J P Leary, ConsultantJ P Leary, ConsultantAmerican Indian Studies ProgramAmerican Indian Studies ProgramWisconsin Department of Public Wisconsin Department of Public

InstructionInstruction

A Brief Policy History of the A Brief Policy History of the American Indian Mascot, American Indian Mascot,

Logo, and Nickname Issue in Logo, and Nickname Issue in WisconsinWisconsin

PrefacePreface

The Wisconsin Department of Public The Wisconsin Department of Public Instruction is the state agency that Instruction is the state agency that advances public education and advances public education and libraries in Wisconsin. libraries in Wisconsin.

The department is headed by the The department is headed by the State Superintendent of Public State Superintendent of Public Instruction, a nonpartisan, Instruction, a nonpartisan, constitutional officer elected every constitutional officer elected every four years.four years.

Policy ContextPolicy Context Elected State Elected State

SuperintendentSuperintendent No State School No State School

BoardBoard Local Control Local Control 426 School Districts426 School Districts 12 Cooperative 12 Cooperative

Educational Service Educational Service AgenciesAgencies

39 Teacher 39 Teacher Education Education ProgramsPrograms

State Superintendent Tony Evers

Dual DPI RolesDual DPI Roles

Two Distinct Roles:Two Distinct Roles: Educational LeadershipEducational Leadership

Moral authorityMoral authority Political PersuasionPolitical Persuasion

Administrative AgencyAdministrative Agency Statutorily defined rolesStatutorily defined roles

Arbiter of appeals, s. 118.13Arbiter of appeals, s. 118.13 Contested case hearing examiner, s. Contested case hearing examiner, s.

118.134118.134 Prescriptive processesPrescriptive processes

Educational LeadershipEducational Leadership

The State Superintendent is a non-The State Superintendent is a non-partisan, elected official whose office partisan, elected official whose office was established by state constitution. was established by state constitution.

The State Superintendent’s leadership The State Superintendent’s leadership role is role is to promote effective, role is role is to promote effective, equitable educational practices that equitable educational practices that result in high academic achievement result in high academic achievement for all students.for all students.

Arbiter of AppealsArbiter of Appeals

Those alleging discrimination must Those alleging discrimination must first follow the local complaint first follow the local complaint processes before appealing any processes before appealing any unsatisfactory findings with DPI. unsatisfactory findings with DPI.

DPI hears appeals of unsatisfactory DPI hears appeals of unsatisfactory decisions.decisions.

Arbiter of AppealsArbiter of Appeals

s.118.13 s.118.13 Wis. StatsWis. Stats. charges the . charges the state superintendent with deciding state superintendent with deciding appeals of negative determinations appeals of negative determinations by local school boards under that by local school boards under that statute and with promulgating the statute and with promulgating the necessary administrative rules to do necessary administrative rules to do so.so.

PI 9 PI 9 Wis. Admin. CodeWis. Admin. Code provides provides the procedures for doing so.the procedures for doing so.

Key CasesKey Cases

Two key OCR casesTwo key OCR cases Chief IlliniwekChief Illiniwek Pekin, IL ChinksPekin, IL Chinks

““Reasonable person similarly Reasonable person similarly situated to the appellant” situated to the appellant”

Legal standards assess the totality Legal standards assess the totality of circumstances of circumstances

First Complaint: Milton (1991)First Complaint: Milton (1991)

January : Carol Hand filed a formal complaint January : Carol Hand filed a formal complaint with the Milton School District under the pupil with the Milton School District under the pupil nondiscrimination statute.nondiscrimination statute.

March: Hand appealed the negative March: Hand appealed the negative determination of her complaint to the State determination of her complaint to the State Superintendent under s. 118.13. A central Superintendent under s. 118.13. A central issue was whether she, as a community issue was whether she, as a community member, had standing to file a complaint. member, had standing to file a complaint.

December : Rock Co. Circuit Court orders DPI December : Rock Co. Circuit Court orders DPI to “desist and refrain from taking any further to “desist and refrain from taking any further action in the Carol Hand appeal.”action in the Carol Hand appeal.”

State Superintendent GroverState Superintendent Grover

May 1992: State Superintendent May 1992: State Superintendent Herbert Grover requested legal Herbert Grover requested legal guidance from the Attorney General guidance from the Attorney General on school logos, mascots, and on school logos, mascots, and nicknames.nicknames.

Attorney General James Doyle Attorney General James Doyle responded that fall.responded that fall.

Attorney General’s Opinion (1992)Attorney General’s Opinion (1992)

Logo/Mascot Issues DO fall under the Logo/Mascot Issues DO fall under the purview of s. 118.13 and PI 9.purview of s. 118.13 and PI 9.

Logos and mascots are NOT per se Logos and mascots are NOT per se discriminatory and must be judged on discriminatory and must be judged on a case by case basis.a case by case basis.

Intent is not an issue, thus there is no Intent is not an issue, thus there is no need to prove intent to discriminate.need to prove intent to discriminate.

