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A nickname or team name is unambiguously race-based if it includes any of the terms arrows, blackhawks, chiefs, chieftains, hatchets, raiders, red raiders, warriors, or warhawks and is used in connection with any of the following logos or mascots: 1. A depiction of an American Indian person or persons, 2. Feathers or feather headdress, 3. Arrows, bows, spears, tomahawks, stone hatchets, or other historical or traditional American Indian weapons or tools, or 4. Historical or traditional American Indian drums, pipes, beadwork, clothing or footwear.
The rules establish procedural timelines as to when and what information must be submitted to the state superintendent by a school board and when a contested case hearing may or may not be scheduled.
Proposed permanent rules were submitted to the legislative council on June 16, 2010 and were promulgated as emergency rules effective June 1, 2010.
Comparison with federal regulations
N/A.
Comparison with rules in adjacent states
Illinois, Iowa, Michigan, and Minnesota do not have administrative rules relating to Indian nicknames, logos, mascots, and team names.
Summary of factual data and analytical methodologies
Current law, s.
118.13, Stats., prohibits discrimination against pupils on a number of grounds, including race and ancestry. Complaints relating to race-based names, logos, mascots and team names have been filed under this statute in the past. Under s.
118.13, Stats., the burden of proof is on the complainant to prove by a preponderance of the evidence that use of a nickname, logo, mascot, or team name results in pupil discrimination. In addition, the complaint first must be filed with the school board and then appealed to the department.
2009 Wisconsin Act 250 provides that a school district resident may object to a school board's use of a race-based name, nickname, logo, mascot, or team name by filing a complaint directly with the state superintendent of public instruction. This Act creates a presumption that use of a race-based nickname, logo, mascot, or team name promotes discrimination and requires school boards to provide clear and convincing evidence to refute that presumption.
2009 Wisconsin Act 250 is supported by the 11 tribal governments in Wisconsin, the Great Lakes Inter-Tribal Council, the Wisconsin Indian Education Association, the Wisconsin Education Association Council, other Indian nations and organizations across the country, various national non-profit and faith-based organizations, and most recently the National Collegiate Athletic Association (NCAA).
Anticipated costs incurred by private sector
N/A.
Small Business Impact
The proposed rules will have no significant economic impact nor fiscal impact on small businesses, as defined in s.
227.114 (1) (a), Stats.
Fiscal Estimate
Assumptions used in arriving at fiscal estimate
2009 Wisconsin Act 250 would allow a resident to object to the school district's use of a race-based name, nickname, logo, or mascot by filing a complaint with the state superintendent. If discrimination is found, the school district will be ordered to terminate use of the name, nickname, logo, or mascot within 12 months unless an extenuating circumstance exists. Failure to terminate use could result in the district being subject to a $100-$1,000 forfeiture per day.
State fiscal effect
Costs to DPI will be related to the number of complaints that are brought to the state superintendent. Because it is not known how many, if any, complaints will be made, the costs are indeterminate.
Local fiscal effect
There are approximately 40 schools in the state that currently use American Indian names, nicknames, logos, or mascots. If required to terminate the use of the ethnic name, nickname, logo, or mascot, costs to a school district would be related to the replacement of existing supplies, team uniforms, and associated inventory that currently bear the name, nickname, logo, or mascot, and would vary from district to district. It is unknown how many, if any, residents of districts will file complaints and how many hearings will result in termination of the name, nickname, logo, or mascot. Thus, local costs are indeterminate.
It is also not known how many, if any, districts will not terminate use of their name, nickname, logo, or mascot if ordered to do so. These districts would be subject to a forfeiture of $100-$1,000 per day. It is not known how many days that districts would remain out of compliance or the exact amount they would be ordered to pay. Therefore, the fiscal effect of these provisions are also not able to be determined.
Agency Contact Person
Carolyn Stanford Taylor, Division Administrator
Division for Learning Support: Equity and Advocacy,
Phone: (608) 266-1649.
Notice of Hearing
Public Instruction
NOTICE IS HEREBY GIVEN That pursuant to ss.
118.42 (4) and
227.11 (2) (a), Stats., the Department of Public Instruction will a hold a public hearing to consider emergency and proposed permanent rules creating Chapter
PI 43, relating to education reform.
Hearing Information
Date: July 27, 2010
Time: 3:00 - 4:00 p.m.
Location: Madison
GEF 3 Building
125 South Webster Street
Room 041
The hearing site is fully accessible to people with disabilities. If you require reasonable accommodation to access any meeting, please call Jeff Pertl,
Policy Initiatives Advisor and Federal Funds Trustee at (608) 267-9232 or
jeff.pertl@dpi.wi.gov or leave a message with the Teletypewriter (TTY) at (608) 267-2427 at least 10 days prior to the hearing date. Reasonable accommodation includes materials prepared in an alternative format, as provided under the Americans with Disabilities Act.
Copies of Proposed Rule
Lori Slauson
Administrative Rules and Federal Grants Coordinator
Department of Public Instruction
125 South Webster Street
P.O. Box 7841
Madison, WI 53707
Submittal of Written Comments
Written comments on the proposed rules received by Ms. Slauson at the above mail or email address no later than July 30, 2010, will be given the same consideration as testimony presented at the hearing.
Analysis Prepared by Department of Public Instruction
Statute interpreted
Statutory authority
Explanation of agency authority
Section
118.42 (4), Stats., requires the state superintendent to promulgate rules establishing criteria and procedures for determining whether a school or school district is in need of improvement and whether a school is among the lowest performing 5 percent of all public schools in the state.
