Recent opinions by the Texas attorney general (AG) and the Florida AG assert that their states’ race- and sex-conscious laws and policies are unconstitutional. The opinions align with President Donald Trump’s 2025 Executive Orders 14151 and 14173 (collectively, the executive orders), which seek to end gender- and race-based contracting practices and dismantle diversity, equity, and inclusion (DEI) initiatives. Like the executive orders, the AG opinions target DEI-related policies affecting state contracting, appointments, and employment; the Texas AG also specifically asserts that private employers’ applicable DEI policies (as described within the opinion) violate Texas and federal law, thereby targeting both the private and public sectors.  Although not legally binding on courts, such opinions provide a guide for the likely contours of future enforcement action by these state attorneys general.

The scope and reasoning of the AG opinions are briefly summarized below.

Florida AG Opinion No. AGO 2026-02 (Florida AG opinion)

The Florida AG opinion concludes that any law requiring race-based state action is unconstitutional under the Equal Protection Clause of the Fourteenth Amendment and comparable provisions of the Florida Constitution. An appendix to the opinion identifies a nonexhaustive list of Florida statutes the Florida AG characterizes as requiring race-based decision making, and the opinion reaches the following conclusions:

Race-Based Employment and Hiring Mandates. Laws and administrative rules requiring agencies to implement affirmative action hiring plans, set diversity targets, or conduct recruitment based on race — rather than race-neutral criteria — are deemed unconstitutional.

Minority Contracting Preferences and Set-Aside Programs. Statutes that require or encourage government contracts to be awarded based on racial or ethnic classifications, including mandatory percentage quotas or contracting advantages for minority-owned businesses, are deemed unconstitutional.

Mandatory Minority Representation Requirements. Mandates requiring boards, councils, commissions, and advisory groups to include members from specified racial or ethnic groups are viewed as impermissible racial classifications lacking narrowly tailored justification.

Minority Business Development and Financial Incentive Programs. Programs providing grants, loans, investment incentives, or certification benefits specifically for minority-owned businesses — including state-funded loan programs, minority business certification programs, and targeted development initiatives — are identified as unconstitutional.

Education, Scholarship, and Training Programs Restricted by Race. Education and workforce development programs designed to increase participation of particular racial or ethnic groups, such as minority-exclusive scholarships, advisory councils, outreach initiatives, and recruitment programs, are deemed unconstitutional when eligibility or participation is based on race.

Public Policy and Reporting Requirements Based on Racial Metrics. Statutes requiring agencies to track, report on, or implement policies specifically designed to increase minority participation in employment, contracting, licensing, or program participation are likewise characterized as unconstitutional.

Texas Attorney General Opinion No. KP-0505 (Texas AG opinion)

The Texas AG Opinion reaches similar constitutional conclusions and extends its analysis to private employers.

DEI Programs in Government. The Texas AG concludes that DEI programs in Texas state and local government that use race or sex as decision-making criteria are unconstitutional under the Equal Protection Clause of the Fourteenth Amendment and the Texas Constitution’s Equal Rights Amendment. This reasoning applies to policies involving employment, contracting, education, and the distribution of public benefits when race or sex is a factor.

Historically Underutilized Business (HUB) programs and Disadvantaged Business Enterprise (DBE) Programs. According to the Texas AG opinion, HUB and DBE programs establish racial, ethnic, and sex-based classifications by prioritizing access to public funds and contracts based on demographic characteristics, and therefore violate constitutional equal protection guarantees. By contrast, programs that provide benefits to veterans or veteran-owned businesses are described as constitutionally permissible because they rely on service-based, rather than race- or sex-based, criteria.

Representation Requirements on Boards and Commissions. The Texas AG opinion analyzes statutes and policies that require or encourage racial or sex-based representation on state boards, commissions, and committees, and concludes that such requirements rely on impermissible demographic classifications and, thus, are unconstitutional. The Texas AG opinion states that government may not assume that individuals represent particular viewpoints or interests based on race or sex. 

