March 14, 2024
OAG 24-1
Subject:
Whether the Kentucky Council for Postsecondary Education
may lawfully define “underrepresented minority” in race-
exclusive terms.
Requested by:
Jennifer Decker,
Kentucky State Representative
Written by:
Lindsey Keiser,
Assistant Attorney General
Syllabus:
Defining “underrepresented minority” in race-exclusive terms
discriminates on the basis of race and, therefore, violates both
the Equal Protection Clause and the Civil Rights Act of 1964.
Opinion of the Attorney General
There is an “inherent folly” in “trying to derive equality from inequality.”
Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S.
181, 203 (2023). Yet, that is what Kentucky public postsecondary institutions are
being asked to accomplish under the current statutory and regulatory system that
mandates they demonstrate progress toward equal opportunity by meeting race-
based enrollment and graduation targets.
Funding and Programming Dependent on Adhering to Race-Based Policies
Under the current statutory and regulatory system in Kentucky, funding for
public postsecondary institutions and approval for programming is dependent on the
institutions demonstrating progress toward exclusively race-based policies.
The General Assembly has established a funding scheme for Kentucky public
universities and the Kentucky Community and Technical College System (“KCTCS”).
KRS 164.092. Under that scheme, thirty-five percent of total resources shall be
distributed based on whether the institution can demonstrate success outcomes
according to the factors laid out in the statute. KRS 164.092(6), (8). One of theseOpinion of the Attorney General 24-1
March 14, 2024
Page 2
2
factors is how many Bachelor’s degrees or credentials are earned by
“underrepresented minority students.” Id. at (6)(a), (8)(a). Additionally, the approval
of any new program at a public postsecondary institution will be postponed “unless
the institution has met its equal educational opportunity goals.” KRS 164.020(19).
The Council on Postsecondary Education (“CPE”) is tasked with establishing
policies to make recommendations for postsecondary institution appropriations, KRS
164.020(9), and with establishing the equal educational opportunity goals that public
postsecondary institutions must meet, KRS 164.020(19). CPE promulgated
13 KAR 2:060 to establish the equal opportunity goals. The regulation requires all
state-supported postsecondary education institutions to develop a diversity plan that
must be submitted to the CPE for approval. The 2016 Kentucky Postsecondary
Education Policy for Diversity, Equity, and Inclusion (“2016 Policy”) is incorporated
by reference into the regulation, 13 KAR 2:060 § 5(1)(a), and serves as the current1
policy. As such, the 2016 Policy “shall provide the framework and guidelines for
developing” the public postsecondary institutions’ diversity plans. 13 KAR 2:060 § 2.
The 2016 Policy defines “underrepresented minority” as “Students who
categorized themselves as a) Hispanic or Latino, b) American Indian or Alaska
Native, c) Black or African American, d) Native Hawaiian or Other Pacific Islander,
or e) Two or more Races.”2 CPE uses this exclusively race-based definition to
determine the progress of the state-supported postsecondary institutions. CPE’s 2023
review of the progress made by Kentucky public postsecondary institutions explained,
“[c]ampuses negotiate targets with CPE staff for the percentage of first-year students
who are Black/African American and Hispanic; they also may establish targets for
students who are classified as two or more races, American Indian or Alaskan Native,
Native Hawaiian or other Pacific Islander, Asian, or for international students.”3 As
a result, reportedly, all Kentucky public universities consider race in the admission
process.4
1
Despite at least one news article suggesting the policy was revised in 2018, a staff member at CPE
confirmed that the 2016 version is the current policy.
2
Kentucky Public Postsecondary Education Policy for Diversity, Equity and Inclusion, KENTUCKY
COUNCIL
ON
POSTSECONDARY
EDUCATION
(2016),
available
at
https://cpe.ky.gov/policies/academicaffairs/diversitypolicy.pdf [hereinafter “2016 Policy”].
3
Best Practices in Diversity, Equity and Inclusion – A Review of Progress Made by Kentucky Public
Postsecondary Institutions, KENTUCKY COUNCIL ON POSTSECONDARY EDUCATION (July 2023) at 26,
available at https://cpe.ky.gov/data/reports/2023DEIAssessment.pdf.
