Discrimination

If the Supreme Court rules this term that affirmative action is unconstitutional, relying on a case called Students for Fair Admissions v. Harvard, one response will be to chalk it up to the changed composition of the court. After Donald Trump added three justices, legal arguments that had repeatedly failed to convince justices over 45 years of constitutional wrangling suddenly fell on more sympathetic ears.

That view may be true in part. But it’s inadequate to describe why affirmative action is in danger. Affirmative action is on a shaky footing not just because the composition of the court has changed but also because the composition of the country has changed. Demography has caused the moral ground to fall out from under the policy.

Affirmative action dates from executive orders issued by Presidents John F. Kennedy and Lyndon Johnson in the 1960s. The policy was meant to help Black people at a time when the country was effectively biracial, with white people outnumbering Black people by a ratio of about seven to one.

Those facts were directly relevant to the logic of the policy. Giving a break to a few Black students might have meant denying a chance to the equivalent number of white students. But because white people constituted an overwhelming majority, the number of white applicants disadvantaged by affirmative action was relatively low. They tended to be borderline admissions cases. They were hard to identify with any specificity. And advantages were being redistributed from descendants of the former oppressor race (white people) to descendants of the former oppressed race (Black people). In a literal sense, it was discrimination — but it did not necessarily feel like discrimination.

That has changed. The arrival of large numbers of immigrants over the past half-century has upset the logic of affirmative action in several ways. For one thing, white Americans no longer dominate the educational system. (They make up only 22 percent of the Stanford Class of 2026, for instance.) Early on, affirmative action was also extended to Latinos, whose numbers continue to grow. In addition, African and Caribbean immigrants and their children now account for more than 40 percent of the Black enrollment in the Ivy League, which risks crowding out the people that affirmative action was originally intended to help.

More than any other development, though, the enormous rise in Asian immigration since the Immigration and Nationality Act of 1965 has complicated the administration of affirmative action. The complication, simply put, is that Asian students on average have been considerably more qualified for college than students of other groups.

Students for Fair Admissions, the plaintiffs in one of two affirmative action cases before the Supreme Court, contend that Harvard’s affirmative action programs discriminate against Asian students. These plaintiffs are not the first to make such a claim. In 1988, the Department of Education investigated Harvard for anti-Asian bias. Although the school was absolved, Harvard’s Asian enrollment shot up in the course of the investigation from about 11 percent in 1988 to 16 percent in the early 1990s — “not coincidentally,” according to an amicus curiae brief submitted in support of the plaintiffs in the current Harvard case.

Over the ensuing quarter-century, this increase more or less stalled. Harvard’s Asian enrollment remained at about 17 percent, year after year, while the percentage of Asians in the population of the United States roughly doubled, to 6 percent. By comparison, between 1990 and 2020 the Black percentage of the population increased slightly, the white percentage decreased and the Hispanic percentage also doubled, according to the Brookings Institution demographer William Frey .

Since its 1978 ruling in Regents of the University of California v. Bakke, the Supreme Court has permitted universities to use student-body “diversity” as a criterion for admissions. But it does not give universities carte blanche to discriminate. Students for Fair Admissions presents evidence (which Harvard disputes) that Asian enrollment stalled because Harvard tweaked its admissions system to keep Asian students out. Citing internal Harvard documents, Students for Fair Admissions argues that, had Harvard pursued a neutral admissions policy focused on academics alone, its incoming classes might have been more than half Asian.

Harvard did a number of things differently with Asian applicants than with other applicants, including extending invitations to apply at a higher minimum combined SAT score than it did for Black, white and Hispanic students. A Black applicant in the seventh-highest academic decile of applicants had a better chance of being admitted to Harvard than did an Asian applicant in the highest decile.

One particularly suspicious race-based difference in the way Harvard treated its aspiring students involved a so-called personal rating. Harvard’s admission officers assigned to each applicant a numerical score for intangible traits, including leadership, self-confidence, likability and kindness. On these ratings, Asians scored far lower than any other racial group. A federal court accepted Harvard’s assurances that it had not engaged in conscious bias. But there is, at the very least, one strong indication of a systemic bias: Unlike the admissions officers, alumni interviewers from outside the admissions office who actually met with Asian applicants recorded no such deficiency of personality and character.

