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Outstanding Scholar and Bilingual/Bicultural Programs (Luevano Consent Decree)
The following information is provided as background information. Except
for the actual language from the decree, it does not represent formal guidance
from the Department of Justice or from the court.
Background | Outstanding Scholar Program | Bilingual/Bicultural Program
Background Information for both Programs
The Outstanding Scholar and Bilingual / Bicultural programs were established
by a consent decree approved by the United States District Court for the District
of Columbia on November 19, 1981. The decree resolved a class-action suit that
was filed in 1979 and is now known as Angel G. Luevano, et al., v. Janice R.
Lachance, Director, Office of Personnel Management, et al. The plaintiffs alleged
that the Professional and Administrative Career Exam (PACE), which the Government
had been using to hire into about 120 occupations at the GS-5 and GS-7 levels,
had adverse impact on the employment of African Americans and Hispanics for
reasons that were not job-related.
Although the Outstanding Scholar and Bilingual/ Bicultural programs are aimed
at addressing underrepresentation of African Americans and Hispanics, the programs
have never been restricted to those designated minority groups. The history
of the programs' use is consistent with that openness.
The merit principle, that "Recruitment should be from qualified individuals
from appropriate sources in an endeavor to achieve a work force from all segments
of society, and selection and advancement should be determined solely on the
basis of relative ability, knowledge, and skills...," still applies. [5 U.S.C.
2301(b)(1)]
To achieve its intent, the Luevano consent decree depends on agencies to focus
their recruiting on sources that would increase the pool of African American
and Hispanic candidates for employment. Actual hiring decisions must not be
made on the basis of race or national origin except in situations that meet
all of the requirements established by the Supreme Court in its 1995 ruling
in Adarand Constructors v. Pena.
- Occupations Covered. The Outstanding Scholar and Bilingual
/ Bicultural programs may be used to hire into only certain positions at grades
GS-5 and GS-7. Only those positions which were subject to the PACE exam are
covered by the consent decree. Appendix A lists the covered
occupations, updated to reflect changes in occupational classification
that were made after the consent decree was issued. Persons may not be selected
into covered positions with the intent of moving them later to non-covered
positions. (See 5 CFR 330.501 and 330.503.)
- Relationship to Competitive Examining. The Outstanding
Scholar and Bilingual / Bicultural programs must only be used as supplements
to competitive examining. They should not be used unless an agency has an
established pattern of competitive selection into the covered jobs or is currently
making competitive selections into those jobs. The Outstanding Scholar and
Bilingual / Bicultural programs should be used to a lesser degree, as a supplement
to reduce adverse impact on African Americans and Hispanics. There is neither
a requirement nor an authority to use either program to hire only persons
from the designated minority groups. To reduce adverse impact, agencies should
focus their recruiting in a way that increases the pool of
African American and Hispanic candidates for employment in these occupations.
- Record-keeping. Under Section 25 of the consent decree,
agencies are to collect race and national origin (RNO) data on all applicants
for Luevano-covered occupations; similar data is collected through
the Government's Central Personnel Data File (CPDF) on those actually appointed.
For Outstanding Scholar applicants, agencies collect data on form OPM-1386B.
Completing the form is optional for applicants, but it is mandatory that agencies
provide copies of the form to applicants. In January of each year, agencies
are required to report to OPM the prior calendar year's cumulative RNO data
on applicants, using form OPM-1592. In March of each year, agencies must also
submit narrative reports on their prior year's efforts to use special programs
to eliminate adverse impact on African Americans and Hispanics when hiring
into former Professional and Administrative Career Exam (PACE) occupations.
- Agencies covered. Although OPM was the defendant named
in the caption, approximately 45 other departments and agencies were listed
as representatives of the defendant class, which included all agencies that
had ever used the Professional and Administrative Career Exam (PACE). Since
most agencies were defendants in the Luevano case, whether specifically
named or not, each should consult its own legal counsel to ensure compliance
with the terms of the decree and with other provisions of law.
The Outstanding Scholar Program
- Eligibility. The Outstanding Scholar Program may be used
to appoint those college graduates from accredited schools who obtained a
grade point average of 3.5 or higher on a 4.0 scale for all undergraduate
courses completed toward a baccalaureate degree. It can also be used to appoint
those who stand in the upper 10% of a baccalaureate graduating class, or of
a major university subdivision such as a College of Arts and Sciences. These
appointments may be made without going through an examination procedure for
jobs at grades GS-5 and GS-7 in covered occupations.
