Are Florida laws that give racial preferences, use race-based classifications, or impose racial quotas unconstitutional?

Plain-English summary

Florida Attorney General James Uthmeier issued a self-initiated opinion concluding that dozens of Florida statutes that require or authorize state agencies to take race into account — including affirmative action plans, minority contracting goals, and racial-composition requirements for boards and councils — are presumptively unconstitutional. The AG announced his office "will not defend or enforce any of these discriminatory provisions."

The opinion's core argument: under the U.S. Supreme Court's 2023 decision in Students for Fair Admissions v. Harvard (SFFA), any state action that classifies people by race must survive strict scrutiny — meaning it must be justified by a "compelling governmental interest" and be "narrowly tailored." The Court has identified only two compelling interests sufficient: (1) remediating specific, identified instances of past unconstitutional discrimination and (2) avoiding imminent risks like prison race riots. Florida's statutes don't satisfy either standard.

The opinion then walks through three categories of Florida law:

1. Race-based classifications — e.g., § 110.112's mandate that state agencies adopt affirmative action plans with race-based hiring goals.
2. Race-based preferences in government contracting — e.g., § 287.09451's spending goals that earmark percentages of construction, architectural, commodity, and service contracts for "black Americans," "Hispanic-Americans," "Asian-Americans," "Native Americans," and "American women."
3. Race-based quotas — e.g., § 1004.435's requirement that at least four members of the Florida Cancer Control and Research Advisory Council be minorities.

The opinion includes an extensive appendix listing dozens of similar provisions across state agencies (AHCA, Commerce, DBPR, DEP, DFS, DHSMV, DMS, DOE, DOH, FCHR, Gaming, Judiciary, Lottery, OIR, Space Florida, State University System, Transportation, and Workforce Development).

Important context: This opinion is the AG's legal position. It is not a court ruling. The statutes remain on the books unless and until the legislature repeals them or a court strikes them down. The opinion's main practical effect is on enforcement and defense by the AG's office.

What this means for you

If you are a state agency head with an existing affirmative action plan

The AG's office has signaled it will not defend the constitutionality of § 110.112 or related affirmative-action provisions in court. Practically:

• Existing affirmative action plans remain technically required by statute until the legislature acts.
• A challenge to your plan likely will not be defended by the AG.
• Coordinate with your agency's general counsel and the Governor's office on whether to modify, suspend, or continue plans pending guidance.
• Any race-based hiring goals are at heightened legal risk; consider race-neutral alternatives the AG opinion identifies (geographic residence, socioeconomic status).

If you are a state contracting officer

Section 287.09451's spending goals (e.g., 4% for black Americans on construction contracts) sit at the center of the AG's analysis. Practical steps:

• Continue to follow agency policy unless directed otherwise — these are still enacted statutes.
• Expect litigation challenges to existing minority set-aside programs.
• If you participate in awarding contracts based on minority status, document the race-neutral alternatives you considered.
• Be aware the AG's office may not defend the program if challenged.

If you are a minority business enterprise (MBE) certified for state contracts

Your certification and existing contracts remain valid. But:

• Future programs that depend on race-based eligibility face significant legal headwinds.
• The AG opinion specifically targets § 287.09451 (the source of MBE spending goals) and the related framework in §§ 287.0943–287.0947.
• Programs based on disadvantage other than race (size, geography, socioeconomic status, veteran status) likely remain on solid footing.
• Watch for legislative action that may repeal or restructure the MBE program.

If you sit on a board or council with racial-composition requirements

Examples named in the opinion include the Florida Cancer Control and Research Advisory Council (§ 1004.435), the Florida Sports Foundation (§ 288.1229), the Florida Tourism Industry Marketing Corporation (§ 288.776), and Judicial Nominating Commissions (§§ 26.021, 43.291). The AG's view is that explicit racial quotas or diversity requirements for board appointments are presumptively unconstitutional. The appointing authorities (Governor, agency heads) may receive guidance to disregard these criteria.