4
There is no reason to believe KCTCS institutions are not doing the same. The CPE is monitoring
the progress of all postsecondary institutions (universities and KCTCS) on their consideration of race
in the admission process. See id. at 9 (explaining that a “key performance indicator[]” is the
“percentage of total undergraduate enrollment that is African American or Black, Hispanic or Latino,
and part of an underrepresented minority population. URM students also include American Indian or
Alaskan natives, native Hawaiian or other Pacific Islanders, and students identifying as two or more
races”). CPE’s review breaks out the races into Black, Hispanic, and all other “underrepresented
minorities.” See id. at 12–24.Opinion of the Attorney General 24-1
March 14, 2024
Page 3
3
The Supreme Court’s Decision in Students for Fair Admissions
The U.S. Supreme Court’s 2023 decision in Students for Fair Admissions
makes clear that the CPE defining “underrepresented minority” exclusively in terms
of race, and accordingly requiring that Kentucky’s state-funded postsecondary
institutions set targets for how many students of a particular race they will enroll,
retain, and graduate, violates the U.S. Constitution and the Civil Rights Act.
In Students for Fair Admissions, the Court explained that “no State has any
authority under the equal-protection clause of the Fourteenth Amendment to use race
as a factor in affording educational opportunities among its citizens.” 600 U.S. at 204
(citation omitted). Accordingly, the Court held that two prominent universities had
engaged in unlawful racial discrimination by considering race as a factor in their
admissions processes. See id. at 213–14. The Court rejected 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 220–21; see also id. at 254 (Thomas, J., concurring) (“Two 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.”). Indeed, the Court has “time and again forcefully rejected the notion that
government actors may intentionally allocate preference to those ‘who may have little
in common with one another but the color of their skin.’” Id. at 220 (quoting Shaw v.
Reno, 509 U.S. 630, 647 (1993)). “The entire point of the Equal Protection Clause is
that treating someone differently because of their skin color is not like treating them
differently because they are from a city or from a suburb, or because they play the
violin poorly or well.” Id.
And while the Supreme Court has recognized that “remediating specific,
identified instances of past discrimination that violated the Constitution or a statute”
is one of two compelling interests5 that may permit resorting “to race-based
government action,” id. at 207, that is not the interest motivating the current race-
based targets in Kentucky. More than 40 years ago, the U.S. Department of
Education’s Office for Civil Rights (OCR) found that “the Commonwealth of
Kentucky, in violation of Title VI of the Civil Rights Act of 1964, ha[d] failed to
eliminate the vestiges of its former de jure racially dual system of public higher
education.”6 To respond, in 1982, the Council on Higher Education (“CHE”) developed
5
The other is “avoiding imminent and serious risks to human safety in prisons, such as a race riot.”
Students for Fair Admissions, 600 U.S. at 207.
6
2016 Policy, supra note 2 at “Background”; see also Final Report on the Commonwealth of
Kentucky’s Implementation of the Partnership Agreement between the Commonwealth of Kentucky and
the U.S. Department of Education Office for Civil Rights (Jan. 2, 2009) at 2, available atOpinion of the Attorney General 24-1
March 14, 2024
Page 4
4
The Commonwealth of Kentucky Higher Education Desegregation Plan. As explained
in the 2016 Policy: “For the next 25 plus years, CHE and CPE focused the
Desegregation Plan and its subsequent revisions on increasing the enrollment and
success of African American students, increasing the number of African-American
employees on campus, and enhancing Kentucky State University, with later versions
also focusing on improving campus climate.”7 As a result, in 2009, the OCR released
Kentucky from the remedial planning process.8
Thus, even if exclusively race-based enrollment and graduation quotas may
have been permissible during the remediation period that was undertaken decades
ago, they are certainly no longer justified because the OCR has long since determined
that Kentucky made sufficient progress to eliminate the segregated systems.9
Accordingly, there is no recognized compelling interest that can be asserted to justify
the CPE’s definition of underrepresented minority in race-exclusive terms and
corresponding demand that Kentucky’s public postsecondary institutions adhere to
that definition to set race-based targets in order to receive funding and have new
programs approved. Therefore, the CPE has violated the Equal Protection Clause.10
Similarly, Title VI of the Civil Rights Act of 1964 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.11 “Under 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.’” Students for Fair Admissions, 600 U.S. at 310 (Gorsuch, J., concurring)
(quoting Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 418 (1978) (Stevens, J.,
concurring in part and dissenting in part)). And, as this Office said when opining on
a similar question, “never” means never. OAG 23-06. The prohibition on race-based
discrimination under Title VI of the Civil Rights Act applies regardless of motivation
or intention. See Students for Fair Admissions, 600 U.S. at 289 (Gorsuch, J.,
concurring). Accordingly, the CPE’s race-exclusive definition of underrepresented
https://cpe.ky.gov/documents/eeo-historicaldocs/compliance1964civilrigh… [hereinafter “Final
Report”].
