The End of Equality

Equality is out and equity is in. Communications from college officials, headlines in newspapers, chyrons on news screens, stories on sports websites and stations, and government pronouncements all repeat the demand for equity. Official policy recommendations no longer argue for racial equality but for equity. The transition has been so seamless and so uncommented upon that its occurrence may strike the observer as inconsequential. Many, to the degree they reflect on the change in usage, might regard the words as synonymous. But for those of us who cling to the rapidly diminishing view that words are carriers of meaning and that semantic distinctions matter, especially if we have any hope of being precise, the substitution of “equity” for “equality” has serious consequences.

In law and theory, “equity” refers to fairness and impartiality and was instituted under the common law by “equity courts,” whose job it was to provide legal remedies to specific cases where legal remedies were not extant or sufficient; as in, for example, a trademark infringement where simply awarding monetary damages wouldn’t be sufficient remedy but had to be accompanied by a cease-and-desist order. It didn’t operate according to strict legal rules or codes and it allowed flexibility in the application of principles of justice. It could not operate if it presumed guilt or innocence in advance by virtue of membership in a specific class. To go back to the trademark example, one can’t assume that just because the defendant is Asian that a trademark violation occurred. Furthermore, “equity” in its most common usage refers to “ownership,” a concept that seems to have little relationship to its academic usage.

A License to Remedy

Unlike “equality,” “equity” typically provides injunctions to act or not act in a particular manner. Put another way, it allows a plaintiff to compel action from those against whom the claim is made. It attempts to provide restitution for irreparable harms resulting from injurious acts. By demanding “equity” of citizens or workers their roles are redefined to “fix” “inequities” with the assumption that those so charged have either injured someone else or have been unjustly enriched. There is a claim of implicit guilt that must be rectified through compulsion to act, to bring relief to unjust situations outside the normal rule of law.

Equity courts had the power to operate where the law was vague or inadequate, remedying what the court considered an injustice. This could involve, for example, a surrendering of wealth unjustly acquired or prevention of unjust enrichment, and by extension to correct unjust impoverishment. This power was potentially so expansive that Jefferson sought restrictions that would provide strict rules for remedial actions and preserve impartiality against the tendency to administer justice according to the whims and interests of those in power. Setting judges free from the text of the common law and giving them “pretorian discretion” to “wander into its equity” renders “the whole legal system” uncertain. Unleashing the power of equity from the general rule of law, in both its substance and procedure, would be to unleash “a monster whose existence should not be suffered one moment in a free country wherein every power is dangerous which is not bound up by general rules.”

Likewise, Hamilton noted in Federalist 83 that equity courts should operate only in “extraordinary” cases that deal with exceptions. Equitable relief could only be sought in circumstances where strict application of the law would lead to a result contrary to the intent of the law. Most thinkers at the time of the framing of the U.S. Constitution were concerned that the power of equity would be too easily abused and sought to put strict limits on it. What would never have been possible, of course, would be to use the power of equity in situations where one’s own interests were at stake, no person being a judge in his own case being a central tenet of liberal theory.

Politics, we know, and as Warren knew, has little to do with rational arguments. It peddles in the pictures people have in their heads. 

In our contemporary context the use of the power of equity, particularly when imposed by the ideologues who control offices of equity enforcement, seems to justify Jefferson’s concerns. By compelling remedies not for particular cases or problems but instead for systemic ones, and assigning guilt and innocence by classification (guilt demonstrated through the use of mandatory but tendentious “implicit bias” training programs), modern equity transforms the role of citizens, faculty members, workers, employees and so forth from their defined roles to the role of social reformer, and administers justice abstractly rather than for concrete circumstances. “White privilege” and “black victimization” are classifications that distort the operations of equity, which as mentioned should not be applied to groups. Which inequities will they be expected to repair, how will they do this, and who will make such determinations? How did this change in language, meaning, and action come to be?

