Liberal members of the Wisconsin Supreme Court said they were “shocked” at the ramifications of the right-wing Wisconsin Institute for Law & Liberty’s arguments against a grant program meant to help prevent minority students from dropping out of technical college. 

The Court on Wednesday held oral arguments in a case that began in a 2021 lawsuit in Jefferson County Circuit Court. The suit alleges that the state’s Minority Undergraduate Retention Grant program, administered by the Higher Education Aids Board, unlawfully discriminates based on race. 

The program, established in the 1980s, provides small-dollar grants to Black, Native American and Hispanic students, as well as Southeast Asians who came to the U.S. from Laos, Cambodia or Vietnam after 1975. On average, members of these groups drop out of school or fail to graduate at substantially higher rates than their peers, the state has argued. 

The program has been a frequent target of Wisconsin Republicans in recent years — especially after the U.S. Supreme Court’s 2023 decision in Students for Fair Admissions v. Harvard, which ended the legality of affirmative action in college admissions. 

The Wisconsin Examiner previously reported that money through the program has largely been used to assist Black students at Milwaukee Area Technical College. 

In a decision last year, the 2nd District Court of Appeals sided with WILL and the taxpayers it is representing, declaring the program unconstitutional. Wisconsin Attorney General Josh Kaul appealed the decision and in November the Supreme Court agreed to hear the case. 

WILL attorney Luke Berg argued Wednesday that any program that targets specific racial groups is unconstitutional — regardless of whether those groups face statistical disparities. 

“I think the worst form of discrimination is discrimination under the law, when the law treats individuals differently based on their race,” Berg said. “I’m not asking the Court to ignore that there are disparities in statistics, and I think we should all be concerned about that. But there are poor white students, there are poor Asian students, there are poor Afghani students, there are poor Palestinian students, there are poor Egyptian students.” 

“It cannot have explicit race discrimination under the law,” he continued later. “It can target racially neutral criteria like poverty, and it can solve those disparities indirectly. Give the scholarship to every student that needs it. If there are more poor Black students, more of them will get that scholarship.”

Several of the Court’s left-leaning justices pushed back on Berg’s comments, questioning how ignoring race-based statistical gaps achieves the 14th Amendment’s promise of equal protection. Justice Jill Karofsky told him, “your argument basically asks us to stick our heads in the sand.” 

Justice Rebecca Dallet noted that in Wisconsin, Black mothers and babies face much higher rates of health issues and under Berg’s legal construction, the state couldn’t do anything to specifically target that problem. 

“If the purpose is to help Black babies live who are not living at the same rate as white babies. How would they do that without mentioning the word Black?” Dallet said.

Berg responded that the state could pass a program that applies to “all babies” because “there are some white babies in the world who might need that program, too, and so you would make the program available to all.” 

“That is shocking, and if that’s what our U.S. Supreme Court wants to say, that is shocking, but I don’t think that that’s what they said in SFFA,” Dallet responded. 

Charlotte Gibson, the Department of Justice attorney arguing on behalf of the HEAB, called the appeals court’s decision “radical” saying that it went further than the U.S. Supreme Court’s ruling to end affirmative action. 

“The court of appeals decision was radical,” Gibson said. “I’m not aware of any court in the country that has come up with a ban this categorical that would impact things like medical research that’s targeted a particular racial group that’s suffering from specific health outcomes. But … that’s exactly what the rule of law they’re looking for would do.”

Berg opened his arguments to the Court saying he believed the justices should dismiss the case and accept the appeals court’s decision. He argued that if the Court sides with the state, an appeal will immediately be filed in federal court. 

“If this court reverses, either on standing or the merits, the next thing that will happen is someone will file this case in federal court, us or somebody else,” Berg said. “It may be a race to the courthouse, because this is, like I said, the lowest of low hanging fruit in terms of federal claims … So what will happen is the taxpayers will pay for this court’s time. The taxpayers will pay for their time to litigate the case again for three to four years. The taxpayers will pay the time [of] federal district court counsel.”

Justices Susan Crawford, Janet Protasiewicz and Dallet objected, saying they took his comments as a “threat.” 

“That is such an inappropriate argument. It is so inappropriate and disrespectful to the state and their program that they are here to argue in front of us, it’s basically a threat to us,” Dallet said.

A bill to regulate Wisconsin's cottage food industry has drawn opposition from home bakers. (Photo courtesy of Becca Barth)

A Wisconsin Senate committee held a public hearing Tuesday on legislation that would create a regulatory system for the cottage food industry in Wisconsin. 

In the hearing of the Committee on Transportation and Local Government, representatives of restaurants, commercial bakeries and grocery stores supported the proposal arguing that the bill would treat all food sellers equally, while the home bakers who would be affected by the bill complained that it would institute harsh income restrictions while subjecting them to requirements that aren’t relevant to the specifics of selling food out of a home kitchen. 

