Campus Prevention Network Legal Brief

June 2020

This Brief is approved for external distribution, but the information is not intended as legal advice. Please consult with legal counsel to ensure your institution’s compliance with applicable legal requirements.

U.S. Supreme Court Upholds LGBTQ and DACA Rights

On June 15 and 18, the U.S. Supreme Court delivered decisions that have major implications for diversity, equity, and inclusion in higher education. Surprisingly, these were not decisions that split the justices along ideological lines, but instead they formed a bipartisan majority in both cases to mark a milestone in anti-discrimination law.

Bostock v. Clayton County and Harris Funeral Homes v. EEOC

The Supreme Court’s 6-3 decision in Bostock v. Clayton County addressed three cases involving the question of whether Title VII protects LGBTQ employees against employment discrimination. Two of the cases involve claims of discrimination based on sexual orientation, and the third case involves a lawsuit filed by the Equal Employment Opportunity Commission on behalf of Aime Stephens, a transgender woman. 

Gerald Bostock was a child-welfare coordinator for Clayton County, Georgia, for ten years, providing courtroom advocates for abused and neglected children. He was fired after he joined a gay recreational softball league, losing a job that he loved and his health care benefits as he was fighting cancer. The other two lead plaintiffs in the case did not live to see the final outcome of their cases. Stephens worked as a funeral director for six years, presenting as a man. Two weeks after notifying her boss and co-workers that she identified as a woman, Stephens was fired out of concern about how the families of the deceased would react to Stephens’s appearance as a woman. Donald Zarda worked as a skydiving instructor at Altitude Express in New York. After several seasons with the company, Mr. Zarda mentioned that he was gay and days later was fired. 

Stanford Law Professor Pamela Karlan argued to the court on behalf of Bostock, reminding the justices of its unanimous decision in which the court found that an employer’s policy against hiring women with young children was illegal sex discrimination (Phillips v. Martin Marietta Corporation (1971) 400 U.S. 542). Karlan argued that just as women with children are a subset of women covered by the anti-discrimination law, so too are gay, lesbian and bisexual employees. 

The court found this argument persuasive, and Justice Gorsuch writing for the majority, cited the Phillips case in the opinion: 

In Phillips, the employer could have accurately spoken of its policy as one based on “motherhood.” In much the same way, today’s employers might describe their actions as motivated by their employees’ homosexuality or transgender status. But just as labels and additional intentions or motivations didn’t make a difference in . . .  Phillips, they cannot make a difference here. When an employer fires an employee for being homosexual or transgender, it necessarily and intentionally discriminates against that individual in part because of sex. And that is all Title VII has ever demanded to establish liability.  

David Cole of the American Civil Liberties Union argued on behalf of Stephens that she was treated differently because she was assigned a male sex at birth and then was fired because she failed to conform to the sex stereotypes of her employer. If she had been assigned a female sex at birth she would not have been fired for coming to work dressed as a woman. 

Justice Alito delivered a dissent, joined by Justice Thomas, calling the majority’s decision “legislation” because the words “sexual orientation” and “gender identity” do not appear in the statute enacting Title VII of the Civil Right Act of 1964. Supporting his strict interpretation of this statute, Justice Alito said: “If every single living American had been surveyed in 1964, it would have been hard to find any who thought that discrimination because of sex meant discrimination because of sexual orientation––not to mention gender identity, a concept that was essentially unknown at the time.” Justice Alito also calls the majority opinion “irresponsible” because “interpreting discrimination because of “sex” to encompass discrimination because of sexual orientation or gender identity––is virtually certain to have far-reaching consequences.” 

For example, Justice Alito predicts that “The entire Federal Judiciary will be mired for years in disputes about the reach of the Court’s reasoning,” including these Title IX issues that may result from the court’s majority opinion:

  • Violating a transgender person’s right to use bathrooms and locker rooms, and to compete in sports according to their gender identity
  • Resisting college roommate assignments based on male or female gender
  • Failing to use gender-neutral pronouns 

Appendices to Justice Alito’s dissent contain nine definitions of “sex” dating from 1933 to 2011, and citations for 146 federal statutes that prohibit discrimination because of sex. According to Justice Alito, these show that granting protections against discrimination on the basis of gender identity and sexual orientation will have far-reaching effects beyond workplace discrimination and harassment — including Title IX’s protections against sex discrimination and harassment in educational programs and activities.

In a separate dissenting opinion, Justice Kavanaugh acknowledged that “Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law.” Nonetheless, Justice Kavanaugh agreed with Justice Alito that “Under the Constitution’s separation of powers, however, I believe that it was Congress’s role, not this Court’s, to amend Title VII.” 

