Could a Kentucky parent qualify as a minority school council member when the child did not?

Plain-English summary

Oldham County Schools asked how to identify an “other ethnic group underrepresented in the school” and whether a parent's eligibility for a minority seat on a school council depended on the child. The Kentucky Attorney General said in 2012 that parent and child status were assessed independently. A parent could qualify through the parent's own race or ethnicity even if the child did not.

For an ethnic group outside the categories expressly listed in KRS 160.345(1)(a), the AG looked to whether the group was distinctive and whether its council representation was fair and reasonable relative to the relevant student population. The opinion did not set a numerical cutoff. It said courts, rather than the AG in advance, would resolve the factual question of a substantial group and fair representation.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

Parents seeking a council seat

The opinion said a parent's eligibility for the minority member role came from that person's own status under KRS 160.345(1)(a). It rejected deriving the parent's status from the child, noting that the statute said “minority member” rather than “minority parent” or “parent of a minority.”

Schools evaluating representation

The AG borrowed guidance from cases about jury-pool representation to interpret the statute's open-ended ethnic-group phrase. It described a group with definite composition and a community of interest, then asked whether its representation on the council was fair and reasonable against the student population. The opinion considered a parent's claim of Moravian ethnicity but did not decide in advance what percentage or representation would suffice.

Common questions

Did the child have to be a minority for a parent to fill the minority council seat?

No. The AG said the parent's own race or ethnicity controlled that parent's eligibility under the 2012 statute.

Did the opinion set a minimum percentage for an underrepresented ethnic group?

No. It declined to specify what was a substantial percentage or fair and reasonable representation and left those factual determinations to courts.

Did the AG automatically qualify a parent who identified as Moravian?

No. It said Moravians had a definite composition and community of interest, but qualification as underrepresented depended on the group's share of the relevant population and its council representation. The AG expressed doubt that the condition was met on the facts presented.

When did the school council need a minority member under the quoted statute?

The opinion quoted KRS 160.345(2)(b)(2) as requiring at least one when minority students were 8% or more of enrollment measured on the preceding October 1.

Background and statutory framework

The request arose under KRS 160.345's definitions and school-council composition rule. The AG compared the statute's named minority categories with its “other ethnic group underrepresented in the school” phrase. It used jury fair-cross-section decisions for guidance on distinctiveness and representation, while declining to decide a percentage threshold for schools. It separately read the member-eligibility provision as referring to the parent, not the child's identity.

Citations and references

• KRS 160.345(1)(a): minority definition, including other underrepresented ethnic groups.
• KRS 160.345(2)(b)(2): minority council member requirement discussed by the AG.

Source

• Landing page: https://kdla.access.preservica.com/uncategorized/IO_e5dd6422-baf7-4e11-814b-1d0e8a784380/
• Original PDF: https://kdla.access.preservica.com/download/file/IO_e5dd6422-baf7-4e11-814b-1d0e8a784380

Original opinion text

OAG 12-011
July 20, 2012
Subject:

How to determine what constitutes an underrepresented ethnic group in a school, and eligibility for minority council member on a school council

Requested by:

Anne Courtney Coorssen
General Counsel, Oldham County Schools

Written by:

Matt James
Assistant Attorney General

Syllabus:

An underrepresented ethnic group in a school is an
ethnic group whose representation is not fair and
reasonable in proportion to the number of such students in the school. Eligibility to serve as the minority member on a school council is determined by the parent’s status and not the child’s.

Statutes construed:

KRS 160.345

Opinion of the Attorney General
Anne Courtney Coorssen, General Counsel for Oldham County
Schools, has requested an opinion from this office on the following
questions: (1) how is eligibility under “other ethnic group underrepresented in the school” in KRS 160.345(1)(a) determined, and (2) how is the minority status of a parent determined for the purposes of KRS 160.345(2)(b)(2)? We advise that “other ethnic group underrepresented in the school” should be interpreted as an ethnic group whose representation in the school council is not fair and reasonable in rela-

OAG 12-011
Page 2

tion to the number of such students in the school, and that the minority status of a parent is determined independently of the minority status of the child. KRS 160.345(2)(b)(2) provides that “school councils in schools having eight percent (8%) or more minority students enrolled, as determined by the enrollment on the preceding October 1, shall have at least one (1) minority member.” KRS 160.345(1)(a) provides that “’minority’ means American Indian; Alaskan native; African-American; Hispanic, including persons of Mexican, Puerto Rican, Cuban, and Central or South American origin; Pacific islander; or other ethnic group underrepresented in the school.” A document on the Kentucky Department of Education’s website specifies that “if persons declare themselves a minority, pursuant to the definition in KRS 160.345, then they should be considered so for the purpose of fulfilling the requirements of minority council member.”1 In the facts giving rise to this opinion, a parent has admitted that his race is White, but argues that under KRS 160.345(1)(a), eligibility for minority membership on the school council is determined by ethnic group, which is distinct from race, and identifies his ethnicity as Moravian, an ethnic group originating in a region of the current Czech Republic. Regarding what constitutes an underrepresented minority for the purposes of KRS 160.345(1)(a), while there are no cases determining what qualifies as an underrepresented ethnic group in that context, determination of minority underrepresentation has a lengthy history in other contexts, such as college admissions,2 teacher employment,3 and the fair cross-section requirement for jury venire selection. 4 It is usually determined by calculating the percentage of the group in question in the alleged discriminatory context to the percentage of the group in the community at large. 5 Of these, the cases involving the fair cross-section requirement provide the clearest standard for determin1

