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A Brief Policy History of the American Indian Mascot, Logo, and Nickname Issue in Wisconsin

A Brief Policy History of the American Indian Mascot, Logo, and Nickname Issue in Wisconsin. J P Leary, Consultant American Indian Studies Program Wisconsin Department of Public Instruction. Preface.

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A Brief Policy History of the American Indian Mascot, Logo, and Nickname Issue in Wisconsin

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  1. A Brief Policy History of the American Indian Mascot, Logo, and Nickname Issue in Wisconsin J P Leary, Consultant American Indian Studies Program Wisconsin Department of Public Instruction

  2. Preface • The Wisconsin Department of Public Instruction is the state agency that advances public education and libraries in Wisconsin. • The department is headed by the State Superintendent of Public Instruction, a nonpartisan, constitutional officer elected every four years.

  3. Policy Context • Elected State Superintendent • No State School Board • Local Control • 426 School Districts • 12 Cooperative Educational Service Agencies • 39 Teacher Education Programs State Superintendent Tony Evers

  4. Dual DPI Roles Two Distinct Roles: • Educational Leadership • Moral authority • Political Persuasion • Administrative Agency • Statutorily defined roles • Arbiter of appeals, s. 118.13 • Contested case hearing examiner, s. 118.134 • Prescriptive processes

  5. Educational Leadership • The State Superintendent is a non-partisan, elected official whose office was established by state constitution. • The State Superintendent’s leadership role is role is to promote effective, equitable educational practices that result in high academic achievement for all students.

  6. Arbiter of Appeals • Those alleging discrimination must first follow the local complaint processes before appealing any unsatisfactory findings with DPI. • DPI hears appeals of unsatisfactory decisions.

  7. Arbiter of Appeals • s.118.13 Wis. Stats. charges the state superintendent with deciding appeals of negative determinations by local school boards under that statute and with promulgating the necessary administrative rules to do so. • PI 9 Wis. Admin. Code provides the procedures for doing so.

  8. Key Cases • Two key OCR cases • Chief Illiniwek • Pekin, IL Chinks • “Reasonable person similarly situated to the appellant” • Legal standards assess the totality of circumstances

  9. First Complaint: Milton (1991) • January : Carol Hand filed a formal complaint with the Milton School District under the pupil nondiscrimination statute. • March: Hand appealed the negative determination of her complaint to the State Superintendent under s. 118.13. A central issue was whether she, as a community member, had standing to file a complaint. • December : Rock Co. Circuit Court orders DPI to “desist and refrain from taking any further action in the Carol Hand appeal.”

  10. State Superintendent Grover • May 1992: State Superintendent Herbert Grover requested legal guidance from the Attorney General on school logos, mascots, and nicknames. • Attorney General James Doyle responded that fall.

  11. Attorney General’s Opinion (1992) • Logo/Mascot Issues DO fall under the purview of s. 118.13 and PI 9. • Logos and mascots are NOT per se discriminatory and must be judged on a case by case basis. • Intent is not an issue, thus there is no need to prove intent to discriminate. • Grover circulated the opinion to all school districts in October 1992.

  12. Athletic Guidelines (1993) • “Athletic Guidelines,” a new publication of the Department of Public Instruction and the Wisconsin Interscholastic Athletic Association (WIAA), included Grover’s letter and the Attorney General’s opinion on school mascots, logos, and nicknames.

  13. AJR 27 (1993) • Sponsors: Reps. Boyle, Turner, Musser, Bock, Holperin, Riley, Baldwin, R. Young, L. Young, LaFave, Gruszynski; Sen. Moore. • “Relating to calling upon school boards to review stereotypical depictions of American Indians in school and athletic team logos, mascots, and nicknames.” • Passed Assembly as amended, June 15, 1993 (57-36). Senate Education Committee concurred on January 12, 1994. Senate failed to concur pursuant to SJR 1.

  14. State Superintendent Benson • April 1, 1994 State Superintendent John T. Benson issues a letter to school districts • Benson urged districts to “take steps to change this mascot to one which is ethnic (as well as gender) sensitive.” • Noted numerous objections of and resolutions by tribal, intertribal, and other organizations. • “I believe that American Indian related mascots, logos, and nicknames are entirely inappropriate for use in Wisconsin’s public schools.”

  15. AB 488 (1995) • Sponsors: Reps. Nass, Jensen, Kreibich, Grothman, Ladwig, Wood, Ward, Owens, Dobyns, Goetsch, Olsen, Gunderson, Duff, Hahn, Schneiders, Zukowski, Silbaugh, Kaufert, Walker, Kreuser, Handrick, Vrakas, and Otte; Sens. Zien and Weeden. • Amends pupil nondiscrimination law so that it would NOT prohibit the use of any logo, mascot, or nickname by any public school regardless of when it was adopted. • August 29, 1995 – Public hearing before the Assembly Education Committee. • Bill did not pass.

