U.S. Office of Personnel Management - Ensuring the Federal Government has an effective civilian workforce

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In November 2007, OPM strongly advised agencies against continued use of the Outstanding Scholar and Bilingual/Bicultural Programs.

Main | Background | Outstanding Scholar Program | Bilingual/Bicultural Program | Career Fields for the Outstanding Scholar 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 were aimed at addressing under representation of African Americans and Hispanics, the programs were never 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 depended on agencies to focus their recruiting on sources that would increase the pool of African American and Hispanic candidates for employment. Actual hiring decisions could 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. Only certain positions at the GS-5 and GS-7 positions which were subject to the PACE exam were 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. Agencies could not select an individual into a covered position with the intent of moving the individual later to a non-covered position. (See 5 CFR 330.501 and 330.503.)
• Relationship to Competitive Examining. The Outstanding Scholar and Bilingual/Bicultural programs were designed as supplements to competitive examining. They should only have been used by an agency that had an established pattern of competitive selection into the covered jobs or was currently making competitive selections into those jobs. The Outstanding Scholar and Bilingual/Bicultural programs could also be used to a lesser degree, as a supplement to reduce adverse impact on African Americans and Hispanics. There was neither a requirement nor an authority to use either program to hire only persons from the designated minority groups. To reduce adverse impact, agencies were instructed to 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 were 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 was optional for applicants, but it was mandatory that agencies provide copies of the form to applicants. In January of each year, agencies were 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 were also required to 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, agencies were instructed to consult their 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 was to 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 was also 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. Appointments under the program could 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 was required to advertise positions, including posting them through OPM's job information system. There were three basic reasons why the positions must be announced:
  1. 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];
  2. 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
  3. 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 met the ICTAP requirements had to be selected before Outstanding Scholars. [See also, Relationship to Competitive Examining, above.]
• Timing of Appointments. Outstanding Scholars could not be appointed until they had actually become "college graduates." They could , however, be given conditional offers pending graduation. Although Outstanding Scholar candidates do not have to appear on a certificate, their consideration had to be concurrent with the priority consideration of displaced employees eligible for ICTAP selection (see above). The Outstanding Scholar selection and offer needed to be made within 90 days from the time a certificate was returned to the agency personnel office, based on an announcement open to ICTAP candidates. If a selection had not been made within those 90 days, the agency was 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 could delay appointment up to six months from the date of selection. If an agency exceeded six months, it was required to readvertise the vacancy. Requests for extensions beyond six months were entertained by OPM on a case by case basis. The decree set no time limit after graduation for Outstanding Scholar eligibility, nor did it set a limit on the number of times an individual could receive Outstanding Scholar appointments.
• Grade point average. The decree prevented the use of graduate grades in calculating grade point averages (GPAs). It also required using grades received in all undergraduate courses leading to the degree. This included courses from all undergraduate schools attended, not just courses taken at the school providing the degree. That requirement also meant that the candidate had the 3.5 GPA at the time of graduation; any conditional offers made prior to graduation had to be rescinded if the GPA was not maintained. Since the grade point average had to be calculated on a 4.0 scale, agencies also needed to adjust GPAs that were based on a scale that allowed a 4.5 (A+) grade.
• Class Standing. The decree was 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 was a college or school and was not merely a department or program of study. For class standing to be used, it had to be determined formally by the college, school, or university.
• Relationship to Qualification Standards. To be selected through this program, a candidate had to 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 decree used the term "direct hire," the decree essentially provided for a noncompetitive appointment to the competitive service. Rating and ranking were not required, so neither the "rule of three" nor veterans' preference applied. There were 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. Applicants who obtained a passing score in an examination, without further regard to rank, provided that:
  1. the job was one in which interaction with the public or job performance would be enhanced by having bilingual and/or bicultural skills and was at grade GS-5 or GS-7 in a covered occupation; and
  2. the agency determined through use of a reasonable questionnaire or interview that the applicant to whom appointment was to be offered had the required level of oral Spanish language proficiency and/or the requisite knowledge of Hispanic culture. Agencies were required to maintain documentation that these requirements had been met.
• Rating Candidates. Unlike the Outstanding Scholar program, the Bilingual/Bicultural program required that applicants receive a passing score through the alternative examining procedure. A candidate who met the minimum qualifications for the position were rated as having "passed" the examination.

Career Fields for the Outstanding Scholar Program

* Position requires specific courses