MADISON, Wis. (CN) - The Wisconsin Supreme Court delivered a fatal blow Thursday to a state-funded grant program that provides higher education grants to Black, Hispanic, Native American and Southeast Asian students.

"We hold that HEAB has failed to demonstrate that the Legislature's goals of increasing diversity and equalizing educational opportunities for certain students are compelling in this instance," Justice Annette Kingsland wrote for the majority.

The grant program is reauthorized every two years by the 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 immigrants from Cambodia, Laos or Vietnam admitted to the country after 1975.

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 claiming it unconstitutionally discriminates based on race and national origin.

The lower court sided with the board and found the program is narrowly tailored to its educational goal, but the ruling was reversed on appeal in 2025.

The Wisconsin Supreme Court heard oral arguments on the issue in February, and issued a quick decision Thursday that effectively terminates the program.

The board argued the Legislature has a compelling interest in financially assisting certain racially classified groups for the purpose of increasing retention and graduation rates among certain preferred minorities.

But those arguments failed in the wake of the U.S. Supreme Court gutting affirmative action in the 2023 case Students for Fair Admissions v. President and Fellows of Harvard College.

"Certainly, objectives rooted in diversity might seem compelling, but the SFFA court concluded that the objectives identified by the universities as flowing from a diverse student body were 'not sufficiently coherent' to constitute a compelling government interest," Kingsland said.

The court criticized the board for failing to even identify specific objectives it hopes to promote or achieve through diverse student bodies, leaving itself with only an argument that is not supported by current law.

The board carries the burden of proving that the program was designed to remedy a specific problem at the time it was created, and that it was tailored using relevant data to achieve its stated interest in equalizing education opportunities for certain students through financial aid.

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

However, none of the board's data was from the time of the grant program's inception in 1989 but rather decades later between 2015 and 2016, the court emphasized.

Without evidence in the record to show Wisconsin's technical or private colleges needed the Legislature to enact the remedy in the 1980s, the court cannot assume the intent was purely to address an unidentified problem, the justices said.

Oral arguments grew tense when the question of how to address institutionalized racial discrimination without race-based programing was posed to plaintiff's attorney Luke Berg, with the Wisconsin Institute for Law and Liberty.

"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 Chief Justice Jill 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?"

Berg sidestepped the question and noted that his belief is the worst form of discrimination is discrimination under the law, "when the law treats individuals differently based on their race."

Thursday's opinion is heavily influenced by a split U.S. Supreme Court ruling that found Harvard and University of North Carolina admission programs unfairly excluded students based on race by giving students of color a "plus" at the screening stage.

Assistant Attorney General Charlotte Gibson attempted at oral arguments to demonstrate the 2023 ruling did not bar all race-based classifications, and that the state's program passes the test laid out by the ruling.

The test requires the state to show a compelling government interest, which has been narrowed to only include avoiding race riots in prison or remediating specific, identified instances of government-sanctioned discrimination, according to the court.

"Indeed, HEAB conceded at oral argument that it is hoping that this court will be the first to recognize its asserted interest in equalizing educational opportunities by offering financial aid to some but not all students ... No other court has held that these interests are compelling, and on this record, this court declines to be the first," Kingsland said.

The Higher Educational Aids Board declined to immediately comment on what next steps it will take to terminate the program, and what will happen to students already relying on the grant in the upcoming academic semester.

"This is a major win for students," said Dan Lennington, managing vice president at the Wisconsin Institute for Law & Liberty. "Race cannot be used to dole out scholarships and other financial aid. This is also a big win for taxpayers, who can now challenge many other race-based programs in state court. WILL is proud to stand for equal rights and make that case everywhere we can."

Source: Courthouse News Service