If federal employees seem less efficient than their private-sector counterparts, it may be due in part to a longstanding court order that prohibits the government from using objective tests to rank job applicants—on the grounds that hiring the most competent candidates had an “adverse impact” on Black and Hispanic applicants.

A 1981 court ruling barred federal agencies from using any employment test that resulted in statistically significant differences in hiring rates between Black and Hispanic applicants and their white counterparts, effectively eliminating standardized assessments similar to the SAT in college admissions, the Daily Wire reported.

Now, the Trump administration is preparing to ask a Washington, D.C., court to lift the 40-year ban, arguing that it unlawfully prioritizes race over merit in federal hiring, The Daily Wire has learned.

Given the Supreme Court’s recent ruling against affirmative action, the move is expected to succeed, potentially allowing Trump to reshape the federal workforce into one driven by merit and excellence.

The U.S. Office of Personnel Management “must be relieved of the Luevano Consent Decree to return common sense to federal hiring,” the Trump administration will tell the D.C. federal court, according to a motion obtained by the outlet.

The motion says that the decree “blatantly conflicts with current law” because it “requires the federal government to make hiring decisions using explicit racial classification” and “this kind of blatant racial favoritism is not permitted under current Supreme Court precedent.”

It cites a string of cases, including the 2023 Students for Fair Admissions v. Harvard case that ended affirmative action. “By favoring the applications of blacks and Hispanics, the Decree disfavors all other racial groups. Like school admissions, hiring in the federal government is a ‘zero-sum’ proposition,” it says.

The administration is set to argue that the decree blocks the president from using “heavily researched and predictive tests that would streamline the federal hiring process and lead to a more capable workforce.”

In the 1970s, the Office of Personnel Management (OPM) used a written test called the Professional Administrative Career Examination (PACE) to evaluate job applicants. The test was designed to predict employee performance accurately and identify top candidates.

However, a class-action lawsuit argued that assessing cognitive ability would disproportionately reduce the number of Black and Hispanic hires in the federal workforce.

The administration of President Jimmy Carter defended PACE, asserting that it was rigorously developed to be fair, effective, and beneficial in hiring. However, in the final days of Carter’s presidency, his administration settled the lawsuit, agreeing to discontinue the test and granting the plaintiffs veto power over any potential replacement.

Over the next decade, OPM developed six different tests in an attempt to comply with the court order. However, every test that effectively identified the most competent candidates also had “the greatest adverse impact” on Black applicants, according to court filings—despite the fact that none of the tests contained any explicitly discriminatory content.

In 1990, OPM introduced another exam that combined objective cognitive ability questions with a “self-rating section” intended to mitigate disparities. However, even this hybrid approach failed to produce the exact statistical equity required by the ruling.

As a result, OPM ultimately abandoned objective testing altogether and relied solely on the self-rating section, the Daily Wire reported.

In other words, the only hiring method OPM has found that ensures a higher percentage of Black applicants in the federal workforce is one that primarily measures self-confidence rather than ability. Many federal agencies now rely on a multiple-choice questionnaire where applicants rank themselves on how proficient they believe they are in various tasks.

Despite its widespread use in federal hiring, the Merit Systems Protection Board has determined that this self-assessment approach is “far less able to predict future performance” compared to objective testing.

The Carter-era settlement also gave a boost to those with “oral Spanish language proficiency and/or the requisite knowledge of Hispanic culture,” while not even mentioning any racial groups except blacks and Hispanics.

The Trump administration will argue that “such institutional reform decrees were never intended to turn the federal court into an ‘indefinite institutional monitor.’” The filing will say that the government can only use race in certain “narrowly-tailored” situations that must “be flexible, have a sunset provision, and be of limited duration.” 

The filing also said that when the Supreme Court struck down Harvard’s affirmative action program, it pointed out that affirmative action was supposed to have been temporary.

The Luevano Consent Decree said “jurisdiction shall expire…five years after the cessation of the use of PACE results,” yet the motion says that “was more than forty years ago, and there is still no end in sight,” the Trump administration will argue.