LRB-4378/1
FFK:emw
2023 - 2024 LEGISLATURE
October 16, 2023 - Introduced by Senators Larson,
L. Johnson, Smith, Roys,
Hesselbein, Agard, Spreitzer, Carpenter and Pfaff, cosponsored by
Representatives Shelton, Ratcliff, Jacobson, C. Anderson, Considine,
Shankland, J. Anderson, Baldeh, Cabrera, Clancy, Conley, Haywood, Hong,
Joers, Ohnstad, Palmeri, Sinicki, Snodgrass, Stubbs and Vining. Referred to
Committee on Education.
SB507,1,8
1An Act to repeal 118.134 (3r), 118.134 (4) (b), 227.43 (1) (bd), 227.43 (3) (br) and
2227.43 (4) (br);
to renumber and amend 118.134 (1m) (b), 118.134 (2) and
3118.134 (4) (a);
to amend 118.134 (1), 118.134 (1m) (a), 118.134 (3) (a), 118.134
4(3) (b) 2. and 118.134 (3) (c); and
to create 20.255 (2) (kg), 20.505 (8) (hm) 29.,
5118.134 (1m) (a) 1m., 118.134 (1m) (b) 2., 118.134 (2) (b) and 118.134 (6) of the
6statutes;
relating to: race-based nicknames, logos, mascots, and team names;
7providing an exemption from rule-making and emergency rule procedures; and
8making an appropriation.
Analysis by the Legislative Reference Bureau
This bill restores the law as it existed prior to the enactment of
2013 Wisconsin
Act 115 governing the use of race-based nicknames, logos, mascots, and team names
by school boards and authorizes the Department of Public Instruction to award a
grant to a school board that terminates the use of a race-based nickname, logo,
mascot, or team name that is associated with a federally recognized American Indian
tribe or American Indians.
Under current law, a complaint to object to a school board's 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 10 percent of the school district's
membership, and the signatures must be obtained within the 120-day period before
the complaint is filed. The bill eliminates this requirement. Under the bill, the state
superintendent of public instruction must immediately review a complaint
submitted by a school district resident and determine whether the use of the
nickname or team name by the school board, alone or in connection with a logo or
mascot, is ambiguous as to whether it is race-based.
Under current law, the Division of Hearings and Appeals is required to hold a
hearing on a complaint objecting to a school board's use of a race-based nickname,
logo, mascot, or team name. Under the bill, unless the state superintendent
determines that a contested case hearing is not necessary or otherwise postpones the
hearing, the state superintendent must hold a hearing within 45 days of receiving
such a complaint. The bill also 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 board to demonstrate that the nickname, logo, mascot, or team name
does not promote discrimination, pupil harassment, or stereotyping.
Under current law, the state superintendent may forego a hearing on a
complaint 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 of the nickname, logo, mascot, or team
name. The bill restricts the state superintendent's authority to forego a hearing to
only those situations in which the American Indian tribe that is referenced, depicted,
or portrayed in the nickname, logo, mascot, or team name approved the use.
Under current law, a school district is prohibited 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 and order
issued on or after December 21, 2013. The bill eliminates this prohibition. The bill
also eliminates a prohibition against the state superintendent promulgating rules
that create a presumption of what constitutes a race-based nickname, logo, mascot,
or team name that promotes discrimination, pupil harassment, or stereotyping.
Under the bill, DPI may award a grant to a school board that terminates the
use of a race-based nickname, logo, mascot, or team name, regardless of whether the
termination is voluntary, in response to an objection, or to comply with an order. The
bill specifies that the amount of the grant may not exceed the greater of $50,000 or
the actual cost incurred by the school board to replace the race-based nickname, logo,
mascot, or team name. Under the bill, these grants are funded from Indian gaming
receipts.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB507,1
1Section
1. 20.005 (3) (schedule) of the statutes: at the appropriate place, insert
2the following amounts for the purposes indicated:
-
See PDF for table ![PDF](https://docs.legis.wisconsin.gov/assets/image/file_acrobat.gif)
SB507,2
3Section 2
. 20.255 (2) (kg) of the statutes is created to read:
SB507,3,94
20.255
(2) (kg)
Grants to replace certain race-based nicknames, logos, mascots,
5and team names. The amounts in the schedule for grants to school boards under s.
6118.134 (6). All moneys transferred from the appropriation account under s. 20.505
7(8) (hm) 29. shall be credited to this appropriation account. Notwithstanding s.
820.001 (3) (a), the unencumbered balance on June 30 of each year shall revert to the
9appropriation account under s. 20.505 (8) (hm).
