Konkanok Rabiebna v. Higher Educational Aids Board

2026 WI 20 KONKANOK RABIEBNA, et al., Plaintiffs-Appellants, v. HIGHER EDUCATIONAL AIDS BOARD, et al., Defendants-Respondents-Petitioners, No. 2022AP2026 Decided June 18, 2026 REVIEW of a decision of the Court of Appeals Jefferson County Circuit Court (William F. Hue, J.) No. 2021CV137 ANNETTE KINGSLAND ZIEGLER, J., delivered the majority opinion of the Court, in which REBECCA GRASSL BRADLEY, BRIAN K. HAGEDORN, and JANET C. PROTASIEWICZ, JJ., joined, and in which JILL J. KAROFSKY, C.J., and REBECCA FRANK DALLET and SUSAN M. CRAWFORD, JJ., joined with respect to ¶¶17–20. JILL J. KAROFSKY, C.J., filed a concurring opinion, in which SUSAN M. CRAWFORD, J., joined. REBECCA FRANK DALLET, J., filed a concurring opinion, in which JILL J. KAROFSKY, C.J., and SUSAN M. CRAWFORD, J., joined. ¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of a published opinion of the court of appeals, Konkanok Rabiebna, et al. v. Higher Educational Aids Board, et al., 2025 WI App 24, 416 Wis. 2d 44, 20 N.W.3d 742, reversing the Jefferson County circuit court’s order which held that WIS.  RABIEBNA v. HIGHER EDUCATIONAL AIDS BOARD Opinion of the Court STAT. § 39.44 (2023–24)1 is constitutional under the Equal Protection Clause of the Fourteenth Amendment. Section 39.44 creates the Minority Undergraduate Retention Grant Program (the “Grant Program”), which provides financial aid to students attending Wisconsin private and technical colleges who belong to specified race‐, national origin‐, ancestry‐, or alienage-based groups. ¶2 Plaintiffs-Appellants Konkanok Rabiebna, Richard A. Freihoefer, Dorothy M. Borchardt, Richard Heidel, and Norman C. Sannes (collectively hereinafter “the Taxpayers”) filed a declaratory action with the Jefferson County circuit court seeking to enjoin Wisconsin’s Higher Educational Aids Board and Tammie DeVooght-Blaney (collectively hereinafter “HEAB”) from administering the Grant Program. The Taxpayers argued that the Grant Program violates the Equal Protection Clause of the Fourteenth Amendment by impermissibly limiting eligibility to students who belong to specified racial, national origin, ancestry, or alienage-based groups. The circuit court upheld the statute, concluding that under Grutter v. Bollinger, 539 U.S. 306 (2003), and its progeny, fostering diversity in higher education is a compelling state interest, and the Grant Program is narrowly tailored because it provides modest, need-based aid to students from groups with disproportionately high attrition rates. The Taxpayers appealed. ¶3 While the appeal was pending, the United States Supreme Court issued its decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, 600 U.S. 181 (2023) (hereinafter “SFFA”). Applying SFFA, the court of appeals reversed the circuit court, holding that attaining diversity in higher education is no longer a compelling interest, and that the Grant Program was not narrowly tailored to fulfill those ends. The court of appeals remanded to the circuit court with directions to enjoin HEAB from administering the Grant Program. HEAB appealed asserting that the legislature has a compelling interest in equalizing education opportunities for certain students of specifically identified racial, national origin, ancestry, or alienage-based groups in Wisconsin’s private and technical colleges. Regardless, HEAB argued that the Taxpayers lack standing to challenge the Grant Program since they have not demonstrated 1All subsequent references to the Wisconsin Statutes are to the 2023–24 version unless otherwise indicated. 2  RABIEBNA v. HIGHER EDUCATIONAL AIDS BOARD Opinion of the Court a particularized, pecuniary injury associated with the Grant Program’s administration. ¶4 We conclude that the Taxpayers have standing and that the Grant Program violates the Equal Protection Clause of the Fourteenth Amendment. Accordingly, we affirm the court of appeals’ decision that the statute is unconstitutional and conclude that HEAB is enjoined from operating the Grant Program. I. FACTUAL AND PROCEDURAL BACKGROUND ¶5 The Grant Program is a financial need program that provides grants to particular race‐, national origin‐, ancestry-, or alienage-based groups of students. HEAB administers the Grant Program. ¶6 In 1985, Wisconsin’s legislature enacted WIS. STAT. § 39.44 (1985–86) to provide taxpayer-funded grants through the Grant Program for “Black American,” “American Indian,” and “Hispanic” undergraduate students enrolled in Wisconsin private, nonprofit universities and colleges. 