Biden’s ridiculous argument against affirmative action decision
Jack Elbaum
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After the Supreme Court rightly held that “Harvard’s and UNC’s admissions programs violate the Equal Protection Clause of the Fourteenth Amendment,” President Joe Biden responded with a terrible defense of racial preferences in admissions.
He wrote, “For decades, the Supreme Court recognized a college’s freedom to decide how to build a diverse student body and provide opportunity. Today, the Court walked away from precedent, effectively ending affirmative action in higher education. I strongly disagree with this decision.”
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The framing of affirmative action as “freedom to decide” and bemoaning the supposed horror of reversing precedent, as if it should carry veto power in and of itself, is a really terrible argument against the decision.
For starters, I doubt that President Joe Biden would maintain that “freedom to decide” is an important value in almost any other situation involving racial discrimination (and no one can deny that affirmative action is, in practice, simply racial discrimination). If a restaurant decided it would cap the number of Asian customers, for example, Biden would never defend it as a restaurant’s “freedom to decide how to build a diverse clientele.”
There are those who believe deeply in absolute freedom of association, meaning every individual and institution ought to have total discretion to choose if it serves or admits a given individual — even if it means discriminating on race, gender, sexual orientation, or anything else. But Biden is not one of those people. And, also, that is not how our laws work. It is clear that discrimination on the basis of a number of protected categories is prohibited. Appealing to “freedom to decide” does not change anything about that.
The other aspect of his defense — namely, the implication that the fact affirmative action was precedent means it should not have been struck down — is similarly specious. If a prior decision is wrong, and particularly if it is egregiously wrong, it is unjust for it not to be overturned. I presume President Joe Biden agrees with that statement when it comes to the long list of unjust decisions throughout Supreme Court history, including on racial segregation.
Affirmative action, of course, is not comparable to segregation. But Brown v. Board of Education is a perfect example of the absurdity of arguing against overturning precedent primarily on the grounds that it is precedent.
There certainly are other, better arguments for affirmative action. But President Joe Biden did not make them. The arguments he did make, however, hold absolutely no water. It’s a good thing most Americans see right through his rhetoric — both on this issue and many others.
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Jack Elbaum is a summer 2023 Washington Examiner fellow.