Wisconsin 2023-2024 Regular Session

Wisconsin Assembly Bill AB528 Compare Versions

Only one version of the bill is available at this time.

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3	3	2023 - 2024 LEGISLATURE
4	4	2023 ASSEMBLY BILL 528
5	5	October 18, 2023 - Introduced by Representatives SHELTON, RATCLIFF, JACOBSON, C.
6	6	ANDERSON, CONSIDINE, SHANKLAND, J. ANDERSON, BALDEH, CABRERA, CLANCY,
7	7	CONLEY, HAYWOOD, HONG, JOERS, OHNSTAD, PALMERI, SINICKI, SNODGRASS,
8	8	STUBBS and VINING, cosponsored by Senators LARSON, L. JOHNSON, SMITH,
9	9	ROYS, HESSELBEIN, AGARD, SPREITZER, CARPENTER and PFAFF. Referred to
10	10	Committee on State Affairs.
11	11	*AUTHORS SUBJECT TO CHANGE*
12	12	AN ACT to repeal 118.134 (3r), 118.134 (4) (b), 227.43 (1) (bd), 227.43 (3) (br) and
13	13	227.43 (4) (br); to renumber and amend 118.134 (1m) (b), 118.134 (2) and
14	14	118.134 (4) (a); to amend 118.134 (1), 118.134 (1m) (a), 118.134 (3) (a), 118.134
15	15	(3) (b) 2. and 118.134 (3) (c); and to create 20.255 (2) (kg), 20.505 (8) (hm) 29.,
16	16	118.134 (1m) (a) 1m., 118.134 (1m) (b) 2., 118.134 (2) (b) and 118.134 (6) of the
17	17	statutes; relating to: race-based nicknames, logos, mascots, and team names;
18	18	providing an exemption from rule-making and emergency rule procedures; and
19	19	making an appropriation.
20	20	Analysis by the Legislative Reference Bureau
21	21	This bill restores the law as it existed prior to the enactment of 2013 Wisconsin
22	22	Act 115 governing the use of race-based nicknames, logos, mascots, and team names
23	23	by school boards and authorizes the Department of Public Instruction to award a
24	24	grant to a school board that terminates the use of a race-based nickname, logo,
25	25	mascot, or team name that is associated with a federally recognized American Indian
26	26	tribe or American Indians.
27	27	Under current law, a complaint to object to a school board's use of a race-based
28	28	nickname, logo, mascot, or team name must include the signatures of at least the
29	29	number of school district residents that is equal to 10 percent of the school district's
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39	39	ASSEMBLY BILL 528
40	40	membership, and the signatures must be obtained within the 120-day period before
41	41	the complaint is filed. The bill eliminates this requirement. Under the bill, the state
42	42	superintendent of public instruction must immediately review a complaint
43	43	submitted by a school district resident and determine whether the use of the
44	44	nickname or team name by the school board, alone or in connection with a logo or
45	45	mascot, is ambiguous as to whether it is race-based.
46	46	Under current law, the Division of Hearings and Appeals is required to hold a
47	47	hearing on a complaint objecting to a school board's use of a race-based nickname,
48	48	logo, mascot, or team name. Under the bill, unless the state superintendent
49	49	determines that a contested case hearing is not necessary or otherwise postpones the
50	50	hearing, the state superintendent must hold a hearing within 45 days of receiving
51	51	such a complaint. The bill also reverses the burden of proof at a hearing challenging
52	52	the use of a race-based nickname, logo, mascot, or team name so that the burden is
53	53	on the school board to demonstrate that the nickname, logo, mascot, or team name
54	54	does not promote discrimination, pupil harassment, or stereotyping.
55	55	Under current law, the state superintendent may forego a hearing on a
56	56	complaint if a school board demonstrates that a federally recognized American
57	57	Indian tribe that has historical ties to this state has, under an agreement with the
58	58	school board, approved the school board's use of the nickname, logo, mascot, or team
59	59	name. The bill restricts the state superintendent's authority to forego a hearing to
60	60	only those situations in which the American Indian tribe that is referenced, depicted,
61	61	or portrayed in the nickname, logo, mascot, or team name approved the use.
62	62	Under current law, a school district is prohibited from being a member of an
63	63	interscholastic athletic association that bars a member from using a race-based
64	64	nickname, logo, mascot, or team name unless the use violates a decision and order
65	65	issued on or after December 21, 2013. The bill eliminates this prohibition. The bill
66	66	also eliminates a prohibition against the state superintendent promulgating rules
67	67	that create a presumption of what constitutes a race-based nickname, logo, mascot,
68	68	or team name that promotes discrimination, pupil harassment, or stereotyping.