Grover circulated the opinion to all Grover circulated the opinion to all school districts in October 1992.school districts in October 1992.

Athletic Guidelines (1993)Athletic Guidelines (1993)

““Athletic Guidelines,” a new Athletic Guidelines,” a new publication of the Department of publication of the Department of Public Instruction and the Wisconsin Public Instruction and the Wisconsin Interscholastic Athletic Association Interscholastic Athletic Association (WIAA), included Grover’s letter and (WIAA), included Grover’s letter and the Attorney General’s opinion on the Attorney General’s opinion on school mascots, logos, and school mascots, logos, and nicknames.nicknames.

AJR 27 (1993)AJR 27 (1993) Sponsors: Reps. Boyle, Turner, Musser, Sponsors: Reps. Boyle, Turner, Musser,

Bock, Holperin, Riley, Baldwin, R. Young, L. Bock, Holperin, Riley, Baldwin, R. Young, L. Young, LaFave, Gruszynski; Sen. Moore.Young, LaFave, Gruszynski; Sen. Moore.

““Relating to calling upon school boards to Relating to calling upon school boards to review stereotypical depictions of review stereotypical depictions of American Indians in school and athletic American Indians in school and athletic team logos, mascots, and nicknames.”team logos, mascots, and nicknames.”

Passed Assembly as amended, June 15, Passed Assembly as amended, June 15, 1993 (57-36). Senate Education 1993 (57-36). Senate Education Committee concurred on January 12, 1994. Committee concurred on January 12, 1994. Senate failed to concur pursuant to SJR 1. Senate failed to concur pursuant to SJR 1.

State Superintendent BensonState Superintendent Benson

April 1, 1994 State Superintendent John T. April 1, 1994 State Superintendent John T. Benson issues a letter to school districtsBenson issues a letter to school districts

Benson urged districts to “take steps to Benson urged districts to “take steps to change this mascot to one which is ethnic (as change this mascot to one which is ethnic (as well as gender) sensitive.”well as gender) sensitive.”

Noted numerous objections of and resolutions Noted numerous objections of and resolutions by tribal, intertribal, and other organizations. by tribal, intertribal, and other organizations.

““I believe that American Indian related I believe that American Indian related mascots, logos, and nicknames are entirely mascots, logos, and nicknames are entirely inappropriate for use in Wisconsin’s public inappropriate for use in Wisconsin’s public schools.”schools.”

AB 488 (1995)AB 488 (1995) Sponsors: Reps. Nass, Jensen, Kreibich, Sponsors: Reps. Nass, Jensen, Kreibich,

Grothman, Ladwig, Wood, Ward, Owens, Dobyns, Grothman, Ladwig, Wood, Ward, Owens, Dobyns, Goetsch, Olsen, Gunderson, Duff, Hahn, Goetsch, Olsen, Gunderson, Duff, Hahn, Schneiders, Zukowski, Silbaugh, Kaufert, Walker, Schneiders, Zukowski, Silbaugh, Kaufert, Walker, Kreuser, Handrick, Vrakas, and Otte; Sens. Zien Kreuser, Handrick, Vrakas, and Otte; Sens. Zien and Weeden.and Weeden.

Amends pupil nondiscrimination law so that it Amends pupil nondiscrimination law so that it would NOT prohibit the use of any logo, mascot, would NOT prohibit the use of any logo, mascot, or nickname by any public school regardless of or nickname by any public school regardless of when it was adopted.when it was adopted.

August 29, 1995 – Public hearing before the August 29, 1995 – Public hearing before the Assembly Education Committee.Assembly Education Committee.

Bill did not pass.Bill did not pass.

Mukwonago AppealMukwonago Appeal Filed at DPI September 16, 1994; decision Filed at DPI September 16, 1994; decision

announced Nov. 2, 1995.announced Nov. 2, 1995. By failing to acknowledge and resolve related By failing to acknowledge and resolve related

complaints of discrimination the School Board DID complaints of discrimination the School Board DID violate s. 118.13 Wis. Stats. and PI 9.violate s. 118.13 Wis. Stats. and PI 9.

The high school logo DID NOT in and of itself The high school logo DID NOT in and of itself violate s. 118.13 Wis. Stats. and PI 9.violate s. 118.13 Wis. Stats. and PI 9.

The district DID violate s. 118.13 Wis. Stats. and The district DID violate s. 118.13 Wis. Stats. and PI 9 by failing to eliminate a racially hostile PI 9 by failing to eliminate a racially hostile environment detrimental to the appellant.environment detrimental to the appellant.

The middle school logo DID appear to encourage The middle school logo DID appear to encourage behavior contributing to a racially hostile behavior contributing to a racially hostile environment.environment.

Mukwonago AppealMukwonago Appeal

District released personally identifiable District released personally identifiable information regarding the student involved. information regarding the student involved. DPI noted that this could have “a chilling DPI noted that this could have “a chilling effect” upon others who might file complaints. effect” upon others who might file complaints. It is the department’s recommendation that It is the department’s recommendation that complainant information be held confidential complainant information be held confidential as student records.as student records.

