Mukwonago’s Legal Argument Does Not Make the Grade by Thomas Martin Sobottke


mUKWONAGO ONE

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The Mukwonago Area School’s legal position relative to ACT 250, the law that makes it possible to eliminate race-based, discrimination toward Native-Americans via team mascots, nicknames and logos is that the law is unconstitutional. That position, propounded by Samuel C. Hall Jr., the lawyer from Crivello Carlson S.C., who is representing the School District in the controversy over that District’s use of the “Indian” nickname and logo, simply does not make the grade legally or historically.

This is odd since Hall is an expert specializing in civil rights litigation, upholding the rights of long historically discriminated against racial minorities, and is himself a member of the nationally based Native-American Bar Association.

This legal heavyweight has advised the District to take the position that the law in this area is unconstitutional as it presents an insufficient legal remedy for any school district accused or identified as having a race-based, discriminatory set of mascots, symbols and nicknames.

Hall recently published an editorial in both the Waukesha Freeman and the Wisconsin Journal- Sentinel outlining the District’s and State Legislature’s current position concerning ACT 250 and argues the District was unconstitutionally denied legal due process.

First we are told that Mr. Sherman, the DPI official who conducted the hearing prevented the School District from questioning the complainant at the time, a senior at Mukwonago High School and a Shawnee man. As a witness to the hearing itself, Mr. Olson’s line of questioning was to be the student’s high school disciplinary record that would by implication show he was a disobedient student and would impeach the student’s legal credibility. Olson was then the District’s chief lawyer.

Mr. Sherman on that day, 27 August 2010, correspondingly refused to allow proponents of the complainant’s point of view to present either his written complaint in central argument against the District, nor to have witnesses testifying to a previously adjudicated case from the 1990’s involving a then Native-American employee of the District and her son.

What Sherman wished examined was whether or not the “Indian” nickname and logo were based upon a race of people, and whether or not it could be demonstrated that these things produced either harassment or plainly stereotyped the oppressed class or group of indigenous people. Sherman was legally tasked with determining if what Mukwonago had then and has now, promotes racial stereotyping, or is discriminatory. Candidly, the complainant lost on the proof that he was the victim of harassment but just as candidly proved his case that these things were plainly race-based, racial stereotypes that perpetuated more racial stereotyping and involved racial discrimination.

ACT 250’s passage as Mr. Hall well knows, was much aided by social psychological research now confirmed by over 300 related studies nationwide demonstrating that Indian nicknames and logos precisely like those possessed and commonly used by the Mukwonago Area Schools are race based and discriminatory and lead directly to racial stereotyping damaging to the self-esteem of Native-American children exposed to them. This large and well documented research base was fully available on the day of the hearing in 2010 and deployed by those arguing in favor of the plaintiff to maximum effect.

By contrast, the School District’s argument was entirely based on its compliance with a 1996 DPI order to better educate students about the heritage of indigenous people to both the area surrounding the District and Native-Americans generally. This, the District proved conclusively was fully complied with to great success.

But in 2002, a Social Psychologist, Stephanie Fryberg now at the University of Arizona, published a peer reviewed ground breaking study demonstrating that the mere exposure of Native-American kids and their white Caucasian counterparts directly involved racial stereotyping promoting discrimination and harming the mental horizons of the Native children.

In 2005, then Department of Public Instruction Superintendent Lizzy Burmeister circulated a letter to every single school district in Wisconsin with Indian mascots, nicknames or logos advising them of the research that seemed to require districts take a second look at their use of these things. Mukwonago did not make such a re-assessment that would have suggested their 1996 action plan ordered by DPI was now becoming hopelessly outdated and insufficient to prevent the discrimination District officials as well as the DPI wished curbed. In 2006 Native-American education groups in the State e-mailed and sent by regular U.S. mail detailed information on the emerging line of scientific research warning of the use of racial stereotyping in sports team names and school district symbols. The District via at least four top administrators as well as Mr. Olson knew absolutely nothing of this at all.

