EQUALITY VS. EQUITY

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.¹³

Current 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.¹⁹

In 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.”²²

In 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 “[o]ften, race-focused conversations derail because people are using the same terms in different ways.”²⁶

A 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.”³⁴

Individualized 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.”³⁹

Besides 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.⁴²

The Ford Foundation connects equity with fairness and equal opportunity. Hence, its values statement defines equity as “fair treatment, equality of opportunity, and fairness in access to information and resources for all.”⁴³ Others in philanthropy debate the meaning of equity and acknowledge it is a term in search of a definition.⁴⁴ Diversity, equity, and inclusion experts working in corporate, nonprofit, and education settings mix together these notions of fairness and commitment to changing processes and resource distribution. Thus, Code for America’s definition of equity states,

Equality and equity both can call for understanding root causes of inequity and inequality, including historic patterns of privilege and disadvantage reflected in public policies and private views. Overcoming these patterns requires changes in the allocation of resources and reformations of existing avenues to success and well-being. Differences in pay for work performed by women rather than men, for example, reflect occupational segregation and social and legal attitudes; hence “pay equity” means considering whether occupations dominated by women, such as nursing home aide, are really any less demanding and worthwhile than occupations that have been dominated by men, such as corrections officer.⁴⁶ Deep changes in organizations and practices hold the possibility of starting fresh without the impact of longstanding exclusions and degradations. Another version of the cartoon of children peering behind a fence conveys the idea: some suggest replacing the wooden opaque fence with a more transparent chain-link fence, while a bolder idea proposes eliminating the fence altogether.⁴⁷ School counselor and blogger Lisa Koenecke asks, “What if we removed the fence all together? Let’s consider taking away barriers in order to promote equity.”⁴⁸ It is a powerful image. In practice, what does it mean: no fee for anyone to see a ballgame? Then how does the game become sustainable? What would that mean for college admissions and employment decisions?

Social justice facilitator Meg Bolger takes up these questions and focuses on advantages and barriers in employment related to gender and racial biases around candidates’ names. In response, she explains: “Equitable processes seek to identify these imbalances and then create processes where the disparate outcomes wouldn’t exist.”⁴⁹ Rather than a particularized conception of justice focused on what each person deserves, her approach calls for changing systems to produce something approximating equality of outcomes for groups defined along certain dimensions—chiefly race. Bolger and other facilitators help companies, schools, and nonprofits adopt changes in processes and attitudes along these lines. Consultants and experts in the “diversity, equity, and inclusion” movement contribute to the public discussions comparing equity and equality and aiming for equality of representation or results for people from marginalized communities. In materials produced by “DEI” programs, “equality” is treated as “sameness,” while equity is “fairness.” One public health expert summarized that: equity may involve representation of members of minority groups in proportion to their share of the population; it may be subjective; it may require treating people differently; and it can “work” even if people come from different “starting points.”

For some, equality does not follow representation based on proportions of the population; it is objective or measurable; it calls for treating people the same; and it does not “work” if people begin at different “starting points.” ⁵⁰ Some argue that “equity approaches are needed to achieve equality.”⁵¹ Overcoming past and present disadvantages can require equity in order to achieve equality.⁵² Scholars including Owen Fiss, Reva Siegel, and Cass Sunstein have framed equality itself as the tool to undo and overcome subordination and caste.⁵³ Thus, for those seeking commitments to overcoming past and present disadvantage, “equity” may seem the right word, and yet many conceive of “equality” in precisely these terms. If pressed to mean truly providing equal chances for people, “equality” demands attention and responses to different starting points, systemic disadvantages, and conditions affecting the success of individuals and groups.⁵⁴

Focus on and redress for existing conditions and systemic disadvantages can be and have been claimed for “equality.” A strong example came with the 1984 Canadian Equality in Employment Commission. Its report, written by Rosie Abella, who later became a justice of the Canadian Supreme Court, explained:

If “equality” carries this meaning, why the turn to “equity”? Perhaps the preference for the term “equity” is simply due to the attractions of something new, like a new branding campaign. That means naming a contrast between the approaches signaled by “equity” and “equality” and usually means narrowing “equality” to a cookie-cutter approach of treating every person identically. An analysis sponsored by the American Library Association (ALA) emphasizes that equality underlies policies of uniform distribution while equity informs affirmative action and other policies that Americans are likely to think of as unfair.⁵⁶ This analysis concludes that, to pursue access for all, libraries need to pursue both equality and equity, which will ensure not only that resources are available to all but that there will also be assistance to overcome barriers some face because they lack, for example, internet access or English language proficiency.⁵⁷ With an apparent need to explicitly state commitments to universal opportunity but also to affirmative investments in reaching those who face disadvantages, the ALA reflects the assumption that equality and equity involve different strategies and commitments.

