Although the the proposed vote of no confidence in UofL President James Ramsey was the major item coming out of last week’s tumultuous UofL Board meeting, several other important things were revealed at the meeting itself, in subsequent interviews, and in supplemental handouts. One such was the statement that a settlement may be near in last summer’s lawsuit initiated by the Justice Resource Center over to the racial minority makeup of the board itself – specifically that the statutorily required number of African-American Board members was no longer present. It was felt that a Trustee of Hispanic descent who displaced an African-American Trustee from being reappointed was not an appropriate substitution. Since then, a Trustee whose heritage is unknown to me, and the Trustee of Hispanic heritage resigned from the Board thus allowing themselves to be replaced. So far one new well-respected African-American was appointed to the Board. I do not know at what stage of the appointment process the remaining open slot is.
At last week’s meeting, we were told that two additional African-American Trustees would soon be appointed – one to fill the open slot, and a second to replace an unnamed Board member who would resign. [Trustee Robert Rounsavall, whose term ends soon, did indeed announce his resignation shortly after the meeting.] Filling this opening would give us 3 minority slots on the Board in addition to any minorities elected by their internal UofL constituencies. Assuming Governor Bevin fills these slots with African-Americans, this would bring the number of racial minority members among the 17 citizen members of the Board up to three, and on the 20-member Board as a whole to four. I am very supportive of the intent of all of this. I have stated several times that I believe the Board of Trustees should look like and think like our greater Louisville Community. I believe most of those involved are trying to do the right thing, but in my opinion we are using flawed, illogical, and perhaps even unconstitutional methods. I believe too that the process is being manipulated for personal and political gain.
Documents available to me.
I have not been able to read the original complaint of the Justice Resource Center, the Commonwealth’s response in the name of former Governor Beshear, or any other court documents from Frankfort Circuit Court (15-CI-1146) save one. If anyone can send me these, I will read and publish them here. What I do have is the opinion of the Office of the Kentucky Attorney General (OAG 15-015), and an Amended Complaint of Jan 14, 2016 as Governor Bevin enjoined the lawsuit for the Commonwealth seeking to void a number of earlier appointments and to prevent the current Board form taking any action whatsoever.
I have summarized this story several times and will not do so in full again here. I do want to point out a few items where some confusion or ambiguity exists, where a little faulty arithmetic has snuck in, and even a little hypocrisy. These elements only reinforce my belief that the selection process used by the Postsecondary Education Nominating committee (which nominates potential board members to the Governor), and the gubernatorial appointment process itself are broken and have in fact been ignored for some time. If UofL’s Board is improperly constituted, then so are the Boards of other Kentucky Colleges and Universities and indeed the Nominating Committee itself, the composition of which fails to meet its own statutory requirements and which some say merely puts forward the name that the current Governor wants. The nominating Committee draws from new names put forward, but also from its reservoir of previously submitted names. The racial makeup of those names is unknown to me. Potential nominees are not interviewed to explore what the candidates hope to offer to a Board, to determine if they have any agenda, or if they are just in it for the prestige and the great life-long seats at athletic events.
What did the Attorney General have to say?
Individuals associated with the Justice Resource Center requested an opinion from the Attorney General last summer and got one at the end of September. In brief, it found that the racial minority of the 17 citizen member appointees of the Board was not in compliance with the Kentucky statute which requires that the Governor’s appointments “shall reflect no less than proportional representation of the minority racial composition of the Commonwealth.” The Attorney General determined that number to be two. It further found that for purposes of the applicable statute, that “Hispanic” or “Latino” counts as a racial minority. The opinion also found that except for removing a Board member “for cause, which shall include neglect of duty or malfeasance in office,” and that “there is currently no known cause for removal of any individual trustee.” That is to say, Governor Beshear nor anyone else could simply remove one trustee and replace them with another at will.
How many is enough to be legal?
The Attorney General Opinion looked at 2010 US Census data for Kentucky and calculated that the “racial composition of the Commonwealth is fourteen percent minorities,” and that ”since the Governor appoints seventeen trustees to the Board, 14% of those 17 equals 2.38. Accordingly, at least two of the Governor’s appointees to the Board should be minorities.”
It looks to me like the Attorney General’s office did its math wrong. Help me check the numbers. (Please refer to the table above.) For starters, data from 2010 was used even though more recent population updates were available. Perhaps there is some legal reason to use aging data, but why not be current? To arrive at its claim that the minority population of Kentucky was 14% in 2010, some people were counted twice! These include people who considered themselves to be two or more races. Additionally, since the U.S. Census considers “Hispanic” or “Latino” to be an ethnicity and not a race, such individuals are also included in one or another racial category. In any event, applying a figure of 14% state-wide minority racial composition to the the 17 governor-appointed citizen trustees yields 2.38 minority members. Grammar-school rules would have us round this number down to 2, but I am good with three or even more, especially here in Jefferson County.