In the early days of affirmative action, the trade-offs in weighted admissions were relatively small and the affected parties were hard to identify, but in today’s admissions systems all racial groups’ relative outcomes are scrupulously tallied and all trade-offs among groups are conspicuous. The claim of Students for Fair Admissions is that significant numbers of Asians are being lopped off admissions rolls to serve the goals of racial balancing, securing admissions for Black, Latino and probably also white students.

If class size is fixed, using the race of one candidate as a plus to achieve a more diverse class by definition means using the race of another candidate as a minus. In that sense, the constitutional question at the heart of affirmative action may seem no different today from what it was in 1978, in the Bakke case.

But something is different. When majorities discriminate against their own kind, as largely white universities did in the early days of affirmative action, it may not feel like a “bad” kind of discrimination. It may not feel like discrimination at all. It may even feel like magnanimity. But the biracial historical context that used to tug at consciences, pushing admissions officers (and the parents of rejected students) to a more indulgent understanding of affirmative action, is gone.

After half a century of high immigration, the United States has become a multiracial country and affirmative action has turned into a different kind of program. Building “diverse” student bodies now requires treating Asian overrepresentation as a problem to be solved. This means discriminating by race in a way that is radically more direct and intrusive.

Whether or not the Supreme Court decides that the constitutional meaning of affirmative action has changed, it is a policy pursued at an ever-rising social and moral cost.

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The median age of senators is 65. We’re heading into a presidential contest that might find candidates who are 78 and 82 facing off on Election Day. Our government, people have argued, is a gerontocracy. But is that a bad thing? Should our older leaders take a back seat? And for all of us, how do you know when it’s the right time to retire?

Background reading

• “ Inside the Complicated Reality of Being America’s Oldest President ” (The New York Times)

• “ Feinstein, Back in the Senate, Relies Heavily on Staff to Function ” (The New York Times)

(A full transcript of the episode will be available midday on the Times website.)

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“Matter of Opinion” was produced this week by Phoebe Lett, Sophia Alvarez Boyd and Derek Arthur. It was edited by Stephanie Joyce. Mixing by Isaac Jones. Original music by Isaac Jones, Efim Shapiro, Carole Sabouraud, Sonia Herrero and Pat McCusker. Our fact-checking team is Kate Sinclair, Mary Marge Locker and Michelle Harris. Audience strategy by Shannon Busta and Kristina Samulewski. Our executive producer is Annie-Rose Strasser.

This year there is a pall over Pride.

As the L.G.B.T.Q. community celebrates Pride Month, we are besieged by a malicious, coordinated legislative attack.

There’s been a notable rise in the number of anti-L.G.B.T.Q. bills since 2018, and that number has recently accelerated, with the 2023 state legislative year being the worst on record.

According to the Human Rights Campaign, in 2023 there have been more than 525 such bills introduced in 41 states, with more than 75 bills signed into law as of June 5. In Florida — the state that became known for its “Don’t Say Gay” law — just last month, Gov. Ron DeSantis signed legislation that banned gender transition care for minors and prohibited public school employees from asking children their preferred pronouns.

As Kelley Robinson, the president of the Human Rights Campaign, recently told me, the number of signed bills is likely to move higher: “There’s 12 more that are sitting on governors’ desks, so you could be at nearly 100 new restrictions on the L.G.B.T.Q.+ community by the end of this cycle.”

For that reason, on Tuesday, for the first time in its more than 40-year history, the Human Rights Campaign declared a state of emergency for L.G.B.T.Q. people in the United States.

I recently spoke with several leaders of L.G.B.T.Q. groups and historians who have documented the community’s history, and they all raised the alarm about the severity of what we’re seeing.

There have been other periods of backlash against the queer community, including with the passage of oppressive legislation, but this one has moved with alarming political calculation and efficacy.

“This is a terror campaign against our community,” said Sarah Kate Ellis, the president and chief executive of GLAAD, the pre-eminent L.G.B.T.Q. media advocacy organization.

The way this kind of terrorism works is that it not only punishes expression, condemns identities and cuts off avenues for receiving care but also creates an aura of hostility and issues grievous threats. It’s like burning a cross on someone’s lawn: It’s an attempt to frighten people into compliance and submission.

The Republican politicians pushing anti-L.G.B.T.Q. laws usually pretend that their principal, if not their sole, motivation is to protect children. But these laws operate in furtherance and protection of the fragile patriarchy, in perpetuation of the twin evils of homophobia and heterosexism and in reinforcement of abusive gender-identity policing.