Perhaps “equity” rather than “equality” signals a major increase in the scale of social changes imagined and needed, even though some approach massive change through notions of equality. Philosopher Brian Barry has notably argued that true equal opportunity requires changes in structures, investment, and reallocation of resources—both income and wealth—through taxes and transfers to bring about and sustain similar resources for all.⁵⁸ Further, in Barry’s view, governments should take steps to assure the provision of housing, as well as sufficient quality of education and health services, so individuals can grasp other opportunities in society.⁵⁹

These arguments are controversial.⁶⁰ They can, nonetheless, be made in terms of equality as well as in terms of equity. Treating people the same when there are differences in their circumstances is not equality; for Barry, equality demands changing the circumstances to increase the likelihood of more equal outcomes. Equality in this view requires avenues for “leveling the playing field” and also calls for persistent checking on what actually works.⁶¹ Perhaps underscoring the continuing resonance of “equality,” however, an education data communication expert argues that equity and equality are “not equal”—and in so doing, she resorts to equality to make the argument.⁶²

The contrast between equal policies and policies that lead to equality is well known.⁶³ People have different needs and are situated differently in society and in history. Scholars and policy makers have long attended to the difference between treating people equally and treating them in ways that serve them equally. Another related contrast is “equality of opportunity” versus “equality of results.” John Rawls influentially invited society to agree to “regard the distribution of natural talents as a common asset and to share in the distribution of the benefit whatever it turns out to be.”⁶⁴ His work generated debate over incentives, desert, and distribution, and recent critics emphasize how the “liberal egalitarianism” crystallized in Rawls’s work cabined options and failed to anticipate developments such as mass incarceration and post-industrial capitalism.⁶⁵ The invocation of equity instead of equality suggests this distinction but also points to further contrasts.⁶⁶ This section maps contrasting concepts signaled by current uses of “equality” and “equity,” while it also develops strengths and weaknesses of the concepts for purposes of political, legal, and policy efforts.

This chart is an effort to distinguish equality and equity as emerging in some current parlance:

Although, as detailed earlier, there exist numerous possible meanings, this chart treats “equality” to mean paying no attention to differences among people and “equity” as directing attention to uneven playing fields and conscious remedial efforts. This effort to sort meanings exposes the choices about strategies that are signaled by at least some uses of “equity”: focus on each individual’s unique needs or design group-based reforms. Whether called “equality” or something else, approaches that call for uniformity or identical treatment, regardless of individual circumstances, can be disappointing or even perverse. This is the basic insight at least as old as Aristotle’s notion of justice as treating likes alike—and correlatively, treating un-likes unalike. A building fails to be open to all if it can be entered only through a stairway and some potential users rely on wheelchairs.⁶⁷ Teaching all students in English disadvantages those who do not speak or read it.⁶⁸ Taxing everyone the same amount neglects the different meanings of the marginal dollar for people in different income brackets.

Even “sameness” as a factor in equal treatment is problematic. “The same as what?” is the inevitable question. If men are the point of reference, women can seem “different” and not entitled to similar treatment; if able-bodied people are the assumed reference point, then ensuring access and accommodation for persons with disabilities is not required by “same” treatment. Yet these familiar problems with “sameness” reflect the simple failure to expose as unjustified the point of reference. Such “default” points of reference lack rationales and entrench prior privileges and advantages. They also obscure the way that the very traits deemed as “same” or “different” may rest on faulty stereotypes.