If you are a civil rights or constitutional law attorney

This opinion is a significant litigation roadmap and a public commitment. Key features for your practice:

• The AG concedes that race-based state action is permissible only for two narrow compelling interests and lists those interests.
• The opinion treats SFFA as binding outside the educational context, citing Florida Supreme Court and federal court applications.
• The appendix functions as a target list of statutes likely to face challenge.
• The opinion does not address race-neutral programs that incidentally benefit minority communities (e.g., low-income outreach), and explicitly endorses race-neutral alternatives.

If you are a Florida legislator

The AG has effectively asked you to act. The opinion catalogs dozens of statutes — across nearly every state agency — that the AG won't defend. To preserve any policy goals around economic opportunity for historically disadvantaged communities, race-neutral alternatives (income-based, geographic, veteran status, small-business size) are the path the AG opinion endorses.

If you are a private contractor or vendor doing business with Florida

Existing contracts are not affected by this opinion. Future bids may proceed under different rules if the legislature responds. Watch for changes to:
- Solicitation language (removal of MBE requirements)
- Subcontracting expectations
- Reporting requirements regarding minority participation

Common questions

Q: Does this opinion change Florida law immediately?
A: No. AG opinions are persuasive, not binding. The statutes catalogued in the opinion remain on the books. The opinion signals that the AG's office will not defend them in court if challenged. Practical change requires legislative repeal or judicial invalidation.

Q: What is "strict scrutiny" and why does it matter here?
A: Strict scrutiny is the most demanding constitutional review standard. To survive, a government action must (1) further a "compelling governmental interest" and (2) be "narrowly tailored" to that interest. The U.S. Supreme Court has identified only two compelling interests for race-based action: remediating specific, documented past unconstitutional discrimination and avoiding imminent safety risks (like prison race riots). The AG's opinion concludes Florida's statutes don't satisfy either prong.

Q: Doesn't SFFA only apply to college admissions?
A: The AG opinion argues no — SFFA's strict-scrutiny framework "applies equally to race-based state action occurring in any context — whether it be in government contracting, business, healthcare, appointments, or other areas." It cites the Florida Supreme Court and federal courts that have applied SFFA outside education. There is, however, ongoing legal debate about SFFA's reach.

Q: What about race-neutral programs that help minority communities?
A: The opinion endorses race-neutral alternatives — programs based on geographic residence, socioeconomic status, or other factors that don't classify by race. Income-based scholarships, small-business assistance based on revenue, and outreach to economically depressed regions are not within the opinion's target.

Q: Are existing contracts and certifications void?
A: No. The opinion does not purport to invalidate existing contracts or MBE certifications. It addresses going-forward enforcement and defense.

Q: What happens if a state agency continues to enforce one of these statutes and a contractor sues?
A: The AG's office has signaled it will not defend the statute. The agency would need to retain outside counsel, find another defender, or potentially comply with a settlement or injunction.

Q: Does this affect federal contracting requirements?
A: No. This opinion addresses Florida law only. Federal disadvantaged business enterprise (DBE) programs are governed by separate federal regulations and are subject to their own constitutional analysis.

Background and statutory framework

The opinion cites the Equal Protection Clause of the Fourteenth Amendment ("nor shall any State … deny to any person within its jurisdiction the equal protection of the laws") and Article I, § 2 of Florida's Constitution (residents "are equal before the law" and may not be "deprived of any right because of race, religion, national origin, or physical disability").

The U.S. Supreme Court's 2023 decision in SFFA v. Harvard invalidated Harvard's and UNC's race-conscious admissions under strict scrutiny. The Court held that "any exception to the Constitution's demand for equal protection must survive a daunting two-step examination known … as 'strict scrutiny,'" and identified only two compelling interests sufficient: remedying specific past unconstitutional discrimination and avoiding imminent safety risks like prison race riots. The Court further held that race-based action must be limited in duration and must follow consideration of race-neutral alternatives.

Earlier doctrine established the framework: City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), struck down a city's 30% minority subcontracting set-aside, requiring a "strong basis in evidence" of past discrimination. Bakke invalidated reserved seats in medical school admissions.

The AG opinion's appendix lists dozens of Florida statutes potentially affected, spanning state employment, contracting, education scholarships, healthcare advisory boards, and various sector-specific programs.

