Federal Judge Rules Race-Based Portion of Houston Program Unconstitutional

U.S. District Judge David Hittner cited a 2023 Supreme Court affirmative action precedent in his municipal program ruling.

A judge's gavel, in this file photo. Andrew Kelly/Reuters

A federal judge on Tuesday permanently barred the city of Houston from enforcing the race-based parts of a program that includes numerical goals for awarding public contracts to minority-owned businesses, ruling that doing so is in violation of the equal protection clause of the 14th Amendment.

U.S. District Judge David Hittner described his decision as the first to extend the U.S. Supreme Court’s 2023 ruling against race-conscious college admissions to municipal public contracting programs. He found Houston could not justify treating businesses differently due to the race of their owners.

“The public interest favors a permanent injunction because there is no public interest in permitting the government to continue enforcing an unconstitutional race-based policy,” Hittner wrote in his findings of fact and conclusions of law.

Landscape Consultants of Texas Inc. and Metropolitan Landscape Management Inc., two Spring-based landscaping firms owned by Jerry and Theresa Thompson, a white married couple, filed the original lawsuit in September 2023. They were represented by Pacific Legal Foundation. In their filing, they argued Houston’s Minority, Women, and Small Business Enterprise Program, as well as a similar policy at the Midtown Management District, precluded them from opportunities due to their race.

“Equal protection means equal protection for everyone, not preferential treatment for some,” Erin Wilcox, a lawyer for the plaintiffs at the Pacific Legal Foundation, said in a statement. “The Fourteenth Amendment guarantees every business owner the same shot at a government contract, regardless of race.”

Houston City Attorney Arturo Michel said the city may appeal.

“The city will abide by the court’s decision regarding existing contracts and recently awarded contracts pending any further court order,” Michel said.

The program requires the city to establish annual goals for contracts going to minority-owned businesses. It also allows departments to impose contract-specific goals.

Non-minority firms were often required to subcontract a percentage of work to certified minority-owned businesses even if they had no operational need to subcontract. Minority-owned firms could fulfill the requirement with their own workers.

Hittner held a four-day bench trial in December 2025, ultimately concluding that under the Supreme Court’s framework in Students for Fair Admissions Inc. v. Harvard, government may use race only to remedy specific, identified past discrimination.

“Houston is required to identify concrete, particularized discrimination and demonstrate that its use of race is necessary to remedy that discrimination,” Hittner said. “Houston has not done so.”

Hittner noted the city’s own expert witness testified that a 2024 disparity study commissioned by the city identified no specific instances of intentional discrimination by Houston officials or employees in recent years. The city had not disciplined anyone for contracting discrimination in the previous five years and found no particular constitutional or statutory violations.

Hittner limited the injunction to the race-conscious guidelines. Preferences based on gender or small-business status were not struck down. The order also applies to the Midtown Management District’s parallel policy.

Reuters contributed to this report.