Feb. 28, 2025 – Wisconsin’s Minority Undergraduate Retention Grant program established in 1985 unconstitutionally discriminates against students of races excluded from the program, a Wisconsin Court of Appeals District II panel on Wednesday unanimously decided in an opinion recommended for publication.

The result in Rabiebna v. Higher Educational Aids Board (HEAB), No. 2022AP2026 (Feb. 26, 2025) applied Students for Fair Admissions, Inc. (SFFA) v. President and Fellows of Harvard College, 600 U.S. 181 (2023), which struck down admissions policies that considered the applicant’s race.

Minority Grant Program Challenged

The Legislature enacted the grant program, codified at Wis. Stat. section 39.44, to support financially needy Black, American Indian, and Hispanic undergraduate students enrolled in private, nonprofit colleges in Wisconsin. The Legislature expanded the program two years later to include students with ancestry in Laos, Vietnam, or Cambodia, and to eligible students enrolled in Wisconsin technical colleges.

Grants to individual students do not exceed $2,500, which comes out of a state appropriation that in the 2021-22 academic year totaled $819,000.

Five taxpayers sued the HEAB and its administrator Connie Hutchinson in 2021 in Jefferson County Circuit Court arguing that the program violates the Equal Protection Clause of the U.S. Constitution because students in “other racial, national origin, ancestry, or alienage groups are not eligible.”

The circuit court on Sept. 16, 2022, upheld the program, and the taxpayers appealed.

U.S. Supreme Court Decision

After the parties submitted briefs to the court of appeals, however, the U.S. Supreme Court decided SFFA, which transformed constitutionality of higher education admissions. The court held that race-based admissions programs of Harvard College and the University of North Carolina (UNC) unconstitutionally violated the Equal Protection Clause.

The Equal Protection Clause of the 14th Amendment provides that “[n]o State shall … deny to any person within its jurisdiction the equal protection of the laws.”

To survive constitutionality, a race-based admissions program must comply with strict scrutiny, “never use race as a stereotype or negative,” and “at some point – they must end,” the U.S. Supreme Court explained. Strict scrutiny requires both a compelling government interest and a law narrowly tailored to address that interest.

The national decision shook up Wisconsin briefing on the grant program’s constitutionality. The taxpayers and respondents submitted letters to the court of appeals addressing the decision’s impact. Even after oral arguments, the court of appeals “took the unusual step of allowing post-argument briefing.”

No Compelling Interest

Although HEAB originally argued that a diverse student body is the compelling interest the grant program serves, it had to change that argument after SFFA held that goal “not sufficiently coherent” to be compelling, the court of appeals explained in a 52-page decision written by Judge Mark D. Gundrum, joined by judges Shelley A. Grogan and Maria S. Lazar.

HEAB subsequently argued the state grant program responded to “a crisis” among the eligible groups “to boost retention and graduation rates.”

To evaluate whether the grant program addressed a compelling state interest, as now defined, the court of appeals reviewed the reasons the Legislature enacted the program in 1985 and expanded it in 1987.

“HEAB has been unable to direct us to any record evidence – and we have been unable to find any – indicating there even was such a ‘crisis’ or disparity at Wisconsin private or technical colleges,” the court wrote.

The evidence in the record instead described graduation rates from the University of Wisconsin (U.W.) System four-year colleges, and “HEAB provides us with no basis to assume” that data from four-year colleges described conditions at private or two-year technical colleges.

Nor did the Legislature in 1987 have any record evidence that similar problems plagued Laotian-, Vietnamese-, or Cambodian-American students, which may have arrived in mass immigrations after the Vietnam War, the court explained.

For the program to pass the compelling government interest prong, the court explained, HEAB needed to “demonstrate with clarity that its ‘purpose or interest is both constitutionally permissible and substantial.’” The court failed to find that requirement fulfilled in the record.

Other Prongs Failed

The conclusion on the first prong required no further analysis, but the court chose to “discuss several points” affecting other factors.

In claiming the program is narrowly tailored, HEAB argued that, unlike college admissions in which applicants were either in or out, the grants weren’t a zero-sum game. In addition, the grants provided a small amount of the total funding with other sources available to students and were based on need.

The taxpayers said the zero-sum aspect remained in available financial aid.

The same record with data about students in four-year U.W. system universities remained inapplicable to describe the program’s students. Whether more financial aid existed elsewhere, the court of appeals said, was “sheer speculation” and “defies common sense and elementary math.”

“HEAB overlooks a significant point,” the court said. “The grant program completely excludes students solely on the basis of race, national origin, ancestry or alienage – something even the unconstitutional Harvard and UNC admissions programs do not do.” In other words, “the [L]egislature chose winners and losers.” The program was not narrowly tailored.

Similarly, because race alone determines who can and cannot receive funds, the grant program wrongfully uses race as a negative, the court concluded.

Although nothing in the statute sunsets the program, HEAB argued that the biennial budget process by the Legislature, which can change or eliminate the program at any time, gives the grant program the necessary end date.

“Of course, that is not how constitutional jurisprudence works,” the court said. The law remains, unchanged, and SFFA commands that periodic review cannot legitimize unconstitutional laws. “So with this decision” the court of appeals decided, “we provide that end.”

Refocusing Equal Protection

The 14th Amendment enacted in 1868 sought “the promise, the ideal, and the hope of equal protection,” the court of appeals concluded. But “decades of the government pendulum overswinging in the other direction” used the amendment to justify discrimination. The SFFA decision “attempted to refocus” back to the amendment’s goals.

HEAB argued that SFFA applied only to race-based college admission programs, but the court of appeals explained, “the SFFA Court did not so limit the application of the equal protection principles it articulated.”

Because the grant program violates the Equal Protection Clause, the court of appeals reversed the circuit court and remanded to the circuit court to enjoin the defendants from further administering the grant program.

This article was originally published on the State Bar of Wisconsin’s Wisbar Court Review blog, which covers case decisions and other developments in the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit. To contribute to this blog, contact Joe Forward.