KY Attorney General Declares College DEI Practices Unconstitutional

Use of Underrepresented Minorities as a Metric Unconstitutional

In a recent development, Kentucky Attorney General Russell Coleman has deemed public universities’ usage of specific diversity, equity, and inclusion (DEI) policies as infringing on the U.S. Constitution and the Civil Rights Act. Spearheading his argument is the U.S. Supreme Court’s decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, a case that dismissed affirmative action last year. Coleman highlighted that the practice of using “underrepresented minorities” as a measure for ascertaining funding for state colleges is unconstitutional.

Although there’s currently no active court case in Kentucky on this subject, this opinion is significant as it indicates the legal stand of Attorney General Coleman on this matter. His viewpoint was sought after by Rep. Jennifer Decker, R- Waddy, who has advocated one of the two bills in play this season targeting DEI on higher education campuses across Kentucky.

Kentucky’s Performance-Based Funding Model

Kentucky applies a performance funding model in order to disburse state funds to public universities and colleges. This model utilises various metrics to gauge a university’s success and consequent funding, one of which includes the number of degrees accomplished by minority and low-income pupils. In the updated draft of the budget traversing the legislative session, the Senate proposed augmenting financing through this performance-based model from marginally less than $100 million per fiscal year to $200 million.

The Definition of “Underrepresented Minority”

The term “underrepresented minorities” pertains to students who mark themselves as Hispanic or Latino, American Indian or Alaska Native, Black or African American, Native Hawaiian or Pacific Islander, or those identifying with two or more races. Coleman argued for equality in his report stating, “Kentucky public postsecondary institutions will not achieve equality by being forced to treat students of different races differently.”

Possible Considerations in the College Admissions Process

However, Coleman did mention that some elements can still be contemplated in college admissions. For instance, the socioeconomic background of an applicant, whether the applicant is a first-generation college student, or if they come from underrepresented geographical areas, could all be taken into account during the admission process. Coleman explained that as long as the “student [is] treated based on his or her experiences as an individual,” these factors could promote meaningful diversity and broaden access to educational advancement.

The Future of the Performance-Based Model

Senate President Pro Tempore David Givens, R- Greensburg, creator of the performance-based funding model that was passed in 2017, squashed the concerns in a recent conversation with Herald-Leader. Despite having studied Coleman’s perspective, he believes the model can be modified to find a balanced solution that will please everybody, indicating a possible change in the language of the model relating to race.

Kentucky’s DEI Bills and a committed University President

The move comes as the state of Kentucky is contemplating two bills that take aim at DEI at colleges across the state. Against this worrying backdrop, University of Louisville President Kim Schatzel sent an email to the university community vowing to review the opinion in partnership with the Council on Postsecondary Education to discern its impact on the institution.

University of Kentucky President Eli Capilouto labelled the proposed DEI legislation as “deeply concerning,” stating: “We don’t have room for threats, intimidation or harassment towards an individual or a group.”

Although the final fate of these two bills and their impact on DEI at Kentucky’s higher education campuses is yet to be determined, the shared determination among university officials and lawmakers showcases both the complexity and importance of this issue.