How a Gorsuch LGBT Ruling May Doom Affirmative Action in College Admissions

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

The results of that strict textualist approach in Bostock were widely cheered by liberals. But liberals probably won't be cheering if Gorsuch adopts a similar stance in the pair of blockbuster affirmative action cases that the Supreme Court is currently weighing. Judging by last month's oral arguments in Students for Fair Admissions v. University of North Carolina, the justice does seem to view the statutory debates over LGBT discrimination and affirmative action in a similar interpretative light.

Like Title VII of the 1964 Civil Rights Act, Title VI of the same law also deals with discrimination. "No person in the United States shall, on the ground of race, color, or national origin," Title VI reads, "be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."

"Title VI's language is plain and clear just as Title VII is," Gorsuch told Solicitor General Elizabeth Prelogar during oral arguments on October 31. "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, Gorsuch basically asked, isn't affirmative action in college admissions illegal under federal law?

"The term 'discrimination' in this context"—meaning the context of affirmative action and Title VI—"is ambiguous," Prelogar responded.

"We didn't find it ambiguous in Bostock, why should we find it ambiguous now?" Gorsuch responded. "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 Supreme Court has found the term to be ambiguous in the context of Title VI, she continued, and she urged respect for that precedent.

Gorsuch seemed to think there was no good reason to treat the language differently from one statutory provision to the other. If his reading is adopted by the Supreme Court, it would likely help doom affirmative action in college and university admissions.