Equality vs. Equity

“There’s a big difference between equality and equity,” said now Vice President Kamala Harris as she ran for the presidency of the United States, and many millions watched and shared her video, which depicted one mountain climber who starts in a deep hole and another who starts much higher up.1 On the very day of his inauguration, with Vice President Harris at his side, President Joe Biden embraced the word “equity” in executive orders.2 He charged Susan Rice, director of his Domestic Policy Council, “with ensuring that the new administration embeds issues of racial equity into everything it does.”3 Federal agencies have been ordered to report on systemic barriers hampering access to benefits, services, and procurement opportunities.Immediately, critics responded with objections. Some charged the new administration with seeking to install discriminatory practices, favoring some racial and ethnic groups over others and attempting to inflame rather than heal racial division.4 Commentator Noah Rothman warned, “In practice, that looks less like ‘equity’ and more like ‘retribution.’”5 Others attacked the Biden administration’s approach for promoting a “spoils” system, more governmentally imposed constraints on freedom, and abandonment of equality.6 In contrast, key advisor Rice declared, “Advancing equity is a critical part of healing and of restoring unity in our nation.”7 Robert Kuttner, a commentator on the left, however, warned that change will come only with massive restructuring of the power relations across labor, capital, and government, as well as class-based coalitions against racism.8The political debate reflects, but also clouds, work underway in educational and employment settings. Over the course of the last decade, “equity” initiatives have been organized in U.S. schools, in human resources departments at colleges, in corporations, in philanthropies, and in nonprofit organizations. Often, “equality” appears as the inadequate alternative. For example, a memorable cartoon circulating on the internet depicts two scenes of three children looking over a fence at a ball game. The first scene is labeled “Equality” and shows each child standing on a box with the tall child looking easily over the fence, a middle-size child able to just see over the fence, and a small child unable to see over the fence at all. The second scene, labeled “Equity,” depicts the tall child able to look over the fence while standing on the ground, the middle-size child able to see over the fence by standing on one box, and the small child, now standing on two stacked boxes, also able to see over the fence; all three are essentially getting the same view.9 The images provide vivid contrasts. They are invoked in discussions urging equity rather than equality. Individualized accommodations for students with disabilities represent one version of equity, already mandated and implemented by law under frameworks labeled in terms of antidiscrimination, inclusion, or equality. Whatever it is called, treating everyone the same, regardless of background factors, historical inequities, and personal situation, inspired Anatole France’s observation, “The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.”10 Tailored treatment, rather than identical treatment, could proceed based on assessments of an individual’s needs and situation or instead based on diagnosis of systemic conditions of disadvantage and exclusion.But the contrast between the terms “equality” and “equity” does not illuminate real differences in potential visions of society. The terms “equality” and “equity” have become weapons in polarized political arguments rather than analytic tools. The political volley over words neglects and obscures decades of litigation, policy, and academic work in both American law and comparative law. The U.S. Constitution prohibits government denial of “equal protection” of the laws; state and federal statutes guard against discrimination on the basis of individual characteristics (e.g., race, gender, disability, age, sexual orientation or identity). The relevant state or federal authority does not use the term “equity.” In ongoing litigation challenges to any attention to race used by the admission processes of selective colleges and universities, the defense must proceed by reference to the Fourteenth Amendment’s guarantee of equal protection of the law as well as statutory protections against discrimination or exclusion on the basis of race.11 Dumping on “equality” is a poor strategy for any who support inclusion, affirmative action, and overcoming historic and ongoing barriers based on individuals’ group membership or situation. Attacking “equality” jeopardizes public support and surrenders intellectual and legal resources—including laws and judicial decisions—otherwise available for enforceable changes. Ceding the term “equality” to those who oppose any redress of historic and systemic disadvantages is especially shortsighted in a nation where courts have ruled that “classification” of individuals on the basis of certain personal characteristics (including race, gender, and religion) requires the most skeptical scrutiny. Further, tensions among current uses of “equity” hamper articulation of and steps toward potential initiatives at the levels of interpersonal, institutional, economic, and political action.This article seeks to clarify the meanings behind contemporary uses of the terms “equality” and “equity.” It also supports the conception, associated at times with equality and at times with equity, of laws and policies that are responsive to individual and