Citations and references

Statutes (selected from the appendix):
- § 110.112, Fla. Stat. (State affirmative action)
- § 287.09451, Fla. Stat. (Office of Supplier Diversity; minority spending goals)
- § 1004.435, Fla. Stat. (Florida Cancer Control and Research Advisory Council)
- Florida Constitution, Article I, § 2

Cases:
- Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, 600 U.S. 181 (2023)
- City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989)
- Regents of University of California v. Bakke, 438 U.S. 265 (1978)
- Plessy v. Ferguson, 163 U.S. 537 (1896) (Harlan, J., dissenting — "Our constitution is color-blind")

Original opinion text

January 19, 2026

Racial discrimination is wrong. It is also unconstitutional. Yet Florida maintains several laws on its books that promote and require discrimination on its face. Therefore, I requested, and I am now giving, an official opinion in writing on a question of law relating to my official duties. As Florida's chief legal officer, the constitutionality of laws that seek to mandate discrimination based on race relates to my official duties as Attorney General.

The question of law presented here is: Are Florida laws that mandate discrimination based on race by giving preferences to certain racial groups, using race-based classifications, or employing racial quotas, constitutional? In short, the answer is no. Any laws requiring race-based state action are presumptively unconstitutional under the Fourteenth Amendment's Equal Protection Clause and Article I, section 2, of Florida's Constitution.

I. Constitutional Framework for Race-Based State Action

The Equal Protection Clause of the Fourteenth Amendment provides that "[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws." Article I, section 2 of Florida's Constitution similarly guarantees that all residents of Florida "are equal before the law" and prohibits any person from being "deprived of any right because of race, religion, national origin, or physical disability." "The central purpose of the Equal Protection Clause of the Fourteenth Amendment is the prevention of official conduct discriminating on the basis of race." Our country and our Constitution are therefore committed to "treat[ing] citizens as individuals, not as simply components of a racial, religious, sexual, or national class."

For government officials, the path forward is simple: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." The Supreme Court recently reaffirmed as much in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (SFFA), 600 U.S. 181 (2023). There, the Supreme Court invalidated Harvard College's and the University of North Carolina's race-based admissions procedures because they violated the Equal Protection Clause and Title VI of the federal Civil Rights Act. In doing so, the Court explained that such racial preferences are "by their very nature odious to a free people whose institutions are founded upon the doctrine of equality." The Court further explained that "[a]ny exception to the Constitution's demand for equal protection must survive a daunting two-step examination known . . . as 'strict scrutiny.'"

Strict scrutiny requires that any race-based state action be: (1) "used to 'further compelling governmental interests'" and (2) "'narrowly tailored'—meaning 'necessary'—to achieve that interest." The Supreme Court has identified only two compelling interests that permit race-based state action: (1) "remediating specific, identified instances of past discrimination that violated the Constitution or a statute" and (2) "avoiding imminent and serious risks to human safety in prisons, such as a race riot." These constitutional justifications are narrow and may not be extended lightly.

Narrow tailoring also requires race-based state action to be limited in duration because "all governmental use of race must have a logical end point." Finally, race-based state action cannot be undertaken—and can never be narrowly tailored—if race-neutral alternatives have not been considered before a state resorts to utilizing race. Putting this all together, the "moral imperative of racial neutrality" ensured by the Fourteenth Amendment demands that racial classifications are permitted only "as a last resort."

These principles are "universal in [their] application." SFFA's reasoning and strict scrutiny analysis applies equally to race-based state action occurring in any context—whether it be in government contracting, business, healthcare, appointments, or other areas. Indeed, the Florida Supreme Court recently applied SFFA outside of the educational context, as have several federal courts. Courts are therefore clear that honoring and enforcing the Fourteenth Amendment's promise to root out all forms of racial discrimination must be uniform throughout contexts and circumstances. After more than a century, it appears that American jurisprudence has finally caught up with Justice John Marshall Harlan's dissent in Plessy:

Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The 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.

II. Florida Laws That Discriminate Based on Race

Despite the principles discussed above, Florida still has numerous race-based discrimination laws on its books. These discriminatory laws generally come in the form of race-based classifications, preferences, or quotas. But as the Supreme Court directed in SFFA, "[e]liminating racial discrimination means eliminating all of it." Accordingly, for the reasons explained below, Florida laws that mandate race-based discrimination violate the U.S. and Florida Constitutions. Consistent with the Fourteenth Amendment, the Florida Constitution, and my oath of office, my studied opinion is that these laws are unconstitutional.

