Case: Rabiebna v. Higher Educational Aids Board
Majority: Justice Annette Kingsland Ziegler (20 pages), joined in full by Justices Rebecca Grassl Bradley, Brian K. Hagedorn, and Janet C. Protasiewicz, and joined as to four paragraphs by Chief Justice Jill J. Karofsky, Rebecca Frank Dallet, and Susan M. Crawford
Concurrences: Karofsky (11 pages), joined by Crawford; Dallet (8 pages), joined by Karofsky and Crawford
Ziegler
Upshot
We conclude that . . . the Grant Program violates the Equal Protection Clause of the Fourteenth Amendment. Accordingly, we affirm the court of appeals’ decision that the statute is unconstitutional and conclude that HEAB (Wisconsin’s Higher Educational Aids Board) is enjoined from operating the Grant Program.
Background
The Grant Program is a financial need program that provides grants to particular race-, national origin-, ancestry-, or alienage-based groups of students. HEAB administers the Grant Program.
In 1985, Wisconsin’s legislature enacted WIS. STAT. § 39.44 to provide taxpayer-funded grants through the Grant Program for “Black American,” “American Indian,” and “Hispanic” undergraduate students enrolled in Wisconsin private, nonprofit universities and colleges. In 1987, the legislature expanded the Grant Program to a student “admitted to the United States after December 31, 1975, and who either is a former citizen of Laos, Vietnam or Cambodia or whose ancestor was or is a citizen of Laos, Vietnam or Cambodia,” and to students attending Wisconsin’s technical colleges. . . .
Additionally, grant eligibility requires the student to also be: a citizen or permanent resident of the United States; a Wisconsin resident; and “enrolled as a sophomore, junior or senior on at least a half-time basis in a technical . . . or a private [college] in Wisconsin eligible to participate in the grant program.” A student’s “grant award shall not exceed $2,500 per academic year,” and students are eligible for a grant for up to eight semesters. Students who are not Black American, Hispanic, American Indian, Laotian, Cambodian, or Vietnamese are categorically ineligible for any grant under the Grant Program.
The Taxpayers object to their tax dollars being spent in a racially discriminatory manner. The Taxpayers sought a declaratory judgment that the Grant Program violates the Equal Protection Clause of the United States Constitution and Article I, Section 1 of the Wisconsin Constitution because students belonging to the preferred racial, national origin, ancestry, or alienage groups are eligible for the grants, while students of other racial, national origin, ancestry, or alienage groups are not. The parties filed cross-motions for summary judgment, addressing standing as well as the constitutionality of the Grant Program.
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The circuit court determined that the Taxpayers have standing to challenge the Grant Program, but upheld it as constitutional under Grutter v. Bollinger (a U.S. Supreme Court case), because HEAB “has a compelling interest in attaining in [sic] a diverse student body,” and “[t]he Grant Program promotes the diversity of student bodies by helping minority students with financial need remain enrolled in school and graduate.” . . .
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While the case was pending in the court of appeals, the United States Supreme Court issued SFFA (Students for Fair Admissions, Inc. v. President & Fellows of Harvard College). In SFFA, the Supreme Court struck down two universities’ practice of using race-based classifications to make college-admission determinations, concluding that the practice violated the United States Constitution’s Equal Protection Clause. . . .
Bound by the Court’s ruling in SFFA, the court of appeals held that the Grant Program violated the Equal Protection Clause’s core principles and struck down the Grant Program as unconstitutional. Applying SFFA, the court of appeals held that diversity is no longer a compelling interest in higher education and concluded that the Grant Program is materially indistinguishable from the race-based admissions programs invalidated in SFFA. The court of appeals reversed the circuit court and enjoined HEAB from administering the program.
Guts
We hold that the Taxpayers have standing. In Wisconsin, taxpayers may challenge the illegal expenditures of public funds. In taxpayer actions, the complaining taxpayers must allege that the “taxpayers as a class have sustained, or will sustain, some pecuniary loss.” Because “a taxpayer [has] a financial interest in public funds . . . akin to that of a stockholder in a private corporation,” “[a]ny illegal expenditure of public funds directly affects taxpayers and causes them to sustain a pecuniary loss.” “This is because it results either in the governmental unit having less money to spend for legitimate governmental objectives, or in the levy of additional taxes to make up for the loss resulting from the expenditure.” The fact that the loss to any one, individual taxpayer may be minimal does not defeat standing.
