Legal Watch: Two Cases to Watch

By Nancy Long

Last year the AAUP weighed in on two controversial cases that will be decided during the Supreme Court’s current term, with decisions most likely this June. The first case, Bostock v. Clayton County, Georgia, involves LGBTQ individuals who were fired from their workplaces after their employers learned of their LGBTQ status. The second case, Department of Homeland Security v. Regents of the University of California, will determine the fate of the Deferred Action for Childhood Arrivals (DACA) program, a stopgap measure implemented in 2012 by Barack Obama to shield from depor­tation individuals who were brought into the United States as children.

In Bostock, the Supreme Court will decide whether existing federal law prohibiting employment dis­crimination based on sex extends to discrimination based on sexual ori­entation and gender identity. Many lower federal courts have ruled that prohibition of sex discrimina­tion in employment under Title VII also protects LGBTQ people from employment discrimination.

The AAUP is committed to principles of equal treatment in faculty employment. Our Recom­mended Institutional Regulations on Academic Freedom and Ten­ure state that “all members of the faculty, whether tenured or not, are entitled to protection against illegal or unconstitutional discrimination by the institution, or discrimination on a basis not demonstrably related to the faculty member’s professional performance, including, but not lim­ited to, race, sex, religion, national origin, age, disability, marital status, or sexual orientation.” In support of these principles, the AAUP joined an amicus brief arguing that the statu­tory text and judicial interpretations of Title VII support the conclu­sion that discrimination based on LGBTQ status is a form of sexual discrimination. Failing to follow these interpretations would leave those most vulnerable to workplace discrimination without protection, rendering Title VII unable to fulfill its purpose of eradicating discrimina­tion in the workplace.

In oral arguments, Justice Neil Gorsuch emerged as an unlikely potential swing vote, appearing sym­pathetic to the plaintiffs’ arguments. When the employers’ attorney argued that there is a difference between sex and sexual orientation, Gorsuch responded that at least one contributing cause of the plaintiffs’ firings does appear to be sex. Yet Gorsuch also expressed concern about the “massive social upheaval” that he believed would follow from a ruling for the plaintiffs.

The DACA case, like Bostock, has profound implications for col­lege campuses as well as the broader society. The DACA program has allowed undocumented immigrants brought to the United States as chil­dren to remain in the country legally and has expanded access to higher education by making participants eligible for in-state tuition and state-funded grants and loans. DACA status has been granted to roughly eight hundred thousand people.

The Trump administration moved to end DACA in 2017, but in January 2018, a federal court issued an order that blocked the govern­ment from ending the program; similar orders from two other courts soon followed. In an unusual move, the Trump administration went directly to the Supreme Court late last year, asking the justices to weigh in on two questions: Is the Trump administration’s decision to end DACA subject to legal review at all, and, if it is, was the decision to end the program legal? After the Ninth Circuit upheld one of the district court’s orders requiring the Trump administration to keep the DACA program in place, the Supreme Court decided to hear the case.

The AAUP joined an amicus brief in support of DACA last fall. As the brief emphasized, “DACA has been a symbol of tolerance and openness of our university campuses,” and DACA participants have contributed greatly to their colleges and universi­ties. Rescinding DACA would send a message of exclusion to all foreign-born students, damaging America’s higher education system in the eyes of the world.

Oral arguments in the DACA case were hotly contested. Several justices appeared concerned that the Trump administration’s decision-making process had not adequately considered the effects of rescinding DACA, but they were not necessar­ily convinced that the policy should be sent back to the administration for reconsideration. Responding to the Trump administration’s argu­ment that the DACA program is illegal, Justices Ruth Bader Ginsburg and Elena Kagan suggested that the government nonetheless might have reached a different decision even if it had believed the program was legal. The administration could have ended DACA based on its view that DACA was not good public policy. The government attorney responded to these suggestions by telling the justices that the government “owns” the decision to end DACA.

The AAUP is following these cases closely and will keep members apprised of developments.

Nancy Long is associate counsel at the AAUP.