Tragedy nearly struck about six months ago when a FedEx cargo plane and a Southwest jet came within 100 feet of each other.
An air traffic controller somehow had cleared both planes for takeoff and landing on the same runway at Austin-Bergstrom International Airport in Texas. Disaster was averted Feb. 22 only because of the quick action of the FedEx plane’s pilot.
Although the incident may have more than one cause, one thing can be sure: The Federal Aviation Administration’s track record in merit-based hiring is atrocious. I know, because I’m the lead counsel in a class-action lawsuit against the FAA, where we are seeking relief for applicants who suffered racial discrimination in the hiring process.
It may seem like light years ago when President Barack Obama aggressively pursued racial division in American society. One way he did this was in federal hiring.
Beginning in 2012, the Obama administration decided that the racial makeup of the FAA’s air traffic controllers did not reflect the general population.
At that time, air traffic controllers came primarily from two sources—military veterans and graduates of the College Training Initiative, a partnership between the FAA and 36 colleges. Those candidates were all scored as “well qualified” under the merits-based previous hiring system.
In 2014, during Obama’s second term, the FAA flushed thousands of “well qualified” College Training Initiative candidates out of the system in favor of race-conscious hiring. The FAA decided to rely on a woefully inadequate personality test called the Biographical Assessment. In short, the FAA was, and is, engaging in race-based social engineering.
This Biographical Assessment, for example, asked applicants to name the high school subject in which they received their lowest grades; to state how many high school sports they participated in; and to specify the number of college credit hours they have in art, music, dance, or drama.
If you’re struggling to find the relevance of these questions to the job of an air traffic controller, you’re not alone.
In a June 15, 2016, statement to Congress, the FAA said the Biographical Assessment “is a computerized test that measures important and demonstrably job-related personal characteristics of applicants.” But actually, the agency intentionally was helping applicants of one race and harming those of other races.
Many might think that having a racially diverse workforce is a laudable goal. But the law strictly limits the ability of an employer, including the federal government, to hire based on race. As we saw in the Supreme Court’s June 29 ruling in the case of Students for Fair Admissions v. Harvard: “Eliminating racial discrimination means eliminating all of it.”
Sacrificing merit at the altar of diversity is never a good policy. In a position such as an air traffic controller where there must be zero tolerance for mistakes, candidate selection should be based only on merit and qualifications. A person’s race doesn’t make him or her any more or less qualified for such a critically important role.
The House passed a bill July 20 reauthorizing $4 billion annually for the FAA for the next five years.
Rep. Brian Babin, R-Texas, authored a provision to eliminate the Biographical Assessment. Although this is an important step after Congress banned use of the assessment in part in 2016, lawmakers should do more to prevent the FAA from engaging in racial balancing or redressing the grievances of those who say they were discriminated against.
In the wake of the Supreme Court’s rulings on college admission policies, Congress should enact a flat prohibition on the FAA and other federal agencies from using race-conscious hiring practices.
In defending against our class-action lawsuit, the FAA never once suggested that the change in the agency’s hiring process was to remedy past discrimination, or that it had a compelling need to discriminate.
Instead, it appears that a former FAA administrator caved in to lobbying groups that wanted the agency to engage in more race-based hiring regardless of merit. Even then, that wasn’t enough. One outside group helped its members cheat on the Biographical Assessment, according to the Transportation Department’s Office of Inspector General.
My clients are would-be air traffic controllers who were well trained and received top scores on the original Air Traffic Training and Selection Examination. This test was developed and validated by the FAA’s Civil Aeronautical Medical Institute to eliminate any form of discrimination. It led to the hiring of thousands of well-qualified air traffic controllers.
At a time when there is an air travel crisis, in large part due to lack of qualified air traffic controllers, the FAA’s intentional malfeasance is especially shocking. Controllers at some major facilities have worked six-day workweeks for many years; the National Airspace System is woefully understaffed.
While you often hear the Transportation Department and the Federal Aviation Administration blame the “airlines” or “weather,” the staffing crisis is often the predominant factor in nationwide air traffic delays. All due to intentional discrimination by the government.
The thousands of well-qualified applicants who were denied an opportunity to become air traffic controllers simply because of their race would be successful controllers today, helping to alleviate the staffing crisis. These men and women were among the 1,000 to 1,500 controllers that the FAA knew and publicly announced to Congress it needed to hire every year to replace retiring controllers.
The Obama administration’s actions made flying less safe because of its dogmatic pursuit of racial quotas. Congress has begun the task of undoing these unconstitutional actions, but much more remains to be done.
As Chief Justice Roberts said in a 2007 opinion from the Supreme Court: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
All federal agencies must follow that maxim.
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