Wisconsin must stop awarding small-dollar grants to help deter students from dropping out of college under a program available only to specific racial and ethnic groups, the Wisconsin Supreme Court ruled Thursday.

Although unanimous in part, the opinion also included concurrences by three of the Court’s liberal justices. They sharply critiqued a U.S. Supreme Court opinion that set the stage for the ruling, while acknowledging that its precedent required them to follow its contours.

At issue is the Minority Undergraduate Retention Grant Program operated by the state Higher Educational Aids Board. The program, established in 1985, provides grants from $250 to $2,500 for students who are Black, Hispanic, Native American and for immigrants or descendants of immigrants from Laos, Vietnam or Cambodia following the end of the Vietnam War in 1975.

Eligible recipients are students at Wisconsin’s technical colleges, private universities and tribal colleges. The program and a companion program for University of Wisconsin students were both created “to reduce the financial burden which causes many minority students to leave school,” then-Gov. Tony Earl wrote in the 1985 budget proposal that led to their creation.

A 2023 Wisconsin Examiner analysis found that the money in the program largely went to Black students at Milwaukee Area Technical College who got training and jobs in building and construction and other trades.

In a February 2025 ruling the Wisconsin 2nd District Court of Appeals sided with the Wisconsin Institute for Law & Liberty, overturning a lower court and ruling that the retention grant program violates the Equal Protection Clause in the U.S. Constitution’s 14th Amendment. WILL filed the lawsuit with a group of families.

The appeals judges cited a U.S. Supreme Court ruling, Students for Fair Admissions Inc. v. President & Fellows of Harvard College, issued in June 2023. That opinion, referred to as SFFA for short, held that the consideration of race in college admission policies at Harvard and the University of North Carolina “cannot be reconciled with the guarantees of the Equal Protection Clause” in the 14th Amendment to the U.S. Constitution.

Thursday’s opinion, written by Justice Annette Ziegler, affirmed the appeals court decision and cited the SFFA U.S. Supreme Court opinion.

The Higher Educational Aids Board argued that the retention grants were needed to help maintain student diversity.

Ziegler wrote, however, that when trying to ensure a diverse student body, race cannot be a defining factor. Rather, it can be one of  many factors in a flexible process that evaluates each applicant as individuals, she wrote.

“Under the Grant Program, race is not but one factor in a ‘highly individualized, holistic review.’ Race is the only factor,” Ziegler wrote. “Either a student is, or is not, a member of the preferred racial group.”

When the Wisconsin law that established the grant program was enacted 41 years ago, “the record does not reflect that Wisconsin’s technical or private colleges needed the legislature to enact a race-, national origin-, ancestry-, or alienage-based remedy in the 1980s,” Ziegler wrote. Lacking such evidence, “we cannot assume that the legislature enacted [the program] to address an unidentified retention and graduation problem at private and technical colleges.”

Ziegler was joined in the main opinion by Justices Rebecca Bradley, Brian Hagedorn and Janet Protasiewicz.

In a concurrence, Chief Justice Jill Karofsky acknowledged that “I am bound” by the 2023 SFFA opinion and that the grant program cannot survive as a consequence. But Karofsky described the SFFA opinion as part of a broader trend that was turning the 14th Amendment in the opposite direction from its original intent.

“Rather than turn a blind-eye to the scourge of racism and slavery, the Fourteenth Amendment’s Equal Protection Clause faces it head-on by demanding change and requiring equal protection of the laws for all people. Inherent in its language is a recognition of the wrongs of prejudice, discrimination, and injustice,” Karofsky wrote.

“Why, instead of wielding the Equal Protection Clause as a sword against racism, do we employ it to shield against the promise of equality for all?” Karofsky asked rhetorically. “The answer appears to be that we have failed to fully recognize how societal and governmental practices have long continued to enforce a preference for White Americans and to burden Black Americans and those of other disadvantaged races or backgrounds.”

She was joined in the concurrence by Justice Susan Crawford.

Citing arguments made by dissenting justices in the 2023 SFFA opinion, Karofsky wrote that in Wisconsin, disparities between students of color and white students when they enter college “[are] about a reality where past state-sponsored racism continues to affect educational opportunities, and systemic racism continues to rob non-White people of equal educational opportunities. And as difficult and uncomfortable as that may be for some to acknowledge, it is the truth, and it cannot and should not be ignored.”

