A Texas federal judge with a history of supporting conservative causes has introduced uncertainty into Boeing’s agreement to plead guilty over two fatal 737 MAX crashes. U.S. District Judge Reed O’Connor seized on a single sentence in the deal regarding the U.S. Department of Justice’s (DOJ) diversity policy.
Last week, O’Connor unexpectedly asked the parties to brief him by Friday about a clause stating that the DOJ will adhere to its “commitment to diversity and inclusion” when selecting an independent monitor to audit Boeing’s safety and compliance practices.
“It’s incredibly unusual for a judge to focus on a DOJ policy related to DEI in a major corporate criminal case,” said Duncan Levin, a white-collar defense lawyer and former prosecutor, referring to policies known as diversity, equity, and inclusion.
O’Connor is currently weighing whether to approve the plea agreement between the DOJ and Boeing and has indicated he expects to rule soon.
The deal requires Boeing to plead guilty to conspiring to defraud regulators in connection with crashes that killed a total of 346 people in 2018 and 2019. The only reference to the DOJ’s DEI policy appears on page 26 of the 32-page agreement.
Families of the victims have filed briefs urging O’Connor to reject the deal, claiming it fails to hold Boeing and its executives accountable for their loved ones’ deaths. They also objected to the provision directing DOJ officials, with input from Boeing, to select the monitor. Although they briefly mentioned the DEI policy, their filings did not elaborate on specific concerns.
Chris Moore, whose 24-year-old daughter died in the 2019 Ethiopian Airlines crash, told Reuters he views the DOJ diversity provision as “a minor issue.” Moore, a 61-year-old Toronto resident, opposes the plea deal for lacking corporate accountability. “The current plea agreement gives Boeing a ‘do-over,’” he said. “My daughter didn’t get a do-over.”
O’Connor did not respond to requests for comment, while Boeing declined to comment. A DOJ spokesperson confirmed the department would comply with O’Connor’s order and respond by the deadline.
Prosecutors argue they have charged Boeing with the most serious crime they can prove. Boeing accepted the plea deal in July after DOJ officials found it had breached a 2021 agreement that protected it from prosecution. The U.S. planemaker also faces labor strife and scrutiny over an in-flight blowout in January that revealed ongoing safety issues. Boeing shares fell 1.2% on Thursday, having lost about 40% in 2024.
Typically, judges reviewing plea deals do not challenge them over issues that the parties have not disputed. In rare cases where they do, it usually involves the judge wanting to impose a different punishment than what prosecutors have agreed upon. In his Oct. 15 order requesting briefs, O’Connor noted that Boeing did not object to the hiring of a monitor in accordance with the DOJ’s diversity policy.
O’Connor, appointed by former President George W. Bush in 2007, has gained prominence for rulings favoring conservative litigants challenging government policies. He previously found Obamacare unconstitutional in a decision later reversed by the U.S. Supreme Court. In the past year, he has invalidated a Biden administration effort to prevent discrimination based on gender identity or sexual orientation and criticized attempts to limit where litigants can file lawsuits.
DEI policies have become a flashpoint in America’s culture wars, representing conflicts between liberal and conservative values. Supporters argue these policies combat unconscious bias and inequity, while opponents contend they prioritize characteristics like race and gender over essential job qualifications.
Government institutions and corporations have increasingly adopted DEI policies to ensure representation from underrepresented backgrounds in hiring and appointments. Earlier this year, conservatives highlighted the DEI issue when a fuselage panel blew off a Boeing jet during an Alaska Airlines flight. Elon Musk suggested on his social media platform that Boeing prioritized DEI hiring over safety, without providing evidence. Boeing declined to comment.
Josh Blackman, a conservative legal scholar at South Texas College of Law Houston, believes O’Connor would have solid grounds to reject the plea deal based on the DEI provision, especially following the U.S. Supreme Court’s recent ruling that barred universities from considering race in admissions. Some Republican-appointed judges, including O’Connor, have cited this decision in recent rulings that declared diversity initiatives in U.S. businesses discriminatory. “He’s not going to rubber-stamp a deal,” Blackman said.
However, Levin, the former prosecutor, contends that the issue of how the DOJ appoints monitors isn’t substantial enough to derail the plea agreement. He believes O’Connor is likely more interested in taking a stand on the issue than in rejecting the plea on legal grounds.
