LRBs0125/1
FFK:sac:jm
2013 - 2014 LEGISLATURE
ASSEMBLY SUBSTITUTE AMENDMENT 1,
TO ASSEMBLY BILL 297
September 27, 2013 - Offered by Representatives Nass, Craig and Vos.
AB297-ASA1,1,9
1An Act to repeal 118.134 (1m) (a) 1., 118.134 (1m) (b) 2. and 118.134 (2) (b);
to
2renumber and amend 118.134 (2) (a) and 118.134 (4);
to consolidate,
3renumber and amend 118.134 (1m) (b) (intro.) and 1.;
to amend 20.505 (4)
4(kp), 118.134 (1) (intro.), 118.134 (1) (a), 118.134 (1) (b), 118.134 (1m) (a) (intro.),
5118.134 (1m) (a) 2., 118.134 (1m) (a) 3., 118.134 (3) (a), 118.134 (3) (b) 2., 118.134
6(3) (c), 118.134 (3) (d) and 118.134 (5); and
to create 118.134 (3r), 118.134 (4)
7(b), 227.43 (1) (bd), 227.43 (3) (br) and 227.43 (4) (br) of the statutes;
relating
8to: race-based nicknames, logos, mascots, and team names and making an
9appropriation.
Analysis by the Legislative Reference Bureau
Under current law, a school district resident may object to a school board's use
of a race-based nickname, logo, mascot, or team name by filing a complaint with the
state superintendent of public instruction (state superintendent). If a complaint is
received, the state superintendent must hold a hearing on the complaint, at which
the school board has the burden of proving by clear and convincing evidence that the
use of the race-based nickname, logo, mascot, or team name does not promote
discrimination, pupil harassment, or stereotyping. However, the state
superintendent does not have to hold a hearing if a school board demonstrates that
the use of a nickname, logo, mascot, or team name relates to a specific federally
recognized American Indian tribe and the specific tribe has approved the school
board's use of the nickname, logo, mascot, or team name.
Currently, if the state superintendent finds that the use of the race-based
nickname, logo, mascot, or team name promotes discrimination, pupil harassment,
or stereotyping, the state superintendent must order the school board to terminate
its use of the nickname, logo, mascot, or team name within 12 months after issuance
of the order. However, the state superintendent may extend the amount of time a
school board has to comply with an order to terminate the use of a nickname, logo,
mascot, or team name under certain circumstances. A school board that uses a
race-based nickname, logo, mascot, or team name in violation of an order is subject
to a forfeiture of not less than $100 nor more than $1,000 for each day that it violates
the order.
This substitute amendment makes various changes to the complaint process for
objecting to a school board's use of a race-based nickname, logo, mascot, or team
name. First, under the substitute amendment, a complaint to object to the use of a
race-based nickname, logo, mascot, or team name must include the signatures of at
least the number of school district residents that is equal to ten percent of the school
district's membership and the signatures must be obtained within the 120-day
period before the complaint is filed. Second, the substitute amendment requires the
division of hearings and appeals, rather than the state superintendent, to hold a
hearing on a complaint objecting to the use of a race-based nickname, logo, mascot,
or team name. Third, the substitute amendment reverses the burden of proof at a
hearing challenging the use of a race-based nickname, logo, mascot, or team name
so that the burden is on the school district resident to demonstrate that the
nickname, logo, mascot, or team name promotes discrimination, pupil harassment,
or stereotyping. Fourth, the substitute amendment allows the state superintendent
to forego a hearing if a school board demonstrates that a federally recognized
American Indian tribe that has historical ties to this state has, under an agreement
with the school board, approved the school board's use. Fifth, the substitute
amendment prohibits the state superintendent from promulgating a rule that
creates a presumption of what constitutes a race-based nickname, logo, mascot, or
team name that promotes discrimination, pupil harassment, or stereotyping. Sixth,
the substitute amendment prohibits the enforcement of a decision or order to
terminate the use of a race-based nickname, logo, mascot, or team name that is
based on a complaint filed before the effective date of the substitute amendment,
including the collection or assessment of any forfeiture based on such decision or
order. Finally, the substitute amendment prohibits a school district from being a
member of an interscholastic athletic association that bars a member from using a
race-based nickname, logo, mascot, or team name, unless the use violates a decision
or order to terminate the use and the decision or order is issued after the effective
date of the substitute amendment.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB297-ASA1,1
1Section
1. 20.505 (4) (kp) of the statutes is amended to read:
AB297-ASA1,3,72
20.505
(4) (kp)
Hearings and appeals fees. The amounts in the schedule for
3hearings and appeals services to the department of health services under s. 227.43
4(1) (bu), the department of children and families under s. 227.43 (1) (by),
the
5department of public instruction under s. 227.43 (1) (bd), and to all agencies under
6s. 227.43 (1m). All moneys received from the fees charged under s. 227.43 (3)
(br), 7(c), (d), and (e) shall be credited to this appropriation account.