One revered touchstone for “sameness” expected by equal treatment is the Golden Rule. Across cultures and times, the directive to “do unto others as you would have them do unto you” answers “the same as yourself” when it comes to how another person should be treated. This same guidepost could instruct decision-makers and direct resistance to any temptations to diminish another person. Putting to the side the difficulty of imagination when decision-makers creating law and rules do not have a specific person before them, the Golden Rule itself receives criticisms for failing to acknowledge that the others may not have wants or desires identical to yours. As George Bernard Shaw put it, “Yet do not do unto others as you would that they should do unto you. Their tastes may not be the same.”⁶⁹ This objection might be overcome if the decision-maker works to learn the neighbor’s desires and preferences and can craft the treatment accordingly. To treat others as they want to be treated might be understood as applying the golden rule to the golden rule, correcting the risk of missing the wants and needs of others.⁷⁰

Another problem with the “sameness” element of “the same treatment” comes with the risk of “leveling down” to worse treatment in order to achieve sameness. When a company or government provides maternal leave to mothers, a father’s objection of inequality could be resolved by ending maternal leave rather than by expanding to parental leave. “Leveling down” rather than “leveling up” exposes what Peter Westen dubbed the “empty idea of equality”; equality, at least in some interpretations, lacks any substantive commitments and needs external values to supply content.⁷¹ Commitments to recognition, dignity, or comparable outcomes complement an abstract notion of treating likes alike. The U.S. Equal Pay Act, for example, calls for equal pay for equal work, but its users encounter job names and practices that can obscure what makes work similar enough to be considered equal. Courts and agencies have concluded that the work need not be identical but instead substantially the same in skill level, effort, and responsibility at the same establishment.⁷² “Equal pay” is the phrase for the legal norm, but its application requires looking beyond specific categories to determine who should be treated comparably. Even more vigorously attached to a substantive picture of desirable outcomes, Canadian jurisprudence specifies within its equality protections that services and benefits are required to enable equal outcomes despite unequal prior conditions faced by different individuals and groups.⁷³

Yet what should be compared—what elements of people’s backgrounds, positions, needs, and desired outcomes—remains a problem. Nobel Prize–winning economist and philosopher Amartya Sen memorably asked, “equality of what?”⁷⁴ Even using a utilitarian notion of marginal utility runs into the problem that different individuals have different utility functions, different intensity of needs, and different situations.⁷⁵ Addressing what it would take for different people to have the same capabilities—abilities to exercise freedoms and achieve desires—would be one avenue for surmounting these differences, but even this approach, notes Sen, remains embedded in particular cultures which themselves vary.⁷⁶

This line of reasoning suggests that the uniqueness of each person is the necessary focus for any consideration of equal or unequal treatment. That view increasingly matches U.S. constitutional law that has elevated protections against classification on the basis of race or gender over remedying historic and ongoing burdens and barriers based on those characteristics.⁷⁷ There is powerful appeal in resisting the use of classifications that have been used to subordinate some and elevate others—and to resist reducing an individual to that particular trait. A related idea is “formal equality,” which insists on general rules and practices without reference to group or individual characteristics.

Human language and perception inevitably simplify and reduce the massive variety of experiences. Human languages use words to stand in for complex realities and provide descriptions of perceptions that select some qualities over others.⁷⁸ So does law. Even in describing the uniqueness of an individual, words connect that individual’s traits—height, interests, personality—to features of other people. The assertion of a legal claim of unequal treatment invariably requires expressing a group classification, drawing an individual into a subset of people defined by a shared trait—by race, ethnicity, language used at home, gender, age, appearance, or other personal characteristic. The reduction of an individual to some characteristics rather than others reflects the inevitably limited nature of human words.

When framed as a focus on the merit of a unique individual, allocation of rewards, opportunities, or markers of success obscure the ongoing impact of group membership. Whether stressing the qualities associated with a group of people—defined by scores above a threshold on a particular kind of test or by membership in a group such as descendants of persons enslaved in the United States—notions of merit depend on rankings and categorizations. Michael Sandel’s challenge to this conception of merit exposes the danger of attributing success to the qualities embodied in an individual rather than to luck.⁷⁹ This attribution implies credit and blame in ways that neglect chance and history and contribute to the disparagement and degradation of people explicitly or implicitly identified through reference to types of prior experiences.