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The following paragraphs were not joined by Karofsky, Justices Dallet and Crawford but remain the majority opinion:
At the heart of the Equal Protection Clause is the principle that race-, national origin-, ancestry-, or alienage-based discrimination is unconstitutional except in the most extraordinary instances where such a remedy is required. That requires all individuals to be treated equally without regard to one’s race, ancestry, origin, or ethnicity. Under the Equal Protection Clause, the government must treat each citizen as an individual—not as one member of a class. The Constitution requires that every person “must be treated based on his or her experiences as an individual—not on the basis of race.” Consequently, “no State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.”
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Statutes discriminating upon race . . . require the government to satisfy strict scrutiny’s two-step analysis. First, the racial classification must be used to “further compelling governmental interests.” Second, it must be “narrowly tailored,” i.e., “necessary,” to achieve that interest. If the statute fails at either step, then the statute fails strict scrutiny.
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We hold that HEAB has failed to demonstrate that the legislature’s goals of increasing diversity and equalizing educational opportunities for certain students are compelling in this instance. In the circuit court, HEAB argued that “the reason for the Grant Program, from its genesis, is to retain a diverse population of lawfully admitted students, who otherwise fail to remain in their programs at disproportionally high rates.” In HEAB’s view, “[t]he Grant Program serves the compelling interest of promoting the diversity of student bodies by helping minority students with financial need remain enrolled in school and graduate.” Under Grutter v. Bollinger, HEAB posited that the first “prong of strict scrutiny is met, as the [United States] Supreme Court has repeatedly held diversity in higher education is a compelling interest.”
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Here, HEAB’s first asserted interest—promoting the diversity of student bodies by helping minority students with financial needs remain enrolled in school and graduate—fails. At the statute’s inception, the legislature sought to promote diversity in higher education by retaining a diverse population who fail to remain in the state’s higher educational programs at disproportionally high rates. Certainly, objectives rooted in diversity might seem compelling. But the SFFA Court concluded that the objectives identified by the universities as flowing from a diverse student body were “not sufficiently coherent” to constitute a compelling government interest. Here, HEAB has not even identified any objectives or benefits it hopes to promote or achieve through diverse student bodies at private and technical colleges. Thus, it is left to argue that diversity is a compelling interest in and of itself, a position that lacks support under current law.
And, HEAB has failed to demonstrate how its second asserted interest—equalizing education opportunities for certain students by offering them financial aid—was compelling when the statute was enacted. Ensuring that all public educational opportunities are offered to all students is vital to a free and fair nation. The schoolhouse doors should be open to all. But before the government may impose a race-, national origin-, ancestry-, or alienage-based remedy, it must demonstrate through previous government-sanctioned discrimination, regulatory discrimination, legislatively demonstrated statistical findings, or otherwise that the problem it seeks to remedy actually existed when the statute was passed. None of HEAB’s data is from the time of the statute’s enactment. Its support stems from data produced decades later. HEAB’s data shows that between 2015 and 2016, 80% of students who received financial aid from the Grant Program either completed or were continuing toward completing their degree or certificate. Similarly, recipients’ graduation or retention rates were 85% in 2016 to 2017, 77% in 2017 to 2018, and 80% in 2018 to 2019. For Wisconsin technical colleges, HEAB asserts that “grant recipients graduated at more than double the rate of students who did not receive a grant, 69% to 29%.” Between 2019 and 2020, “85% of grant recipients reported that, without it, they either would not have been able to attend school, or would have faced difficulties in doing so.”
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Regardless of whether a compelling interest might exist, the Grant Program still fails because the statute is not narrowly tailored. Strict scrutiny’s second step requires the court to analyze whether the means chosen are narrowly tailored to achieve the legislature’s ends. Those “means . . . must be specifically and narrowly framed to accomplish that purpose.”
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According to HEAB, the Grant Program is narrowly tailored because “[i]t identifies specific groups with college attrition rates far above those of White and Asian students and creates very small, need-based scholarships to address that problem.” It provides statistics and experts’ opinions in support of its position that “a mere focus on socioeconomic status and using need as a basis would not provide the results that the schools currently obtain through the use of the [Grant] Program.” But HEAB’s argument fails to meet a narrow tailoring analysis, as it failed to “consider[] workable race-neutral alternatives.”
And HEAB’s Grant Program is not narrowly tailored to achieve either of HEAB’s asserted interests. When the government is seeking to further a diversity interest in the higher-education context, the government may not use race as a dispositive factor. Instead, the government’s program may use race as one factor of many, but must “remain flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application.” Because the Grant Program’s statute uses race as the dispositive factor for either of HEAB’s asserted interests, neither survives.
