Section 118.134. Race-based nicknames, logos, mascots, and team names.

 

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

(a) Notify the school board of the receipt of the complaint and direct the school board to submit, if applicable, any of the information under sub. (1m) (a) .

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

(1m)  

(a) The state superintendent may determine that no contested case hearing is necessary if, no later than 10 days after being notified of the receipt of the complaint, the school board submits evidence to the state superintendent that demonstrates all of the following:

2. A federally recognized American Indian tribe that has historical ties to this state has entered into an agreement with the school board under which the tribe grants approval to the school board to refer to, depict, or portray the tribe or American Indians, in general, in a specific nickname, logo, or mascot or to use the name of the tribe or American Indians, in general, as a team name in the specific manner used by the school board.

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

(b) If the state superintendent determines that a contested case hearing is not necessary, the state superintendent shall notify the school district resident who filed the complaint under sub. (1) and the school board of his or her decision in writing. A decision under this paragraph is subject to judicial review under ch. 227 .

(2)  At the hearing, the school district resident who filed the complaint under sub. (1) has the burden of proving by clear and convincing evidence that the use of the race-based nickname, logo, mascot, or team name promotes discrimination, pupil harassment, or stereotyping, as defined by the state superintendent by rule.

(3)  

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

(b)

1. In this paragraph, “ extenuating circumstances" includes circumstances in which the costs of compliance with an order issued under par. (a) pose an undue financial burden on the school district and circumstances in which the work or the requirements for bidding a contract to complete the work required to bring the school district into compliance with the order issued under par. (a) cannot be completed within 12 months after the issuance of the order.

2.

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

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

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

(d) No school district is required to comply with a decision and order issued under this subsection before December 21, 2013, to terminate the use of a race-based nickname, logo, mascot, or team name.

(3m)  A pupil attending a public school in a nonresident school district under s. 118.50 or 118.51 may not file a complaint under sub. (1) in which the pupil objects to the use of a race-based nickname, logo, mascot, or team name by the school board of the nonresident school district.

(3r)  A school district may not be a member of an interscholastic athletic association that prohibits the use of a nickname, logo, mascot, or team name on the basis that the nickname, logo, mascot, or team name is race-based unless the use of the nickname, logo, mascot, or team name violates a decision and order issued under sub. (3) on or after December 21, 2013.

(4)  

(a) Except as provided in par. (b) , the state superintendent shall promulgate rules necessary to implement and administer this section.

(b) The state superintendent may not promulgate a rule that creates a presumption that a nickname, logo, mascot, or team name is race-based or promotes discrimination, pupil harassment, or stereotyping.

(5)  Any school board that uses a race-based nickname, logo, mascot, or team name in violation of sub. (3) shall forfeit not less than $100 nor more than $1,000. Each day of use of the race-based nickname, logo, mascot, or team name in violation of sub. (3) constitutes a separate violation. The state superintendent may not assess or collect a forfeiture under this subsection for a use that violates a decision and order issued under sub. (3) before December 21, 2013.

2009 a. 250 ; 2011 a. 32 ; 2013 a. 115 ; 2013 a. 151 s. 28 ; 2015 a. 55 ; 2015 a. 197 s. 51 . Cross-reference: See also ch. PI 45 , Wis. adm. code.