AB528: Bill Text

AB528,,1 2023 ASSEMBLY BILL 528

October 18, 2023 - Introduced by Representatives Shelton, Ratcliff, Jacobson, C. Anderson, Considine, Shankland, J. Anderson, Baldeh, Cabrera, Clancy, Conley, Haywood, Hong, Joers, Ohnstad, Palmeri, Sinicki, Snodgrass, Stubbs and Vining, cosponsored by Senators Larson, L. Johnson, Smith, Roys, Hesselbein, Agard, Spreitzer, Carpenter and Pfaff. Referred to Committee on State Affairs.

AB528,,2 An Act to repeal 118.134 (3r), 118.134 (4) (b), 227.43 (1) (bd), 227.43 (3) (br) and 227.43 (4) (br); to renumber and amend 118.134 (1m) (b), 118.134 (2) and 118.134 (4) (a); to amend 118.134 (1), 118.134 (1m) (a), 118.134 (3) (a), 118.134 (3) (b) 2. and 118.134 (3) (c); and to create 20.255 (2) (kg), 20.505 (8) (hm) 29., 118.134 (1m) (a) 1m., 118.134 (1m) (b) 2., 118.134 (2) (b) and 118.134 (6) of the statutes; relating to: race-based nicknames, logos, mascots, and team names; providing an exemption from rule-making and emergency rule procedures; and making an appropriation.

AB528,,3 Analysis by the Legislative Reference Bureau

This bill restores the law as it existed prior to the enactment of 2013 Wisconsin Act 115 governing the use of race-based nicknames, logos, mascots, and team names by school boards and authorizes the Department of Public Instruction to award a grant to a school board that terminates the use of a race-based nickname, logo, mascot, or team name that is associated with a federally recognized American Indian tribe or American Indians.

Under current law, a complaint to object to a school board’s use of a race-based nickname, logo, mascot, or team name must include the signatures of at least the number of school district residents that is equal to 10 percent of the school district’s membership, and the signatures must be obtained within the 120-day period before the complaint is filed. The bill eliminates this requirement. Under the bill, the state superintendent of public instruction must immediately review a complaint submitted by a school district resident and determine whether the use of the nickname or team name by the school board, alone or in connection with a logo or mascot, is ambiguous as to whether it is race-based.

Under current law, the Division of Hearings and Appeals is required to hold a hearing on a complaint objecting to a school board’s use of a race-based nickname, logo, mascot, or team name. Under the bill, unless the state superintendent determines that a contested case hearing is not necessary or otherwise postpones the hearing, the state superintendent must hold a hearing within 45 days of receiving such a complaint. The bill also reverses the burden of proof at a hearing challenging the use of a race-based nickname, logo, mascot, or team name so that the burden is on the school board to demonstrate that the nickname, logo, mascot, or team name does not promote discrimination, pupil harassment, or stereotyping.

Under current law, the state superintendent may forego a hearing on a complaint if a school board demonstrates that a federally recognized American Indian tribe that has historical ties to this state has, under an agreement with the school board, approved the school board’s use of the nickname, logo, mascot, or team name. The bill restricts the state superintendent’s authority to forego a hearing to only those situations in which the American Indian tribe that is referenced, depicted, or portrayed in the nickname, logo, mascot, or team name approved the use.

Under current law, a school district is prohibited from being a member of an interscholastic athletic association that bars a member from using a race-based nickname, logo, mascot, or team name unless the use violates a decision and order issued on or after December 21, 2013. The bill eliminates this prohibition. The bill also eliminates a prohibition against the state superintendent promulgating rules that create a presumption of what constitutes a race-based nickname, logo, mascot, or team name that promotes discrimination, pupil harassment, or stereotyping.

Under the bill, DPI may award a grant to a school board that terminates the use of a race-based nickname, logo, mascot, or team name, regardless of whether the termination is voluntary, in response to an objection, or to comply with an order. The bill specifies that the amount of the grant may not exceed the greater of $50,000 or the actual cost incurred by the school board to replace the race-based nickname, logo, mascot, or team name. Under the bill, these grants are funded from Indian gaming receipts.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

AB528,,4 The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB528,1 Section 1. 20.005 (3) (schedule) of the statutes: at the appropriate place, insert the following amounts for the purposes indicated:

AB528,2 Section 2. 20.255 (2) (kg) of the statutes is created to read:

AB528,,7 20.255 (2) (kg) Grants to replace certain race-based nicknames, logos, mascots, and team names. The amounts in the schedule for grants to school boards under s. 118.134 (6). All moneys transferred from the appropriation account under s. 20.505 (8) (hm) 29. shall be credited to this appropriation account. Notwithstanding s. 20.001 (3) (a), the unencumbered balance on June 30 of each year shall revert to the appropriation account under s. 20.505 (8) (hm).

