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.
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