A. Race-Based Classifications

Florida law currently employs a system of race-based classifications that seeks to compel state agencies and other entities to discriminate based on race. None of these laws withstands strict scrutiny. First, these laws do not further a compelling governmental interest because none of these laws identifies any of the limited, recognized constitutional justifications for race-based classifications—namely remedying specific instances of past discrimination or avoiding imminent and serious risks to human safety. These laws further fail strict scrutiny because none are limited in duration and because they preclude race-neutral alternatives.

One of the most egregious examples of race-based discrimination is section 110.112, Florida Statutes, which mandates state-wide participation in "programs of affirmative and positive action." Under section 110.112(2), the head of every executive agency must "develop and implement an affirmative action plan" which includes goals for race-based hires. Heads of agencies must also establish "annual goals for ensuring full utilization of groups underrepresented in the agency's workforce, including women, minorities, and individuals who have a disability, as compared to the relevant labor market." To implement section 110.112, the Department of Management Services further promulgated detailed requirements for the content of each affirmative action plan: one such requirement is the listing of an organizational profile depicting the agency's organizational structure and "demographic information for all supervisors and employees within each unit and ... a total employee count … by race or ethnicity." The affirmative action plan must also describe the agency's auditing procedure used to measure and determine the agency's progress toward meeting its goals and requires each agency to report race-based metrics, ostensibly as evidence of progress in meeting numeric goals outlined in each agency's plan.

Neither section 110.112 nor Rule 60L-40.002 would survive strict scrutiny. First, compliance with the statute or the Rule would not achieve a compelling public interest because the policy does not address either of the constitutionally recognized race-based justifications. And neither section 110.112 nor Rule 60L-40.002 are narrowly tailored because they are not limited in duration and disregard other potential means of achieving diversity in a workforce through race-neutral alternatives like geographic residence or socioeconomic status.

In sum, Florida law contains numerous race-based classifications that seek to compel state agencies and other entities to discriminate based on race. Because these laws compel discriminatory race-based state action and fail strict scrutiny, these and any other similar Florida laws are unconstitutional.

B. Race-Based Preferences in Government Contracting

Like the race-based classifications, Florida law also contains a variety of discriminatory provisions for government contracting. Because these provisions are simply another form of race-based state action, these government contracting laws are subject to the same strict scrutiny review discussed in SFFA. In City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), the Supreme Court provided additional instruction on the issue of discriminatory contracting provisions. There, the Court struck down a city's plan requiring contractors awarded city construction contracts to subcontract at least 30% of the dollar amount of their contracts to minority businesses, stating that an amorphous claim of past discrimination made by the city could not justify such quotas. Instead, the Court noted that the Constitution requires a "strong basis in evidence" for any race-based remedial action.

Like the race-based contracting plan in Croson, Florida's discriminatory contracting provisions earmark certain opportunities for minority contractors without providing any "strong basis in evidence" to support this race-based action. For example, section 287.09451, Florida Statutes, provides "spending goal[s]" based on race for state contracts:

• For construction contracts: 4 percent for black Americans, 6 percent for Hispanic-Americans, and 11 percent for American women.
• For architectural and engineering contracts: 9 percent for Hispanic-Americans, 1 percent for Asian-Americans, and 15 percent for American women.
• For commodities: 2 percent for black Americans, 4 percent for Hispanic-Americans, 0.5 percent for Asian-Americans, 0.5 percent for Native Americans, and 17 percent for American women.
• For contractual services: 6 percent for black Americans, 7 percent for Hispanic-Americans, 1 percent for Asian-Americans, 0.5 percent for Native Americans, and 36 percent for American women.

As justification, the Legislature simply pointed to "a systematic pattern of past and continuing racial discrimination against minority business enterprises and a disparity in the availability and use of minority business enterprises in the state procurement system." This hat-tip to the racial lingo du jour falls woefully short of evidencing "specific, identified instances of past discrimination." This and other provisions fail to satisfy strict scrutiny under SFFA because they are not tied to a compelling governmental interest, are not limited in duration, and do not appear to have considered any race-neutral alternatives. Accordingly, any Florida law that seeks to compel race-based discriminatory provisions through government contracting is unconstitutional.

