Did the University of Louisville trustees meet Kentucky’s minority representation requirement in 2015?

Plain-English summary

The Kentucky Attorney General concluded in 2015 that the Governor’s University of Louisville trustee appointments fell short of the statute’s minority representation requirement. The opinion counted Cuban-American appointee Paul Diaz as a minority under the statutory definition, but said one minority among the Governor’s 17 appointees was insufficient under the population figures it used. It advised voluntary corrective action, including an effort to appoint another minority member at the next vacancy.

The opinion did not say that the Diaz appointment itself violated the law. It also found no statutory provision automatically voiding an appointment or mandating a specific remedy for a board that fell short. The AG’s numerical conclusion used the 2010 census and board composition at the time of the opinion.

Currency note

This opinion was issued in 2015. 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.

Common questions

Did the AG count a Hispanic trustee as a minority?

Yes. It relied on KRS 12.070(1), whose definition included Hispanic people, including those of Cuban origin.

Was replacing an African-American trustee with a Cuban-American trustee itself a violation?

The AG said no. It counted both as minorities, while finding the overall composition of the Governor’s appointees insufficient.

What correction did the opinion identify?

It advised the Governor to act voluntarily and, at minimum, make every effort to appoint another minority member at the next vacancy. The statute specified no automatic voiding or mandatory remedy.

Background and statutory framework

Two community leaders asked about the University of Louisville board. The AG applied KRS 164.821(5), requiring the Governor’s appointments to reflect at least the Commonwealth’s minority racial composition, and KRS 12.070(1), defining minority for state boards. It cited Galloway v. Fletcher, 241 S.W.3d 819 (Ky. Ct. App. 2007), for application of the state-board appointment statute to university governing bodies. The opinion also identified KRS 12.028 as a possible reorganization route for voluntary correction.

Citations and references

Statutes: KRS 164.821(5); KRS 12.070(1); KRS 12.028.

Case cited: Galloway v. Fletcher, 241 S.W.3d 819 (Ky. Ct. App. 2007).

Source

• Landing page: https://www.ag.ky.gov/Resources/Opinions/Pages/Opinions.aspx
• Original Word document: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG15-015.doc

Original opinion text

OAG 15-015

September 29, 2015

Subject: Whether the University of Louisville Board of Trustees is in compliance with the minority representation requirement of KRS 164.821(5)

Requested by: Rev. Clay Calloway, West Louisville Ministers Coalition

Rev. Milton Seymore, Justice Resource Center

Written by: Matt James

Syllabus: The Governor’s appointments to the University of Louisville Board are required by KRS 164.921(5) to reflect the racial composition of Kentucky. “Hispanic” counts as a minority for the purposes of appointment to state boards. The current composition of the University of Louisville Board of Trustees is not in compliance with KRS 164.821(5). The Governor should voluntarily undertake corrective action to bring the composition of the University of Louisville Board of Trustees into compliance with KRS 164.821(5), either through subsequent appointments or an executive reorganization under KRS 12.028.

Statutes construed: KRS 12.028; KRS 12.070; KRS 164.821(5)

Opinion of the Attorney General

Rev. Clay Calloway of the West Louisville Ministers Coalition and Rev. Milton Seymore of the Justice Resource Center have requested an opinion of this office on the following questions:

Whether KRS 164.821(5) requires that the Governor appoint citizen members to the University of Louisville Board of Trustees be reflective of no less than the proportional representation of the minority racial composition of the Commonwealth of Kentucky;

Whether by its own definition of race the Commonwealth of Kentucky recognizes “Hispanic or Latino” individuals as racial minorities;

Whether the Governor of the Commonwealth of Kentucky complied with KRS 164.821(5) by removing an African American racial minority from the University of Louisville Board of Trustees and appointing an identified Cuban-American to the University of Louisville Board of Trustees in lieu of other racial minorities;

Whether based upon the current U.S. Census Data and pursuant to KRS 164.821(5), the Governor is required to appoint more than one racial minority to the University of Louisville Board of Trustees or more decisively two or more racial minority members?

We advise as follows:

KRS 164.821(5) requires that the Governor’s appointments to the Board shall reflect no less than proportional representation of the minority racial composition of Kentucky;

“Hispanic” qualifies as a racial minority for the purposes of appointment to state boards;

As both Hispanics and African-Americans qualify as racial minorities for the purposes of appointments to state boards, the appointment of Paul Diaz to a position formerly held by Rev. Kevin Cosby does not contravene KRS 164.821(5); however, the composition of the Governor’s appointments to the Board currently is not in compliance with KRS 164.821(5);

Based on the current minority racial composition of Kentucky, the Governor’s appointments to the Board should contain at least two minority members.