Black or minority– which is it?
The Justice Resource Center, and those who initiated the lawsuit disallowed the concept that a Hispanic or Latino could count as a racial minority. Ironically, unless Hispanics, Latinos, and other minority populations are included in the calculation, the number of mandated minority Trustees would be much lower! Is it fair to have it both ways? For example, if only African American or Black people count as a racial minority for the purposes of Board composition, then only 7.8% of the 2010 census total would apply to Board membership which would mandate only 1.32 Trustees! [If 2014 census data are used to start with, 8.2% yields 1.39 Trustees.] I have pointed out that Federal census definitions of racial minority differ than those of Kentucky. If we are to use racial minority as a factor in determining Board composition, then shouldn’t we do so in a colorblind manner?
My suggestion for calculating percent racial minority.
While I advocate for a completely different structure for Board appointments, for interim purposes, I propose the following method of complying with the current statute. Assuming all racial minorities should have a shot at being appointed to the Board, I propose that an easier to understand and more logical calculation would assume that all people who do not self-identify as white and who are not Hispanic or Latino are for the purposes of the Kentucky statue members of one racial minority or another. The Census Bureau currently counts these people for us. Thus, in 2010, at least 2.33 Board members should be of a racial minority. (In 2014, this would be 2.48 Board members.) Importantly, and as a matter of fairness, the Board of Trustees must also include the occasional Hispanic, Latino, Asian, Pacific Islander, American Indian, Alaska Native, or those who self-identify as two or more races. When was the last time any of these folks served on the UofL Board of Trustees? Why should not one of Governor Bevin’s next appointees be from one of these groups? Does this make your head spin, or do you see where I am going with the potential absurdity of this? In fact, would any of this demonstratively quota-based approach to appointments be considered constitutional? Why give an aggrieved white person justification to complain should more than 2 or 3 minority members be appointed to the Board which should not be considered atypical?
Governor Bevin’s filing in the case.
The bulk of Governors Bevin’s entry into the controversy available to me, and comments reported in the press include statements such as that at least three of the 20 members of the Board should be racial minorities. This is a misinterpretation of the law – three Trustees of the 20 have automatic seats representing the students, staff and faculty. Only 17 are Citizen appointees of the Governor. The Governor also believes that he had the right to declare an undefined number of Board appointments as null and void, and to prohibit the current Board from engaging in any activities until he has appointed replacements. While he is at it, why not declare as null and void previous appointments to the Postsecondary Education Nominating Committee which is also out of compliance?
Sequela of a peculiar institution persist.
I find most curious that in his joining of the litigation, that the governor rejects the Justice Resource Center’s request for the court to define the terms “minority racial composition” and “racial minority,” declaring that those terms already have a plain definition in the English language.” I would argue that the definition of race in our society is anything but plain. The fact that federal and Kentucky law use different definitions for different purposes is proof of that. There are social, biological, legal, historical and other forms of unhappy baggage associated with our use of the term race as it concerns human beings. People are allowed to define their own race. We are becoming a multiracial society in more ways than one. People now glory in the fact that we are more than a collection of races. Simply observe the number of people who do not look like each other holding hands or pushing baby carriages as they walk in our parks and streets. That is the way it should be. The faster we turn our backs on judging people by how light or dark their skin looks, or where they came from, the better for us all. It was embarrassment that has lead to this attempt to correct an injustice, not any statute. A little protest did not hurt either!
I have made clear my discomfort in counting heads as away to achieve justice and equity. But I am an old scientist who worships data. Sometimes not to count is to ignore. I balance my wish to to live in a colorblind society against the fact that we in America have discriminated viciously and even murderously against people based on the color of their skin (black, yellow, red, and everything in between); or on where they came from (Ireland, Italy, Mexico, South America, or you name it). Despite all the above calculations and hypotheticals, let me be very clear that I believe that a legacy of structural racism has limited the opportunity of entire groups of peoples to serve on our University Boards or to participate in other civic roles. The city of Louisville itself is feeling some appropriate heat about the makeup of its councils, committees and advisory bodies. That is a good thing! I assume there must be many possible ways to do what is right. The current nomination and appointment system had fairness as it goal, but it hasn’t worked out that way. People of good will can fix it. At the very least, we must not allow a system born of good intentions be misused for personal or political gain.
Peter Hasselbacher, MD
Emeritus Professor of Medicine, UofL
8 March 2016