- Announcing Vacancies. Prior to making appointments under
the program, an agency must advertise positions, including posting them through
OPM's job information system. There are three basic reasons why the positions
must be announced:
- By law, the principle of merit principle requires fair and open competition,
which in turn requires public notice of vacancies so all who are eligible
may apply [5 U.S.C. 2301];
- Another law requires agencies to report to OPM and to the United States
Employment Service of the Department of Labor, each vacant position in
the agency which is in the competitive service or the Senior Executive
Service and for which the agency seeks applications from persons outside
the Federal service [5 U.S.C. 3327]; and
- The regulation establishing the Interagency Career Transition Assistance
Plan (ICTAP) for Displaced Employees requires agencies to report all vacancies
to OPM when accepting applications from outside the agency (including
applications for temporary positions lasting 120 or more days)[5 CFR 330.705].
Applicants who meet the ICTAP requirements must be selected before Outstanding
Scholars. [See also, Relationship to Competitive Examining, above.]
- Timing of Appointments. Outstanding Scholars cannot be
appointed until they have actually become "college graduates." They may, however,
be given conditional offers pending graduation. Although Outstanding Scholar
candidates do not have to appear on a certificate, their consideration must
be concurrent with the priority consideration of displaced employees eligible
for ICTAP selection (see above). The Outstanding Scholar selection and offer
need to be made within 90 days from the time a certificate is returned to
the agency personnel office, based on an announcement open to ICTAP candidates.
If a selection has not been made within those 90 days, the agency is required
to readvertise the vacancy.
After the selection, the candidate should be appointed to the position within
a reasonable amount of time. To accommodate special situations, however, such
as the completion of education, a geographical move, obligations to current
employers, temporary agency hiring restrictions, and the processing of security
clearances, an agency may delay appointment up to six months from the date
of selection. If an agency exceeds six months, it is required to readvertise
the vacancy. Requests for extensions beyond six months will be entertained
by OPM on a case by case basis. The decree sets no time limit after graduation
for Outstanding Scholar eligibility, nor does it set a limit on the number
of times an individual can receive Outstanding Scholar appointments.
- Grade point average. The decree prevents the use of graduate
grades in calculating grade point averages (GPAs). It also requires using
grades received in all undergraduate courses leading to the degree. This would
include courses from all undergraduate schools attended, not just courses
taken at the school providing the degree. That requirement also means that
the candidate must have the 3.5 GPA at the time of graduation; any conditional
offers made prior to graduation must be rescinded if the GPA is not maintained.
Since the grade point average must be calculated on a 4.0 scale, agencies
also need to adjust GPAs that were based on a scale that allows a 4.5 (A+)
grade.
- Class Standing. The decree is specific in limiting to the
upper 10% of a graduating class, or of a major university subdivision, eligibility
based on class standing. A major university subdivision is a college or school
and is not merely a department or program of study. For class standing to
be used, it must be determined formally by the college, school, or university.
- Relationship to Qualification Standards. To be selected
through this program, a candidate must meet both the eligibility requirements
for the Outstanding Scholar program and the qualification standards for the
position. Basic qualifications are described in OPM's Operating Manual, Qualifications
Standards for General Schedule Positions. Agencies may add their own job-related
requirements. The manual describes such things as the requirement that education
be from accredited colleges and universities and the established procedure
of rounding GPAs to the nearest tenth of a percent (i.e., 3.45 rounded to
3.5). The manual also describes the requirements for the Superior Academic
Achievement (S.A.A.) provision. The S.A.A. designation is solely grade-determining.
It establishes eligibility to appoint at the GS-7 level instead of at GS-5,
but does not in itself provide an appointment opportunity.
- Direct hire. Although the term "direct hire" is used, the
decree essentially provides for a noncompetitive appointment to the competitive
service. "Direct hire" means the ability to hire without having to rank candidates,
but only when there are less than four candidates and there are no candidates
eligible for veterans' preference. The Outstanding Scholar program does not
have that restriction. Rating and ranking are not required, so neither the
"rule of three" nor veterans' preference are applied. There are requirements,
however, that the positions be announced, that displaced employees be given
preference, and that the program only be used as a supplement to competitive
examining. (See "Announcing Vacancies" and "Legal Context," above.)
The Bilingual/Bicultural Program
- Eligibility. An agency may appoint applicants who obtain
a passing score in an examination, without further regard to rank, provided
that:
- the job is one in which interaction with the public or job performance
would be enhanced by having bilingual and/or bicultural skills and is at
grade GS-5 or GS-7 in a covered occupation; and
- the agency has determined through use of a reasonable questionnaire or
interview that the applicant to whom appointment is to be offered has the
required level of oral Spanish language proficiency and/or the requisite
knowledge of Hispanic culture. Agencies must maintain documentation that
these requirements have been met.
- Rating Candidates. Unlike the Outstanding Scholar program,
the Bilingual / Bicultural program requires that applicants receive a passing
score through the alternative examining procedure. The examining procedure
in current use is OPM's rating schedule used in case examining. A candidate
who meets the minimum qualifications for the position will be rated as having
"passed" the examination.
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