Section
227.11 (2) (a), Stats., gives an agency rule-making authority to interpret the provision of any statute enforced or administered by it if the agency considers it necessary to effectuate the purpose of the statute.
Related statute or rule
N/A.
Plain language analysis
2009 Wisconsin Act 215 requires schools and school districts to implement certain provisions if they are considered in need of improvement for a certain period of time or are considered low performing. The Act also authorizes the state superintendent of public instruction to intervene in a school district if they are considered in need of improvement for a certain period of time or are considered low performing. The Act requires rules to establish criteria and procedures for determining whether a school or school district is in need of improvement and whether a school is among the lowest performing 5 percent of public schools in the state. In promulgating these rules, the state superintendent is required to consult with the school district or school board president, the school district administrator, and labor organizations representing employees of each school district that is immediately affected by the Act and legislators whose legislative districts include any portion of each school district.
The proposed rule references Wisconsin's state plan that is required under
20 USC 6311 in determining districts or schools that are in need of improvement or low performing. The methods used in making these determinations are complicated and have to be approved by the U.S. Department of Education (USDE). The department prefers a consistent approach be used in making these determinations so that state rules do not unintentionally conflict with the federally approved method.
These rules were promulgated as emergency rules effective June 28, 2010.
Comparison with federal regulations
The Elementary and Secondary Education Act (ESEA) was first enacted in 1965 and reauthorized in 2001 as the No Child Left Behind (NCLB) Act. All school districts in Wisconsin receive some federal funding under ESEA.
To receive funding under the Act, the department is required to submit a plan to the USDE under
20 USC 6311. In general, the plan must demonstrate that the state has developed and is implementing a single, statewide state accountability system that will be effective in ensuring that all local educational agencies, public elementary schools, and public secondary schools make adequate yearly progress. Under the plan, all Wisconsin school districts and individual schools within each district must meet the state's four adequate yearly progress (AYP) objectives each year. The first two objectives, based on Wisconsin's statewide standardized tests in reading and mathematics, have proficiency targets. The other two objectives are:
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95 percent of enrolled students participating in statewide reading and mathematics assessments, which include the Wisconsin Knowledge and Concepts Examinations (WKCE) and the Wisconsin Alternate Assessment for Students with Disabilities (WAA-SwD).
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A high school graduation rate of at least 85 percent or growth of at least 2 percent from the prior year on these indicators and elementary and middle school attendance rates of at least 85 percent or any growth from the prior year on these indicators.
The four AYP objectives apply to all students as well as to subgroups of students of sufficient size. Schools that miss the same AYP objective for one or more student groups for two consecutive years are identified for improvement.
The department applies USDE-approved statistical procedures to ensure decision consistency in reviewing AYP and in identifying schools and districts for improvement. Student proficiency is based on the achievement of students enrolled for the full academic year. District accountability is divided into grade spans. A district must miss the same AYP target across elementary, middle, and high school for two consecutive years to be found in need of improvement. The subsequent years of school and district improvement are described in
Wisconsin Public Schools-Levels of Accountability, available on the DPI website at
http://dpi.wi.gov/oea/doc/sifilevels.doc.
Comparison with rules in adjacent states
Illinois, Iowa, Michigan, and Minnesota do not have administrative rules relating to education reform.
Summary of factual data and analytical methodologies
The proposed rule references Wisconsin's state plan that is required under
20 USC 6311 in determining districts or schools that are in need of improvement or low performing. The methods used in making these determinations are complicated and have to be approved by the USDE. The department prefers a consistent approach be used in making these determinations so that state rules do not unintentionally conflict with the federally approved method.
Small Business Impact
The proposed rules will have no significant economic impact nor fiscal impact on small businesses, as defined in s.
227.114 (1) (a), Stats.
Fiscal Estimate
Assumptions used in arriving at fiscal estimate
2009 Wisconsin Act 215 requires schools and school districts to implement certain provisions if they are considered in need of improvement for a certain period of time or are considered low performing. The Act also authorizes the state superintendent of public instruction to intervene in a school district if they are considered in need of improvement for a certain period of time or are considered low performing. The Act requires rules to establish criteria and procedures for determining whether a school or school district is in need of improvement and whether a school is among the lowest performing 5 percent of all public schools in the state. In promulgating these rules, the state superintendent is required to consult with the school district or school board president, the school district administrator, and labor organizations representing employees of each school district that is immediately affected by the Act and legislators whose legislative districts include any portion of each school district.
State fiscal effect
The school and school district identification criteria established in the rule will have no fiscal effect as the department already carries out these responsibilities under the No Child Left Behind Act. However, it is not possible to estimate the directives the department may issue under the Act or how much staff time would be required to ensure those directives are carried out properly by schools and school districts. To accomplish the purposes of the Act, work priorities within the department may need to change but it is assumed that such changes can be absorbed by existing staff. It is also assumed that the cost of writing and promulgating the rules required by this Act can be absorbed by the department.
Local government fiscal effect
The schools and school districts identified under the rule may have a fiscal effect associated with implementing the directives under the Act. However, because these schools and school districts receive federal funds to implement many of these provisions, any local costs, if any, are indeterminate. The department does not have data that would indicate the expense to those local schools or school districts.
Anticipated costs incurred by private sector
N/A.
Agency Contact Person
Scott Jones, Special Assistant
Office of the State Superintendent
Phone: (608) 267-9269
Notice of Hearings
Public Instruction
