Oh the equity!

You can't say DEI without it

Like a sword fighter evenly matched, the progressive cause identified by the initials DEI—diversity, equity, inclusion—has been battling back and forth across the arena of public affairs. For nearly a decade starting in the 2010s, it was advancing; of late, conservative forces have been pressing it back. The outcome remains in the balance.

Of the three terms in the title, two are appropriately novel in current context. Diversity and inclusion have been applied to all manner of things over time; their application to the composition of student bodies and workforces is but a few decades old.

Equity is different, having a long and storied history in English and American law, and meaning pretty much what it means in today's discussion. 

When William of Normandy conquered England in the 11th century, he encountered a system of laws that was a mishmash of Anglo-Saxon customs, Roman civil law, Catholic canon law, and local traditions and practices. He determined to impose order on the confusion by establishing a law common to the entire realm. Thus the origin of the “common law.”

Many of the English barons didn't like the new system, which curtailed powers they were used to exercising. But William and his successors insisted, taking care to record decisions by judges and courts, which became precedents for future decisions. By intention and practice, the Norman system of common law changed slowly over time, precedent by precedent. Predictability was its strength.

But English society, like any society, sometimes changed quickly and unpredictably. The courts of common law, introduced to make English justice more equitable, sometimes had the opposite effect. To remedy the situation, the crown created a complement to the courts of law, called courts of equity. Judges in these courts could act when the courts of law delivered verdicts that were patently unfair, or in situations where the courts of law could not act at all.

The courts of equity were often called chancery courts, because they answered to the Lord Chancellor, whose job description included Keeper of the King's Conscience. Over time the courts of law came to deal chiefly with matters of property and monetary damages, while the courts of equity provided performance remedies such as injunctions and writs. 

America inherited the dual system upon independence. In the interest of efficiency—Americans not wanting to spend more on courts than necessary—most states eventually merged the two systems of courts, blending law and equity in their proceedings. Yet several states still preserve the distinction. A set of federal rules adopted in 1938 directed the merger in federal courts. 

The spirit of the equity courts is the spirit that motivates the DEI movement. The inherited system of law and custom is not delivering equitable outcomes, the DEI argument goes; consequently, changes in performance are required. 

Opponents of DEI typically reject this argument. More than a few draw a distinction between equity in opportunity and equity in outcome. Striving for the former is praiseworthy, they say; striving for the latter is a fool's errand, given natural differences in talent and temperament, and inequitable in its own way.

The argument isn’t likely to end soon. The courts of equity were created to ensure that your case receives the fair hearing it deserves; they don’t guarantee that you get the outcome you want.