The call for “same treatment” could attend to as many characteristics about an individual as possible by locating an individual in smaller and smaller subsets, with each subset defined as those sharing to include only those with specific multiple characteristics. “Same treatment” then would be required for all in a shared subset. But how are individualized needs and situations to be assessed, and by whom? How are issues of bias or variations in the eye of the beholder to be avoided? Variations in the application of federal criminal sentences by judges produced charges of bias and unfairness, which in turn prompted standardized guidelines, which were then challenged as violating an individual’s right to the individualized decision-making of a jury.⁸⁰ Analysis of past data can inform algorithmic pretrial tools that assess the risk that an individual may fail to show up at their trial—and reduce the variations in bail decisions made by individual judges—but such tools in turn reflect biases of past decision-makers.⁸¹ Data-driven risk tools reflect policies about where police are stationed and the biases of the police themselves.⁸²

For a time, individualized exemptions and accommodations characterized the federal constitutional approach to the religious exercise claims of individuals objecting to burdens from governmental policies, until the Supreme Court ruled otherwise, given the cost of such accommodations and the jeopardy to effective, uniform rules. In Employment Division v. Smith, the Supreme Court decided that neutral rules of general applicability that happen to burden the religious practices or beliefs of individuals do not demand governmental accommodation, which could undermine the possibility of any general rule.⁸³ Writing for the Court’s majority, Justice Scalia reasoned that the requirement of individualized accommodation would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind, including compulsory military service; the payment of taxes; health and safety regulation, such as manslaughter law, child neglect laws, compulsory vaccination laws, drug laws, and traffic laws; social welfare legislation, such as minimum wage laws, child labor laws, animal cruelty laws, and environmental protection laws; and laws providing for equality of opportunity for people of all races.⁸⁴

Congress responded with the Religious Freedom Restoration Act, seeking to restore the individualized accommodation approach, but the Court rejected the law as exceeding Congress’s power, although the approach survives under some state statutes and in religious organizations’ challenges to land use actions and religious exercise claims by incarcerated persons.⁸⁵ Recent calls to overturn the Smith case put the entire question back in play.⁸⁶

Individualized accommodations can be expensive to design and to implement. In some contexts, such accommodations and resulting costs may defeat the overall policy goal. For example, devising individualized assessments of the needs of individuals following natural disasters may require so much time and expense that aid would not be available to people in those emergency circumstances. In such situations, uniform checks may be better than devising tailored support. Similar issues could arise with pandemic stimulus checks from the government, if the individualization is based on adjusted gross income, because that measure excludes vast variations in individuals’ wealth and family circumstances. But getting the checks out quickly may be more valuable and meaningful to those with urgent needs than fitting the amounts to the actual needs. The expressive impact of universal benefits, as opposed to individualized ones, is another factor, however, to consider.⁸⁷ An across-the-board retirement age avoids potentially more hurtful judgments about a specific person.⁸⁸

Besides costs, individualized tailoring means disuniformity—in violation of at least some notions of fairness. Compare, though, issues of costs or disuniformity with the alternative of one-size-fits-all treatments that can systemically disadvantage or burden members of minority or marginalized groups. Case-by-case accommodations—such as those that have been undertaken for years in the contexts of issues concerning members of religious or racial minorities or persons with disabilities—make all the difference for the individuals involved. But do such individualized accommodations alter systemic biases in norms and practices? Indirectly and over time, there may be change, but individualized accommodations are neither targeted nor well designed to tackle structural changes in rules, practices, and attitudes that exclude or burden some people based on their needs, identities, or backgrounds. “Systemic racism” builds different treatments of people based on their perceived race into the patterns of practices and rules used in laws, institutions, and people’s unconscious and conscious acts. Individualized responses may well leave these patterns in place. Overcoming blind spots may address only exceptional issues or problems for individuals rather than structural failures calling for change.