Implications for Private Employers. The Texas AG opinion goes beyond the executive orders and the Florida AG opinion by questioning the legality of private employers’ DEI practices, asserting that such practices may trigger liability under:

• Title VII of the Civil Rights Act of 1964;
• The Texas Commission on Human Rights Act;
• Section 1981 of the Civil Rights Act of 1866; and
• State and federal securities laws, if corporate disclosures or commitments regarding DEI are misleading.

Conclusion

Employers operating in or contracting with Texas and Florida should familiarize themselves with the Texas and Florida AG opinions to assess whether their DEI programs, hiring practices, contracting policies, and public disclosures may be implicated. In particular, businesses should understand how these opinions interpret race- and sex-conscious policies and the potential exposure they create under state and federal law to help mitigate the risk of state AG investigations or enforcement actions.

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Troutman Pepper Locke State Attorneys General Team

	Ashley Taylor – Co-leader and Firm Vice Chair Ashley is co-leader of the firm’s nationally ranked State Attorneys General practice, vice chair of the firm, and a partner in its Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group. He helps his clients navigate the complexities involved with multistate attorneys general investigations and enforcement actions, federal agency actions, and accompanying litigation.
	Clay Friedman – Co-leader Clay co-leads the firm’s State Attorneys General practice and is nationally ranked by Chambers USA for AG Government Relations and in Best Lawyers for Advertising Law. He has dedicated his entire career to state attorney general and federal work, serving for nearly a decade in a senior role and more than 25+ years in private practice. Clay focuses his practice on helping industry-leading companies mitigate the risks associated with state and federal regulatory investigations and associated litigation.
	Chris Carlson Chris advises clients on regulatory, civil, and criminal investigations and litigation. With a background as an assistant attorney general, he provides practical guidance to clients with matters involving state attorneys general and federal regulatory agencies.
	Lauren Fincher Lauren has vast experience handling state attorneys general investigations, navigating complex regulatory compliance matters, and providing strategic counsel in enforcement actions across various industries. She helps clients manage high-stakes regulatory matters and guides them through complex legal landscapes.
	Stephen Piepgrass Stephen leads the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group, representing clients in single and multistate enforcement actions, including inquiries and investigations, as well as litigation involving state attorneys general and other state and federal governmental enforcement bodies. He has significant experience handling actions with federal agencies, including the CFPB and FTC, as well as single plaintiff and class action litigation for clients in highly regulated sectors such as financial services, health care, pharmaceutical, and education.
	Michael Yaghi Mike handles high-profile state attorneys general, FTC, and CFPB investigations by advising clients through these complex government inquiries. He assists clients through the entire life cycle of investigations, from regulatory enforcement through formal litigation.
	Matthew J. Berns Drawing on his experience in senior leadership roles in the New Jersey Attorney General’s and Governor’s Offices and as a trial attorney for the U.S. Department of Justice, Matt provides an insider’s perspective when guiding clients through complex government investigations, litigation, and other actions.
	Samuel E. “Gene” Fishel Gene is a former regulator with two decades of experience who has overseen state privacy and cybersecurity regulation enforcement, led national, multistate attorneys general privacy investigations, and prosecuted computer crimes at the state and federal levels. He has served at the forefront of state attorney general and federal enforcement, and utilizes this experience to proficiently represent client interests.
	Jeff Johnson Jeff helps clients navigate complex regulatory and litigation challenges with local, state, and federal authorities. His clients benefit from his decade of broad litigation experience, understanding of emerging state and federal regulatory issues, and strong relationships with attorneys general across the U.S. In addition to handling cases from trial through state or federal appeals, Jeff serves as amicus counsel in advancing legal rules to support his clients’ vital interests.
	Jay Myers Jay assists clients in heavily regulated industries, including health care, energy, insurance, emerging industries, and data privacy. He provides both regulatory legal advice and government relations strategies. Jay’s past and current clients include Fortune 10 companies, startups, nonprofits, industry associations, and advocacy groups. Recognizing that state government matters are often complex and multifaceted, he utilizes regulatory guidance, government advocacy, or both in tandem to deliver tailored solutions for each client’s unique needs.