SB507,3
10Section 3
. 20.505 (8) (hm) 29. of the statutes is created to read:
SB507,3,1211
20.505
(8) (hm) 29. The amount transferred to s. 20.255 (2) (kg) shall be the
12amount in the schedule under s. 20.255 (2) (kg).
SB507,4
13Section
4. 118.134 (1) of the statutes is amended to read:
SB507,4,714
118.134
(1) Notwithstanding s. 118.13 and except as provided in sub. (3m), a
15school district resident may object to the use of a race-based nickname, logo, mascot,
16or team name by the school board of that school district by filing a complaint
17containing a number of signatures of school district electors equal to at least 10
18percent of the school district's membership, as defined in s. 121.004 (5), with the state
1superintendent.
A signature on a complaint is valid only if the signature is obtained
2within the 120-day period before the complaint is filed with the state
3superintendent. If a complainant objects to the use of a nickname or team name by
4the school board, the state superintendent shall immediately review the complaint
5and determine whether the use of the nickname or team name by the school board,
6alone or in connection with a logo or mascot, is ambiguous as to whether it is
7race-based. The state superintendent shall do all of the following:
SB507,4,118
(a) Notify the school board of the receipt of the complaint
and of the state
9superintendent's determination regarding whether the use of the nickname or team
10name is ambiguous as to whether it is race-based and direct the school board to
11submit, if applicable, any of the information under sub. (1m) (a).
SB507,4,1512
(b) Except as provided in sub. (1m),
refer the complaint to the division of
13hearings and appeals for a contested case hearing. The division of hearings and
14appeals shall schedule a
hearing on the referred complaint with reasonable
15promptness contested case hearing within 45 days after the complaint is filed.
SB507,5
16Section
5. 118.134 (1m) (a) of the statutes is amended to read:
SB507,4,2117
118.134
(1m) (a) The state superintendent may determine that no contested
18case hearing is necessary
or that a hearing date may be postponed for the purpose
19of obtaining additional information from the school board if, no later than 10 days
20after being notified of the receipt of the complaint, the school board submits evidence
21to the state superintendent that demonstrates all of the following:
SB507,5,322
2.
A The federally recognized American Indian tribe
that has historical ties
23to this state has entered into an agreement with the school board under which the
24tribe grants under subd. 1m. has granted approval to the school board to refer to,
25depict, or portray the tribe
or American Indians, in general, in a
specific nickname,
1logo, or mascot or to use the name of the tribe
or American Indians, in general, as a
2team name in the specific manner used by the school board
and has not rescinded
3that approval.
SB507,5,64
3. The use of the nickname, logo, mascot, or team name that has been approved
5by
a the tribe
under as provided in subd. 2. is the use to which the school district
6resident objects in the complaint filed under sub. (1).
SB507,6
7Section
6. 118.134 (1m) (a) 1m. of the statutes is created to read:
SB507,5,108
118.134
(1m) (a) 1m. The nickname, logo, mascot, or team name that is used
9by the school board and that is the basis of the complaint is a reference to, a depiction
10or portrayal of, or the name of a specific, federally recognized American Indian tribe.
SB507,7
11Section
7. 118.134 (1m) (b) of the statutes is renumbered 118.134 (1m) (b)
12(intro.) and amended to read:
SB507,5,1613
118.134
(1m) (b) (intro.) If the state superintendent
determines that a
14contested case hearing is not necessary does any of the following, the state
15superintendent shall notify the school district resident who filed the complaint under
16sub. (1) and the school board of his or her decision in writing
.:
SB507,5,18
171. Determines that a contested case hearing is not necessary. A decision under
18this
paragraph subdivision is subject to judicial review under ch. 227.
SB507,8
19Section
8. 118.134 (1m) (b) 2. of the statutes is created to read:
SB507,5,2020
118.134
(1m) (b) 2. Postpones a hearing date as provided in par. (a).
SB507,9
21Section
9. 118.134 (2) of the statutes is renumbered 118.134 (2) (a) and
22amended to read:
SB507,6,223
118.134
(2) (a)
At Except as provided in par. (b), at the hearing, the school
24district resident who filed the complaint under sub. (1) board has the burden of
25proving by clear and convincing evidence that the use of the race-based nickname,
1logo, mascot, or team name
promotes does not promote discrimination, pupil
2harassment, or stereotyping, as defined by the state superintendent by rule.
