{"id":4186,"date":"2023-07-12T13:25:42","date_gmt":"2023-07-12T13:25:42","guid":{"rendered":"https:\/\/wifamily.news\/?p=4186"},"modified":"2023-07-12T13:29:43","modified_gmt":"2023-07-12T13:29:43","slug":"equality-for-all","status":"publish","type":"post","link":"https:\/\/wifamily.news\/?p=4186","title":{"rendered":"Equality For All"},"content":{"rendered":"

This post originally appeared at https:\/\/will-law.org\/equality-for-all\/<\/a><\/p>\n

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A Survey of Racially Discriminatory Laws, Programs, and Policies in Wisconsin<\/b><\/h1>\n

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Executive Summary<\/strong><\/h2>\n
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The United States Supreme Court recently decided that colleges and universities may no longer use race as a factor in admissions. This practice, commonly called \u201caffirmative action,\u201d was declared unconstitutional in Students for Fair Admissions v. Harvard<\/em><\/a>.<\/em><\/p>\n

The decision, however, has much broader implications: it confirms that our Constitution is \u201ccolorblind\u201d and that governments may not treat their citizens differently based on race. The Court explained that the Constitution demands \u201cabsolute equality of all citizens.\u201d Exceptions to this rule are exceedingly rare, reserved for situations like preserving order in a prison, or to remedy the government\u2019s own past intentional discrimination. Governments may not use race to cure \u201csocietal discrimination,\u201d \u201csystemic racism,\u201d or to advance modern-day notions of \u201cdiversity\u201d and \u201cequity.\u201d In the Court\u2019s words, \u201celiminating racial discrimination means eliminating all racial discrimination.\u201d<\/p>\n

Additionally, the Court\u2019s broad language implicates practices outside the bounds of the Constitution\u2014namely, private affirmative action programs or \u201cdiversity, equity, and inclusion\u201d initiatives. Harvard, after all, is a private college and its program was evaluated under the law governing programs receiving federal financial assistance (Title VI). The Court concluded that this statute contains the same protections against discrimination as the Constitution\u2019s Equal Protection Clause, and that Harvard\u2019s use of race in admitting students was unlawful under that statute. Title VI contains language that is identical to or functionally similar to a variety of federal laws, including, for example, the statute prohibiting discrimination by private businesses (Title VII). The Students for Fair Admission<\/em> decision, therefore, has the potential to upend not only government-sanctioned discrimination, but even race-based private conduct pursued in the name of \u201cdiversity, equity, and inclusion.\u201d Put simply, the decision calls into question a whole panoply of race-based programs in the public and private sectors.<\/p>\n

So what does this mean for Wisconsin? Our state and local governments have several race-based laws and programs that are likely unconstitutional. While these programs were always unconstitutional, Students for Fair Admissions<\/em> underscores their infirmity. These laws and programs have persisted for two basic reasons: (1) no court has yet struck them down and (2) politicians have so far lacked the resolve to repeal them. With this new decision, however, that may very well change. In the face of the Court\u2019s clear and emphatic language, policymakers may now be emboldened to embark on a \u201ccolorblind\u201d course to ensure our laws are neutral and that race is never used as a \u201cnegative\u201d or \u201cstereotype,\u201d in the words of the Supreme Court. Those that are not repealed may eventually be the subject of litigation.<\/p>\n

Below is a sample of several Wisconsin state laws and programs that now appear to be unconstitutional and can no longer be defended under current law. While this brief is limited to discussing Wisconsin law, no doubt most other states have similar indefensible laws.<\/span><\/p>\n<\/div>\n<\/div>\n<\/div>\n

