Understanding Justice Neil Gorsuch's Surprising Concurrence in Students for Fair Admissions v. Harvard
Justice Gorsuch Writes a Roadmap to Ending Corporate Diversity, Equity, and Inclusion Programs Under Title VII of the 1964 Civil Rights Act
Many have expressed shock over Justice Neil Gorsuch’s concurrence in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (“Students for Fair Admissions”), in which he relied upon the landmark LGBT civil rights decision, Bostock v. Clayton County,1 to conclude the race-based affirmative action programs at Harvard and the University of North Carolina were illegal under Title VI of the 1964 Civil Rights Act.2
The heads of progressives, conservatives, and centrists alike are spinning.3
In Bostock, an opinion surprisingly authored by Justice Gorsuch, the United States Supreme Court held that Title VII of the 1964 Civil Rights Act prohibited sexual orientation and gender identity discrimination in the workplace.4 A significant LGBT civil rights victory, Bostock has been repeatedly cited to advance the claims of transgender litigants in court cases nationwide.
It seems improbable then that Bostock could be Justice Gorsuch’s main reason for deciding race-based affirmative action programs at universities is illegal under Title VI in Students for Fair Admissions.
I, however, am not all that surprised.5 In fact, I predicted this might be coming because a careful reading of Bostock suggested the Court had interpreted Title VII in a way that would jeopardize the legality of race-based Diversity, Equity, and Inclusion (“DEI”) programs as well as potentially race-based affirmative action at universities.6
Title VI of the 1964 Civil Rights Act provides “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”7
For Justice Gorsuch, this statute made the case easy for him. As he wrote:
The message for these cases is unmistakable. Students for Fair Admissions (SFFA) brought claims against Harvard and UNC under Title VI. That law applies to both institutions, as they elect to receive millions of dollars of federal assistance annually. And the trial records reveal that both schools routinely discriminate on the basis of race when choosing new students—exactly what the law forbids.
To arrive at this conclusion, Justice Gorsuch relied almost entirely upon Bostock for the definitions of the terms “on the ground of” and “subjected to discrimination” in Title VI.8
It is not surprising that a conservative textualist like Justice Gorsuch would conclude that race-based affirmative action programs in universities violates Title VI. After all, in the very first affirmative action case decided on the merits before the Supreme Court, a dissenting Justice John Paul Stevens made the very same argument.9
Relying upon Bostock, however, is significant for other potential Title VII cases.
One may be wondering what race-based affirmative action at universities has to do with LGBT civil rights. The key is in how Bostock reached its conclusion that Title VII prohibited sexual orientation and gender identity discrimination.
Title VII provides:
“It shall be an unlawful employment practice for an employer—to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”10
“It shall be an unlawful employment practice for an employer - to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.”11
“It shall be an unlawful employment practice for any employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training.”12
As one can see, there is no reference to sexual orientation or gender identity in the text of the law, thus leading to the very reasonable conclusion that employers may legally discriminate on these bases.13 And to understand the decision, it’s actually important to understand what the Court did not hold in Bostock.
In Bostock, the Court made clear that the term “sex” in Title VII refers to biological sex.14 Further, the Court acknowledged that sexual orientation discrimination and gender identity discrimination are inherently different from sex discrimination.15 The Court also did not agree that sexual orientation and gender identity discrimination were forms of sex stereotyping.16 And the Court even agreed that Congress had no intention of prohibiting discrimination on these bases in 1964.17
So, then how did the Court reach its conclusion?
Bostock held that Title VII doesn’t prohibit “sexist discrimination”; instead Title VII prohibits discrimination on the basis of sex.18
While it sounds semantic, there’s a significant difference. If Title VII prohibited sexist discrimination, then what constitutes “sexist discrimination” would be a crucial determination. Courts and lawyers could spend their time debating whether sexism could ever be directed against men. A court determination of whether an action was “sexist” would decide the outcome of a Title VII case.
