Wisconsin must stop awarding small-dollar grants to help deter students from dropping out of college under a program available only to specific racial and ethnic groups, the Wisconsin Supreme Court ruled Thursday.
Although unanimous in part, the opinion also included concurrences by three of the Court’s liberal justices. They sharply critiqued a U.S. Supreme Court opinion that set the stage for the ruling, while acknowledging that its precedent required them to follow its contours.
At issue is the Minority Undergraduate Retention Grant Program operated by the state Higher Educational Aids Board. The program, established in 1985, provides grants from $250 to $2,500 for students who are Black, Hispanic, Native American and for immigrants or descendants of immigrants from Laos, Vietnam or Cambodia following the end of the Vietnam War in 1975.
Eligible recipients are students at Wisconsin’s technical colleges, private universities and tribal colleges. The program and a companion program for University of Wisconsin students were both created “to reduce the financial burden which causes many minority students to leave school,” then-Gov. Tony Earl wrote in the 1985 budget proposal that led to their creation.
A 2023 Wisconsin Examiner analysis found that the money in the program largely went to Black students at Milwaukee Area Technical College who got training and jobs in building and construction and other trades.
In a February 2025 ruling the Wisconsin 2nd District Court of Appeals sided with the Wisconsin Institute for Law & Liberty, overturning a lower court and ruling that the retention grant program violates the Equal Protection Clause in the U.S. Constitution’s 14th Amendment. WILL filed the lawsuit with a group of families.
The appeals judges cited a U.S. Supreme Court ruling, Students for Fair Admissions Inc. v. President & Fellows of Harvard College, issued in June 2023. That opinion, referred to as SFFA for short, held that the consideration of race in college admission policies at Harvard and the University of North Carolina “cannot be reconciled with the guarantees of the Equal Protection Clause” in the 14th Amendment to the U.S. Constitution.
Thursday’s opinion, written by Justice Annette Ziegler, affirmed the appeals court decision and cited the SFFA U.S. Supreme Court opinion.
The Higher Educational Aids Board argued that the retention grants were needed to help maintain student diversity.
Ziegler wrote, however, that when trying to ensure a diverse student body, race cannot be a defining factor. Rather, it can be one of many factors in a flexible process that evaluates each applicant as individuals, she wrote.
“Under the Grant Program, race is not but one factor in a ‘highly individualized, holistic review.’ Race is the only factor,” Ziegler wrote. “Either a student is, or is not, a member of the preferred racial group.”
When the Wisconsin law that established the grant program was enacted 41 years ago, “the record does not reflect that Wisconsin’s technical or private colleges needed the legislature to enact a race-, national origin-, ancestry-, or alienage-based remedy in the 1980s,” Ziegler wrote. Lacking such evidence, “we cannot assume that the legislature enacted [the program] to address an unidentified retention and graduation problem at private and technical colleges.”
Ziegler was joined in the main opinion by Justices Rebecca Bradley, Brian Hagedorn and Janet Protasiewicz.
In a concurrence, Chief Justice Jill Karofsky acknowledged that “I am bound” by the 2023 SFFA opinion and that the grant program cannot survive as a consequence. But Karofsky described the SFFA opinion as part of a broader trend that was turning the 14th Amendment in the opposite direction from its original intent.
“Rather than turn a blind-eye to the scourge of racism and slavery, the Fourteenth Amendment’s Equal Protection Clause faces it head-on by demanding change and requiring equal protection of the laws for all people. Inherent in its language is a recognition of the wrongs of prejudice, discrimination, and injustice,” Karofsky wrote.
“Why, instead of wielding the Equal Protection Clause as a sword against racism, do we employ it to shield against the promise of equality for all?” Karofsky asked rhetorically. “The answer appears to be that we have failed to fully recognize how societal and governmental practices have long continued to enforce a preference for White Americans and to burden Black Americans and those of other disadvantaged races or backgrounds.”
She was joined in the concurrence by Justice Susan Crawford.
Citing arguments made by dissenting justices in the 2023 SFFA opinion, Karofsky wrote that in Wisconsin, disparities between students of color and white students when they enter college “[are] about a reality where past state-sponsored racism continues to affect educational opportunities, and systemic racism continues to rob non-White people of equal educational opportunities. And as difficult and uncomfortable as that may be for some to acknowledge, it is the truth, and it cannot and should not be ignored.”
In the second concurrence, Justice Rebecca Dallet wrote that under current U.S. Supreme Court rulings that the Wisconsin Court must follow, the 14th Amendment Equal Protection Clause now imposes “substantial barriers to the adoption of race-conscious laws — even ones that seek to remedy the deep, structural inequalities in our society.” Karofsky and Crawford joined her concurrence.
The Higher Educational Aids Board’s defense of the grant program failed because there was “no evidence in the record establishing a problem with retention at Wisconsin’s private and technical colleges, or that race cannot be separated from that problem,” Dallet wrote.
Nevertheless, she suggested that it might yet be possible to redirect the Court with the production of “greater factual support” in the future.
State lawmakers react
Thursday’s ruling drew contrasting reactions from Wisconsin lawmakers.
Sen. Dora Drake (D-Milwaukee), chair of the Wisconsin Legislative Black Caucus, criticized the decision for applying the U.S. Supreme Court ruling to a different set of circumstances.
“That federal case was based on admissions while this program is about a student retention enacted by the state legislature and funded since 1985,” Drake said in a statement. The state Supreme Court justices “are setting a dangerous precedent by applying this federal ruling to distinctly different programs.”
Drake said she was a recipient of the grant when she attended Marquette University as a first-generation college graduate. She said she would introduce new legislation in the next two-year legislative session to replace the program with one that would support students based on income and zip code. “Disadvantaged communities need more resources, not fewer,” she said. “We can’t continue to make the same mistakes like our nation did post reconstruction and Jim Crow if we do we will never achieve true equity in our democracy.”
Sen. Eric Wimberger (R-Gillett) praised the ruling in a statement. Wimberger authored a bill that would have changed the retention grant and several other programs, redefining them to apply to students who were identified as “disadvantaged” while excluding race, ethnicity, national origin, gender, sexual orientation or religion, or to “a student’s identity as a member of a group without regard to individual qualities.” The measure passed the Legislature on party-line votes and was vetoed by Gov. Tony Evers.
“Today, the state Supreme Court unanimously affirmed the policy outcome of my bill,” Wimberger said. “Giving benefits based solely on race presumes someone has individual personal characteristics simply because they belong to a race category. That is stereotyping and racism at their plainest and simplest.”
Wimberger said that there are “other state programs that give benefits based on race” and that he would “continue to fight against those policies and pursue equality under the law.”
This report has been updated with statements from Wisconsin lawmakers.
