In a sweeping legal opinion released on the Martin Luther King Jr. Day holiday, Attorney General Ken Paxton criticized established guidance from his political rival, U.S. Senator John Cornyn, asserting that various Texas initiatives aimed at addressing historical discrimination against women and people of color are unconstitutional. This opinion arrives just weeks before the March 3 Republican primary, where Paxton is campaigning against Cornyn, whom he has alleged is not sufficiently aligned with former President Donald Trump.
Legal experts quickly countered Paxton’s assertion that his opinion is binding, arguing that the Attorney General cannot unilaterally invalidate state laws by labeling them unconstitutional. Cornyn, who previously held the position of Attorney General from 1999 to 2002, condemned the 74-page document, accusing Paxton of politicizing his office in the context of their closely watched primary battle. “Was this bogus ‘opinion’ an illegal, in-kind contribution to his campaign? Inquiring minds (and the Federal Election Commission) want to know,” Cornyn remarked on social media, criticizing Paxton for allegedly misusing his government role for political advantage.
This legal opinion, released just six weeks prior to the primary election, specifically targets Cornyn’s earlier opinion from 1999, which addressed the use of race in financial aid by public universities. Cornyn’s previous stance involved retracting a prior opinion due to ongoing litigation, a move Paxton’s opinion seems to mischaracterize. In a recent Supreme Court decision, race-based affirmative action in college admissions was effectively terminated, further complicating the discussion.
In response to Paxton’s critique, Cornyn responded, “You’d think a competent Attorney General would know that what I issued more than 25 years ago was a retraction of incomplete guidance due to litigation, not an ‘opinion.’” He described Paxton’s actions as a misuse of taxpayer resources aimed at garnering attention.
Paxton’s opinion aims to dismantle what he terms as “woke” diversity, equity, and inclusion (DEI) frameworks, claiming they are entrenched in over 100 state laws affecting schools and government entities. He also asserted that private companies engaging in DEI practices, like forming employee resource groups based on race or sex, may be exposing themselves to legal liabilities under both state and federal law.
“This action to dismantle DEI in Texas helps fulfill the vision articulated by Martin Luther King, Jr. when he dreamed that his children would one day live in a nation where they were judged not by the color of their skin, but by the content of their character,” Paxton stated. He emphasized that private-sector employers and government entities should immediately abolish any DEI or affirmative action programs in light of his legal opinion, advocating for a return to equal opportunity principles.
This opinion reflects ongoing efforts by state Republicans to challenge DEI initiatives as Paxton vies for the Senate GOP nomination. Recently, Republican lawmakers have enacted bans on DEI in K-12 schools and restricted DEI offices and training at public universities. Governor Greg Abbott has instructed state agencies to cease considering diversity in hiring practices.
In 2021, Martin Luther King Jr.’s eldest son expressed concerns that Texas Republicans were misinterpreting his father’s ideals to justify legislation that he likely would have opposed. He highlighted the ongoing issues of racism and discrimination that still exist, pointing out that true judgment should be based on character rather than skin color.
Paxton’s legal opinion raises significant concerns regarding its implications for state agencies and private companies. Experts argue that while Paxton claims his opinion is binding, it will not hold up legally, and agencies that act on it risk facing litigation. “He can declare that he thinks it’s unconstitutional, but that doesn’t mean that it is,” noted Andy Cates, a Texas ethics attorney.
Despite the opinion not being legally enforceable, its chilling effect on state agencies and contractors is anticipated, as they may hesitate to engage in diversity initiatives due to potential liabilities. The Attorney General’s office has clarified that its opinions cannot create new legal provisions or address ongoing litigation, a notable point as the ACLU currently challenges the state over a law banning DEI in public schools.
Typically, the Attorney General issues opinions in response to specific requests, but this recent opinion appeared to lack such a request, raising eyebrows among legal scholars. Randall Erben, an adjunct law professor, commented on the unusual nature of this lack of a request.
In his opinion, Paxton stated that the consideration of race and sex in state hiring, as well as various scholarship and funding programs, is unconstitutional. He argued that laws requiring diversity in hiring practices are unlawful and that diversity initiatives in the private sector could lead to liability under existing civil rights laws.
Paxton further criticized Texas’ historically underutilized business programs as creating a discriminatory environment in violation of constitutional principles. These programs were originally designed to aid businesses owned by women, minorities, and disabled veterans in securing state contracts.
Cates suggested that the timing of the opinion aligns closely with Paxton’s campaign efforts, indicating a potential abuse of his office for political gain. He stated, “We’re weeks out from the primary, and he’s daggering his opponent and overruling his opinions on a self-initiated opinion.”
This year, Martin Luther King Jr. Day coincides with the state-recognized Confederate Heroes Day, a holiday that has faced criticism and calls for elimination from Democratic lawmakers, though attempts have largely stalled in the Republican-controlled Legislature.
