Commonwealth of Kentucky
Office of the Attorney General
Daniel Cameron
Attorney General
Capitol Building, Suite 118
700 Capital Avenue
Frankfort, Kentucky 40601
(502) 696-5300
Fax: (502) 564-2894
August 30, 2023
OAG 23-06
Subject:
Whether the Governor’s Minority Management Trainee Program
is lawful.
Requested by:
Senator Stephen Meredith
Kentucky Senate, District 5
Syllabus:
The
Governor’s
Minority
Management
Trainee
Program
discriminates on the basis of race and therefore violates both the
Civil Rights Act of 1964 and the Kentucky Civil Rights Act.
Opinion of the Attorney General
“Eliminating racial discrimination means eliminating all of it.”
—Students for Fair Admissions, Inc. v. President & Fellows of
Harvard Coll., 143 S. Ct. 2141, 2161 (2023).
Kentucky’s Personnel Cabinet currently operates a training program called the
Governor’s Minority Management Trainee Program (GMMTP). The mission of the
GMMTP is to “develop exceptional [state government] leaders by providing
opportunities to continually learn, improve performance and excel in their
department/agency.”1 The Personnel Cabinet is funded by taxpayer dollars.2
But the program is not open to all state employees. Instead, it has two basic
eligibility requirements. First, an individual must be an Executive Branch “merit
employee”—i.e., a non-political appointee—with at least one year of state government
experience, a grade 12 job classification or higher, and a recommendation from the
1
Governor’s Minority Management Trainee Program, Kentucky Personnel Cabinet,
https://perma.cc/7J93-AJZX.
2
See About Us, KENTUCKY PERSONNEL CABINET, https://perma.cc/7RB7-KGNK.Opinion of the Attorney General 23-06
August 30, 2023
Page 2
employee’s Cabinet Secretary or agency head. Second, that employee must “[b]e an
ethnic minority as defined below: Hispanic or Latino, Black or African American,
Asian, Native Hawaiian or Other Pacific Islander, American Indian or Alaska Native,
[or] Two or More Races.”3 Because of this second requirement, many Kentuckians are
barred from participation in the program.
The Supreme Court’s 2023 decision in Students for Fair Admissions, Inc. v.
President & Fellows of Harvard Coll., 143 S. Ct. 2141 (2023), lays bare that the second
eligibility requirement violates both the Civil Rights Act of 1964 and the Kentucky
Civil Rights Act.
I.
The Supreme Court’s Decision in Students for Fair Admissions
The United States Supreme Court recently held that two prominent
universities engaged in unlawful racial discrimination by considering race as a factor
in their admissions processes. See Students for Fair Admissions, 143 S. Ct. at 2166.
The Court rejected the universities’ argument that their race-based decision-making
was justified by vague and unmeasurable interests related to diversity.4 Id. at 2166–
68. The Court also emphasized that using an individual’s race as a negative factor
violates the law. See id. at 2168–70.
In so holding, the Court determined that the various diversity-related interests
the universities asserted were “commendable goals” but “not sufficiently coherent” to
pass constitutional muster. Id. at 2166. The Court went on to reject the universities’
argument that there is “an inherent benefit in race qua race—in race for race’s
sake[,]” as based on the demeaning assumption that all minority students think alike.
Id. at 2170; see also id. at 2189 (Thomas, J., concurring) (“[T]wo white students, one
from rural Appalachia and one from a wealthy San Francisco suburb, may well have
more diverse outlooks . . . than two students from Manhattan’s Upper East Side [who
attended] its most elite schools, one of whom is white and the other of whom is
black.”).
3
Supra note 1.
4
More specifically, Harvard College asserted interests in “training future leaders in the public and
private sectors; preparing graduates to adapt to an increasingly pluralistic society; better educating
its students through diversity; and producing new knowledge stemming from diverse outlooks.”
Students for Fair Admissions, 143 S. Ct. at 2166 (cleaned up). Similarly, the University of North
Carolina asserted interests in “promoting the robust exchange of ideas; broadening and refining
understanding; fostering innovation and problem-solving; preparing engaged and productive citizens
and leaders; and enhancing appreciation, respect, and empathy, cross-racial understanding, and
breaking down stereotypes.” Id. (cleaned up). The Court held that while these interests are “plainly
worthy,” they are “inescapably imponderable.” Id. at 2167.Opinion of the Attorney General 23-06
August 30, 2023
Page 3
The principle that emerges from the Court’s decision is clear: “[e]liminating
racial discrimination means eliminating all of it.” Id. at 2161. And under state and
federal statutes, there is no exception for race-based programs like the GMMTP.
II.
The Civil Rights Act of 1964
The Civil Rights Act of 1964 was a landmark law aimed at ending
discrimination on the basis of race. The law includes two complementary titles: Title
VI and Title VII. Title VI prohibits discrimination on the basis of race, color, or
national origin in any program or activity that receives federal funds or other
financial assistance from the federal government. See 42 U.S.C. § 2000d et seq. Title
VII makes it illegal to refuse to hire someone based on the “individual’s race, color,
religion, sex, or national origin[.]” 42 U.S.C. § 2000e-2(d). Title VII also prohibits
discrimination “against any individual because of his race, color, religion, sex, or
national origin in admission to, or employment in, any program established to provide
. . . training.” Id.
