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There is a clip of US Senator Bernie Sanders making the rounds from a recent episode of Bill Maher’s HBO program, in which the host asked Senator Sanders to distinguish “equality” from “equity.” Senator Sanders explained that “equality” refers to “equality of opportunity,” but admits he is not sure what “equity” means. The host says he thinks “equity” refers to “equality of outcomes,” and Senator Sanders appears to agree. Unfortunately, they are both wrong.

Equality is an inherently ambiguous and slippery concept, because it can refer to something broad and capacious or to something narrow and precise. In general, however, and especially in the legal context, it refers to equal treatment—the idea that law and government should treat people the same irrespective of their identity or status.

To understand why it means this, we have to understand that for most of human history, going back to the Code of Hammurabi several millennia ago, most written legal codes explicitly discriminated between individuals depending upon their status—whether they were a slave, a commoner or an aristocrat, or whether they were a woman, a man or a child.

So, for any particular crime, the penalty would be greater if the victim was an aristocrat and less if they were a commoner, and even less if they were a slave. Similarly, the penalty would be greater if the victim was a man instead of a woman or a child. And, similarly, the penalty would be greater if the criminal defendant was a slave or a commoner than if they were an aristocrat or a “superior” (in the language of the code of Hammurabi).

Thus, the idea of “equal protection of law” is essentially constitutionalizing and encoding the idea that the law must formally treat all persons the same, irrespective of their race, gender, or other identity or status. That’s what the framers of the 14th Amendment appear to have meant in the Equal Protection Clause, which states that no state can "deny to any person within its jurisdiction the equal protection of the laws."

At some point, however, feminists, disability rights advocates, and racial justice advocates (among others) realized that merely treating people the same, in some circumstances, can result in unfairness. In some cases, special accommodations or differential treatment may be required to achieve fairness and justice. This is where the idea of equity comes in.

One of the first places where the term gained ground and acceptance was in the school funding battles of the 1980s and 1990s. After the US Supreme Court ruled in San Antonio v. Rodriguez that local and state funding formulas that afforded different per-pupil expenditures between districts did not violate the US Constitution, advocates moved the fight to state courts and brought claims under state laws. One of the things they recognized was that in order to have true equality of opportunity in education, in some cases the state or local government would have to spend more on disadvantaged students.

To make the matter concrete: if a state spends equally $10,000 per student per year, but some students attend highly advantaged school districts flush with extracurricular assets, wealthy parents and donors, and low levels of poverty, whereas other students attend highly disadvantaged schools with high levels of student poverty, food insecurity, and fewer extracurricular or community assets, then simply spending the same amount is unlikely to produce true equality of opportunity.

You can extrapolate this example to other contexts: health care, housing, transportation, and so forth. The basic idea is simple: additional resources or support may be needed to help disadvantaged populations, and this goes beyond the concept of formally equal treatment. 

The principle of treating people differently in some circumstances to achieve fairness is already widely accepted in our society. This is why we mandate wheelchair accessibility to public spaces and public accommodations, or certain accommodations for religious observance or pregnant or lactating women, or dietary alternatives in public institutions. This is the essence of equity: the recognition that in certain circumstances different treatment may be required to achieve fairness and justice.

Illustration of people looking over a fence to watch a ball game
The difference between equality and equity has been illustrated many times with different visuals

I have already written about the sources of the attacks on “equity” and “CRT” which is now metastasizing into attacks on diversity. Many of these attacks are disingenuous and driven by demagogues. But it is understandable how simple ideas could be easily confused. Concepts such as democracy, freedom, feminism, and even racism are widely misunderstood and often incorrectly defined. In many cases, the distortion is intentional, as forces which oppose these ideas attempt to redefine them in order to generate opposition or gin up backlash. 

The same thing is now happening to “wokeness.” There was an amusing moment where a conservative author who had written a book attacking “wokeness” struggled to define the term. In my opinion, “wokeness” is really just a sensing system for identifying and attempting to root out oppressive and marginalizing practices. Wokeness—or being “woke”—is just greater perception and sensitivity to systems, structures, cultural practices and activities that tend to reinforce inter-group inequality—or othering, as opposed the ordinary practice of tolerating or ignoring them, what some philosophers have called “epistemic blindness.” Yet, critics of wokeness are now following Christopher Rufo’s lead and trying to “decodify the term and ... recodify it to annex the entire range of cultural constructions that are unpopular with Americans.” We should not allow them to do so.

To summarize: Equality means that the law and government treats everyone the same, irrespective of their status or identity. Equity means that, in some circumstances, people need to be treated differently in order to provide meaningful equality of opportunity. Neither “equality” nor “equity” guarantee equality of outcomes. Equity is primarily in service of equality of opportunity, not outcomes. But achieving equality of opportunity requires both equality (formally equal treatment) and equity (situationally different treatment), depending on the circumstances.

Editor's note: The ideas expressed in this blog post are not necessarily those of the Othering & Belonging Institute or UC Berkeley, but belong to the author.