Konkanok Rabiebna v. Higher Educational Aids Board

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
February 26, 2025
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2022AP2026 Cir. Ct. No. 2021CV137

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

KONKANOK RABIEBNA, RICHARD A. FREIHOEFER,
DOROTHY M. BORCHARDT, RICHARD HEIDEL AND
NORMAN C. SANNES,

PLAINTIFFS-APPELLANTS,

V.

HIGHER EDUCATIONAL AIDS BOARD AND CONNIE HUTCHINSON,

DEFENDANTS-RESPONDENTS.

APPEAL from an order of the circuit court for Jefferson County:
WILLIAM F. HUE, Judge. Reversed and cause remanded with directions.

Before Gundrum, P.J., Grogan and Lazar, JJ.

¶1 GUNDRUM, P.J. Taxpayer appellants Konkanok Rabiebna,
Richard A. Freihoefer, Dorothy M. Borchardt, Richard Heidel and Norman C.
No. 2022AP2026

Sannes challenge WIS. STAT. § 39.44 (2023-24)1 and the grant program
administered thereunder by the Higher Educational Aids Board (HEAB) and
Connie Hutchinson.2 Appellants contend the statute and program violate the
Equal Protection Clause of the United States Constitution and article I, section 1 of
the Wisconsin Constitution because they provide taxpayer-funded college grants
for which financially needy students of only certain racial, national origin,
ancestry and alienage groups are eligible.3 Appellants appeal from an order of the
circuit court denying them summary judgment and granting summary judgment to
HEAB and Hutchinson.

¶2 In 2023, the United States Supreme Court released its landmark
decision in Students for Fair Admissions, Inc. v. President & Fellows of
Harvard College (SFFA), 600 U.S. 181 (2023), in which the Court stated, in the
context of that higher education admissions case, that “the ‘core purpose’ of the
Equal Protection Clause” is “do[ing] away with all governmentally imposed
discrimination based on race” and emphasized that “[e]liminating racial
1
All references to the Wisconsin Statutes are to the 2023-24 version unless otherwise
noted.
2
HEAB is a state government agency; Hutchinson is the executive secretary for HEAB
and responsible for administering the grant program on its behalf.
3
While appellants bring their claims under both the Equal Protection Clause of the
Fourteenth Amendment to the United States Constitution and article I, section 1 of the Wisconsin
Constitution, they make no independent arguments under the Wisconsin Constitution. “Article I,
[s]ection 1 [of the Wisconsin Constitution] has been interpreted as providing the same equal
protection … rights afforded by the Fourteenth Amendment to the United States Constitution.”
Mayo v. Wisconsin Injured Patients & Fams. Comp. Fund, 2018 WI 78, ¶35, 383 Wis. 2d 1,
914 N.W.2d 678. Accordingly, we do not separately address appellants’ claims under the
Wisconsin Constitution.

As noted, appellants include “alienage” in their claims of equal protection discrimination.
We assume this is solely due to the Laotian, Vietnamese and Cambodian citizenship status
referred to in WIS. STAT. § 39.44(1)4.

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discrimination means eliminating all of it,” id. at 206 (first alteration in original).
The Court agreed the clause “requires equality of treatment before the law for all
persons without regard to race or color,” id. at 205, and “no State has any authority
under the [clause] to use race as a factor in affording educational opportunities
among its citizens,” id. at 204 (citation omitted). The Court reiterated that
“‘[d]istinctions between citizens solely because of their ancestry are by their very
nature odious to a free people whose institutions are founded upon the doctrine of
equality.’ That principle cannot be overridden except in the most extraordinary
case.” Id. at 208 (citation omitted).

¶3 WISCONSIN STAT. § 39.44 and the grant program are directly at odds
with all of these equal protection principles. For the following reasons, we agree
with appellants that § 39.44 and the program are unconstitutional.

BACKGROUND

¶4 In 1985, the legislature and governor enacted WIS. STAT. § 39.44
(1985-86) to provide taxpayer-funded grants for financially needy “Black
American,” “American Indian” and “Hispanic” undergraduate students enrolled in
Wisconsin private, nonprofit higher educational institutions (hereinafter “private
colleges”).4 In 1987, the legislature and governor expanded the grant program to
also (1) make eligible for grants any financially needy undergraduate “who is
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 (2) provide grants for eligible students

4
Consistent with the language used in WIS. STAT. § 39.44 and HEAB’s briefing, we also
will use the terms “Black American,” “American Indian” and “Hispanic.”

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No. 2022AP2026

attending Wisconsin technical colleges, in addition to eligible students attending
private colleges. See § 39.44 (1987-88). Section 39.44 provides in relevant part:

(1)(a) In this section “minority undergraduate” means an
undergraduate student who:

1. Is a Black American.

2. Is an American Indian.

3. Is a Hispanic, as defined in [WIS. STAT.
§] 16.287(1)(d).[5]

4. Is a person who is 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.

(b) There is established, to be administered by the
board, the … grant program for minority undergraduates
enrolled in private [colleges] in this state or in technical
colleges in this state.

(2) Funds for the grants … shall be distributed from the
appropriation … with 50 percent distributed to the eligible
private institutions and 50 percent distributed to the eligible
technical colleges. The board shall audit the enrollment
statistics annually.

(3) An institution or school receiving funds under
sub. (2) shall:

(a) Award grants to eligible students on the basis of
financial need.

(b) Demonstrate to the satisfaction of the board that
such funds do not replace institutional grants to the
recipients.

(c) Annually report to the board the number of awards
made, the amount of each award, the minority status of
each recipient, other financial aid awards made to each

5
WISCONSIN STAT. § 16.287(1)(d) defines “Hispanic” as “a person of any race whose
ancestors originated in Mexico, Puerto Rico, Cuba, Central America or South America or whose
culture or origin is Spanish.”

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recipient and the total amount of financial aid made
available to the eligible students.

Students of a race, national origin, ancestry or alienage other than Black
American, Hispanic, American Indian, Laotian, Cambodian, or Vietnamese are
ineligible for any grant under the grant program regardless of whether they would
otherwise qualify. For the 2021-22 academic year, $819,000 was allocated for the
program.

¶5 Additionally, administrative rules provide that to be eligible for a
grant, a financially needy student of one of the eligible racial, national origin,
ancestry or alienage groups must also be either 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.” WIS. ADMIN. CODE
§ HEA 12.02 (Nov. 2024). The rules also provide that 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. WIS. ADMIN. CODE § HEA 12.03 (Nov. 2024).

¶6 Appellants filed this action seeking 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 eligible.6 The parties filed cross-motions for summary

6
Appellants also alleged an equal protection violation under 42 U.S.C. § 1983 but
appear to have abandoned this claim, as they do not address it. See A.O. Smith Corp. v. Allstate
Ins. Cos., 222 Wis. 2d 475, 491, 588 N.W.2d 285 (Ct. App. 1998) (“[A]n issue raised in the
[circuit] court, but not raised on appeal, is deemed abandoned.”).

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judgment, addressing standing as well as the constitutionality of the grant
program. The circuit court determined the appellants have standing to challenge
the program but upheld it as constitutional, granting summary judgment to HEAB
and denying the same to appellants. Appellants appeal.

¶7 After the parties submitted their appellate briefs, the United States
Supreme Court decided SFFA. The parties thereafter submitted letters to this
court addressing the impact of that decision. We subsequently held oral argument
and took the unusual step of allowing for post-argument briefing.

DISCUSSION

¶8 On June 29, 2023, the Supreme Court released its decision in SFFA,
constituting a significant change in how race-based higher education admissions
programs are evaluated under the Equal Protection Clause. HEAB maintains the
grant program is constitutional, even under SFFA.7 HEAB is incorrect.

I. Standard of Review

¶9 Our review of the circuit court’s summary judgment decision is
de novo. See Behrendt v. Gulf Underwriters Ins. Co., 2009 WI 71, ¶11, 318
Wis. 2d 622, 768 N.W.2d 568. Summary judgment is appropriate when there are

7
The parties’ initial briefing focused heavily on Grutter v. Bollinger, 539 U.S. 306
(2003), which prior to the Supreme Court’s decision in Students for Fair Admissions, Inc. v.
President & Fellows of Harvard College (SFFA), 600 U.S. 181 (2023), was the most significant
Supreme Court precedent relevant to this appeal. Thorough consideration of Grutter and the
record in this case convinces us the grant program would be in violation of the Equal Protection
Clause even if Grutter still controlled. Because it does not, however, we need not lengthen this
decision further by engaging in the academic exercise of providing that legal analysis.

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no genuine issues of material fact and the moving party is entitled to judgment as a
matter of law. Id.

II. Standing

¶10 As an initial matter, HEAB argued in the circuit court, as it does
similarly on appeal, that the appellants lack standing to challenge the grant
program because they bring their suit as “mere” taxpayers. Considering the
taxpayer-standing decision of Fabick v. Evers, 2021 WI 28, 396 Wis. 2d 231, 956
N.W.2d 856, the circuit court concluded that “the Wisconsin Supreme Court has
recognized and conferred standing to the taxpayers in this case, through its holding
in Fabick.” We agree.

¶11 Whether a party has standing presents a question of law we review
de novo. See Teigen v. WEC, 2022 WI 64, ¶10, 403 Wis. 2d 607, 976 N.W.2d
519, overruled on other grounds by Priorities USA v. WEC, 2024 WI 32, 412
Wis. 2d 594, 8 N.W.3d 429; Silver Lake Sanitary Dist. v. DNR, 2000 WI App 19,
¶6, 232 Wis. 2d 217, 607 N.W.2d 50.

¶12 In Fabick, our supreme court considered executive orders Governor
Tony Evers issued in 2020 declaring a state of emergency in response to the
Covid-19 virus and granting the governor and the Department of Health Services
extraordinary powers to combat the growing threat. 396 Wis. 2d 231, ¶¶1-3. Two
and one-half months after the first order expired, Evers issued another executive
order declaring a state of emergency, and when that order was close to expiring, he
issued another. Id. ¶¶5-7. Fabick brought a declaratory judgment action
challenging Evers’ legal authority to issue the second and third orders. Id., ¶¶3, 7.