The superintendent affirmed the district’s The superintendent affirmed the district’s discontinuation of the “old” Park View Middle discontinuation of the “old” Park View Middle School logo. It was viewed as discriminatory School logo. It was viewed as discriminatory and discontinued. NOTE: This set a and discontinued. NOTE: This set a precedent re: logo use and discontinuation.precedent re: logo use and discontinuation.

Mosinee AppealMosinee Appeal

Filed at DPI July 15, 1994; decision Filed at DPI July 15, 1994; decision announced March 12, 1996.announced March 12, 1996.

The department concluded that a The department concluded that a “reasonable person similarly situated to “reasonable person similarly situated to the appellant” would NOT be offended by the appellant” would NOT be offended by the Plains Indian logo.the Plains Indian logo.

DPI DID NOT find a severe, persistent, and DPI DID NOT find a severe, persistent, and pervasive pattern of racially hostile acts pervasive pattern of racially hostile acts which rose to the level of a racially hostile which rose to the level of a racially hostile environment.environment.

Mosinee AppealMosinee Appeal Decision “should be in no way construed as an Decision “should be in no way construed as an

endorsement of the Mosinee High School endorsement of the Mosinee High School ‘Indians’ nickname or logo. Nor should this ‘Indians’ nickname or logo. Nor should this decision be construed as a retreat from the decision be construed as a retreat from the State Superintendent’s leadership position State Superintendent’s leadership position urging public schools to review and work urging public schools to review and work toward elimination of Indian logos, mascots, or toward elimination of Indian logos, mascots, or nicknames as school symbols. Clearly such nicknames as school symbols. Clearly such symbols are potentially offensive, symbols are potentially offensive, discriminatory and harmful to all students.”discriminatory and harmful to all students.”

Decision compliments the appellants’ skill in Decision compliments the appellants’ skill in explaining the issue.explaining the issue.

SB 341 (1997)SB 341 (1997) Sponsors: Sens. Moore, Burke; Reps. Boyle, Sponsors: Sens. Moore, Burke; Reps. Boyle,

Turner, Morris-Tatum, Baldwin, L. Young.Turner, Morris-Tatum, Baldwin, L. Young. Referred to Senate Education Committee.Referred to Senate Education Committee. Prohibits the use of Apaches, Blackhawks, Prohibits the use of Apaches, Blackhawks,

Braves, Chiefs, Chieftains, Indees, Indians, Braves, Chiefs, Chieftains, Indees, Indians, Raiders, Red Raiders, Redmen, Warhawks, and Raiders, Red Raiders, Redmen, Warhawks, and Warriors and prohibits use of an American Warriors and prohibits use of an American Indian name if the State Superintendent Indian name if the State Superintendent considers it to be a violation of s. 118.13.considers it to be a violation of s. 118.13.

Public hearing held in Senate Education Public hearing held in Senate Education Committee.Committee.

Bill did not pass.Bill did not pass.

Court of Appeals (1998)Court of Appeals (1998) Unpublished opinion, Unpublished opinion, Munson and Students A,B, and Munson and Students A,B, and

C., v. State Superintendent of Public Instruction and C., v. State Superintendent of Public Instruction and School District of Mosinee, Court of Appeals School District of Mosinee, Court of Appeals Unpublished Opinion No. 97-1450, Feb. 17, 1998.Unpublished Opinion No. 97-1450, Feb. 17, 1998.

Court of Appeals held that DPI was correct to apply Court of Appeals held that DPI was correct to apply the “reasonable person” standard to evaluate the the “reasonable person” standard to evaluate the logo and correctly applied the standard.logo and correctly applied the standard.

Affirmed the conclusion that a reasonably situated Affirmed the conclusion that a reasonably situated person need not find the depiction negative, person need not find the depiction negative, detrimental, or harmful.detrimental, or harmful.

Court ultimately upheld both the process and Court ultimately upheld both the process and findings.findings.

SB 217/AB 433 (1999)SB 217/AB 433 (1999) Sponsors: Sens. George, Risser; Reps. Boyle, Sponsors: Sens. George, Risser; Reps. Boyle,

Young, Carpenter, Turner, Pocan, and LaFave. Young, Carpenter, Turner, Pocan, and LaFave. Referred to Senate Education Committee Referred to Senate Education Committee

(Grobschmidt) and Assembly Education (Grobschmidt) and Assembly Education Reform (Nass).Reform (Nass).

Several advocates and DPI staff, including Several advocates and DPI staff, including Supt. Benson, all attended one or more Supt. Benson, all attended one or more meetings with Rep. Boyle on this issue prior meetings with Rep. Boyle on this issue prior to the bill’s introduction.to the bill’s introduction.

Hearing held in Senate Education Committee, Hearing held in Senate Education Committee, March 2000.March 2000.

