constitutional provisions prohibiting preferential treatment
Paxton reasons that programs providing race-conscious scholarships, hiring preferences, training mandates, or affinity-based initiatives risk constituting unlawful discrimination.
According to the opinion, public institutions may not:
- Treat individuals differently based on race, ethnicity, or other protected characteristics
- Use DEI programming that allegedly creates race-based classifications
- Maintain policies that could be interpreted as preferential treatment
The Attorney General further warns that continued implementation of such programs could expose institutions to legal liability.
Attorney general opinions are advisory. They do not create new law, but they can influence enforcement decisions and policy changes, both public institutions and across the state generally.
Why Do Legal Experts Disagree With Paxton’s Analysis on DEI?
Several legal experts interviewed by the Texas Tribune disagree with Paxton’s advisory opinion on DEI because Paxton’s analysis extends beyond what current Supreme Court precedent clearly requires.
Legal scholars quoted in coverage of the opinion note that:
- The Supreme Court’s decision on which Paxton relied addressed only how to decide which students are admitted to public universities.
- Anti-discrimination laws prohibit unlawful actions based on immutable characteristics, such as race, versus lawful inclusion efforts designed to ensure equal opportunity.
- Many DEI programs focus on outreach, workplace climate, recruitment, and compliance rather than preferential treatment.
In earlier debates – including criticism of how Republican lawmakers have used civil rights language – Martin Luther King Jr.’s oldest son, Martin Luther King III, publicly argued that Texas Republicans were taking his father’s words out of context when opposing race-related educational policies. King’s son emphasized that judging people by their character “is when we have a true, just, humane society where there are no biases, where there is no racism, where there is no discrimination,” and noting that “unfortunately, all of these things still exist.”
How Do the Competing Interpretations Compare?
| Issue | Paxton’s Position | Contrary Expert Opinion |
| Use of Race-Conscious Measures | Likely unconstitutional if race is considered in decision-making | Only unlawful if race is used as a determinative classification triggering strict scrutiny |
| Scope of Supreme Court Precedent | Applies broadly to all DEI initiatives beyond admissions | Limited to the specific admissions situation as explained by the Supreme Court |
| DEI Training & Outreach | Potentially suspect if tied to protected characteristics | Generally permissible if they do not treat employees differently because of their race, sex, religion, national origin, etc. |
| Legal Risk | Significant exposure for continuing DEI initiatives | Risk depends on specific situations, implementation, and whether actual discrimination occurs |
These commentators emphasize that constitutional analysis in race discrimination cases requires:
- Proof of a racial classification
- Adverse action that treats similarly situated individuals differently because of their race
- The adverse action because of race was the cause of some damage to the individual.
Many DEI efforts, they argue, do not involve explicit racial classifications at all. Rather, DEI programs work toward equality and try to include all races, religions, genders, etc.
Why Are Some Commentators Critical of the Opinion?
Commentators writing in the Houston Chronicle and attorneys at Gibson Dunn argue that Paxton’s opinion overgeneralizes recent court decisions and creates unnecessary confusion about workplace rights.
Key counterpoints include:
A. Overgeneralization of Supreme Court Holdings
Critics of Paxton’s theory point out that the Supreme Court’s higher-education admissions ruling addressed a specific admissions framework. Extending that reasoning to workplace trainings, mentorship programs, or internal policy initiatives may conflate materially different legal contexts.
B. Workplace Anti-Discrimination Law Still Applies
Title VII continues to prohibit employers from discriminating against employees based on protected characteristics such as race, sex, religion, or national origin. The existence — or removal — of DEI programs does not eliminate an employer’s obligation to avoid discriminatory treatment.
C. Fact-Specific Legal Analysis
Experts emphasize that whether a particular program is lawful depends on how it operates in practice. Broad statements about “DEI” as a category do not substitute for examining whether employees are actually being treated differently because of protected traits.
D. Potential Chilling Effects
Some commentators suggest the Paxton opinion may have a broader political purpose. Advisory opinions can influence public institutions and workplace culture even before any court rules on the advisory opinion’s legal accuracy.
Bottom Line: What Is “DEI”?
Employees should understand that DEI does not mean that protection from discrimination is gone. The anti-discrimination protections under federal and Texas law remain in place regardless of shifting policy debates over DEI.
The opinion issued by Ken Paxton takes an expansive view of the limits of DEI programming under constitutional and statutory law, but multiple legal experts argue that courts – not advisory opinions – ultimately determine whether workplace practices violate the law.
If you have questions about how changing DEI policies may affect your rights in the workplace, at Gardner Employment Law we can help you understand your options.