Dive Brief:
- Kentucky’s performance-based funding regulations are unconstitutional because of their reliance on race, Russell Coleman, the state’s attorney general, said in an opinion issued Thursday.
- Coleman, a Republican, said the state is using “race-exclusive terms” to set performance goals for public colleges that he believes run afoul of the 2023 U.S. Supreme Court decision striking down race-conscious admissions policies.
- His opinion does not constitute an immediate order to end the formula, but college leaders in the state say they are reviewing it to see if it will affect their operations.
Dive Insight:
Kentucky ties 35% of state higher education funding to how public institutions perform on a variety of outcomes, such as how many “underrepresented minority students” earn bachelor’s degrees and credentials.
The state’s Council on Postsecondary Education defines those students using exclusively racial and ethnic categories, and negotiates targets with institutions for certain groups, so public colleges are effectively using race in their admissions processes, said Coleman.
“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,” Coleman wrote in his opinion.
If the state wishes to promote diversity at public colleges, it can do so by looking at factors other than race, Coleman said.
“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,” he wrote.
It is fairly common for states to use such other factors in addition to or in place of race in performance-based funding formulas, said Robert Kelchen, a higher education professor at the University of Tennessee Knoxville.
“If your goal is to increase racial diversity, the best way to do that is to incentivize by race. But if that’s not feasible, there are other ways to get you part of the way there,” he said.
Coleman issued his opinion at the request of Republican state Rep. Jennifer Decker, who has also introduced legislation this session that would largely ban diversity, equity and inclusion efforts at public colleges. Kentucky’s House lawmakers on Friday approved a separate bill whose text was largely cut and replaced with Decker’s anti-DEI proposal, the Lexington-Herald Leader reported.
The Supreme Court decision has affected colleges beyond admissions. For example, the University of Missouri system stopped using race and ethnicity as a factor in scholarship decisions following pressure from the state’s attorney general.
In a campuswide email Thursday, University of Louisville President Kim Schatzel said she is reviewing the opinion and discussing with the council to determine any potential effects on the institution, the Lexington-Herald Leader reported.