The Wisconsin Supreme Court elected to hear a case on whether the Wisconsin Minority Undergraduate Retention Grant Program, which is limited to minority students of certain ethnic backgrounds, is constitutional, according to Wisconsin Public Radio.
This case is being heard after the Wisconsin Court of Appeals ruled the grant program — which provides scholarships to undergraduate students — unconstitutional earlier this year, according to managing vice president and deputy counsel at the Wisconsin Institute for Law & Liberty Dan Lennington.
“The claim in the lawsuit was that students were excluded from obtaining scholarships because of their race and this was an illegal use of taxpayer money,” Lennington said.
The MURG defines a “minority student” as a student who is either African American, American Indian, Hispanic or Southeast Asian from Laos, Cambodia or Vietnam.
Lennington said the WILL filed the lawsuit in 2021 on behalf of several taxpayers against the Evers administration for running a set of race-based scholarships that exclude white and most Asian students. In some cases, they also excluded other ethnic groups, including North African, Arab and some Latinx students, according to Lennington.
The losing party in the lawsuit, which was the Evers administration, filed a petition to have the case reviewed by the Wisconsin Supreme Court, according to Lennington. Lennington said it is unknown why the Wisconsin Supreme Court chose to take up the case.
“We think it’s very clear that the government cannot discriminate against students based on race, this has been the law of the land for 60 years or longer in the United States since Brown v. Board of Education,” Lennington said. “Schools and educational facilities cannot discriminate based on race, and this scholarship clearly does that.”
WILL hopes the Wisconsin Supreme Court affirms the Court of Appeals’ decision, as this grant program is a clear example of government race discrimination, according to Lennington.
The U.S. Supreme Court issued a decision on racial classifications in SFFA v. Harvard in 2023. The ruling reversed the longstanding precedent of the Supreme Court allowing some forms of affirmative action, according to Meissner Tierney Fisher & Nichols appellate attorney Caleb Gerbitz.
“This case [regarding the MURG program] is interesting because it’s outside the realm of college admissions, but still in academia,” Gerbitz said. “The parties that brought the lawsuit are saying this statute is unconstitutional under SFFA because it violates the Equal Protection Clause.”
Gerbitz said that during the Court of Appeals’ ruling that this program is unconstitutional, it went a step further and clarified what SFFA had left open about how broadly it applied. The Court of Appeals said that, except in limited circumstances described in the SFFA decision, racial classifications are not allowed at all, according to Gerbitz.
Gerbitz said there are several ways the Wisconsin Supreme Court could rule in this case. It is difficult to determine how much the court will narrow down what is considered unconstitutional in these types of scholarships, according to Gerbitz.
“It’s probably a bit of a long shot to get a reversal, because the state does have these very clear racial classifications that are almost certainly problematic,” Gerbitz said. “My guess is the Supreme Court took the case because they’re interested in addressing that language in the court of appeals opinion about how broadly SFFA applies.”
This case’s ruling would likely affect only a handful of close-call situations, as the program is relatively small, involving $819,000, according to Gerbitz. The SFFA case impacted many more students, and since then, academic institutions have largely eliminated racial considerations across the board, according to Gerbitz.
If the ruling by the Court of Appeals is upheld, the grant program will be available to students of all racial and ethnic backgrounds, now focusing on scholarships for low-income students, according to Lennington. Currently, being low-income is not a qualification for the grant program, and it is available to all minority students of certain ethnic backgrounds, according to Lennington.
Lennington said the decision would also likely apply to all scholarships in Wisconsin. UW-Madison has about 60 scholarships with racial qualifications, and WILL, representing Young America’s Foundation, has filed a federal complaint against them as well, according to Lennington.
“The Trump administration is investigating the University of Wisconsin for race-based scholarships,” Lennington said. “This decision would also apply to all of those scholarships.”
The federal complaint said that several scholarships at UW-Madison are unconstitutional and illegal under Title VI of the Civil Rights Act of 1964, according to the complaint.
A similar case involving a lawsuit regarding race-based scholarships at the University of California San Diego was settled last month, according to Lennington. Lennington said there are other similar pending cases around the country, although most race-based scholarship programs were ended after the 2023 U.S. Supreme Court ruling.
“The legal principle is the same, whether you are using race to discriminate against someone on the admissions side or on the financial aid side,” Lennington said.
Arguments will take place in February and March 2026, and the court will issue a decision by July, according to Lennington.
Sources in this article use the terms “ethnicity” and “race” interchangeably, however, the MURG program determines eligibility based on students’ ethnicity.
