(CN) - A challenge to a state-funded grant program that provides higher education grants to Black, Hispanic, Native American and Southeast Asian students went before the Wisconsin Supreme Court on Wednesday.

Konkanok Rabiebna and four other taxpayers sued Wisconsin's Higher Educational Aids Board and its secretary, who oversees the program, in 2021 in Jefferson County Circuit Court.

The plaintiffs claim the grant program, which dates back to the 1980s, is unconstitutional because it discriminates based on race and national origin by only providing grants to students from specific backgrounds.

The grant program is reauthorized every two years by the state Legislature and aims to improve student retention rates and outcomes by offering up to $2,500 to students who are Black, Hispanic, Native American or Southeast Asian from Cambodia, Laos or Vietnam admitted to the country after 1975.

The circuit court sided with the board and found that the program is constitutional because it is narrowly tailored to its educational goal. However, the appellate court reversed the ruling in 2025, which set up the state's high court to take the case.

During Wednesday's oral arguments, the Wisconsin Supreme Court was asked to decide whether the grant program is constitutional and if the plaintiffs have standing to challenge it.

"The retention statute solves a problem that race-neutral aid has failed to fix; the system dramatically improved retention rates for college students from groups with disproportionately high attrition," said Wisconsin Assistant Attorney General Charlotte Gibson.

According to court documents submitted by Gibson, 80% of grant recipients in 2018 and 2019 had completed their degree or certificate, and a state annual report showed 85% of grant recipients said that without the grant, they would have faced difficulties in attending school or would have been unable to attend.

Attorney Luke Berg, with the Wisconsin Institute for Law and Liberty, argued on behalf of the plaintiffs and claimed the program is unconstitutional because it excludes based on race.

"This is not an equal educational opportunity; it's an opportunity available to some races and not to others," said Berg. "So how they can claim that an unequal, racially discriminatory scholarship program furthers an interest in equal educational opportunity, is to me, incoherent."

In response to his arguments, Berg was presented with a hypothetical on how the state could respond to a maternal-fetal health crisis that disproportionately affected Black babies without targeting race.

"The state could talk about that problem," said Berg. "What it can't do is enact into law an explicit racial discrimination."

When questioned further on how the state could solve an issue like the one presented in the hypothetical, Berg responded: "They could pass a program that applies to all babies that need it, and it would mostly apply to Black babies if that's the real problem, but there are some white babies in the world who might need it, too, so you would make the program available to all."

Chief Justice Jill J. Karofsky asked Berg about the problems facing people of color in Wisconsin.

"Just last week, the president of the United States posted a remarkably and insanely racist video of President and Michelle Obama depicted as apes," said Karofsky. "In this state, people of color contribute to the vitality of our state, and they are thanked by facing disparities when it comes to housing, access to medical care, transportation, incarceration, financial stability and education. Do you take issue with anything I just said up to that point?"

"I agree with a lot of what you just said," Berg responded. "I think the worst form of discrimination is discrimination under the law. When the law treats individuals differently based on their race."

Despite being a challenge to a state educational program, the case is heavily influenced by a split ruling from the United States Supreme Court in 2023 that gutted affirmative action programs.

In that case, the Supreme Court found that Harvard and University of North Carolina admission programs unfairly excluded students based upon race and are unconstitutional.

How this ruling governs the Wisconsin program was one of the key issues discussed during the oral arguments, with Justice Rebecca Bradley suggesting to Gibson that the ruling made it clear that the state program was unlawful.

"This statute creates a financial benefit that is not available to most students solely because of their race," said Bradley. "How can you justify the constitutionality of this program when it uses race as a stereotype, and most definitely a negative, by shutting the door to people of multiple races simply because of their race?" 

Gibson responded that the SCOTUS ruling did not totally bar all race-based classifications and that the state's program passes the test laid out by the ruling.

In a move that confused and even offended some of the justices, Berg asked the court to dismiss as improvidently granted or to "dig" the case, meaning that the ruling from the appellate court would stand.

"If this court reverses, either on standing or on the merits, the next thing that will happen is that someone will file this case in federal court," Berg said.

Several of the justices indicated that they would not indulge the request and instead would rule on the case as presented before the court. The court did not say when it would issue a ruling.

Source: Courthouse News Service