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2024 Op. Ky. Att'y Gen. 1 (2024)

handle is hein.sag/sagky0058 and id is 1 raw text is: COMMONWEALTH OF KENTUCKY OFFICE OF THE ATTORNEY GENERAL RUSSELL COLEMAN CAPITOL BUILDING, SUITE 118 ATTORNEY GENERAL 700 CAPITAL AVENUE FRANKFORT, KY 40601 (502) 696-5300 FAx: (502) 564-2894 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 An Equal Opportunity Employer M/F/D

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