In Bostock v. Clayton County, Georgia, Justice Neil Gorsuch, joined by Chief Justice John Roberts and the court’s four liberals, ruled that Title VII of the Civil Rights Act’s proscription on discrimination “because of sex” applies also to gay and transgender people. This watershed decision has far-reaching implications for high school sports, employer-provided healthcare, religious liberty, and much more.
In arguing for Title VII’s surprise plain meaning, the majority cites Justice Antonin Scalia’s aphorism: “Statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”
And Gorsuch: “Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. … 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.”
This is a resounding rejection of purposivism, the theory that the intentions of a statute’s drafters are determinative in statutory interpretation. That those who drafted the 1964 CRA did not envisage gay and transgender people falling under the ambit of “sex” is not dispositive. This is so, according to the majority, because sex is “inextricably” linked to these traits. One cannot fire a gay person without sex being a but-for consideration.
Regardless of whether one agrees with the ultimate outcome, the majority’s reasoning strikes a blow for textualism. And the liberal justices endorsed it in full.
However, perhaps unbeknownst to some who signed onto it, Bostock’s reasoning jeopardizes some civil rights holdings treasured by the same liberal justices who gave it their blessing. The logic of Bostock inexorably points to the conclusion that affirmative action is unlawful.
In Regents of Univ. of California v. Bakke, the court (in a plurality decision by Justice Lewis Powell) determined that the “educational benefits that flow from diversity” is a compelling government interest. Thus, affirmative action (albeit in the form of “plus factors” and not “quotas”) to increase educational diversity is constitutional under the equal protection clause and not in violation of Title VI, which prohibits racial discrimination in institutions receiving federal funds. (The court later affirmed this reasoning in Grutter v. Bollinger.)
In their partial dissent-slash-concurrence, Justices William Brennan, Byron White, Thurgood Marshall, and Harry Blackmun pointed to legislative history to argue that any program targeted at remedying past racial prejudice would be constitutional.
But Bostock puts to rest this purposivist notion that the legislative intent is commanding. “The fact that a statute has been applied in situations not expressly anticipated by Congress does not demonstrate ambiguity,” it holds. “[I]nstead, it simply demonstrates the breadth of a legislative command.”
Furthermore, while legislative history is sometimes utilized when “interpreting ambiguous statutory language … no ambiguity exists about how Title VII’s terms apply to [gay and transgender people].” And an unexpected application alone does not create such ambiguity.
If Title VII unambiguously covers gay and transgender people then, a fortiori, Title VI unambiguously covers whites and Asians adversely affected by affirmative action programs. The court has long affirmed as much, though some progressives resist this inescapable conclusion — or at least urge a more lenient standard of review for “remedial” programs.
Yet, some might argue, affirmative action programs are justified because students’ race is not the but-for cause of universities’ admissions practices. Rather, the supposed benefits of diversity in education, an interest sanctioned by judicial imprimatur, is the motivating factor.
Setting aside the fact that there is little empirical evidence that racial diversity yields educational benefits (and that courts do not require schools to prove that it does, but merely accept that platitude at face-value), Bostock should prompt a reevaluation of the diversity safe-harbor.
As Gorsuch writes, “It’s irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it.” Thus, how can they circumvent liability by pointing to the benefits of diversity? When an underrepresented minority receives an affirmative action “plus factor” over another applicant with better qualifications, the university rejects said applicant because she would not contribute to their vision of educational diversity. To wit, the applicant is rejected because of her race. Even if the rejected applicant’s race dominates the number of students, the Civil Rights Act “protects individual rights, not group rights.”
Even if the Supreme Court leaves undisturbed its questionable holding that diversity is a “compelling interest” under the equal protection clause, Affirmative action would still be in jeopardy under Title VI. A hidden diversity loophole, creating a “curious discontinuity” in the law’s scope, is precisely the sort of extra-textual artifact that Gorsuch and the Bostock majority denounce.
Moreover, though the court has stated that Title VI is “coextensive” with the 14th Amendment, it would be perverse to argue that the latter limits the protections conferred by the former. Congress and the states routinely afford citizens protections above and beyond that provided by the Constitution alone.
Even many on the Left recognize the potential for a more consistent application of civil rights laws post-Bostock. Cass Sunstein frets that Gorsuch has paved a way for an “attack” on affirmative action. He is right to be worried.
Max Hyams is a student at the UCLA School Of Law. You can follow him on Twitter at @Maxjhyams1.