SB 217/AB 433 (1999)SB 217/AB 433 (1999) Amend s.118.13 to create a means to file a Amend s.118.13 to create a means to file a

direct complaint to the State Superintendent direct complaint to the State Superintendent regarding a public school’s use of an ethnic regarding a public school’s use of an ethnic nickname, logo, or mascot . nickname, logo, or mascot .

Shift the burden of proof “by clear and Shift the burden of proof “by clear and convincing evidence” to school boards. convincing evidence” to school boards.

Require the State Superintendent to order Require the State Superintendent to order termination of the offending nickname, logo, termination of the offending nickname, logo, or mascot within 12 months of the decision. or mascot within 12 months of the decision.

Fine of $100-$1000 per day for failure to Fine of $100-$1000 per day for failure to comply. comply.

All decisions would be subject to circuit All decisions would be subject to circuit court review.court review.

Superintendent John BensonSuperintendent John Benson May 16, 2001 press release called for the May 16, 2001 press release called for the

elimination of American Indian mascots, logos, elimination of American Indian mascots, logos, and nicknames.and nicknames.

““No mascot, logo, or nickname is so important No mascot, logo, or nickname is so important that is supersedes a child’s right to learn.”that is supersedes a child’s right to learn.”

Expressed support for Rep. Boyle’s resolution Expressed support for Rep. Boyle’s resolution to eliminate American Indian mascots, logos, to eliminate American Indian mascots, logos, and nicknames by 2004-2005.and nicknames by 2004-2005.

Noted the experiences of several districts who Noted the experiences of several districts who eliminated “unneeded and unwanted” eliminated “unneeded and unwanted” symbols.symbols.

Included information on Verona’s change from Included information on Verona’s change from Indians to Wildcats.Indians to Wildcats.

SB 25/AB 92 (2001)SB 25/AB 92 (2001)

Sponsors: Sens. George, Moore, Risser, Sponsors: Sens. George, Moore, Risser, and Burke; Reps. Boyle, LaFave, and Burke; Reps. Boyle, LaFave, Carpenter, Coggs, Young, Pocan, Turner, Carpenter, Coggs, Young, Pocan, Turner, Sherman, Morris-Tatum, Riley, and Sherman, Morris-Tatum, Riley, and Berceau. Berceau.

Substantially similar to 1999 SB 217/AB Substantially similar to 1999 SB 217/AB 433. 433.

Referred to Senate Education Committee. Referred to Senate Education Committee. No hearing or other further action.No hearing or other further action.

AB 357 (2003)AB 357 (2003)

Sponsors: Reps. Boyle, Musser, Sponsors: Reps. Boyle, Musser, Turner, J. Lehman, Sinicki, Morris, Turner, J. Lehman, Sinicki, Morris, Pocan, Young, Berceau, Coggs, and Pocan, Young, Berceau, Coggs, and Black; Sens. Risser, Moore, and Black; Sens. Risser, Moore, and Carpenter.Carpenter.

Substantially similar to 1999 SB Substantially similar to 1999 SB 217/AB 433.217/AB 433.

Referred to Assembly Education Referred to Assembly Education Reform Committee. No hearing or Reform Committee. No hearing or other further action.other further action.

Superintendent BurmasterSuperintendent Burmaster Burmaster was the first State Superintendent to speak Burmaster was the first State Superintendent to speak

at a Wisconsin Indian Education Association conference.at a Wisconsin Indian Education Association conference. Coverage from the Coverage from the Hocak Worak Hocak Worak noted:noted:

““Burmaster is aware that the Indian logo and mascot Burmaster is aware that the Indian logo and mascot issue still divides some Wisconsin communities and issue still divides some Wisconsin communities and stressed her commitment to work toward their stressed her commitment to work toward their abolishment. abolishment.

““She is concerned that the example it sets is contrary to She is concerned that the example it sets is contrary to what Native people are teaching their children.”what Native people are teaching their children.”

““Education combats prejudice,” she said, urging the need Education combats prejudice,” she said, urging the need to educate and partner with community leaders to get the to educate and partner with community leaders to get the message home.”message home.”

Hocak Worak [Ho-Chunk Nation’s newspaper], April 14, 2004 via Hocak Worak [Ho-Chunk Nation’s newspaper], April 14, 2004 via http://www.hocakworak.com/archive/2004/WL_2004_04_14/HW-040414-10.htm

Osseo-Fairchild AppealOsseo-Fairchild Appeal Filed at DPI December 1, 2004; decision issued Filed at DPI December 1, 2004; decision issued

April 11, 2005.April 11, 2005. The district DID violate PI 9.04 by failing to hold The district DID violate PI 9.04 by failing to hold

a hearing within 90 days.a hearing within 90 days. The district DID NOT violate s. 118.13 by using The district DID NOT violate s. 118.13 by using

an American Indian logo and nickname because:an American Indian logo and nickname because: The logo used is not The logo used is not per seper se discriminatory. discriminatory. A “reasonable person similarly situated to the A “reasonable person similarly situated to the

appellant” would not find the logo to be such a appellant” would not find the logo to be such a negative stereotype as to be harmful.negative stereotype as to be harmful.

