The U.S. Supreme Court will shortly rule on two cases regarding affirmative action. Fisher v. University of Texas concerns Abigail Fisher, a white woman who claims that her rejection from the university was influenced by its policy of considering race in admissions decisions. Fisher represents the growing consensus that racial discrimination on any grounds is unacceptable, and a broad ruling on the case could result in the overturning of Grutter v. Bollinger, effectively ending affirmative action at U.S. universities.
The second case, Schuette v. Coalition to Defend Affirmative Action, questions whether Michigan state is violating the Equal Protection Clause by amending its constitution to prohibit race and sex based preferential treatment in public university admissions. At the same time, the Supreme Court is considering whether to overturn Section 5 of the Voting Rights Act, which is being challenged by Shelby County, Ala.

All three cases raise critical questions about the Equal Protection clause: does affording all people with equal consideration necessarily mean treating them in the same way? Do we have a moral obligation to atone for historic discriminations suffered by certain minorities? Does this obligation have an expiry date? Sandra Day O’Connor, for instance, declared in 2003 that affirmative action should no longer be necessary within 25 years.

There are three main arguments in favor of affirmative action. The first is that universities are made fundamentally better by diversity. This argument doesn’t hold; students might benefit from having a more diverse peer group but they could lose out from having an academically weaker class. It is not obvious that race should correspond to cultural diversity or that any benefits of a more diverse experience should override the right to equal consideration.

The second argument is that affirmative action is an atonement for historic injustices. This fails for two reasons. We cannot atone for historic discrimination by granting preferential treatment to a different generation. There is also evidence that this hurts minorities by placing them into universities which they are not well-placed for, potentially resulting in lower graduation rates.

The final argument states that unequal treatment is sometimes necessary to enable equal consideration. Society is unequal and the legacy of discrimination is entrenched in the systems designed for white men, by white men, that persist today. This is a compelling but uncomfortable argument, perhaps because it brings up an uneasy association with that notorious phrase "separate but equal."

But when we argue that unequal treatment is always wrong, and university admissions should be based upon merit alone, we run into a contradiction; we can’t really define merit, beyond some vague idea that it means the most deserving and the most suited. Who is more deserving — the hardest-working or the most intelligent student? If a student grows up in poverty and receives test scores a fraction lower than a Kennedy or a Clinton, who is more deserving? Is the "most-suited" student the one who has progressed the furthest academically, or the one with the most potential to progress?

Critics of affirmative action often talk about merit as if it is a single objective measure, but merit is a subjective assessment. Universities request a range of information from applicants to build up a profile about their potential, and applicants are encouraged to discuss factors that have influenced their decisions. A university might legitimately consider an Olympic athlete to be more impressive than another student with similar scores. They might consider that someone with two part-time jobs has additional potential to be realized. And they might consider that someone who grew up in a poor black neighborhood could have more potential than their test scores suggest.

Universities should not impose racial quotas or assign point increases to minorities, but they should be able to make subjective decisions on the impact of race on a student’s achievements and prospects, just as they make judgments on factors like schools, activities and achievements outside of academia.

Race is still relevant today, and critics who disparage the use of race as a proxy for socioeconomic status fail to acknowledge how accurate it can be. The unemployment rate for blacks is double that of whites and the wealth gap between whites and minorities increased over the last 25 years. But race isn’t just a proxy for socioeconomic status, because while Shelby County may believe that discrimination and disenfranchisement is something of the past, it isn’t. 2012 saw the proposal of new voting laws which would restrict the ability of minorities to vote, including onerous identification requirements despite overwhelming evidence that voter fraud is negligible.

America in 2013 still needs the Voting Rights Act and affirmative action, not in spite of equal protection but to enable equal protection. And when does the obligation to consider race end? Perhaps when all children genuinely have equal opportunities to determine their lives. 

Tan is a government and public sector consultant.