  16. Mukwonago Appeal • Filed at DPI September 16, 1994; decision announced Nov. 2, 1995. • By failing to acknowledge and resolve related complaints of discrimination the School Board DID violate s. 118.13 Wis. Stats. and PI 9. • The high school logo DID NOT in and of itself violate s. 118.13 Wis. Stats. and PI 9. • The district DID violate s. 118.13 Wis. Stats. and PI 9 by failing to eliminate a racially hostile environment detrimental to the appellant. • The middle school logo DID appear to encourage behavior contributing to a racially hostile environment.

  17. Mukwonago Appeal • District released personally identifiable information regarding the student involved. DPI noted that this could have “a chilling effect” upon others who might file complaints. It is the department’s recommendation that complainant information be held confidential as student records. • The superintendent affirmed the district’s discontinuation of the “old” Park View Middle School logo. It was viewed as discriminatory and discontinued. NOTE: This set a precedent re: logo use and discontinuation.

  18. Mosinee Appeal • Filed at DPI July 15, 1994; decision announced March 12, 1996. • The department concluded that a “reasonable person similarly situated to the appellant” would NOT be offended by the Plains Indian logo. • DPI DID NOT find a severe, persistent, and pervasive pattern of racially hostile acts which rose to the level of a racially hostile environment.

  19. Mosinee Appeal • Decision “should be in no way construed as an endorsement of the Mosinee High School ‘Indians’ nickname or logo. Nor should this decision be construed as a retreat from the State Superintendent’s leadership position urging public schools to review and work toward elimination of Indian logos, mascots, or nicknames as school symbols. Clearly such symbols are potentially offensive, discriminatory and harmful to all students.” • Decision compliments the appellants’ skill in explaining the issue.

  20. SB 341 (1997) • Sponsors: Sens. Moore, Burke; Reps. Boyle, Turner, Morris-Tatum, Baldwin, L. Young. • Referred to Senate Education Committee. • Prohibits the use of Apaches, Blackhawks, Braves, Chiefs, Chieftains, Indees, Indians, Raiders, Red Raiders, Redmen, Warhawks, and Warriors and prohibits use of an American Indian name if the State Superintendent considers it to be a violation of s. 118.13. • Public hearing held in Senate Education Committee. • Bill did not pass.

  21. Court of Appeals (1998) • Unpublished opinion, Munson and Students A,B, and C., v. State Superintendent of Public Instruction and School District of Mosinee, Court of Appeals Unpublished Opinion No. 97-1450, Feb. 17, 1998. • Court of Appeals held that DPI was correct to apply the “reasonable person” standard to evaluate the logo and correctly applied the standard. • Affirmed the conclusion that a reasonably situated person need not find the depiction negative, detrimental, or harmful. • Court ultimately upheld both the process and findings.

  22. SB 217/AB 433 (1999) • Sponsors: Sens. George, Risser; Reps. Boyle, Young, Carpenter, Turner, Pocan, and LaFave. • Referred to Senate Education Committee (Grobschmidt) and Assembly Education Reform (Nass). • Several advocates and DPI staff, including Supt. Benson, all attended one or more meetings with Rep. Boyle on this issue prior to the bill’s introduction. • Hearing held in Senate Education Committee, March 2000.

  23. SB 217/AB 433 (1999) • Amend s.118.13 to create a means to file a direct complaint to the State Superintendent regarding a public school’s use of an ethnic nickname, logo, or mascot . • Shift the burden of proof “by clear and convincing evidence” to school boards. • Require the State Superintendent to order termination of the offending nickname, logo, or mascot within 12 months of the decision. • Fine of $100-$1000 per day for failure to comply. • All decisions would be subject to circuit court review.

  24. Superintendent John Benson • May 16, 2001 press release called for the elimination of American Indian mascots, logos, and nicknames. • “No mascot, logo, or nickname is so important that is supersedes a child’s right to learn.” • Expressed support for Rep. Boyle’s resolution to eliminate American Indian mascots, logos, and nicknames by 2004-2005. • Noted the experiences of several districts who eliminated “unneeded and unwanted” symbols. • Included information on Verona’s change from Indians to Wildcats.

