A contentious nine-hour debate in the state Assembly over whether to give minorities preferential treatment for a Higher Educational Aids Board grant program appeared to have been a waste of time when the agency announced the next day it had not used race as a criterion for more than a year.
"In August 2010 we changed our internal policy to exclude the race criteria from eligibility and collect that data for information purposes only," interim administrator Sherrie Nelson wrote in a Nov. 2 letter to Gov. Scott Walker.
Nelson noted that the change was made to address a complaint that had been filed with the U.S. Department of Education's Office of Civil Rights. And she requested a change in the administrative rule HEA 5.04 (2)(a) that allows minority-group status to be considered as a criterion for the Talent Incentive Grant.
But it's not clear what authority the agency had to change its "internal policy" without formally revoking the administrative rule in question.
Administrative rules, which have the force of law, must be repealed in the same way they are created, according to the Wisconsin Administrative Rules home page.
"You use the same promulgation process," confirms Bruce Hoesly, attorney with the Wisconsin Legislative Reference Bureau.
This starts with an agency submitting a "statement of scope" to the Legislative Council for review. That statement serves as the "agency's public notice that it intends to begin the development of a permanent rule," according to the Administrative Rules website. The agency is also required to hold a public hearing on the proposed rule and, after review by the Legislative Council, submit a final rule to the Senate and Assembly.
Under a law passed this year, the governor now also has the authority to sign off on administrative rules before they are sent to the Legislature for review.
Nelson, reached at her office, says she does not "know for sure" whether an attempt was made to change the administrative rule at the time the agency stopped using race as a criterion for the Talent Incentive Grant. The former agency secretary, Connie Huchison, left when Walker became governor, and Nelson says there is no way to track down that information.
When asked whether she thought the agency violated state law by changing its policy but not formally repealing the administrative rule, Nelson said only, "We were in direct contact with the Department of Justice at that time also."
Rep. Tamara Grigsby (D-Milwaukee) calls the timing of Nelson's announcement "questionable" and "suspect."
Grigsby says she has had many conversations with university officials who were not aware that the eligibility criteria had been changed in 2010. And she is not convinced that the agency, then under the administration of Democratic Gov. Jim Doyle, did indeed change its policy when Nelson said it did.
"Why are they just now asking for a rule change retroactively?"
Grigsby has asked the Legislative Council to dig into the details of what happened, including who authorized the policy change and why the Legislature was not told.
But the bigger issue for Grigsby is that all Assembly Republicans, and one Democrat, voted last week to prohibit state officials from using race to help determine eligibility for the Talent Incentive Grant program, which provides financial assistance to the most "financially needy and educationally disadvantaged" Wisconsin residents attending state colleges and universities. The program awards annual grants of $600 to $1,800.
Grigsby sees it as one more attack on the state's most vulnerable populations, who need help accessing jobs and higher education.
"We need to be doing everything in our power to provide opportunities," she says. "Not take them away."
