Kentucky’s higher ed funding scheme is unconstitutional, state attorney general says

Higher Ed Dive

Lilah Burke

March 18, 2024

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. 

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