  25. SB 25/AB 92 (2001) • Sponsors: Sens. George, Moore, Risser, and Burke; Reps. Boyle, LaFave, Carpenter, Coggs, Young, Pocan, Turner, Sherman, Morris-Tatum, Riley, and Berceau. • Substantially similar to 1999 SB 217/AB 433. • Referred to Senate Education Committee. No hearing or other further action.

  26. AB 357 (2003) • Sponsors: Reps. Boyle, Musser, Turner, J. Lehman, Sinicki, Morris, Pocan, Young, Berceau, Coggs, and Black; Sens. Risser, Moore, and Carpenter. • Substantially similar to 1999 SB 217/AB 433. • Referred to Assembly Education Reform Committee. No hearing or other further action.

  27. Superintendent Burmaster • Burmaster was the first State Superintendent to speak at a Wisconsin Indian Education Association conference. • Coverage from the Hocak Woraknoted: • “Burmaster is aware that the Indian logo and mascot issue still divides some Wisconsin communities and stressed her commitment to work toward their abolishment. • “She is concerned that the example it sets is contrary to what Native people are teaching their children.” • “Education combats prejudice,” she said, urging the need to educate and partner with community leaders to get the message home.” Hocak Worak [Ho-Chunk Nation’s newspaper], April 14, 2004 via http://www.hocakworak.com/archive/2004/WL_2004_04_14/HW-040414-10.htm

  28. Osseo-Fairchild Appeal • Filed at DPI December 1, 2004; decision issued April 11, 2005. • The district DID violate PI 9.04 by failing to hold a hearing within 90 days. • The district DID NOT violate s. 118.13 by using an American Indian logo and nickname because: • The logo used is not per se discriminatory. • A “reasonable person similarly situated to the appellant” would not find the logo to be such a negative stereotype as to be harmful. • The incidents cited by the complainant were not sufficiently pervasive, severe, nor persistent as to interfere with the student's ability to benefit from the district's instructional program and related offerings.

  29. Osseo-Fairchild Appeal • The decision also notes the opposition of Wisconsin tribes, WIEA, GLITC, and other tribes and organizations outside Wisconsin and expresses the department's ongoing opposition to the use of American Indians mascots, logos, and nicknames. • “While the department found no evidence to support a finding of discrimination with regard to the logo under current legal standards, the department believes that the use of stereotypical American Indian logos does not support sound educational practice because it is contrary to the authentic culture, history and tribal sovereignty of American Indians.”

  30. SB 172/AB 395 (2005) • Sponsors: Sens. Coggs, Risser, Robson, Carpenter, Hansen, Jauch, Miller, and Breske; Reps. Boyle, Musser, Sherman, Ainsworth, Benedict, Berceau, Bies, Black, Colon, Fields, Grigsby, Hebl, Kessler, Wasserman, Krawczyk, Lehman, McCormick, Molepske, Mursau, Nelson, Parisi, Pocan, Pope-Roberts, Richards, Schneider, Seidel, Sheridan, Shilling, Sinicki, Toles, Turner, Van Roy, and Young. • Substantially similar to 1999 SB 217/AB 433. • Referred to Senate Education Committee and Assembly Committee on State Affairs.

  31. AB 564 (2005) • Sponsors: Reps. Schneider, Wasserman, Boyle, and Grigsby; Sen. Coggs. • Section 1 addresses the issue of “Indian” mascots, logos, and nicknames and is substantially similar to 1999 SB 217/AB 433. • Section 2 prohibits the DNR from using the word squaw in the name of a lake or stream. • Referred to Assembly Committee on State Affairs.

  32. Supt. Burmaster (2005) • Dec. 27, 2005 State Superintendent Elizabeth Burmaster sent a memo to all 426 school districts intended to make them aware of the APA’s resolution opposing the use of American Indian mascots, logos, and nicknames. • “As you know, I believe that stereotypical American Indian logos do not support sound educational practice because they interfere with a school’s efforts to provide accurate information related to the history, culture, and tribal sovereignty of American Indian nations. “ • “In addition to ensuring sound educational practices, we need to ensure that all of our children feel welcome in our schools.”

  33. SB 132/AB 176 (2007) • Sponsors for: AB 176: Introduced by Representatives Musser and Boyle, cosponsored by Senator Coggs, by request of Wisconsin Indian Education Association. • Sponsors for SB 132: Senators Coggs, Risser, Carpenter and Hansen, cosponsored by Representatives Musser, Boyle, Berceau, Cullen, Fields, Grigsby, Kreuser, Mursau, Nelson, Parisi, Pocan, Schneider, Sheridan, Sinicki, Soletski, Sherman and Shilling. Substantially similar to 1999 SB 217/AB 433.

