In 2020, the Supreme Court ruled that 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” that person’s “sex.” Although “those who passed the Civil Rights Act may not have anticipated that their work would lead to this particular result,” Justice Neil Gorsuch wrote for the majority in Bostock v. Clayton County“the limitations of the drafter’s imagination give no reason to ignore the requirements of the law.”
For Gorsuch, the choice was clear: “When the express terms of a statute give us one answer and extratextual considerations suggest another, it is not a contest. Only the written word is the law, and all persons are entitled to its benefit.”
Judging by the October oral arguments in Students for Fair Admissions v. University of North Carolina, Gorsuch might see affirmative action in college admissions the same way. Title VI of the Civil Rights Act states that “no person in the United States shall, on account of race, color, or national origin, be excluded from participation in any program, nor shall he be denied the benefits of, or be subjected to discrimination under, of any program or activity receiving federal financial assistance.”
That language “is plain and simple just like Title VII,” Gorsuch told Attorney 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 federal law prohibiting affirmative action in college admissions?
“Condition discrimination in this context it is ambiguous,” replied Prelogar.
“We did not consider it ambiguous Bostock” said Gorsuch. “Why should it be ambiguous to us now? Did we make a mistake Bostock?”
No, I’m not suggesting that, replied Prelogar. She was aware that Gorsuch himself was the author Bostock opinion. But the Court found an appointment discrimination be ambiguous in the context of Title VI, she continued, calling for 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 the court adopts his interpretation, it could help defeat affirmative action in college and university admissions.