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¶13 Evers contended Fabick lacked standing to maintain the action, id.,
¶¶8-9, but the Fabick court concluded he had standing as a taxpayer because
Wisconsin taxpayer funds had already been and could again be expended to
deploy the National Guard pursuant to the executive orders. Id., ¶11 & n.5.
Specifically, the court noted that at the time Fabick filed his suit, Wisconsin
taxpayers were responsible for funding twenty-five percent of the costs of the
Guard deployments, with the federal government picking up the other seventy-five
percent. Id. “This expenditure of taxpayer funds,” the court stated, “gives Fabick
a legally protected interest to challenge the Governor’s emergency declarations.”
Id., ¶11.

¶14 The Fabick court further determined that Fabick had standing even
though it appeared that by early 2021, the federal government was funding one
hundred percent of the Wisconsin National Guard costs related to Covid-19 and
retroactively paying for past costs. Standing still existed, the court held, because
“[t]axpayer funds ha[d] already been spent in support of the National Guard
deployments” and there was an “imminent threat of unreimbursed costs, past and
future” given that the federal government could again alter its position on such
costs. Id., ¶11 n.5. In the case now before us, there is far more than an “imminent
threat” of the expenditure of taxpayer dollars—millions of “unreimbursed”
taxpayer funds have been spent on the WIS. STAT. § 39.44 grant program since
1985 and millions more would be spent if it continued.8

8
Although prompted by the extraordinary circumstance of a pandemic, Fabick was not
an anomaly. In State ex rel. Wisconsin Senate v. Thompson, 144 Wis. 2d 429, 432-36, 424
N.W.2d 385 (1988), our supreme court determined taxpayer petitioners had standing in a
declaratory judgment action challenging the breadth of the governor’s partial veto authority over
the 1987-89 biennial budget bill. The court concluded that Thomas Loftus and Frederick Risser,
respectively the Assembly Speaker and Senate President at the time, who brought the action “in
(continued)

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¶15 HEAB also claims appellants lack standing because “[their]
requested relief would result in no difference in expenditures. They seek to
remove race-based classifications from the [g]rant [p]rogram, but do not seek to
end the grant, meaning the money would be spent either way.” 9 We are unmoved.
We are not at liberty to simply open up the grant program to all students who
would otherwise qualify absent the racial, national origin, ancestral and alienage
restrictions. Were we to do so, we—not the legislature and governor—would be
effectively enacting an altogether different government program. With the grant
program, the legislature did not simply enact another financial aid program for all
financially needy students; rather, it specifically and intentionally targeted students
who were members of certain racial, national origin, ancestry and alienage groups.
If the legislature (with or without the governor) wishes to enact a grant program
that is open to everyone who meets certain qualifications, but without racial,
national origin, ancestry and alienage restrictions, it may choose to do so. But it
did not do so with WIS. STAT. § 39.44, and it is not our role to do so ourselves.
Our role is to determine whether the program is constitutional as it stands.
Because it is not, taxpayer dollars may no longer be spent on this program.

their individual capacities as taxpayers as well as in their official capacities,” “as residents and
taxpayers … met the requirements for standing to bring this declaratory judgment action.” Id. at
436 (emphasis added). The court added, “we need not consider the absence of any specific
allegation in the petition that Risser or Loftus, either individually or as a class, have suffered
pecuniary loss, to be fatal.” Id. Moreover, the decision did not identify any challenges by Risser
and Loftus related to increased expenditures of taxpayer funds in the budget; rather, their noted
challenges related to reductions in expenditures the legislature had passed. Id. at 456-61. The
governor had vetoed parts of the budget bill so various state programs or entities would have less
taxpayer money to spend; thereby, the governor’s challenged actions presumably saved taxpayers
money. Id.
9
At oral argument, appellants indicated their support for a full elimination of the grant
program.

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¶16 HEAB directs us to Justice Hagedorn’s concurrence in Teigen, 403
Wis. 2d 607, authored just one year after Hagedorn wrote Fabick, but this effort
goes nowhere. Teigen brought a declaratory judgment action challenging
documentary guidance the Wisconsin Elections Commission provided to
municipal clerks regarding ballot drop boxes. Id., ¶¶1-2. While Hagedorn
acknowledged the holding of Fabick that “taxpayers have a legal right ‘to contest
governmental actions leading to an illegal expenditure of taxpayer funds,’”
Teigen, 403 Wis. 2d 607, ¶163 (Hagedorn, J., concurring), he found unpersuasive
Teigen’s argument that Teigen had standing because tax dollars had been used to
distribute the memos and to pay the salaries of the commission staff members who
prepared them, id. Hagedorn concluded that taxpayer standing does not extend
this broadly as it “would mean any taxpayer could challenge almost any
government action—as long as a government employee devoted some time and
attention to the matter. Since that is nearly always true, this would practically
eliminate standing as a consideration in most challenges to government action.”
Id. Citing numerous prior cases in which the court determined there was taxpayer
standing, Hagedorn noted that “[o]ur taxpayer standing cases have always
involved an alleged illegal expenditure distinct from staff time.” Id. n.2.

¶17 Here, it is undisputed that hundreds of thousands of taxpayer dollars
are being spent on the grant program every year; appellants’ claim is not founded
on “staff time” or the distribution of memos. Teigen in no way undermines the
taxpayer standing appellants have in this case.

III. Equal Protection Principles

¶18 The more meaty question before us is whether WIS. STAT. § 39.44
and the grant program violate the Equal Protection Clause, which is a question of

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law we review de novo. See Madison Teachers, Inc. v. Walker, 2014 WI 99, ¶13,
358 Wis. 2d 1, 851 N.W.2d 337. We presume all legislative acts constitutional,
and “we must indulge every presumption to sustain the law.” Id.

¶19 The Equal Protection Clause of the Fourteenth Amendment
“guarantees every person the right to be treated equally by the State, without
regard to race.”10 Fisher v. University of Tex. at Austin, 570 U.S. 297, 315-16
(2013) (Thomas, J., concurring); Adarand Constructors, Inc. v. Pena, 515 U.S.
200, 226-27 (1995). “[A]t the heart of the Constitution’s guarantee of equal
protection lies the simple command that the [g]overnment must treat citizens as
individuals, not as simply components of a racial, religious, sexual or national
class.” SFFA, 600 U.S. at 223 (citing Miller v. Johnson, 515 U.S. 900, 911
(1995)). “Because the Fourteenth Amendment ‘protects persons, not groups,’ all
‘governmental action based on race—a group classification long recognized as in
most circumstances irrelevant and therefore prohibited—should be subjected to
detailed judicial inquiry to ensure that the personal right to equal protection of the
laws has not been infringed.’” Grutter v. Bollinger, 539 U.S. 306, 326 (2003).
WISCONSIN STAT. § 39.44 and the grant program run afoul of the Equal Protection
Clause.

10
Under the Equal Protection Clause, strict scrutiny applies not only to discrimination
related to race but also to discrimination based on national origin, ancestry and alienage. See,
e.g., SFFA, 600 U.S. at 308-09 (Gorsuch, J., concurring) (race and national origin); Fisher v.
University of Tex. at Austin, 570 U.S. 297, 309-10 (2013) (race and ancestry); Gregory v.
Ashcroft, 501 U.S. 452, 468 (1991) (alienage); A.M.B. v. Circuit Ct. for Ashland Cnty., 2024 WI
18, ¶19, 411 Wis. 2d 389, 5 N.W.3d 238 (race, national origin and alienage), cert. denied, 93
U.S.L.W. 3169 (U.S. Jan. 13, 2025) (No. 24-441).

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IV. Application

¶20 To properly apply these principles, we begin with a discussion of the
Supreme Court’s SFFA decision.11

A. The SFFA decision

¶21 In 2003, the Supreme Court held in Grutter v. Bollinger that “the
Equal Protection Clause does not prohibit [the University of Michigan] Law
School’s narrowly tailored use of race in admissions decisions to further a
compelling interest in obtaining the educational benefits that flow from a diverse
student body.” 539 U.S. at 343 (emphases added). The Court stated that it was
“endors[ing] Justice Powell’s view [in Regents of University of California v.
Bakke, 438 U.S. 265, 311-15 (1978)] that student body diversity is a compelling
state interest that can justify the use of race in university admissions” and held that
“the Law School has a compelling interest in attaining a diverse student body.”
Grutter, 539 U.S. at 325, 328. Its holding in large part was based on its
“deference” to the university’s “educational judgment that such diversity is
essential to its educational mission.” Id. at 328 (emphases added).

11
In its post-SFFA letter brief to this court, HEAB discounts the import of SFFA,
arguing that the case is limited to admissions policies and is not applicable to financial aid
programs, like the grant program addressed here. HEAB, however, fails to direct us to any cases
that do address financial aid programs and conceded at oral argument that it was not aware of any
such cases. Of note, in its response brief, submitted to this court prior to the release of SFFA,
HEAB relied heavily upon Grutter—an admissions policy case—in support of its arguments that
the grant/financial aid program here is constitutional. Indeed, HEAB wrote: “Although Grutter
involved an admissions policy that sought to admit minority students, its discussion of diversity
in higher education covers any program designed to attain that same end, such as financial aid.”
In the absence of an on-point race-based grant/financial aid decision from the Supreme Court,
admissions policy cases such as Grutter and SFFA appear to be the next best thing. The equal
protection principles articulated in SFFA are easily applicable to the financial aid context.

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¶22 Twenty years after Grutter, the Supreme Court changed course with
SFFA. In SFFA, the Court considered whether the admissions programs of
Harvard College and the University of North Carolina violated the Equal
Protection Clause of the Fourteenth Amendment because “admissions decisions …
turn[ed] on an applicant’s race.” 600 U.S. at 197-98, 208. In the Harvard
admissions process, the Court noted, an applicant’s race was taken “into account”
throughout the entire process, with the goal being “‘to make sure that [Harvard
does] not hav[e] a dramatic drop-off’ in minority admissions from the prior class.”
Id. at 194 (alterations in original; citation omitted). As a result of this process,
“‘race [wa]s a determinative tip for’ a significant percentage ‘of all admitted
African American and Hispanic applicants.’” Id. at 195 (citation omitted). The
Court observed that “[a]n African American [student] in [the fourth lowest
academic] decile has a higher chance of admission (12.8%) than an Asian
American in the top decile (12.7%)” and “black applicants in the top four
academic deciles are between four and ten times more likely to be admitted …
than Asian applicants in those deciles.” Id. at 197 n.1 (first alteration added;
citations omitted).

