By giving its imprimatur to affirmative action, the Supreme Court has helped AA become a palpable part of the American experience. Offered here in a moment is an evaluation of that doctrine as it relates to air controllers.   

The air traffic control system that has been nothing short of miraculous. Old-timers like me can never be complacent about this matter; we remember too well the old days when buying the paper in the morning risked facing a half-page headline announcing a new air crash. The FAA, however, has not been able to keep its hands off the system. Specifically, character and personality, not technical skills are now the first hurdle for would-be controllers.    

Until two years ago most would-be air controllers would apply for training at a CTI (Collegiate Training Initiative) School. If admitted based on some combination of their academic record and piloting experience, and if able to finish the program, candidates would qualify to sit for the eight-hour AT-SAT, a test primarily of skills relevant to the job. Upon passing that test, and after an interview, they would be eligible for FAA training, at the end of which they could work as apprentice controllers for two years and then be certified as full-fledged controllers. In 2014 the FAA overhauled the system. Most important, CTI experience was no longer its first test for admission to FAA training. Nor did aviation experience count, only a high school degree, a few years of work experience in any area, and a passing score on a Biographical Questionnaire (to be discussed shortly). Only then are candidates eligible to take the AT-SAT and, upon passing, qualify for FAA training. The result: one-third of those qualifying for FAA training now have no CTI, military or other aviation-related training. At the same time, over 90% of air traffic control students have failed the biographical test, including some who had extensive military experience and who had earned the highest scores on their AT-SAT exams. These folks were thus ineligible for ultimate FAA certification.   

How to assess the FAA changes, especially given a shortage of controllers? On the one hand, since human lives hang in the balance, more than the usual amount of caution would seem to be called for before an overhaul. The horror felt over the recent loss of the EgyptAir plane shows how deeply invested we are in airline safety. On the other hand, the testing system, for reasons that are not clear, has resulted in relatively few minority and women controllers. (The FAA has been tight-lipped about air control matters. What is known is that the pass rate for minorities on the AT-SAT in 2015 was only two-thirds that of whites.)

In the light of contemporary economic and political conditions, no one can seriously deny that it would be wonderful to leave our children a world in which minorities are proportionately represented in employment. In this respect, the old system was indeed “broke,” a point highlighted by acknowledged EEOC pressure on the FAA to ensure a more inclusive air control system and by FAA chief Michael Huerta’s specific statement on the diversity objectives of the FAA.

In keeping with its original and continuing mandate to ensure safe and efficient air travel, the public face the FAA puts on possible tension between the two goals is a firm denial that any diversity objective lies behind the changes. How to proceed?  Since the FAA has shied away from any real analysis, we have to do it ourselves.

Air traffic controllers would seem to be like pilots and surgeons who, above all, must master highly technical skills. Under the new FAA policy , however, the first test for qualification is not knowledge but “risk tolerance,” “dependability,” “cooperation,” “resilience,” and “stress tolerance,” qualities that the AT-SAT test cannot reveal.

Hence the Biographical Questionnaire. But does the BQ measure the very qualities the FAA claims to seek? For obvious reasons test questions are not released. Fortunately, however, a few items from the mostly multiple choice 2014 test have leaked out. “The number of different high school sports I played in was A) 4 or more… B) 3… C) 2… D)1… E) Didn’t play sports.” “I would rather be known as a person who is very a. determined b. respectful.” I am more a, eager, b. considerate.” Daily News Los Angeles.  “I would rather be known as a person who is very a. determined b. respectful.”  Other questions related to how candidates describe “your ideal job” and the major cause of “your failures.” 

Can these tests be taken seriously, especially when students self-assess in the privacy of their own homes, and can thus be coached, when tests can be retaken, and when controllers spend their shifts in control rooms? Will these kinds of questions say anything useful about risk tolerance et al? Will the major causes of perceived failure change from year to year?

As might be expected, reports of cheating have emerged. A group of sympathetic FAA employees apparently fed some minority candidates questions as well as “correct” answers. (I have not been able to learn what discipline those employees faced.)

But beyond the cheating and the self-assessment, it is simply inconceivable that the number of sports activities a candidate played in high school is more relevant to success in air control than successful service as an air traffic controller in the military for five years. Indeed, a report by the government’s own Office of Aerospace Medicine calling for Questionnaire “biodata” to be tested for validity supports this skepticism.

Since we cannot be sure that the FAA can be trusted to put safety first, its initial mandate, one has to wonder whether diversity might be weighted too heavily.  The larger point here is that the FAA has not been straight with us. The first order of FAA business then should be to explain itself in full. Has technology replaced the need for technical skill?  If the FAA continues to stonewall, we are left with the kind of government arrogance that rallies people to Donald Trump and, to the extent that the FAA is training people who may not have competitive skills, to a distinct sense of foreboding.

Dan Subotnik, Professor at Touro Law School, is author of “Toxic Diversity, Race, Gender, and Law Talk” (NYU) and many articles (the latest in Academic Questions).