WILL Letter

WISCONSIN INSTITUTE FOR LAW & LIBERTY, INC.
330 E. Kilbourn Ave., Suite 725, Milwaukee, WI 53202-3141

414-727-WILL
Fax 414-727-6385
www.will-law.org
March 9, 2022
Dr. Mark Hansen

Superintendent of Schools
Elmbrook Schools
3555 North Calhoun Road
Brookfield, WI 53005
Dear Dr. Hansen:
We have recently become aware that it is the official position of Elmbrook

Schools that race discrimination laws do not apply to white students. Not only is
this both legally and factually wrong, but it is frankly shocking that a public
educational institution could hold such a view.
A few months ago, a concerned parent lodged a complaint with Elmbrook

Schools alleging race discrimination (among other things). Assistant Superintendent
Tanya Fredrich investigated the complaint and then prepared a written report. In
her report, Dr. Fredrich included this outrageous statement:
Although there is no evidence that the student’s race (White), sexual

orientation (Heterosexual) and socio-economic status (middle-upper middle-
class) were a consideration in any decision made by the District regarding the
student, it must also be noted that the student is not a member of any class
that is legally protected from discrimination by state or federal law. To the
contrary, the student’s race, sexual orientation and socio-economic status are
what are considered to be the majority status and thus do not form a basis
for claiming that the student is being treated or has been treated less
favorably than persons not in the protected class.
This is patently false. All people are protected by federal and state nondiscrimination
laws. There is no such thing as a “protected class” in the sense that some races are
protected while others are not. Black and brown students do not have different
rights; they have identical rights to white students and must be treated identically
to white students. And there is certainly nothing in the law concerning a diminished
set of rights for those with “majority status.” If a white student or teacher used a
racial slur against a black student in a majority-minority district such as the
Milwaukee Public Schools, for example, it would be no defense that there are more
black students enrolled at MPS than those of any other race.
Put differently, all racial groups are protected “classes.” It is the very act of
racial classification that is subject to non-discrimination laws. Because Elmbrook
Schools’ mistake is so fundamental, and frankly so dangerous to the legal rights of
parents and your students, it is important to explain the law in more detail.
The U.S. Constitution, which applies to Elmbrook Schools through the 14th
Amendment, guarantees “equal protection of the laws.” In the case of Regents of the
University of California v. Bakke, the United States Supreme Court confirmed that a
white student could bring a claim for race discrimination under the U.S.
Constitution. In rejecting the argument that white students should be treated
differently than minority students, the Court twice remarked that the U.S.
Constitution has “never” been interpreted as protecting only minorities from race
discrimination. And since that time, we are aware of no case anywhere suggesting
that white students cannot bring a claim for race discrimination because they are
white. In fact, the opposite is true.
Federal law mirrors the U.S. Constitution’s protection of all people, whatever
their race. Elmbrook Schools receive federal funds; therefore, it must follow Title VI
of the Civil Rights Act of 1964. This Act guarantees that “no person” may be “subject
to discrimination” “on the ground of race.” 42 U.S.C. § 2000d. The Supreme Court,
again in Bakke, explained that Title VI protects white students in the same way it
protects minority students. Other similar federal laws, such as Title VII and the Civil
Rights Act of 1866, likewise protect “whites as well as nonwhites.” See McDonald v.
Santa Fe Trail Transp. Co., 427 U.S. 273, 286 (1976).
This principle carries over into state law. Our Wisconsin Constitution
similarly guarantees equality under law, mandating that governments, including
school district employees, treat all students “equally,” regardless of race. And
Wisconsin Statutes, Section 118.13, prohibits all discrimination “on account of . . .
race.” The Wisconsin Department of Public Instruction is emphatic: “no pupil” may
be “treated in a different manner because of . . . race” (emphasis supplied). So just
as in federal law, nothing in state law exempts a so-called “majority class” from the
protection of civil rights laws.
To summarize, all race discrimination is illegal race discrimination under

federal and state law. This has been settled law for decades.
To illustrate our point a bit more, consider two landmark cases. Nearly 20
years ago, the United States Supreme Court decided Grutter v. Bollinger and Gratz
v. Bollinger. In both of those cases, white students brought claims of race
discrimination to the U.S. Supreme Court. Although white students won in Gratz
and different white students lost in Grutter, these cases are notable because not a
single Supreme Court justice questioned, even slightly, the right of a white student
to assert a claim of race discrimination under the Constitution or federal law. And
as Dr. Fredrich might say, some of the plaintiffs in those cases could be described
as “white” “heterosexual” and “middle-upper middle class,” but they unquestionably
had the right to petition the courts for violations of the law.
Given the grave nature of Elmbrook’s mistake, we are asking that you take
immediate steps to instruct your staff that all students are protected from
2
nondiscrimination laws. Elmbrook families need to know that their school district
does not countenance any type of discrimination based upon race. While we
appreciate public schools are under considerable pressure to embrace progressive
concepts such as “equity,” “social emotional learning,” and “culturally responsive
teaching,” nondiscrimination laws still apply to all teachers and staff. These laws
mandate, quite simply, the following: all students must be treated equally. Teachers
may not make distinctions based on color, provide additional support for students
based on race, attempt “racial balancing” or “proportionality” in programs or
classrooms, or grant special treatment or privileges to support certain racial
“identities.” What’s more, the law requires Elmbrook to treat students as individuals.
As the Supreme Court explained in a case where a public school attempted to divide
students into groups of “white” and “nonwhite,” the Court explained that the
Constitution’s mandate for equality “protects persons, not groups.” Parents Involved
in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007) (emphasis in original).
In sum, the law’s mandate is that your teachers and staff are colorblind, and
we hope you do the work necessary to have your staff embrace this non-negotiable
principle.
Sincerely,
THE WISCONSIN INSTITUTE FOR LAW AND LIBERTY
Richard M. Esenberg Daniel P. Lennington

President & General Counsel Deputy Counsel

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WISCONSIN INSTITUTE FOR LAW & LIBERTY, INC.

330 E. Kilbourn Ave., Suite 725, Milwaukee, WI 53202-3141

Dr. Mark Hansen

Dear Dr. Hansen:

We have recently become aware that it is the official position of Elmbrook

A few months ago, a concerned parent lodged a complaint with Elmbrook

Although there is no evidence that the student’s race (White), sexual

To summarize, all race discrimination is illegal race discrimination under

THE WISCONSIN INSTITUTE FOR LAW AND LIBERTY

Richard M. Esenberg Daniel P. Lennington

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