¶23 With UNC’s admissions program, initial “readers” of admission
applications were “required to consider ‘[r]ace and ethnicity … as one factor’ in
their review.” Id. at 195 (alterations in original; citation omitted). In making their
recommended decisions, readers were allowed to “offer students a ‘plus’ based on
their race, which ‘may be significant in an individual case.’” Id. at 196 (citation
omitted). “The admissions decisions made by the first readers [we]re, in most
cases, ‘provisionally final.’” Id. (citation omitted). A review committee then
made the final admission decision on each recommendation by the initial reader,

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and in making those decisions, was allowed to “consider the applicant’s race.” Id.
at 196-97. The SFFA Court observed that as a result of this process,

over 80% of all black applicants in the top academic decile
were admitted to UNC, while under 70% of white and
Asian applicants in that decile were admitted. In the
second highest academic decile … 83% of black applicants
were admitted, while 58% of white applicants and 47% of
Asian applicants were admitted. And in the third highest
decile, 77% of black applicants were admitted, compared to
48% of white applicants and 34% of Asian applicants.

Id. at 197 n.1 (citations omitted).

¶24 After setting out the structure and impact of the Harvard and UNC
admissions programs, the SFFA Court reviewed relevant history of the Equal
Protection Clause. The Court observed that “[t]he conclusion reached by the
Brown [v. Board of Education] Court was … unmistakably clear: the right to a
public education ‘must be made available to all on equal terms.’” SFFA, 600 U.S.
at 204 (citing Brown v. Board of Educ., 347 U.S. 483, 493 (1954)). The SFFA
Court noted that its lead decision in Bakke, decided forty-five years earlier,
explained that race may not be used “to foreclose an individual ‘from all
consideration … simply because he [or she] was not the right color,’” SFFA, 600
U.S. at 209 (emphasis added; quoting Bakke, 438 U.S. at 318). The SFFA Court
embraced the argument of the plaintiffs in Brown that “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.” SFFA, 600 U.S.
at 204 (emphases added; citation omitted). The Court stated that the second
Brown case, Brown v. Board of Education (Brown II), 349 U.S. 294, 298 (1955),
had clearly indicated that “[t]he time for making distinctions based on race had
passed” and noted that Brown II observed that Brown had “declar[ed] the
fundamental principle that racial discrimination in public education is

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unconstitutional.” SFFA, 600 U.S. at 204 (first alteration added; citing Brown II,
349 U.S. at 298). The SFFA Court further noted how “[i]mmediately after
Brown, [the Court] began routinely affirming lower court decisions that
invalidated all manner of race-based state action”—specifically referencing cases
involving segregation in busing and at public beaches and bathhouses—not simply
state action related to education. SFFA, 600 U.S. at 204-05. The SFFA Court
agreed with a lower court that had “explained [that] ‘[t]he equal protection clause
requires equality of treatment before the law for all persons without regard to race
or color.” Id. at 205 (first alteration added; citation omitted).

¶25 The SFFA Court stated that the “core purpose” of the Equal
Protection Clause is “do[ing] away with all governmentally imposed
discrimination based on race” and emphasized that “[e]liminating racial
discrimination means eliminating all of it.” 600 U.S. at 206 (second alteration
added); see also Washington v. Davis, 426 U.S. 229, 239 (1976) (“The central
purpose of the Equal Protection Clause of the Fourteenth Amendment is the
prevention of official conduct discriminating on the basis of race.”). The Court
explained that the clause “applies ‘without regard to any differences of race, of
color, or of nationality’—it is ‘universal in [its] application,’” SFFA, 600 U.S. at
at 206 (alteration in original; citation omitted), and further stated 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. If both
are not accorded the same protection, then it is not equal.” Id. (alteration in
original; quoting Bakke, 438 U.S. at 289-90 (Powell, J.)).

¶26 The Court explained that outside of the context of universities
making race-based admissions decisions for student body diversity, “our
precedents have identified only two compelling interests that permit resort to race-

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based government action. One is remediating specific, identified instances of past
discrimination that violated the Constitution or a statute,” and “[t]he second is
avoiding imminent and serious risks to human safety in prisons, such as a race
riot.” SFFA, 600 U.S. at 207. The Court stated that its “acceptance of race-based
state action has been rare for a reason. ‘Distinctions between citizens solely
because of their ancestry are by their very nature odious to a free people whose
institutions are founded upon the doctrine of equality.’ That principle cannot be
overridden except in the most extraordinary case.” Id. at 208 (citations omitted).

¶27 After highlighting these equal protection principles, the SFFA Court
considered the constitutionality of the Harvard and UNC admissions programs. In
doing so, the court explained that in the context of “race-based admissions,” it had
permitted such admissions “only within the confines of narrow restrictions.
University programs [1] must comply with strict scrutiny, [2] they may never use
race as a stereotype or negative, and—[3] at some point—they must end.” Id. at
213 (emphasis added). The Harvard and UNC programs, the Court concluded,
failed with regard to each restriction.

¶28 As to the first restriction—compliance with strict scrutiny—the
government must show that “the racial classification is used to ‘further compelling
governmental interests,” and if it does, that “the government’s use of race is
‘narrowly tailored’—meaning ‘necessary’—to achieve that interest.” Id. at
206-07 (citation omitted). “Because ‘[r]acial discrimination [is] invidious in all
contexts,’” the Court further noted, prior decisions have “required that universities
operate their race-based admissions programs in a manner that is ‘sufficiently
measurable to permit judicial [review]’ under the rubric of strict scrutiny.” Id. at
214 (alterations in original; citations omitted). “‘Classifying and assigning’
students based on their race,” the Court stated, “requires more than … an

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amorphous end to justify it.” Id. (citing Parents Involved in Cmty. Schs. v.
Seattle Sch. Dist. No. 1, 551 U.S. 701, 735 (2007)).

¶29 While the SFFA Court expressed that Harvard’s and UNC’s stated
goals focusing on the “educational benefits” of student body diversity were
“commendable,” it declared that those goals—i.e., the purported compelling
interests, such as “better educating its students through diversity” (Harvard) and
“promoting the robust exchange of ideas” (UNC), among others—“are not
sufficiently coherent for purposes of strict scrutiny.” 600 U.S. at 214-15 (citations
omitted). The Court expressed its concern that the goals were “standardless,”
“inescapably imponderable” and essentially unmeasurable and there was no way
“to know when [the goals] have been reached, and when the perilous remedy of
racial preferences may cease.” Id. With this holding, the SFFA Court effectively
overruled the Grutter Court’s holding that educational benefits associated with
student body diversity constitute a compelling state interest.

¶30 The SFFA Court further determined that Harvard’s and UNC’s race-
based admissions programs also did not satisfy the second strict scrutiny
requirement that they be narrowly tailored, concluding that the programs “fail[ed]
to articulate a meaningful connection between the means they employ and the
goals they pursue.” 600 U.S. at 215.

¶31 The Court was clearly troubled by Harvard’s and UNC’s decisions
to “measure the racial composition of their classes” using the following “opaque”
categories: “(1) Asian; (2) Native Hawaiian or Pacific Islander; (3) Hispanic;
(4) White; (5) African-American; and (6) Native American,” stating, “[i]t is far
from evident … how assigning students to these racial categories and making
admissions decisions based on them furthers the educational benefits that the

17
No. 2022AP2026

universities claim to pursue.” Id. at 216-17. The Court noted that some of the
categories “are plainly overbroad,” pointing out that “by grouping together all
Asian students, for instance, respondents are apparently uninterested in whether
South Asian or East Asian students are adequately represented, so long as there is
enough of one to compensate for a lack of the other.” Id. The Court was further
troubled that “other categories are underinclusive,” noting that at oral argument
UNC’s counsel could not answer “how … applicants from Middle Eastern
countries [are] classified, [such as] Jordan, Iraq, Iran, [and] Egypt.” Id. (first
alteration added). The Court also found disturbing that Harvard and UNC “would
apparently prefer a class with 15% of students from Mexico over a class with 10%
of students from several Latin American countries, simply because the former
contains more Hispanic students than the latter.” Id. at 217. The Court expressed
that “[i]t is hard to understand how a plan that could allow these results can be
viewed as being concerned with achieving enrollment that is ‘broadly diverse.’”
Id. (alteration in original; citation omitted). The Court reiterated that “[r]acial
classifications are simply too pernicious to permit any but the most exact
connection between justification and classification,” id. at 217-18 (alteration in
original; quoting Gratz v. Bollinger, 539 U.S. 244, 270 (2003)), and concluded
that the admissions programs at both Harvard and UNC failed to demonstrate such
a connection, SFFA, 600 U.S. at 217-18.

¶32 As to the second restriction for “race-based admissions,” the SFFA
Court explained that the Harvard and UNC programs “fail[ed] to comply with the
twin commands of the Equal Protection Clause that race may never be used as a
‘negative’ and that it may not operate as a stereotype.” Id. at 218. The Court
emphasized that “an individual’s race may never be used against him [or her] in
the admissions process,” noting that with the programs before it, race was used as

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No. 2022AP2026

a negative because “[a] benefit provided to some applicants but not to others
necessarily advantages the former group at the expense of the latter.” Id. at
218-19. Noting that “race—and race alone—explains the admissions decisions for
hundreds if not thousands of applicants to UNC each year,” the Court observed
that both universities acknowledged that “race is determinative for at least some—
if not many—of the students they admit.” Id. at 219 & n.6. “How else but
‘negative’ can race be described,” the Court concluded, “if, in its absence,
members of some racial groups would be admitted in greater numbers than they
otherwise would have been?” Id. at 219.

¶33 The Court also was concerned with the stereotyping involved with
making admissions decisions based upon race, stating that “Harvard’s admissions
process rests on the pernicious stereotype that ‘a black student can usually bring
something that a white person cannot offer.’ [And,] UNC is much the same. It
argues that race in itself ‘says [something] about who you are.’” Id. at 220 (first
alteration added; citations omitted). The Court stated:

We have time and again forcefully rejected the notion
that government actors may intentionally allocate
preference to those “who may have little in common with
one another but the color of their skin.” The entire point of
the Equal Protection Clause is that treating someone
differently because of their skin color is not like treating
them differently because they are from a city or from a
suburb, or because they play the violin poorly or well.

Id. (citation omitted). When a university admits students based upon race, the
Court indicated, it “furthers ‘stereotypes that treat individuals as the product of
their race, evaluating their thoughts and efforts—their very worth as citizens—
according to a criterion barred to the Government by history and the
Constitution.’” Id. at 220-21 (quoting Miller, 515 U.S. at 912). Such

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No. 2022AP2026

stereotyping, the Court stated, is contrary “to the ‘core purpose’ of the Equal
Protection Clause.” Id. at 221 (citation omitted).

