Guest Post — Brian Pierson on the Wisconsin Indian Mascot Law

While a challenge to the Wisconsin statute regulating American Indian mascots winds its way through the Wisconsin Court of Appeals (Schoolcraft v. Wisconson Dept. of Public Instruction; briefs here), Mr. Pierson — author of this amicus brief in the Schoolcraft case (PDF) kindly agreed to comment on the recent law review comment by a Marquette law student criticizing the Wisconsin legislature for enacting the law (I thought he did a nice job recognizing that the author was a law student and kept the kid gloves on to some extent)):

Mr. Heacox provides a useful time line of the Indian mascot issue in Wisconsin. His article does not engage with the legal issues, however, nor does he make a convincing case for his conclusion that legislative efforts to address the issue are misguided and that “education” is the solution.
The article provides a summary of the law’s background but no serious discussion of the underlying legal issues. The State has a legal obligation, under the state and federal constitutions, to provide a discrimination-free public education to its youth. It also has the legal authority and responsibility, under the state constitution, to eliminate practices that undermine student learning. The legislature enacted the mascot law to address both constitutional responsibilities. Are the discrimination concerns insufficient to trigger the 14th Amendment? How does the growing body of social science affect the analysis?  How should the legislature weigh local sentiment against the consensus among education professionals that Indian mascots impede student understanding? Are there any legal arguments that mascots deserve protection? The author doesn’t address these issues.
The Wisconsin law does not impose an outright ban on Indian mascots. Rather, it provides for a DPI hearing at the local level upon the filing of a complaint and elimination of an Indian mascot in the event that the district cannot prove, by “clear and convincing evidence,” that the mascot does not promote discrimination, harassment or stereotyping. The law passed by just one vote after years of failure. It is not clear that an outright ban could have passed. In any event, sponsors of the bill stated their intention that the local hearing approach would provide an educational opportunity and ease the transition to non race-based mascots.
Like the plaintiffs in the Mukwonago case currently before the Wisconsin Court of Appeals, Heacox faults the DPI’s hearing process, characterizing DPI’s reliance on empirical research as “extreme.” But what makes reliance on empirical research “extreme?” It’s a worthwhile legal issue but Heacox provides no legal analysis.
Heacox also criticizes the gradualist approach behind the law: “By enacting such a stringent statute, the legislature sought to encourage school districts to voluntarily abandon their use of such names and symbols rather than fight a virtually unwinnable battle. If this was in fact the goal, then the legislature should have drafted a bill that would permanently eliminate all unambiguously race-based nicknames, logos, mascots, and team names.”
The author has correctly identifies the legislative goal in the first sentence but the second sentence is a non-sequitur. Aside from the political challenges, a law requiring schools to eliminate their mascots obviously wouldn’t serve the goal of encouraging districts to voluntarily abandon them.
Heacox judges the legislature’s gradualist approach as “not constructive.” He makes the extraordinary and unsupported assertion that the law has “polarized the sides while increasing the prevalence of discriminatory logos” and proposes that the “real goal” should be to “educate citizens.” The Department of Public Instruction has, in fact, been educating school districts for twenty years by providing evidence that Indian mascots are both discriminatory and bad pedagogy. Many districts have eliminated their Indian mascots but many others have effectively responded “We don’t care.” Does the legislature then have a duty or not? What are the competing legal interests and how should they be weighed?
The article grapples with none of the serious legal issues associated with the mascot issues. It ends, as it began, by characterizing mascot eradication efforts as “madness.” While Heacox refers to the “potential damaging effects that stereotypical names and logos have on children of all races,” ultimately, the effect of the article is simply to register another vote in favor of letting school districts keep their mascots.

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