One of the most compelling scenes in Robert Penn Warren’s All the King’s Men occurs when Anne Stanton pleads with Jack Burden to convince her brother Adam to take a political appointment offered by Willie Stark, the populist governor of the state. Until that point, she has been unsuccessful in persuading her brother, but Jack informs her he has the means to do so. “How?” she asks. “It’s easy,” he replies, “I’ll change the picture in his head.”

Trading in Imagery

Politics, we know, and as Warren knew, has little to do with rational arguments. It peddles in the pictures people have in their heads. Success in politics has more to do with appeals to imagination than to reason, which is why images play such an important role in our politics. As a result, contemporary political discussions largely revolve around anecdotes (although, as John McWhorter observed, when the Right tells stories they’re anecdotes and when the Left tells stories it’s critical theory).

The academy provides no redoubt against the manipulation of stories and images in favor of rational argumentation. The proliferation of images and stories has become the standard stock of faculty in “critical studies” programs, to the point where “auto-ethnography“ is now an acceptable method for published research. The reach of critical theory is especially prominent in student life divisions, particularly Centers for Diversity and Inclusion. Student life is populated by half-educated people with full access to students, whom they encourage to view every encounter through “the lens” of bigotry. They goad presumptive victims to tell their stories of oppression. Upper-class white students get to expiate their guilt through public acts of contrition such as protesting in the streets.

The credibility afforded to stories poses its own problem because it almost necessarily engages us in subjective issues of identity and claims of “my truth.” But the unwillingness to assess images is another problem altogether. One of the most prominent images in use today involves helping us “understand” the difference between equality and equity, or differing conceptions of what’s involved in justice.

Image: Craig Froehle

The image has become nearly universal on college campuses, the same campuses that are now doubling-down on their “anti-racism” in the wake of the death of George Floyd. The image apparently goes back to 2012 and the artistry of Craig Froehle, a business professor at the University of Cincinnati. He claims he designed it to demonstrate to a conservative friend why “equality of opportunity” is an inadequate standard of justice. The image has gone through multiple iterations, but the concept has stayed the same. I refer to the version above.

There are five actors or agents in the image, three immediately identifiable and two intended to remain hidden. The most noticeable figures are the three characters of differing height standing outside the fence. The fence is an essential part of the image because it is presented to us as a barrier to the enjoyment of what are demonstrably free riders. (For the record, Froehle has dismissed the free rider argument as beside the point). We are to regard the fence as an arbitrary exercise of power designed to exclude persons from enjoying the game. It is systemic discrimination. The builders of fences are one of the “hidden figures” in the picture, and we are to regard them as villains in this story. Building fences, the picture implies, protects privilege, destroys opportunity, and disrupts the comity of social life. (Subsequent iterations of the image show the third panel with the fence removed altogether.)

But such is neither the intention nor the primary effect of fences in baseball. The fence defines the field of play. It frames the field and establishes the limits that make the playing of the game both possible and artistic. A fence makes a home run clear and definable. It defines the spaces the outfielders must cover. It helps enframe the possibilities inherent in any hit to the outfield. Granted a fence is not necessary to play ball—many of us grew up playing on fields without fences—but it enhances the experience. There are few feelings better than hitting a ball over the fence, or jumping over a fence to rob someone of a homerun. Art cannot happen without defined limits; just as a painting needs a frame, so a ballpark needs a fence.

The fence is also related to a second group we observe: the fans in the stands. They have, presumably, paid for the “privilege” of attending the game. Without them the players don’t get paid, and we don’t witness athletic beauty and skill in its florescence. Some of my fondest memories are attending ballgames with my dad or with my children. The way your breath catches when you turn into the tunnel, emerge from the gray interior of the stadium, and catch a glimpse of the emerald field. The feel of the sun as you lounge in your seat. The easy conversation between pitches and innings. The ability to espy all the small little strategic maneuvers, as baseball is the most transparent of all games. It is a privilege, and like most privileges something we pay for with our labor and the money we earn from it. We can’t simply assume that all privilege is unmerited. Here we are asked to believe that the “privileged” who are in the stands are as undeserving of their position as those outside the fence are of theirs.

