Two weeks ago The College Fix reported on how the Federal Aviation Administration ditched some 3,000 highly qualified air traffic control candidates … because the racial mix of the group didn’t conform to some bureaucrats’ ideal.
At least one person even claims she was given access to one of the test’s answers.
Now, Peter Kirsanow of the US Commission on Civil Rights has written a letter to Department of Transportation head Michael Huerta informing him that, among other things, US Supreme Court precedent does not look good for the FAA’s diversity meddlings.
The case in point is Ricci v. DeStefano where the city of New Haven, Connecticut tossed out the test results of fire department exam results for basically the same reason the FAA did: racial bean counting.
[We do not] question an employer’s affirmative efforts to ensure that all groups have a fair opportunity to apply for promotions and to participate in the process by which promotions will be made. But once that process has been established and employers have made clear their selection criteria, they may not then invalidate the test results, thus upsetting an employee’s legitimate expectation not to be judged on the basis of race. Doing so, absent a strong basis in evidence of an impermissible disparate impact, amounts to the sort of racial preference Congress has disclaimed, and is antithetical to the notion of a workplace where individuals are guaranteed equal opportunity regardless of race. . . .
We hold only that, under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate impact liability if it fails to take the race-conscious, discriminatory action. [emphasis added]
Justice Ruth Bader Ginsburg, in her dissent, said that the Court ignored flaws in New Haven’s exam, and that better tests are utilized in other cities which result in more “balanced” racial outcomes.
I’d like to see the FAA make that case if/when any legal action comes its way. For, as Commissioner Kirsanow says,
Furthermore, the FAA cannot claim that it is not discriminating on the basis of race because there is no evidence it is choosing people from the BQ [Biographical Questionnaire] based on their race. First, all accounts of the BQ indicate that it is so opaque as to make it almost impossible to determine how the FAA uses it to choose applicants. Second, the issue in Ricci was not that the city of New Haven had decided to promote black or Hispanic firefighters instead of higher-scoring white firefighters. The city had simply thrown out the scores from the original test. That alone constituted racial discrimination. This issue is largely separate from the question of the effectiveness of the FAA’s earlier criteria. Having established the rules of the game, the FAA may not then refuse to recognize the winners because their skin is the wrong hue.
Two week ago I concluded by asking, “Do you feel safe in that 747 now?”
There! I think that’s an aero-plane.
Commissioner Kirsanow closes his letter with similar sentiments: “There is only one possible response to such lunacy: Surely you can’t be serious.”
Read Commissioner Kirsanow’s full letter.
Dave Huber is an assistant editor of The College Fix. (@ColossusRhodey)
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