Recently, the term of Board trustee Rev. Kevin Cosby expired, and Governor Beshear nominated Paul Diaz, a Cuban-American, to fill Rev. Cosby’s position on the Board. Rev. Cosby was the only African-American on the Board at the time his term expired. The Governor’s appointees to the Board now consist of sixteen persons who are not minorities, and Mr. Diaz. At issue is whether the composition of the Governor’s appointees to the Board is consistent with KRS 164.821(5).

KRS 164.821(1) provides that “the board shall consist of seventeen (17) members appointed by the Governor,” one member of the teaching faculty, one member of the permanent staff, and a student member. KRS 164.821(5) provides that the Governor’s appointments “shall reflect no less than proportional representation of the minority racial composition of the Commonwealth.” The racial composition of Kentucky according to the 2010 census is as follows:

White 87.8%

Black or African American 7.8%

American Indian and Alaska Native 0.2%

Asian 1.1%

Native Hawaiian and Other Pacific Islander 0.1%

Two or More Races 1.7%

Hispanic or Latino 3.1%

Although there is no definition of “minority” in KRS Chapter 164, KRS 12.070 applies to the Governor’s appointment powers generally. KRS 12.070(2) provides that “except as otherwise provided by law, the members of each administrative board or commission shall be citizens of Kentucky appointed by the Governor.” In Galloway v. Fletcher, 241 S.W.3d 819 (Ky. Ct. App. 2007), the court held that “the phrase ‘administrative boards and commissions’ in KRS 12.070(3) includes the governing bodies of the state's universities,” Id. at 823. KRS 12.070 therefore applies to the Board. KRS 12.070(1) 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 on state boards and commissions.” The definition of “minority” in KRS 12.070(1) expressly includes “Hispanic, including persons of Mexican, Puerto Rican, Cuban, and Central or South American origin.” Accordingly, “Hispanic” qualifies as a racial minority for the purposes of appointments to state boards, including state university boards of trustees. Counting Hispanics, minorities make up fourteen percent of the population of Kentucky.

Given that the racial composition of the Commonwealth is fourteen percent minorities, KRS 164.821(5) requires that approximately fourteen percent of the Governor’s appointees to the Board should be minorities. Since the Governor appoints seventeen trustees to the Board, fourteen percent of those seventeen equals 2.38. Accordingly, at least two of the Governor’s appointees to the Board should be minorities in order to comply with KRS 164.821(5), given the current minority racial composition of Kentucky.

As Mr. Diaz is of Cuban origin, he qualifies as a minority for the purposes of the minority racial composition requirement of the Board. There is therefore only one minority appointed by the Governor currently on the Board. In order to reflect the minority racial composition of Kentucky, at least two minorities should be appointed. The Governor’s appointments to the Board therefore reflect less than the minority racial composition of Kentucky, and are currently out of compliance with KRS 164.821(5).

Although KRS 164.821(5) requires that the Board reflect not less than the minority racial composition of Kentucky, it does not specify any penalties to impose or remedies to take when the Governor’s appointments to the Board do not reflect the minority racial composition of Kentucky. KRS 164.821(5) does not provide that appointments made in violation of it are void, nor does it mandate any action that must be taken to bring the distribution of the Board into compliance. In Commonwealth ex. rel Stumbo v. Fletcher, No. 07-CI-1456 (Franklin Cir. Ct. filed Sept. 12, 2007), Attorney General Stumbo filed suit against Governor Fletcher for failing to comply with KRS 164.131(2)(c), 164.321(3), and 164.821(5), alleging that the boards of the state universities had a disproportionate amount of Republican appointees. Since the remedial options of the Attorney General in such a case are quite limited, Stumbo’s lawsuit sought only a declaratory judgment that Fletcher had failed to comply with the statutes, and sought “to allow the Governor to voluntarily undertake corrective action.” (Complaint ¶ 9(D)) (emphasis added). Similarly, in this situation, we follow the example set by Attorney General Stumbo and advise that the Governor should voluntarily undertake corrective action to bring the composition of the Board into compliance with KRS 164.821(5). At a minimum, the Governor should make every effort to appoint another minority to the next vacancy on the Board.

In summary, we advise that KRS 164.821(5) requires that the Governor’s appointments to the Board shall not reflect less than the minority racial composition of Kentucky. “Hispanic” counts as a minority. Given the current minority racial composition of Kentucky, at least two of the Governor’s seventeen appointments should be minorities. As only one of the Governor’s current appointees is a minority, the composition of the Governor’s appointments to the board is currently out of compliance with KRS 164.821(5). We advise that the Governor should voluntarily undertake corrective action to bring the Board into compliance with KRS 164.821(5).

JACK CONWAY

ATTORNEY GENERAL

Matt James

Assistant Attorney General