Minority Council Elections, http://www.education.ky.gov/nr/rdonlyres/06b80770-fd4b-

4001-8787-d058837ff565/0/minoritycouncilelections.pdf (last visited July 11, 2012). 2

Gratz v. Bollinger, 539 U.S. 244 (2003).

3

Freeman v. Pitts, 503 U.S. 467 (1992).

4

Duren v. Missouri, 439 U.S. 357 (1979).

OAG 12-011
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ing both what constitutes an identifiable ethnic group, and when that
ethnic group is underrepresented.
In Duren v. Missouri, 439 U.S. 357 (1979), the Supreme Court formulated a three-part test for determining when a group had been underrepresented in violation of the fair cross-section requirement: In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process. The use of “underrepresentation” in part three of the test by implication defines underrepresentation as part two of the test, “that the representation of this group… is not fair and reasonable in relation to the number of such persons in the community.” In Ford v. Seabold, 841 F.2d 677 (6th Cir. 1988), the Sixth Circuit adopted another three-part test for determining what constitutes a “distinctive” group for Duren purposes: (1) that the group is defined and limited by some factor (i.e., that the group has a definite composition such as by race or sex); (2) that a common… thread or basic similarity in attitude, ideas, or experience runs through the group; and (3) that there is a community of interest among members of the group such that the group's interests cannot be adequately represented if the group is excluded from the jury selection process Id. at 681-82. In Com. v. McFerron, 680 S.W.2d 924 (1984), the Kentucky Supreme Court, interpreting Duren, further specified that the group “must comprise a substantial percentage of the county popula5

See, e.g. Freeman, supra note 2, at 481-82; Berghuis v. Smith, 130 S.Ct. 1382, 1385

(2010).

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Page 4

tion.” Id. at 928. Summarizing the relevant parts of these tests, a group
is underrepresented if the representation of the group is not fair and
reasonable in relation to the number of such persons in the community.
The group must be a distinctive group that has a definite composition
and a community of interest among members.
We advise that the tests for determining underrepresentation in
the context of the fair-cross section requirement provide the best guidance for the interpretation of “other ethnic group underrepresented in the school” in KRS 160.345(1)(a). In order to qualify its members as minorities under KRS 160.345(1)(a), the ethnic group must have a definite composition and community of interest among members. In order to be underrepresented under KRS 160.345(1)(a), the representation of the ethnic group in the school council must not be fair and reasonable in relation to the number of such persons in the school district. 6 As applied to the particular facts giving rise to this opinion, Moravians would certainly constitute an ethnic group with a definite composition and community of interest. If an ethnic group such as Moravians constitute a substantial percentage of the school district population such that it would not be fair and reasonable if they were not represented on the school council, then such an ethnic group could be considered an underrepresented minority for the purposes of KRS 160.345(1)(a), although we doubt that is the case here. Regarding whether minority status is determined by the race or ethnicity of the child or the parent, we advise that the minority status of each should be determined independently by the parent’s or child’s own race or ethnicity. If the race of the child were determined solely by the race of the parent, this would deprive children of interracial marriages, or children adopted by parents of a different race, of their heritage. Similarly, a parent may be a member of a minority and qualify as a minority council member under KRS 160.345(2)(b)(2) even if the child does not qualify as a minority. The Legislature defined “parent” in KRS 160.345(1)(d), but used “minority member” in KRS.160.345(2)(b) (2) and not “minority parent” or “parent of a minority.” If the legisla6

We decline to advise in advance what constitutes a substantial percentage, or a fair

and reasonable representation, and would leave such determinations to the courts.

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ture had wanted the minority status of the minority member to be determined by the minority status of the child, it would have so specified. For the purposes of KRS 160.345(2)(b)(2), a person is eligible to be a minority member if the person qualifies as a minority under KRS 160.345(1)(a). In sum, we advise that “other ethnic group underrepresented in the school” in KRS 160.345(1)(a) should be interpreted to mean an ethnic group whose representation the school council is not fair and reasonable in relation to the number of such students in the school. The race or ethnicity of parents and children should be determined independently, and the eligibility of a parent to serve as a minority member on a school council under KRS 160.345(2)(b)(2) is determined by whether the parent qualifies as a minority under KRS 160.345(1)(a).

JACK CONWAY
ATTORNEY GENERAL

Matt James
Assistant Attorney General