Students For Fair Admissions v. Harvard: Affirmative Action, Race-Based Policies, and Preference FalsificationPosted: April 7, 2021
by Natasha Varyani
In November 2020, the U.S. Court of Appeals for the First Circuit upheld the district court’s finding that Harvard University’s admissions policy comports with the law relating to affirmative action in higher education. Students For Fair Admissions v. Harvard is a piece of a larger effort directed by activist Edward Blum to dismantle the existing law on affirmative action. The case is one of three currently active lawsuits and the only one involving a private university, each an attempt by Students For Fair Admissions (“SFFA”) to reach the newly recomposed U.S. Supreme Court. At a time in our nation’s legal and cultural history when systemic racism is being examined in our legal discourse in myriad ways, the context surrounding the First Circuit’s decision in the Harvard case is essential to understanding what the ruling will mean for race-conscious admissions policies.
The Harvard case was manufactured by SFFA in the wake of the Supreme Court upholding higher education affirmative action policies in several high profile cases. Most recently, the Supreme Court twice reviewed and ultimately upheld the race-conscious admissions policies of the University of Texas in Fisher v. University of Texas. There, Abigail Fisher, a white student, did not prevail. After Fisher, SFFA identified a new strategy: to find a minority group disadvantaged by affirmative action policies. With a focus on Asian families with strong academic achievement and ambitious goals for their education, the plaintiffs in SFFA’s current cases bring a new perspective to challenging the use of race in admissions. This new perspective relies upon many of the stereotypes and biases already culturally prevalent about the “model minorities” and may very well be SFFA’s best chance yet to challenge the constitutionality of using race as a factor in admissions.
SFFA’s lawsuits are but one part of cultural grappling with the question of affirmative action in higher education admissions policies. In 2019, the medical school at Texas Tech University came to an agreement with the U.S. Department of Education’s Office of Civil Rights under which it would stop using race as a factor in admissions. The agreement, reached 14 years after the Center for Equal Opportunity filed a complaint with the U.S. Department of Education, effectively declared the Trump administration’s position on affirmative action: namely, that race should not be a factor used in admissions. Betsy DeVos, as Trump’s secretary of education, made this position clear, signaling a policy position that echoed some of the tenets of the president’s promise to “Make America Great Again” and return the United States to some image of its supposed former version of itself.
Affirmative action suffered another blow in November of 2020, just days before the First Circuit announced its decision in the Harvard case, as California voters considered Proposition 16, an initiative that would have repealed the law prohibiting state-funded institutions of higher education from considering race as a factor in admissions. Proposition 16 would essentially have allowed for a return of affirmative action programs, and it came to the ballot in an election with historic voter turnout (and during a pandemic). Yet, despite the reputation of being a progressive state, Proposition 16 was rejected by more than 57%, or more than 9 million votes. It is worth noting that California is one of the most racially diverse jurisdictions in the nation, yet even in localities where liberal voting blocs prevailed in the presidential election, those same voters did not favor the progressive position on the issue of affirmative action.
One lens through which to view the outcome on Proposition 16 involves the concept of “preference falsification,” which has been used to understand and explain the way that groups collectively move and respond in social and political situations. The concept, developed in the mid-1990s by the economist and political scientist, Timur Kuran, has found renewed currency in political discourse relating to affirmative action and race in the modern, polarized political climate. Preference falsification is the act of misrepresenting one’s preferences because of perceived social pressures. “It aims,” Kuran wrote, “specifically at manipulating the perception of others about one’s motivation.”
This concept may explain why some liberal and progressive counties in California rejected affirmative action. Where individuals may perceive that the socially acceptable position is to favor affirmative action and its support of minority students in admissions, they may still cast their secret ballot in favor of their personal preference to benefit their own family and students. Nevertheless, according to Kuran’s historical research, a critical mass of preference falsification can lead to a cascade effect, where what is collectively considered to be socially acceptable changes much more rapidly than expected.