69	69	Under the bill, DPI may award a grant to a school board that terminates the
70	70	use of a race-based nickname, logo, mascot, or team name, regardless of whether the
71	71	termination is voluntary, in response to an objection, or to comply with an order. The
72	72	bill specifies that the amount of the grant may not exceed the greater of $50,000 or
73	73	the actual cost incurred by the school board to replace the race-based nickname, logo,
74	74	mascot, or team name. Under the bill, these grants are funded from Indian gaming
75	75	receipts.
76	76	For further information see the state and local fiscal estimate, which will be
77	77	printed as an appendix to this bill.
78	78	The people of the state of Wisconsin, represented in senate and assembly, do
79	79	enact as follows: - 3 -2023 - 2024 Legislature
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82	82	SECTION 1
83	83	ASSEMBLY BILL 528
84	84	SECTION 1. 20.005 (3) (schedule) of the statutes: at the appropriate place, insert
85	85	the following amounts for the purposes indicated:
86	86	2023-24 2024-25
87	87	20.255 Public instruction, department of
88	88	(2) AIDS FOR LOCAL EDUCATIONAL PROGRAMMING
89	89	(kg)Grants to replace certain race-
90	90	based nicknames, logos, mascots,
91	91	and team names PR-S A 200,000 200,000
92	92	SECTION 2. 20.255 (2) (kg) of the statutes is created to read:
93	93	20.255 (2) (kg) Grants to replace certain race-based nicknames, logos, mascots,
94	94	and team names. The amounts in the schedule for grants to school boards under s.
95	95	118.134 (6). All moneys transferred from the appropriation account under s. 20.505
96	96	(8) (hm) 29. shall be credited to this appropriation account. Notwithstanding s.
97	97	20.001 (3) (a), the unencumbered balance on June 30 of each year shall revert to the
98	98	appropriation account under s. 20.505 (8) (hm).
99	99	SECTION 3. 20.505 (8) (hm) 29. of the statutes is created to read:
100	100	20.505 (8) (hm) 29. The amount transferred to s. 20.255 (2) (kg) shall be the
101	101	amount in the schedule under s. 20.255 (2) (kg).
102	102	SECTION 4. 118.134 (1) of the statutes is amended to read:
103	103	118.134 (1) Notwithstanding s. 118.13 and except as provided in sub. (3m), a
104	104	school district resident may object to the use of a race-based nickname, logo, mascot,
105	105	or team name by the school board of that school district by filing a complaint
106	106	containing a number of signatures of school district electors equal to at least 10
107	107	percent of the school district's membership, as defined in s. 121.004 (5), with the state
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132	132	SECTION 4 ASSEMBLY BILL 528
133	133	superintendent. A signature on a complaint is valid only if the signature is obtained
134	134	within the 120-day period before the complaint is filed with the state
135	135	superintendent. If a complainant objects to the use of a nickname or team name by
136	136	the school board, the state superintendent shall immediately review the complaint
137	137	and determine whether the use of the nickname or team name by the school board,
138	138	alone or in connection with a logo or mascot, is ambiguous as to whether it is
139	139	race-based. The state superintendent shall do all of the following:
140	140	(a) Notify the school board of the receipt of the complaint and of the state
141	141	superintendent's determination regarding whether the use of the nickname or team
142	142	name is ambiguous as to whether it is race-based and direct the school board to
143	143	submit, if applicable, any of the information under sub. (1m) (a).
144	144	(b) Except as provided in sub. (1m), refer the complaint to the division of
145	145	hearings and appeals for a contested case hearing. The division of hearings and
146	146	appeals shall schedule a hearing on the referred complaint with reasonable
147	147	promptness contested case hearing within 45 days after the complaint is filed.
148	148	SECTION 5. 118.134 (1m) (a) of the statutes is amended to read:
149	149	118.134 (1m) (a) The state superintendent may determine that no contested
150	150	case hearing is necessary or that a hearing date may be postponed for the purpose
151	151	of obtaining additional information from the school board if, no later than 10 days
152	152	after being notified of the receipt of the complaint, the school board submits evidence
153	153	to the state superintendent that demonstrates all of the following:
154	154	2. A The federally recognized American Indian tribe that has historical ties
155	155	to this state has entered into an agreement with the school board under which the
156	156	tribe grants under subd. 1m. has granted approval to the school board to refer to,
157	157	depict, or portray the tribe or American Indians, in general, in a specific nickname,
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185	185	SECTION 5
186	186	ASSEMBLY BILL 528
187	187	logo, or mascot or to use the name of the tribe or American Indians, in general, as a
188	188	team name in the specific manner used by the school board and has not rescinded
189	189	that approval.
