Kentucky Advisory Opinions July 20, 2012: OAG 12-11 (July 20, 2012)

Kentucky Attorney General Opinions

2012.

OAG 12-11.

Statutes construed: KRS 160.345

Opinion of the Attorney General

Anne Courtney Coorssen, General Counsel for Oldham County Schools, has requested an opinion from this office on the following questions: (1) how is eligibility under "other ethnic group underrepresented in the school" in KRS 160.345(1)(a) determined, and (2) how is the minority status of a parent determined for the purposes of KRS 160.345(2)(b)(2)? We advise that "other ethnic group underrepresented in the school" should be interpreted as an ethnic group whose representation in the school council is not fair and reasonable in relation to the number of such students in the school, and that the minority status of a parent is determined independently of the minority status of the child.

KRS 160.345(2)(b)(2) provides that "school councils in schools having eight percent (8%) or more minority students enrolled, as determined by the enrollment on the preceding October 1, shall have at least one (1) minority member." KRS 160.345(1)(a) provides that "'minority' means American Indian; Alaskan native; African-American; Hispanic, including persons of Mexican, Puerto Rican, Cuban, and Central or South American origin; Pacific islander; or other ethnic group underrepresented in the school." A document on the Kentucky Department of Education's website specifies that "if persons declare themselves a minority, pursuant to the definition in KRS 160.345 , then they should be considered so for the purpose of fulfilling the requirements of minority council member."(fn1) In the facts giving rise to this opinion, a parent has admitted that his race is White, but argues that under KRS 160.345(1)(a), eligibility for minority membership on the school council is determined by ethnic group, which is distinct from race, and identifies his ethnicity as Moravian, an ethnic group originating in a region of the current Czech Republic.

Regarding what constitutes an underrepresented minority for the purposes of KRS 160.345(1)(a), while there are no cases determining what qualifies as an underrepresented ethnic group in that context, determination of minority under-representation has a lengthy history in other contexts, such as college admis-sions,(fn2) teacher employment,(fn3) and the fair cross-section requirement for jury venire selection.(fn4) It is usually determined by calculating the percentage of the group in question in the alleged discriminatory context to the percentage of the group in the community at large.(fn5) Of these, the cases involving the fair cross-section requirement provide the clearest standard for determining both what constitutes an identifiable ethnic group, and when that ethnic group is underrepresented.

In Duren v. Missouri, (1979), the Supreme Court formulated a three-part test for determining when a group had been underrepresented in violation of the fair cross-section requirement:

In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.

The use of "underrepresentation" in part three of the test by implication defines underrepresentation as part two of the test, "that the representation of this group... is not fair and reasonable in relation to the number of such persons in the community." In Ford v. Seabold, (6th Cir. 1988), the Sixth Circuit adopted another three-part test for determining what constitutes a "distinctive" group for Duren purposes:

(1) that the group is defined and limited by some factor (i.e., that the group has a definite composition such as by race or sex); (2) that a common... thread or basic similarity in attitude, ideas, or experience runs through the group; and (3) that there is a community of interest among members of the group such that the group's interests cannot be adequately represented if the group is excluded from the jury selection process

Id. at 681-82. In Com. v. McFerron , (1984), the Kentucky Supreme Court, interpreting Duren , further specified that the group "must comprise a substantial percentage of the county population." Id. at 928. Summarizing the relevant parts of these tests, a group is underrepresented if the representation of the group is not fair and reasonable in relation to the number of such persons in the community. The group must be a distinctive group that has a definite composition and a community of interest among members.

We advise that the tests for determining underrepresentation in the context of the fair-cross section requirement provide the best guidance for the interpretation of "other ethnic group underrepresented in the school" in KRS 160.345(1)(a). In order to qualify its members as minorities under KRS 160.345(1)(a), the ethnic group must have a definite composition and community of interest among members. In order to be underrepresented under KRS 160.345(1)(a), the representation of the ethnic group in the school council must not be fair and reasonable in relation to the number of such persons in the school district.(fn6) As applied to the particular facts giving rise to this opinion, Moravians would certainly constitute an ethnic group with a definite composition and community of interest. If an ethnic group such as Moravians constitute a substantial percentage of the school district population such that it would not be fair and reasonable if they were not represented on the school council, then such an ethnic group could be considered an underrepresented minority for the purposes of KRS 160.345(1)(a), although we doubt that is the case here.

Regarding whether minority status is determined by the race or ethnicity of the child or the parent, we advise that the minority status of each should be determined independently by the parent's or child's own race or ethnicity. If the race of the child were determined solely by the race of the parent, this would deprive children of interracial marriages, or children adopted by parents of a different race, of their heritage. Similarly, a parent may be a member of a minority and qualify as a minority council member under KRS 160.345(2)(b)(2) even if the child does not qualify as a minority. The Legislature defined "parent" in KRS 160.345(1)(d), but used "minority member" in KRS.160.345(2)(b)(2) and not "minority parent" or "parent of a minority." If the legislature had wanted the minority status of the minority member to be determined by the minority status of the child, it would have so specified. For the purposes of KRS 160.345(2)(b)(2), a person is eligible to be a minority member if the person qualifies as a minority under KRS 160.345(1)(a).

In sum, we advise that "other ethnic group underrepresented in the school" in KRS 160.345(1)(a) should be interpreted to mean an ethnic group whose representation the school council is not fair and reasonable in relation to the number of such students in the school. The race or ethnicity of parents and children should be determined independently, and the eligibility of a parent to serve as a minority member on a school council under KRS 160.345(2)(b)(2) is determined by whether the parent qualifies as a minority under KRS 160.345(1)(a).

JACK CONWAY

ATTORNEY GENERAL

Matt James

Assistant Attorney General

1. Minority Council Elections, http://www.education.ky.gov/nr/rdonlyres/06b80770-fd4b-4001-8787-d058837ff565/0/minoritycouncilelections.pdf (last visited July 11, 2012).

2. Gratz v. Bollinger , (2003).

3. Freeman v. Pitts , (1992).

4. Duren v. Missouri , (1979).

5. See, e.g. Freeman , supra note 2, at 481-82; Berghuis v. Smith , 130 S.Ct. 1382, 1385 (2010).

6. We decline to advise in advance what constitutes a substantial percentage, or a fair and reasonable representation, and would leave such determinations to the courts.