More importantly for the LGBT community, Title VII would not prohibit sexual orientation and gender identity discrimination as both are not sexist discrimination.19 Moreover, Congress clearly had no intention of banning sexual orientation and gender identity discrimination in 1964.20 And extending the Title VII’s coverage to sexual orientation and gender identity discrimination presents major public policy questions and concerns.21
Bostock, however, held that as the law was written, Title VII made no such distinction.22 Courts have no role in adding in extraneous interpretation when the law’s language is clear.23 Whatever Congress intended at the time of enactment of Title VII in 1964 does not contradict the plain terms of the law.24
Instead, Title VII simply asks whether sex was a but-for factor in the discrimination against an individual.25 If sex is a factor in the employment decision, even if only used as a partial factor and even if not labeled as sex discrimination, Title VII makes it illegal, with Bostock holding there is no exception.26
Thus, even though the employers intentionally discriminated on the basis of sexual orientation and gender identity, and did not discriminate in a sexist way, it was ultimately irrelevant as under Title VII, any discrimination, even conceptually distinct discrimination, that uses sex as a factor is illegal sex discrimination.27
This conclusion is buttressed by the fact that under Title VII, it’s irrelevant that an employer ultimately treats men and women the same when that employer discriminates on the basis of sexual orientation or gender identity, because, as the Court in Bostock repeatedly noted, Title VII protects individuals, not groups.28
If an individual is discriminated against on the basis of sex, Title VII allows a woman to bring a suit against an employer even if the employer treats women better overall and it allows a man to bring a suit against an employer even if the employer treats men better overall.29
Sex, the Court concluded in Bostock, was intentionally used to discriminate on the basis of sexual orientation and gender identity.30 And since one’s biological sex is invariably used in discrimination on the basis of sexual orientation and gender identity, Title VII prohibits sexual orientation and gender identity discrimination as intentional sex discrimination in all circumstances.31
Isn’t that a bit far-fetched? As far as the majority was concerned in Bostock, not at all.32
From Bostock, it follows that Title VII does not prohibit racist discrimination. It instead prohibits discrimination on the basis of race.
Once again, the distinction is more than semantic. It is common parlance for opponents of race-based DEI programs and race-based affirmative action to describe both as “racist” or “racism”. Many counter argue that these programs are not racist. However, when it comes to evaluating the legality of race-based DEI programs under Title VII, it’s really an irrelevant distinction under Bostock.
As Title VII makes no exception for any kind of discrimination on the basis of race, it does not matter that (1) race-based DEI programs have laudable goals, (2) employers who create race-based DEI programs lack racial animus, (3) race-based DEI programs are not racist, (4) race-based DEI programs are not labeled as racial discrimination, (5) race-based DEI programs use race as one factor of many in evaluating a potential employee, or (6) a company may treat one race better overall than the race benefitted from the race-based DEI program.
Bostock holds that Title VII makes it illegal.33
After all, an employer who discriminates against an employee for being gay or transgender illegally discriminates on the basis of sex even though the employer is (1) not engaging in sexist discrimination, (2) lacks animosity towards any one sex , (3) does not act in a way commonly understood or labeled as sex discrimination, (4) only used sex as one factor of many in their act of discrimination against the employee, and (5) may overall treat all employees equally on the basis of sex.
Per Bostock, that’s illegal under Title VII.
One might argue that Congress never intended to prohibit programs that would benefit under-represented minorities when they enacted Title VII. That doesn’t matter though under Bostock. Congress had no intention of protecting LGBT Americans when it enacted Title VII either.
One could also argue that race-based and sex-based DEI programs beneficial for society.34 These programs are implemented to remedy the effects of past societal discrimination that still linger today.35 However, Bostock held that policy considerations are not relevant when interpreting the plain language of Title VII.36
One might even further argue that race-based and sex-based DEI programs are protected as Title VII is designed to protect groups from racial discrimination overall.37 However, Bostock noted “Title VII protects individuals, not groups” no less than six separate times.38 If it Title VII protected groups, it would not prohibit sexual orientation and gender identity discrimination.39
All in all, Bostock prohibits these programs. In many ways, it answers the question as to why a Republican appointed arch-conservative Justice would author a groundbreaking opinion advancing LGBT civil rights.
In writing Bostock, Justice Gorsuch managed to write a majority precedent opinion with a holding that would end race-based and sex-based DEI programs that all four Democratically appointed Justices would sign onto without equivocation and that the Biden Administration would wholeheartedly embrace.
Certainly, conservative legal scholars have not read Bostock this way. Because rather notably, the petitioner in Students for Fair Admissions did not make the same argument that Justice Gorsuch made in his concurrence. Ironically, while the petitioner’s brief cited to Bostock, it only cited to Justice Brett Kavanaugh’s dissent.40
Out of 33 separate amicus curiae briefs submitted to the Court by conservative organizations, not one made the argument that the holding of Bostock prohibited the affirmative action programs under Title VI.41 Only one amicus curiae even bothered to cite the case.42 And even then, it did not analyze Bostock or explain why the Court’s holding in that case precluded any other result under Title VI.