Under the Grant Program, race is not but one factor in a “highly individualized, holistic review”; race is the only factor. Either a student is, or is not, a member of the preferred racial group. Whether such financial benefits to an asserted interest in diversity or an equalization of education opportunities, making race the dispositive factor—and not one factor in a holistic review of each individual student—is fatal to HEAB’s case. The importance of this individualized consideration in the context of a race-conscious higher education program is paramount.
Karofsky
Karofsky Concurrence
In the wake of the Civil War, the Thirteenth, Fourteenth, and Fifteenth Amendments were ratified as part of the Reconstruction effort. The Fourteenth Amendment granted citizenship to formerly enslaved people, ensured the due process of law, and applied equal protection of the law to state governments. The Fourteenth Amendment embodies the aspirations of a country seeking to heal after being torn apart by the evils of slavery and the Civil War. Rather than turn a blind-eye to the scourge of racism and slavery, the Fourteenth Amendment’s Equal Protection Clause faces it head-on by demanding change and requiring equal protection of the laws for all people. Inherent in its language is a recognition of the wrongs of prejudice, discrimination, and injustice. The Fourteenth Amendment represents a nation striving to be a more perfect union.
From the time it was ratified, forces worked to undermine the Fourteenth Amendment, and those forces succeeded in creating a racist retrenchment that has continued to the present. Today, 150 years after its ratification, some of our highest institutions continue to disregard the foundational promise of equality and continue to pull our nation backwards.
Why have we not learned from our past? Why are we not willing to recognize the harms this country has caused to those who are marginalized, disempowered, or disenfranchised? Why, instead of wielding the Equal Protection Clause as a sword against racism, do we employ it to shield against the promise of equality for all? The answer appears to be because we have failed to fully recognize how societal and governmental practices have long continued to enforce a preference for White Americans and to burden Black Americans and those of other disadvantaged races or backgrounds.
A recent example of that failed recognition is Students for Fair Admissions, Inc. v. President and Fellows of Harvard College. In SFFA the U.S. Supreme Court ruled that race-based affirmative action programs in college admissions violated the Equal Protection Clause. The Court reasoned that under the Equal Protection Clause all government action must be color blind because “[e]liminating racial discrimination means eliminating all of it.” The Court explained that, “[t]he guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color.” In concluding, the Court observed that universities have for too long “concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin. Our constitutional history does not tolerate that choice.” In short, the Court ruled that it is racist to remedy racism.
Karofsky then discusses the dissenting opinions by Justice Sonia Sotomayor and Justice Ketanji Brown Jackson in SFFA, which, she wrote, “handily exposed the fault lines in the majority’s opinion.”
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I fully recognize and acknowledge that I am bound by the precedent set forth in SFFA and other cases decided by the U.S. Supreme Court when interpreting the Fourteenth Amendment. As such, I concur in the mandate of the majority of this court. Under SFFA, the statute cannot survive strict scrutiny. However, I also choose to write separately. I do so because I find it impossible to ignore the truths that Justice Jackson identifies. Those truths apply to real people here in Wisconsin.
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Educational disparities in Wisconsin are not limited to grades K through 12 and have continued after high school. Petitioners point to documented racial disparities for college-aged students. In the 1980s, Wisconsin documented significant disparities in both enrollment and retention rates between minority students (particularly Black, Hispanic, and Native American students) and White students at four-year public colleges. These problems combined meant that in 1983, degrees conferred upon minority students represented only 2.4% of all degrees awarded. Today, significant retention problems still exist for Black, Hispanic, and Native American students. At two-year institutions, about half of all Asian and White students complete a degree within six years, as compared to only about a quarter of Black students and a third of Hispanic students. Overall, Black students still have 43 percent lower odds of attaining an associate’s or bachelor’s degree as compared to White students after accounting for other factors.
Clearly many students of color in Wisconsin leave high school and enter college with distinct disadvantages. That disparity is not about statistics or mere correlation. Rather, that disparity is about a reality where past state-sponsored racism continues to affect educational opportunities, and systemic racism continues to rob non-White people of equal educational opportunities. And as difficult and uncomfortable as that may be for some to acknowledge, it is the truth, and it cannot and should not be ignored. As Justice Jackson explains, requiring the state to “ignore the initial race-linked opportunity gaps . . . will delay the day that every American has an equal opportunity to thrive, regardless of race.”
