In 2020, the Supreme Court held 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 enacted the Civil Rights Acts may not have anticipated that their actions would lead to this particular result,” Justice Neil Gorsuch wrote for the majority. Bostock v. Clayton County“There is no reason to ignore the law’s claim that the draft limits the imagination.”
For Gorsuch, the choice was clear: “When the express terms of a law give us one answer and extraneous considerations dictate another, it is no contest. Only the written word is the law, and all persons are entitled to its benefits.”
Judging from the oral arguments of Dr University of North Carolina v. Students for Fair Admissions, Gorsuch could similarly see positive action in college admissions. Title VI of the Civil Rights Act states that “no person in the United States, on the basis of race, color, or national origin, shall be excluded from participation in, denied benefits from, or discriminated against under any program or activity in receipt of federal financial assistance.”
Gorsuch told Solicitor General Elizabeth Prelogger that the language is “as plain and clear as Title VII.” “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 prohibited in college admissions under federal law?
“The post Discrimination Ambiguous in this context,” replied the prelogger.
“We didn’t find it ambiguous Bostock, Gorsuch said “Why should we consider it ambiguous now? Were we wrong? Bostock?”
“No, I’m not suggesting that,” replied the prelogger. He was well aware that Gorsuch had composed it himself Bostock Opinion But the court found tenure Discrimination To be vague in the context of Title VI, he continued by calling for deference to that precedent.
Gorsuch thinks there is no good reason to treat the term differently in two parts of the same law. If his reading is accepted by the court, it can help in affirmative action in college and university admissions.