AB297-ASA1,2
8Section
2. 118.134 (1) (intro.) of the statutes is amended to read:
AB297-ASA1,3,209
118.134
(1) (intro.) Notwithstanding s. 118.13 and except as provided in sub.
10(3m), a school district resident may object to the use of a race-based nickname, logo,
11mascot, or team name by the school board of that school district by filing a complaint
12containing a number of signatures of school district electors equal to at least 10
13percent of the school district's membership, as defined in s. 121.004 (5), with the state
14superintendent.
If the complainant objects to the use of a nickname or team name
15by the school board, the state superintendent shall immediately review the
16complaint and determine whether the use of the nickname or team name by the
17school board, alone or in connection with a logo or mascot, is ambiguous as to whether
18it is race-based. A signature on a complaint is valid only if the signature is obtained
19within the 120-day period before the complaint is filed with the state
20superintendent. The state superintendent shall do all of the following:
AB297-ASA1,3
21Section
3. 118.134 (1) (a) of the statutes is amended to read:
AB297-ASA1,4,4
1118.134
(1) (a) Notify the school board of the receipt of the complaint and
of the
2state superintendent's determination regarding whether the use of the nickname or
3team name is ambiguous as to whether it is race-based and direct the school board
4to submit, if applicable, any of the information under sub. (1m) (a).
AB297-ASA1,4
5Section
4. 118.134 (1) (b) of the statutes is amended to read:
AB297-ASA1,4,96
118.134
(1) (b) Except as provided in sub. (1m),
schedule refer the complaint
7to the division of hearings and appeals for a contested case hearing
within 45 days
8after the complaint is filed. The division of hearing and appeals shall schedule a
9hearing on the referred complaint with reasonable promptness.
AB297-ASA1,5
10Section
5. 118.134 (1m) (a) (intro.) of the statutes is amended to read:
AB297-ASA1,4,1511
118.134
(1m) (a) (intro.) The state superintendent may determine that no
12contested case hearing is necessary
or that a hearing date may be postponed for the
13purpose of obtaining additional information from the school board if, no later than
1410 days after being notified of the receipt of the complaint, the school board submits
15evidence to the state superintendent that demonstrates all of the following:
AB297-ASA1,6
16Section
6. 118.134 (1m) (a) 1. of the statutes is repealed.
AB297-ASA1,7
17Section
7. 118.134 (1m) (a) 2. of the statutes is amended to read:
AB297-ASA1,4,2418
118.134
(1m) (a) 2.
The A federally recognized American Indian tribe
under
19subd. 1. that has historical ties to this state has
granted entered into an agreement
20with the school board under which the tribe grants approval to the school board to
21refer to
or, depict
, or portray the tribe
or American Indians, in general, in a
specific 22nickname, logo, or mascot or to use the name of the tribe
or American Indians, in
23general, as a team name in the specific manner used by the school board
and has not
24rescinded that approval.
AB297-ASA1,8
25Section
8. 118.134 (1m) (a) 3. of the statutes is amended to read:
AB297-ASA1,5,3
1118.134
(1m) (a) 3. The use of the nickname, logo, mascot, or team name that
2has been approved by
the a tribe
as provided in under subd. 2. is the use to which the
3school district resident objects in the complaint filed under sub. (1).
AB297-ASA1,9
4Section
9. 118.134 (1m) (b) (intro.) and 1. of the statutes are consolidated,
5renumbered 118.134 (1m) (b) and amended to read:
AB297-ASA1,5,116
118.134
(1m) (b) (intro.) If the state superintendent
does any of the following 7determines that a contested case hearing is not necessary, the state superintendent
8shall notify the school district resident who filed the complaint under sub. (1) and the
9school board of his or her decision in writing
: 1. Determines that a contested case
10hearing is not necessary. A decision under this subdivision is subject to judicial
11review under ch. 227.
AB297-ASA1,10
12Section
10. 118.134 (1m) (b) 2. of the statutes is repealed.
AB297-ASA1,11
13Section
11. 118.134 (2) (a) of the statutes is renumbered 118.134 (2) and
14amended to read:
AB297-ASA1,5,1915
118.134
(2) Except as provided in par. (b), at At the hearing, the school
board 16district resident who filed the complaint under sub. (1) has the burden of proving by
17clear and convincing evidence that the use of the race-based nickname, logo, mascot,
18or team name
does not promote promotes discrimination, pupil harassment, or
19stereotyping, as defined by the state superintendent by rule.
AB297-ASA1,12
20Section
12. 118.134 (2) (b) of the statutes is repealed.
AB297-ASA1,13
21Section
13. 118.134 (3) (a) of the statutes is amended to read:
AB297-ASA1,6,722
118.134
(3) (a) The
state superintendent division of hearings and appeals shall
23issue a decision and order within 45 days after the hearing. If the
state
24superintendent division of hearings and appeals finds that the use of the race-based
25nickname, logo, mascot, or team name does not promote discrimination, pupil
1harassment, or stereotyping, the
state superintendent division of hearings and
2appeals shall dismiss the complaint. Except as provided in pars. (b) and (d), if the
3state superintendent division of hearings and appeals finds that the use of the
4race-based nickname, logo, mascot, or team name promotes discrimination, pupil
5harassment, or stereotyping, the
state superintendent
division of hearings and
6appeals shall order the school board to terminate its use of the race-based nickname,
7logo, mascot, or team name within 12 months after issuance of the order.
