Judge Didn’t Need to Cite DEI to Reject Boeing Deal, Experts Say

A federal judge in Texas went further than necessary by rejecting Boeing Co.’s plea deal over race being considered in picking an independent monitor to oversee the company’s future actions, law professors said.

US District Judge Reed O’Connor, a conservative jurist in Fort Worth, Texas, said in the Dec. 5 ruling that he was rejecting the agreement — which would allow the company to avoid criminal penalties over two fatal 737 Max crashes — in part because it sidelines his role in ensuring future compliance by Boeing.

But he dedicated far more of that decision to criticizing DOJ’s policy that an outside monitor — who would have further oversight of the company and report any potential future violations — would be chosen with “diversity and inclusion” in mind.

Law professors said that O’Connor would be justified in rejecting the agreement over his limited future role, and that it was odd for him to focus on DEI requirements in choosing a monitor who would have further oversight over the company .

“This whole DEI thing, to be honest, is a bit of a red herring,” said Todd Haugh, an associate professor of business law and ethics at Indiana University.

“I understand the judge wants to make a statement about that, but that’s really, I don’t think, where his focus should be,” Haugh continued. “His focus should be on oversight and getting the best outcome to change behavior within Boeing.”

Conservative skepticism

The judge in October had ordered the Justice Department and Boeing to say how diversity and inclusion would be weighed in selecting an independent monitor. In striking down the plea agreement, O’Connor spent about six-and-a-half pages of the 12-page order discussing the DEI issues.

“In a case of this magnitude, it is in the utmost interest of justice that the public is confident this monitor selection is done based solely on competency. The parties’ DEI efforts only serve to undermine this confidence in the Government and Boeing’s ethics and anti-fraud efforts,” O’Connor wrote.

Conservative litigants have increasingly been challenging such DEI policies in court, particularly after the Supreme Court’s 2023 decision against the use of affirmative action in college and university admission policies.

Those cases have largely taken the form of civil lawsuits challenging such policies. Haugh and Herbert Larson, a professor at Tulane Law School, each said they have never seen those policies being used as a basis to reject a guilty plea from a corporate defendant.

Larson said that it appeared that the DEI language in the proposed plea deal was included to comply with Justice Department policies. “I find it hard it to believe that for something this important, that every single candidate wouldn’t be just stunningly well-qualified,” he said.

David Glasgow, the executive director of the Meltzer Center for Diversity, Inclusion, and Belonging at New York University School of Law, said that O’Connor’s framing pitted weighing diversity and inclusion factors against a merit-based decision. Glasgow said that’s incorrect, as the DEI factors are meant to create a more even level playing field and include well-qualified people who might otherwise not be considered.

Glasgow said the ruling isn’t surprising. “We are headed in a direction where certain DEI practices are going to be increasingly constrained by federal courts, due to conservative antipathy to DEI programs,” he said.

But he said that doesn’t mean all DEI policies will be struck down by courts. Glasgow pointed to a ruling by a Trump-appointed judge in Virginia dismissing a lawsuit against media company Gannett Co., which alleged it had violated federal anti-discrimination law by passing over non-minority reporters for promotions in order to be more diverse. Editors and reporters challenging the company’s policies have since filed an amended complaint.

Sidelined court

Some of the families of victims in two Boeing plane crashes — Lion Air Flight 610 in October 2018 and Ethiopian Airlines Flight 302 in March 2019 — had objected to the proposed plea agreement, calling for harsher penalties for the company. Attorneys for some of the victims’ families told Bloomberg News that they hope stronger terms will be included in a renegotiated plea deal.

O’Connor spent one page of the order describing his marginalized role. He said that if Boeing breached an earlier deferred prosecution agreement, “it is fair to say the Government’s attempt to ensure compliance has failed.”

“At this point, the public interest requires the Court to step in,” he wrote.

Larson said that the proposed agreement was a little unusual in that the court wouldn’t have much of a role after accepting the guilty plea. “You’re asking for the court’s blessing on the agreement and, particularly if part of the agreement is an ongoing monitoring, that also should involve the court,” he said.

The judge gave the parties until Jan. 4 to say what steps they plan to take next in the case. But hanging over any potential change in the agreement is also a change in administration.

Haugh said it’s possible that the incoming Trump Justice Department could scuttle DEI policies, but for now, prosecutors are likely in a bind. He said they could get rid of having a monitor altogether but that likely would upset the victims’ families.

“We’re really at a difficult standpoint, at least in the short term, unless there’s a policy change,” Haugh said.