Then, too, there are the players. The image elides its own appeal: people want to watch a game because they witness athletic excellence, and they appreciate the variations and hierarchies created by different skill levels. Bringing equity to the diamond would be a task worthy of Kurt Vonnegut: birdshot around the necks of fast players, harnesses on those with strong arms, and wings on the bats of those with too much bat speed. We’d create a game no one wanted to watch. But the author of the image—to the degree he gave it any thought—would have us believe that equity demands it and would make for a better world.

One reason, maybe the main reason, racism is so pernicious is that it assumes we know something about a person we otherwise know nothing or little about.

But perhaps the most important figures are the ones who rearrange the boxes: also hidden but charged with creating equity. It could be, of course, that the three figures in the second panel rearranged the boxes on their own, which would be in accordance with the principle of equality and not equity. This wouldn’t solve the free rider problem, but it would at least be an exercise of free decision-making and mutual solicitude. In fact, the middle image of equality presents a kind of natural solution that most human beings would normally gravitate toward. But the final panel requires an external actor, someone charged with creating equity whose job it is to remove systemic barriers, and to rearrange things for the three figures, who might not otherwise, under the second panel, realize they even have a problem that needs solving. Those of us on college campuses will immediately recognize this as the work of our Diversity and Inclusion officers who inhabit the student life divisions. They work hand-in-glove with woke faculty both to radicalize students and to create ever greater numbers of on-campus initiatives, most of which aim at ideological uniformity, whereby they try to turn fence builders and privileged fans into fence removers. They do this by focusing attention exclusively on the people standing outside the fence and by convincing them and their allies that the fence builders are the source of their problem.

One reason, maybe the main reason, racism is so pernicious is that it assumes we know something about a person we otherwise know nothing or little about. We organize our actions around conclusions that may very well be wrong (although, logically, they could be right as well). That is a universal human problem that is exacerbated in an age of distraction, distance, and alienation, and turned into an insoluble problem by both racism and identity politics.

What Remains Unseen

But the image repeats the error. Given the inherent limitations of human action and interaction, we are attracted to solutions that don’t address the knowledge deficit but bypass it and turn it to moral advantage. The key is to make everything abstract at the conceptual level and highly personal at the perceptual one. Those who argue that resentment and wokeness are no way to achieve justice will be accused of “fragility.” The demand for “equity” taps into deep resentments, no matter how justified they might be, and stokes them into a kind of rage. How dare those fence builders obstruct our view? Get enough fans together outside the field of play and little encouragement will be required to get them to tear down fences.

But they won’t stop at the fences. They will then turn out the paying fans whose “privilege” put them in cahoots with the fence builders. The concession stands too are fair game because, profiting from being inside the fences, they are part of the whole system of fence-building. They will certainly turn on the owners, whose protestations that they were always in solidarity with the outsiders will do little to spare them. Finally, they will turn on the players themselves for having the temerity to play a game some people were unable to watch. And once they’ve burned the stadium to the ground, and they begin to build something in its place, as they must, they will do to others as had been done to them. In the name of inclusiveness they will exclude; in the name of free expression they will silence; in the name of diversity they will impost uniformity.

The appeal of the image is its simplicity, on the one hand, but also the sympathy we might feel for the shortest of the three persons outside the fence. “Yeah,” we think, “that would suck to not be able to see a game everyone else can see.” The contingency, the accident of history and birth, must be corrected somehow. Notice, however, that all the figures are faceless, and thus not really persons we could fully know. We don’t know their relation to each other, or how they got there. They are abstractions. We are asked to see them only in terms of one accidental property: their height. This focus on accidental properties draws our attention from the most interesting things about a person to the least interesting, and such distraction doesn’t put an end to unwarranted prejudices but exacerbates them. Simple images will only distort complex realities.

