A Genuine Question for Those Calling for an End to Diversity, Equity, and Inclusion Programs and Policies

Why do Opponents of Diversity, Equity, and Inclusion not Cite to Bostock v. Clayton County?

In recent weeks, there have been increasing calls to end Diversity, Equity, and Inclusion (“DEI”) policies, programs, and departments. This hasn’t just come from those on the right but also from many on the center left like Bari Weiss, founder of the Free Press.¹ Even author Joyce Carol Oates voiced her disgust at a DEI memo authored by much-pilloried Harvard President Dr. Claudine Gay.²

It seems that this recent crescendo of calls for the end of DEI policies is in response to anti-Semitic hate speech and actual anti-Semitic criminal harassment on college campuses that has arisen in the wake of the Hamas attacks against Israel. Some argue that the ever expanding DEI bureaucracies at our nation’s most storied educational institutions appear to be promoting anti-Semitism on campus, angering many.³

I don’t know that I agree with this argument. I’m not joining any calls for or against DEI (DEI appears to mean very different things to different people depending upon context and who’s administering the program). However, as I watch calls to end DEI, I am left with a genuine question.

Why do opponents of DEI policies not cite the United States Supreme Court decision of Bostock v. Clayton County in support of their arguments?

It has now been nearly 3 and 1/2 years since the United States Supreme Court decided the landmark case of Bostock v. Clayton County,⁴ which held that Title VII of the 1964 Civil Rights Act prohibits sexual orientation and gender identity discrimination.⁵

The case has had a monumental impact on LGBT Civil Rights, with a full embrace by the Biden Justice Department.⁶ But perhaps even more monumentally than its immediate impact on LGBT Americans, Bostock’s rationale completely precludes corporate DEI programs and policies (at least those that institute employment decisions based upon race or sex), making them plainly illegal under Title VII.⁷

If one thought this was an odd interpretation of the opinion, Justice Neil Gorsuch,⁸ who authored Bostock, wrote a concurring opinion in the recent affirmative action cases in which he explained that under Bostock, race-based affirmative action at universities was illegal under federal law.⁹

However, neither the challengers in the Harvard and University of North Carolina affirmative action cases nor any of the dozens of amicus curiae briefs submitted in support of their position cited Bostock.¹⁰ If no one challenging DEI policies makes the argument, courts are unlikely to cite the reasoning in Bostock as a reason why such policies are now plainly illegal.¹¹

This leads me to ask, why are those opposed to DEI not citing Bostock? If one is so strongly opposed to DEI policies, why wouldn’t one cite to the strongest Supreme Court precedent that makes DEI policies illegal?

I will leave the floor open.¹² What do you think? Why is this? What conclusions, if any, should be drawn?

1. Bari Weiss: End DEI

2. https://twitter.com/JoyceCarolOates/status/1733738548753314026

3. See https://www.thewrap.com/fareed-zakaria-american-universities-partisan-cnn/

4. 140 S. Ct. 1731 (2020)(“Bostock”).

5. Bostock, at 1737 (majority opinion)(“Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”).

6. https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-preventing-and-combating-discrimination-on-basis-of-gender-identity-or-sexual-orientation/ (“Under Bostock‘s reasoning, laws that prohibit sex discrimination — including Title IX of the Education Amendments of 1972, as amended (20 U.S.C. 1681 et seq.), the Fair Housing Act, as amended (42 U.S.C. 3601 et seq.), and section 412 of the Immigration and Nationality Act, as amended (8 U.S.C. 1522), along with their respective implementing regulations — prohibit discrimination on the basis of gender identity or sexual orientation, so long as the laws do not contain sufficient indications to the contrary.”).

7.

8.

9. Students for Fair Admissions v. President & Fellows of Harvard College, 143 S. Ct. 2141, 2208-2210 (2023)(Gorsuch, J., concurring)(“When a party seeks relief under a statute, our task is to apply the law’s terms as a reasonable reader would have understood them at the time Congress enacted them. “After all, only the words on the page constitute the law adopted by Congress and approved by the President.” Bostock, 590 U. S., at ___ (slip op., at 4).

The key phrases in Title VI at issue here are “subjected to discrimination” and “on the ground of.” Begin with the first. To “discriminate” against a person meant in 1964 what it means today: to “trea[t] that individual worse than others who are similarly situated.” Id., at ___ (slip op., at 7); see also Webster’s New International Dictionary 745 (2d ed. 1954) (“[t]o make a distinction” or “[t]o make a difference in treatment or favor (of one as compared with others)”); Webster’s Third New International Dictionary 648 (1961)(“to make a difference in treatment or favor on a class or categorical basis”). The provision of Title VI before us, this Court has also held, “prohibits only intentional discrimination.” Alexander v. Sandoval, 532 U. S. 275, 280 (2001).