The incidents cited by the complainant were not The incidents cited by the complainant were not sufficiently pervasive, severe, nor persistent as to sufficiently pervasive, severe, nor persistent as to interfere with the student's ability to benefit from the interfere with the student's ability to benefit from the district's instructional program and related offerings.district's instructional program and related offerings.

Osseo-Fairchild AppealOsseo-Fairchild Appeal The decision also notes the opposition of Wisconsin The decision also notes the opposition of Wisconsin

tribes, WIEA, GLITC, and other tribes and tribes, WIEA, GLITC, and other tribes and organizations outside Wisconsin and expresses the organizations outside Wisconsin and expresses the department's ongoing opposition to the use of department's ongoing opposition to the use of American Indians mascots, logos, and nicknames. American Indians mascots, logos, and nicknames.

““While the department found no evidence to While the department found no evidence to support a finding of discrimination with regard to support a finding of discrimination with regard to the logo under current legal standards, the the logo under current legal standards, the department believes that the department believes that the use of use of stereotypical American Indian logos does not stereotypical American Indian logos does not support sound educational practice support sound educational practice because it because it is contrary to the authentic culture, history and is contrary to the authentic culture, history and tribal sovereignty of American Indians.”tribal sovereignty of American Indians.”

SB 172/AB 395 (2005)SB 172/AB 395 (2005) Sponsors: Sens. Coggs, Risser, Robson, Sponsors: Sens. Coggs, Risser, Robson,

Carpenter, Hansen, Jauch, Miller, and Carpenter, Hansen, Jauch, Miller, and Breske; Reps. Boyle, Musser, Sherman, Breske; Reps. Boyle, Musser, Sherman, Ainsworth, Benedict, Berceau, Bies, Black, Ainsworth, Benedict, Berceau, Bies, Black, Colon, Fields, Grigsby, Hebl, Kessler, Colon, Fields, Grigsby, Hebl, Kessler, Wasserman, Krawczyk, Lehman, McCormick, Wasserman, Krawczyk, Lehman, McCormick, Molepske, Mursau, Nelson, Parisi, Pocan, Molepske, Mursau, Nelson, Parisi, Pocan, Pope-Roberts, Richards, Schneider, Seidel, Pope-Roberts, Richards, Schneider, Seidel, Sheridan, Shilling, Sinicki, Toles, Turner, Van Sheridan, Shilling, Sinicki, Toles, Turner, Van Roy, and Young.Roy, and Young.

Substantially similar to 1999 SB 217/AB 433.Substantially similar to 1999 SB 217/AB 433. Referred to Senate Education Committee Referred to Senate Education Committee

and Assembly Committee on State Affairs.and Assembly Committee on State Affairs.

AB 564 (2005)AB 564 (2005)

Sponsors: Reps. Schneider, Wasserman, Sponsors: Reps. Schneider, Wasserman, Boyle, and Grigsby; Sen. Coggs.Boyle, and Grigsby; Sen. Coggs.

Section 1 addresses the issue of “Indian” Section 1 addresses the issue of “Indian” mascots, logos, and nicknames and is mascots, logos, and nicknames and is substantially similar to 1999 SB 217/AB 433. substantially similar to 1999 SB 217/AB 433.

Section 2 prohibits the DNR from using the Section 2 prohibits the DNR from using the word squaw in the name of a lake or stream.word squaw in the name of a lake or stream.

Referred to Assembly Committee on State Referred to Assembly Committee on State Affairs.Affairs.

Supt. Burmaster (2005)Supt. Burmaster (2005) Dec. 27, 2005 State Superintendent Elizabeth Dec. 27, 2005 State Superintendent Elizabeth

Burmaster sent a memo to all 426 school districts Burmaster sent a memo to all 426 school districts intended to make them aware of the APA’s intended to make them aware of the APA’s resolution opposing the use of American Indian resolution opposing the use of American Indian mascots, logos, and nicknames.mascots, logos, and nicknames.

““As you know, I believe that stereotypical As you know, I believe that stereotypical American Indian logos American Indian logos do not support sound do not support sound educational practice educational practice because they interfere because they interfere with a school’s efforts to provide accurate with a school’s efforts to provide accurate information related to the history, culture, and information related to the history, culture, and tribal sovereignty of American Indian nations. “tribal sovereignty of American Indian nations. “

““In addition to ensuring sound educational In addition to ensuring sound educational practices, we need to ensure that all of our practices, we need to ensure that all of our children feel welcome in our schools.”children feel welcome in our schools.”

SB 132/AB 176 (2007)SB 132/AB 176 (2007) Sponsors for: AB 176: Introduced by Sponsors for: AB 176: Introduced by

Representatives Musser and Boyle, cosponsored Representatives Musser and Boyle, cosponsored by Senator Coggs, by request of Wisconsin Indian by Senator Coggs, by request of Wisconsin Indian Education Association. Education Association.

