Wisconsin Supreme Court Asked to Address Affirmative Action Post-SFFA

Broad decision from District II interpreted SFFA to prohibit affirmative action for nearly all government funding or support programs.

Yesterday, the Wisconsin Department of Justice filed a petition for review in Rabiebna v. Higher Educational Aids Board, No. 2022AP2026, giving the Wisconsin Supreme Court its first opportunity to weigh in on affirmative action since the U.S. Supreme Court issued its 2023 decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (“SFFA”), significantly curtailing the lawful use of race in college admissions.

The case involves a challenge to a state-funded program that provides grants to undergraduate students enrolled at private or technical colleges and who are Black American, Hispanic, American Indian, Laotian, Cambodian, or Vietnamese. Students of any race, national origin, ancestry, or alienage other than those listed in the statute are not eligible for grants under the program. The grant program, which is codified at Wis. Stat. § 39.44, dates back to 1985 and was funded to the tune of $819,000 during the 2021-22 academic year.

Last month, in a 53-page decision authored by Judge Gundrum, District II of the Wisconsin Court of Appeals unanimously held that the grant program violates the Equal Protection Clause under the U.S. Supreme Court’s SFFA precedent. In a sense, District II’s decision was unremarkable. As it explained, under the grant program, “a student’s race, national origin, ancestry, or alienage is the determinative factor as to grant eligibility.” That pretty clearly runs contrary to SFFA’s directive.

But in another sense, District II’s decision has much broader implications. The court held that SFFA’s rule reaches beyond college admissions and into virtually all contexts involving government funding or support. It explained:

While HEAB attempts to limit the holding of SFFA to only race-based college admissions programs, the SFFA Court did not so limit the application of the equal protection principles it articulated. Indeed, those principles appear to apply to nearly every context in which government attempts to use race, national origin, ancestry or alienage as a discriminating factor, just as the principles articluated in Brown were applied by lower courts and the Supreme Court to invalidate all manner of race-based state action in the years following that decision. In short, except in the extremely limited and “most extraordinary” circumstances identified in SFFA, government 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. Moreover, even in those limited and extraordinary circumstances, the government funding or support cannot stand without a clear end point.

I’m curious to see what the state supreme court does with this. No doubt, the fast-approaching April 1 election will play a role. But regardless of the outcome, this one seems likely to go up. If liberals control the court, they’ll almost certainly want to trim back District II’s expansive reading of SFFA. And if conservatives control the court, they’ll likely jump at the opportunity to address affirmative action. (Based on my five minutes of research, the Wisconsin Supreme Court hasn’t addressed affirmative action head-on since before the U.S. Supreme Court’s Grutter v. Bollinger decision in 2003.) That said, Judge Gundrum’s decision is well-written and well-reasoned. I would have no objection to it being the final word.