It is in this vein that one of the most cogent statements contrasting equality and equity highlights different aspirations for individuals from aspirations for society as a whole. Christopher James of the W. Haywood Burns Institute explained,

If systemic or structural change becomes the priority meaning for “equity,” at least one more fork in the road appears. Should reform not only overcome disadvantages but also remove advantages—not only ensure basic minimal access for all, but also halt disparities in resources or privileges of those at the top? Another version of the cartoon of children trying to see a ball game over a fence removes the box used by the tallest child, gives one box for the middle-sized child, and multiple boxes for the smallest child, who then towers over the others and gets the best view.⁹⁰ Translated to actual policy, one could argue for reallocating the strongest teachers from classes for the most advantaged students to classes for the most disadvantaged students, in contrast to union contracts and school practices that reward the best teachers with assignment to advanced or “gifted” students. This, of course, would potentially face intense opposition from teachers and from parents of advantaged students. And it would be difficult to know where to stop with such an effort. Kurt Vonnegut’s dystopic short story “Harrison Bergeron” imagines a world in which amendments to the U.S. Constitution dictate that all Americans are fully equal and disallows anyone from being smarter, better looking, or more physically able than anyone else. Enforcement of the “equality laws” forces citizens to equip themselves with disabling devices, including an earpiece radio that blares loud sounds to disrupt the thoughts of intelligent people and heavy weights that burden the strong or athletic.⁹¹ And, to continue the ballgame metaphor, removing and adding boxes in front of the fence does nothing to alter or remove the fence itself.⁹²

Redressing the disadvantages of some may indeed involve redistributing resources in ways that expose trade-offs that affect others. The Canadian Supreme Court rejected challenges, posed on equality grounds, to granting First Nations (indigenous) groups the power to designate who can fish for a twenty-four-hour period in a particular river while excluding others from doing so.⁹³ Over one dissenting vote, the Court reasoned that the equality guarantees of the Charter of Rights and Freedoms do not prevent an ameliorative program aimed at combating disadvantage, even if the effect is to disadvantage others.⁹⁴ The promotion of equality entails the promotion of a society in which all are secure in the knowledge that they are recognized by law as human beings equally deserving of concern, respect, and consideration.⁹⁵ Unanswered by reference to either “equality” or “equity” is precisely when and how much promotion of respect for each individual may warrant burdens, costs, or sacrifices.⁹⁶

Also unclear is at what point in time and by whom are the approaches of either equality or equity to be pursued—and once adopted, what then follows? Any given moment of assessment (e.g., standardized testing being used for admission to selective schools) inevitably reflects past opportunities and benefits accorded to individuals at least as much as it reflects individual talents and knowledge. As economist Thomas Sowell noted,

What historical moments are right to use for identifying and remedying life’s unfairness? And would such remedies require perpetual adjustment and revision? If policies seeking to redress life’s unfairnesses redistribute resources in 2025, should the results be revisited and revised in 2030? Unfortunately, such questions pose difficult normative and practical issues. For example, computer scientists calling for a study of different classroom interventions assume the relevant frame for the “Veil of Ignorance” (the thought experiment devised by philosopher John Rawls for designing a just world, under which those imagining the ideal world would not know their social position, identity, or status) is right now and the relevant actor is the teacher or department.⁹⁸ But John Rawls and his followers treat the “Veil of Ignorance” as a thought experiment to draw people out of current times, places, and biases in order to build society from the ground up. The hope behind the device is to incline toward just designs, as I may be more scrupulous in cutting equal pieces of cake if we do not know which piece will go to you and which to me. The “Veil of Ignorance” has an entirely different meaning if it is meant to disallow noting and acting on the differences between people in setting up computer science classrooms in 2021 instead of as a thought experiment used prior to devising ground rules for society in general. Strikingly, when used as Rawls used it, the “Veil of Ignorance” thought experiment would lead people to agree to assure that all individuals have the same rights and opportunities while also, at every junction, committing to allocating social and economic resources to benefit those with the least advantages.⁹⁹

Thus, “equality” focused on “same treatment” can be critiqued as lacking any substantive content, failing to specify or even understand what should be the same across people, and focusing on group classifications rather than on social hierarchies. “Equity” can be criticized for shifting unreviewable power to decision-makers to decide which individual differences deserve what kinds of treatment, for raising costs and difficulty in allocative decisions, for forcing a choice between ever more individualized judgments versus policies intended to make structural changes based on group characteristics, and for inspiring measures to redistribute resources and rewards for some individuals “at the top” rather than ensuring basic minimum benefits for all. Yet, as already suggested, the terms “equality” and “equity” can each give rise to versions of these critiques. These two terms may be entering the status of “essentially contested concepts.”¹⁰⁰ Walter Bryce Gallie offered this phrase to refer to concepts that secure widespread endorsement but also expansive disagreement over their proper uses, disagreements that “cannot be settled by appeal to empirical evidence, linguistic usage, or the canons of logic alone.”¹⁰¹ Indeed, the terms are often used for overlapping or interchangeable meanings. Clarity about goals and a shift from abstractions to concrete problems might help.