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Evidence shows the program has been successful in increasing retention rates. HEAB reported that in recent years, between 77% and 85% of grant recipients either continued in school or completed their degree or certificate. For technical colleges specifically, receipt of a grant at least doubled graduation rates for students who received a grant and tripled graduation rates for Black students who received a grant (from 21.4% graduation rates for Black students who did not receive a grant to 64.4% for those who did). According to HEAB, 85% of grant recipients self-reported that without the grant they would have either dropped out of school or had significant difficulties in remaining.
Despite this documented success, the grant program’s explicit reliance on race is fatal to its constitutionality for the reasons explained in Justice Dallet’s concurring opinion. A suggested alternative means of maintaining a grant program to improve retention would be to target individuals who are economically disadvantaged, since there is also a statistical correlation between economic disadvantage and low retention rates. While this alternative aligns with the Supreme Court’s ruling in SFFA, it falls short because it does not acknowledge the racial inequality underlying the problem.
At bottom, if we truly want to return to the promise of the Fourteenth Amendment, we must first acknowledge inequalities based on race. Then, we must be willing to accept that the “fault and responsibility to remedy” these inequalities lies “with the government and society that perpetuated” them.
Dallet
Dallet Concurrence
The state claims that there are disproportionately high dropout rates among Black, Native American, Hispanic, and certain Southeast Asian students at Wisconsin’s private and technical colleges. In an effort to help those students remain in school and graduate, the legislature adopted the statute at issue which provides them with need-based grants. Since eligibility for the grants is limited to students only of certain races, national origin, or alienage, the program is subject to strict scrutiny under the Fourteenth Amendment’s Equal Protection Clause. Plaintiffs, a group of taxpayers argue that the program cannot survive that scrutiny because it is not narrowly tailored to further a compelling state interest.
I conclude that the Higher Educational Aids Board, the state agency responsible for administering the program, has not met its burden of establishing that the statute is supported by a compelling state interest, and thus that the program is unconstitutional. That is because the record does not support the Board’s assertions that there is a real-world problem with dropout rates among the eligible students at Wisconsin’s private and technical colleges, or that race, national origin, and alienage cannot be separated from that underlying problem. I write separately to explain this narrow and dispositive conclusion, and because the majority opinion’s efforts to subdivide the Board’s asserted interest into component parts and reject them piecemeal are unnecessary.
Dallet discusses the lack of case law on what makes an asserted state interest “compelling.”
The Supreme Court has devoted more attention to the compelling-interest prong, however, in race-based Equal Protection challenges. To date, the Court has recognized two compelling interests that can justify narrowly tailored race-conscious laws or governmental policies: (1) preventing race riots in prisons, and (2) remedying identifiable past instances of discrimination. Importantly, the Court’s recognition of these interests as compelling in race-based Equal Protection challenges rested on the underlying factual record, and specifically whether that record established both that there was a real-world problem the race-conscious law or policy sought to address, and that race could not be separated from that underlying problem. In other words, the reason a state had a compelling interest in a race-based prison housing policy was in part because it demonstrated that existing racial tensions posed serious safety risks. Relatedly, the existence of a compelling state interest in adopting a race-based remedy for past discrimination depended on a showing of specifically identifiable instances of racial discrimination against individuals. And in both of these situations, race could not be separated from the underlying problem; race was the reason behind the imminent risk of violence in prisons and the prior discrimination against specific individuals.
Likewise, the Court has also repeatedly rejected asserted state interests as not compelling when the state lacked evidence of the underlying problem it sought to address, or failed to show that race (or alienage) could not be separated from that problem. For example, the Court concluded that a generalized interest in remedying “past societal discrimination” was not compelling because it was based on “sheer speculation,” and could not “in any realistic sense be tied to any injury suffered by anyone.” Similarly, in rejecting a Texas law prohibiting non-citizens from serving as notaries public, the Court concluded the state’s asserted interests in ensuring familiarity with state law and notaries’ availability for testimony in later proceedings were not compelling. The reason why, the Court explained, was that Texas had no evidence that non-citizens could not familiarize themselves with state law or that “the unavailability of notaries’ testimony presents a real, as [o]pposed to a merely speculative, problem to the State.”
The upshot of these cases is that in order for an asserted state interest to be compelling enough to support a race-based (or alienage- or national-origin-based) law or policy, it must be grounded on more than just speculation or unfounded empirical assumptions. Instead, a state has a such a compelling interest only if it establishes, at a minimum, that there is a real-world problem and that race (or alienage, or national origin) cannot be separated from that problem.