These politicians play to a segment of the population that sees any divergence from its primitive ideals as deviant. So they build boxes. But for too many people, particularly young people, those boxes can become caskets: According to the Centers for Disease Control and Prevention, one in five gay, lesbian or bisexual high school students attempted suicide in the past year. Last year the Trevor Project found that 45 percent of L.G.B.T.Q. youths seriously considered attempting suicide in the preceding year.

These politicians have Willie Horton-ized the transgender equality movement and, by extension, the whole movement for L.G.B.T.Q. equality.

And one of the saddest aspects of this episode has been seeing a small but vocal group of people who claim to be liberal — and who one would think would be allies — aid and abet the arguments of transphobes.

Some are feminists who have essentially argued that full inclusion of trans women is anti-feminist — that it’s harmful to or an assault on the rights of cisgender women.

And there have been some in the queer community who have remained shockingly silent when it comes to trans rights, treating the issue as zero sum. Rather than express solidarity with the trans community, they see the fight for trans rights as an opening for homophobes to erase the hard-earned gains of gay men, lesbians and bisexuals. This is not a hill they chose to die on.

But if you are queer and silent on this issue, you are betraying your own cause. Silence won’t shield you. It will only embolden your adversaries and expose your cowardice.

It seems pretty obvious that the trans community is an attractive target for culture war bullies because it’s a small subset of the queer community and an even smaller subset of society as a whole.

According to a study last year by the Williams Institute at U.C.L.A., about 1.6 million people 13 or older in the United States, or 0.6 percent, identify as transgender.

Furthermore, in a 2021 survey , nearly 70 percent of Americans said they know a gay or lesbian person. Only about one in five said they know someone who is trans. That number is up but still small. That’s about the same number who said in response to a 2021 YouGov poll that they’ve seen a ghost.

It’s in this atmosphere of unfamiliarity and ignorance about who trans people are — and are not — that hysteria and cruelty flourish. The maleficent caricature that people conjure in their minds about trans people is one of a predator or “groomer” lurking in bathrooms and locker rooms. They imagine a Frankenstein’s monster in lipstick to justify their pitchforks.

The advocates I spoke to were, in a way, reeling from this onslaught but also optimistic that they would eventually prevail and that this backlash would wane.

The problem, though, is that once laws are on the books, it can be hard to remove them. Take, for example, H.I.V. criminalization laws and laws against same-sex marriage that still have not been repealed in some states.

As Michael Bronski, a Harvard professor and the author of “A Queer History of the United States,” put it, “I can argue all I want that this is a draconian backlash that’s not constitutional, but the laws are on the books already.” He added, “I think it’ll be decades to take them off the books.”

That could mean a near future of further bifurcation of the country — some states rushing to oppress the L.G.B.T.Q. community, with others winding up as places to go to try to escape oppression — not unlike the country’s bifurcation in the Jim Crow era. In fact, you could call this era the birth of Jim Queer.

Source image by Cathy Scola/Getty Images

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While riding the train in San Francisco three years ago, a white man told an African-American man that he smelled bad and should move away from him. An argument followed, and the African-American man, Michael Smith, was eventually tackled by police officers and accused of assaulting them.

The San Francisco District Attorney’s Office charged Mr. Smith with seven counts, including battery on a police officer and resisting arrest. But after viewing body camera footage, a jury acquitted Mr. Smith, then 23, on most of the charges, and the prosecutors dropped the other counts. Mr. Smith’s lawyer said he does not believe a white person would have been arrested or prosecuted.

While the district attorney’s office disagreed with that assessment of the case, George Gascón, the district attorney, has acknowledged that a disproportionate number of African-Americans are prosecuted in the city, which led him to ask a troubling question: To what extent does bias affect the work of prosecutors?

As a result, the office has begun experimenting with an approach it describes as “blind charging,” which prevents prosecutors in one of the nation’s busiest district attorney’s offices from seeing demographic information before making an initial decision on whether to charge someone.

Criminal justice experts said San Francisco appeared to be the first such office in the nation to test that approach.

“The question we want to ask ourselves is, ‘Would you charge based just on the behavior, without the race and other demographic information?’” said Mr. Gascón. “We wanted to see what might be causing a disparate application of the law.”

In recent weeks, the office has begun by removing details — like race and names — from police reports before turning those cases over to prosecutors to decide whether to press charges. Starting in July, the office intends to employ computer software designed by Stanford University researchers to redact a suspect’s race and name, and that of victims. Also removed will be locations where crimes were said to have been committed.

