Jo Ro Co & Ho | Center for Equal Opportunity

Stopping Discrimination

Assuming that the Roberts Court remains conservative for at least the next two or three years, Roberts should have chances to vote to overrule several liberal precedents, arguably the most important being Grutter v. Bollinger, the racial admissions preferences case from ages ago (2003 to be exact).

Currently there are two race cases in early stages of litigation either of which might make it to the Supreme Court by 2021. One is a challenge to preferences underway at Harvard and the other a challenge to the racial admissions at the University of North Carolina.

The Court may be asked to overrule the Grutter precedent. The question there would be whether the narrowly tailored use of race can justify the attainment of a racially diverse student body and the educational benefits it is said to produce.

By the way, it was Chief Justice John Roberts who famously wrote in a 2007 pre-college admissions case, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Well said, and perhaps a hint as to the Chief’s high interest in this area of the law—and to his willingness to overrule a badly wrong decision.

Ho Heaves Liberals on Sexual Orientation

Title VII is the well-known federal law passed in 1964 that bans discrimination on the basis of “sex.” There are those (from the Obama administration) who say that the statute also outlaws discrimination on the basis of sexual orientation or gender identity. The issue was recently addressed in the Fifth Circuit in Wittmer v. Phillips 66 Co. A concurring opinion by Judge James Ho, a recent Trump appointee, is especially persuasive. Ho argues that Title VII should not be read to ban discrimination on grounds of sexual orientation or gender identity. I’d emphasize that if those are the policies you want, get Congress to pass them.

There is much in Ho’s opinion worth pondering. In one of his Bench Memos Ed Whelan treats it at length, and his compelling analysis and insights deserve notice. Whelan highlights a number of Ho’s key points, such as that while the circuits are divided over interpretation of Title VII, they are united as to the original public meaning of the statute; that no one seriously contends that, at the time of enactment, the public meaning and understanding of Title VII included sexual orientation or transgender discrimination, that, to the contrary, there is a judicial consensus that the public meaning of Title VII in 1964 did not encompass sexual orientation or transgender discrimination—a consensus now under attack in the courts; and that this consensus about the original understanding of Title VII is bolstered by four decades of case law; and that during that time, every federal circuit to address the issue–including the First through Eleventh Circuits—rejected attempts to construe Title VII to prohibit discrimination on the basis of either sexual orientation or transgender statute.

Says Ho: The traditional interpretation of Title VII is . . . the only reading that comports with common usage. When construing statutes, courts presume that lawmakers use words in light of their natural and ordinary meaning, rather than resort to more cryptic formulations. If Congress had meant to prohibit sexual orientation or transgender discrimination, surely the most straightforward way to do so would have been to say so—to add “sexual orientation” or “transgender status” or “gender identity” to the list of classifications protected under Title VII. It would defy common sense to imagine that lawmakers labored to assemble a majority coalition to eradicate sexual orientation and transgender discrimination from the workplace—only to select the most oblique formulation they could think of (“because of sex”) and then hope for the best that courts would understand what they meant.
Case closed, I’d say.

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