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When the legislature first adopted the grant program . . . it did so based on two reports: (1) a 1984 report by a joint committee created by the Superintendent of Public Instruction and University of Wisconsin System President “to study cooperative ways of eliminating or reducing causes leading to under-enrollment of minority students and to study factors affecting retention in post-secondary education;” and (2) a subsequent study conducted by the legislature itself. These reports focused only on data from the University of Wisconsin System, however, and included no information about retention rates for students enrolled in private colleges. Indeed, when discussing the prospect of creating a grant program for certain minority students enrolled in private colleges, the legislature’s report acknowledged that “no evaluation of need [for such a grant program] has been made.” Further, while the legislature’s report included data about enrollment rates of various student populations, it contained no information about retention rates and acknowledged that “[n]o data is available which indicates the need levels of the target population.” Thus, while these sources may have something to say about enrollment or retention at Wisconsin’s public universities, they do not show that students in the eligible groups were dropping out of Wisconsin’s private colleges at disproportionately high rates.
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Data collected in the decades since the statute was adopted fails to fill these gaps, or demonstrate the existence of disproportionate attrition rates among Black, Native American, Hispanic, and certain Southeast Asian students at Wisconsin’s private and technical colleges. To be sure, annual reports prepared by the Board demonstrate that the program is effective in the sense that students who receive grants are far more likely to graduate from college than those who are eligible for grants but don’t get them. But those reports do not include data on retention rates for all students at Wisconsin’s private and technical colleges, or for all such students with financial need. Without that baseline information, these reports provide no support for the Board’s claim that attrition rates are disproportionately higher among the groups eligible to receive grants under the statute.
To summarize, when the statute was first adopted in 1985, and when it was expanded in 1987, the legislature had no basis on which to conclude that the eligible students were, in fact, dropping out of Wisconsin’s private and technical colleges at disproportionate rates, let alone that they were doing so for financial reasons. Although data from the decades since supports the conclusion that the program reduces attrition rates among students who receive the grants, that data also provides no basis for concluding that Black, Hispanic, Native American, and certain Southeast Asian students are dropping out of Wisconsin’s private and technical colleges at disproportionate rates. In short, there is no evidence in the record establishing a problem with retention at Wisconsin’s private and technical colleges, or that race cannot be separated from that problem because the eligible Black, Native American, Hispanic, and Southeast Asian students are the ones who are dropping out of those schools at disproportionately high rates. Without that evidence, the Board cannot meet its burden of establishing that the statute is supported by a compelling interest, and the program must therefore be struck down as unconstitutional.
This conclusion is dispositive. Whether the interest underlying the statute is framed generally as reducing disproportionate dropout rates, or broken down into separate interests like equalizing educational opportunity and promoting diversity through improving student retention, the result is the same. Without empirical support in the record for the existence of the underlying problem and the fact that race cannot be separated from that problem, the Board cannot establish the existence of a compelling state interest, no matter how that interest is framed. For this reason, the majority opinion’s efforts to subdivide the Board’s asserted interest into component parts and reject them piecemeal are unnecessary. All that needs to be said is that the Board failed to meet its burden of establishing a compelling state interest in this case.
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Nevertheless, there is still some room for optimism. If the Supreme Court considers it self-evident that the government has a compelling interest in, for example, preserving “public confidence in judicial integrity,” or “protecting the integrity of the Medal of Honor,” then it certainly ought to conclude that states have a compelling interest in ensuring that all of their students—regardless of race, national origin, alienage, or anything else—stay in school and complete their education. Indeed, as the Court put it in Brown v. Board of Education of Topeka, “it is doubtful that any child may reasonably be expected to succeed in life if he [or she] is denied the opportunity of an education.” The state’s interest in ensuring equal access to educational opportunity is no less meaningful when the barriers to obtaining a degree today may be financial, rather than legal or social. Despite Plaintiffs’ counsel’s assertions at oral argument to the contrary, the Supreme Court has never said that two and only two compelling interests—preventing race riots and remedying past instances of discrimination against specific individuals—could ever justify race-conscious government policies. Thus, while the Board here failed to demonstrate a compelling interest in adopting this statute to address disproportionately high attrition rates among Black, Hispanic, Native American, and certain Southeast Asian students at Wisconsin’s private and technical colleges, the result may be different for other laws with greater factual support. Accordingly, I respectfully concur.