structural differences in people’s circumstances. Lawyers, students, and policy makers work every day with the constitutional language of “equal protection of the laws,” as well as with statutes and regulations forbidding discrimination on the basis of protected traits, such as race and gender. Although these sources do not speak of “equity,” dismissing them would be a big mistake. Not only are these sources the law of the land: the terms and underlying conceptions of “equal protection” and “antidiscrimination” can be crucial tools for redeeming the promise of the Declaration of Independence and the Reconstruction Amendments—the promise of a nation where each person is secure and enjoys the same freedoms and opportunities as others, a nation that rejects status spelled by birth, race, or other happenstance. This is a promise worth fortifying, elaborating, and improving, not casting out or conceding away to those who resist continuing struggles in this historic spirit.Testing any classification of individuals by reference to a group trait—and questioning any treatment that differs from treatment of others—is simply one understanding of equality and a narrow one at that. As Professor Owen Fiss showed a half century ago, the use of the term “equality” can instead signal comparisons of groups and direct challenges to entrenched patterns of hierarchy and subordination on the basis of group traits.12 Dr. Martin Luther King, Jr., Malcolm X, Eleanor Roosevelt, and Ruth Bader Ginsburg each pursued this vision of equality and its resulting expansive methods while also embracing the recognition of the dignity of each individual.13Current emphasis on “equity” implies a shift from the earlier social justice movements epitomized by King, Roosevelt, and Ginsburg. Mounting evidence over decades shows that eliminating explicit, lawful discrimination does not undo patterns of disadvantage. Moreover, an implicit narrative of a zero-sum game helps to perpetuate defenses of current arrangements.14 The treatment of racial and ethnic identities spells ongoing injustices even for people who do not descend from enslaved individuals in the United States. These include more recent immigrants identified as Black, Latinx communities, and Asians. Subjugation based on disability, gender, sexual orientation, national origin, religion, and other markers of difference each has its own history and perpetuated suffering that bears on the search for what is signaled by the call for equity. Even before the COVID-19 pandemic, disparities in the wealth and income of Americans grew to rival those of the Great Depression.15 “The gaps in income between upper-income and middle- and lower-income households are rising, and the share held by middle-income households is falling,” reported the Pew Research Center in January of 2020.16 Financial inequalities and polarization began to rival the Gilded Age when excessive wealth juxtaposed with massive poverty so divided the nation.17 Then came the COVID-19 virus, jeopardizing health and human lives and also exposing and exacerbating economic inequalities and racial differences in resources, vulnerabilities, and healthcare.18 The egregious violence and racial disparities in policing, prosecutions, and incarceration long experienced by African Americans became undeniable across the nation with the vicious police murder of George Floyd.19In the field of education, dismantling laws that used race for student public school assignments did not end prior and ongoing disparities over resources and expectations. After courts rejected legally enforced racial segregation, conscious and unconscious racial biases persisted or grew worse. The result has been many nonwhite students stuck in schools marked by concentrated poverty, fewer resources, and lower test scores than schools that are predominantly composed of white students.20 The use of “equity,” especially in the context of schooling, reflects the disappointments of “equality” and “equal protection” as interpreted and implemented.The turn to “equity” marks a search for different results. The hope may be that “equity” opens possibilities of probing deeper into ongoing issues unresolved by easy claims of “equal opportunity” or “equal protection.” Yet defining that vision in ways that can be put into operation requires more than simply a shift in words and more than a gesture to unclear alternatives.The definitions commonly associated with the words show interchangeability rather than sharp contrast. Indeed, they are commonly used to define one another. The Oxford English Dictionary gives “fairness, impartiality, equity” as a definition of “equality” and defines “equity” as “the quality of being equal or fair.”21 Merriam-Webster Dictionary starts its many definitions for “equity” with “free from bias or favoritism” or “justice according to natural rights or law.”22In some current usages, “equity” implies something more focused on results and on accommodation of individual differences. It is often used to call for systemic changes. Yet in some debates over public school finance, “equity” means allocating the same dollar amounts across different school districts, regardless of tax base or the tax rate used to generate revenues—as juxtaposed to “adequacy,” meaning ensuring an educational system of a certain definable level of quality.23 “Equity” in school finance has itself come to carry multiple contrasting meanings, including (1) meeting the needs of low-income students as well as wealthy ones (“vertical equity”); (2) equal efforts by individual districts—taxing themselves at the same rate, even if the underlying