	Zoe Schloss Zoe represents clients in litigation and government investigations. As former deputy attorney general for the Delaware Department of Justice, she is an experienced litigator who understands the enforcement priorities that impact her clients. Zoe works with individuals and corporate entities in highly regulated industries, including financial services, health care, and energy.
	Jessica Birdsong Jessica is an associate in the firm’s Regulatory Investigations, Strategy + Enforcement Practice Group. She received her J.D. from the University of Richmond School of Law, magna cum laude, where she served as associate articles editor of the Journal of Law & Technology.
	Nick Gouverneur Nick is an associate in the firm’s Regulatory Investigations, Strategy + Enforcement Practice Group. He received his J.D. from the University of Illinois College of Law, where he served as a member of the Journal of Law, Technology & Policy.
	Troy Homesley Troy is an accomplished litigator who has represented and defended clients across a wide range of complex, high-stakes disputes at both the trial and appellate levels. He has represented technology companies, business executives, law firms, investment funds, high-ranking federal officials, international non-profits, and asylum seekers. Troy draws on his broad litigation experience to advise clients before litigation arises, while claims are pending or threatened, and leading up to and through trial and appeals.
	Namrata Kang Namrata (Nam) is an associate in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group, based in the Washington, D.C. office. She routinely advises clients on a wide variety of state and federal regulatory matters, with a particular emphasis on state consumer protection laws relating to consumer financial services and marketing and advertising. Nam’s experience transcends multiple industries, including financial services, telecommunications, media, and sports betting.
	Michael Lafleur Michael is an associate in the firm’s Regulatory Investigations, Strategy, and Enforcement Practice Group. Based out of the firm’s Boston office, Mike has deep experience in litigation, investigations, and other regulatory matters involving state-level regulators and state attorneys general.
	Philip Nickerson Philip represents clients in sectors such as financial, tech, real estate, and energy in a range of litigation matters. He is experienced in matters involving trade secrets, government investigations, commercial contracts, construction and product defect.
	Lane Page Lane specializes in federal and state regulatory investigations and complex civil litigation. He focuses on representing financial institutions and other businesses, with a particular emphasis on consumer protection and fair lending issues.
	Dascher Pasco Dascher is an attorney within the Regulatory Investigations, Strategy, and Enforcement practice, based in the Richmond office. She joined our firm after working in personal injury and medical malpractice for a Virginia trial law firm. Dascher brings varied legal experience to the firm with strong litigation and regulatory strategy capabilities.
	Kyara Rivera Rivera Kyara is an associate in the firm’s Regulatory Investigations, Strategy + Enforcement Practice Group. She received her J.D. from the University of Richmond School of Law, cum laude, where she served as publications and online editor of the Public Interest Law Review.
	Timothy Shyu Timothy is an associate in the firm’s Regulatory Investigations, Strategy + Enforcement Practice Group.
	Trey Smith Trey focuses his practice on representing and advising regulated utilities before state public utility commissions. He routinely helps clients obtain certificates of public convenience and necessity for transmission infrastructure. In this role, Trey works with his clients’ subject-matter experts to manage administrative proceedings, including by preparing initial filings; responding to discovery requests; drafting rebuttal testimony; and litigating any disputed issues.
	Daniel Waltz Dan helps clients navigate all aspects highly regulated relationships between industry participants and federal, state and local governments. Whether engaging with regulators, negotiating transactions or representing clients in the courtroom, he delivers solutions that help his clients achieve their strategic goals.
	Cole White Cole is a member of the firm’s Regulatory Investigations, Strategy and Enforcement (RISE) group. He has a decade of experience working in the attorney general community, having joined the firm from the Wyoming Office of the Attorney General, where he was assistant attorney general.
	Stephanie Kozol Stephanie is Troutman Pepper Locke’s senior government relations manager in the state attorneys general department.