Questions and Answers1
1. What are the required policies under Wisconsin's Pupil Nondiscrimination law?
Every school district must adopt and adhere to a written pupil nondiscrimination policy that prohibits discrimination against pupils on the basis of any of the following: sex, race, religion, national origin (including limited-English proficiency), ancestry, creed, pregnancy, marital or parental status, sexual orientation or physical, mental, emotional or learning disability. The policy must apply to all areas of school operations, including school sponsored programs and activities.
Section PI 9.03, Wis. Admin. Code illustrates the scope and breadth of the required district policies by identifying many of the areas subject to the nondiscrimination policy. They include admission to classes or programs, rules of conduct and discipline, selection of instructional and library media materials, and facilities, among others. However, the pupil nondiscrimination statute applies to all aspects of district operations and programs. Therefore, the listing in PI 9.03 should be regarded as illustrative and not exhaustive. What the law requires is that the pupil nondiscrimination policy or policies that the district adopts apply to all areas.
2. What are the procedural requirements under Wisconsin's Pupil Nondiscrimination Law?
The district must designate an employee to receive complaints of pupil discrimination and adopt a written procedure that addresses receiving, investigating and resolving complaints of pupil discrimination. The procedure must provide for written acknowledgement of the complaint within 45 days and a written final resolution/decision of the complaint in 90 days. The written decision must inform the complainant of the right to appeal a negative determination to the state superintendent and the procedures for making an appeal. The written decision must also inform the complainant that the appeal must be made within 30 days of the district's final decision.
3. What are the notice requirements under Wisconsin's Pupil Nondiscrimination Law?
The district must annually publish a class 1 legal notice of its pupil nondiscrimination policies and the name and address of the employee designated to receive complaints of pupil discrimination. A class 1 legal notice requires at least one publication in a newspaper likely to give notice in the area or to the person affected. Secs. 985.02, 985.07, Stats.
In addition, a pupil nondiscrimination statement must be included in pupil and staff handbooks, course selection handbooks, and other published material describing school activities and opportunities. The district's complete pupil discrimination complaint procedure, including the designated employee's name, address and phone number, must be included in pupil and staff handbooks.
School districts may not award or assist in the awarding of scholarships in a way that discriminates on the basis of sex, race, religion, national origin, ancestry, creed, pregnancy, marital or parental status, sexual orientation, or physical, mental, emotional, or learning disability. Sec. 118.13, Stats.; See also, Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex, Title VI of Civil Rights Act 0f 1965, which prohibits discrimination on the basis of race, color, and national origin; and Section 504 of the Rehabilitation Act of 1973, which prohibits discrimination on the basis of disability.
School districts may administer sex-restrictive scholarships or financial aid established through wills, trusts, bequests and other legal instruments if the overall effect is not discriminatory. 34 CFR § 106.37. To determine if the overall effect is nondiscriminatory, a school district must first select students on the basis of nondiscriminatory criteria. The school district may then award all scholarships and aid, including sex-restricted scholarships. However, in doing so, none of the selected students can be denied aid or scholarships because some of the awards were originally designated for persons of the other sex. 34 CFR § 106.37 (b)(2). A district may also choose to not administer or assist in administering sex-restrict scholarships.
Athletic scholarships must be available for both males and females in proportion to the number of males and females participating in the interscholastic athletic programs. 34 CFR § 106.37
Scholarships or financial aid may be awarded to disadvantaged students even if they disproportionately benefit minority students, as long as they are not awarded on the basis of race or national origin. Colleges may award scholarships based on race and/or national origin if they are awarded under Federal Statutes that authorize the use of race or national origin. Colleges can award scholarships based on race or national origin if it is necessary to remedy the effects of its past discrimination or if the scholarship is narrowly tailored to create a diverse student population at that particular college or university. However, the scholarship programs cannot unduly restrict those students who are not eligible from access to financial aid. The United States Department of Education, Policy Guidance, Fed. Register Vol. 59, No. 36 (Wednesday, February 23, 1994)
1 The answers given are not intended to serve as legal advice and cannot substitute for legal advice or guidance in specific cases.