Bill description: HB 440 prohibits the state from discriminating or granting preferential treatment based on race, sex, color, ethnicity, or national origin — with certain exceptions.
Does it violate the principle of equal protection under the law? Examples include laws which discriminate or differentiate based on age, gender, or religion or which apply laws, regulations, rules, or penalties differently based on such characteristics. Conversely, does it restore or protect the principle of equal protection under the law?
HB 440 says 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 unless permitted by an exception."
HB 440 also clarifies that "'state' shall include but not necessarily be limited to the state itself, any city, county, city and county, public university or community college, school district, special district, or any other political subdivision or governmental instrumentality of or within the state."
Ensuring that all individuals are treated equally under the law is consistent with the nature of a free and just society.
Analyst's Note: The original HB 440 was a short bill prohibiting discrimination or preferential treatment in public employment, public education, and public contracting. The amended version does much the same thing, though it adds "procurements" as another activity where such prohibitions will exist, and it modifies additional sections of code to add similar prohibitions.
The amended version (on 3/10) also creates a major exception to allow for discrimination or preferential treatment "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."
This exception is highly problematic both because it explicitly allows the state to continue policies that this bill recognizes as harmful and because it is another case of the state bending the knee to federal blandishments.
The good this bill does is limited in another way. While it attempts to prohibit policies of preferential treatment (what is sometimes called "affirmative action") based on race, sex, color, ethnicity, or national origin, it does not prohibit granting preferential treatment based on poverty status, language barriers, educational struggles, or other such factors.
These or similar factors could be used as proxies by departments or entities that wish to continue their discriminatory practices while still technically falling within the confines of the law.
Despite some problems and limitations, the net impact of the bill is still to reduce (though unfortunately not to eliminate) cases of unequal treatment under the law.
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