What's In a Name? American Indian Mascots and Schools

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Written by Kevin Sutton, Attorney and Partner at Lusk Albertson PLC

October in America. Friday night, watch the Cleveland Indians in an MLB playoff game. On Saturday, see the CMU Chippewas battle on the college football gridiron. On Sunday afternoon, catch the Washington Redskins fight for reign in the NFL.

American Indian symbols are pervasive in our society, particularly as mascots for schools and athletic teams. And while many schools and professional teams have attempted to minimize the imagery associated with the use of such mascots – see, for example, the Cleveland Indians deliberate move away from the prominent use of "Chief Wahoo" on their uniforms – the names and the mascots for these teams and schools largely remain.

The construct of the debate is fairly easy to discern. On one side, you have those who simply find the use of American Indian mascots offensive, a characterization of a proud people, commercialized for profit by those with little understanding or knowledge of the origins or historical challenges of the people. On the other side, there are those who believe the mascots pay homage to the American Indian people, bringing awareness to their culture and historical importance. Mix in alumni who graduated with a mascot they've come to love and identify with, as well as billionaire owners, committed to ensuring the viability of the "brand" in which they have invested so much money and effort, and you begin to understand the strong opinions/motivations.

But what about the K-12 setting, where the financial stakes are seemingly lower than the college and pro sports machine, and the institutions operate on public funds? In recent years, some Michigan districts have taken steps to remove American Indian mascots and logos, while others have affirmed their commitment to such symbols. Where do we stand legally on this issue?

The debate in the K-12 setting took off in earnest in 2003 when the State Board of Education adopted a resolution recommending that schools eliminate the use of American Indian mascots and logos. The State Board subsequently reaffirmed that resolution in 2010. But the action by the State Board did little to inspire widespread change, and the issue largely continued to stagnate in the K-12 world.

In 2013, the Michigan Department of Civil Rights filed a complaint on behalf of American Indian students with the U.S. Department of Education, alleging discrimination by Michigan schools using American Indian mascots or logos, and asking that these schools be prohibited from receiving federal funding. The complaint was ultimately dismissed, however, based on a lack of sufficient evidence that the use of American Indian mascots or logos created a racially hostile environment.

The latest evolution of the issue came in the form of a proposed assault on the financial resources provided to districts that have American Indian mascots and logos. Specifically, the question was raised whether the schools with these mascots could have their state school aid withheld or have the funds forfeited if they continue to have these American Indian mascots. That concept was quickly dismissed by the Michigan Attorney General.

In an opinion dated July 3, 2017, the Attorney General explained that under the Revised School Code, 1976 PA 451, MCL 380.1, and the State School Aid Act, 1979 PA 94, MCL 388.1601, the Superintendent of Public Instruction (State Superintendent) does not have the authority to withhold these funds or to consider the mascot usage as a forfeiture of the funds. The Attorney General noted that the Legislature expressly authorized the withholding or forfeiture of school aid under certain circumstances, but a school's use of a particular mascot or logo is not one of those circumstances.

Undeterred – or perhaps seizing the opening provided by the AG's opinion – State Senator Wayne Schmidt, who represents the northwest portion of the Lower Peninsula, has introduced a bill to remove "Redskins" mascots all together, explaining that the issue is of particular importance to his constituents in the Charlevoix and Traverse City areas. The focus of the proposed legislation is specifically the "Redskins" mascot rather than all American Indian symbols or logos. The bill has been assigned to committee.

For now, we wait to see what happens next. Based on the Attorney General's opinion, should the Legislature pass a measure that specifically permits the withholding or forfeiture of funds where a district maintains a Redskins or American Indian mascot, it seems that such funds could be withheld. However, we have not reached that point and, under the current state of the law, the Attorney General has rejected the withholding or forfeiture of funds. We will need to stay tuned to determine if the Legislature has the political will to make something happen.