AB528,3 Section 3. 20.505 (8) (hm) 29. of the statutes is created to read:

AB528,,9 20.505 (8) (hm) 29. The amount transferred to s. 20.255 (2) (kg) shall be the amount in the schedule under s. 20.255 (2) (kg).

AB528,4 Section 4. 118.134 (1) of the statutes is amended to read:

AB528,,11 118.134 (1) Notwithstanding s. 118.13 and except as provided in sub. (3m), a school district resident may object to the use of a race-based nickname, logo, mascot, or team name by the school board of that school district by filing a complaint containing a number of signatures of school district electors equal to at least 10 percent of the school district’s membership, as defined in s. 121.004 (5), with the state superintendent. A signature on a complaint is valid only if the signature is obtained within the 120-day period before the complaint is filed with the state superintendent. If a complainant objects to the use of a nickname or team name by the school board, the state superintendent shall immediately review the complaint and determine whether the use of the nickname or team name by the school board, alone or in connection with a logo or mascot, is ambiguous as to whether it is race-based. The state superintendent shall do all of the following:

AB528,,12 (a) Notify the school board of the receipt of the complaint and of the state superintendent’s determination regarding whether the use of the nickname or team name is ambiguous as to whether it is race-based and direct the school board to submit, if applicable, any of the information under sub. (1m) (a).

AB528,,13 (b) Except as provided in sub. (1m), refer the complaint to the division of hearings and appeals for a contested case hearing. The division of hearings and appeals shall schedule a hearing on the referred complaint with reasonable promptness contested case hearing within 45 days after the complaint is filed.

AB528,5 Section 5. 118.134 (1m) (a) of the statutes is amended to read:

AB528,,15 118.134 (1m) (a) The state superintendent may determine that no contested case hearing is necessary or that a hearing date may be postponed for the purpose of obtaining additional information from the school board if, no later than 10 days after being notified of the receipt of the complaint, the school board submits evidence to the state superintendent that demonstrates all of the following:

AB528,,16 2. A The federally recognized American Indian tribe that has historical ties to this state has entered into an agreement with the school board under which the tribe grants under subd. 1m. has granted approval to the school board to refer to, depict, or portray the tribe or American Indians, in general, in a specific nickname, logo, or mascot or to use the name of the tribe or American Indians, in general, as a team name in the specific manner used by the school board and has not rescinded that approval.

AB528,,17 3. The use of the nickname, logo, mascot, or team name that has been approved by a the tribe under as provided in subd. 2. is the use to which the school district resident objects in the complaint filed under sub. (1).

AB528,6 Section 6. 118.134 (1m) (a) 1m. of the statutes is created to read:

AB528,,19 118.134 (1m) (a) 1m. The nickname, logo, mascot, or team name that is used by the school board and that is the basis of the complaint is a reference to, a depiction or portrayal of, or the name of a specific, federally recognized American Indian tribe.

AB528,7 Section 7. 118.134 (1m) (b) of the statutes is renumbered 118.134 (1m) (b) (intro.) and amended to read:

AB528,,21 118.134 (1m) (b) (intro.) If the state superintendent determines that a contested case hearing is not necessary does any of the following, the state superintendent shall notify the school district resident who filed the complaint under sub. (1) and the school board of his or her decision in writing.:

AB528,,22 1. Determines that a contested case hearing is not necessary. A decision under this paragraph subdivision is subject to judicial review under ch. 227.

AB528,8 Section 8. 118.134 (1m) (b) 2. of the statutes is created to read:

AB528,,24 118.134 (1m) (b) 2. Postpones a hearing date as provided in par. (a).

AB528,9 Section 9. 118.134 (2) of the statutes is renumbered 118.134 (2) (a) and amended to read:

AB528,,26 118.134 (2) (a) At Except as provided in par. (b), at the hearing, the school district resident who filed the complaint under sub. (1) board has the burden of proving by clear and convincing evidence that the use of the race-based nickname, logo, mascot, or team name promotes does not promote discrimination, pupil harassment, or stereotyping, as defined by the state superintendent by rule.

AB528,10 Section 10. 118.134 (2) (b) of the statutes is created to read:

AB528,,28 118.134 (2) (b) 1. Except as provided in subd. 2., if the state superintendent determined under sub. (1) that the use of a nickname or team name by a school board is ambiguous as to whether it is race-based, the use of the nickname or team name by the school board shall be presumed to be not race-based, and the school district resident who filed the complaint under sub. (1) has the burden of proving by clear and convincing evidence at the hearing that the use of the nickname or team name by the school board promotes discrimination, pupil harassment, or stereotyping, as defined by the state superintendent by rule.