The only information prosecutors will initially have access to is an officer’s incident report, which generally includes the reason someone was stopped before an arrest, evidence that a crime was committed, witness statements and anything a suspect might say.

Only after assistant district attorneys make a preliminary decision about charges would they be permitted to access other information, including race and other demographic details, body camera footage and photos. In each case, regardless of the initial charging determination, all of the evidence will ultimately be reviewed, prosecutors said. If a prosecutor comes to a different conclusion between the first and second steps, that will be recorded and compared to historical data. Prosecutors will also be required to explain what changed their minds, and those patterns will be studied, the office said.

The experiment in blind charging comes as prosecutors’ offices across the nation have been instituting policy changes to grapple with what has been found to be extensive racial bias in the criminal justice system, which has led to disproportionate levels of incarceration among African-Americans.

District attorneys in Brooklyn, Dallas County and elsewhere no longer prosecute low-level marijuana cases. Prosecutors in Philadelphia now handle shoplifting as a minor offense rather than a serious crime if the amount stolen is less than $500 . And other district attorneys around the nation have stopped demanding bail for people facing misdemeanor charges.

Legal analysts said the San Francisco policy appears to go a step further by directly confronting ingrained racial bias that leads some prosecutors, for example, to file charges against African-Americans for low-level drug offenses more frequently than against whites, even though studies show that white people use illicit drugs at higher rates .

“It strikes me as an interesting and intriguing thing to do because I don’t get a sense that there’s a lot of systemic change being attempted in this way,” said John Pfaff, a Fordham University law professor and author of “Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform.”

Mr. Pfaff said the potential for bias might be greater among prosecutors than police officers because prosecutors are more likely to be white than police officers, and are generally from higher than average socio-economic backgrounds.

So far, blind charging has not been opposed by prosecutors’ organizations, police unions or crime victims’ rights groups.

Although there have been few detailed academic studies about bias among prosecutors, a 2017 report by Carlos Berdejo at the University of Loyola Law School found that white defendants in Wisconsin were 25 percent more likely than their black counterparts to have criminal charges dropped or reduced to less serious crimes.

Studies have repeatedly shown that San Francisco arrests and prosecutes African-Americans at disproportionately high levels. And a 2016 Justice Department report found significant evidence of racial bias in the way the city’s police department enforces the law.

Although African-Americans make up only about 6 percent of San Francisco’s population, they accounted for 41 percent of those arrested, 43 percent of those booked into jail, and 38 percent of cases filed by prosecutors between 2008 and 2014, according to the city.

Mr. Gascón, whose term expires early next year and who is not running for re-election, has frequently proposed ideas that run counter to notions about the work of district attorneys. He supported Proposition 47 , an initiative that reduced punishment for some drug and property crimes; ordered his office to automatically wipe away old marijuana convictions; and supported legislation to seal people’s criminal records for misdemeanors and low-level felonies once they complete prison or jail sentences.

Mr. Gascón said an examination of cases handled by his office had showed no indication that his prosecutors make decisions motivated by implicit bias, but he said that the lopsided number of African-Americans in the city’s criminal justice system compelled him to look deeper.

“We’ve found no bias, but we still have concerns,” he said.

For instance, a 2017 study commissioned by the district attorney’s office and performed by two independent criminologists determined that African-American suspects in San Francisco are less likely to have their cases dropped or dismissed than white suspects, and receive longer prison and jail sentences than others. The study concluded, however, that those results were likely not the result of bias, but of other factors, including that African-American defendants were more likely to have previous arrests, convictions and open cases.

In the 2016 case which led to the arrest and prosecution of Mr. Smith, the train passenger who told Mr. Smith that he smelled bad called 911 after Mr. Smith responded angrily, said Glenn Katon, Mr. Smith’s lawyer.

The man told the emergency operator that Mr. Smith had tried to rob him and might be armed, although Mr. Smith did not have a gun, according to court records.

Once the transit police arrived, a mobile phone video appeared to show Mr. Smith, who was with his pregnant girlfriend, being punched in the head by a police officer while he was handcuffed. The police say Mr. Smith spit at them.

After Mr. Smith was acquitted on most counts and the others were dropped, he sued the transit system and the officers and won a $40,000 settlement, said Mr. Katon.

Mr. Gascón’s office declined to comment on the case, but Max Szabo, a spokesman, said that “removing implicit bias and the implications of race” would help “enhance fairness in a system long plagued by inequities.”