In recent years, the intersection of school district mascots and racial implications has become a topic of discussion between school districts, their constituents, and advocacy groups. This Legal Update will discuss the history of Wisconsin Statute § 118.134 and challenges to “race-based nicknames, logos, mascots, and team names” in Wisconsin.
In 2010, then-Governor Jim Doyle signed into law 2009 Wis. Act 250, which established Wis. Stat. § 118.134, to create an avenue for school district residents to file a complaint with the Department of Public Instruction (DPI) to object to the race-based logo, mascot, team name, and/or nicknames used by the school district. Upon receipt of the complaint, DPI would notify the school district and provide an opportunity for the school district to submit verification that it had approval from a federally recognized Native American tribe to use the challenged logo, mascot, team name, and/or nickname. If the school district could not produce such verification, DPI would schedule a contested-case hearing, during which the school district had the burden to prove “by clear and convincing evidence” that the use of the race-based logo, mascot, team name and/or nickname did not promote discrimination, pupil harassment, or stereotyping. If the school district failed to meet their burden, the school district would need to terminate the use of the challenged logo, mascot, team name, and/or nickname would need within twelve (12) months of DPI’s decision. If the school district then failed to terminate the use of the challenged logo, mascot, team name, and/or nickname within the time allotted, the school district could be forced to pay fines for noncompliance, unless there were “extenuating circumstances” which would allow the school district more time to comply.
Efforts to repeal Wisconsin’s race-based mascot law began shortly after the law was adopted. They were largely unsuccessful. However, in December 2013, then-Governor Scott Walker signed into law 2013 Wisconsin Act 115, which amended Wis. Stat. § 118.134, to make the complaint process more difficult for residents seeking to challenge a logo, mascot, team name, and/or nickname. Under the amended law, residents were required to secure signatures from at least ten percent of the school district’s electors on the complaint within one hundred twenty (120) days before filing the complaint. Additionally, the amended law shifted the burden of proof from the school district to the complainant by requiring the complainant to prove by clear and convincing evidence that the logo, mascot, team name, and/or nickname promotes discrimination, harassment, or stereotyping.
While there have not been many complaints since the 2013 amendment, this is still a contentious issue. Indeed, in October 2023, several Wisconsin Legislators sought to restore the law as it existed prior to the enactment of 2013 Wisconsin Act 115 by introducing 2023 Assembly Bill 528 and 2023 Senate Bill 507. However, they failed to receive widespread support. Over the years, many school districts across the state have voluntarily changed their logos, mascots, team names, and/or nicknames to avoid complaints and other pressures, but others have opted not to do so.
We will continue to monitor this issue. If you have any additional questions about the complaint process for race-based mascots, logos, team names, and/or nicknames, please contact your RLL attorney.