This brings us back to the First Circuit’s decision in the Harvard case. Though the decision may be lauded as a victory for proponents of affirmative action policies and the use of race in admissions, a closer consideration of the issue in a broader context reveals that the Harvard decision is unlikely to be the last word on the subject, even if the case reaches the Supreme Court. And even though the issue of affirmative action is being considered in the midst of both a profound social justice movement and a dramatic change in presidential administrations, a majority of the current justices of the Supreme Court would appear to be less inclined to uphold race-based admissions policies than any court since the first wave of the Civil Rights movement in the 1960s. This, combined with a global pandemic that has fundamentally changed the ways in which social groups interact with one another, make the concept of preference falsification both more resonant and unpredictable than ever. The First Circuit has ruled, but little remains settled.
Natasha N. Varyani is an Associate Professor at New England Law | Boston. She teaches in the areas of Property, Tax and Critical Race Theory. Before coming to academia, Professor Varyani advised mulit-jurisdictional entities on their tax positions. (Professor Varyani is of South Asian descent and was not accepted into her first choice undergraduate institution).
by Amanda Hainsworth
Title VII of the Civil Rights Act of 1964 has protected employees from discrimination “because of … sex” for more than half a century. 42 U.S.C.§ 2000e-2. Over time, Title VII has been construed to prohibit a range of different forms of sex discrimination, including sex stereotyping and sexual harassment. Yet some lower courts have stopped short of including LGBTQ workers within Title VII’s ambit, leaving LGBTQ employees in more than half of the states across the country without employment discrimination protections.
This changed in June when the Supreme Court of the United States held, in a landmark 6-3 decision, Bostock v. Clayton County, Georgia, 590 U.S. __, 140 S. Ct. 1731, 1737 (2020), that Title VII’s ban on sex discrimination includes discrimination based on sexual orientation and transgender status. This decision is a major victory for LGBTQ people and advocates, and has significant implications that extend well beyond the employment context.
The issue came to the Supreme Court in a trio of cases that raised essentially the same question: does Title VII bar employers from discriminating against a person because they are gay or transgender?
In Altitude Express, Inc., et al. v. Zarda, No. 17-1623, Donald Zarda was fired from his job as a skydiving instructor within days of mentioning to his employer that he was gay.
In R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, No. 18-107, Aimee Stephens was fired from her job after penning a letter to her employer disclosing her transgender status and intent to live and work full-time as a woman.
And in Bostock v. Clayton County, Georgia, No. 17-1618, Gerald Bostock was fired from his job after he began participating in a gay recreational softball league.
Each of these employees brought suit under Title VII, alleging unlawful discrimination because of sex. The Second and Sixth Circuits concluded that Title VII bars employers from firing people because of their sexual orientation (as to Mr. Zarda) or their transgender status (as to Ms. Stephens). In Mr. Bostock’s case, the Eleventh Circuit reached the opposite conclusion and held that Title VII does not prohibit employers from firing employees for being gay. The Supreme Court granted certiorari to resolve the circuit split over the scope of Title VII’s protections. Sadly, Mr. Zarda and Ms. Stephens both passed away before the Supreme Court issued its decision.
The Supreme Court’s Decision in Bostock
In Bostock, the Court unequivocally held that an employer who fires an individual for being gay or transgender violates Title VII. This is because, in firing a person for being gay or transgender, the employer has fired that person “for traits or actions it would not have questioned in members of a different sex,” which is exactly what Title VII prohibits. Bostock, 140 S. Ct. at 1737.
The Court relied heavily on the plain meaning of “because of . . . sex” at the time that Title VII was enacted. It proceeded on the assumption that, in 1964, “sex” signified male or female, and concluded that “because of” incorporated a traditional “but-for” causation standard, which the Court explained, “directs us to change one thing at a time and see if the outcome changes.” Bostock, 140 S. Ct. at 1739. Thus, an employer violates Title VII “if changing the employee’s sex would have yielded a different choice by the employer.” Id. at 1741. And, because “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex,” employers who do so are in violation of Title VII. Id.
To illustrate the point as to sexual orientation, the Court offered an example of an employer with two employees—one male and one female—both of whom are attracted to men and otherwise identical in all material respects. If the employer fired the male employee because he is attracted to men, but retained the female employee who is also attracted to men, then the employer has violated Title VII because the male employee’s sex was a necessary part of the termination decision.
To illustrate the point as to transgender status, the Court provided another example of an employer who fired a transgender woman because she was assigned male at birth. In this scenario, “[i]f the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.” Bostock, 140 S. Ct. at 1741. Here again, the employee’s sex was a necessary and impermissible part of the termination decision.