Sponsors for SB 132: Senators Coggs, Risser, Sponsors for SB 132: Senators Coggs, Risser, Carpenter and Hansen, cosponsored by Carpenter and Hansen, cosponsored by Representatives Musser, Boyle, Berceau, Cullen, Representatives Musser, Boyle, Berceau, Cullen, Fields, Grigsby, Kreuser, Mursau, Nelson, Parisi, Fields, Grigsby, Kreuser, Mursau, Nelson, Parisi, Pocan, Schneider, Sheridan, Sinicki, Soletski, Pocan, Schneider, Sheridan, Sinicki, Soletski, Sherman and Shilling. Substantially similar to Sherman and Shilling. Substantially similar to 1999 SB 217/AB 433.1999 SB 217/AB 433.

SB 132 (2007)SB 132 (2007)Provisions:Provisions:

Amend s.118.13 to create a means to file a Amend s.118.13 to create a means to file a direct complaint to the State Superintendent direct complaint to the State Superintendent regarding a public school’s use of an ethnic regarding a public school’s use of an ethnic nickname, logo, or mascot . nickname, logo, or mascot .

Shift the burden of proof “by clear and Shift the burden of proof “by clear and convincing evidence” to school boards. convincing evidence” to school boards.

Require the State Superintendent to order Require the State Superintendent to order termination of the offending nickname, logo, or termination of the offending nickname, logo, or mascot within 12 months of the decision. mascot within 12 months of the decision.

Fine of $100-$1000 per day for failure to comply. Fine of $100-$1000 per day for failure to comply. Make all decisions subject to circuit court review.Make all decisions subject to circuit court review.

AB 35/SB 25 (2009)AB 35/SB 25 (2009) AB 35 introduced Feb. 12, 2009, by Rep.

Soletski. Co-sponsored by Reps. Pope-Roberts, Mursau, Young, Benedict, Berceau, Black, Colon, Cullen, Fields, Grigsby, Hilgenberg, Kessler, Molepske Jr., Mason, Milroy, Nelson, Parisi, Pasch, Pocan, Radcliffe, Schneider, Sherman, Sheridan, Shilling, Sinicki, Smith, Steinbrink, Turner, Van Akkeren and A. Williams.

SB 25 introduced Feb. 3, 2009, by Sen. Coggs. Co-sponsored by Sens. Hansen, Carpenter, Risser, Holperin and Taylor.

AB 35 (2009)AB 35 (2009)

Hearing held in Assembly Education Hearing held in Assembly Education Committee, March 17, 2009; voted Committee, March 17, 2009; voted out of committee as amended (8-5), out of committee as amended (8-5), Feb. 17, 2010Feb. 17, 2010

AB 35 passed (51-42, 4 paired), Feb. AB 35 passed (51-42, 4 paired), Feb. 25, 2010.25, 2010.

Amended SB 25 concurred in by Amended SB 25 concurred in by Assembly (53-45), April 20, 2010.Assembly (53-45), April 20, 2010.

SB 25 (2009)SB 25 (2009)

Hearing held in Senate Education Hearing held in Senate Education Committee, Jan. 13, 2010; voted out Committee, Jan. 13, 2010; voted out of committee as amended (4-3), April of committee as amended (4-3), April 7, 2010.7, 2010.

SB 25 passed (17-16) April 13, 2010SB 25 passed (17-16) April 13, 2010

2009 Wisconsin Act 2502009 Wisconsin Act 250

Signed into law May 5, 2010Signed into law May 5, 2010 Published May 19, 2010Published May 19, 2010 Even as amended, substantially Even as amended, substantially

similar to 1999 SB 217/AB 433.similar to 1999 SB 217/AB 433.

Contested Case HearingsContested Case Hearings

Act 250 (s.118.134) allows direct complaintsAct 250 (s.118.134) allows direct complaints Designated hearing examiner presides over Designated hearing examiner presides over

contested case hearingcontested case hearing Does the race-based nickname, logo, or Does the race-based nickname, logo, or

mascot promotes discrimination, pupil mascot promotes discrimination, pupil harassment, or stereotyping as defined in harassment, or stereotyping as defined in rule?rule?

Burden of proof generally rests on school Burden of proof generally rests on school districtdistrict

May result in termination order and/or fineMay result in termination order and/or fine

ComplaintsComplaints

s.118.134 provides for direct complaints to s.118.134 provides for direct complaints to the State Superintendent re: use of race-the State Superintendent re: use of race-based logos, nicknames, and mascotsbased logos, nicknames, and mascots

Complainant must be a resident of the Complainant must be a resident of the districtdistrict

Complaint must address race-based logo, Complaint must address race-based logo, nickname, and mascot use by that districtnickname, and mascot use by that district

District must be notified of complaint and District must be notified of complaint and provided the opportunity to provide provided the opportunity to provide additional informationadditional information

District ResponseDistrict Response

Must include documentation on Must include documentation on nickname, logo, and mascot usagenickname, logo, and mascot usage

Includes opportunity to demonstrate Includes opportunity to demonstrate that the depiction is of a specific, that the depiction is of a specific, federally recognized tribe who federally recognized tribe who continues to permit and support the continues to permit and support the nickname, logo, and mascot in nickname, logo, and mascot in questionquestion

Initial ReviewInitial Review

Is the nickname, logo, or mascot Is the nickname, logo, or mascot unambiguously race-based?unambiguously race-based?