1985 Wis. Act 29, § 722m. In 1987, the legislature expanded the Grant Program to a student “admitted to the United States after December 31, 1975, and who either is a former citizen of Laos, Vietnam or Cambodia or whose ancestor was or is a citizen of Laos, Vietnam or Cambodia,” and to students attending Wisconsin’s technical colleges. WIS. STAT. § 39.44 (1987– 88); 1987 Wis. Act 27, §§ 683r, s. The statute, entitled “Minority undergraduate grants,” provides: (1)(a) In this section “minority undergraduate” means an undergraduate student who: 1. Is a Black American. 2. Is an American Indian. 3. Is a Hispanic, as defined in s. 16.287(1)(d). 4. Is a person who is admitted to the United States after December 31, 1975, and who either is a former citizen of Laos, Vietnam or Cambodia or whose ancestor was or is a citizen of Laos, Vietnam or Cambodia. 3  RABIEBNA v. HIGHER EDUCATIONAL AIDS BOARD Opinion of the Court (b) There is established, to be administered by the board, the minority undergraduate retention grant program for minority undergraduates enrolled in private, nonprofit higher educational institutions in this state or in technical colleges in this state. (2) Funds for the grants under this section shall be distributed from the appropriation under s. 20.235(1)(fg), with 50 percent distributed to the eligible private institutions and 50 percent distributed to the eligible technical colleges. The board shall audit the enrollment statistics annually. (3) An institution or school receiving funds under sub. (2) shall: (a) Award grants to eligible students on the basis of financial need. (b) Demonstrate to the satisfaction of the board that such funds do not replace institutional grants to the recipients. (c) Annually report to the board the number of awards made, the amount of each award, the minority status of each recipient, other financial aid awards made to each recipient and the total amount of financial aid made available to the eligible students. WIS. STAT. § 39.44(1)–(3).2 2 The remaining portion of the statute states: (4) The board shall notify an institution or school receiving funds under sub. (2) if a student’s name appears on the statewide support lien docket under s. 49.854(2)(b). An institution or school may not award a grant under this section to a student if it receives a notification under this subsection concerning that student, unless the student provides to the institution or school a payment agreement that has been approved by the county child support agency under s. 59.53(5) and that is consistent with rules promulgated under s. 49.858(2)(a). 4  RABIEBNA v. HIGHER EDUCATIONAL AIDS BOARD Opinion of the Court ¶7 Additionally, grant eligibility requires the student to also be: a citizen or permanent resident of the United States; a Wisconsin resident; and “enrolled as a sophomore, junior or senior on at least a half-time basis in a technical . . . or a private [college] in Wisconsin eligible to participate in the grant program.” WIS. ADMIN. CODE § HEA 12.02(3) (Nov. 2024). A student’s “grant award shall not exceed $2,500 per academic year,” and students are eligible for a grant for up to eight semesters. WIS. ADMIN. CODE § HEA 12.03(1)–(2) (Nov. 2024). Students who are not Black American, Hispanic, American Indian, Laotian, Cambodian, or Vietnamese are categorically ineligible for any grant under the Grant Program. ¶8 The Taxpayers object to their tax dollars being spent in a racially discriminatory manner. The Taxpayers sought a declaratory judgment that the Grant Program violates the Equal Protection Clause of the United States Constitution and Article I, Section 1 of the Wisconsin Constitution because students belonging to the preferred racial, national origin, ancestry, or alienage groups are eligible for the grants, while students of other racial, national origin, ancestry, or alienage groups are not. The parties filed cross-motions for summary judgment, addressing standing as well as the constitutionality of the Grant Program. ¶9 The Taxpayers contended that they have standing to challenge the unlawful expenditure of taxpayer money. They sought a declaration that the Grant Program is unconstitutional because it unlawfully discriminates against students based on race, national origin, ancestry, and alienage. They also sought an injunction. ¶10 HEAB responded that the Grant Program was a “lawful component of a larger admissions process: a process that may take race into account to promote diversity, which the United States Supreme Court has repeatedly confirmed is proper,” and “should be rejected for more basic reasons: [the Taxpayers] do not have standing.” HEAB maintained that the (5) By November 1, 2001, and annually thereafter, the board shall report to the department of administration on the effectiveness of the program under this section. WIS. STAT. § 39.44(4)–(5). 