If government bureaucrats seem a little slower than employees elsewhere, it could be because a court order prohibits the federal government from using tests to objectively rank job applicants — on the basis that hiring the most competent employees had an “adverse impact” on blacks and Hispanics.
A 1981 court order blocked agencies from using any test for job applicants that would result in a statistically significant difference in hiring rates between blacks and Hispanics on one hand, and whites on the other. That is akin to blocking colleges from using the SAT.
Now, the Trump administration is set to ask a Washington, D.C., court to dissolve the 40-year ban, arguing that it illegally puts race over merit when it comes to federal hiring, The Daily Wire has learned. The move seems likely to prevail given the Supreme Court’s ban on affirmative action, and could allow Donald Trump to permanently reshape the permanent federal workforce into one comprised of the best and brightest.
The U.S. Office of Personnel Management “must be relieved of the Luevano Consent Decree to return common sense to federal hiring,” the Trump administration will tell the D.C. federal court, according to a motion exclusively obtained by The Daily Wire.
The motion says that the decree “blatantly conflicts with current law” because it “requires the federal government to make hiring decisions using explicit racial classification” and “this kind of blatant racial favoritism is not permitted under current Supreme Court precedent.” It cites a string of cases, including the 2023 Students for Fair Admissions v. Harvard case that ended affirmative action. “By favoring the applications of blacks and Hispanics, the Decree disfavors all other racial groups. Like school admissions, hiring in the federal government is a ‘zero-sum’ proposition,” it says.
The administration will argue that the decree blocks the president from using “heavily researched and predictive tests that would streamline the federal hiring process and lead to a more capable workforce.”
In the 1970s, OPM evaluated hiring prospects via a written test called the Professional Administrative Career Examination (PACE). Its scores accurately predicted who would go on to be exemplary employees. But a class-action lawsuit said that testing for cognitive ability would reduce the number of blacks and Hispanics in the workforce.
President Jimmy Carter’s administration maintained that PACE was rigorously developed to be fair and was accurate and useful. But in the final days of Carter’s term, the administration agreed to a legal settlement with the plaintiffs agreeing to stop using the test and give them veto power over any replacement.
In the next decade, OPM developed six different tests to attempt to satisfy the decree. But every test that accurately identified the most competent workers also had “the greatest adverse impact” to blacks, the court was told years ago, even though nothing in the tests was, on its face, racist.
In 1990, OPM tried another test, which combined objective questions that measured cognitive ability with a “self-rating section that helps reduce adverse impact.” That still wasn’t enough to create the exact statistical equity demanded by the ruling. As a result, OPM began using solely the self-rating section.
In other words, the only test OPM has found to result in a large portion of blacks in the workforce is one that essentially measures boastfulness. Many federal agencies now hire based on a multiple choice questionnaire where applicants rank themselves based on how great they are at different tasks. This has become a common method of ranking applicants to federal jobs, even though the Merit Systems Protection Board found that is “far less able to predict future performance.”
“By relying solely on self-assessments of ‘life and work experience and training,’ the rating schedule struggles to distinguish between entry-level candidates, none of whom have ‘a great deal of experience,’” the Trump administration’s motion says. “As a result, many agencies have expressed ‘dissatisfaction with the quality of candidates referred by OPM from this rating schedule.’”
The Carter-era settlement also gave a boost to those with “oral Spanish language proficiency and/or the requisite knowledge of Hispanic culture,” while not even mentioning any racial groups except blacks and Hispanics.
The Trump administration will argue that “such institutional reform decrees were never intended to turn the federal court into an ‘indefinite institutional monitor.’” It said that the government can only use race in certain “narrowly-tailored” situations that must “be flexible, have a sunset provision, and be of limited duration.” It said that when the Supreme Court struck down Harvard’s affirmative action program, it pointed out that affirmative action was supposed to have been temporary. The Luevano Consent Decree said “jurisdiction shall expire…five years after the cessation of the use of PACE results,” yet the motion says that “was more than forty years ago, and there is still no end in sight.”
Even if it were permissible to make hiring decisions to achieve racial outcomes, none of its plans have worked as intended, the motion adds. OPM also added a fast-track to hiring for employees who had a high GPA or ranked near the top of their class, intended to attract people from historically black colleges. Yet “white women came to be the primary group hired through the Outstanding Scholar Program.”
A Daily Wire analysis of OPM data showed that blacks are over-represented in the federal workforce, not under-represented, making it hard to justify the continuance of the affirmative action decree. Eighteen percent of cabinet agency employees are black, about 50% higher than the percentage of blacks in the population of the United States. At some agencies, the disproportionality is astounding, such as 36% at the Department of Education and Department of Housing and Urban Development, and 29% at the Department of Treasury.
The 1981 consent decree relies on the “disparate impact” theory — which holds that, any time an outcome doesn’t exactly mirror the races of the overall population, it is enough to prove racism even if no tangible racism occurred — that has been rejected by even many Democrats. Many on the Left have been reduced to arguing that diversity, equity, and inclusion (DEI) measures don’t pit racial identity against competence — something that is plainly untrue when it comes to OPM using competency tests.
Colleges that flirted with going SAT-free around 2021 have largely reversed their decisions. Sen. Chuck Schumer (D-NY) has told New York City Democrats to stop trying to do away with the entrance exam to a math magnet high school just because mostly Asians do well on it. President Joe Biden signed a law getting rid of a similar “life experience” survey used to boost minority hiring for air traffic controllers after outrage about how it could put lives at risk.
The motion will be argued by the office of U.S. Attorney for D.C. Ed Martin, a hard-charging conservative who has sought to undo liberals’ use of the D.C. court system for political purposes, including dismissing January 6 cases after Trump pardoned them. He has also indicted an alleged Chinese spy, investigated a Kamala Harris staffer for alleged fraud, and vowed to imprison “thugs with guns.”
The motion set to be filed soon by the Trump administration says that “by favoring the applications of blacks and Hispanics, the Decree disfavors all other racial groups. Like school admissions, hiring in the federal government is a ‘zero-sum’ proposition.”
