The following information comprises ACLU of Idaho Policy Director Kathy Griesmyer's testimony to the Senate State Affairs Committee in opposition of HB 440 on March 9, 2020.

The ACLU of Idaho stands before you today in opposition of HB 440 as it attempts to rollback long-standing affirmative action principles for some of Idaho’s most marginalized people in public employment, education and contracting.

Affirmative action is one of the most effective tools for redressing the injustices caused by our nation's historic discrimination against people of color and women, and for leveling what has long been an uneven playing field. A centuries-long legacy of racism and sexism has not been fully eradicated despite the gains made during the civil rights era. Avenues of opportunity for those previously excluded remain far too narrow. We need affirmative action now more than ever and public support for fair hiring and admission policies continues to rise, with recent polling showing that 60% of the American public supports affirmative action programs for women and 61% favoring programs for minorities.1

HB 440’s attempts to prevent hiring “preferences” based on race, sex, color, ethnicity or national origin, yet legal affirmative action programs in Idaho neither grant preferences based on any of the above protected characteristics, nor do they create quotas as some might fear. The law requires that affirmative action programs must be flexible, using goals and timetables, but not quotas; protect seniority and not interfere with the legitimate seniority expectations of current employees; and be temporary, lasting no longer than necessary to remedy discrimination. Race and gender should not be the sole selection criteria (that would be a quota system), but they do deserve to be among the many factors that are taken into account in hiring, school admissions, and the awarding of government contracts.

Critics of affirmative action policies also claim that hiring and educational decisions should be “color blind,” but years of systemically racist policies makes that impossible. The National Urban Institute proved this theory recently, when it sent equally qualified pairs of job applicants on a series of interviews for entry-level jobs. The young men were coached to display similar levels of enthusiasm and "articulateness." The young white men received 45% more job offers than their African American co-testers; whites were offered the job 52% more often than Latino "applicants."

Many people of color are keenly aware of such disparities, although many whites are not. A poll commissioned by The National Conference, a workplace diversity organization, found that 63% of whites thought African Americans have equal opportunity, whereas 80% of African Americans felt they do not. And if we factor in the decades-long War on Drugs, which disproportionately targets young men of color, and the continual wave of anti-immigrant and refugee laws, it is clear that solid legal protection from discrimination is critical for creating equal opportunity for all.

Further, we know that many U.S. companies have adopted affirmative action policies voluntarily, because they know diverse workforces are better at tailoring their goods and services for a diverse national and global market. Diversity, they attest, is good for the bottom line, which is why more than sixty leading Fortune 500 companies, including 3M, Coca-Cola, General Electric, Hewlett-Packard, Intel, Johnson & Johnson, Kraft Foods, Microsoft, Nike, Pepsi, Procter & Gamble, and Reebok have come out in support of affirmative action.2 Proactive recruitment efforts, diversity programs, and safeguards such as the Equal Employment Opportunity Commission all help to level an unfair playing ground, foster improved workplace relations and provide recourse for workers who feel they have suffered from discrimination. Even local companies such as Micron, Simplot, Albertsons, Boise Cascade and Idaho Power have focused on diversity and inclusion efforts to boost diversity in the workplace either through the adoption of equal-opportunity hiring principles and/or the creation of their own employee non-discrimination policies.3

Not talking about race and sex doesn’t erase discrimination; instead it ignores the ways in which deep-seeded structural racial and gender inequality impacts individuals. And in states were where race-based affirmative action policies has been banned, there have been devastating impacts, such as decreases in black and Hispanic educational opportunities as an example.4 As long as such inequalities exist, treating everyone fairly does not mean that we should treat everyone the same. Instead, we must support and defend policies that remove the numerous barriers that obstruct the lanes of women, Latinos, Native Americans, African Americans, Asian Americans and others disadvantaged by their racial, gender and class backgrounds. For these reasons we urge your no vote to keep HB 440 in committee. Thank you.

1 Norman, Jim. “Americans Support for Affirmative Action Rises.” Gallup. 11 February 2020.
2 Brief for Amici Curiae: 65 Leading American Businesses in Grutter v. Bollinger, United States Supreme Court, 2003.
3 Kustra, Bob. “Attention Republicans: Commitment to Diversity is Certainly the Idaho Corporate Way.” Idaho Statesman. 11 February 2020.
4 Munguia, Hayley. “Here’s What Happens When You Ban Affirmative Action in College Admissions.” FiveThirtyEight. 11 February 2020.