¶34 The Court also deemed Harvard’s and UNC’s programs to be
constitutionally infirm because they had no “logical end point,” the third
restriction for race-based admissions programs. Id. (quoting Grutter, 539 U.S. at
342). The Court observed that in Grutter it had emphasized that race-based
admissions programs “[must] have a termination point.” SFFA, 600 U.S. at 212
(alteration in original; quoting Grutter, 539 U.S. at 342). The SFFA Court stated
that an end point “was the reason the [Grutter] Court was willing to dispense
temporarily with the Constitution’s unambiguous guarantee of equal protection.”
600 U.S. at 212. The SFFA Court noted that the Grutter Court further expressed
that “‘[e]nshrining a permanent justification for racial preferences’ … ‘would
offend this fundamental equal protection principle,’” SFFA, 600 U.S. at 212
(alteration in original; quoting Grutter, 539 U.S. at 343), and pointed out that
“Grutter … insist[ed], over and over again, that race-based admissions programs
be limited in time,” SFFA, 600 U.S. at 229 n.9.

¶35 Responding to Harvard’s and UNC’s contentions that their programs
did not need to have an end point because the universities regularly review their
programs to determine their continued necessity, the SFFA Court stated that
“Grutter never suggested that periodic review could make unconstitutional
conduct constitutional. To the contrary, the Court made clear that race-based
admissions programs eventually had to end—despite whatever periodic review
universities conducted.” SFFA, 600 U.S. at 225. Noting that Harvard had not
“set a sunset date” for its race-based admissions program, UNC’s program “is
likewise not set to expire any time soon—nor, indeed, any time at all,” and UNC
“has not set forth a proposed time period in which it believes it can end all race-

20
No. 2022AP2026

conscious admissions practices,” the SFFA Court expressed that there was “no
reason to believe that respondents will—even acting in good faith—comply with
the Equal Protection Clause any time soon.” Id. at 225 (citations omitted).

¶36 The SFFA Court provided the clear parameters under which an
individual’s race could constitutionally play a role in the admissions process,
explaining that a university could “consider[] an applicant’s discussion of how
race affected his or her life, be it through discrimination, inspiration, or
otherwise.” Id. at 230. The Court emphasized, however, that

[a] benefit to a student who overcame racial discrimination,
for example, must be tied to that student’s courage and
determination. Or a benefit to a student whose heritage or
culture motivated him or her to assume a leadership role or
attain a particular goal must be tied to that student’s unique
ability to contribute to the university. In other words, the
student must be treated based on his or her experiences as
an individual—not on the basis of race.

Id. at 230-31.

¶37 With the equal protection principles of SFFA laid bare, we now turn
to WIS. STAT. § 39.44 and the grant program administered pursuant to that statute.

B. Strict Scrutiny Requirement

¶38 Under the Fourteenth Amendment, “any official action that treats a
person differently on account of his race or ethnic origin is inherently suspect,”
Fisher, 570 U.S. at 310 (citation omitted), and “must survive [the] daunting two-
step examination known … as ‘strict scrutiny,’” SFFA, 600 U.S. at 206. Strict
scrutiny “is an exacting standard, and it is the rare case in which a law survives it.”
State v. Roundtree, 2021 WI 1, ¶27, 395 Wis. 2d 94, 952 N.W.2d 765. Strict
scrutiny requires the government “to demonstrate with clarity that its ‘purpose or

21
No. 2022AP2026

interest is both constitutionally permissible and substantial [i.e., a compelling
government interest], and that its use of the classification is necessary … to the
accomplishment of its purpose [i.e., narrowly tailored].’” Fisher, 570 U.S. at 309
(citing Bakke, 438 U.S. at 305). WISCONSIN STAT. § 39.44 and the grant program
fail both strict scrutiny requirements.

1. No Compelling State Interest

¶39 To satisfy the strict scrutiny requirement for a race-based
government benefit, the government must prove “that the reasons for any [racial]
classification [are] clearly identified and unquestionably legitimate.” Fisher, 570
U.S. at 310 (alterations in original; citation omitted). HEAB does not even come
close to making this showing.

¶40 Leaning heavily upon Grutter, in its pre-SFFA response brief,
HEAB unmistakably asserted that the legislature had enacted WIS. STAT. § 39.44
establishing the grant program in order to address a “crisis in higher education” by
financially assisting students of the preferred racial, national origin, ancestry and
alienage groups to stay in private and technical colleges so as to foster “student
body diversity” on those campuses and not “rob[] the schools of the enriching
environment a diverse student body brings.” (Emphasis added.) HEAB insisted
the legislature created the grant program “to solve the problem of schools losing
their diverse student bodies through financial attrition, which is the same
compelling end at issue in Grutter: attaining student body diversity.” (Emphasis
added.) Thus, pre-SFFA, HEAB represented that the legislature enacted § 39.44
for the purpose of increasing student body diversity and doing so for the benefit of
the schools.

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No. 2022AP2026

¶41 Obviously understanding SFFA’s holding—that the “educational
benefits” of student body diversity are “not sufficiently coherent” to constitute a
compelling government interest, SFFA, 600 U.S. at 214—in its post-SFFA letter
to this court, HEAB eschews the idea that student body diversity was the
legislature’s reason for establishing the grant program. As if the release of a
Supreme Court decision in 2023 can change the reasons the legislature enacted
this statute and program in 1985, HEAB now asserts the legislature enacted the
program to boost retention and graduation rates of students from the preferred
racial, national origin, ancestry and alienage groups—no longer for the sake of a
diverse campus environment but due to a “crisis” in such rates of Black American,
Hispanic, and American Indian students. At oral argument, HEAB leaned into its
modified, post-SFFA position by expounding that the “crisis” the legislature was
responding to in enacting WIS. STAT. § 39.44 was really the “disparity” between
the retention and graduation rates for Black American, Hispanic and American
Indian students and such rates for Asian and white students.

¶42 As indicated, SFFA completely cut the legs out from under HEAB’s
originally asserted government interest of student body diversity. But HEAB also
does not meet its burden to show that its revised post-SFFA asserted government
interest of increasing retention/graduation rates of students in the preferred groups,
and relatedly reducing the disparity in retention/graduation rates between students
from those groups and students from nonpreferred groups, is a compelling interest.
HEAB has not made the case that even if there was sufficient proof in the
record—and there is not—of an early 1980s disparity “crisis” in these groups’
retention and graduation rates at Wisconsin private and technical colleges and that
the legislature enacted WIS. STAT. § 39.44 for the purpose of mitigating that
disparity, that such disparity mitigation constitutes a compelling state interest.

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No. 2022AP2026

¶43 When asked at oral argument whether it had “any case law support
that says improving retention and graduation rates for certain minority groups but
not others is a compelling state interest,” HEAB humbly and forthrightly
responded that it is “hoping … this court issues the first opinion.” That is a big
ask, particularly when HEAB has developed no argument, drawing from equal
protection decisions in any context, as to why improving retention/graduation rates
for the preferred groups or mitigating a retention/graduation disparity between
certain racial, national origin, ancestry or alienage groups is a compelling
government interest. Moreover, HEAB’s ipse dixit12 of a retention/graduation
“crisis” does not come close to satisfying its “daunting” burden under strict
scrutiny of demonstrating that this is one of “the most extraordinary case[s]” that
could justify providing these taxpayer-funded grants to only students of the
preferred racial, national origin, ancestry or alienage groups. See SFFA, 600 U.S.
at 208.

¶44 The SFFA Court effectively noted that now that student body
diversity on campus is no longer a compelling government interest justifying
racial preference in admissions, the Court’s “precedents have identified only two
compelling interests that permit resort to race-based government action”—
“remediating specific, identified instances of past discrimination that violated the
Constitution or a statute” and “avoiding imminent and serious risks to human
safety in prisons, such as a race riot.” Id. at 207. Neither of these apply here.
Again, HEAB develops no argument suggesting that improving

“Ipse dixit” is a Latin phrase meaning “[s]omething asserted but not proved.” Ipse
12

dixit, BLACK’S LAW DICTIONARY (10th ed. 2014); see also Ipse dixit, GARNER’S DICTIONARY OF
LEGAL USAGE (3rd ed. 2011) (“[S]omething said but not proved.”).

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No. 2022AP2026

retention/graduation rates or disparities of students of certain races, national
origins, ancestries and alienage comes anywhere close to those two “most
extraordinary” types of circumstances justifying race-, national origin-, ancestry-
or alienage-specific policies, and we conclude they do not. Powerfully, the SFFA
Court, in that higher-education context, embraced the position that “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.” Id.
at 204 (emphases added; citation omitted). HEAB has failed to show that
improving retention/graduation rates of students in the preferred racial, national
origin, ancestry and alienage groups at Wisconsin private and technical colleges or
mitigating the disparity in those rates between students in the preferred groups and
students in nonpreferred groups constitutes a compelling government interest.13

a. The record does not support the legislature’s enactment of the
grant program.

¶45 As indicated, HEAB has failed to meet its burden to demonstrate a
compelling government interest justifying the racial, national origin, ancestry and
alienage classifications of WIS. STAT. § 39.44. But even if HEAB’s assertion of
an early to mid-1980s educational “crisis” due to disparity in retention/graduation
rates between Black American, Hispanic and American Indian students on the one

13
We further point out that even Grutter held that “universities cannot establish [a]
quota[] for members of certain racial groups or put members of those groups on separate
admissions tracks.” 539 U.S. at 334. A “quota” is “a program in which a certain fixed number or
proportion of opportunities are ‘reserved exclusively for certain minority groups.’” Id. at 335
(citation omitted). As appellants pointed out at oral argument, “100 out of 100” grants awarded
under WIS. STAT. § 39.44 must be to students in the preferred racial, national origin, ancestry and
alienage groups, while zero students who are not in those preferred groups can receive grants.
One hundred percent of grants are “reserved exclusively for certain minority groups.” See id.
(citation omitted).

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No. 2022AP2026

hand and students of other races, national origins, ancestries or alienage on the
other constituted a compelling government interest—and it does not—HEAB’s
position falls flat for the simple reason that 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.14 This
is in part because the evidence in the record relates to graduation rates at
University of Wisconsin (UW) system four-year universities, not Wisconsin private
or technical colleges. And even that evidence shows graduation rates were
increasing around the time leading into enactment of § 39.44 for all racial groups
except Black American students—hardly a “crisis” for the preferred groups with
increasing rates.