Worse yet, in the legal discovery process leading up to the hearing, which lasted fully eight hours and more that day, the Mukwonago Area Schools and their lawyer paid no attention at all to what science was telling us so emphatically about this issue. This is the greatest reason the District lost their defense of the logo and nickname in the hearing and ruling that followed on 8 October 2010.

A careful reading of Samuel C. Hall’s fully public editorial argument as published in the 9 September 2013 Wisconsin Journal-Sentinel newspaper stunningly makes not even a hint of a mention that any of this research, so crucial to the Department of Public Instruction’s ruling in the case, and so central to the ACT 250 law even exists.

Hall says the District was denied due process by the law and Sherman’s ruling as Sherman has subsequently admitted the obvious with frank honesty that Mukwonago was bound to lose the case at hearing simply because Sherman, a lawyer himself, knew that ACT 250 made it legally incumbent upon any hearing officer at DPI to determine if the mascots, nicknames or logos were based at all plainly on a race of people, if harassment of the complainant or others similarly situated to the complainant could be proven, if such names and symbols were likely or certain to promote racial stereotyping and if discrimination was a part of this.

Both Mr. Hall and his predecessor Mr. Olson should know better. The proponents of the original bill before the legislature in 2010 wanted a straight ban upon what to any reasonable observer would be symbols and nicknames with these characteristics. But the compromise among legislators was both the requirement that someone from a Native-American background then resident within the community(s) served by the District, 18 years of age or older bring a complaint to obtain legal standing under the law, and to permit due process for school districts who wish to provide a contrary argument in the hearing stage are in truth means to ensure due process and not the reverse.

Hall himself makes the argument School Superintendent Shawn McNulty makes that they should have banned these things outright. I could not agree more as does the Indian-Mascot Task Force and the Wisconsin Indian Education Association, along with the Great Lakes Tribal Council representing a dozen Wisconsin Indian Tribal Nations. Instead of repeal then, Hall and McNulty should be pressing for amending ACT 250 to do just that. This position is the most brightly colored of red herrings.

Mr. Hall, Sherman would have perjured himself if he had said as an officer of the court that Mukwonago could show that its nickname and logo were not based on a race of people and relative to the scientific research underpinning the law as well as the findings of fact to be determined in any ACT 250 proceeding they could prevail. Any lawyer even with a minimum of legal understanding would know that Mukwonago would have been best advised to end its association with their “Indian” nickname and logo voluntarily upon the legal filing of the complaint. Fighting a well presented argument from any plaintiff in these ACT 250 hearings simply must end in defeat by the language in the law itself telling hearing officers what they must legally weigh in evidence in any disputed proceeding.

The most striking thing about Hall’s editorial and the Mukwonago Area School’s legal position and resistance to the change over the last three years is their complete and feigned ignorance of the science involved. Only twice has Mukwonago made a point of even mentioning to the larger public the research base. Once on 8 October 2010 before staff when the ruling came down, as I was there, and just recently when the School Board and Administration said they do not agree with the science involved at all.

When it comes to American Federal Civil Rights law, going back to the landmark Brown v. Board of Education case there was a then novel approach with the admission by the court of material by the plaintiffs of psychological research of virtually the same type presented at the DPI hearing but in this case by Dr. Kenneth Clark of Howard University. Clark went to a community bringing one of the lawsuits concerned in the case, and used white and black dolls to see which, using a full set of control questions, black children would choose as having the better characteristics. In nearly two thirds of the responses, 65 percent, the children indicated a distinct preference for the white dolls showing dramatically the psychological damage of the stereotyping and racial bigotry of the Jim Crow segregation of the time.

Since then the fields of psychology and social psychology, employing the rigorous use of the scientific method have increasingly become valuable in showing us something other than physical damage to property or to persons—the mental or psychological damage of racial stereotypes and its unavoidably attendant discrimination.

