Merrick Garland Misleads on ‘Equity’ and ‘Equality’

Attorney General nominee Merrick Garland testifies during his confirmation hearing before the Senate Judiciary Committee, Washington, D.C., February 22, 2021. (Drew Angerer/Reuters Pool)

Equality is a social condition. Equity is social engineering.

It was to be expected, but is disappointing nevertheless, that attorney general nominee Merrick Garland has echoed the Biden administration line that its prioritization of equity is not a radical departure from the constitutional principle of equality under the law. In fact, the concepts are polar opposites.

NR’s Zachary Evans reports that Judge Garland was pressed on “equity versus equality” during his confirmation hearing Monday, primarily by Senator Tom Cotton (R., Ark.). Cotton points out that the Biden administration’s conception of equity is to treat people differently based on their race. When they are not disingenuously denying this, progressives rationalize it as a necessary evil, essential to rectifying historic discrimination. That greater evil, we’re to understand, has produced America’s “systemic racism,” which favors the white oppressor class — a class that, as the Wall Street Journal’s Bill McGurn points out, increasingly includes Asian Americans as “white-adjacent”. . . though progressives would prefer you didn’t notice that.

This counter-constitutional thinking is the leitmotif of President Biden’s executive order on equity, issued at the start of his presidency. It makes equity the antithesis of equality — the latter being the constitutional principle that government must treat everyone equally under the law, regardless of race.

At the hearing, Garland told Cotton, “I think discrimination is morally wrong. Absolutely.” Taking Garland at his word, it is hard to understand how the Justice Department, under his stewardship, could in good conscience apply Biden’s equity guidance. Equity, as explicated by the order’s slippery prose, is targeted discrimination.

For now, Garland is handling the tension between his rejection of discrimination as a moral wrong and the Biden equity doctrine by pretending that the latter is something other than what it is — indeed, that it is the opposite of what it is. Parrying Cotton’s line of inquiry, Garland said he had read “the opening of that executive order” (why not the whole thing?) and was struck by its definition of equity as “the fair and impartial treatment of every person, without regard to their status, and including individuals who are in underserved communities where they were not accorded that before.”

Oops . . . that’s not what it says. Garland conveniently omitted a few things.

Biden’s definition states (my italics):

The term “equity” means the consistent and systematic fair, just, and impartial treatment of all individuals, including individuals who belong to underserved communities that have been denied such treatment, such as Black, Latino, and Indigenous and Native American persons, Asian Americans and Pacific Islanders and other persons of color; members of religious minorities; lesbian, gay, bisexual, transgender, and queer (LGBTQ+) persons; persons with disabilities; persons who live in rural areas; and persons otherwise adversely affected by persistent poverty or inequality.

The first thing to notice is that in Biden’s definition of equity, the administration is not pledging to treat all people fairly and impartially, as Garland intimated. The definition says the government must consistently undertake to ensure systematically that people are treated not only fairly and impartially but justly. That is, we are talking social justice: Not equal treatment under the law, but rather the displacement of our current system, which the Left insists is inherently racist, by a newly imposed system designed to achieve the Left’s peculiar conception of justice: the utopia of equal outcomes.

Of course, equality of outcomes is not possible in this life, since we all have different talents and flaws. Even if we suspend disbelief on that innate inconvenience, the problem is that equal outcomes have to be imposed by government. Necessarily, this thumb on the scale is discrimination — the very practice that Garland decried as a moral wrong.

The second thing to notice is that, contrary to Garland’s testimony, Biden’s definition of equity says nothing about treating people impartially “regardless of their status.” To the contrary, Biden’s equity is all about singling out categories of people based on their status.

Plainly, if the goal of promoting equity truly were to treat everyone equally, there would be no need to catalogue different statuses. Instead, Biden’s order would simply say what Garland incorrectly claimed that it does say, namely, that all people must be treated equally regardless of their status. Alas, Biden’s equity doctrine cannot do that. Its modus operandi is to factor status into every equation, in order to assess whether there has been a disparate outcome between different racial groups; or between a) Biden’s list of preferred statuses (collectively, the “underserved”) and b) those who don’t make Biden’s list — i.e., the oppressor class of white heterosexuals who are not poor, disabled, or residing in rural areas.

It is important to recognize how much work progressives have put into this scheme. Of course, equality and equity are derived from the same Latin root, aequus (the noun form is aequalis), which denotes things that are equal or even. But if you ask the nice progressives at Google to sic their algorithms on a search for “etymology of equality,” among your first results will be a site called Grammarphobia, offering 2019 instruction “On ‘equity’ and ‘equality’.” In its route into English, we’re told, equity strayed from the quality of being equal to the sense of achieving fairness — with a specific legal connotation, spelled out in The American Heritage Dictionary of the English Language, of “justice achieved not simply according to the strict letter of the law but in accordance with principles of substantial justice and the unique facts of the case.” Equity, the instruction elaborates, is more aspirational than neutrally descriptive — a matter of “fairness and justice,” not “sameness or equivalency.”

Equality is a social condition. Equity is social engineering.

The Biden administration, including its incoming attorney general who will be enforcing the civil-rights laws, does not want you worrying your pretty little head about equity versus equality. But there is a world of difference. That is why Biden officials are so insistent on supplanting the latter with the former. Equality is a defense against government, a mandate that everyone enjoy equal opportunity, free of discriminatory restrictions. Equity is government oppression, unleashing bureaucrats to impose equal results, which is conceivable only if opportunity is subject to discrimination based on race or other government-favored status.

You can have the Constitution’s equality, or you can have Biden’s equity. You can’t have both.

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