J P Leary, Consultant

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 Superintendents 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 Generals 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 Grovers letter and the Attorney
  Generals 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 Wisconsins 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
  departments recommendation that complainant
  information be held confidential as student
  records.
• The superintendent affirmed the districts
  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
  Superintendents 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 bills
  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 schools 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 childs right to learn.
• Expressed support for Rep. Boyles 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 Veronas 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 Worak noted
• 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 Nations newspaper, April
  14, 2004 via http//www.hocakworak.com/archive/200
  4/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 APAs
  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 schools 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 schools 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

51
Discrimination

• Any action, policy or practice, including bias,
  stereotyping and pupil harassment, which is
  detrimental to a person or group of persons and
  differentiates or distinguishes among persons, or
  which limits or denies a person or group of
  persons opportunities, privileges, roles or
  rewards based, in whole or in part, on sex, race,
  national origin, ancestry, creed, pregnancy,
  marital or parental status, sexual orientation or
  physical, mental, emotional or learning
  disability, or which perpetuates the effects of
  past discrimination.
• PI 9.02(5) Wis. Admin. Code

52
Discrimination

• Any action, policy, or practice, including bias,
  stereotyping and pupil harassment, which is
  detrimental to a person or group of persons and
  differentiates or distinguishes among persons, or
  which limits or denies a person or group of
  persons opportunities, privileges, roles or
  rewards based, in whole or in part, on race, or
  which perpetuates the effects of past
  discrimination based in whole or in part on
  race.
• PI 45.02(3) Wis. Admin. Code

53
Stereotyping

• Attributing behaviors, abilities, interests,
  values, and roles to a person or group of persons
  on the basis, in whole or in part, of their sex,
  race, national origin, ancestry, creed,
  pregnancy, marital or parental status, sexual
  orientation or physical, mental, emotional or
  learning disability.
• PI 9.02(14) Wis. Admin. Code

54
Stereotyping

• Attributing behaviors, abilities, interests,
  values, and roles to a person or group of persons
  on the basis, in whole or in part, of their
  race.
• PI 45.02(12) Wis. Admin. Code

55
Pupil Harassment

• Behavior towards pupils based, in whole or in
  part, on sex, race, national origin, ancestry,
  creed, pregnancy, marital or parental status,
  sexual orientation or physical, mental, emotional
  or learning disability , which substantially
  interferes with a pupils school performance or
  creates an intimidating, hostile, or offensive
  school environment.
• PI 9.02(9) Wis. Admin. Code

56
Pupil Harassment

• Behavior towards pupils based, in whole or in
  part, on race, which substantially interferes
  with a pupils school performance or creates an
  intimidating, hostile, or offensive school
  environment.
• PI 45.02(9) Wis. Admin. Code

57
Current Figures Wisconsin Race-Based Nickname
Review Committee (Sept. 30, 2010)

• To date, 32 school districts changed logos,
  mascots, or nicknames that had referenced
  American Indians.
• Four changed since Burmasters 2005 memo.
• Two changed following complaints under the new
  law.
• 33 school districts continue to use mascots,
  logos, or nicknames that reference American
  Indians.

58
Summary

• Nineteen years since Milton complaint
• Ten legislative sessions
• Six sessions with current provisions
• Four State Superintendents
• Three s.118.13 appeals
• Three s.118.134 appeals

59
For Further Information

• J P Leary
• American Indian Studies Consultant
• Wisconsin Department of Public Instruction
• PO Box 7841
• Madison, WI 53707-7841
• jp.leary_at_dpi.wi.gov
• 800-441-4563 (toll-free)
• 608-267-2283 (direct)

• Paul Sherman
• Pupil Nondiscrimination Consultant
• Wisconsin Department of Public Instruction
• PO Box 7841
• Madison, WI 53707-7841
• Paul.sherman_at_dpi.wi.gov
• 800-441-4563 (toll-free)
• 608-267-9157 (direct)