FAA endangers public safety through illegal racial ‘diversity’ obsession

FAA endangers public safety through illegal racial ‘diversity’ obsession
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The Federal Aviation Administration is endangering public safety by getting rid of key merit-based hiring criteria for air traffic controllers (such as rewarding high scores on the Air Traffic Selection and Training exam (AT-SAT), and graduation from FAA-accredited CTI Schools).

It abolished these merit-based hiring criteria based on exaggerated fears that they conflicted with “racial diversity.” It replaced them with a biographical questionnaire that asks a series of irrelevant, strange, stupid — and potentially offensive — questions such as “how many sports did you play in high school.” This deliberate and mindless race-norming of the results violates the Supreme Court’s decision in Ricci v. DeStefano, 557 U.S. 557 (2009).

These disturbing revelations are the result of a “six-month investigation into the Federal Aviation Administration’s hiring practices.” That Fox Business investigation, titled “Trouble in the Skies,” revealed that “the newest air traffic control recruits had access to answers on a key test that helped them gain jobs with the FAA,” and that “the FAA’s new obsession with … diversity led to the scrapping of some 3,000 qualified candidates ‘with degrees in air traffic control’ and ‘FAA accredited degrees.’”

As that report notes:

The FAA used to give hiring preference to CTI graduates … who achieved the ‘well qualified’ designation on the AT-SAT, successfully earned a degree from a CTI program and obtained a recommendation from the CTI program’s administrators.

classic example was Matthew Douglas, who seemed to have “it all as he awaited the FAA’s 2014 bid for jobs,” since he had finished his “air traffic control program with a 4.0,” “interned for the FAA,” and “earned a perfect score, 100, on the FAA’s old screening test called the Air Traffic Selection and Training exam, or AT-SAT,” “an eight hour computer based test that measures, ‘aptitude required for entry-level air traffic control positions.’”

But then:

[T[he FAA dropped a bomb. On December 30, 2013 the FAA threw out his AT-SAT score, CTI diploma and recommendations from his CTI program administrators. In fact, the FAA threw out the AT-SAT scores and CTI qualifications of an estimated 3000 CTI graduates and military veterans who were all previously designated “well qualified” to become air traffic controllers. The FAA told them all to start over. But this time, when they applied for a job, their college degrees and previous military experience would mean nothing. They would now compete with thousands of people the agency calls “off the street hires”; anyone who wants to, can walk in off the street without any previous training and apply for an air traffic control job. The FAA’s only requirements, to apply, are be a U.S. citizen, have a high school diploma, speak English and pass the FAA’s new BQ, Biographical Questionnaire….

Unbeknownst to people like Douglas, FAA had been planning to make all their training and hard work irrelevant. “FAA administrator Michael Huerta announced pending changes to the Air Traffic Control hiring process in April 2013, several months before Douglas and the other CTI graduates were discarded,” although the FAA “made no mention of what” those specific changes would be until later. In an FAA press release issued in April 2013, the agency justified sweeping changes by saying that “Administrator Michael Huerta has made an historic commitment to transform the Federal Aviation Administration (FAA) into a more diverse and inclusive workplace that reflects, understands, and relates to the diverse customers we serve.”

For one FAA manager feeling the pressure to promote diversity, even a dumbed-down test apparently wasn’t enough: to maximize racial diversity and ensure that almost everyone would pass, she allegedly handed out the answers in advance to make sure that no one failed. One applicant says she was given prior access to the BQ test, including the preferred answers, by a Front Line Manager at the FAA’s New York Center.

The FAA’s jettisoning of merit-based hiring criteria violated the Supreme Court’s Ricci decision, which limits agencies’ ability to discard hiring criteria in order to increase minority representation, especially when there is no strong evidence that the criteria are not job-related.

The Ricci decision addressed whether the City of New Haven discriminated against a group of white firefighters in violation of Title VII of the Civil Rights Act when the City failed to certify and use the results of a test given to employees vying for promotions within the fire department. The City did not use the test results because they had an unintentional adverse impact on minorities and the City believed it would be liable for discrimination against minorities if the promotions were awarded, but it did not meaningfully consider whether the tests were job-related and thus justified even if they did have a disparate impact on minorities. The City’s decision negatively affected the white candidates, who had expected to be promoted but were not.

The Supreme Court found that New Haven’s desire to avoid or remedy unintentional adverse impact on minority candidates, without more, was not a sufficient justification for dropping the test results, nor could it do so to avoid a “prima facie” case of disparate impact. Rather, the Court ruled, to justify such a race-based selection decision, an employer was required to demonstrate “a strong basis in evidence” that dropping the tests was necessary to prevent unjustifiable disparate impact against minority candidates, requiring evidence that the “tests were flawed because they were not job-related,” not just that they weeded out significantly more minority than white applicants.

Even when such disparate impact is shown, that may not justify junking the test results. As the Ricci decision explained, an employer that certifies test results that will “avoid disparate-impact liability based on” a “strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.”

Here, the FAA’s action is equally suspect, for several reasons.

Unlike the useless “biographical questionnaire,” which asks irrelevant questions about things like sports, the merit-based hiring criteria the FAA discarded were job-related: “A never made public FAA report that supports those claims. Studies of Next Generation Air Traffic Control Specialists II: Analysis of Facility Training Outcomes by Recruitment Source was written in October 2014 by Dana Broach, Ph.D. a researcher at the FAA’s Civil Aerospace Medical Institute in Oklahoma City, Oklahoma.” That report concluded, “Overall, larger proportions of … CTI hires achieved CPC (Certified Professional Controller) status than did general public hires.” And it recommended preferring “CTI hires over general public hires” because doing so would “produce more net CPCs (Certified Professional Controller) than a policy of equal or no preference for recruitment sources.’”

Moreover, while the FAA claims that hiring criteria like a CTI Program degree reduce the racial diversity of its applicant pool, this is based on statistics that critics say are “flawed because they considered CTI enrollment at 4 year schools and failed to include enrollment data from two year schools, like community colleges, which have much larger minority enrollments.” Moreover, not all racial disparities rise to the level of statistically and legally significant racial disparities needed to make out a disparate impact claim.

Nor is “diversity” a reason to use race in the workplace (unlike remedying the disparate impact of criteria that are not job-related, which can be a valid reason for race-conscious measures under Title VII; the Constitution imposes additional limits on the use of race). Courts have declined to allow race-based diversity hiring in the workplace, in cases like Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344 (D.C. Cir. 1998) and Police Association v. New Orleans, 100 F.3d 1159, 1169 (5th Cir. 1996), even though race can be used in college admissions to promote racial diversity. The fact the FAA relies on diversity as a justification for using race, rather than a valid remedial rationale, is itself an independent reason for striking down its use of race, since governments have been held liable for using race for the wrong reason even when a legitimate reason for using race might have existed. See, e.g., Shaw v. Hunt, 517 U.S. 899, 908-09 n.4, 910 (1996); Contractors Ass’n v. Philadelphia, 91 F.3d 586, 597 (3rd. Cir. 1996); Davis v. Halpern, 768 F. Supp. 968, 980 (E.D.N.Y. 1991).

Finally, the capricious “biographical questionnaire” the FAA now uses to hire itself weeds out some qualified minority applicants, like the Native American Matthew Douglas, who had passed the FAA’s original merit-based hiring criteria with flying colors.

Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. Hans also writes for CNS News and has appeared on C-SPAN’s “Washington Journal.”


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