190	190	3. The use of the nickname, logo, mascot, or team name that has been approved
191	191	by a the tribe under as provided in subd. 2. is the use to which the school district
192	192	resident objects in the complaint filed under sub. (1).
193	193	SECTION 6. 118.134 (1m) (a) 1m. of the statutes is created to read:
194	194	118.134 (1m) (a) 1m. The nickname, logo, mascot, or team name that is used
195	195	by the school board and that is the basis of the complaint is a reference to, a depiction
196	196	or portrayal of, or the name of a specific, federally recognized American Indian tribe.
197	197	SECTION 7. 118.134 (1m) (b) of the statutes is renumbered 118.134 (1m) (b)
198	198	(intro.) and amended to read:
199	199	118.134 (1m) (b) (intro.) If the state superintendent determines that a
200	200	contested case hearing is not necessary does any of the following, the state
201	201	superintendent shall notify the school district resident who filed the complaint under
202	202	sub. (1) and the school board of his or her decision in writing.:
203	203	1. Determines that a contested case hearing is not necessary. A decision under
204	204	this paragraph subdivision is subject to judicial review under ch. 227.
205	205	SECTION 8. 118.134 (1m) (b) 2. of the statutes is created to read:
206	206	118.134 (1m) (b) 2. Postpones a hearing date as provided in par. (a).
207	207	SECTION 9. 118.134 (2) of the statutes is renumbered 118.134 (2) (a) and
208	208	amended to read:
209	209	118.134 (2) (a) At Except as provided in par. (b), at the hearing, the school
210	210	district resident who filed the complaint under sub. (1) board has the burden of
211	211	proving by clear and convincing evidence that the use of the race-based nickname,
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238	238	SECTION 9 ASSEMBLY BILL 528
239	239	logo, mascot, or team name promotes does not promote discrimination, pupil
240	240	harassment, or stereotyping, as defined by the state superintendent by rule.
241	241	SECTION 10. 118.134 (2) (b) of the statutes is created to read:
242	242	118.134 (2) (b) 1. Except as provided in subd. 2., if the state superintendent
243	243	determined under sub. (1) that the use of a nickname or team name by a school board
244	244	is ambiguous as to whether it is race-based, the use of the nickname or team name
245	245	by the school board shall be presumed to be not race-based, and the school district
246	246	resident who filed the complaint under sub. (1) has the burden of proving by clear and
247	247	convincing evidence at the hearing that the use of the nickname or team name by the
248	248	school board promotes discrimination, pupil harassment, or stereotyping, as defined
249	249	by the state superintendent by rule.
250	250	2. If the state superintendent determined under sub. (1) that the use of a
251	251	nickname or team name by a school board is ambiguous as to whether it is race-based
252	252	but that the use of the nickname or team name in connection with a logo or mascot
253	253	is race-based, the school board has the burden of proving by clear and convincing
254	254	evidence at the hearing that the use of the nickname or team name in connection with
255	255	the logo or mascot does not promote discrimination, pupil harassment, or
256	256	stereotyping, as defined by the state superintendent by rule.
257	257	SECTION 11. 118.134 (3) (a) of the statutes is amended to read:
258	258	118.134 (3) (a) The division of hearings and appeals state superintendent shall
259	259	issue a decision and order within 45 days after the hearing. If the division of hearings
260	260	and appeals state superintendent finds that the use of the race-based nickname,
261	261	logo, mascot, or team name does not promote discrimination, pupil harassment, or
262	262	stereotyping, the division of hearings and appeals state superintendent shall
263	263	dismiss the complaint. Except as provided in pars. (b) and (d), if the division of
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291	291	SECTION 11
292	292	ASSEMBLY BILL 528
293	293	hearings and appeals state superintendent finds that the use of the race-based
294	294	nickname, logo, mascot, or team name promotes discrimination, pupil harassment,
295	295	or stereotyping, the division of hearings and appeals state superintendent shall
296	296	order the school board to terminate its use of the race-based nickname, logo, mascot,
297	297	or team name within 12 months after issuance of the order.
298	298	SECTION 12. 118.134 (3) (b) 2. of the statutes is amended to read:
299	299	118.134 (3) (b) 2. a. If, at the hearing under sub. (2) or after a decision and order
300	300	have been issued under par. (a), the school board presents evidence to the division
301	301	of hearings and appeals state superintendent that extenuating circumstances
302	302	render full compliance with the decision and order within 12 months after the
303	303	issuance of that decision and order impossible or impracticable, the division of
304	304	hearings and appeals state superintendent may issue an order to extend the time
305	305	within which the school board must terminate its use of the race-based nickname,
306	306	logo, mascot, or team name. Except as provided in subd. 2. b., the extension may not
307	307	exceed 24 months and shall apply only to those portions of the decision and order to
308	308	which extenuating circumstances apply.