¶46 Quoting from and relying on a 1985 Legislative Fiscal Bureau (LFB)
memo, HEAB asserts that “[t]he stated intention of the [Grant] [P]rogram is to
encourage minority undergraduate students to remain in the University by
providing financial support.” (First alteration added; emphasis added.)
Significantly, the memo is related to the creation of two different minority grant
programs for the UW system four-year universities, not the WIS. STAT. § 39.44
grant program. Dated just three months before § 39.44 was enacted, the 1985 LFB
memo, in discussing the budget proposal to create similar grants for UW system
four-year universities, states that “[s]ome have argued that the grants could be

14
When asked at oral argument what evidence is in the record of a disparity in retention
and graduation rates for students of the preferred groups at Wisconsin private and technical
colleges prior to the enactment of WIS. STAT. § 39.44 and the grant program, HEAB could
identify no such evidence and asked for time to “scour the record” and submit a brief addressing
this issue. We granted this request. Given the additional time, HEAB still could not identify any
evidence that students of the preferred groups had lower retention/graduation rates than other
groups at Wisconsin private and technical colleges in the early to mid-1980s.

26
No. 2022AP2026

used for minority students in private schools…. It should be noted, however, that
there is no formal proposal from independent institutions or HEAB and no
evaluation of need has been made. The Governor’s proposal is addressed
specifically to the request of the University of Wisconsin.” (Emphases added.)
Again, § 39.44 provides grants for students enrolled in Wisconsin private and
technical colleges, not UW-Madison or other UW system four-year universities.
This LFB memo did not identify, for the legislature or anyone else, a
retention/graduation or disparity problem for students in the preferred racial,
national origin, ancestry or alienage groups for either private colleges or technical
colleges.

¶47 HEAB also submitted and relies upon a May 1984 report from “the
Joint University of Wisconsin System/Department of Public Instruction
Committee on Minority Student Affairs.” To begin, HEAB provides us no reason
to believe this report was even seen, much less relied upon, by any legislator at
any time, so there is no reason to believe it is in any way relevant to determining
the intent of the legislature in enacting WIS. STAT. § 39.44. Furthermore, this
report does not support the enactment of § 39.44 because it too relates only to UW
four-year universities, not Wisconsin private or technical colleges. The report
states that the joint committee considered the “[t]estimony and comments …
received from approximately one hundred people representing the various racial
and ethnic groups of the state, including high school and university students,
parents, counselors, community organizers, public school teachers, university
faculty and staff, and other concerned citizens.” We see no indication any input
was received from persons connected with private or technical colleges. The
report indicated that the UW system and regents “should adopt for each year of the
decade beginning September, 1985, specific goals related to increasing the

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No. 2022AP2026

percentages of minority students who completed a baccalaureate degree” and
suggested the development of a grant program for “junior and senior year minority
students enrolled at the University of Wisconsin System institutions.” (Emphases
added.)

¶48 Additionally, a 1987 LFB memo submitted by HEAB echoes the
1985 LFB memo. The 1987 memo refers to a Legislative Audit Bureau review of
“UW System” minority enrollment data, which review showed that while
enrollment in the UW system for Black Americans declined ten percent from 1980
to 1985, enrollment increased over twenty-two percent for Hispanics and over
thirteen percent for American Indians during the same time period. Again, WIS.
STAT. § 39.44 and the grant program were enacted in 1985. Relatedly, the 1987
LFB memo indicates that “[t]he decline in enrollment has translated into a 14.2%
decrease in degrees conferred [i.e., graduation] to [Black Americans] compared to
a 20.6% increase in degrees conferred to other minority students” during that
same critical time period leading into the enactment of this grant program.
(Emphasis added.) HEAB conceded at oral argument that these were “accurate
numbers.” The memo further indicates that compared with publicly funded
institutions nationwide, the UW system was “above the national enrollment
increase for all groups except black students.” With its foundational
representation of a “crisis” in retention/graduation rates eviscerated, HEAB is left
with its neutered assertion that there was “still a disparity in retention and
graduation rates as compared to other groups,” adding at oral argument that “its
great that they’re improving against their own benchmark, but they’re still not
improving compared to others.” Again, HEAB provides no legal support that such
a disparity would constitute a compelling state interest even if any of the data from
its reports and memos actually related to Wisconsin’s private and technical

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No. 2022AP2026

colleges in the early to mid-1980s. Thus, even if the above documents submitted
by HEAB did relate to Wisconsin private and/or technical colleges, they still
would not provide HEAB the “crisis” support it wishes they did.

¶49 As noted, nothing in the record suggests the legislature had any data
before it indicating Wisconsin private or technical colleges—either individual
colleges or as a collective group—had a problem retaining or graduating students
from the preferred minority groups around the time WIS. STAT. § 39.44 was
enacted. Indeed, as appellants point out in post-oral argument briefing, for all this
court knows, based on the record, “private universities in the 1980s were
implementing their own affirmative action programs.” And, for all we know, such
programs were remarkably successful. In short, the record provides no evidence
indicating there was a problem, much less a “crisis,” in Wisconsin’s private or
technical colleges that needed the legislature to enact a race-, national origin-,
ancestry-, or alienage-based remedy. It is complete speculation.

¶50 Moreover, HEAB provides us with no basis to assume from its UW
system four-year-universities-related memos and report any conclusions related to
retention/graduation rates or disparities at private or technical colleges. Even if
the record did show a retention and graduation crisis for students of all of the
preferred groups at UW system four-year universities during the relevant time
frame—which it does not—we cannot simply assume the legislature must have
enacted the WIS. STAT. § 39.44 grant program to address an unidentified retention
and graduation problem at private and technical colleges. Considering the
significant differences in the nature of technical colleges and UW system four-
year universities in particular, we see no basis to make such an assumption. As
appellants further and correctly suggest, for all this court knows from the record,
“the purported decline in black enrollment at some public universities was caused

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No. 2022AP2026

by an increase in black enrollment at technical colleges—who knows, based on
this record.”

¶51 As technical colleges are generally two-year institutions,15 a
technical college education would naturally cost less than an education at a UW
system four-year university. Furthermore, as the website for the Wisconsin
Technical College System touts, the annual tuition at a technical college in
Wisconsin is significantly less than that at a UW system four-year university. See
WISCONSIN TECHNICAL COLLEGE SYSTEM, http://www.wtcsystem.edu/technical-
college-benefits/affordable (last visited Feb. 12, 2025). For example, using
present-day data, the 2024-25 annual tuition for a school in the Wisconsin
Technical College System is $4,485 while the 2024-25 annual tuition at the least
costly UW System four-year university (UW-Parkside) is $6,978 and at the most
costly (UW-Madison) is $10,006.16 Thus, at least in considering a student’s
financial burden, the $2,500 annual maximum grant available through the grant
program is more than offset by the fact technical college annual tuition is
approximately $3,000-$6,000 lower than tuition at a UW system four-year
university. As a result, there is strong reason to believe that a technical college
student who does not receive financial assistance from the WIS. STAT. § 39.44
grant program would be in a better position as far as cost goes than a student at
any one of the UW system four-year universities who does receive assistance from

15
“The Wisconsin Technical College System offers more than 500 programs awarding
two-year associate degrees, one- and two-year technical diplomas, short-term technical diplomas
and certificates.” WISCONSIN TECHNICAL COLLEGE SYSTEM, http://www.wtcsystem.edu (last
visited Feb. 12, 2025).
16
See WISCONSIN TECHNICAL COLLEGE SYSTEM, https://www.wtcsystem.edu/technical-
college-benefits/affordable/ (last visited Feb. 12, 2025); UNIVERSITIES OF WISCONSIN,
https://uwhelp.wisconsin.edu/pay-for-college/annual-tuition/ (last visited Feb. 12, 2025).

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No. 2022AP2026

the similar UW system grant. At oral argument, HEAB conceded that in regard to
time to graduate and cost, technical colleges are indeed a “different animal” than
UW system four-year universities. We see no basis to conclude that any mid-
1980s “disparities” in retention and graduation rates at UW system four-year
universities, which disparities are relied upon by HEAB and proclaimed by it to be
due to financial struggles, suggest similar disparities or retention/graduation issues
at Wisconsin two-year technical colleges.

¶52 Even if members of the legislature who voted for the creation of this
grant program had considered the information in the various memos and report
relied upon by HEAB, the memos and report do not support a conclusion that
there was in fact a retention/graduation or disparity problem, much less a “crisis,”
at Wisconsin private or technical colleges in the early to mid-1980s for students of
the preferred minority groups.

b. The 1987 expansion of the grant program fares no better.

¶53 Two years after the 1985 enactment of the grant program, the
legislature expanded it to include any undergraduate student “who is 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.” WIS. STAT. § 39.44(1)(a)4. (1987-88). HEAB has
directed us to no record evidence of any kind indicating there was a
retention/graduation or disparity problem in the mid-1980s for these students in
any Wisconsin institutions of higher education, much less private and technical
colleges. Indeed, if the documents HEAB relies upon are considered at all, they
would suggest these Laotian-, Vietnamese-, or Cambodian-American students had
the best retention and graduation rates, as the documents indicate Asians had the

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No. 2022AP2026

best rates of any race, including whites. While HEAB states in conclusory fashion
in its response brief that students from these particular Asian groups “faced similar
financial and retention problems as [Black American, Hispanic and American
Indian students] already eligible for the grant,” the record evidence HEAB directs
us to in support of this statement does not provide any.

¶54 HEAB relies on the 1987 LFB memo and a Wisconsin Policy
Research Institute report written in 1991—the latter published several years after
the legislature expanded the program to include financially needy descendants of
Laotian, Cambodian and Vietnamese citizens. HEAB asserts that the legislature
expanded the program in 1987 to include students who were citizens or descended
from citizens of only these three particular countries “in response to real-world
need: the mass immigration of those students, particularly the Hmong in
Wisconsin, after the fall of Saigon in the Vietnam War in 1975, and the
corresponding retention and financial needs of that subset of students.”
(Emphases added.) Again, HEAB directs us to no record evidence supporting its
representation of retention problems at Wisconsin private and/or technical colleges
for this “subset of students,” and we have found no such evidence. Instead, HEAB
directs us to fifteen specific pages in the record, none of which provide any
support. Fourteen of the pages say nothing related to any reason why the
legislature may have expanded the program to include students of Laotian,
Vietnamese or Cambodian descent. And, the one page from the LFB memo that
does address the issue says only “Southeast Asian refugees have been identified as
a disadvantaged group,” noting that “[f]or purposes of federal student financial
aid, Southeast Asian refugees from Laos, Vietnam and Cambodia who were
admitted to the U.S. after 1975 are eligible for aid.” This of course says nothing
as to any percentage of students from these groups who were actually in need of or

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No. 2022AP2026

received financial aid, and it certainly says nothing about retention/graduation
rates for students from these groups. But even more significantly, the memo
indicates that relevant “[d]ata is not available from private colleges” and “[n]o
data is available to indicate the number of Southeast Asians enrolled at public or
private institutions.”17 It would seem to go without saying that without such data,
there would be no way for the legislature or anyone else to determine if there was
a retention/graduation or disparity problem for students in this particular group.
Nothing in the record supports a conclusion that the legislature expanded the grant
program to include students descended from citizens of Laos, Vietnam or
Cambodia18 because of a retention/graduation or disparity “crisis” at private or
technical colleges.