Authored by Sen. Eric Wimberger (R-Oconto), the bill has largely Republican support but Milwaukee-area Democratic Reps. Russell Goodwin and Sylvia Ortiz-Velez have signed on as co-sponsors. 

Under the bill, cottage food producers would be required to register with the state Department of Agriculture, Trade and Consumer Protection. As part of that registration, people would need to provide a list of all the foods they sell and an ingredient list for each item. Any producer that earns between $10,000 and $40,000 in revenue from their home business would be subject to inspections by DATCP. 

Anyone who makes more than $40,000 in revenue would no longer be considered a cottage food producer and would be required to obtain work space in a commercial kitchen. 

The cottage food industry in Wisconsin was allowed to grow after a 2017 lawsuit struck down a state law banning the sale of home baked goods. Since then, the state has operated with just the court precedent guiding the industry. 

Throughout the hearing, commercial industry representatives pushed for the passage of the bill as it’s written. Lobbying records show that the Wisconsin Bakers Association, Wisconsin Restaurants Association and Wisconsin Grocers Association have supported the bill. 

“You have created these rules for me, and I get to be surprise inspected and tested on them to ensure consumer food safety,” Chrissy Meisner, owner of a bakery in Bloomer and member of the Wisconsin Bakers Association, said. “It is clear, even in my small town, that your honor system of them following the rules doesn’t work. There seems to be a need for the same oversight you require of me to sell bread and cookies applied to everyone.”

While much of the testimony in favor of the bill focused on food safety issues, some of those in favor also said they were concerned about competition from home producers. 

“There’s only so much food that can be sold into a community,” Susan Quam, executive vice president of the Wisconsin Restaurant Association, said. “And everyone needs to fight for their share of those sales, whether it’s the grocery store, the local bakery, the restaurant or the cottage food baker. However, the first three are regulated, licensed, and have a lot of different and additional requirements that are put upon them to get that same very low profit margin.”

Home producers at the hearing said they would welcome regulation to tame their industry’s current wild west landscape, just not the regulations under the bill as currently written. The Wisconsin Farmers Union and the Wisconsin Institute for Law & Liberty have both lobbied against the bill. 

The 2017 lawsuit that helped the industry bloom was litigated by the Institute for Justice, a national non-profit law firm focused on civil liberties. Ellen Hamlett, the organization’s activism manager, said she believes there’s “been a lot of industry pressure” to draft the current version of the bill. 

“Wisconsin’s cottage food laws are overdue for reform,” Hamlett said. “It is very important to note that the way that this bill is structured will jeopardize the living of many cottage food producers.”

Jobea Murray, president of the Wisconsin Cottage Food Association, said that the bill represents a huge administrative burden for both the home producers and for DATCP, which will not receive any additional funding for implementing the registration and inspection requirements under the bill. She also said the food safety certifications required under the bill are specific to restaurant-like settings, which won’t help make home produced products safer. 

“So we want to work with you to get this right,” Murray said. “[The bill] is a great starting point, but it needs significant changes to truly support Wisconsin’s cottage food economy.”

A lot of the opposition to the bill was centered around the $40,000 revenue cap. Several speakers noted that most states that allow the sale of cottage foods have no cap or else set their caps much higher. Iowa and Illinois do not set a cap on their cottage food sales while Minnesota’s revenue cap is $78,000.

Colbey Decker, a WILL client who alleges her white son who struggles with dyslexia faced racial discrimination in the Green Bay Area School District, testified in favor of a proposed amendment to the state constitution outlawing government programs that promote diversity, equity and inclusion. (Photo by Baylor Spears/Wisconsin Examiner)

Two constitutional amendment proposals that could be on Wisconsinites’ ballots in November received public hearings on Tuesday, including one to eliminate diversity, equity and inclusion (DEI) programs from state and local governments and one to bar the governor from issuing partial vetoes that increase taxes. 

Constitutional amendment proposals in Wisconsin must pass the state Legislature in two consecutive sessions and receive majority approval from voters to become law. Each proposal is on its second consideration, meaning if they pass the Senate and Assembly, each would appear on voters’ ballots in November alongside a slate of consequential races including for governor, Congress and the state Legislature.

One of the proposed constitutional amendments, SJR 94, takes aim at DEI programs throughout state and local government in Wisconsin. Republicans have been targeting DEI programs for years and have at times found success, including when they elicited concessions from the University of Wisconsin system in 2023. 

If the proposal passed the Senate and Assembly, voters will see on their ballots the question “Shall section 27 of article I of the constitution be created to prohibit governmental entities in the state from discriminating against, or granting preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in public employment, public education, public contracting, or public administration?”

Sen. Steve Nass (R-Whitewater) told the Senate Licensing, Regulatory Reform, State and Federal Affairs Committee that the proposal would “ensure that we hire, promote, select, and admit people to our unit, public universities, schools and government agencies the same way we choose people for our Olympic team, military and sports teams — through merit, character, ability and hard work without regard to race, sex color, ethnicity or other immutable characteristics.” 