From this, we can safely say that Title VI forbids a recipient of federal funds from intentionally treating one person worse than another similarly situated person on the ground of race, color, or national origin. What does the statute’s second critical phrase—“on the ground of ”—mean? Again, the answer is uncomplicated: It means “because of.” See, e.g., Webster’s New World Dictionary 640 (1960) (“because of ”); Webster’s Third New International Dictionary, at 1002 (defining “grounds” as “a logical condition, physical cause, or metaphysical basis”). “Because of ” is a familiar phrase in the law, one we often apply in cases arising under the Civil Rights Act of 1964, and one that we usually understand to invoke “the ‘simple’ and ‘traditional’ standard of but-for causation.” Bostock, 590 U. S., at ___ (slip op., at 5) (quoting University of Tex. Southwestern Medical Center v. Nassar, 570 U. S. 338, 346, 360 (2013); some internal quotation marks omitted). The but-for-causation standard is a “sweeping” one too. Bostock, 590 U. S., at ___ (slip op., at 5). A defendant’s actions need not be the primary or proximate cause of the plaintiff ’s injury to qualify. Nor may a defendant avoid liability “just by citing some other factor that contributed to” the plaintiff ’s loss. Id., at ___ (slip op., at 6). All that matters is that the plaintiff ’s injury would not have happened but for the defendant’s conduct. Ibid.

Now put these pieces back together and a clear rule emerges. Title VI prohibits a recipient of federal funds from intentionally treating one person worse than another similarly situated person because of his race, color, or national origin. It does not matter if the recipient can point to “some other . . . factor” that contributed to its decision to disfavor that individual. Id., at ___–___ (slip op., at 14–15). It does not matter if the recipient discriminates in order to advance some further benign “intention” or “motivation.” Id., at ___(slip op., at 13); see also Automobile Workers v. Johnson Controls, Inc., 499 U. S. 187, 199 (1991) (“the absence of a malevolent motive does not convert a facially discriminatory policy into a neutral policy with a discriminatory effect” or “alter [its] intentionally discriminatory character”). Nor does it matter if the recipient discriminates against an individual member of a protected class with the idea that doing so might “favor” the interests of that “class” as a whole or otherwise “promot[e] equality at the group level.” Bostock, 590 U. S., at ___, ___ (slip op., at 13, 15). Title VI prohibits a recipient of federal funds from intentionally treating any individual worse even in part because of his race, color, or national origin and without regard to any other reason or motive the recipient might assert. Without question, Congress in 1964 could have taken the law in various directions. But to safeguard the civil rights of all Americans, Congress chose a simple and profound rule. One holding that a recipient of federal funds may never discriminate based on race, color, or national origin—period.
If this exposition of Title VI sounds familiar, it should. Just next door, in Title VII, Congress made it “unlawful . . . for an employer . . . to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” §2000e–2(a)(1).

Appreciating the breadth of this provision, just three years ago this Court read its essentially identical terms the same way. See Bostock, 590 U. S., at ___–___ (slip op., at 4–9). This Court has long recognized, too, that when Congress uses the same terms in the same statute, we should presume they “have the same meaning.” IBP, Inc. v. Alvarez, 546 U. S. 21, 34 (2005). And that presumption surely makes sense here, for as Justice Stevens recognized years ago, “[b]oth Title VI and Title VII” codify a categorical rule of “individual equality, without regard to race.” Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, 416, n. 19 (1978) (opinion concurring in judgment in part and dissenting in part) (emphasis deleted).”).

Applying Title VI to the cases now before us, the result is plain. The parties debate certain details of Harvard’s and UNC’s admissions practices. But no one disputes that both universities operate “program[s] or activit[ies] receiving Federal financial assistance.” §2000d. No one questions that both institutions consult race when making their admissions decisions. And no one can doubt that both schools intentionally treat some applicants worse than others at least in part because of their race.”).

10. Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, 143 S. Ct. 2141, 2239, n.21 (2023)(Sotomayor, J., dissenting)(“Justice Gorsuch argues that “Title VI bears independent force” and holds universities to an even higher standard than the Equal Protection Clause. Ante, at ___, 216 L. Ed. 2d, at ___. Because no party advances Justice Gorsuch’s argument, see ante, at ___, n. 2, 216 L. Ed. 2d, at ___, the Court properly declines to address it under basic principles of party presentation.”).

11. Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, 143 S. Ct. 2141, 2239, n.21 (2023)(Sotomayor, J., dissenting)(“JUSTICE GORSUCH wonders why the dissent, like the majority, does not “engage” with his statutory arguments. Ante, at 16. The answer is simple: This Court plays “the role of neutral arbiter of matters the parties present.” Greenlaw v. United States, 554 U. S. 237, 243 (2008). Petitioner made a strategic litigation choice, and in our adversarial system, it is not up to this Court to come up with “wrongs to right” on behalf of litigants.”).

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