Amended affirmative action ban passes Legislature

The legislation for an affirmative action ban has passed the Idaho Legislature — but with an amendment that will protect federal funding contingent on federal affirmative action or related diversity requirements, which had been a concern related to transportation dollars.

House Bill 440 was sponsored by Rep. Heather Scott, R-Blanchard. As originally written, HB440 outlawed any preferences for women or minorities in state or local government hiring, contracting or public education in Idaho. It passed the House on Feb. 17 in a near party-line vote with Republicans in favor and Democrats against.

The Senate amended the bill to exclude federal programs and partnerships that require affirmative action or other diversity measures to protect their attached federal dollars for transportation, construction and education. It passed the amended version on March 12. The House then passed the amended bill on the morning of March 18.

The bill as passed begins: “The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”

The legislation places this language into the Idaho Human Rights Act as a new section, §67-5909A.

The amendment to keep the door open on federal funding reads: “Nothing in this section shall be interpreted as prohibiting action that must be taken to establish or maintain eligibility for any federal program where ineligibility would result in a loss of federal funds to the state.”

HB440 raised concern with construction firms that pursue transportation projects in Idaho funded by federal dollars. The unamended bill would have halted the Disadvantaged Business Enterprise program within the state even though federal highway and contracting dollars are attached to the DBE program.

Attendees of the Highway Forum, held in Boise jointly by the Idaho Transportation Department and the Idaho Associated General Contractors on Feb. 21, expressed concerns about the bill prior to the Senate amendment.

“What’s at stake is the potential loss of $300 million a year (of highway funding),” remarked Russ Rivera of the Idaho Transportation Department at the AGC/ITD forum. “We could lose our federal project dollars without the DBE program.”

Idaho’s current goal for DBE inclusion is 8.3% for all contracts through ITD; despite this, Idaho’s current inclusion rate for contracts is 4.77%.

Idaho AGC CEO Wayne Hammon told the Idaho Business Review that the AGC does not have any opinion or statement on affirmative action; however, Hammon did say that “we are happy that the amendment (excluding projects with federal funding) was adopted.”

The amendment of HB440 was also welcomed by public school districts.

“Thank heavens that the Senate amended that bill,” said Joy Mickelsen, federal programs director Blackfoot District 55. ” We’re the second most diverse school district in the state, with a large number of Shoshone and Hispanic students and their families as patrons. Losing funding for our child nutrition, literacy and migrant-worker programs would really hurt many of our students. When you harm a child’s education, you’re really doing harm for life.”

Nine other states — Texas, Arizona, California, Oklahoma, Michigan, Nebraska, Washington, New Hampshire and Florida — have passed such bans; however, the ban in Texas was later overturned in 2003 by the U.S. Supreme Court.

Idaho’s ban is more far-reaching than many other states’ active affirmative action bans. According to the Brookings Institute, most of the existing bans were targeted mostly at state-funded post-secondary education. They either do not extend to programs involving federal construction or public school funding or have built-in exclusion clauses to protect state programs that receive federal dollars with diversity quotas.