Heated oral argument on whether state grant program is a permitted solution or inpermissible discrimination

The entrance to the Wisconsin Supreme Court at the Capitol in Madison. Photograph by Margo Kirchner.

By Alexandria Staubach 

A hot bench of Wisconsin Supreme Court justices challenged a lawyer for the Wisconsin Institute for Law & Liberty during oral arguments last week about his challenge to a state technical college grant program.

At issue is whether the program is a permissible targeted solution to address racial inequities or impermissible race-based discrimination.

WILL attorney Luke Berg argued that all race-based state action is unconstitutional, with exceptions only for addressing race riots in prisons and remedying specific past state-sanctioned discrimination. 

Berg drew his argument from a 2023 U.S. Supreme Court decision regarding Harvard. That decision effectively banned race-based college admission policies across the country. 

Berg argued that the only question for the Wisconsin high court was “when, how, and by whom (the state grant law) gets struck down.”

Justice Rebecca Dallet called Berg’s argument a “threat,” “offensive,” and “inappropriate.” 

The heated and unusual exchange took place during oral arguments in Rabiebna v. Higher Educational Aids Board, in which Berg's client challenges the race-based technical college retention grant statute that has been on the statute books in Wisconsin since 1985. 

Grants allocated by the statute range from $250 to $2,500 and are available to students who are Black, American Indian, Hispanic, and Southeast Asian (specifically individuals who fled Laos, Vietnam and Cambodia after 1975 or their descendants) and attending state technical college programs.

Berg took the position that any race-based program initiated by the state is inherently unconstitutional as enacting “explicit racial discrimination into the law.”

Dallet pushed back. “What if we had a maternal fetal health issue with Black babies dying at a higher rate than white babies,” she asked, adding “which, by the way, we do have significantly.” 

“Are you saying the state couldn’t target that because if they use the word race, if they say the word “Black,” we’re done?”

Berg responded that the state would need to pass a program applicable to all babies instead. “The state can talk about that problem, (but) what it can’t do is enact into law an explicit racial discrimination,” he insisted. 

“They would pass a program that applies to all babies that need it and it would mostly apply to the Black babies if that’s the real problem, but there are some white babies in the world who might need that program, too, so you would make the program available to all,” he said.
 
Other justices, too, questioned Berg on the scope of his desired result. “People of color contribute to the vitality of our state, and they are thanked by facing disparities when it comes to housing, access to medical care, transportation, incarceration, financial stability and education,” said Chief Justice Jill Karofsky. She asked Berg if he “agreed that education plays a central role in breaking the cycle of inequity.”

“I think the worst form of discrimination is discrimination under the law,” Berg responded. Berg indicated that government cannot address race-based problems with targeted solutions.

“Does the state have an interest in examining, addressing, and eliminating those disparities?” asked Justice Susan Crawford. 

“No,” said Berg. 

Berg suggested the law is so clearly in favor of his position that the Supreme Court should “D-I-G” the case, meaning dismiss it as “improvidently granted.” The Court of Appeals decision in Berg’s favor would then stand.  

Jefferson County Circuit Court Judge William Hue determined that the grant program survived WILL’s constitutional challenge. 

However, a unanimous District 2 appeals panel of Judges Mark Gundrum, Maria Lazar, and Shelly Grogan reversed.  “(G)overnment funding or support designed to provide a benefit or cause a detriment to persons based even in part on their race, national origin, or ancestry cannot stand,” Gundrum wrote.

At last week’s Supreme Court argument, Assistant Attorney General Charlotte Gibson called the District 2 decision “radical.”

“I am not aware of any court in the county who has come up with a ban that would be this categorical, that would cover things like medical research that’s targeted at a particular group that is suffering from specific health outcomes,” said Gibson. She cautioned that “that is exactly the rule of law they’re looking for.” 

Gibson argued that the grant program is narrowly tailored to address the state’s compelling interest in improving retention rates for college students with disproportionately high attrition—a problem “race-neutral aid has failed to fix.”