How Recent Supreme Court Decisions Affect Legal Education

On a recent installment of the Law School Admission Council’s Justice Hour, a series of webinars focusing on advancing equity and inclusion in the legal profession, we were honored to host Dean Erwin Chemerinsky of the University of California, Berkeley, School of Law. Dean Chemerinsky — a national expert on issues of constitutional law, federal practice, appellate litigation, civil rights and civil liberties, and criminal procedure — joined us to discuss two recent decisions by the U.S. Supreme Court that affect legal education and important aspects of Americans’ lives.

As Dean Chemerinsky noted, the current Supreme Court term has been extraordinary. If the court issues decisions on all of its remaining cases, it will have issued just 54 cases this term — the fewest since 1864. For the first time in history, the court held oral arguments by telephone and broadcast them live. But most importantly, there have been a number of “blockbuster” cases, two of which were highlighted during this Justice Hour session.

The first case, Bostock v. Clayton County, which was decided on June 15, involved Title VII of the 1964 Civil Rights Act, which prohibits employment discrimination on the basis of race, sex, or religion. The issue before the court was whether this prohibition also forbids discrimination on the basis of sexual orientation or gender identity. The Supreme Court case was a combination of three lower-court cases: two involving employees who were fired when their employers learned they were gay, and one in which Aimee Stephens, a transgender funeral home worker, was fired for being transgender. The lower courts were split on whether Title VII applied to these cases, and the Trump administration sided with the employers in all three cases.

On June 15, in a 6-3 decision, the Supreme Court held that Title VII does prohibit discrimination on the basis of sexual orientation or gender identity. Dean Chemerinsky explained the Court’s reasoning with the following example: Say an employee named Chris works for an employer but never meets the employer in person, instead communicating via email or text messaging. Chris makes references to having a husband, and the employer assumes that Chris must be female; when they finally meet and the employer learns Chris is male, Chris is subsequently fired. If Chris were female, he would not have been fired; thus, such an action is employment discrimination on the basis of sex, as specified in Title VII.

Dean Chemerinsky said this ruling has the effect of extending federal protection against such employment discrimination to residents of states that do not have laws prohibiting that discrimination. And it opens up more than 100 other federal statutes that prohibit sex discrimination to also be interpreted as prohibiting gender identity or sexual orientation discrimination. It also brings employers’ ability to discriminate on religious grounds into question, and that issue will likely be litigated in the months and years ahead. Finally, Dean Chemerinsky suggested this ruling could mean more protection for LGBTQ+ individuals under the Constitution, as well as under Title VII.

The second case, Department of Homeland Security v. Regents of the University of California, involved the Deferred Action for Childhood Arrivals (DACA) program created by President Obama via executive order to extend two-year deferred deportation status and access to certain benefits, such as work permits, to some 800,000 individuals brought to the U.S. at a young age. Many of these so-called “dreamers” are enrolled at American universities and law schools or have earned their law degrees and are working in the legal profession. President Trump rescinded DACA, with his administration claiming that it was an illegal program.

But in a 5-4 decision on June 18, the Supreme Court found that Trump’s rescinding of DACA violated the federal Administrative Procedures Act, which specifies that a federal agency’s decision cannot be arbitrary and capricious, and instead must have an articulated, legitimate reason. While this ruling means that those 800,000 “dreamers” retain their DACA status, Dean Chemerinsky noted that the court did not prevent the president from rescinding DACA in the future. Any such order will likely be litigated and tied up for months; thus, the ultimate outcome likely depends on the outcome of the presidential election in November, unless Congress can get beyond its partisan divide and create an alternative solution for those individuals.

Our thanks to Dean Chemerinsky for this thoughtful and illuminating look at how these two cases, and the law in general, affect all of us, often in the most important and intimate ways. We hope you’ll join us on a future LSAC Justice Hour for more discussion of the trends and events shaping our ever-changing world of legal education and the law.