AB528,,29 2. If the state superintendent determined under sub. (1) that the use of a nickname or team name by a school board is ambiguous as to whether it is race-based but that the use of the nickname or team name in connection with a logo or mascot is race-based, the school board has the burden of proving by clear and convincing evidence at the hearing that the use of the nickname or team name in connection with the logo or mascot does not promote discrimination, pupil harassment, or stereotyping, as defined by the state superintendent by rule.

AB528,11 Section 11. 118.134 (3) (a) of the statutes is amended to read:

AB528,,31 118.134 (3) (a) The division of hearings and appeals state superintendent shall issue a decision and order within 45 days after the hearing. If the division of hearings and appeals state superintendent finds that the use of the race-based nickname, logo, mascot, or team name does not promote discrimination, pupil harassment, or stereotyping, the division of hearings and appeals state superintendent shall dismiss the complaint. Except as provided in pars. (b) and (d), if the division of hearings and appeals state superintendent finds that the use of the race-based nickname, logo, mascot, or team name promotes discrimination, pupil harassment, or stereotyping, the division of hearings and appeals state superintendent shall order the school board to terminate its use of the race-based nickname, logo, mascot, or team name within 12 months after issuance of the order.

AB528,12 Section 12. 118.134 (3) (b) 2. of the statutes is amended to read:

AB528,,33 118.134 (3) (b) 2. a. If, at the hearing under sub. (2) or after a decision and order have been issued under par. (a), the school board presents evidence to the division of hearings and appeals state superintendent that extenuating circumstances render full compliance with the decision and order within 12 months after the issuance of that decision and order impossible or impracticable, the division of hearings and appeals state superintendent may issue an order to extend the time within which the school board must terminate its use of the race-based nickname, logo, mascot, or team name. Except as provided in subd. 2. b., the extension may not exceed 24 months and shall apply only to those portions of the decision and order to which extenuating circumstances apply.

AB528,,34 b. The division of hearings and appeals state superintendent may extend the time granted to a school board under subd. 2. a. if the school board presents evidence to the division of hearings and appeals state superintendent that compliance with a portion of the decision and order issued under par. (a) may be accomplished through a regularly scheduled maintenance program and that the cost of compliance with that portion of the decision and order exceeds $5,000. The extension granted under this subd. 2. b. may not exceed 96 months and applies only to that portion of the decision and order with which compliance will be accomplished through the regularly scheduled maintenance program and that costs more than $5,000.

AB528,13 Section 13. 118.134 (3) (c) of the statutes is amended to read:

AB528,,36 118.134 (3) (c) Decisions of the state superintendent under this subsection are subject to judicial review under ch. 227. The venue for a proceeding to review a decision under this section is the circuit court in any county in which territory of the school district is located.

AB528,14 Section 14. 118.134 (3r) of the statutes is repealed.

AB528,15 Section 15. 118.134 (4) (a) of the statutes is renumbered 118.134 (4) and amended to read:

AB528,,39 118.134 (4) Except as provided in par. (b), the The state superintendent shall promulgate rules necessary to implement and administer this section.

AB528,16 Section 16. 118.134 (4) (b) of the statutes is repealed.

AB528,17 Section 17. 118.134 (6) of the statutes is created to read:

AB528,,42 118.134 (6) Regardless of whether or not an objection is made under sub. (1) or an order is issued under sub. (3), if a school board adopts a resolution to terminate the use of a race-based nickname, logo, mascot, or team name that is associated with a federally recognized American Indian tribe or American Indians, in general, the state superintendent may award a grant to the school board for the costs associated with adopting and implementing a nickname, logo, mascot, or team name that is not race-based. The state superintendent may not award a grant under this subsection in an amount that exceeds the greater of $50,000 or a school board’s actual costs to adopt and implement a nickname, logo, mascot, or team name. The state superintendent shall pay the awards under this subsection from the appropriation under s. 20.255 (2) (kg).

AB528,18 Section 18. 227.43 (1) (bd) of the statutes is repealed.

AB528,19 Section 19. 227.43 (3) (br) of the statutes is repealed.

AB528,20 Section 20. 227.43 (4) (br) of the statutes is repealed.

AB528,21 Section 21. Nonstatutory provisions.

AB528,,47 (1) The department of public instruction shall submit in proposed form the rules required under s. 118.134 (4) to the legislative council staff under s. 227.15 (1) no later than the first day of the 4th month beginning after the effective date of this subsection.

AB528,,48 (2) Notwithstanding s. 227.135 (1), the department of public instruction is not required to prepare a statement of scope of the rules required under s. 118.134 (4).