The Court rejected the employers’ argument that Congress did not intend Title VII to reach discrimination against LGBTQ people in 1964 when it enacted the statute. In doing so, the Court pointed out that there is no such thing as a “canon of donut holes” where Congress’ failure to directly address a specific circumstance that falls within a more general statutory rule creates an implicit exception to that general rule. Bostock, 140 S. Ct. at 1746-47. Instead, Title VII prohibits all forms of sex discrimination, however such discrimination might manifest and regardless of how else the discrimination might be characterized.
The Court also rejected the argument that Congress’ failure to pass amendments to expressly include sexual orientation and transgender status should be relevant to the Court’s interpretation of the statute. The Court noted that “speculation about why a later Congress declined to adopt new legislation offers a ‘particularly dangerous’ basis on which to rest an interpretation of an existing law a different and earlier Congress did adopt.” Bostock, 140 S. Ct. at 1747.
Finally, the Court rejected the employers’ argument that “sex” should be construed narrowly because of the “no-elephants-and-mouseholes canon” which “recognizes that Congress does not alter fundamental details of a regulatory scheme by speaking in vague or ancillary terms.” Bostock, 140 S. Ct. at 1753 (quoting Whitman v. Am. Trucking Assns., Inc., 531 U.S. 457, 468 (2001)). While the Court agreed that the Bostock holding is certainly an elephant, it rejected the idea that Title VII—a major federal civil rights law that is “written in starkly broad terms” and has “repeatedly produced unexpected applications”—is a mousehole. Id. Instead, the Court concluded, “[t]his elephant has never hidden in a mousehole; it has been standing before us all along.” Id.
The potential implications of the Bostock decision are sweeping.
The largest and most obvious implication is that LGBTQ people now have nationwide protection against discrimination by any employer covered by Title VII (i.e., any employer with fifteen or more employees). Although Massachusetts’s nondiscrimination law has protected LGBTQ people from employment discrimination for years, see G.L. ch. 151B, § 4, Bostock represents a sea change for those states without any employment discrimination protections for LGBTQ people. Employers in those states now need to, among other steps, review and update policies and procedures and employee benefits packages to ensure compliance.
More broadly, while the Court’s holding was limited to Title VII, Bostock may mean that other federal civil rights statutes that prohibit sex discrimination also prohibit discrimination on the basis of sexual orientation and transgender status. This is because courts routinely rely on rulings in Title VII cases to inform rulings in cases involving other civil rights laws with comparable prohibitions on sex discrimination. There are more than 100 different federal laws that prohibit sex discrimination in a wide variety of different contexts, including in education, credit, housing, healthcare, and military service. Bostock means that all of those laws may also protect LGBTQ people. Bostock also calls into question the legality of the Trump Administration’s efforts to roll back federal civil rights protections for LGBTQ people in areas such as education and school athletics (Title IX), the military, and the Affordable Care Act.
Beyond these implications, there will almost certainly be a great deal of litigation related to the interplay between federal civil rights laws and employers’ religious beliefs. Title VII contains a narrow exception for discrimination on account of religion, but the Court did not address the extent to which employers will be permitted to discriminate against LGBTQ people based on religious beliefs.
Bostock also has potential implications for the standard of review that should be applied to federal equal protection claims involving discrimination against LGBTQ people. Rational basis review has been applied to such claims since the Court’s decision in Romer v. Evans, 517 U.S. 620 (1996). But sex-based classifications have long been subject to intermediate scrutiny, and Bostock’s holding that discrimination against LGBTQ people is, at core, sex discrimination suggests that intermediate scrutiny should be applied to such claims moving forward.
And, finally, but perhaps most importantly, Bostock may help shine a light toward a world where LGBTQ people—and in particular Black and brown transgender people—can begin to live freely and openly, with a little less fear and a little less pain, and a little more opportunity to succeed and thrive.
*This article represents the opinions and legal conclusions of its author(s) and not necessarily those of the Office of the Attorney General. Opinions of the Attorney General are formal documents rendered pursuant to specific statutory authority.
Amanda Hainsworth is an Assistant Attorney General in the Civil Rights Division of the Massachusetts Attorney General’s Office.