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State Laws \u2013 Race Discrimination<\/strong><\/h2>\n
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  1. Race-based scholarships<\/strong>. Wisconsin maintains two scholarships for higher education students that discriminate based on race. Whites, Middle Eastern students, and most Asian students may not receive a scholarship because of their race. See <\/em> Stat. \u00a7\u00a7 36.34<\/a>, 39.44<\/a>. WILL is suing<\/a> over one of these scholarships, and the case is pending.<\/li>\n
  2. Race-based teacher loans<\/strong>. Wisconsin offers loans for teachers based on race. Although aimed at \u201cminority\u201d teachers, certain races are arbitrarily excluded, like teachers whose ancestors are from the Middle East. Wis. Stat. \u00a7 40<\/a>.<\/li>\n
  3. Racial preferences in state contracting<\/strong>. Wisconsin state law offers numerous benefits to businesses, including special access to government contracting, based on race. Eleven state laws employ these race-based preferences. Wis. Stat. \u00a7 287<\/a>. The state carries this out through an elaborate, race-based Minority Business Certification Program<\/a>.<\/li>\n
  4. Health equity grant<\/strong> program<\/strong>. The Department of Health Services may award grants to improve health outcomes, but only for certain racial groups. State law includes an archaic definition of \u201cAsian,\u201d using something called \u201cWallace\u2019s Line,\u201d which has been itself critiqued<\/a> as resulting in \u201ccolonial oppression and racial prejudice.\u201d The upshot is that DHS\u2019s program excludes most Asians (such as individuals with ancestors from China, India, Pakistan, Philippines, & Japan) from the definition. Wis. Stat. \u00a7 20<\/a>.<\/li>\n
  5. Race-based drug treatment<\/strong>. State law contains a grant program for alcohol and drug abuse, but only for \u201cHispanics and Black Americans.\u201d The law does not explain why it is so limited. See <\/em> Stat. \u00a7 46.975<\/a>. A separate \u201ctreatment alternative program,\u201d Wis. Stat. \u00a7 46.65<\/a>, also uses racial preferences<\/a>.<\/li>\n
  6. Busing of students<\/strong>. Busing seems like something from a bygone era. But in Wisconsin it is current law. State law gives money to schools that bus certain students based on race. Wisconsin offers no justification for why this exists or what \u201cproblems\u201d it solves. Wis Stat. \u00a7 85<\/a>.<\/li>\n
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    Wisconsin Council on Affirmative Action.<\/b>\u00a0This legislatively created council supports \u201caffirmative action\u201d throughout the state. To the extent that such plans benefit or penalize employees based on race, the council\u2019s work would be unconstitutional. Moreover, the explicit racial quotas for Council members are likewise unconstitutional. Wis. Stat. \u00a7<\/div>\n
    15.107(3)<\/a><\/div>\n

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    Agencies \u2013 Race-Based State Programs<\/strong><\/h2>\n
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    1. UW Faculty Diversity Initiative<\/a>. UW discriminates based on race when hiring professors. It is called the \u201cTarget of Opportunity\u201d program.<\/li>\n
    2. UW Racially Segregated Residence Halls<\/a>. UW offers multiple<\/a> opportunities for students to segregate themselves by race in student dorms.<\/li>\n
    3. UW BIPOC-affirming spaces<\/a>. UW offers several \u201caffirming spaces\u201d limited by race; non-preferred races are instructed to \u201capproach these spaces with care.\u201d<\/li>\n
    4. UW BIPOC Coalition Energy Assistance<\/a>. A UW student group offers $75 in \u201cenergy assistance\u201d but cautions: \u201cwe will be prioritizing people who identify as BIPOC (Black, Indigenous, Person of Color) as well as people who identify as queer and\/or disabled.\u201d<\/li>\n
    5. UW Green Bay \u201cBIPOC RISE\u201d Program and Scholarship<\/a>. UW-Green Bay limits access to a mentoring group and a scholarship based on race.<\/li>\n
    6. UW Milwaukee Diversity Internship Program<\/a>. UW-Milwaukee offers an internship limited to benefitting only certain races.<\/li>\n
    7. Wisconsin Partnership Program<\/a>. UW\u2019s School of Medicine runs a \u201chealth equity\u201d grant program that funds groups targeting certain racial minorities.<\/li>\n
    8. WEDC Diverse Business Development Grants<\/a>. Economic development grants are available, but only for certain races.<\/li>\n
    9. DWD Workforce Equity Grants<\/a>. DWD offers an \u201cequity\u201d grant, but the program is based on benefitting certain races.<\/li>\n
    10. DHS Minority Health Grant Program<\/a>. DHS offers funding for certain organizations that serve certain racial populations across the state.<\/li>\n
    11. DOA Diverse Investment Grant Program<\/a>, Supplier Diversity Program<\/a>, Diverse Business Grants<\/a>. DOA runs at least three programs directed at helping Wisconsin businesses, but only businesses owned by certain preferred races.<\/li>\n
    12. DOT<\/a> Programs<\/a>. WisDOT Supplier Diversity Program and WisDOT Disadvantaged Business Program offer help to only certain races.<\/li>\n
    13. State Mandated Affirmative Action Plans<\/a>. Some state agencies require \u201caffirmative action plans\u201d for certain<\/a>programs<\/a>. Any use of race, however, to advantage or disadvantage an employee would likely be illegal.<\/li>\n
    14. Technical College Board Quotas<\/a>. Under Wisconsin law, technical college boards must justify their racial makeup through a system of quotas.<\/li>\n
    15. Agency Equity and Inclusion Plans<\/a>. All state agencies must have \u201cequity\u201d plans, and several call for explicit race discrimination against whites and other disfavored groups. For example:<\/li>\n<\/ol>\n