C. Race-Based Quotas

Finally, Florida law contains various explicit and implicit quota requirements for minority representation on different boards, councils, and other similar entities. Like the other forms of race-based state action, race-based quotas are subject to strict scrutiny. The Supreme Court has addressed race-based quotas in the past and held that such quotas cannot satisfy strict scrutiny review.

Specifically, in Regents of University of California v. Bakke, the Supreme Court reviewed an admissions policy that reserved 16 out of 100 seats in a medical school class for members of certain minority groups. Under this racial spoils system, non-minorities were ineligible for the reserved minority seats, while minorities were eligible for both the reserved minority seats and the remaining 84 unreserved seats. The Court struck down the policy because it violated the Fourteenth Amendment. And the Court has reaffirmed Bakke time and again.

Like the quotas at issue in Bakke, Florida's explicit quota provisions reserve a proportional share of opportunities for minorities alone. For example, at least four members of the Florida Cancer Control and Research Advisory Council must be minorities. Those statutes mention no remedial justifications for the discriminatory provisions. These and other similar quotas fail to comply with the Equal Protection Clause. They are tied to no compelling interests, are unlimited in duration, and have not considered any race-neutral alternatives. Accordingly, all race-based quota requirements in Florida law are unconstitutional.

III. Conclusion

Any Florida law that seeks to mandate discrimination based on race by giving preferences to certain racial groups, using race-based classifications, or by employing racial quotas is unconstitutional. The Supreme Court has spoken directly and clearly on this issue: "Eliminating racial discrimination means eliminating all of it." As Attorney General, I and my office must honor the U.S. and Florida Constitutions' guarantee of equal protection under the law. Because enforcing and obeying these discriminatory laws would violate those bedrock legal guarantees, those laws are unconstitutional. "The 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." My office, therefore, will not defend or enforce any of these discriminatory provisions.

Sincerely,

James Uthmeier
Attorney General

Appendix (selected — full appendix in original PDF)

The opinion's appendix lists statutes the AG identifies as containing race-based classifications, preferences, or quotas. Selected entries:

• AHCA § 395.807 — family practice retention advisory committee minority recruitment program
• AHCA § 409.901 — defines "minority physician network"
• AHCA § 409.920 — includes minority physician networks in managed care plan definition
• AHCA § 641.217 — requires AHCA contractors to submit minority provider recruitment plans
• Commerce § 20.60 — Department of Commerce Secretary must promote minority businesses
• Commerce §§ 288.702–288.706 — Florida Small and Minority Business Assistance Act
• Commerce § 288.7102 — Black Business Loan Program
• Commerce § 288.1167 — 15% set-aside for sports franchise food/beverage concessions
• DBPR § 473.3065 — Clay Ford Scholarship Program for minority CPAs
• DMS § 110.112 — state affirmative action policy
• DMS § 287.09451 — Office of Supplier Diversity and racial spending goals
• DOE § 1001.216 — Council on the Social Status of Black Men and Boys
• DOE § 1004.42 — FSU College of Medicine minority recruitment
• DOH § 20.43 — Office of Minority Health and Health Equity
• DOH § 1004.435 — minority membership requirement on Florida Cancer Control and Research Advisory Council
• FCHR § 760.80 — minority representation on boards, commissions, councils, and committees
• Judiciary § 25.382 — Supreme Court written goals for recruitment of minorities
• Judiciary § 26.021 — JNCs must consider racial and ethnic factors
• Judiciary § 43.291 — Governor must consider racial and ethnic diversity in JNC appointments
• State University System § 1009.60 — Minority Teacher Education Scholars Program
• State University System § 1009.605 — Florida Fund for Minority Teachers
• State University System § 1009.72 — Jose Marti Scholarship Challenge Grant Program for Hispanic Americans

The full appendix in the original opinion catalogues additional provisions across DEP, DFS, DHSMV, EOG, Elder Affairs, Gaming, Lottery, OIR, Space Florida, Transportation, and Workforce Development.