The Deeply Troubling Side of Wisconsin's New Mascot Law

This past weekend, I picked up a copy of the Green Bay Press-Gazette at my grandparents' house.  There was some Packers news, some local news.  And there was one story that struck me as worth investigating further - a piece on the decision by the Kewaunee School District to drop its mascot - the Indians - for fear of a twisted new state law.

I made my opposition to the proposed law known early on, but it's even more disturbing to see how the law is playing out as it's applied across Wisconsin.

Kewaunee's School Board quailed in the face of the mighty DPI and dropped its mascot without a fight.  School Districts shouldn't have to bear any burden to prove their mascots are politically correct, but unfortunately the new law changed all that.  Instead, as in Kewaunee, a lone heckler in the school district can cry out "I'm offended," file with the state, and force an entire school district to make an expensive bid to defend the mascot (and, as the bill stated, it's more than just mascots) - or an expensive makeover to change to a new mascot.

The Kewaunee District Administrator's logic, as an aside, baffles me: '"The move allows the district to maintain better local control over a new team name, as well as the history of the old nickname, Vogeltanz said.'

Yes, having absolutely no local control and failing to fight for it definitely enables better local control.  That makes perfect sense.

Vogeltanz's additional comments highlight the truly nefarious - and almost creepy - height of political correctness that the law has engendered:

"I'm respectful of the law," he said. "But I graduated as a Kewaunee Indian. It will be sad to see it go. But I think we all need to be respectful of people who feel differently."

What a craven thing to say.  Being respectful of people who feel differently is one thing.  But caving to the extreme sensitivity of a few simply because they are offended by an innocuous mascot and placing the burden on a school district to rebut a presumption against validity is likely a violation of the First Amendment.  Our society is more robust than one where everyone can go about free of any prospect of being offended.  Government entities can speak, too, and the intent behind this law (to end Native American mascots - and the DPI's administrative rules reinforce this notion), while it may diverge from its overbroad textual authorization, appeared to go to the content of the speech by school districts.

And that's why the Kewaunee district's failure to challenge the law vigorously is so shameful.  I don't think it's at all clear that the district would have lost if it had pursued a legal full court press (which would likely have garnered outside pro bono legal support from various quarters, too).  There's also the other arrow in Kewaunee's quiver in this specific case: it really did not appear to have adequate notice when it came to defending itself.  Fortunately, the District Administrator now seems to be under a bit of pressure to explain himself.

Some districts appear more willing to take a stand, and I encourage anyone out there who can bring resources, political influence, or legal talent to bear to assist the Mishicot School District in what will inevitably be a fight against the state.  Mishicot has permission, in a way, to use its "Indians" logo.  But permission wasn't enough to stave off state control in the first district to lose its mascot, Osseo:

However, Timm said the Osseo-Fairchild district also had permission from the family of the Native American depicted in its logo, but the DPI said it couldn't accept the premise that one family's approval was sufficient.

What's the most troubling side of this entire new legislative paradigm?  It's the arrogance of the state government stepping in and presuming to think for all local school districts as to what is or is not permissible for how that school district represents itself, how it expresses itself as a community institution.  That encroaches deeply on First Amendment rights, and even if it doesn't, under some analysis, it's still very dangerous territory for the state government to enter because it treads into the realm of ideas, symbols, and expression.  All it takes is one misanthrope in a community to flip a switch...and the mascot is PRESUMED to be discriminatory by law.  By default, if the district does not actively put up a fight, it is guilty - regardless of whether the mascot is something as vague, innocuous, and de-fanged as "Indians." 

I think counsel to the Kewaunee School District should have recalled that even when the United States Supreme Court considered the constitutionality of cross burning, it required the justification of a true threat.  The justifications of the Wisconsin mascot law are far less compelling, far less clear, and directed at a certain type of speech (*I'm not making a full out legal analysis here, but using the law to inform a broader political/social/cultural discussion).  The harm the law seeks to prevent doesn't outweigh its imposition on expression.  In its explicit legislative purpose at least, it creates impermissible favored and "disfavored subjects."  And if this law is somehow meant to bar unprotected speech in the form of group libel, Beauharnais is a questionable foundation indeed.

The law is deeply flawed.  No school district in Wisconsin should feel bullied to accept the dictate of the state as conclusive in this field.  They should fight any impositions in this regard all the way up the chain.