In an exhaustive legal opinion released on Monday’s Martin Luther King Jr. Day holiday, Attorney General Ken Paxton criticized decades-old and long-moot guidance issued by John Cornyn, his opponent in the March 3 Republican primary for U.S. Senate, and claimed a litany of Texas initiatives meant to offset historical discrimination against people of color and women are unconstitutional.
Legal experts quickly pushed back on Paxton’s claim in a press release that the opinion is binding, arguing that the attorney general cannot unilaterally overturn state laws by declaring them unconstitutional. And Cornyn, the state’s senior U.S. senator who served as state attorney general from 1999 to 2002, bashed the 74-page opinion, accusing Paxton of using the Office of the Attorney General as a political weapon in their closely watched GOP primary contest.
“Was this bogus ‘opinion’ an illegal, in-kind contribution to his campaign? Inquiring minds (and the Federal Election Commission) want to know,” Cornyn posted on social media. “Abusing his government office for personal and political gain. AGAIN”
Monday’s opinion comes just six weeks before the primary election, in which Paxton is running to oust Cornyn, whom he has attacked as being insufficiently aligned with President Donald Trump.
The opinion and its accompanying press release both target Cornyn by name, citing a 1999 opinion he issued while serving as attorney general. In that previous opinion, Cornyn declined to opine on the use of race in financial aid decisions by public universities and withdrew an earlier attorney general’s opinion on the matter because the question was pending before the Fifth Circuit Court of Appeals. In a separate case, the U.S. Supreme Court in 2023 effectively ended race-based affirmative action in college admissions.
“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,’” Cornyn said on social media. “This is yet another waste of time and taxpayer dollars by the TX AG, showboating for attention. By the way, SCOTUS upheld the logic that led to my retraction, and the case in question eventually and rightfully found that race cannot be used in admissions.”
After criticizing Cornyn, Paxton’ spends the bulk of the new opinion purporting to “dismantle” decades of what he calls diversity, equity and inclusion frameworks, “memorialized in over 100 woke state laws,” in schools and state and local governments, according to a press release from his office.
The opinion also argues that private companies in Texas engaging in “woke DEI practices,” such as offering sex or race-based employee resource groups and considering sex and race in hiring, were exposing themselves to liability under 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 said in a statement.
“It’s imperative that all private-sector employers, schools and state and local government entities — based on this legal opinion — immediately abolish any DEI, affirmative action, or unconstitutional discrimination programs under their authority,” Paxton added. “We must return to the basic principles of equal opportunity for all.”
In many ways, Monday’s opinion continues state Republicans’ war on DEI as Paxton seeks the Senate GOP nomination. Republican lawmakers have banned DEI in K-12 public schools and DEI offices and trainings at public universities. Gov. Greg Abbott told state agencies to stop considering diversity in hiring in 2023.
In 2021, Martin Luther King Jr.’s oldest son told The Texas Tribune that Texas Republicans were taking his father’s words out of context to defend legislation the late civil rights icon likely would have opposed. His comments at the time were about new limits on how racism and current events are taught in public schools.
“Yes, we should judge people by the content of the character and not the color of their skin — but that is when we have a true, just, humane society where there are no biases, where there is no racism, where there is no discrimination,” Martin Luther King III said in 2021. “Unfortunately, all of these things still exist.”
Monday’s legal opinion also raises questions about the legal implications for state agencies and private companies in Texas.
Legal experts argued that the opinion was not binding as Paxton claimed, and predicted that state agencies that abolished certain programs on the basis of the opinion would quickly find themselves in court.
“He can’t just declare that this is unconstitutional,” said Andy Cates, a Texas ethics attorney. “He can declare that he thinks it’s unconstitutional, but that doesn’t mean that it is.”
Still, Cates noted that the opinion would likely have a chilling effect on state agencies and contractors looking to do business with the state, even if it was not legally enforceable.
The attorney general office’s website notes that its opinions “cannot create new provisions in the law or correct unintended, undesirable effects of the law,” and does not “in any way ‘rule’ on what the law should say.”
The office’s website also notes that the attorney general “generally does not write attorney general opinions on issues that are involved in pending litigation.” The American Civil Liberties Union is currently suing Texas over Senate Bill 12, a law passed by the Legislature last year banning DEI in K-12 public schools.
While the attorney general’s office typically issues opinions in response to specific requests, Monday’s opinion did not appear to have a precipitating request.
“The bottom line is that attorney general opinions are not binding,” said Randall Erben, an adjunct professor at University of Texas at Austin School of Law, adding that the fact that Paxton’s office did not appear to receive a request for the opinion was “unusual in and of itself.”
Paxton’s office Monday did not immediately answer whether the new opinion was prompted by a specific request.
In the opinion, Paxton wrote that consideration of race and sex in state hiring and appointments — such as by the Texas Department of Transportation or to the Texas Facilities Program — scholarship programs, economic development funding and more is unconstitutional, arguing that state laws compelling some agencies to pursue workforce diversity goals were unlawful.
In the private sector, Paxton argued that diversity initiatives — including demographic goals in hiring, early career programs like internships intended to build diverse pipelines, and company affinity groups and mentorship programs — opened companies up to liability under the Civil Rights Act and the Texas Commission on Human Rights Act.
Paxton wrote that as the state’s chief law officer, he was “duty bound to clarify the current state of the law and right the wrongs of prior administrations.”
“Any initiative that predicates employment opportunities on membership in a particular race or sex-based group necessarily triggers liability under frameworks like Title VII and the TCHRA,” the opinion states.
Paxton’s opinion also argues that Texas’ decades-old historically underutilized business programs create “a pervasive, discriminatory regime” in violation of both the U.S. and state constitutions “through indefensible fixation on sex and race.”
Texas’ HUB programs were designed to give additional exposure to businesses owned by women, minorities and disabled veterans seeking state contracts. The Texas Comptroller of Public Accounts’ office froze the program in October and limited it to veterans.
Cates said the opinion, and its timing, appeared to be a “campaign tactic.”
“It’s right on the line of being an abuse of the office for campaign purposes,” he said. “We’re weeks out from the primary, and he’s daggering his opponent and overruling his opinions on a self-initiated opinion.”
In 2023, the Republican-controlled Texas House impeached Paxton on accusations that he accepted bribes and abused the authority of his office. After a trial, the Texas Senate acquitted him. The U.S. Justice Department under the Biden administration declined to prosecute Paxton over corruption allegations. In 2024, state prosecutors dropped felony securities fraud charges against Paxton after he agreed to community service and paying restitution to avoid a trial.
This year, Martin Luther King Jr. Day falls on Jan. 19, which Texas’ state government recognizes as Confederate Heroes Day. Democratic lawmakers have tried for years to eliminate the state holiday commemorating Confederate Civil War veterans but have gained little traction in the GOP-controlled Legislature.
Disclosure: Texas Comptroller of Public Accounts has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.
This article first appeared on The Texas Tribune.