36.12
36.12
Student discrimination prohibited. 36.12(1)(1)
No student may be denied admission to, participation in or the benefits of, or be discriminated against in any service, program, course or facility of the system or its institutions because of the student's race, color, creed, religion, sex, national origin, disability, ancestry, age, sexual orientation, pregnancy, marital status or parental status.
36.12(2)(a)(a) The board shall direct each institution to establish policies and procedures to protect students from discrimination under sub.
(1). The policies and procedures shall do all of the following:
36.12(2)(a)1.
1. Provide criteria for determining whether sub.
(1) has been violated.
36.12(2)(a)3.
3. Require a complainant to file a complaint with the institution within 300 days of the alleged violation of sub.
(1).
36.12(2)(a)4.
4. Provide periods within which the complainant and the institution must act for each procedural step leading to the issuance of a final decision and for appeal of the final decision to the chancellor of the institution.
36.12(2)(b)
(b) The board shall establish policies and procedures for the appeal of the chancellor's or dean's decision to the board.
36.12 Annotation
The exclusion of contraceptives from an employer or college or university sponsored benefits program that otherwise provides prescription drug coverage violates Wisconsin law prohibiting sex discrimination in employment and in higher education, ss. 111.31 to 111.395, 36.12, and 38.23.
OAG 1-04.
36.12 Annotation
Student body diversity is a compelling state interest that can justify the use of race in university admissions. A race-conscious admissions program cannot use a quota system, but may consider race or ethnicity as a plus factor for an applicant, without insulating the individual from comparison with all other candidates for the available seats. An admissions program must be flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight. Race-conscious admissions policies must be limited in time. Grutter v. Bollinger,
539 U.S. 306,
123 S. Ct. 2325,
156 L. Ed. 2d 304 (2003). See also Gratz v. Bollinger,
539 U.S. 244,
123 S. Ct. 2411,
156 L. Ed. 2d 257 (2003). But see Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, 600 U.S. ___,
143 S. Ct. 2141,
216 L. Ed. 2d 857 (2023).
36.12 Annotation
Under
Grutter,
539 U.S. 306 (2003), strict scrutiny must be applied to any university admissions program using racial categories or classifications. Once the university has established that its goal of diversity is consistent with strict scrutiny, however, there must still be a further judicial determination that the admissions process meets strict scrutiny in its implementation. The university must prove that the means chosen by the university to attain diversity are narrowly tailored to that goal. Strict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.
Grutter did not hold that good faith would forgive an impermissible consideration of race. Fisher v. University of Texas at Austin,
570 U.S. 297, 133 S. Ct. 2411, 186 L. Ed. 2d 474 (2013). See also Fisher v. University of Texas at Austin,
579 U.S. 365,
136 S. Ct. 2198,
195 L. Ed. 2d 511 (2016). But see Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, 600 U.S. ___,
143 S. Ct. 2141,
216 L. Ed. 2d 857 (2023).
36.12 Annotation
The Court has permitted race-based admissions only within the confines of narrow restrictions. University programs must comply with strict scrutiny, they may never use race as a stereotype or negative, and at some point they must end. In this case, the respondents' admissions systems, however well-intentioned and implemented in good faith, failed each of those criteria and must therefore be invalidated under the equal protection clause of the 14th amendment to the U.S. Constitution. Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, 600 U.S. ___,
143 S. Ct. 2141,
216 L. Ed. 2d 857 (2023).