¶55 Additionally, the second part of the expansion of the grant program
allowed for grants for students enrolled at technical colleges, not just private
colleges. As indicated, supra ¶¶50-52, HEAB has directed us to no evidence
suggesting a retention/graduation or disparity problem existed for any particular
racial, national origin, ancestry or alienage group at technical colleges at the time
of the grant program’s expansion in 1987, much less to evidence suggesting any

17
Most of the pages cited by HEAB say nothing specific to Laotian, Vietnamese, or
Cambodian persons. Other pages cited refer to studies of these groups of persons across the
United States generally but not Wisconsin specifically. Furthermore, the reports are from 2012,
2020 and 2022, and thus quite obviously could not have been considered by the legislature when
it included descendants of citizens of these three countries in the grant program in 1987.
18
Of note, the 1991 report HEAB relies upon indicates not only that there was an influx
of Hmong immigrants from Laos, Vietnam and Cambodia in the years leading into expansion of
the grant program but that there was an influx from neighboring Thailand as well. The report
states that “[f]rom a base of about 2,000 to 2,500 persons in 1978, population in [named
Wisconsin] communities expanded by another 5,000 during the large influx from Thailand during
the years 1979 to 1981.” The 1987 expansion of the grant program, however, did not include
Thai citizens or descendants.

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No. 2022AP2026

such problem was due to financial struggles of students. Indeed, in light of the
complete absence of evidence indicating a disparity in retention and/or graduation
rates between students in the preferred racial, national origin, ancestry and
alienage groups and those in the nonpreferred groups, it could just as well be that
the legislature simply expanded the program in 1987 to also include technical
colleges because of a successful “us too” lobbying effort on legislators by persons
with technical college interests. Perhaps the private and technical colleges raised
concern that they would lose students from the preferred groups to the UW system
four-year universities if the private and technical colleges did not also have grants
available for these students to attend the private and technical colleges. HEAB
certainly has not met its burden to show that the legislature enacted WIS. STAT.
§ 39.44 as to private colleges in 1985 and expanded it to technical colleges in 1987
because of a retention/graduation or disparity problem for students of the preferred
racial, national origin, ancestry and alienage groups at these institutions.

¶56 To show that the legislature enacted this race-, national origin-,
ancestry-, and alienage-based financial aid program because of a compelling
government interest, HEAB is required to “demonstrate with clarity that its
‘purpose or interest is both constitutionally permissible and substantial.’” See
Fisher, 570 U.S. at 309 (citation omitted). As appellants point out in post-oral
argument briefing, HEAB “is not even close to establishing a compelling interest.”
It has not shown that increasing retention/graduation rates for students of the
preferred minority groups and/or mitigating a disparity between students of the
preferred and nonpreferred groups constitutes a compelling state interest, has not
shown there even was a retention/graduation or disparity “crisis” at Wisconsin
private and technical colleges leading into the establishment of this program, and
has not shown that the legislature enacted this grant program based upon a belief

34
No. 2022AP2026

there was such a crisis or disparity or for the purpose of mitigating any disparity at
private and technical colleges. As a result, we need not decide whether the
program is narrowly tailored to accomplish the purported goal. Nevertheless, we
will discuss several points raised in connection with the narrowly tailored strict
scrutiny requirement.

2. Narrowly Tailored Requirement

¶57 The government “receives no deference” with regard to “prov[ing]
that the means chosen” to attain a compelling interest “are narrowly tailored to
that goal.” Id. at 311. The government must demonstrate that the means used
“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.” Id. at 312 (citation omitted). Race as a determinative criterion is
flatly impermissible under the Equal Protection Clause. See Gratz, 539 U.S. at
274-75 (determining a university’s admissions program violated the Equal
Protection Clause because it utilized race as “a decisive factor for virtually every
minimally qualified underrepresented minority applicant”).

¶58 HEAB maintains that analysis of whether the grant program is
narrowly tailored “must be guided by the nature of financial aid and the [g]rant
[p]rogram at issue here.” “Unlike admissions,” HEAB continues, “the [g]rant
[p]rogram closes the classroom doors to no one. It is instead part of a bigger
picture of retaining diverse students already lawfully admitted, and it is but a tiny
part of a financial picture.” Post-SFFA, HEAB insists that the grant versus
admissions distinction is “key” because SFFA “focuses on the ‘zero-sum’ nature
of admissions.” “[F]inancial aid … is nothing like restrictive admissions,” HEAB
asserts, “where students fill a set number of limited slots in the class, to the

35
No. 2022AP2026

detriment of all others … [and] every admitted student means one fewer opening
in the class.” Because of this distinction, HEAB insists SFFA “has no bearing on
whether the grants at issue here are valid based on the evidence presented in the
[circuit] court.” HEAB further claims “the unrefuted evidence in the record
proves that the grant program actually means that more race-neutral financial aid
dollars are available for every other admitted student.” (Emphasis added.)
HEAB’s assertions do not withstand scrutiny.

¶59 To begin, while the SFFA Court did recognize that the admissions
scenario is a “zero-sum” one, that recognition was mentioned only once and only
in response to Harvard’s contention that it did not use race as a “negative”; it also
came after the Court had already held that the Harvard and UNC admissions
programs failed to satisfy both the compelling interest and narrowly tailored
requirements of strict scrutiny. SFFA, 600 U.S. at 218. SFFA certainly did not
“focus” on the “‘zero-sum’ nature of admissions”; rather, it focused on the
pernicious nature of racial classifications. See, e.g., id. at 217. In short, the
zero-sum nature of admissions was not “key” to the decision.

¶60 That said, as appellants pointed out at oral argument, these grants
also present a zero-sum scenario in the relevant context: financial aid. As part of
the biennial budget process, the legislature funds a sum certain amount for
distribution to participating private and technical colleges. It is axiomatic that if
financially needy students from additional minority groups—such as Asians from
nonpreferred countries or Middle Easterners—and/or white students were also
made eligible for the grant program, there would be less money available for those
from the preferred groups who are currently eligible. This point is further made
by HEAB’s expert who asserts in her affidavit that “[b]ecause the [grants] are
already based on need,” if race is used only as one of multiple factors for a

36
No. 2022AP2026

financial aid award, as opposed to being a determinative factor, “the effectiveness
of the [Minority Undergraduate Retention Grant] program [would be diluted],
given the much larger actual numbers of non-minority students with financial
need.” Indeed, HEAB acknowledged this point at oral argument, stating that
expansion of the grant program to include all financially needy students would
“dilute the pool of money that’s available” for those minority students currently
eligible. In short, by excluding other financially needy students, there is more
money to allocate to students from the preferred groups.

¶61 HEAB also asserts the grant program is constitutional in part
because the grant funds represent only a very small amount of the total aid dollars
available for Wisconsin college students. So, essentially, HEAB asserts the grant
program is constitutional because it constitutes only a little bit of race, national
origin, ancestry, or alienage discrimination. HEAB provides no legal support for
such a position. SFFA teaches that courts should consider how they would view a
challenged program if it allowed for the same form of discrimination against
applicants from the preferred minority groups instead of in favor of such
applicants:

[w]hile the dissent would certainly not permit university
[admissions] programs that discriminated against black and
Latino applicants, it is perfectly willing to let the programs
here [discriminating in favor of black and Latino applicants
and against white and Asian applicants] continue. In its
view, this Court is supposed to tell state actors when they
have picked the right races to benefit. Separate but equal is
“inherently unequal,” said Brown. It depends, says the
dissent.

SFFA, 600 U.S. at 229 (citation omitted). If only white and Asian students were
eligible for the WIS. STAT. § 39.44 grant program—obviously then automatically
excluding Black American, Hispanic, and American Indian students—such a

37
No. 2022AP2026

program would not withstand constitutional scrutiny for two seconds, and properly
so. SFFA instructs that the same considerations should apply as they would if the
tables were turned.

¶62 As to HEAB’s claim that the evidence of record “proves that the
grant program actually means that more race-neutral financial aid dollars are
available for every other admitted student,” it is a farce. (Emphasis added.) To
begin, this is akin to saying it is constitutionally tolerable to exclude students of
certain racial, national origin, ancestry or alienage groups from admission to
University A because Universities B and C do not exclude those students, and if
students of preferred racial, national origin, ancestry or alienage groups are
admitted to University A, then Universities B and C will have more open
admission slots—and hence students excluded from University A will have a
better opportunity for admission at Universities B and C. As appellants write,

[n]o doubt [WIS. STAT. §] 39.44 would be struck down
immediately, and rightly so, if the [grant program] funds
were only available to [financially needy] white students.

Section 39.44 is no different. It imposes a racial
restriction on who may receive taxpayer funds to finish out
a college degree…. It provides cold comfort to a
financially needy Afghan-American or Thai-American
applicant that only some doors are closed to them based on
their race while others are open to everyone.

We further agree with appellants’ statement that “[t]he inquiry is not whether there
are other opportunities available without a racial restriction besides the $819,000
pool of [grant program] funds. The inquiry is whether this program meets the
stringent criteria for strict scrutiny.” And it does not.

¶63 Moreover, the record evidence HEAB directs us to certainly does not
prove more financial aid dollars are available from other pots of aid for needy

38
No. 2022AP2026

students who are not eligible for the WIS. STAT. § 39.44 grants due to their race,
national origin, ancestry or alienage.19 The “evidence” HEAB directs us to is its
expert’s unsupported opinion that if these race-based grants are awarded to some
students, those same students would not be competing for dollars from other
financial aid pots and thus more money would be available from those other pots
for “White students.” The expert acknowledges her views are based on a study of
a different grant program—one providing aid based on the same race, national
origin, ancestry and alienage groups for students in the UW system—but more
importantly, even if the expert’s statements did relate to private and technical
colleges in Wisconsin, HEAB’s evidence does not “prove” what HEAB wishes it
did.