SB507,10
3Section
10. 118.134 (2) (b) of the statutes is created to read:
SB507,6,114
118.134
(2) (b) 1. Except as provided in subd. 2., if the state superintendent
5determined under sub. (1) that the use of a nickname or team name by a school board
6is ambiguous as to whether it is race-based, the use of the nickname or team name
7by the school board shall be presumed to be not race-based, and the school district
8resident who filed the complaint under sub. (1) has the burden of proving by clear and
9convincing evidence at the hearing that the use of the nickname or team name by the
10school board promotes discrimination, pupil harassment, or stereotyping, as defined
11by the state superintendent by rule.
SB507,6,1812
2. If the state superintendent determined under sub. (1) that the use of a
13nickname or team name by a school board is ambiguous as to whether it is race-based
14but that the use of the nickname or team name in connection with a logo or mascot
15is race-based, the school board has the burden of proving by clear and convincing
16evidence at the hearing that the use of the nickname or team name in connection with
17the logo or mascot does not promote discrimination, pupil harassment, or
18stereotyping, as defined by the state superintendent by rule.
SB507,11
19Section
11. 118.134 (3) (a) of the statutes is amended to read:
SB507,7,520
118.134
(3) (a) The
division of hearings and appeals state superintendent shall
21issue a decision and order within 45 days after the hearing. If the
division of hearings
22and appeals state superintendent finds that the use of the race-based nickname,
23logo, mascot, or team name does not promote discrimination, pupil harassment, or
24stereotyping, the
division of hearings and appeals
state superintendent shall
25dismiss the complaint. Except as provided in pars. (b) and (d), if the
division of
1hearings and appeals state superintendent finds that the use of the race-based
2nickname, logo, mascot, or team name promotes discrimination, pupil harassment,
3or stereotyping, the
division of hearings and appeals state superintendent shall
4order the school board to terminate its use of the race-based nickname, logo, mascot,
5or team name within 12 months after issuance of the order.
SB507,12
6Section
12. 118.134 (3) (b) 2. of the statutes is amended to read:
SB507,7,167
118.134
(3) (b) 2. a. If, at the hearing under sub. (2) or after a decision and order
8have been issued under par. (a), the school board presents evidence to the
division
9of hearings and appeals state superintendent that extenuating circumstances
10render full compliance with the decision and order within 12 months after the
11issuance of that decision and order impossible or impracticable, the
division of
12hearings and appeals state superintendent may issue an order to extend the time
13within which the school board must terminate its use of the race-based nickname,
14logo, mascot, or team name. Except as provided in subd. 2. b., the extension may not
15exceed 24 months and shall apply only to those portions of the decision and order to
16which extenuating circumstances apply.
SB507,7,2517
b. The
division of hearings and appeals state superintendent may extend the
18time granted to a school board under subd. 2. a. if the school board presents evidence
19to the
division of hearings and appeals state superintendent that compliance with
20a portion of the decision and order issued under par. (a) may be accomplished through
21a regularly scheduled maintenance program and that the cost of compliance with
22that portion of the decision and order exceeds $5,000. The extension granted under
23this subd. 2. b. may not exceed 96 months and applies only to that portion of the
24decision and order with which compliance will be accomplished through the
25regularly scheduled maintenance program and that costs more than $5,000.
SB507,13
1Section
13. 118.134 (3) (c) of the statutes is amended to read:
SB507,8,52
118.134
(3) (c) Decisions
of the state superintendent under this subsection are
3subject to judicial review under ch. 227.
The venue for a proceeding to review a
4decision under this section is the circuit court in any county in which territory of the
5school district is located.
SB507,14
6Section
14. 118.134 (3r) of the statutes is repealed.
SB507,15
7Section
15. 118.134 (4) (a) of the statutes is renumbered 118.134 (4) and
8amended to read:
SB507,8,109
118.134
(4) Except as provided in par. (b), the The state superintendent shall
10promulgate rules necessary to implement and administer this section.
SB507,16
11Section
16. 118.134 (4) (b) of the statutes is repealed.
SB507,17
12Section 17
. 118.134 (6) of the statutes is created to read:
SB507,8,2313
118.134
(6) Regardless of whether or not an objection is made under sub. (1)
14or an order is issued under sub. (3), if a school board adopts a resolution to terminate
15the use of a race-based nickname, logo, mascot, or team name that is associated with
16a federally recognized American Indian tribe or American Indians, in general, the
17state superintendent may award a grant to the school board for the costs associated
18with adopting and implementing a nickname, logo, mascot, or team name that is not
19race-based
. The state superintendent may not award a grant under this subsection
20in an amount that exceeds the greater of $50,000 or a school board's actual costs to
21adopt and implement a nickname, logo, mascot, or team name. The state
22superintendent shall pay the awards under this subsection from the appropriation
23under s. 20.255 (2) (kg).