AB297-ASA1,14
8Section
14. 118.134 (3) (b) 2. of the statutes is amended to read:
AB297-ASA1,6,189
118.134
(3) (b) 2. a. If, at the hearing under sub. (2) or after a decision and order
10have been issued under par. (a), the school board presents evidence to the
state
11superintendent division of hearings and appeals that extenuating circumstances
12render full compliance with the decision and order within 12 months after the
13issuance of that decision and order impossible or impracticable, the
state
14superintendent division of hearings and appeals may issue an order to extend the
15time within which the school board must terminate its use of the race-based
16nickname, logo, mascot, or team name. Except as provided in subd. 2. b., the
17extension may not exceed 24 months and shall apply only to those portions of the
18decision and order to which extenuating circumstances apply.
AB297-ASA1,7,219
b. The
state superintendent division of hearings and appeals may extend the
20time granted to a school board under subd. 2. a. if the school board presents evidence
21to the
state superintendent division of hearings and appeals that compliance with
22a portion of the decision and order issued under par. (a) may be accomplished through
23a regularly scheduled maintenance program and that the cost of compliance with
24that portion of the decision and order exceeds $5,000. The extension granted under
25this subd. 2. b. may not exceed 96 months and applies only to that portion of the
1decision and order with which compliance will be accomplished through the
2regularly scheduled maintenance program and that costs more than $5,000.
AB297-ASA1,15
3Section
15. 118.134 (3) (c) of the statutes is amended to read:
AB297-ASA1,7,74
118.134
(3) (c) Decisions
of the state superintendent under this subsection are
5subject to judicial review under ch. 227.
The venue for a proceeding to review a
6decision under this section is the circuit court in any county in which territory of the
7school district is located.
AB297-ASA1,16
8Section
16. 118.134 (3) (d) of the statutes is amended to read:
AB297-ASA1,7,139
118.134
(3) (d) No school district
is required
by to comply with a decision and
10order issued under this subsection
on or before
July 1, 2011 the effective date of this
11paragraph .... [LRB inserts date], to terminate the use of a race-based nickname,
12logo, mascot, or team name
shall be required to comply with the terms of that decision
13and order until January 15, 2013.
AB297-ASA1,17
14Section
17. 118.134 (3r) of the statutes is created to read:
AB297-ASA1,7,1915
118.134
(3r) A school district may not be a member of an interscholastic
16athletic association that prohibits the use of a nickname, logo, mascot, or team name
17on the basis that the nickname, logo, mascot, or team name is race-based unless the
18use of the nickname, logo, mascot, or team name violates a decision and order issued
19under sub. (3) on or after the effective date of this subsection .... [LRB inserts date].
AB297-ASA1,18
20Section
18. 118.134 (4) of the statutes is renumbered 118.134 (4) (a) and
21amended to read:
AB297-ASA1,7,2322
118.134
(4) (a)
The Except as provided in par. (b), the state superintendent
23shall promulgate rules necessary to implement and administer this section.
AB297-ASA1,19
24Section
19. 118.134 (4) (b) of the statutes is created to read:
AB297-ASA1,8,3
1118.134
(4) (b) The state superintendent may not promulgate a rule that
2creates a presumption that a nickname, logo, mascot, or team name is race-based
3or promotes discrimination, pupil harassment, or stereotyping.
AB297-ASA1,20
4Section
20. 118.134 (5) of the statutes is amended to read:
AB297-ASA1,8,115
118.134
(5) Any school board that uses a race-based nickname, logo, mascot,
6or team name in violation of sub. (3) shall forfeit not less than $100 nor more than
7$1,000. Each day of use of the race-based nickname, logo, mascot, or team name in
8violation of sub. (3) constitutes a separate violation.
The state superintendent may
9not assess or collect a forfeiture under this subsection for a use that violates a
10decision and order issued under sub. (3) before the effective date of this subsection
11.... [LRB inserts date].
AB297-ASA1,21
12Section
21. 227.43 (1) (bd) of the statutes is created to read:
AB297-ASA1,8,1413
227.43
(1) (bd) Assign a hearing examiner to preside over any hearing of a
14contested case which is referred by the state superintendent under s. 118.134 (1).
AB297-ASA1,22
15Section
22. 227.43 (3) (br) of the statutes is created to read:
AB297-ASA1,8,1916
227.43
(3) (br) The administrator of the division of hearings and appeals may
17set the fees to be charged for any services rendered to the department of public
18instruction by a hearing examiner under this section. The fee shall cover the total
19cost of the services less any costs covered by the appropriation under s. 20.505 (4) (f).