5  RABIEBNA v. HIGHER EDUCATIONAL AIDS BOARD Opinion of the Court evidence showed that the Grant Program’s “impacts can be achieved via no alternative means and are necessary as part of the lawful process of promoting diversity in higher education.” In its view, “the Grant Program is narrowly tailored to serve a compelling interest in improving minority retention and graduation rates at Wisconsin higher educational institutions.” ¶11 The circuit court determined that the Taxpayers have standing to challenge the Grant Program, but upheld it as constitutional under Grutter v. Bollinger, 539 U.S. 306 (2003), because HEAB “has a compelling interest in attaining in [sic] a diverse student body,” and “[t]he Grant Program promotes the diversity of student bodies by helping minority students with financial need remain enrolled in school and graduate.” The circuit court found that WIS. STAT. § 39.44 “was adopted and enacted to retain a diverse population of lawfully admitted students, who otherwise fail to remain in their programs at disproportionally high rates,” and “[t]hat purpose, and the need for it, continues to this day.” The circuit court also found that the Grant Program was narrowly tailored because “there are no race-neutral alternatives to the Grant Program that would be as effective as its current race-based criteria,” and “[t]he small pool of funding would be severely diluted by a much larger pool of eligible applicants,” which “would naturally reduce the Grant Program’s effectiveness in achieving diversity through minority retention.” The circuit court granted summary judgment to HEAB, denying the same to the Taxpayers. The Taxpayers appealed. ¶12 While the case was pending in the court of appeals, the United States Supreme Court issued SFFA, 600 U.S. 181. In SFFA, the Supreme Court struck down two universities’ practice of using race-based classifications to make college-admission determinations, concluding that the practice violated the United States Constitution’s Equal Protection Clause. In the Court’s view, “the ‘core purpose’ of the Equal Protection Clause” is “do[ing] away with all governmentally imposed discrimination based on race.” SFFA, 600 U.S. at 206 (alteration in original). Based on our nation’s history, the Court explained that only “the most extraordinary case” could justify “[d]istinctions between citizens solely because of their ancestry” because such distinctions “are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.” Id. at 208. In the university context, “no State has any authority under the [clause] to use race as a factor in affording educational opportunities among its citizens.” Id. at 204. To hold otherwise eviscerates the Equal Protection 6  RABIEBNA v. HIGHER EDUCATIONAL AIDS BOARD Opinion of the Court Clause’s requirement of “equality of treatment before the law for all persons without regard to race or color.” Id. at 205. ¶13 Bound by the Court’s ruling in SFFA, the court of appeals held that the Grant Program violated the Equal Protection Clause’s core principles and struck down the Grant Program as unconstitutional. Rabiebna, 416 Wis. 2d 44, ¶87. Applying SFFA, the court of appeals held that diversity is no longer a compelling interest in higher education and concluded that the Grant Program is materially indistinguishable from the race-based admissions programs invalidated in SFFA. The court of appeals reversed the circuit court and enjoined HEAB from administering the program. Id. ¶14 Now, HEAB has appealed the court of appeals’ ruling to this court. The issues before us are twofold: Whether the Taxpayers have standing to bring this action under Wisconsin’s taxpayer-standing doctrine. If the Taxpayers have standing, then this court must determine whether the Grant Program—created by WIS. STAT. § 39.44 and administered by HEAB—violates the Equal Protection Clause. ¶15 We conclude that (1) the Taxpayers have standing, and (2) the Grant Program violates the Equal Protection Clause of the Fourteenth Amendment. Accordingly, we affirm the court of appeals and conclude that HEAB is enjoined from operating the Grant Program. II. STANDARD OF REVIEW ¶16 Before reaching the merits of HEAB’s claim, we must first determine whether the Taxpayers have standing to challenge the Grant Program. Standing presents a question of law. We review this question de novo. Silver Lake Sanitary Dist. v. DNR, 2000 WI App 19, ¶6, 232 Wis. 2d 217, 607 N.W.2d 50 (Ct. App. 1999). If the Taxpayers have standing, then we must decide whether WIS. STAT. § 39.44 and the Grant Program violate the Equal Protection Clause of the Fourteenth Amendment. We also review this question of law de novo. Madison Tchrs., Inc. v. Walker, 2014 WI 99, ¶13, 358 Wis. 2d 1, 851 N.W.2d 337. 