Behind both “equality” and “equity” are underlying goals of fairness, justice, and respect for individual dignity. Historic injustices and ongoing patterns of poorly distributed economic and political power, along with conscious and unconscious bias toward group characteristics, permeate laws, policies, and practices in ways that impede or stymie those goals. “Equity” in current parlance offers ways to achieve equality by either meeting individual needs or producing alterations of entrenched patterns impairing equality.

Canadian jurisprudence offers a promising approach that joins both through the idea of “equality of condition, not just equality of opportunity.”¹⁰² Also dubbed “substantive equality,” this notion proceeds with the recognition that people start from different positions, so achieving equality requires attention to people’s actual positions and staring points. Hence, “[s]ubstantive equality seeks to address the inequalities that stem from an individual’s particular circumstances, to help put them at the same position and give them the same opportunities as others.”¹⁰³ This approach rejects a ban on group classifications and assistance programs intended to remedy exclusions or to relieve hardship or economic disadvantage.¹⁰⁴

The central commitment of equality is to treat likes alike; its corollary finds inequality in treating those differently situated as if they are situated the same way. Something has gone seriously wrong if commitment to “equality” prevents efforts to level the playing field, to overcome barriers to opportunity, or to enable those who are differently situated to grasp the same opportunities. It is that “something gone wrong”—such as the U.S. Supreme Court’s elevation of anti-classification over any other dimensions of equal protection and antidiscrimination—that probably explains the growing interest in “equity.” Something has indeed gone wrong if the starting point for testing equal opportunity or color blindness requires ignoring how past opportunities and race consciousness have already produced systemic barriers to opportunity and neutrality.¹⁰⁵ Something has gone terribly wrong when the terms of discussion prevent us from seeing how all are harmed by injustice, racism, and unfairness—and all would benefit from redressing these wrongs.¹⁰⁶

Maintaining discussion at an abstract level, though, will not advance an understanding of the choices and priorities lying ahead for schools, employers, and other actors in positions to address these issues. Here are a few examples of concrete problems. They are offered to identify issues that cannot be resolved by reference to the debates over equality vs. equity and that need careful thought and engagement.

In educational settings, recognizing differences in the backgrounds, abilities, and learning styles of individuals corresponds with the goals of schools, whether couched as “equal opportunity” or “equality.” Still, concrete policy issues expose genuine choices and conflicts. Take school finance. Per-pupil expenditures in any given district can be calculated as averages, but legal rights for students with disabilities and legal entitlements for schools with high proportions of low-income students bring more resources for those students than for others. “Equity” might be a name for these efforts to bring more resources to students with greater needs. Yet, the current structures of school finance dictate that most of the resources are generated by local property taxes, so differences in the amounts raised and spent vary by community—even neighboring ones—and efforts to challenge resulting differences in expenditures per child have had at best mixed results. In addition, the taxes on local communities can be compared in terms of amounts generated, reflecting property values, or tax rates. Which should be the right point of comparison to achieve the goal, whether denoted equality or equity? What is to be compared for the purposes of equality—monetary investments, community tax effort, or student achievement measures?

In the United States criminal justice system, both within and across jurisdictions, the disparate outcomes based on the race of the defendant are notorious. But what about comparisons in terms of the race of the victim?¹⁰⁷ Courts increasingly use algorithmic tools to predict likely flight risks before trial, but critics show how the underlying data informing the algorithmic scores replicate or exacerbate racial disparities—for example, in the use of prior arrest records, which track decisions about where police are sent—and other factors correlated with race.¹⁰⁸ Even deeper issues of equity and inequality involve income and wealth disparities in the ability of individuals to pay bail and hence avoid pretrial detention. When California recently faced a Hobson’s choice—to replace the cash bail system with algorithmic risk tools—the defects in both options stood in the way of equity, equality, and fairness. Perhaps greater fairness would emerge only by rejecting both algorithmic risk tools about defendants and the system of cash bail.¹⁰⁹ Fairness, justice, and respect for individual dignity call for something better, whether called “equal protection of the law” or “equity.” Other alternatives to pretrial detention include pretrial services—ensuring access to jobs, housing, and counseling¹¹⁰—or turning the tables and applying algorithmic risk scores to police officers.

