The FAA (and Congress) offer a crashable program in diversity

Weeks ago, it seemed common sense — and the Constitution — might prevail when Congress indicated it would veto a Federal Aviation Administration (FAA) plan to abandon its decades-old, race-neutral process of hiring the most motivated, best prepared, and most highly-skilled air traffic controllers (ATCs) to keep American travelers safe in the skies.

No such luck. Fearful of a presidential veto if it stopped the FAA’s race-based hiring scheme, Congress on July 13 cut a deal allowing the FAA to hire half of all new controllers based on race.  President Obama signed the legislation on July 15.

Soon the rest of us will find out how these rookie ATCs fare in guiding 87,000 flights a day carrying tens of millions of passengers across the U.S.

I have battled Congress’s willingness to disperse funds, grant contracts, and award licenses on the basis of race for more than 25 years, and the struggle is ongoing.  

In 1995, a case I brought on behalf of a small Colorado business that was denied highway construction subcontracts because of a racial preference reached the U.S. Supreme Court; it resulted in a landmark ruling (Adarand Constructors, Inc. v, Peña) that the Constitution’s equal protection guarantee applies to Congress. 

The late Justice Antonin Scalia concurred in that decision, “In the eyes of government, we are just one race here.  It is American.”  With its ruling, the Court also overturned two of its earlier decisions holding that Congress could set aside public works funds for minority businesses (Fullilove v. Klutznick, 1980) and award radio and television broadcast licenses based on race (Metro Broadcasting, Inc. v. FCC, 1990).

We’re not there now.  Racial preferences flooded back into almost every major legislative act in Barack Obama’s first term.

Then, early in Obama’s second term, FAA Administrator Michael Huerta announced plans to “transform the [FAA] into a more diverse and inclusive workplace that reflects, understands, and relates to the diverse customers we serve.” 

First, the FAA killed a successful agency program that established accredited aviation degree curricula in 36 colleges and universities in 23 States and Puerto Rico to prepare future ATCs on a color-blind basis for training at the FAA Academy at the Mike Monroney Aeronautical Center in Oklahoma City.

Following that sweeping measure, 2,000 to 3,500 ready-to-hire, highly qualified graduates of those programs got “Dear Applicant” emails advising them that the FAA’s hiring process had changed and they must reapply.  An FAA official later reported that their names had been  “purged” from FAA job application files.

Finally, the FAA announced it would hire via a General Public Announcement–commonly referred to as “off the street”–U.S. citizens with high school diplomas, who speak English, and pass a 62-question “Biographical Questionnaire” (BQ), which includes such questions as, “The number of high school sports I participated in was?” “How would you describe your ideal job?” “What has been the major cause of your failures?” “More classmates would remember me as humble or dominant?”

Late last year, my legal foundation filed a class action lawsuit in Arizona federal district court on behalf of an Arizona State University double major graduate who scored 100 percent on the FAA’s long-standing, demanding, eight-hour computer-based Air Traffic Control Selection and Training exam. His name had been purged from eligibility for hiring regardless.  Incidentally, he along with most of the other ready-to-hire graduates “failed” the BQ test.

Our lawsuit relies in its reasoning on my 1995 victory and on a 2009 Supreme Court decision that struck down New Haven, Connecticut’s decision to abandon the race-neutral hiring of firefighters to increase racial diversity. Anticipating congressional action, the case was stayed in early June, to begin again this month.

But the FAA had pressed forward, with disastrous results.  Because the FAA slowed, froze, and then changed the hiring process, unfilled vacancies among air traffic controllers are at a 26-year high, and more could come quickly.  For example, every ATC in one Alaska international flight sector could retire tomorrow. 

Meantime, the FAA’s Oklahoma City training center is laden with raw trainees unskilled in English, unable to obtain security clearances for DUIs among other reasons, and lacking the discipline for the arduous 17-week training syllabus—the dropout rate is wreaking havoc with class size and schedules. 

Congress bemoaned the gap in hiring but did little else aside from the partial killing of the preposterous BQ “test.”   And then, somewhere in the back rooms, it caved in.

When the bill finally emerged it contained a typical legislative-style compromise.  It said that, after giving preferential consideration to veterans with air traffic control experience, half of all new air traffic controllers must come from the college degree program, which Congress sensibly and legislatively reinstated. But the other half will be hired “off the street,” apparently to satisfy the FAA’s pursuit of racial diversity. 

This scheme fails for several reasons. First, it reaches only half of those “purged” from job application lists.  It is not a remedy for those adversely affected—they remain at the back of the line, uncertain as to how to “reapply.”

It also does not prevent the FAA from doing the same thing again, and, worse yet, it gives congressional approval to a 50 per cent racial quota—after the Supreme Court in 1995 sharply criticized what was, at worst, a 15 per cent preference.

One other result:  Congress’s belated splitting of the difference came too late to save three of the ATC schools that were set up to train everyone, regardless of race, color, or creed.  One of the three schools that failed to survive was the most racially diverse of all, the Inter American University of Puerto Rico.  

Fasten your safety belts as we see what happens next. 

William Perry Pendley is president of Mountain States Legal Foundation in Denver and author of “Sagebrush Rebel: Reagan’s Battle With Environmental Extremists and Why It Matters Today” (Regnery, 2013).



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