The dream of a colorblind society has passed. Anti-racists have dismissed King’s compelling moral vision and an idea of law that does not permit the performing of one injustice in order to rectify another. The blindfold on lady justice that ensures equality before the law has been ripped off by demands for equity. Not just our political system but more disturbingly our legal system becomes a struggle to put her thumb on the scale and upset the balance. In order to avoid playing favorites she plays favorites. An eye for an eye reemerges as a standard, but a standard applied without regard to particular persons. Guilt and victimhood are assumed with no evidence required. The demands for equity are ultimately grasps for power, and the implied rage for destruction in the image has now realized itself in our streets. The assertion that power is everything has fulfilled itself and will prove its own undoing.

Reader Discussion

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on June 24, 2020 at 10:10:30 am

In my readings--of course I may have forgotten some, but the Chancery courts were established to rectify specific injustices where the common law did not provide, in the eyes of the appointed chancellor, a just and reasoned remedy. I do not recall that there was a mob involved inthe decision.

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Earl Haehl
on June 24, 2020 at 22:21:28 pm

Professor Polet's essay is thoughtful and well-written. I would like to add the following:

The underlying purpose of the law of equity was to provide a basis for resolving claims, for which formal law was inadequate. The crucial word here is "claim." The person bringing an action in equity, for example an action in assumpsit, must have some ground to claim that a court should provide a remedy "in equity and good conscience," or "in equity and justice." As Professor Polet points out, in such cases, it is the responsibility of the individual claimant to establish his right to relief based on considerations of fairness and justice present in specific circumstances. The claim must be based on some consideration worthy of legal recognition, in general some concept that society regards as virtuous. Some claims may be moral claims, in which the intervention of legal authority is necessary to avoid an immoral outcome. Other claims may be based on cultural standards of justice, or notions of decency and respect. Whatever the case, equity seeks to resolve claims that are based on some objectively recognized grounds.

When we consider the baseball analogy, the first question that comes up is "what claim do the three people outside the fence have to view the game?" From where does their claim on the ability to view the game arise? In the case of paying spectators, the claim obviously arises from the consideration paid for admission to the stadium. The tallest of the three free-riders has no claim of right to view the game, only the circumstance of having the ability to do so. He has no claim if he is prevented from viewing the game by mechanisms other than the fence. He has no equitable complaint should the stadium owner choose to make the fence higher. The shortest of the three likewise has no claim at all to view the game, and thus no claim to the box on which the tallest initially stood. He cannot complain that he was prevented from doing something he had no right to do in the first place.

When we apply the same approach to, for example, equity and diversity in universities, it is not sufficient to simply assume that appeals to equity are based on some more robust principles. This is especially so where accommodation is sought for subjective sensibilities and which perpetuate disadvantages by pretending that they are caused by the nefarious plots of others. A clear distinction must be had between a claim and a grievance. Sometimes circumstances may give rise to both, but it should never be the case that the latter substitutes for the former. Claims are founded on some objective virtue. When grieveances are based on these same virtues, they give rise to a claim. But grievances can also be subjective feelings of offense based on nothing more than ignorance and narcissism, and for which serious people have little time.

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on June 25, 2020 at 09:50:52 am

This is a very helpful addendum, especially the distinction between a claim and a grievance . Thank you.

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Jeff Polet
on June 25, 2020 at 09:53:43 am

It should be added, of course, that we have no reason to assume that a claim has been made by any of the three figures outside the fence. What's driving it is the action of a third party who files a grievance on behalf of the figures, and enriches itself in the process. But we're not allowed to think that the third party operates with any interests, pecuniary or otherwise, other than justice.

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Jeff Polet
on June 26, 2020 at 21:08:06 pm

I guess my question is why don't the three work to improve their lives so that they too can be "privileged" to pay and attend the game morally, instead of engaging in the small "sin" of stealing attendance by peaking over the fence?

The artist essentially invites us to empathize with thieves instead of those who worked hard to present a product others were willing to pay for.

Anti-capitalism once again...

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OH Anarcho-Capitalist
on June 30, 2020 at 08:36:53 am

[…] “The End of Equality.” Jeffrey Polet warns that “the substitution of ‘equity’ for ‘equality’ has serious consequences.” […]

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.