One timely issue involves the allocation of scarce COVID-19 vaccine shots. In debating the priorities for administering vaccines, philosopher Peter Singer noted that the criterion of greater risk would suggest, based on evidence of risk, giving priority to people who are African American and Latinx ahead of those of the same age who are white or Asian. But, he notes that one proposal draws on the fact that members of racial and ethnic minorities are underrepresented among those who are older than 65 and recommends lower priority to that entire age group and higher to younger “essential workers.” Surely contrary to the intention of the idea, the effect of this proposal “would be that more people of racial and ethnic minorities would die, because the higher fatality rate in older people would outweigh their lower share of representation in that age group.” Singer explained, and then assessed: “That’s absurd. Equity for disadvantaged minorities can’t tell us to distribute vaccines in a manner that will mean more deaths in those communities themselves.”¹¹¹ The problem can generate other specific solutions not illuminated by the discussion of equity versus equality. For example, public safety expert Juliette Kayyem argues for prioritizing vaccines for those who help others—including teachers.¹¹² The coronavirus relief bill enacted in March 2021 pursues a similar conception. It provides resources to ensure students are connected to the internet after the pandemic showed that so many households were unable to access virtual classrooms from home.¹¹³ Notably, prior allocations of federal funds favored predominantly white school districts when compared with nonwhite districts, even when they served roughly the same numbers of students.¹¹⁴

The promise of equal protection of the laws was broken from the start of the United States by the Constitution’s protections for the institution of slavery. The Civil War and resulting amendments announced a new due process and equal protection of the laws, and they empowered federal enforcement. At times, the nation has seen delivery on the promise of equal protection.¹¹⁵ But the Supreme Court drastically narrowed the Amendments’ scope, and states and private white resistance actively thwarted the Amendments through “Jim Crow” laws mandating racial segregation, lax or nonexistent law enforcement, extra-legal violence reinforcing “white supremacy,” and retrenchment of judicial action. Despite decades of social and legal movements to overcome legally enforced racial subjugation, the nation remains enmeshed in patterns of racial disadvantage, exclusion, and expropriation, with the mass incarceration and disenfranchisement of African Americans and serious political challenges to birthright citizenship, voting rights, due process, and equal protection of the law. This history is fully documented by Eric Foner, Henry Louis Gates, Jr., and others.¹¹⁶ Its operations in the psyches and interactions of individuals are also laid bare by the works of scholars, novelists, filmmakers, and memoirists.¹¹⁷ Different but similarly appalling stories of the failure of the equal protection of the law affect the daily lives of people identified as Asian American, Latinx, sexual or gender minorities, and persons with disabilities.

Many current judicial interpretations and some current political arguments hollow out the concept of equality and sadly lead its natural advocates to disparage it. But what should be discredited are the destructive interpretations, stripping “equal protection” and civil rights from their core meanings. “Equity” may seem to offer a way out, but words alone cannot redeem what political forces undermine. Above all, whatever words are used, the concepts and goals should be clear and capable of motivating and guiding the coalitions of people whose beliefs and efforts will be needed to make them real. This means working to disentangle confusions between “equality” and “equity” and embracing the power of both words. Recognizing the unique situation of each person calls for the tailored responsiveness of schools, employers, and providers of health care and social services; manifesting the dignity of each person requires ensuring each receives the same respect and also finds opportunities that are realities. How about embracing equality and equity—and their underlying goals—while concretely tackling the problems surrounding us? Ensure the respect for the dignity of each individual and overcome historic and ongoing barriers due to stereotypes, “isms,” and compounded exclusions and degradations: defend equal protection of the laws and advance systemic changes while attending to the unique situation of each person. It is a tall order, but it is what law and justice demand, and all the concepts and legal tools available should be used. Both “equality” and “equity” can help illuminate deep problems in human societies, and both offer tools to make a different and better world—if those who share visions of change work together.