Hearing must be scheduled within 45 Hearing must be scheduled within 45 days of receipt of complaintdays of receipt of complaint

State Superintendent may determine State Superintendent may determine no hearing is necessaryno hearing is necessary

HearingHearing Must be scheduled within 45 days of Must be scheduled within 45 days of

complaintcomplaint Both parties are represented.Both parties are represented. School board bears burden of proving by School board bears burden of proving by

clear and convincing evidence that the clear and convincing evidence that the logo, mascot, or team name does not logo, mascot, or team name does not promote discrimination, pupil harassment, promote discrimination, pupil harassment, or stereotyping.or stereotyping.

Burden shifts to complainants if usage is Burden shifts to complainants if usage is ambiguously race-based.ambiguously race-based.

DecisionDecision

Must be issued within 45 days of hearing.Must be issued within 45 days of hearing. If the nickname, logo, or mascot does not If the nickname, logo, or mascot does not

promote discrimination, pupil harassment, promote discrimination, pupil harassment, or stereotyping, the complaint is or stereotyping, the complaint is dismissed.dismissed.

If the nickname, logo, or mascot is found If the nickname, logo, or mascot is found to promote discrimination, pupil to promote discrimination, pupil harassment, or stereotyping, termination harassment, or stereotyping, termination is ordered within 12 months.is ordered within 12 months.

Decisions subject to circuit court reviewDecisions subject to circuit court review

Extensions for complianceExtensions for compliance

District has opportunity to provide District has opportunity to provide evidence of extenuating evidence of extenuating circumstances that preclude circumstances that preclude termination within 12 months.termination within 12 months.

Any extension granted may not Any extension granted may not exceed 24 months and is limited to exceed 24 months and is limited to portions of the order to which the portions of the order to which the circumstances apply.circumstances apply.

Examples include costs and timelinesExamples include costs and timelines

PenaltyPenalty

Districts in violation of an order must Districts in violation of an order must forfeit $100 - $1,000 per day of forfeit $100 - $1,000 per day of violation.violation.

Key DefinitionsKey Definitions

Logo (PI 45)Logo (PI 45) Mascot (PI 45)Mascot (PI 45) Nickname (PI 45)Nickname (PI 45)

Stereotyping (PI 9 Stereotyping (PI 9 and PI 45)and PI 45)

Pupil Harassment Pupil Harassment (PI 9 and PI 45)(PI 9 and PI 45)

Discrimination (PI 9 Discrimination (PI 9 and PI 45)and PI 45)

LogoLogo

““Any written, printed, graphic, Any written, printed, graphic, photographic, badge, emblem, photographic, badge, emblem, caricature, image, statue, artifact or caricature, image, statue, artifact or other symbolic depiction other symbolic depiction representative of or in any way representative of or in any way connected to the identity of a school, connected to the identity of a school, district or board” district or board”

PI 45.02(6) Wis. Admin. CodePI 45.02(6) Wis. Admin. Code

MascotMascot

““A person, costume, insignia, dance, A person, costume, insignia, dance, song, rhythmic beat, or any other song, rhythmic beat, or any other object or thing representative of or in object or thing representative of or in any way connected to the identity of a any way connected to the identity of a school, district, or board”school, district, or board”

PI 45.02(7) Wis. Admin. CodePI 45.02(7) Wis. Admin. Code

NicknameNickname

““Any name, title, label, word, or any Any name, title, label, word, or any other designation of any kind other designation of any kind representative of or in any way representative of or in any way connected to the identity of a school, connected to the identity of a school, district, or board.”district, or board.”

PI 45.02(8) Wis. Admin CodePI 45.02(8) Wis. Admin Code

DiscriminationDiscrimination

““Any action, policy or practice, including bias, Any action, policy or practice, including bias, stereotyping and pupil harassment, which is stereotyping and pupil harassment, which is detrimental to a person or group of persons and detrimental to a person or group of persons and differentiates or distinguishes among persons, or which differentiates or distinguishes among persons, or which limits or denies a person or group of persons limits or denies a person or group of persons opportunities, privileges, roles or rewards based, in opportunities, privileges, roles or rewards based, in whole or in part, on sex, race, national origin, ancestry, whole or in part, on sex, race, national origin, ancestry, creed, pregnancy, marital or parental status, sexual creed, pregnancy, marital or parental status, sexual orientation or physical, mental, emotional or learning orientation or physical, mental, emotional or learning disability, or which perpetuates the effects of past disability, or which perpetuates the effects of past discrimination.”discrimination.”

