LRBs0068/1
TKK:jld:md
2009 - 2010 LEGISLATURE
ASSEMBLY SUBSTITUTE AMENDMENT 1,
TO 2009 ASSEMBLY BILL 35
June 18, 2009 - Offered by Representative Soletski.
AB35-ASA1,1,4
1An Act to create 118.134 of the statutes;
relating to: the use of race-based
2nicknames, logos, mascots, and team names by school boards, providing an
3exemption from emergency rule procedures, requiring the exercise of
4rule-making authority, and providing a penalty.
Analysis by the Legislative Reference Bureau
Current law prohibits discrimination against pupils on a number of grounds,
including race and ancestry. This substitute amendment provides that 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). The state superintendent must schedule 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.
If the state superintendent finds in favor of the complainant, the state
superintendent must order the school board to terminate its use of the race-based
nickname, logo, mascot, or team name within 12 months after issuance of the order.
A school board is subject to a forfeiture of not less than $100 nor more than $1,000
for each day that it uses the race-based nickname, logo, mascot, or team name in
violation of the order. The decision of the state superintendent is subject to circuit
court review.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB35-ASA1,2,7
2118.134 Race-based nicknames, logos, mascots, and team names. (1) 3Notwithstanding s. 118.13, a school district resident may object to the use of a
4race-based nickname, logo, mascot, or team name by the school board of that school
5district by filing a complaint with the state superintendent. The state
6superintendent shall notify the school board of the receipt of the complaint and
7schedule a contested case hearing within 45 days after the complaint is filed.
AB35-ASA1,2,11
8(2) At the hearing, the school board has the burden of proving by clear and
9convincing evidence that the use of the race-based nickname, logo, mascot, or team
10name does not promote discrimination, pupil harassment, or stereotyping, as
11defined by the state superintendent by rule.
AB35-ASA1,2,20
12(3) (a) The state superintendent shall issue a decision and order within 45 days
13after the hearing. If the state superintendent finds that the use of the race-based
14nickname, logo, mascot, or team name does not promote discrimination, pupil
15harassment, or stereotyping, the state superintendent shall dismiss the complaint.
16Except as provided in par. (b), if the state superintendent finds that the use of the
17race-based nickname, logo, mascot, or team name promotes discrimination, pupil
18harassment, or stereotyping, the state superintendent shall order the school board
19to terminate its use of the race-based nickname, logo, mascot, or team name within
2012 months after issuance of the order.
AB35-ASA1,3,6
1(b) 1. In this paragraph, "extenuating circumstances" includes circumstances
2in which the costs of compliance with an order issued under par. (a) pose an undue
3financial burden on the school district and circumstances in which the work or the
4requirements for bidding a contract to complete the work required to bring the school
5district into compliance with the order issued under par. (a) cannot be completed
6within 12 months after the issuance of the order.
AB35-ASA1,3,157
2. If, at the hearing under sub. (2) or after a decision and order have been issued
8under par. (a), the school board presents evidence to the state superintendent that
9extenuating circumstances render full compliance with the decision and order
10within 12 months after the issuance of that decision and order impossible or
11impracticable, the state superintendent may issue an order to extend the time within
12which the school board must terminate its use of the race-based nickname, logo,
13mascot, or team name. The extension authorized under this subdivision shall not
14exceed 24 months and shall apply only to those portions of the decision and order to
15which extenuating circumstances apply.
AB35-ASA1,3,1716
(c) Decisions of the state superintendent under this subsection are subject to
17judicial review under ch. 227.
AB35-ASA1,3,19
18(4) The state superintendent shall promulgate rules necessary to implement
19and administer this section.
AB35-ASA1,3,23
20(5) Any school board that uses a race-based nickname, logo, mascot, or team
21name in violation of sub. (3) shall forfeit not less than $100 nor more than $1,000.
22Each day of use of the race-based nickname, logo, mascot, or team name in violation
23of sub. (3) constitutes a separate violation.
AB35-ASA1,4,4
1(1)
The department of public instruction shall submit in proposed form the
2rules required under section 118.134 (4) of the statutes, as created by this act, to the
3legislative council staff under section 227.15 (1) of the statutes no later than the first
4day of the 6th month beginning after the effective date of this subsection.
AB35-ASA1,4,135
(2) Using the procedure under section 227.24 of the statutes, the department
6of public instruction may promulgate rules required under section 118.134 (4) of the
7statutes, as created by this act, for the period before the effective date of the rules
8submitted under subsection (1), but not to exceed the period authorized under section
9227.24 (1) (c) and (2) of the statutes. Notwithstanding section 227.24 (1) (a), (2) (b),
10and (3) of the statutes, the department is not required to provide evidence that
11promulgating a rule under this subsection as an emergency rule is necessary for the
12preservation of the public peace, health, safety, or welfare and is not required to
13provide a finding of emergency for a rule promulgated under this subsection.