Sen. Dora Drake (D-Milwaukee) asked the authors of the proposal how they define “preferential treatment” and whether they know about the types of programs the amendment would eliminate.

“I don’t know how deep it is in hiring, contracting… I would say if the criteria for making your choice deals with race or sex, then that’s not appropriate,” Rep. Dave Murphy (R-Hortonville) said.

Drake brought up the state’s Supplier Diversity Program, which was established in the 1980s and certifies minority-owned, service-disabled veteran-owned and woman-owned businesses to provide better opportunities for them to do business with the state of Wisconsin. 

“Everyone should have access to opportunity. The reality is that our state historically has not shown that. That [program] was created because we have minority-owned businesses that were seeking opportunities for state contracting and they weren’t getting them, and that was based on relationships, it was based on race… and so this was implemented as a protective measure to ensure that people weren’t being discriminated against,” Drake said. “We’re pushing this forward when we still haven’t addressed what’s happening. If we’re doing this based on merit, then I would argue that there’s plenty of different minority-owned businesses that would be more than qualified, but they don’t get them, and you have to ask why.”

“They may be qualified, but are they the most qualified?” asked Sen. Chris Kapenga (R-Delafield). “And what this does is it takes away… the sex, the gender all of those items that the U.S. Constitution lays out as this is something that you can’t discriminate against. If you discriminate against a male because he’s a male, that’s still discrimination.” 

Dan Lennington, the Wisconsin Institute for Law and Liberty’s managing vice president and deputy counsel, said the bill would help to ensure that Wisconsin is “color blind.”

Lennington leads the conservative legal organization “Equality Under the Law Program,” and spoke to the number of lawsuits they’ve engaged in on the issue.

“We sued [former President] Joe Biden 12 times. We have five lawsuits pending against President [Donald] Trump right now based on race discrimination. We have a lot of things in the pipeline against the state of Wisconsin… We’d love to sue over the Minority Supplier Program. We haven’t gotten to it yet” Lennington said. “A constitutional amendment would, especially a new attorney general, would wipe all this clean and enforce the law as it’s already written, and would really help bring this to an abrupt end. Otherwise, there’s going to be decades more of this litigation.” 

Colbey Decker, a WILL client who alleges her white son who struggles with dyslexia faced racial discrimination in the Green Bay Area School District, testified in favor of the proposed amendment. The Trump administration launched an investigation into the school district over the allegations last year. 

Decker told the committee that her son wasn’t able to receive reading services because he is white, saying that she found that the school’s “success plan” included a policy related to “prioritizing resources to First Nations, Black and Hispanic students.”

“When an educational system’s moral compass is calibrated by a child’s skin color, the system has fundamentally failed. Our family’s story has forever changed after witnessing firsthand the casual callousness of sorting my son, color-coding him and then deprioritizing him based on his race,” Decker said. “The brutal reality of DEI is that it robs all children of the dignity and respect of individuality.” 

Curtailing executive partial veto power

SJR 116 would limit the governor’s partial veto power by prohibiting any vetoes from “creating or increasing or authorizing the creation or increase of any tax or fee.”

Lawmakers introduced the proposal last session in response to Gov. Tony Evers’ partial veto on the last state budget that extended school revenue increases for an additional 400 years. He did so by striking two digits and a dash from the years to extend the annual increases through 2425. The action was upheld by the state Supreme Court in April 2025. 

Rep. Amanda Nedweski (R-Pleasant Prairie) said the school revenue increases that are resulting from the partial veto are “unaffordable” and “unsustainable” for Wisconsinites.

“No governor, Republican or Democrat, should be able to single-handedly raise taxes on Wisconsin families with the stroke of his pen. The governor is not a king,” Nedweski said. “This constitutional amendment reigns in that power, restores the proper balance between the branches of government and ensures taxpayers are protected from runaway tax increases in the future.”

A recent Wisconsin Policy Forum report found that Wisconsin property taxpayers’ December bills included the highest increase since 2018 and warned property taxpayers could see similar increases to their property taxes in the future.

“We did all get a kick in the pants with property taxes this year… we’re gonna get another wack in 2026 in December,” Nass said during the hearing. 

Drake said the bill appeared to be a “grab for power.” 

Kapenga, one of the proposal authors, pushed back on the comment, saying if he were governor, he would sign a bill from Drake eliminating the governor’s ability to levy such a veto. 

“I do not like the power that the governor has in this state, regardless of who it is,” Kapenga said. “The power of the people should be vested in the Legislature, not in the executive branch.”

The question voters would see is: “Shall section 10 (1) (c) of article V of the constitution be amended to prohibit the governor, in exercising his or her partial veto authority, from creating or increasing or authorizing the creation or increase of any tax or fee?”

Constitutional amendments have been used to limit the partial veto power in a couple other scenarios, including in 1990 when voters approved the prohibition of the “Vanna White” veto, or eliminating single letters within words, and in 2008, when voters approved, eliminating the “Frankenstein veto” — or the ability for governors to create new sentences by combining parts of two or more sentences.