7 2016 Policy, supra note 2 at “Background.”
8
Id.; Final Report, supra note 6 at 1 (“Through [OCR’s] monitoring activities . . . , OCR has
determined that the Commonwealth has met its commitments under the Agreement and is closing its
monitoring of the Agreement as of the date of this report.”).
9
See id. at 32.
10 That CPE urges postsecondary institutions to adopt “[r]ace-conscious enrollment and recruitment
policies that adhere to any and all applicable constitutional limitations,” 2016 Policy, supra note 2 at
“Focus Areas,” does not alter this conclusion. CPE’s race-exclusive definition of “underrepresented
minority” and demand for race-based targets clearly puts the postsecondary institutions in a position
where they must violate the constitutional limitations as explained in Students for Fair Admissions.
11 All of Kentucky’s public universities receive federal funding.Opinion of the Attorney General 24-1
March 14, 2024
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5
minority—which demands public postsecondary institutions consider the race of
students—violates Title VI of the Civil Rights Act.12
This is not to say that the Commonwealth does not have a legitimate interest
in promoting diversity of perspective, experience, and opportunity within its colleges
and universities. Moreover, there are appropriate and lawful ways to do so without
resorting to the “sordid business” of “divvying us up by race.” League of United Latin
Am. Citizens v. Perry, 548 U.S. 399, 511 (2006) (Roberts, C.J., concurring in part and
dissenting in part). For example, postsecondary institutions may consider factors
such as an applicant’s socioeconomic background, whether an applicant is a first-
generation college student, and whether an applicant is from underrepresented
geographic areas. So long as “the student [is] treated based on his or her experiences
as an individual,” Students for Fair Admissions, 600 U.S. at 231, these are all tools
legally available to promote meaningful diversity while broadening access to
educational advancement.13
Conclusion
Equality will not arise out of inequality. Kentucky public postsecondary
institutions will not achieve equality by being forced to treat students of different
races differently. The CPE must no longer define “underrepresented minority” in
race-exclusive terms.14
Russell Coleman
ATTORNEY GENERAL
Lindsey R. Keiser
Assistant Attorney General
12 Kentucky’s Civil Rights Act demands that state agencies have a Title VI implementation plan and
submit annual Title VI compliance reports. KRS 344.015. Therefore, a violation of Title VI of the
federal Civil Rights Act is also a violation of the Kentucky Civil Rights Act.
13 Of course, these or other factors cannot be used in a way that is intentionally a proxy for race.
See Students for Fair Admissions, 600 U.S. at 230 (“‘[W]hat cannot be done directly cannot be done
indirectly. The Constitution deals with substance, not shadows,’ and the prohibition against racial
discrimination is ‘levelled at the thing, not the name.’” (quoting Cummings v. Missouri, 71 U.S. (4
Wall.) 277, 325 (1867)).
14 Indeed, there is nothing in KRS 164.092 that indicates the term was meant to be limited to racial
minorities—and certainly not to only the races chosen by the CPE.