Trump Administration does something smart

Only 44 years after the Carter Administration junked the civil service exam because of disparate impact, the White House is trying to get out from under the Luevano Consent Decree.

Ten years ago I wrote a Taki’s Magazine article on one of the more self-destructive acts in the history of the U.S. government when the defeated Carter Administration intentionally hamstrung state capacity by throwing out the brand new, superbly validate civil service exam in the name of racial equity:

For example, its last [month] in office in January 1981, the Carter administration did long term damage to the U.S. government by abolishing the venerable civil service examination for hiring federal bureaucrats. The pretext was a consent decree throwing the derisory Luevano suit against the Carter Administration that had been rigged up by Carter’s Equal Employment Opportunity Commission and its allies on the left.

Ironically, civil service exams to reform the spoils system were one of the great causes of 19th century progressives. When President James Garfield was assassinated by a frustrated office-seeker in 1881, public opinion veered decisively toward awarding federal jobs by competitive examination.

During the 1920s, federal testing for job seekers became scientific. By the late 1970s, the federal government had a superb test, the Professional and Administrative Career Examination, which had been validated for 118 different positions.

Of course, blacks and Hispanics did less well on this test than whites and Asians. Therefore the EEOC tacitly sponsored a lawsuit and filed it under the name of a Mexican-American plaintiff who had failed the test, Angel Luevano.

For two years the Carter administration quietly conspired with liberal public interest law firms, the purported opponents in the suit. And as it was packing up, the Carter Justice Department signed a consent decree, approved by a picked judge, junking the civil service examination. …

The outgoing Carter Justice officials declared that no exam could replace PACE until a valid one without adverse impact on blacks and Hispanics could be devised. In the 34 years since, this has proven impossible. So, ever since, most federal jobs have been awarded by various temporary makeshift methods involving high degrees of subjectivity (making hiring more ethnically biased was, of course, the point of Luevano).

Finally, 44 years later, the new Trump Administration is trying to get out from under the Luevano consent decree:

From the Trump Administration’s filing:

… More than forty years later, the Luevano Consent Decree still binds OPM [Office of Personnel Management] and every other executive branch agency. But OPM has struggled to develop any test that meets the Decree’s stringent adverse impact, validity, and notice requirements.

In the first decade after entering into the Decree, OPM developed six different exams that it hoped could replace the PACE. These exams were “developed with significant agency input.” Each was subject to separate and rigorous validation studies. All selection methods were considered to have good validity, and several were found to have high validity. But, “[u]nfortunately, the OPM studies also found that those selection methods which were most valid also had the greatest adverse impact.”

That’s pretty much the fundamental law of psychometrics: you can have a valid test or you can have a test on which the races score equally, but you can’t have both.

Thus, OPM was unable to proceed with those exams, even though they showed “no overall unfairness against minorities.”

In 1990, OPM tried yet another test—the Administrative Careers With America (“ACWA”) written examination. … ACWA included “both a cognitive ability multiple-choice section and a biodata self-rating section that helps reduce adverse impact.”

Not surprisingly, biographical data “self-rating sections” (e.g., “Are you a hard worker?”) tend to produce more racially equal scores than questions with objective answers.

In the notorious case of the Obama Administration turning Air Traffic Controller hiring upside down to get more blacks, the old test was replaced with a biographical assessment in which you scored higher the more evidence you cited that you were a dumb-ass:

…a candidate could be awarded 15 points, the highest possible for any question, if they indicated that their lowest grades in high school were in science….

Back to the Trump DOJ’s filing against Luevano:

The MSPB supported the use of the ACWA written examination because it was “better at predicting future job performance” than the “temporary hiring authorities established under Luevano.” But the ACWA written test did not last long either and was rarely used after the mid-1990s. Again, agencies found, among other problems, that the new test caused an “adverse impact” under the Decree. Today, some agencies use the ACWA “rating schedule”—“a 156-item multiple-choice, self-rating form” that does not contain a “cognitive ability portion”—even though MSPB has found that it “is far less able to predict future performance.” Otherwise, agencies largely … act on their own, employing a tapestry of different assessment tools for various positions. … The most used assessment is a simple resume. Other common assessments include interviews and biographical questionnaires. Very few agencies use job knowledge or cognitive ability tests.

… As might be expected with a decree that was entered more than four decades ago, the Luevano Consent Decree directly conflicts with multiple Supreme Court decisions from the intervening decades. The Decree discriminates on the basis of race by singling out certain racial groups for preferential treatment and requires the federal government to make hiring decisions using explicit racial classifications. Far from having a compelling interest that might survive strict scrutiny, the Decree’s purpose—increasing the number of black and Hispanic hires to make them statistically equivalent to their representation in the population—has been squarely rejected by the Supreme Court. This kind of blatant racial favoritism is not permitted under current Supreme Court precedent, and the Decree has thus become an outdated and misguided instrument. The stated goal of the Luevano Consent Decree was to “eliminate the underrepresentation of minorities in the Federal work force.” Under current law, this is discrimination on the basis of race. Since the Decree was approved in 1981, the Supreme Court has held repeatedly that the Equal Protection [amendment] applies to discrimination against any racial group regardless of minority status. …

The Luevano Consent Decree certainly fails the strict scrutiny test. The Supreme Court has identified only two compelling interests that would allow racial classification: (1) “remediating specific, identified instances of past discrimination that violated the Constitution or a statute[;]” and (2) “avoiding imminent and serious risks to human safety in prisons, such as a race riot.”

Hiring better federal employees by using scientifically validated hiring methods would seem like a really good way to save money on the federal government.