¶64 First, there is no indication the provision of aid for students
attending private and technical colleges would operate the same as it does for
students attending UW system four-year universities.20 Second, and importantly,
the most HEAB’s expert says in her affidavit toward the point HEAB tries to make
is that the UW system grant program

potentially opened up more funding for White students
because other financial aid funds that otherwise might have
been awarded to minority students are no longer needed by
those who were MURG-eligible. Thus, if “funds from
other need-based grants[] are redirected to Whites as an
artifact of the availability of [the] Lawton grant,” then there
is more funding available for White students than is

19
In its pre-SFFA response brief, HEAB stated with less certainty that “the evidence
shows that the grant may open up other funds for non-eligible students, making more aid dollars
available to them that otherwise might go to [g]rant [p]rogram recipients.” (Underline added.)
20
Although it may be true, we see no evidence showing that this is an apples to apples
comparison such that the expert’s opinion based on evidence relating to the UW system four-year
schools necessarily carries over to the WIS. STAT. § 39.44 grant program.

39
No. 2022AP2026

available without the MURG grants, as minority students
would also compete for those funds. This re-allocation of
funding would reduce and make more diffuse any burden
on White students.

(First alteration in original; emphases added; citation omitted.)21 The best
evidence HEAB has provided is sheer speculation that more financial aid money is
available from other pots for students prohibited from receiving aid under the
grant program because students eligible for the grant program receive aid
thereunder. In short, the evidence does not show that the students who receive aid
under the grant program are not also receiving the same amount of aid from these
other financial aid sources as they would receive if the grant program did not exist.

¶65 Additionally, HEAB’s entire theory that more financial aid from
other pots “might” be available for those precluded from receiving aid from the
grant program defies common sense and elementary math. HEAB’s theory
apparently is that if a student is awarded $1,000 in financial aid through the grant
program, he or she will then not receive $1,000 in aid from a different source,
thereby leaving that $1,000 available for those students not eligible for aid under
the grant program. But if that were true, the grant program would be doing
precisely nothing to help the very minority students it purportedly was designed to
help. Students receiving the WIS. STAT. § 39.44 grants would still only receive a
total of $1,000 in aid for that school year. Only if the grant program provides
grant recipients with financial aid in addition to aid they receive from other

21
HEAB also directs us to a 1994 document issued by the United States Department of
Education that, on the page HEAB directs us to, at most states “a college’s receipt of privately
donated monies restricted to an underrepresented group might increase the total pool of funds for
student aid in a situation in which, absent the ability to impose such a limitation, the donor might
not provide any aid at all.” (Emphases added.) This document provides no support for HEAB’s
position related to the WIS. STAT. § 39.44 grant program.

40
No. 2022AP2026

sources (i.e., if the grant program provides recipients extra aid) would it appear to
serve its purported purpose of relieving financial stress for § 39.44 grant recipients
attending private or technical colleges in order to assist in retaining those students
through graduation.22

¶66 HEAB has directed us to no record evidence showing that students
who receive WIS. STAT. § 39.44 grants receive less financial aid from other pots
much less that that other financial aid is then received by students who are not
eligible for the grant program. In the end, when confronted with all of this at oral
argument and given a post-argument opportunity to brief its assertion that the
record evidence “proves that the grant program actually means that more race-
neutral financial aid dollars are available for every other admitted student,” HEAB
was unable to provide evidence supporting the statement. HEAB’s theory in this
regard is unsupported and common-sense-defying speculation.

¶67 HEAB also contends in its post-SFFA submission that the grant
program is narrowly tailored because

the evidence shows that it is “individualized and flexible,”
based on considerations such as “background” and
individual “financial need.” This data-driven,
individualized grant is nothing like the admissions policy in
[SFFA]. In fact, its individualized application is consistent
with the [SFFA] Court’s blessing that schools consider a
student’s race on an individual basis.

22
As appellants noted at oral argument, WIS. STAT. § 39.44(3) requires that “[a]n
institution or school receiving [grant program] funds … shall … (b) Demonstrate to the
satisfaction of [HEAB] that such funds do not replace institutional grants to the recipients.” This
statutory provision appears to be a recognition by the legislature that students receiving a § 39.44
grant will not actually be aided by it if the grant money they receive merely replaces money they
would have otherwise received from other financial aid sources.

41
No. 2022AP2026

(Citation omitted.) Relatedly, HEAB insists that in awarding grants, the grant
program considers the “whole person.”23

¶68 HEAB overlooks a significant point: 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 did not do. Under those programs, a student could overcome the fact
that he or she is Asian or white with an extraordinary academic record,
extracurricular background, or life experience. Here, however, a student’s race,
national origin, ancestry, or alienage is the determinative factor as to grant
eligibility. No matter how financially needy a white, Middle Eastern or non-
Laotian, non-Cambodian and non-Vietnamese Asian student is, he or she cannot
receive any financial aid under this program. The SFFA Court noted that “[a]
benefit provided to some applicants but not to others necessarily advantages the
former group at the expense of the latter.” 600 U.S. at 218-19. That aptly
explains the grant program—the legislature chose winners and losers for these
grants based on whether a given student is a member of one of the preferred
minority groups. Here, a student of a nonpreferred group is flatly ineligible—race,
national origin, ancestry and alienage are “determinative”—for any grant under
this program. See id. at 219.

23
HEAB claims that in awarding grants to students, “schools”—plural—“do not rely ‘on
a mechanical process.’ Rather, ‘it is a highly individualized and flexible process that is based
upon each student’s individual situation.’” (Citation omitted.) Though HEAB appears to
represent this as the situation for all Wisconsin private and technical colleges with students who
benefit from the grant program, it only directs us to an affidavit from one financial aid counselor
at one private college. This hardly suffices as representative of all the private and technical
colleges with students who benefit from this program.

42
No. 2022AP2026

¶69 As appellants note, WIS. STAT. § 39.44 “removes from consideration
any applicant whose background is European, Thai, or Chinese, among dozens of
others, in order to ensure that only those in the racial categories listed in the statute
are considered.” A financially needy student who is not a member of one of the
preferred groups can do nothing to overcome the race, national origin, ancestry
and alienage discrimination intentionally built into the grant program. An
individual is flat-out barred from receiving financial assistance from this program
because he or she is not a member of one of the preferred groups. A young
Vietnamese man who aided American troops in the Vietnam War and
subsequently immigrated to the United States and became a citizen would be
eligible for a grant under this program, as would be all his future descendants. But
a young Afghani woman who aided American troops in Afghanistan, barely
escaped with her life during America’s withdrawal in 2021, and became an
American citizen residing in Wisconsin—even if she has great financial need,
excellent academic promise, and a compellingly diverse viewpoint to bring to a
college campus—simply will not be eligible for a grant because she is not a Black
American, Hispanic, American Indian, or a descendant of a Laotian, Vietnamese
or Cambodian citizen.

¶70 Under this grant program, an applicant’s race, national origin,
ancestry or alienage is the defining feature—being a penniless genius will not help
an Indian-American student or a student from one of the other nonpreferred racial,
national origin, ancestry or alienage groups. “Individualized” consideration of the
“whole person,” if it occurs under the grant program, occurs only for those
students of the preferred races, national origins, ancestries and alienage. All
others receive no consideration—they need not apply; the legislature has deemed
it so.

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No. 2022AP2026

¶71 When questioned at oral argument as to why Middle Eastern
students were not included in the preferred groups under WIS. STAT. § 39.44,
HEAB stated that “there was nothing in the record at the time that Middle Eastern
students … were enrolled and failing to retain and graduate.” We note that the
documents HEAB directs us to indicate nothing about retention and graduation
rates in the early to mid-1980s for Wisconsin citizens of Middle Eastern descent.
Of course, as noted, HEAB has also failed to direct us to any record evidence
indicating there was a retention and graduation problem at any Wisconsin colleges
for students who descended from Laotian, Cambodian or Vietnamese citizens, yet
these students were included in the preferred groups eligible for these grants.

¶72 In SFFA, the Supreme Court was clearly troubled that when it asked
at oral argument “how are applicants from Middle Eastern countries classified,
[such as] Jordan, Iraq, Iran, [and] Egypt,” counsel for UNC responded, “[I] do not
know the answer to that question.” SFFA, 600 U.S. at 216 (alterations in original;
citation omitted). Similarly here, counsel for HEAB acknowledged at oral
argument that he did not know where a student of Middle Eastern descent would
“fit in.”24 As appellants noted during oral argument and we have noted herein, it is

24
Prior to SFFA, the U.S. Office of Management and Budget categorized and defined a
“White” person as “[a] person having origins in any of the original peoples of Europe, the Middle
East, or North Africa.” See Office of Management and Budget, Statistical Policy Directive
No. 15: Standards for Maintaining, Collecting, and Presenting Federal Data on Race and
Ethnicity (1997) at https://spd15revision.gov/content/spd15revision/en/history/1997-
standards.html. Following SFFA, the OMB changed racial/ethnic categorizations as follows:
“Middle Eastern or North African[s]” are defined as “[i]ndividuals with origins in any of the
original peoples of the Middle East or North Africa, including, for example, Lebanese, Iranian,
Egyptian, Syrian, Iraqi, and Israeli” and “White[s]” are defined as “[i]ndividuals with origins in
any of the original peoples of Europe, including, for example, English, German, Irish, Italian,
Polish, and Scottish.” See Office of Management and Budget, Statistical Policy Directive
No. 15: Standards for Maintaining, Collecting, and Presenting Federal Data on Race and
Ethnicity (2024) at https://spd15revision.gov/content/spd15revision/en/2024-spd15/categories-
definitions.html.

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No. 2022AP2026

HEAB that bears the burden to show that the grant program satisfies strict
scrutiny.

¶73 Here, the legislature appears to have excluded students of Middle
Eastern descent without collecting data as to retention and graduation rates of
these students compared to others. In addition to the many other constitutional
problems with this grant program, the government cannot satisfy strict scrutiny by
choosing to stick its head in the sand by not gathering relevant data as to whether
another racial, national origin, ancestry or alienage group may have a
retention/graduation or disparity problem and then excluding students from those
groups because there is no relevant data. The legislature excluded students of
Middle Eastern descent from eligibility without any idea as to whether there was a
retention/graduation or disparity “crisis” for them, yet, as indicated, it included
students of Laotian, Cambodian or Vietnamese citizen descent without any
supportive data. This it cannot do.