In the second concurrence, Justice Rebecca Dallet wrote that under current U.S. Supreme Court rulings that the Wisconsin Court must follow, the 14th Amendment Equal Protection Clause now imposes “substantial barriers to the adoption of race-conscious laws — even ones that seek to remedy the deep, structural inequalities in our society.” Karofsky and Crawford joined her concurrence.

The Higher Educational Aids Board’s defense of the grant program failed because there was “no evidence in the record establishing a problem with retention at Wisconsin’s private and technical colleges, or that race cannot be separated from that problem,” Dallet wrote.

Nevertheless, she suggested that it might yet be possible to redirect the Court with the production of “greater factual support” in the future.

State lawmakers react

Thursday’s ruling drew contrasting reactions from Wisconsin lawmakers.

Sen. Dora Drake (D-Milwaukee), chair of the Wisconsin Legislative Black Caucus, criticized the decision for applying the U.S. Supreme Court ruling to a different set of circumstances.

“That federal case was based on admissions while this program is about a student retention enacted by the state legislature and funded since 1985,” Drake said in a statement. The state Supreme Court justices “are setting a dangerous precedent by applying this federal ruling to distinctly different programs.”

Drake said she was a recipient of the grant when she attended Marquette University as a first-generation college graduate. She said she would introduce new legislation in the next two-year legislative session to replace the program with one that would support students based on income and zip code. “Disadvantaged communities need more resources, not fewer,” she said. “We can’t continue to make the same mistakes like our nation did post reconstruction and Jim Crow if we do we will never achieve true equity in our democracy.”

Sen. Eric Wimberger (R-Gillett) praised the ruling in a statement. Wimberger authored a bill that would have changed the retention grant and several other programs, redefining them to apply to students who were identified as “disadvantaged” while excluding race, ethnicity, national origin, gender, sexual orientation or religion, or to “a student’s identity as a member of a group without regard to individual qualities.” The measure passed the Legislature on party-line votes and was vetoed by Gov. Tony Evers.

“Today, the state Supreme Court unanimously affirmed the policy outcome of my bill,” Wimberger said. “Giving benefits based solely on race presumes someone has individual personal characteristics simply because they belong to a race category. That is stereotyping and racism at their plainest and simplest.”

Wimberger said that there are “other state programs that give benefits based on race” and that he would “continue to fight against those policies and pursue equality under the law.”

This report has been updated with statements from Wisconsin lawmakers. 

The U.S. Supreme Court on Monday appeared likely to allow law enforcement to continue seeking warrants for the location history of cellphones near crime scenes, even as the justices wrestled with how far the government must go to protect Americans’ privacy.

Some of the justices appeared to be searching for a middle ground during oral arguments in a case out of Virginia challenging what is known as a geofence warrant that was used to catch a bank robber. Several justices asked skeptical questions of both sides, though no one voiced explicit support for prohibiting such warrants altogether.

As smartphones have become ubiquitous, along with apps that track users’ movements, the high court is once again wading into how the 4th Amendment to the U.S. Constitution, which prohibits unreasonable searches and seizures, applies in the digital era. The justices’ decision, of tremendous interest to state attorneys general, will shape how easy or difficult it is for investigators to sweep up location data.

Over the past two decades, geofence warrants have become a major tool of law enforcement. At a basic level, they allow police to identify phones within a geographic area for a certain period of time. 

The data can be tremendously valuable to investigators, offering a way to develop suspects in crimes where their identities aren’t otherwise known. Underscoring their importance, a broad bipartisan coalition of states has urged the justices to uphold the warrants.

But civil liberties advocates say geofence warrants ensnare people in digital dragnets, handing the government data on anyone who happens to be in the wrong place at the wrong time. They argue that accessing data on anyone within a certain area — the geofence — amounts to a general warrant prohibited by the Constitution.

Summing up the high court’s uncertainty in Monday’s arguments, Justice Amy Coney Barrett told U.S. Deputy Solicitor General Eric Feigin, who was arguing in favor of law enforcement access to location data, that while he had described his opponent’s position as maximalist, “there’s a risk of the government’s position being maximalist the other way.”