7  RABIEBNA v. HIGHER EDUCATIONAL AIDS BOARD Opinion of the Court III. DISCUSSION A. STANDING ¶17 HEAB argues that the Taxpayers lack standing for two reasons. First, the Taxpayers have not suffered a direct and personal pecuniary loss; and second, the relief that the Taxpayers seek will not result in a reduction in the government’s spending. Because the Taxpayers have requested that the program could proceed without racial criteria for eligibility, HEAB argues, any relief granted will not reduce the Taxpayers’ burden. Conversely, the Taxpayers alleged that they pay Wisconsin taxes, the Grant Program authorized by WIS. STAT. § 39.44 is unconstitutional, and HEAB expends state funds administering that program. Their argument is that the Grant Program unlawfully discriminates on the basis of race in violation of the Equal Protection Clause of the Constitution. In turn, any grants awarded constitute an illegal expenditure of government funds. To the Taxpayers, the amount of the loss to each individual taxpayer is irrelevant: Any illegal expenditure of funds causes the Taxpayers to sustain a pecuniary loss. ¶18 We hold that the Taxpayers have standing. In Wisconsin, taxpayers may challenge the illegal expenditures of public funds. S.D. Realty Co. v. Sewerage Comm'n of City of Milwaukee, 15 Wis. 2d 15, 21–23, 112 N.W.2d 177 (1961). In taxpayer actions, the complaining taxpayers must allege that the “taxpayers as a class have sustained, or will sustain, some pecuniary loss.” Id. at 21. Because “a taxpayer [has] a financial interest in public funds . . . akin to that of a stockholder in a private corporation,” “[a]ny illegal expenditure of public funds directly affects taxpayers and causes them to sustain a pecuniary loss.” Id. at 22. “This is because it results either in the governmental unit having less money to spend for legitimate governmental objectives, or in the levy of additional taxes to make up for the loss resulting from the expenditure.” Id. The fact that the loss to any one, individual taxpayer may be minimal does not defeat standing. Wagner v. City of Milwaukee, 196 Wis. 328, 330–31, 220 N.W. 207 (1928). ¶19 Here, the Taxpayers—who allege that the Grant Program violates the Equal Protection Clause by distributing Taxpayer funds to racially preferred groups—have alleged a pecuniary loss. And, the Taxpayers do not need to show that a favorable decision would decrease their overall tax burden. The misallocation of the previous costs suffices. Fabick v. Evers, 2021 WI 28, ¶11, 396 Wis. 2d 231, 956 N.W.2d 856. 8  RABIEBNA v. HIGHER EDUCATIONAL AIDS BOARD Opinion of the Court ¶20 Because the Taxpayers allege that public funds are being expended pursuant to an unconstitutional statute, we conclude that the Taxpayers have standing to challenge the Grant Program. We now turn to the merits of the parties’ arguments. B. THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT ¶21 The weightier question before this court is whether the Grant Program violates the Equal Protection Clause of the Fourteenth Amendment. ¶22 The Fourteenth Amendment provides that: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. U.S. CONST., AMEND. XIV § 1. ¶23 At the heart of the Equal Protection Clause is the principle that race‐, national origin‐, ancestry‐, or alienage-based discrimination is unconstitutional except in the most extraordinary instances where such a remedy is required. That requires all individuals to be treated equally without regard to one’s race, ancestry, origin, or ethnicity. See Palmore v. Sidoti, 466 U.S. 429, 432 (1984) (declaring the Equal Protection Clause’s core purpose: “do[ing] away with all governmentally imposed discrimination based on race”) (footnote omitted). Under the Equal Protection Clause, the government must treat each citizen as an individual—not as one member of a class. Miller v. Johnson, 515 U.S. 900, 911 (1995). The Constitution requires that every person “must be treated based on his or her experiences as an individual—not on the basis of race.” SFFA, 600 U.S. at 231. Consequently, “no State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.” Id. at 204 (citation omitted). C. STRICT SCRUTINY IN RACE-BASED ADMISSIONS CASES ¶24 Because racial classifications are “odious” to the Constitution, Rice v. Cayetano, 528 U.S. 495, 517 (2000) (quoting Hirabayashi v. United States, 320 U.S. 81, 100 (1943)), statutes concerning one’s race are inherently 9  RABIEBNA v. HIGHER EDUCATIONAL AIDS BOARD Opinion of the Court invidious, Edmonson v. Leesville Concrete Co., 500 U.S. 614, 619 (1991), regardless of how benign or laudable the law may appear, City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989) (plurality opinion). ¶25 Statutes discriminating upon race, thus, require the government to satisfy strict scrutiny’s two-step analysis. Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 227 (1995); see also Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 291 (1978) (opinion of Powell, J., joined by White, J.) (“Racial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination.”). First, the racial classification must be used to “further compelling governmental interests.” Grutter, 539 U.S. at 326. Second, it must be “narrowly tailored,” i.e., “necessary,” to achieve that interest. Fisher v. Univ. of Tex. at Aus., 570 U.S. 297, 311–12 (2013). If the statute fails at either step, then the statute fails strict scrutiny. ¶26 The Supreme Court first considered a university’s race-based classifications in Regents of University of California v. Bakke. There, a medical school reserved 16 of its 100 seats for members of certain minority groups who were reviewed on a special admission track separate from those in the main admissions pool. Bakke, 438 U.S. at 272–75. The medical school’s quota precluded the entrance of applicants from certain races despite those students’ superior academic credentials. Id. at 276–77. In a fractured opinion, Justice Powell concluded that the school’s interest in obtaining the educational benefits that flow from a racially diverse student body was “a constitutionally permissible goal for an institution of higher education.” Id. at 311–12. In Justice Powell’s view, institutions of higher education have a First Amendment right to “to make [their] own judgments as to . . . the selection of [their] student body.” Id. at 312. However, the school’s quota system was ultimately struck down. By failing to consider each applicant individually, the Court held that the program was not narrowly tailored to achieve the state’s interest, which “is not an interest in simple ethnic diversity,” but instead “encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.” Id. at 315. ¶27 The Supreme Court revisited race-based admissions 25 years later when it issued Grutter v. Bollinger, 539 U.S. 306, and Gratz v. Bollinger, 539 U.S. 244 (2003), contemporaneously. In Grutter, a law school sought to “admit a group of students who individually and collectively are among the most capable,” with “a strong likelihood of succeeding in the practice of law and contributing in diverse ways to the well-being of others” by 10  RABIEBNA v. HIGHER EDUCATIONAL AIDS BOARD Opinion of the Court enrolling “a mix of students with varying backgrounds and experiences who will respect and learn from each other.” Grutter, 539 U.S. at 312–14. Admissions decisions considered a myriad of possible bases for diversity, including race and ethnicity. Id. at 314–16. ¶28 Upholding the admissions policy, the Court supported “Justice Powell's view that student body diversity is a compelling state interest that can justify the use of race in university admissions.” Id. at 325, 343. To that end, the law school’s interest in obtaining the pedagogical benefits that flow from a diverse student body was compelling. Id. at 328. ¶29 The policy was also narrowly tailored. Unlike the quota program used by the medical school in Bakke, 438 U.S. 265, the law school’s program did not “insulat[e] each category of applicants with certain desired qualifications from competition with all other applicants.” 539 U.S. at 334 (alteration in original) (quoting Bakke, 438 U.S. at 315 (opinion of Powell, J.)). In Grutter, the school considered a host of factors, including race, to determine a student’s diversity. Id. at 337-39. ¶30 The admissions program in Gratz, however, was struck down. Gratz considered an undergraduate admissions policy whereby the university used a selection index to score applicants up to a maximum of 150 points. Gratz, 539 U.S. at 255. Applicants received points based on their high school grade point average, standardized test scores, high school’s academic quality, strength or weakness of high school curriculum, in-state residency, alumni relationship, personal essay, personal