Can a Kentucky state agency define 'underrepresented minority' purely by race and tie university funding to race-based enrollment targets?

Plain-English summary

Kentucky funds its public universities and the community college system partly on performance: under KRS 164.092, thirty-five percent of the money is distributed based on success outcomes, and one of those outcomes is how many degrees go to "underrepresented minority students." Separately, a new program at a public college gets held up unless the institution has met its "equal educational opportunity goals" (KRS 164.020(19)). The Council on Postsecondary Education (CPE) sets those goals and, through a 2016 policy incorporated into 13 KAR 2:060, defines "underrepresented minority" purely by race (Hispanic or Latino, American Indian or Alaska Native, Black or African American, Native Hawaiian or Other Pacific Islander, or two or more races). State Representative Jennifer Decker asked whether CPE may lawfully use that race-exclusive definition.

The Attorney General said no. Reading the U.S. Supreme Court's 2023 decision in Students for Fair Admissions, the opinion concludes that tying funding and program approval to race-based enrollment and graduation targets discriminates on the basis of race and violates both the Equal Protection Clause and Title VI of the Civil Rights Act of 1964. The opinion walks through the one remaining compelling interest that can justify race-based action (remedying specific, identified past discrimination) and explains that it does not apply here: the U.S. Department of Education's Office for Civil Rights released Kentucky from its desegregation remediation process back in 2009, so the old remedial justification is gone.

The opinion is careful to say the state still has a legitimate interest in diversity of perspective and experience, and that colleges may pursue it through race-neutral tools, considering an applicant's socioeconomic background, first-generation status, or underrepresented geographic area, as long as those factors are not used as a stand-in for race.

What this means for you

State education officials and CPE

Based on this opinion, the Attorney General views the CPE's race-exclusive definition of "underrepresented minority" in the 2016 Policy (incorporated by reference at 13 KAR 2:060 § 5(1)(a)) as unlawful, and reads KRS 164.092 as not requiring the term to be limited to the races CPE selected. The opinion's bottom line is that CPE "must no longer define 'underrepresented minority' in race-exclusive terms."

University and community college administrators

The opinion describes public institutions as caught between a funding system that rewards race-based targets and a constitutional rule against using race. It treats race-neutral alternatives (socioeconomic status, first-generation status, geography) as lawful ways to broaden access, provided they are not a proxy for race. An administrator should read this as the AG's position, not a court order; the regulation and statute it discusses remained on the books as of the opinion.

College applicants and students

The opinion's view is that public colleges in Kentucky should not be allocating enrollment or graduation preferences based on race. It stresses, quoting the Supreme Court, that students must be "treated based on his or her experiences as an individual."

Higher education attorneys

The opinion leans heavily on Students for Fair Admissions and treats E.M. Bailey-style remediation as foreclosed because OCR closed its monitoring of Kentucky's desegregation agreement in 2009. It also notes that a Title VI violation is, by operation of KRS 344.015, also a violation of the Kentucky Civil Rights Act.

Common questions

Q: Does this opinion ban all diversity efforts at Kentucky public colleges?
A: No. The opinion targets the race-only definition and race-based targets. It expressly says the Commonwealth has a legitimate interest in diversity of perspective and experience, and lists race-neutral tools (socioeconomic background, first-generation status, geographic underrepresentation) that schools may use.

Q: Why does the Attorney General say the old desegregation justification no longer applies?
A: The opinion explains that the U.S. Department of Education's Office for Civil Rights found in 2009 that Kentucky had met its commitments and closed its monitoring of the desegregation agreement. With the remediation period over, the opinion concludes there is no longer a recognized compelling interest to justify race-based targets.

Q: Is an AG opinion the same as a court ruling striking down the regulation?
A: No. A Kentucky AG opinion is persuasive authority, not binding law. It expresses the Attorney General's legal view; it does not by itself repeal 13 KAR 2:060 or amend KRS 164.092.

Q: What can colleges still consider in admissions under this opinion?
A: Race-neutral, individualized factors: socioeconomic background, whether the applicant is a first-generation college student, and whether the applicant comes from an underrepresented geographic area, so long as those are not used as an indirect proxy for race.

Background and statutory framework

Kentucky's performance-funding model (KRS 164.092) and program-approval rule (KRS 164.020(19)) make funding and new programs depend in part on "equal educational opportunity goals" set by the CPE under KRS 164.020(9). CPE established those goals in 13 KAR 2:060 and incorporated the 2016 Kentucky Postsecondary Education Policy for Diversity, Equity, and Inclusion by reference (13 KAR 2:060 § 5(1)(a)), which supplies the race-based definition of "underrepresented minority." The opinion measures that scheme against Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181 (2023), in which the Court held that considering race in admissions is unlawful racial discrimination and that no State may use race as a factor in affording educational opportunities. It cites Shaw v. Reno, 509 U.S. 630 (1993), and Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978), for the rule against allocating benefits by skin color, and League of United Latin Am. Citizens v. Perry, 548 U.S. 399 (2006), and Cummings v. Missouri, 71 U.S. (4 Wall.) 277 (1867), for the principle that what cannot be done directly cannot be done indirectly. On the statutory side, Title VI (42 U.S.C. § 2000d et seq.) prohibits race discrimination in federally funded programs, and KRS 344.015 ties Kentucky's Civil Rights Act to Title VI compliance. The opinion also references the Office's prior opinions OAG 23-06 and OAG 09-007.

Citations and references

Statutes and regulations:
- KRS 164.092; KRS 164.092(6), (8) (performance funding; success outcomes)
- KRS 164.020(19), (9) (equal educational opportunity goals; appropriations policy)
- 13 KAR 2:060; § 5(1)(a); § 2 (diversity-plan framework, 2016 Policy incorporated)
- 42 U.S.C. § 2000d et seq. (Title VI of the Civil Rights Act of 1964)
- KRS 344.015 (Kentucky Civil Rights Act Title VI plans)

Cases:
- Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181 (2023), race in admissions is unlawful discrimination
- Shaw v. Reno, 509 U.S. 630 (1993), and Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978), prohibition on allocating preference by skin color
- League of United Latin Am. Citizens v. Perry, 548 U.S. 399 (2006), and Cummings v. Missouri, 71 U.S. (4 Wall.) 277 (1867), substance over form

Source

• Landing page: https://www.ag.ky.gov/Opinions/Pages/default.aspx
• Original PDF: https://www.ag.ky.gov/Resources/Opinions/Opinions/Opinion%20of%20the%20Attorney%20General%20%2024-01.pdf

Original opinion text

The full opinion as issued by the Office of the Kentucky Attorney General:

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 these 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 current 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." 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." As a result, reportedly, all Kentucky public universities consider race in the admission process.

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). 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 interests 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." To respond, in 1982, the Council on Higher Education ("CHE") developed 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." As a result, in 2009, the OCR released Kentucky from the remedial planning process.

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. 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.

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. "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 minority—which demands public postsecondary institutions consider the race of students—violates Title VI of the Civil Rights Act. [Footnote: 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.]

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. [Footnote: 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))).]

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.

Russell Coleman
ATTORNEY GENERAL
Lindsey R. Keiser
Assistant Attorney General