What does this mean for Title IX protections going forward? The executive director of GLSEN, an LGBTQ rights organization for students, said “In March of 2017, Secretary DeVos told me that she was waiting for the courts to rule clearly before she would protect transgender students as they deserve.” And the Supreme Court’s decision “couldn’t have been more clear.” Now it is up to Education Secretary DeVos to carry out the Supreme Court’s clear directive to reinstate the May 13, 2016 U.S. Departments of Education and Justice Release Joint Guidance to Help Schools Ensure the Civil Rights of Transgender Students, which states:

A school’s Title IX obligation to ensure nondiscrimination on the basis of sex requires schools to provide transgender students equal access to educational programs and activities even in circumstances in which other students, parents, or community members raise objections or concerns. As is consistently recognized in civil rights cases, the desire to accommodate others’ discomfort cannot justify a policy that singles out and disadvantages a particular class of students. [Citing 34 C.F.R. § 106.31(b)(4) and federal court decisions.]

At the time that the joint guidance on transgender students’ rights was rescinded, the New York Times reported that Education Secretary DeVos resisted the move, but relented after the White House sided with Attorney General Jeff Sessions to oppose transgender students’ rights. Secretary DeVos may now get the last word.

Department of Homeland Security v. Regents of the University of California

Three days after the Bostock decision, the Supreme Court’s decision in Department of Homeland Security v. Regents of the University of California pushed the pause button on the current administration’s efforts to rescind the Deferred Action for Childhood Arrivals (DACA). Chief Justice Roberts delivered the opinion of the court in another 6-3 decision that put another policy of Attorney General Jeff Sessions in the spotlight.

The DACA immigration program has allowed 700,000 eligible persons who entered the U.S. as children to apply for a two-year forbearance of being deported. DACA allows people who were brought to the U.S. as children to remain in this country and go to college, obtain work permits and social security numbers, but it does not provide a path to citizenship. 

Five years after DHS announced the DACA immigration policy, U.S. Attorney General Jeff Sessions concluded that it was unlawful and advised the Department of Homeland Security (DHS) to rescind DACA, which it did. Lawsuits were filed challenging the rescission, alleging that the rescission of DACA was (1) “arbitrary and capricious” and violates the Administrative Procedures Act (APA), and (2) violates the Fourteenth Amendment’s equal protection clause.

The court concluded that DHS acted “arbitrarily and capriciously” and violated the APA when it rescinded DACA “without any consideration whatsoever” of the consequences of rescinding the program and resuming deportation of DACA recipients. The court found that this “dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner. ” 

However, the court rejected the claim that rescission of DACA violated the equal protection clause, and did not find the real and potential personal and economic consequences of rescinding DACA dispositive, as outlined in The Regents of the University of California’s (UC) and Amici Curiae briefs:

  • Recipients “enrolled in degree programs, embarked on careers, started businesses, purchased homes, and even married and had children, all in reliance” on DACA 
  • Hiring and training replacements would cost employers an estimated $6.3 billion; excluding DACA recipients from the lawful labor force may result in the loss of $215 billion in economic activity and an associated $60 billion in federal tax revenue over the next ten years; and States and local governments could lose $1.25 billion in tax revenue each year

With so much at stake, the court found that DHS should not have cut corners in reaching its decision to rescind DACA. 

The Dreamers’ victory may, however, be short lived since the court sent the case back to DHS with an opportunity to “consider the problem anew” and provided DHS a blueprint for crafting a “reasoned explanation for its action”:

DHS could respond that reliance on forbearance and benefits was unjustified in light of the express limitations in the DACA Memorandum. Or it might conclude that reliance interests in benefits that it views as unlawful are entitled to no or diminished weight. And, even if DHS ultimately concludes that the reliance interests rank as serious, they are but one factor to consider. DHS may determine, in the particular context before it, that other interests and policy concerns outweigh any reliance interests. Making that difficult decision was the agency’s job, but the agency failed to do it. 

The court also sent a message to future administrations that when a government agency changes course after there has been “legitimate reliance” on a previous administration’s policy, the reliance interests of both benefits and forbearance must be taken into account.

Basically, this decision buys time for the Dreamers, but it also has significant implications for higher education, especially in California where 92,000 undocumented immigrant students — including 52,000 DACA-eligible students — are enrolled in the state’s colleges and universities. 

Janet Napolitano — president of the UC system who served as Obama’s secretary of homeland security and helped create DACA — said that: 

Justice and the rule of law won the day. The Supreme Court’s decision to uphold the University of California and the California attorney general’s challenge against the Trump administration’s capricious action is a victory for hundreds of thousands of young people who are making vital contributions to their families, schools, employers and the nation. 

Unfortunately, it’s unlikely that President Napolitano will have the last word in this case.