Wisconsin Supreme Court weighs race-based college grants

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The Wisconsin Supreme Court heard oral arguments on Wednesday about whether undergraduate retention grants for certain minority students are constitutional.

The case comes to the state’s high court two years after a U.S. Supreme Court ruling significantly curtailed race-based college admissions. That leaves Wisconsin’s justices to decide whether the state program can continue under that precedent.

Last year, a Wisconsin appeals court ruled that the state-run Minority Undergraduate Retention Grant Program violates the Equal Protection Clause of the U.S. Constitution by offering taxpayer dollars to low-income students of only some racial or national backgrounds.

That decision suggested the federal court’s decision applies in “nearly every context in which government attempts to use race, national origin, ancestry or alienage as a discriminating factor” — even outside of educational situations.

The minority grant program was established by the state Legislature in the 1985-87 biennial budget. Awards are based on financial need, with a minimum grant of $250 and a maximum grant of $2,500 per year.

According to statute, a minority student is defined as a student who is a Black American, American Indian, Hispanic, or Southeast Asian from Laos, Cambodia, or Vietnam admitted to the United States after Dec. 31, 1975.

Charlotte Gibson argued on behalf of the state, saying the program is a targeted solution to correct dramatic disproportionate educational outcomes.

Gibson said that students in the program don’t “unduly burden” non-minority students because the grant amounts are small.

The grant total in 2023-24 was $440,433 for 770 students according to the program’s 2023-24 annual report.

“So, the amount being so tiny means that there isn’t a burden on those who can’t take advantage of it,” Gibson said.

But Justice Brian Hagedorn challenged Gibson, saying that the burden is that the program is based on race.

“I mean, that seems pretty textbook to me,” Hagedorn said. “That’s a burden on the people who are eliminated purely because of their ethnic or racial heritage.”

Luke Berg, with the Wisconsin Institute for Law and Liberty, took a defiant tone with the court on Tuesday while arguing for the plaintiff.

He advised justices to “DIG,” an acronym for “Dismissed as Improvidently Granted.”

“If you read the Court of Appeals opinion, there’s nothing to improve upon here,” Berg told the court. “Why would you spend the next six months —”

The court quickly told Berg they would not relinquish their duty.

“I have yet to have someone argue to us that we shouldn’t do our job because it affects the taxpayer when you, as litigants, are the ones bringing cases that affect the taxpayer,” said Justice Rebecca Dallet. “I mean, that seems like a crazy argument to me, and if you thought that we weren’t going to do the right thing, maybe you should have brought a federal (case) in the first place. I mean, that’s offensive, that we shouldn’t do our jobs.”

Berg went on to argue that the state’s argument that the scholarships help students get an equal opportunity at education is “incoherent.”

“It’s an opportunity available to some races and not to others,” Berg said. “So how they can claim that an unequal, racially discriminatory scholarship program furthers interest in equal educational opportunity is, to me, incoherent.”

The court asked Berg if a state financial aid program based on low-income status, lack of home ownership, school attendance at poorly performing high schools and first-generation college students would be constitutional.

“Maybe,” Berg answered.

“It can’t have race-based intent,” he said.

A ruling is expected in July.