  34. SB 132 (2007) Provisions: • Amend s.118.13 to create a means to file a direct complaint to the State Superintendent regarding a public school’s use of an ethnic nickname, logo, or mascot . • Shift the burden of proof “by clear and convincing evidence” to school boards. • Require the State Superintendent to order termination of the offending nickname, logo, or mascot within 12 months of the decision. • Fine of $100-$1000 per day for failure to comply. • Make all decisions subject to circuit court review.

  35. AB 35/SB 25 (2009) • AB 35 introduced Feb. 12, 2009, by Rep. Soletski. Co-sponsored by Reps. Pope-Roberts, Mursau, Young, Benedict, Berceau, Black, Colon, Cullen, Fields, Grigsby, Hilgenberg, Kessler, Molepske Jr., Mason, Milroy, Nelson, Parisi, Pasch, Pocan, Radcliffe, Schneider, Sherman, Sheridan, Shilling, Sinicki, Smith, Steinbrink, Turner, Van Akkeren and A. Williams. • SB 25 introduced Feb. 3, 2009, by Sen. Coggs. Co-sponsored by Sens. Hansen, Carpenter, Risser, Holperin and Taylor.

  36. AB 35 (2009) • Hearing held in Assembly Education Committee, March 17, 2009; voted out of committee as amended (8-5), Feb. 17, 2010 • AB 35 passed (51-42, 4 paired), Feb. 25, 2010. • Amended SB 25 concurred in by Assembly (53-45), April 20, 2010.

  37. SB 25 (2009) • Hearing held in Senate Education Committee, Jan. 13, 2010; voted out of committee as amended (4-3), April 7, 2010. • SB 25 passed (17-16) April 13, 2010

  38. 2009 Wisconsin Act 250 • Signed into law May 5, 2010 • Published May 19, 2010 • Even as amended, substantially similar to 1999 SB 217/AB 433.

  39. Contested Case Hearings • Act 250 (s.118.134) allows direct complaints • Designated hearing examiner presides over contested case hearing • Does the race-based nickname, logo, or mascot promotes discrimination, pupil harassment, or stereotyping as defined in rule? • Burden of proof generally rests on school district • May result in termination order and/or fine

  40. Complaints • s.118.134 provides for direct complaints to the State Superintendent re: use of race-based logos, nicknames, and mascots • Complainant must be a resident of the district • Complaint must address race-based logo, nickname, and mascot use by that district • District must be notified of complaint and provided the opportunity to provide additional information

  41. District Response • Must include documentation on nickname, logo, and mascot usage • Includes opportunity to demonstrate that the depiction is of a specific, federally recognized tribe who continues to permit and support the nickname, logo, and mascot in question

  42. Initial Review • Is the nickname, logo, or mascot unambiguously race-based? • Hearing must be scheduled within 45 days of receipt of complaint • State Superintendent may determine no hearing is necessary

  43. Hearing • Must be scheduled within 45 days of complaint • Both parties are represented. • School board bears burden of proving by clear and convincing evidence that the logo, mascot, or team name does not promote discrimination, pupil harassment, or stereotyping. • Burden shifts to complainants if usage is ambiguously race-based.

  44. Decision • Must be issued within 45 days of hearing. • If the nickname, logo, or mascot does not promote discrimination, pupil harassment, or stereotyping, the complaint is dismissed. • If the nickname, logo, or mascot is found to promote discrimination, pupil harassment, or stereotyping, termination is ordered within 12 months. • Decisions subject to circuit court review

  45. Extensions for compliance • District has opportunity to provide evidence of extenuating circumstances that preclude termination within 12 months. • Any extension granted may not exceed 24 months and is limited to portions of the order to which the circumstances apply. • Examples include costs and timelines

  46. Penalty • Districts in violation of an order must forfeit $100 - $1,000 per day of violation.

  47. Key Definitions • Logo (PI 45) • Mascot (PI 45) • Nickname (PI 45) • Stereotyping (PI 9 and PI 45) • Pupil Harassment (PI 9 and PI 45) • Discrimination (PI 9 and PI 45)

  48. Logo “Any written, printed, graphic, photographic, badge, emblem, caricature, image, statue, artifact or other symbolic depiction representative of or in any way connected to the identity of a school, district or board” PI 45.02(6) Wis. Admin. Code

  49. Mascot “A person, costume, insignia, dance, song, rhythmic beat, or any other object or thing representative of or in any way connected to the identity of a school, district, or board” PI 45.02(7) Wis. Admin. Code

  50. Nickname “Any name, title, label, word, or any other designation of any kind representative of or in any way connected to the identity of a school, district, or board.” PI 45.02(8) Wis. Admin Code

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