C. Race cannot be used as a negative.

¶74 The SFFA Court stressed that one of the “commands” of the Equal
Protection Clause is “that race may never be used as a ‘negative.’” Id. at 218.
The Court made clear that “an individual’s race may never be used against him in
the admissions process,” noting that Harvard’s consideration of race had resulted
in “fewer Asian American and white students being admitted.” Id. (citation
omitted). The Court explained, “How else but ‘negative’ can race be described if,
in its absence, members of some racial groups would be admitted in greater
numbers than they otherwise would have been?” Id. at 219.

¶75 HEAB’s position, which it bases on its expert’s affidavit, is that if
students of nonpreferred races, national origins, ancestries or alienage were also

45
No. 2022AP2026

made eligible for these grants, it would “dilute the pool of money that’s available”
for the preferred groups currently eligible for grants under WIS. STAT. § 39.44.
This seems to us a recognition that race, national origin, ancestry and alienage are
“used as a negative,” because without those racial, national origin, ancestry and
alienage restrictions built into the program, minority students of the nonpreferred
groups and nonminority students in need of financial aid would receive more than
the zero dollars they are currently eligible for. “[R]ace—and race alone” explains
who is eligible to receive these taxpayer dollars; “race is determinative for [all] of
the students” precluded from eligibility for these grants. See SFFA, 600 U.S. at
219 & n.6.

¶76 Indeed, “[h]ow else but ‘negative’” can race, national origin,
ancestry and alienage be described if students of certain groups are flatly ineligible
for grants under WIS. STAT. § 39.44 simply because they are of the “wrong” race,
national origin, ancestry and/or alienage. The SFFA Court expressed its concern
that “race—and race alone—explains the admissions decisions for hundreds if not
thousands of applicants to UNC each year.” 600 U.S. at 219 n.6. Where, as here,
race, national origin, ancestry or alienage play a determinative role in eligibility
for these taxpayer-funded grants, the constitutional promise of equal protection is
abandoned and the grant program is “infirm.” See id. at 219.

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No. 2022AP2026

D. There must be an end point; WIS. STAT. § 39.44 has none.

¶77 Even if the grant program survived strict scrutiny and if race,
national origin, ancestry and alienage were not being used in a negative manner,
the program would still violate the Equal Protection Clause because “all
governmental use of race must have a logical end point,” Grutter, 539 U.S. at 342,
and WIS. STAT. § 39.44 and the grant program have none. The SFFA Court
emphasized the Grutter Court’s holding that “[a]t some point” race-based
admissions programs “must end.” SFFA, 600 U.S. at 212. The SFFA Court
noted that “[t]his requirement was critical, and Grutter emphasized it repeatedly.”
SFFA, 600 U.S. at 212. The belief that there was an “end point … was the reason
the [Grutter] Court was willing to dispense temporarily with the Constitution’s
unambiguous guarantee of equal protection.” SFFA, 600 U.S. at 212. The SFFA
Court noted that the Grutter Court “insist[ed], over and over again, that race-based
admissions programs be limited in time,” SFFA, 600 U.S. at 229 n.9, and
recognized that “[e]nshrining a permanent justification for racial preferences
would offend this fundamental equal protection principle,” id. at 212-13 (quoting
Grutter, 539 U.S. at 342-43). The Court hammered home the point that even if a
race-based program might otherwise pass constitutional muster, it will not survive
if it has no clear end point—a point at which preferences, benefits, and detriments
based on race end and individuals truly are treated as individuals and not as
members of a particular racial, national origin, ancestry or alienage group. See id.
at 212-13, 221-25.

¶78 Harvard’s race-based and discriminatory admissions program had no
“sunset date,” and UNC’s program was

likewise not set to expire any time soon—nor, indeed, any
time at all. The University admits that it “has not set forth

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No. 2022AP2026

a proposed time period in which it believes it can end all
race-conscious admissions practices.” … In short, there is
no reason to believe that respondents will—even acting in
good faith—comply with the Equal Protection Clause any
time soon.

Id. at 225 (citation omitted). “‘Classifying and assigning’ students based on their
race,” the SFFA Court stated, “requires more than … an amorphous end to justify
it.” Id. at 214 (quoting Parents Involved, 551 U.S. at 735).

¶79 Through oral argument and briefing, HEAB essentially has taken the
extraordinary position that even though the intentional racial, national origin,
ancestry and alienage discrimination of WIS. STAT. § 39.44 has no end point, it is
nonetheless saved by the simple fact that, pursuant to § 39.44(5) and the biennial
budget process, the legislature receives “updates” on the status of the program25
and has the power to change or eliminate § 39.44 and the grant program if it
chooses. Of course, that is not how constitutional jurisprudence works.
Section 39.44, with its by-design racial, national origin, ancestry and alienage
discrimination, is still on the books—and has been for forty years—and taxpayer
dollars continue to be spent on the program. The legislature (with or without the
governor) could change it, but has not. Not surprisingly, HEAB has directed us to
no legal support for its novel position that an unconstitutional law may remain
intact simply because lawmakers are informed of how the law is working and

25
HEAB goes to much effort to show the effectiveness of the grants by pointing to
statistics indicating that students of the preferred groups who receive these grants stay in school
and graduate at a higher rate than students of the preferred groups that do not receive grants.
This, of course, is not surprising—if a student can spend more time during the school year
studying for tests and writing papers, getting better rest, recreating, etc. instead of working extra
hours at a job to fund his or her education, he or she is likely to perform better at and stay in
school. This reality, of course, also helps explain why indigent students from nonpreferred
groups are put at a competitive, and unconstitutional, disadvantage from equally indigent students
who receive the grants.

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No. 2022AP2026

could one day repeal it or amend it to make it constitutional, even though they
have not chosen to do so.

¶80 And, most significantly, the SFFA Court unmistakably shot down a
similar assertion in that case, stating that “Grutter never suggested that periodic
review could make unconstitutional conduct constitutional. To the contrary, the
Court made clear that race-based admissions programs eventually had to end—
despite whatever periodic review universities conducted.” SFFA, 600 U.S. at 225.
Likewise here, informative updates to the legislature cannot save this
unconstitutional grant program; there must be an end, and the statute provides for
none. So, with this decision, we provide that end.

¶81 The grant program has been in effect for nearly forty years now, and
there is no end in sight. No sunset provision is included in WIS. STAT. § 39.44.
There are not even disparity standards that would trigger the end of the program.
Thus, even if ten years from now Black American, Hispanic, American Indian,
Laotian, Cambodian, and Vietnamese-American students at Wisconsin private and
technical colleges are all consistently being retained and graduating at a higher
rate than white, Middle Eastern, and nonpreferred Asian students, members of the
preferred minority groups will continue to be the only students eligible to receive
these grants. Consistent with SFFA, § 39.44 and this grant program fall for the
additional reason that the program has no end point.

CONCLUSION

¶82 In 1868, the states ratified the Fourteenth Amendment, providing our
nation the promise, the ideal, and the hope of equal protection. To accomplish
that, the amendment provides, in part: “No State shall … deny to any person
within its jurisdiction the equal protection of the laws.” U.S. CONST. amend XIV

49
No. 2022AP2026

(emphasis added). In the decades that followed, the promise, ideal and hope of
equality went unrealized as Jim Crow laws and segregation took hold.

¶83 The United States Supreme Court’s decision in Brown, 347 U.S.
483, and years of federal court decisions following Brown, again provided hope
that the promise and ideal of equal protection might be realized. Unfortunately,
rather than “right the ship” of the Equal Protection Clause, the Brown decision
was followed by decades of the government pendulum overswinging in the other
direction, leading to the institutionalization of policies that in many ways favored
persons of previously disfavored races and ethnicities to the detriment of persons
of other races and ethnicities.

¶84 With its decision in SFFA, the Supreme Court attempted to refocus
the Equal Protection Clause to the promise, ideal and hope of equality. Two
principles stand out as most impactful from that decision. First, as relevant to the
case now before us, the SFFA Court invites consideration of how this grant
program would fare legally if it were providing these grants only for financially
needy white and non-preferred Asian students; thereby necessarily excluding
equally financially needy Black American, Hispanic, Native American, Laotian,
Cambodian, or Vietnamese students from receiving these grants. As indicated
earlier, such a program would not survive equal protection scrutiny for two
seconds. And neither should—neither does—WIS. STAT. § 39.44 and the grant
program. As the SFFA majority chastised the dissent in that case, courts are
“[not] supposed to tell state actors when they have picked the right races to
benefit. Separate but equal is ‘inherently unequal,’ said Brown.” SFFA, 600 U.S.
at 229. Second, the SFFA Court was abundantly clear in expressing that a person
“must be treated based on his or her experiences as an individual—not on the basis
of race.” Id. at 231.

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¶85 At oral argument, HEAB asserted that the grant program is about
“equaliz[ing] opportunity” for the students who are eligible for the grants. But
utilizing race, national origin, ancestry and alienage as the discriminating factor to
try to accomplish this is directly at odds with what our Supreme Court recently
made abundantly clear—that “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.” Id. at 204 (emphases added;
citation omitted). With the grant program, race, as well as national origin,
ancestry and alienage, is not just “a” factor for determining whether a financially
needy student will be eligible for a grant under this program, it is the
determinative factor.

¶86 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 articulated 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. See SFFA, 600 U.S. at 204. In short, except in the extremely
limited and “most extraordinary” circumstances identified in SFFA, see supra
¶44, 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.

¶87 Because the grant program violates the Equal Protection Clause, we
reverse the order of the circuit court and remand for the court to enter an order

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enjoining HEAB and Hutchinson from further administering the grant program or
distributing funds thereunder. See Thompson v. Kenosha County, 64 Wis. 2d
673, 680, 221 N.W.2d 845 (1974) (stating that where a state law requires the
expenditure of public funds, if the law is determined to be unconstitutional, “this
expenditure would also be illegal”). WISCONSIN STAT. § 39.44 and the related
grant program are unconstitutional on their face. In so holding, we adhere to the
refocusing of the Equal Protection Clause by the SFFA Court for the realization of
the promise, ideal and hope of equal protection.

By the Court.—Order reversed and cause remanded with directions.

Recommended for publication in the official reports.

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