309	309	b. The division of hearings and appeals state superintendent may extend the
310	310	time granted to a school board under subd. 2. a. if the school board presents evidence
311	311	to the division of hearings and appeals state superintendent that compliance with
312	312	a portion of the decision and order issued under par. (a) may be accomplished through
313	313	a regularly scheduled maintenance program and that the cost of compliance with
314	314	that portion of the decision and order exceeds $5,000. The extension granted under
315	315	this subd. 2. b. may not exceed 96 months and applies only to that portion of the
316	316	decision and order with which compliance will be accomplished through the
317	317	regularly scheduled maintenance program and that costs more than $5,000.
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344	344	SECTION 13 ASSEMBLY BILL 528
345	345	SECTION 13. 118.134 (3) (c) of the statutes is amended to read:
346	346	118.134 (3) (c) Decisions of the state superintendent under this subsection are
347	347	subject to judicial review under ch. 227. The venue for a proceeding to review a
348	348	decision under this section is the circuit court in any county in which territory of the
349	349	school district is located.
350	350	SECTION 14. 118.134 (3r) of the statutes is repealed.
351	351	SECTION 15. 118.134 (4) (a) of the statutes is renumbered 118.134 (4) and
352	352	amended to read:
353	353	118.134 (4) Except as provided in par. (b), the The state superintendent shall
354	354	promulgate rules necessary to implement and administer this section.
355	355	SECTION 16. 118.134 (4) (b) of the statutes is repealed.
356	356	SECTION 17. 118.134 (6) of the statutes is created to read:
357	357	118.134 (6) Regardless of whether or not an objection is made under sub. (1)
358	358	or an order is issued under sub. (3), if a school board adopts a resolution to terminate
359	359	the use of a race-based nickname, logo, mascot, or team name that is associated with
360	360	a federally recognized American Indian tribe or American Indians, in general, the
361	361	state superintendent may award a grant to the school board for the costs associated
362	362	with adopting and implementing a nickname, logo, mascot, or team name that is not
363	363	race-based. The state superintendent may not award a grant under this subsection
364	364	in an amount that exceeds the greater of $50,000 or a school board's actual costs to
365	365	adopt and implement a nickname, logo, mascot, or team name. The state
366	366	superintendent shall pay the awards under this subsection from the appropriation
367	367	under s. 20.255 (2) (kg).
368	368	SECTION 18. 227.43 (1) (bd) of the statutes is repealed.
369	369	SECTION 19. 227.43 (3) (br) of the statutes is repealed.
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397	397	SECTION 20
398	398	ASSEMBLY BILL 528
399	399	SECTION 20. 227.43 (4) (br) of the statutes is repealed.
400	400	SECTION 21.0Nonstatutory provisions.
401	401	(1) The department of public instruction shall submit in proposed form the
402	402	rules required under s. 118.134 (4) to the legislative council staff under s. 227.15 (1)
403	403	no later than the first day of the 4th month beginning after the effective date of this
404	404	subsection.
405	405	(2) Notwithstanding s. 227.135 (1), the department of public instruction is not
406	406	required to prepare a statement of scope of the rules required under s. 118.134 (4).
407	407	(3) Sections 227.137, 227.139, and 227.19 (5) (b) 3. do not apply to the rules
408	408	required under s. 118.134 (4).
409	409	(4) Using the procedure under s. 227.24, the department of public instruction
410	410	may promulgate rules required under s. 118.134 (4) for the period before the effective
411	411	date of the rules submitted under sub. (1), but not to exceed the period authorized
412	412	under s. 227.24 (1) (c), subject to extension under s. 227.24 (2). Notwithstanding s.
413	413	227.24 (1) (a), (2) (b), and (3), the department is not required to provide evidence that
414	414	promulgating a rule under this subsection as an emergency rule is necessary for the
415	415	preservation of the public peace, health, safety, or welfare and is not required to
416	416	provide a finding of emergency for a rule promulgated under this subsection.
417	417	SECTION 22.0Initial applicability.
418	418	(1) This act first applies to a complaint objecting to the use of a race-based
419	419	nickname, logo, mascot, or team name that is filed with the state superintendent of
420	420	public instruction on the effective date of this subsection.
421	421	SECTION 23.0Effective dates. This act takes effect on the first day of the 4th
422	422	month beginning after publication, except as follows:
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448	448	SECTION 23 ASSEMBLY BILL 528
449	449	(1) SECTION 21 (1), (2), (3), and (4) takes effect on the day after publication.
450	450	(END)
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