achievement or leadership, and automatically received 20 points based upon their membership in an underrepresented racial or ethnic minority group. Id. In light of the decision rendered on the same day in Grutter, the Court upheld the university’s compelling interest of “the educational benefits that result from having a diverse student body.” Id. at 267. But the Court found that the program was not narrowly tailored to achieve its interest. Id. at 270. By “automatically distribut[ing] 20 points” “to every single ‘underrepresented minority’ applicant solely because of race,” the school was not “considering each particular applicant as an individual, assessing all of the qualities that individual possesses, and in turn, evaluating that individual's ability to contribute to the unique setting of higher education.” Id. at 270–71 (citing Bakke, 438 U.S. at 315 (opinion of Powell, J.)). Instead, the policy “contemplate[d] that any single characteristic automatically ensured a specific and identifiable contribution to a university's diversity.” Id. at 271 (citation modified). Whereas the school in Grutter considered the various diversity qualifications of each applicant, including race, on a case-by-case 11  RABIEBNA v. HIGHER EDUCATIONAL AIDS BOARD Opinion of the Court basis, the undergraduate institution’s “automatic distribution of 20 points has the effect of making ‘the factor of race . . . decisive.’” Id. at 272 (alteration in original) (quoting Bakke, 438 U.S. at 317 (opinion of Powell, J.)). ¶31 Most recently, the Supreme Court considered the constitutionality of race-based admissions programs in SFFA. There, the Court considered whether admissions decisions that turn on a student’s race violated the Equal Protection Clause. 600 U.S. at 197–98. The Court considered two different universities: Harvard College and the University of North Carolina (“UNC”). Harvard considered each applicant’s race to ensure that it maintained its annual level of minority admissions. Id. at 194. “Race [wa]s a determinative tip for” all of the school’s minority students, making it more likely for minority students to be admitted compared to nonminority applicants. Id. at 195 (citation modified). ¶32 At UNC, the individuals who initially reviewed a prospective student’s application considered race in their initial review. Id. at 195. Race acted as a “plus” in each student’s application. Id. at 196 (citation omitted). If the initial reader recommended admitting the student, then the final committee could “consider the applicant’s race” before offering the applicant a spot at the university. Id. at 196–97. ¶33 The Court reviewed the history of the Equal Protection Clause, and its application to race-based admissions programs, and explained that “the right to a public education ‘must be made available to all on equal terms.’” Id. at 204 (quoting Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954)). That means that an individual’s race cannot be used to “to foreclose an individual ‘from all consideration.’” Id. at 209 (quoting Bakke, 438 U.S. at 318 (opinion of Powell, J.)). ¶34 In the context of “race-based admissions,” the Court concluded that a university’s race-based admissions schemes “must comply with strict scrutiny, they may never use race as a stereotype or negative, and—at some point—they must end.” 600 U.S. at 213. The colleges’ admissions programs failed in all three respects. ¶35 With these principles in mind, we now turn to WIS. STAT. § 39.44 and the Grant Program. 12  RABIEBNA v. HIGHER EDUCATIONAL AIDS BOARD Opinion of the Court IV. APPLICATION A. THE GOVERNMENT HAS NOT DEMONSTRATED ITS COMPELLING INTEREST. ¶36 WISCONSIN STAT. § 39.44 treats members of specific race‐, national origin‐, ancestry‐, or alienage-based groups differently. The statute discriminates against students of nonpreferred classes by precluding them from eligibility for taxpayer-funded financial aid under the Grant Program. Because the Grant Program discriminates on the bases of race, national origin, ancestry, and alienage, we analyze the statute’s constitutionality under strict scrutiny’s two-step rubric. At step one, the legislature must identify the ends it is seeking to achieve. See Wersal v. Sexton, 674 F.3d 1010, 1020 (8th Cir. 2012) (en banc) (describing strict scrutiny as an ends-and- means test); Republican Party of Minn. v. White, 416 F.3d 738, 750 (8th Cir. 2005) (en banc) (defining the compelling interest as “the end”). Whether by previous government-sanctioned discrimination, regulatory discrimination, or legislatively demonstrated statistical