taxable property is of different value; or (3) “equitable access” to educational opportunities reasonably designed to allow expected educational achievements.24 An underlying point of difference is the choice of what to compare, such as expenditures per student, costs of meeting the needs of diverse students, or efforts by local communities to tax themselves to meet student needs.Some organizations group together the terms “antidiscrimination,” “equality,” and “equity” and, hence, seem not to view “equity” and “equality” as at odds.25 Most Americans embrace equality as a norm, even if they disagree over its meaning. Disagreements often erupt over treatments of race, gender, and economic status. The Anne E. Casey Foundation, active on these issues, notes that “often, race-focused conversations derail because people are using the same terms in different ways.”26A new word alone cannot herald social transformation, especially if the word itself lacks well-defined meaning. “Equity” actually has specific meanings: it refers to the common stock of a corporation, or ownership rights in property, or a claim recognized by law. Lawyers and historians of England know equity as a form of litigation and remedy originally rooted in the powers of the British monarch to provide legal recourse where the local common law itself ran out; here, “equity” refers to what emerged, and in some ways persists, as a distinctive system of individualized justice outside strict application of usual rules and advancing conscience and responsiveness to need.27 Originally established as a separate court—the King’s Court of Chancery—equity norms and principles merged with standard state and federal courts within the United States; equity provides the authority for judicially ordered flexible corrections to otherwise rigid rules and allows shaping remedies tailored to the particular instance. “Equity” in law also draws on concepts from ancient Greek and Roman law and from Christian ideas.28 From these historical sources, “equity” involves adapting existing law to changing conditions or to unique circumstances and, often, departure from general, settled rules.29 The results can be unpredictable, subject to the views or whims of particular decision-makers.Outside of legal contexts, the meaning of “equity” can be protean. Conservative commentator Shelby Steele explains the attraction for political progressives of a new, emptier term to organize around, and said “equity was perfect because it meant absolutely nothing.”30 Over the span of several years, “equity” in school finance alone has taken on many contrasting and inconsistent meanings.31 More than 150 years ago, the legally trained political philosopher Jeremy Bentham warned, “Taken by itself, or anywhere else than in the company of the word court, equity is abracadabra.”32 Ambiguous and malleable, equality and equity might each come into sharper focus with attention to their antonyms: inequality and inequity signal injustice and unfairness and exclusion or denials of opportunities, protections, rights, or remedies.Education reformers are at the forefront of embracing the term “equity” rather than “equality.” One nonprofit education advocacy group explains, “Equality suggests providing every student with the same experience. Equity means working to overcome the historical legacy of discrimination, marginalization, and underinvestment that disadvantages specific groups of people, especially defined by race. Equity requires providing support tailored to the specific needs of students.”33 Rejecting identical resources and identical instruction as insufficient to meet the different needs of different students, education advocates stress that “equity” calls for something different than the same treatment for all that they associate with “equality.”34Individualized treatment, responsive to particular needs, contrasts with across-the-board treatment.35 A vivid version of the idea says, “Equality is giving everyone a shoe, equity is giving everyone a shoe that fits.”36 This approach of individualized treatment is the specific remedy afforded to public school students under the Individuals with Disabilities Education Act.37 Students who are identified as having a disability can obtain an Individual Education Plan, which is designed with both content and methods of instruction depending on the context of the particular situation and needs of the specific student. Other interpretations of equity also focus on individual needs.38 Relatedly, but with a different moral tenor, DeRay Mckesson (an organizer of Black Lives Matter) stresses, “The difference between equity and equality is that equality is everyone get the same thing and equity is everyone get the things they deserve.”39Besides highlighting the importance of tailoring to individual needs, equity can emphasize self-determination or shifts in power to and participation by people who have been marginalized. Verna Myers, a leader in the diversity, equity, and inclusion field, has said: “Diversity is being invited to the dance. Inclusion is being asked to Dance.”40 University of Houston administrator Cynthia Olmedo adds, “Equity is allowing you to choose the Music.”41 In this vein, a professional development initiative of Tuskegee University and its Cooperative Extension program on diversity, equity, and inclusion emphasizes that equity means promoting justice with an understanding of the root causes of outcome disparities, including the social distribution of resources.42The Ford Foundation connects equity with fairness and equal opportunity. 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