The GMMTP violates Title VI. There is no question that the GMMTP is a race-
based program funded by taxpayer money.5 Indeed, the GMMTP is a state program,
the title of the program mentions race, and race is the GMMTP’s foundational
eligibility requirement. As Justice Gorsuch explained in Students for Fair
Admissions, “[u]nder Title VI, it is never permissible ‘to say “yes” to one person . . .
but to say “no” to another person’ even in part ‘because of the color of his skin.’” Id. at
2221 (quoting Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 418 (1978) (Stevens,
J., concurring)). And “never” means never. The prohibition on race-based
discrimination applies regardless of motivation or intention. See id. at 2209.
It is likewise obvious that the GMMTP is unlawful under Title VII. There is no
denying that the Commonwealth is a covered employer and that the GMMTP is a
training program covered by Title VII. See 42 U.S.C. § 2000e(b). Nor can the
Commonwealth ignore that Title VII specifically prohibits discrimination “against
any individual because of his race, color, religion, sex, or national origin in admission
to, or employment in, any program established to provide . . . training. 42 U.S.C. §
2000e-2(d) (emphasis added). By limiting admission to the training program to
certain races, the GMMTP clearly violates Title VII.
“[B]oth Title VI and Title VII codify a categorical rule of individual equality,
without regard to race.” Students for Fair Admissions, 143 S. Ct. at 2209 (Gorsuch,
J., concurring) (citation omitted). There is no exception to this categorical rule. State
agencies and programs, including the GMMTP, must comply with both titles.
5
Like the universities in Students for Fair Admissions, the Commonwealth “elect[s] to receive
millions of dollars of federal assistance annually.” 143 S. Ct. at 2208 (Gorsuch, J., concurring).Opinion of the Attorney General 23-06
August 30, 2023
Page 4
III.
The Kentucky Civil Rights Act
The Kentucky Civil Rights Act (KCRA) was enacted in 1966 to implement in
the Commonwealth “the policies embodied in the [f]ederal Civil Rights Act of 1964.”
KRS 344.020(1)(a); see also Jefferson Cnty. v. Zaring, 91 S.W.3d 583, 586 (Ky. 2002).
The KCRA makes it unlawful for an employer to “limit, segregate, or classify
employees . . . [or] to deprive an individual of employment opportunities . . . because
of the individual’s race, color, . . . [or] national origin . . . .” KRS 344.040(1)(b).
Kentucky courts have interpreted KRS 344.040 as prohibiting “any direct or indirect
act or practice of exclusion, distinction, restriction, segregation, limitation, refusal,
denial, or any other act or practice of differentiation or preference in the treatment of
a person or persons . . . .” See Brooks v. Lexington-Fayette Urb. Cnty. Housing Auth.,
132 S.W.3d 790, 801 (Ky. 2004), as modified on denial of reh’g (May 20, 2004) (quoting
KRS 344.010(5) (emphasis added)).
The KCRA is “virtually identical” to the federal Civil Rights Act of 1964.
Louisville & Jefferson Cnty. Metro. Sewer Dist. v. Hill, 607 S.W.3d 549, 555 (Ky.
2020); see also The Bd. of Regents of N. Ky. Univ. v. Weickgenannt, 485 S.W.3d 299,
305 (Ky. 2016) (“In 1966, the General Assembly passed the KCRA to place the
Commonwealth on par with the protections guaranteed in the [f]ederal Civil Rights
Act of 1964.”). For this reason, Kentucky courts “interpret the civil rights provision of
KRS Chapter 344 . . . consistent with the analogous federal anti-discrimination
statutes.” Charalambakis v. Asbury Univ., 488 S.W.3d 568, 575 (Ky. 2016). Therefore,
just as Title VI and Title VII are considered categorical prohibitions of racial
discrimination under federal law, so too is the KCRA considered to categorically
prohibit racial discrimination under Kentucky law. Indeed, the KCRA safeguards “all
individuals within the state from discrimination.” KRS 344.020(1)(b) (emphasis
added). No race or color is favored or disfavored in the eyes of Kentucky law.
Because the GMMTP premises participation on the basis of race, it necessarily
treats people differently because of their race. Moreover, the nature of the program—
training employees to help them advance and perform well in the Executive Branch—
means that those who cannot participate are at a disadvantage. See Students for Fair
Admissions, 143 S. Ct. at 2169 (“A benefit provided to some applicants but not to
others necessarily advantages the former group at the expense of the latter.”). Such
action is unlawful under the KCRA. See KRS 344.040(1)(b).Opinion of the Attorney General 23-06
August 30, 2023
Page 5
IV.
Conclusion
All forms of racial discrimination are detestable. However well-meaning the
authors of raced-based programs may be, experience has shown us that “meeting
social racism with government-imposed racism is . . . self-defeating, resulting in a
never-ending cycle of victimization.” Students for Fair Admissions, 143 S. Ct. at 2205
(Thomas, J., concurring). Accordingly, the Commonwealth has both a moral and
statutory obligation to prevent racial discrimination. But we cannot meet this
obligation while tolerating programs within state government itself—like the
Governor’s Minority Management Trainee Program—that discriminate on the basis
of race. This office therefore finds that the Governor’s program as currently
constituted violates both the Civil Rights Act of 1964 and the Kentucky Civil Rights
Act.
Daniel Cameron
Attorney General