A decades-old court order that blocked the federal government from using tests to measure job applicants’ skills was terminated by a D.C. judge on Friday, setting the stage for an overhaul of the federal workforce that could be one of President Donald Trump’s most lasting achievements.
In 1981, Angel Luevano sued the federal government over the Professional and Administrative Career Examination, a test that helped identify the best and brightest out of the tens of thousands who apply for government jobs each year. Luevano argued that the test kept too many blacks and Hispanics out of government, and, in the waning days of President Jimmy Carter’s administration, OPM agreed to pause the test for five years.
Forty-four years later, the “Luevano Consent Decree” was somehow still intact. In January, the Trump administration filed a brief challenging the agreement — a feat which required reopening a decades-closed court case in which the original judge had died. The administration argued that it was doubtful the decree was ever appropriate, and that, with Supreme Court case law outlawing affirmative action, it was certainly not now.
Angel Luevano is still alive, and agreed to terminate the consent decree, court papers show. Luevano was represented by lawyers from Hispanic and black civil rights groups, two of whom did not return a request for comment.
For almost half a century, the federal government has operated like a college that didn’t look at SAT scores when admitting students. Rescinding the Luevano Consent Decree could take the government from safety-school status to Ivy League.
“We’re making civil service great again,” Office of Personnel Management Director Scott Kupor told The Daily Wire Friday.
The move opens the door to technocratic hiring assessments that allow the government to hire applicants who objectively demonstrate the most aptitude. Kupor told The Daily Wire in an interview that the move means Americans may start getting better service at government agencies, with government being more helpful and responsive.
“The lasting opportunity here is: can we change the culture of the workforce in the federal government? Can we make it a high-performance culture? That will definitely be the president’s legacy, if we can make that successful,” he said.
After the demise of the Professional and Administrative Career Examination and similar tests, the government began relying on “self-assessments” to sift through job applicants, as it was the only measure that saw a sufficient number of minorities enter government. Applicants simply declared how good they were at a task, with no attempt to verify it or compare them to other applicants. That led to a hiring process that rewarded boasting and fabrications as much as merit.
Kupor said the de facto prohibition on government checking people’s competency before hiring them — at which point they become difficult to remove — had become particularly crippling in the modern age, with people using artificial intelligence or simply copy-and-paste to take a job advertisement’s requirements and send an application asserting that they had all those skills.
The inability to use objective measures to sort the most qualified applicants from a large pool — as virtually all other large employers do — has profoundly impacted the caliber of government employees. The Luevano Consent Decree was perhaps one of the largest applications ever of the philosophy known as “disparate impact,” which holds that anything that produces racially unbalanced outcomes must inherently be racist. But the fallout went beyond just minorities, leaving little way to differentiate a brilliant white job applicant from an incompetent white applicant.
OPM General Counsel Andrew Kloster told The Daily Wire in an interview that the government did not make any concessions to reach the agreement.
“It was a very easy process,” he said. “They just flat out agreed. It would not have happened without the original named plaintiff agreeing to it and the judge agreeing to accept it.”
“This is really kind of an understanding that disparate impact as a way to measure things is not the law of the land anymore. You have to actually show real discrimination. The explicit argument was that the objective tests themselves were racially biased, and obviously that’s bogus.”
It is yet to be decided whether OPM will institute a general aptitude test across agencies. But many specific job categories are likely to have their own tests. If the government is hiring, say, computer programmers, it won’t simply ask them how good they are at a programming language. Instead, it will administer a coding test to rank applicants on a uniform scale.
The hiring process used by government agencies for decades resulted in hiring that was, at best, random, and at worst, allowed the sort of cronyism and favoritism that the consent decree was supposed to avoid, Kupor said.
“We’re going to be able to attract really, really good people, because they’re going to be fairly tested for their merit,” he said. “It also really does eliminate a lot of potential for a bias in the hiring process if you actually use objective standards.”
“This is a win for fairness, as well as a win for getting American people the ability to get people with the appropriate skills into the right jobs.”
