Opinion: Merit-based civil service is making a comeback.
An obscure consent decree prevents the federal government from hiring the best people. Trump is finally trying to end it.
One of President Trump’s key campaign promises was to restore meritocracy and competence to the federal government. Some of the shenanigans of DOGE and the recent tariff debacle suggest that Trump has had some difficulty fulfilling that promise. However, his administration recently took a necessary and important step towards making the federal civil service more competent. A little-known consent decree from 1981 that has hamstrung merit-based hiring might finally be coming to an end.
That consent decree originated from a case called Luevano v. Campbell. Angel Luevano, the lead plaintiff, was a Hispanic man who failed the Professional and Administrative Careers Examination, a test that screened civil service candidates. Luevano, on behalf of himself and other black and Hispanic candidates who failed the exam, sued the government, arguing that the test had a “disparate impact” since black and Hispanic candidates failed the test at higher rates than whites. Instead of fighting to retain the test, the government, in the lame-duck days of Jimmy Carter, entered a binding consent decree, requiring them to develop new testing that did not have a racially disparate impact.
Unfortunately, the government was not able to come up with a test that was both effective and non-disparate in its impact. As the government put it in its motion to terminate the consent decree:
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. Id. 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.” Thus, OPM was unable to proceed with those exams, even though they showed “no overall unfairness against minorities.”
The consent decree, in effect, prevents the federal government from implementing a valid and uniform civil service exam.
The lack of effective and uniform examination has resulted in federal agencies adopting a range of dubious tests to screen applicants. A particularly egregious example comes from the Federal Aviation Administration’s air traffic control hiring. As Substacker Trace Woodgrains has reported, the FAA, in an effort to control for the disparate impact of a valid job entrance examination, required candidates to take a biographical questionnaire to be eligible for air traffic control positions. Candidates needed to score 114 out of 179 on this biographical questionnaire to avoid being culled from the recruitment pool. Candidates earned these points by “correctly” answering questions like this:
and this:
How did this questionnaire “improve” diversity? A FAA employee told members of the National Black Coalition of Federal Aviation Employees what answers to select. As a result, numerous qualified candidates, many of whom spent substantial amounts of money training to become air traffic controllers, were disqualified, and the government’s ability to recruit the best people for this important job was compromised. With the Luevano consent decree gone, the federal government will be able to establish uniform and effective selection methods for employees, and nonsense like this questionnaire can be averted.
Diversity in the federal workforce is a fine goal. The federal government should recruit prospective candidates from diverse backgrounds to ensure everyone has the knowledge and opportunity necessary to have a chance at entering the civil service. But when it comes to selection, the government owes it to the American people to pick the best possible person for the job. Ending the Luevano consent decree and bringing back effective entrance examinations for civil service candidates is an important step in that direction.