Zhonette and Her Team Fight for ATCS

“The FAA will close previous ATCS Academy trainee competitive inventories, notifying candidates that their prior applications and pre-employment test scores will no longer be considered and encouraging them to apply to future vacancy announcements.”

With that short bulletin issued in 2014, the Federal Aviation Administration notified the Air Traffic Control Specialists (ATCS), who completed years of specialized education and passed a competitive skills-based pre-employment test, that their place on the preferred hiring list was forfeited simply because they did not fit the right biographical profile.

In place of the initial skills-based test, those already on the Qualified Applicant Register were made to complete a biographical questionnaire before their skills-based test results were considered.

I know we’ve shared with you the disgraceful story of how the FAA treated our clients— Andrew Brigida, Suzanne Rebich, Matthew Douglas-Cook, and Pollyanna Wang—but it bears repeating as we take the next step in this critical case.

After 6 months of waiting, a hearing was held on Friday, September 13, allowing MSLF to explain to the U.S. District Court of the District of Columbia why these four individuals should be joined in a single class with roughly 2,600 of their colleagues who were similarly harmed by the Obama administration’s efforts to place racial balance among ATCs ahead of air traffic safety.

Zhonette Brown, MSLF’s general counsel, argued the case. She was ably assisted by MSLF attorneys—at the hearing by Brian Sheldon and during briefing by David McDonald.

I’d like to brief you on the main arguments Zhonette and her team made. Those include:

Defining a clear, ascertainable class based on objective criteria that easily allows individuals to determine whether they are a member of the class. MSLF argues that is easily done as all of the roughly 2,600 individuals that make up the proposed class were purged from the Qualified Applicant Register simultaneously. Individuals on the register knew they were on the register, and also knew when the register was purged. The FAA still has copies of the register as it stood when it was purged should there be any doubts.

Interestingly, the FAA argues that the proposed class cannot allege racial discrimination because the class includes minorities. Here is where some facts are helpful: the biographical questionnaire was the result of a barrier analysis performed by the FAA at the request of the National Black Coalition of Federal Aviation Employees. The analysis found that African American applicants comprise 5% of the Collegiate Training Initiative (CTI) pool (these are applicants who went to college specifically for ATC training) compared to an average of 34% African American representation across the non-CTI applicant sources. The FAA used these results to argue that the Qualified Applicant Registry "had a disparate impact on minority candidates, primarily African-American males," which justified purging the registry in their opinion. Clearly, the harm was done for race-based reasons, impacting all who had demonstrated the necessary skill to do the job.

Demonstrating that an examination of all the class members' claims for relief will produce a common answer to the crucial question, why was I disfavored. The common answer that Andrew and his colleagues seek is whether the FAA can justify its explicit racial discrimination in eliminating the skills-based prioritization of ATC applicants simply because the FAA claimed the register created a racially disparate impact.

Ensuring that the claims of the named plaintiffs and the proposed class members are sufficiently similar so that the plaintiffs’ acts will safeguard the interests of the class. MSLF’s clients and the proposed class as a whole suffered in the same way from a single act—the FAA’s decision to purge the Qualified Applicant Register.

The FAA argues in part that the proposed class cannot include African Americans because purging the Qualified Applicant Register and instituting the biographical questionnaire were done to benefit their interests. And yet, these proposed class members suffered the same harm as their non-African American colleagues who prepared for several years to become ATCs only to have the FAA tell them skill no longer mattered.

The proposed class members seek the same relief from the court: that the FAA's acts be held illegal, and that class members be prioritized for hiring as they were before the register was purged and/or be compensated for the harm they suffered.

Is there anything that illustrates the American ethic more than fighting to ensure that people are selected based on their merit and skill rather than on a convoluted calculus based on the color of their skin? You make it possible for us to continue the fight for not just Andrew, Matthew, Suzanne, and Pollyanna, but for roughly 2,600 Americans. This is the work you make possible.

At Mountain States Legal Foundation we agree with Justice Clarence Thomas who expressed the principle best when he wrote: "The Constitution abhors classifications based on race because every time the government places citizens on racial registers and makes race relevant to the provision of burdens and benefits, it demeans us all.”