findings, the government must articulate its objective in enacting the race-based regime. Because “[r]acial discrimination[] [is] invidious in all contexts,” Edmonson, 500 U.S. at 619, race-based educational programs must be “sufficiently measurable to permit judicial [review]” under the rubric of strict scrutiny, Fisher v. Univ. of Tex. at Aus. (Fisher II), 579 U.S. 365, 381 (2016). ¶37 Recognizing deference due, Bakke and Grutter upheld “diversity” as a compelling interest, in part because courts traditionally give “a degree of deference to a university’s academic decisions.” Grutter, 539 U.S. at 328. ¶38 Courts have concluded that a variety of interests are “compelling.” See, e.g., Franks v. Bowman Transp. Co., 424 U.S. 747, 779–80 (1976) (approving retroactive award of seniority to class of truckdrivers who had been victims of unlawful employment discrimination); Johnson v. California, 543 U.S. 499, 507, 512–13 (2005) (assigning inmates based upon their race to prevent violence caused by racial gangs in prison); Korematsu v. United States, 323 U.S. 214, 216–17 (1944) (preventing espionage and sabotage during war). ¶39 The government’s interest must not be “amorphous.” See SFFA, 600 U.S. at 226 (remedying social discrimination is “an amorphous concept of injury that may be ageless in its reach into the past”) (quoting Bakke, 438 U.S. at 307 (opinion of Powell, J.)). But see Franks, 424 U.S. at 771 13  RABIEBNA v. HIGHER EDUCATIONAL AIDS BOARD Opinion of the Court (paying backpay makes members of the discriminated class “whole for [the] injuries [they] suffered”); Johnson v. California, 543 U.S. at 507 (injuries); Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 420 (1977) (comparing the distribution of students “to what it would have been in the absence of such constitutional violations”). It must be empirically adduced. ¶40 Over time, courts have rejected many of these asserted race- based interests. See Trump v. Hawaii, 585 U.S. 667, 710 (2018) (declaring that Korematsu was “gravely wrong the day it was decided”); Shaw v. Hunt, 517 U.S. 899, 909–10 (1996) (“[A]n effort to alleviate the effects of societal discrimination is not a compelling interest.”); J.A. Croson Co., 488 U.S. at 505–06 (permitting “past societal discrimination” to “serve as the basis for rigid racial preferences” would shutter “[t]he dream of a Nation of equal citizens” “in a mosaic of shifting preferences based on inherently unmeasurable claims of past wrongs” “contrary to both the letter and spirit” of the Constitution “whose central command is equality”). ¶41 Currently, the Court’s precedents have recognized two compelling interests justifying the governmental use of racial classifications: Avoiding race riots in prison, Johnson, 543 U.S. at 512–13, and remediating specific, identified instances of government-sanctioned discrimination, Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 720 (2007); Hunt, 517 U.S. at 909–10. Neither are relevant here. ¶42 We hold that HEAB has failed to demonstrate that the legislature’s goals of increasing diversity and equalizing educational opportunities for certain students are compelling in this instance. In the circuit court, HEAB argued that “the reason for the Grant Program, from its genesis, is to retain a diverse population of lawfully admitted students, who otherwise fail to remain in their programs at disproportionally high rates.” In HEAB’s view, “[t]he Grant Program serves the compelling interest of promoting the diversity of student bodies by helping minority students with financial need remain enrolled in school and graduate.” Under Grutter v. Bollinger, HEAB posited that the first “prong of strict scrutiny is met, as the [United States] Supreme Court has repeatedly held diversity in higher education is a compelling interest. Grutter, 539 U.S. at 328; Fisher, 570 U.S. at 309.” ¶43 HEAB reiterated its position at the court of appeals. Once again, HEAB asserted that the Wisconsin Legislature enacted WIS. STAT. § 39.44, which established the Grant Program, to remedy a “crisis in education” by financially assisting certain racially classified groups to 14  RABIEBNA v. HIGHER EDUCATIONAL AIDS BOARD Opinion of the Court retain their attendance in private and technical colleges so as to foster “student body diversity” on those campuses and not “rob[] the schools of the enriching environment a diverse student body brings.” The Grant Program “solve[s] the problem of schools losing their diverse student bodies through financial attrition, which is the same compelling end at issue in Grutter[, 539 U.S. 306]: attaining student body diversity.” To HEAB, the Grant Program’s compelling interest was increasing student diversity. ¶44 But HEAB modified its stance after SFFA. Despite its previous assertions, HEAB contended that the legislature enacted WIS. STAT. § 39.44 to increase the retention and graduation rates of certain racial groups of students to mitigate the disparity between the graduation rates for Black- American, Hispanic, and American-Indian students and students from nonpreferred classes in Wisconsin’s private and technical colleges. Post- SFFA, HEAB’s position was that the Grant Program remedied a “crisis” in retention and graduation rates among certain preferred minorities. ¶45 Now, before this court, HEAB insists that the “statute reflects the State’s compelling interest in reducing disproportionate [attrition]” “rates among Black, Hispanic, American Indian, and certain Southeast Asian students by awarding grants, beginning sophomore year, through the Wisconsin technical colleges, private colleges, and tribal colleges the students attend.” By reducing the disproportionate attrition rates, the Grant Program “furthers the compelling interests of diversity and equal educational opportunity.” ¶46 Here, HEAB’s first asserted interest—promoting the diversity of student bodies by helping minority students with financial needs remain enrolled in school and graduate—fails. At WIS. STAT. § 39.44’s inception, the legislature sought to promote diversity in higher education by retaining a diverse population who fail to remain in the state’s higher educational programs at disproportionally high rates. Certainly, objectives rooted in diversity might seem compelling. See, e.g., Bakke, 438 U.S. 265; Grutter, 539 U.S. 306; Fisher II, 579 U.S. 365. But the SFFA Court concluded that the objectives identified by the universities as flowing from a diverse student body were “not sufficiently coherent” to constitute a compelling government interest. SFFA, 600 U.S. at 214. Here, HEAB has not even identified any objectives or benefits it hopes to promote or achieve through diverse student bodies at private and technical colleges. Thus, it is left to argue that diversity is a compelling interest in and of itself, a position that lacks support under current law. 15  RABIEBNA v. HIGHER EDUCATIONAL AIDS BOARD Opinion of the Court ¶47 And, HEAB has failed to demonstrate how its second asserted interest—equalizing education opportunities for certain students by offering them financial aid—was compelling when WIS. STAT. § 39.44 was enacted. Ensuring that all public educational opportunities are offered to all students is vital to a free and fair nation. The schoolhouse doors should be open to all. But before the government may impose a race-, national origin-, ancestry-, or alienage-based remedy, it must demonstrate through previous government-sanctioned discrimination, regulatory discrimination, legislatively demonstrated statistical findings, or otherwise that the problem it seeks to remedy actually existed when the statute was passed. See, e.g., J.A. Croson Co., 488 U.S. at 500 (requiring legislatures to provide a strong evidentiary basis before concluding that race-based remedial action is required); Associated Gen. Contractors of Ohio, Inc. v. Drabik, 214 F.3d 730, 735 (6th Cir. 2000) (making this showing requires a state to rely on more than “mere speculation, or legislative pronouncements, of past discrimination”). None of HEAB’s data is from the time of the statute’s enactment. Its support stems from data produced decades later. HEAB’s data shows that between 2015 and 2016, 80% of students who received financial aid from the Grant Program either completed or were continuing toward completing their degree or certificate. Similarly, recipients’ graduation or retention rates were 85% in 2016 to 2017, 77% in 2017 to 2018, and 80% in 2018 to 2019. For Wisconsin technical colleges, HEAB asserts that “grant recipients graduated at more than double the rate of students who did not receive a grant, 69% to 29%.” Between 2019 and 2020, “85% of grant recipients reported that, without it, they either would not have been able to attend school, or would have faced difficulties in doing so.” ¶48 Yet, as the court of appeals correctly noted, the data that the legislature relied upon when promulgating the statute focused on the University of Wisconsin’s four-year, public universities—not technical and private colleges across the state. Rabiebna, 416 Wis. 2d 44, ¶¶46–48. Moreover, the legislature’s research in the 1980s addressed the governor’s proposal, which focuse