“I was just going to say this seems very complicated from the user’s point of view, frankly,” Barrett said at a different portion of the argument.

Credit union robbery

The case before the Supreme Court, Chatrie v. United States, arises from a 2019 robbery of a federal credit union in Midlothian, Virginia. Okello Chatrie was convicted of armed robbery after surveillance footage showed the robber using a cellphone. A detective then obtained a geofence warrant directed at Google for devices within 150 meters of the credit union within an hour of the robbery.

Google initially provided anonymized data in response to the warrant. The detective then requested and received additional location data on nine users. Finally, the detective received de-anonymized information on three users, without obtaining an additional warrant.

While Google has since changed the way it stores location history data to limit geofence warrants, other apps and tech firms collect the data. Lawyers for Chatrie argue that geofence warrants open the door to the authorities requesting information on everyone at a sensitive location — perhaps an abortion clinic or a political convention — at a particular time.

“The warrant authorized the government to direct Google to search every single person’s account to find those people who were within the geofence. That is a general warrant,” Adam Unikowsky, a lawyer for Chatrie, told the court.

4th Amendment debate

The Supreme Court’s last major decision on 4th Amendment rights and phones came in 2018, when the justices ruled that law enforcement generally needs a warrant for location data derived from when phones connect to a cell site. That data is generated by just having a cellphone, and the justices found that a phone is now a basic element of participating in society.

By contrast, the Trump administration argues location history data isn’t protected by the 4th Amendment because users voluntarily share it with Google and other tech firms by turning on location tracking on their phones. Because the information was turned over with their consent, users have no reasonable expectation of privacy.

“Petitioner here is asking for an unprecedented transformation of the 4th Amendment into an impregnable fortress around records of his public movements that he affirmatively consented to allow Google to create, maintain and use,” Feigin said.

Justice Sonia Sotomayor, one of the court’s three liberal justices, argued that if the government can access location data without a warrant because Chatrie consented to sharing it with Google, then the government could obtain all sorts of other data shared with the company, such as photos and calendar entries.

“If this is consent, that means the government can seek those documents for any reason, not just the commission of a crime — or no reason, correct?” Sotomayor said.

“Correct. It would not be a search, so no search warrant would be required,” Unikowsky replied.

Red and blue states back geofence warrants

Thirty-one states and the District of Columbia have filed a court brief arguing that geofence warrants can be more precise than many traditional investigative methods when supported by probable cause and appropriately tailored. In the brief, they urged the justices not to prohibit geofence warrants altogether.

State attorneys general across the political spectrum signed on to the brief. They include Alabama, Alaska, Arkansas, Arizona, Georgia, Illinois, Indiana, Iowa, Kansas, Louisiana, Maryland, Maine, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Jersey, New Mexico, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah and Washington.

Geofence warrants can generate critical leads when the perpetrators of crimes are otherwise unknown, they wrote. When suspects are unknown but the suspected wrongdoing is linked to a specific place and time, location data provides one of the narrowest available tools for finding leads, the brief argues.

“This Court should make clear that the Constitution does not categorically ban those investigative methods,” the states’ brief reads.

Google brief

In a court brief, Google said geofence warrants result in invasive searches that are overbroad. Geofence searches, by their nature, have a high risk of sometimes sweeping in thousands of innocent users, the company said.

Even small geographic areas covering short periods of time can include hundreds of thousands of people, Google argued. Geofence parameters set by law enforcement often cover more ground than the location of the crime, with private homes, apartments, government buildings, hotels, places of worship and busy roads all included.

Lawyers for Google wrote that the company takes no position on whether the warrant in the Chatrie case complies with the 4th Amendment.

“But Google firmly believes that, based on the private nature of Location History data, law enforcement was required to obtain a warrant to access that data,” the brief says.

Orin Kerr, a Stanford Law School professor and one of the nation’s foremost experts on the 4th Amendment, predicted after the oral argument that the justices would likely rule that geofence warrants can be constitutionally drafted. 

However, he was uncertain whether the court would rule on whether the geofence search that identified Chatrie’s phone was a search under the 4th Amendment.

“They’ll probably say that geofence warrants have to be limited in time and space,” Kerr wrote on social media.