PI 9.02(5) Wis. Admin. CodePI 9.02(5) Wis. Admin. Code

DiscriminationDiscrimination

““Any action, policy, or practice, including bias, Any action, policy, or practice, including bias, stereotyping and pupil harassment, which is stereotyping and pupil harassment, which is detrimental to a person or group of persons detrimental to a person or group of persons and differentiates or distinguishes among and differentiates or distinguishes among persons, or which limits or denies a person or persons, or which limits or denies a person or group of persons opportunities, privileges, group of persons opportunities, privileges, roles or rewards based, in whole or in part, on roles or rewards based, in whole or in part, on race, or which perpetuates the effects of past race, or which perpetuates the effects of past discrimination based in whole or in part on discrimination based in whole or in part on race.”race.”

PI 45.02(3) Wis. Admin. CodePI 45.02(3) Wis. Admin. Code

StereotypingStereotyping

““Attributing behaviors, abilities, Attributing behaviors, abilities, interests, values, and roles to a person interests, values, and roles to a person or group of persons on the basis, in or group of persons on the basis, in whole or in part, of their sex, race, whole or in part, of their sex, race, national origin, ancestry, creed, national origin, ancestry, creed, pregnancy, marital or parental status, pregnancy, marital or parental status, sexual orientation or physical, mental, sexual orientation or physical, mental, emotional or learning disability.”emotional or learning disability.”

PI 9.02(14) Wis. Admin. CodePI 9.02(14) Wis. Admin. Code

StereotypingStereotyping

““Attributing behaviors, abilities, Attributing behaviors, abilities, interests, values, and roles to a person interests, values, and roles to a person or group of persons on the basis, in or group of persons on the basis, in whole or in part, of their race.”whole or in part, of their race.”

PI 45.02(12) Wis. Admin. CodePI 45.02(12) Wis. Admin. Code

Pupil HarassmentPupil Harassment

““Behavior towards pupils based, in whole or Behavior towards pupils based, in whole or in part, on sex, race, national origin, in part, on sex, race, national origin, ancestry, creed, pregnancy, marital or ancestry, creed, pregnancy, marital or parental status, sexual orientation or parental status, sexual orientation or physical, mental, emotional or learning physical, mental, emotional or learning disability , which substantially interferes disability , which substantially interferes with a pupil’s school performance or creates with a pupil’s school performance or creates an intimidating, hostile, or offensive school an intimidating, hostile, or offensive school environment.”environment.”

PI 9.02(9) Wis. Admin. CodePI 9.02(9) Wis. Admin. Code

Pupil HarassmentPupil Harassment

““Behavior towards pupils based, in Behavior towards pupils based, in whole or in part, on race, which whole or in part, on race, which substantially interferes with a pupil’s substantially interferes with a pupil’s school performance or creates an school performance or creates an intimidating, hostile, or offensive intimidating, hostile, or offensive school environment.”school environment.”

PI 45.02(9) Wis. Admin. CodePI 45.02(9) Wis. Admin. Code

Current Figures Current Figures Wisconsin Race-Based Nickname Review Committee (Sept. 30, 2010)Wisconsin Race-Based Nickname Review Committee (Sept. 30, 2010)

To date, 32 school districts changed logos, To date, 32 school districts changed logos, mascots, or nicknames that had referenced mascots, or nicknames that had referenced American Indians.American Indians.

Four changed since Burmaster’s 2005 Four changed since Burmaster’s 2005 memo.memo.

Two changed following complaints under Two changed following complaints under the new law.the new law.

33 school districts continue to use 33 school districts continue to use mascots, logos, or nicknames that mascots, logos, or nicknames that reference American Indians.reference American Indians.

SummarySummary

Nineteen years since Milton Nineteen years since Milton complaintcomplaint

Ten legislative sessionsTen legislative sessions Six sessions with current provisionsSix sessions with current provisions Four State SuperintendentsFour State Superintendents Three s.118.13 appealsThree s.118.13 appeals Three s.118.134 appealsThree s.118.134 appeals

For Further InformationFor Further Information

J P LearyJ P Leary

American Indian Studies American Indian Studies ConsultantConsultant

Wisconsin Department Wisconsin Department of Public Instructionof Public Instruction

PO Box 7841PO Box 7841

Madison, WI 53707-Madison, WI 53707-78417841

jp.leary@dpi.wi.gov

800-441-4563 (toll-free)800-441-4563 (toll-free)

608-267-2283 (direct)608-267-2283 (direct)

Paul ShermanPaul Sherman

Pupil Nondiscrimination Pupil Nondiscrimination ConsultantConsultant

Wisconsin Department Wisconsin Department of Public Instructionof Public Instruction

PO Box 7841PO Box 7841

Madison, WI 53707-Madison, WI 53707-78417841

Paul.sherman@dpi.wi.gov

800-441-4563 (toll-free)800-441-4563 (toll-free)

608-267-9157 (direct)608-267-9157 (direct)