Neil Gorsuch's LGBT Decision May Doom Affirmative Action in the Supreme Court

In 2020, the Supreme Court held that firing an employee for being gay or transgender violated Title VII of the 1964 Civil Rights Act, which prohibits employers from discriminating against a job applicant or employee "because of" that individual's "sex." While "those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result," Justice Neil Gorsuch wrote for the majority in Bostock v. Clayton County, "the limits of the drafters' imagination supply no reason to ignore the law's demands."

For Gorsuch, the choice was clear: "When the express terms of a statute give us one answer and extratextual considerations suggest another, it's no contest. Only the written word is the law, and all persons are entitled to its benefit."

Judging from October's oral arguments in Students for Fair Admissions v. University of North Carolina, Gorsuch may see affirmative action in college admissions the same way. Title VI of the Civil Rights Act says "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."

That language "is plain and clear just as Title VII is," Gorsuch told Solicitor General Elizabeth Prelogar. "Title VII does not permit discrimination on the basis of sex, and Title VI does not permit discrimination on the basis of race." So why isn't affirmative action in college admissions prohibited under federal law?

"The term discrimination in this context is ambiguous," Prelogar replied.

"We didn't find it ambiguous in Bostock," Gorsuch said. "Why should we find it ambiguous now? Were we wrong in Bostock?"

"No, I'm not suggesting that," Prelogar answered. She was well aware that Gorsuch himself authored the Bostock opinion. But the Court has found the term discrimination to be ambiguous in the context of Title VI, she continued, urging respect for that precedent.

Gorsuch seemed to think there was no good reason to treat the word differently in two parts of the same statute. If his reading is adopted by the Court, it could help doom affirmative action in college and university admissions.