But Justice Gorsuch already believes that Bostock prohibits DEI programs under Title VII, leading to his conclusion regarding Title VI in Students for Fair Admissions.
As he wrote:
To be sure, the parties’ debates raise some hard-to-answer questions. Just how many admissions decisions turn on race? And what really motivates the universities’ race-conscious admissions policies and their refusal to modify other preferential practices? Fortunately, Title VI does not require an answer to any of these questions. It does not ask how much a recipient of federal funds discriminates. It does not scrutinize a recipient’s reasons or motives for discriminating. Instead, the law prohibits covered institutions from intentionally treating any individual worse even in part because of race. So yes, of course, the universities consider many non-racial factors in their admissions processes too. And perhaps they mean well when they favor certain candidates over others based on the color of their skin. But even if all that is true, their conduct violates Title VI just the same.
In taking this position, Justice Gorsuch ironically has the official agreement of the Biden Administration, which has emphatically stated as official policy that Bostock applies to all civil rights legislation with its language.43
Why then was Justice Gorsuch’s concurrence not part of the majority opinion in Students for Fair Admissions? Because of the aforementioned fact that neither the petitioner nor any of the 33 amicus curiae briefs arguing against race-based affirmative action in Students for Fair Admissions made the argument. More importantly, since the Court invalidated the programs in question under the Fourteenth Amendment, it was unnecessary to consider the Title VI argument.44
In dissent, Justice Sonia Sotomayor, who joined the majority in Bostock, explained that the because neither the petitioner nor even the amicus curiae had made Justice Gorsuch’s argument, the Court could not properly decide the argument.45 As a matter of judicial restraint and fairness, she could not decide Students for Fair Admissions on a ground the parties had not been able to brief or argue.46
However, while Bostock was not raised in Students for Fair Admissions, it remains good precedent. And nothing prevents litigants from raising the argument in other cases involving DEI programs proceeding under Title VII.
Justice Gorsuch’s concurrence provides a roadmap for any litigator to follow in any future Title VII case brought against a DEI program. Because in the employment context, Bostock bars any and all discrimination on the basis of race and sex regardless of the reasons behind it, the public policy considerations of the discrimination, what the discrimination is labeled, what motivated the discrimination, how the discrimination manifests, or Congressional intent regarding Title VII.
And consider the contrary result in a Title VII case. If an employer can use sex or race in part to discriminate, then Bostock would be wrongly decided. One could clearly discriminate on the basis of sexual orientation and gender identity because neither of those categories appear in Title VII’s prohibition of employment discrimination.47 To the extent that employers did discriminate on those bases, sex would only be one small part of their discriminatory action.48
That result would be untenable.
As Justice Gorsuch concluded in Students for Fair Admissions:
But the dissent does not dispute that everything said here about the meaning of Title VI tracks this Court’s precedent in Bostock interpreting materially identical language in Title VII. That raises two questions: Do the dissenters think Bostock wrongly decided? Or do they read the same words in neighboring provisions of the same statute—enacted at the same time by the same Congress—to mean different things?
I previously compared Justice Gorsuch to Tyler Perry’s Madea, when she attempts to divide marital assets with a chainsaw or moves a car, whose driver had stolen her parking spot in a K-Mart parking lot, with a crane.
I think the analogy is apt.
140 S. Ct. 1731 (2020)(“Bostock”).
https://www.supremecourt.gov/opinions/22pdf/20-1199_hgdj.pdf (Contained in pages 107-131).
Some commentators are not surprised. Harvard law professor and legal scholar Jeanie Suk Gersen made this prediction. https://www.newyorker.com/news/our-columnists/could-the-supreme-courts-landmark-lgbt-rights-decision-help-lead-to-the-dismantling-of-affirmative-action Noted academic Cass Sunstein made this prediction as well. https://news.bloomberglaw.com/us-law-week/opinion-gorsuch-paves-way-for-end-of-affirmative-action-cass-sunstein
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.”).
The author of this article is an attorney licensed to practice in the State of California and the District of Columbia. This article and all of the works on this Substack page are statements of the opinions of the author, only, and do not constitute legal advice; they are not intended to be relied upon by any individual or entity in any transaction or other legal matter, past, pending, or future. A paid subscription to this Substack page supports the author’s scholarship and provides access to research that the author has compiled, but does not establish an attorney-client relationship. The author does not accept unsolicited requests for legal advice or representation, and this Substack page is not intended as legal advertising. The opinions expressed on this Substack page reflect the personal views of the author only.
42 U.S.C. § 2000d(emphasis added).