June 19, 2026 – A state program designed to encourage retention of minority students in private and technical colleges failed strict scrutiny under recent U.S. Supreme Court precedent, the Wisconsin Supreme Court decided in Rabiebna v. Higher Educational Aids Board (HEAB), 2026 WI 20 (June 18, 2026).
“We hold that [the] 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,” wrote Justice Annette Kingsland Ziegler in the majority opinion joined by Justice Rebecca Grassl Bradley, Justice Brian K. Hagedorn, and Janet C. Protasiewicz.
“Just like the plan struck down in” Gratz v. Bollinger, 539 U.S. 244 (2003), “the plan here ‘do[es] not provide for a meaningful individualized review of applicants,’ but instead relies on racial classifications in a ‘nonindividualized, mechanical’ way,’” Justice Ziegler wrote.
Jay D. Jerde, Mitchell Hamline 2006, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.
Justice Rebecca Frank Dallet concurred, joined by Chief Justice Jill J. Karofsky and Justice Susan M. Crawford.
“[T]he record does not support the [HEAB’s] assertions that there is a real-world problem with dropout rates among the eligible students at Wisconsin’s private and technical colleges, or that race, national origin, and alienage cannot be separated from that underlying problem,” Justice Dallet wrote in order “to explain this narrow and dispositive conclusion.”
Chief Justice Karofsky also wrote a concurrence, joined by Justice Crawford, that focused “on the historical and persistent reality that educational opportunities in Wisconsin have not been and are not currently equal.
“As such, I believe a program like [Wis. Stat. section 39.44] could be constitutional under an interpretation of the Fourteenth Amendment that honors its purpose – to combat oppression.”
Diversity in Higher Education
The legislature enacted the Minority Undergraduate Retention Grant Program in 1985 and expanded it in 1987. The program seeks to support students who are Black, American Indian, Hispanic, or from Laos, Vietnam, or Cambodia.
Funds for the program went equally to state technical colleges and private colleges to award to students based on “financial need” after the freshman year.
Several taxpayers sought to enjoin the HEAB from administering the program. They argued the program “violates the Equal Protection Clause of the Fourteenth Amendment by impermissibly limiting eligibility to students who belong to a specified racial, national origin, ancestry, or alienage-based groups.”
Relying on Grutter v. Bollinger, 539 U.S. 306 (2003), Jefferson County Circuit Court upheld the program.
While the case was pending appeal at the Wisconsin Court of Appeals, the U.S. Supreme Court issued Students for Fair Admissions, Inc. (SFFA) v. President & Fellows of Harvard College, 600 U.S. 181 (2023), which changed the standards for race-based admissions.
Based on the new precedent, the court of appeals reversed because “attaining diversity in higher education is no longer a compelling interest, and that the Grant Program was not narrowly tailored to fulfill those ends.”
The “HEAB appealed asserting that the legislature has a compelling interest in equalizing education opportunities.”
‘Treated Equally’
The Fourteenth Amendment prohibits a state from denying “to any person within its jurisdiction the equal protection of its laws.”
“That requires all individuals to be treated equally without regard to one’s race, ancestry, origin, or ethnicity,” the majority stated, “except in the most extraordinary instances.”
Under SFFA, “[t]he Constitution requires that every person ‘must be treated based on his or her experiences as an individual – not on the basis of race.’”
Evaluating the program’s constitutionality requires submitting it to strict scrutiny. Does “the racial classification … ‘further compelling governmental interests,’” and is it “‘narrowly tailored’”?
A legislature “must identify the ends it is seeking to achieve,” the majority explained.
“Whether by previous government-sanctioned discrimination, regulatory discrimination, or legislatively demonstrated statistical findings, the government must articulate its objective in enacting the race-based regime.”
Empirical data is required, something quantifiable or concrete, not “amorphous.”
The HEAB argued that the program serves a compelling interest for groups of students “who otherwise fail” to stay in college “at disproportionately high rates … promoting diversity of student bodies by helping minority students with financial need remain enrolled in school and graduate,” the majority summarized.
The program “mitigate[s] the disparity between graduation rates for Black-American, Hispanic, and American-Indian students and students from nonpreferred classes in Wisconsin’s private and technical colleges,” the majority described the HEAB’s argument after SFFA.
The legislature used no such data to justify creating the program.
One study relied on by the legislature focused on the state’s four-year, public universities. “No evaluation of minority students in private schools was made at that time,” the majority said, agreeing with the court of appeals.
For the legislative choice to be narrowly tailored, “the government must demonstrate that race-neutral alternatives cannot accomplish the same ends,” the majority explained.
The government may further diversity in higher education by using “race as one factor of many, but must ‘remain flexible enough to ensure that each applicant is evaluated as an individual and not in the way that makes an applicant’s race or ethnicity the defining feature of his or her application.’”
“Because the Grant Program’s statute uses race as the dispositive factor for either of the HEAB’s asserted interests, neither survives,” the majority held.
Justice Dallet: No Evidence in the Record
At no time at adoption in 1985, amendment in 1987, or in subsequent budgets, “is there evidence in the record that students in the eligible groups were (or still are) dropping out of Wisconsin’s private and technical colleges at disproportionately high rates,” Justice Dallet wrote in her concurrence.
“This conclusion is dispositive,” Justice Dallet explained.
“All that needs to be said is that the [HEAB] failed to meet its burden of establishing a compelling state interest in this case.”
The Equal Protection Clause has lacked the benefit of U.S. Supreme Court analysis of the Fourteenth Amendment’s “history and tradition,” Dallet continued.
The same Congress that enacted the amendment also “enacted numerous race-conscious policies,” Justice Dallet explained, “which were designed to ‘fulfill the Amendment’s promise of equality.’”
In contrast, Justice Dallet pointed out, the U.S. Supreme Court has “treated the Clause as a rule that entrenches inequality by prohibiting legislation designed to remedy it.”
“[W]hile the [HEAB] here failed to demonstrate a compelling interest,” Justice Dallet concluded, “the result may be different for other laws with greater factual support.”
Chief Justice Karofsky: Inequalities
“[T]he Fourteenth Amendment was enacted,” Chief Justice Karofsky emphasized in her concurrence, “to combat a history of racism, was never color blind, and should not be applied in a color-blind manner today.”
“From the time it was ratified, forces worked to undermine the Fourteenth Amendment, and those forces succeeded in creating a racist retrenchment that has continued to the present,” Chief Justice Karofsky wrote.
Although “[e]very Wisconsinite up to the age of 20 has the constitutional guarantee of equal educational opportunity” under Wis. Const. article X, section 3, Chief Justice Karofsky identified “segregated and unequal educational opportunities.”
For example, the Milwaukee Public School System has more than 90% minority enrollment, Chief Justice Karofsky said. “Minority students in Milwaukee are as likely to attend a highly segregated school now as they were in 1965.”
Additional evidence cited by Chief Justice Karofsky leads to the conclusion that “[c]learly many students of color in Wisconsin leave high school and enter college with distinct disadvantages.
“That disparity is not about statistics or mere correlation. Rather, that disparity is about a reality where past state-sponsored racism continues to affect educational opportunities.”
“At bottom, if we truly want to return to the promise of the Fourteenth Amendment, we must first acknowledge inequalities based on race,” Chief Justice Karofsky concluded.
“Then, we must be willing to accept that the ‘fault and responsibility to remedy’ these inequalities lies ‘with the government and society that perpetuated’ them.”
This article was originally published on the State Bar of Wisconsin’s Wisbar Court Review blog, which covers case decisions and other developments in the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit. To contribute to this blog, contact Joe Forward.