Mr. Hall snipes at the Wisconsin Indian Education Association and its subsidiary Indian Mascot Task Force using the term “Indian” and seemingly not being offended by it. According to Barbara Munson who has worked extensively on this case and many others, use of the term Indian is related to the legal fact that much of what is done between the Federal and State governments and the tribes, via still in force legal treaties with Tribal Nations who have legal status as nation states relative to the United States, uses that legal terminology.

A good additional point would be why the National Association of Colored People or NAACP in 2013, in a distinctly analogous situation, still uses the term “colored.” Here, the long and storied history of the association of both white and black social justice activists has become synonymous with the struggle for civil rights in America since 1910. Essentially, the name has become branded in the public mind since the organization’s inception.

Mr. Hall also editorializes that the complainant in the case was unfairly aided by these high powered Native-American groups and the Great Lakes Tribal Council and the man’s own tribal elders.

It should be pointed out that 11-year-old Linda Brown in that civil rights landmark case had the full support of thirty extremely skilled civil rights lawyers from the NAACP and its Legal Defense Fund so far away from Topeka, Kansas where the little girl lived, and headquartered in New York City, New York. Yes, they were certainly highly resourced outsiders Mr. Hall.

The complainant in the Mukwonago case was at the time of the hearing legally indigent. He stood alone as a single human being in opposition to the majority of a whole community and a local unit of government with an annual budget then in the tens of millions of dollars. So Mr. Hall, this argument or complaint from you in the editorial suggesting the complainant should not have had these outside resources from his people at his command is petty and does no credit to either you, your law firm, or your client.

As to Mukwonago’s use of the Indian nickname and logo for a century as a precedent, what about the wishes of indigenous people who archaeologists (it’s those troublesome scientists again) tell us have been here on this continent, including in Wisconsin, for upwards of 12,000 years. The development of their distinct cultures, oral traditions, religious rituals, that are so vital to the transmission of those cultures and their fundamental sense of self-worth and dignity as human beings ought to be fully consulted here.

The oft recorded modern wishes concerning these symbols and nicknames by hundreds of American tribal nations via their tribal councils across this nation ought to more than balance Mukwonago’s historic discriminatory miss-appropriation of these racial stereotypes that are found today to be so harmful to the children the Mukwonago Area Schools educate and are legally responsible for as to their physical and psychological safety.

Thomas Martin Sobottke is a professional historian teaching as an Adjunct Professor of History at Carroll University and with the Ph.D. in History from Marquette University. His area of specialty is American History and the Civil War Era, including the black civil rights struggle. Mr. Sobottke is also a member of the National Association for the Advancement of Colored People (NAACP). He taught a generation of students for almost 27 years at Mukwonago High School and had the complainant in the case for two different school years in two different academic classes and thus observed the character of the young man and the difficulty of being in his position at the commencement of the case first hand. His blog, Struggles for Justice, can be found at http://strugglesforjustice.com

Editor’s Note:
We’ve had one or two respondents off the blog that have made essentially the point below. It ought to have been included in the original post as the Hall editorial piece does say outright that DPI does not have the authority to make rules implementing ACT 250 in this manner. So here is an additional piece to complete the response to Mr. Hall’s questionable legal argument:

Mr. Hall’s position is bad law. The Constitution of the State of Wisconsin provides for a Department of Public Instruction led by an independently (from the Governor) elected Superintendent. While Hall is correct that local control is a long established principle, like the U.S. Constitution and its supremacy clause in relation to state laws, the DPI and the Superintendent has “primary” Constitutional responsibility for overseeing education in the State of Wisconsin. DPI already prior to this Mukwonago logo case has extensive rule making authority on any State law that is to be implemented regarding education in the State of Wisconsin. So Mr. Hall’s supposition in his editorial is simply factually incorrect. The Wisconsin Supreme Court could hear a case on the law and on that portion of the Constitution providing for DPI and the Superintendent but that is clearly spelled out in the Constitution of our State, our supreme state law, and it has been long settled law since 1848 and statehood.

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