It seems the term “equity” has suddenly become a progressive favorite. Recently, my school district, Radnor Township in Delaware County, joined scores of other more left-leaning school districts around the country to announce a “diversity, inclusive, and equity” initiative. And my local business journal ran a story about a young entrepreneur seeking to cure “inequity” — in the gaming industry of all places. You may have heard about diversity programs and initiatives for decades, but what is concerning now is that progressives are openly stating they want to use force to achieve their ends: equality of outcomes.
To understand the insidious nature of equity one needs to consider what it legally means: compelling someone by force to do what they otherwise would not, or ordering a person to stop engaging in their current actions. Laws and guidelines being proposed around the concept of “equity” have legal ramifications. When your legal rights are violated, a court can award legal damages or equitable relief. Legal damages are the most common way of making an injured party whole. In a breach of contract case, for example, the court will award you the monetary value of the cost of the breach. If your car is damaged in an accident by a careless driver, a court will award you an amount of money to cover the cost of repairs and medical expenses. But it will not force the negligent driver to make the repairs himself.
To understand the insidious nature of equity one needs to consider what it legally means
Equity, on the other hand, is reserved for exceptional circumstances where the harm cannot be remedied by merely paying an injured party money. In civil law, courts have established a high burden on those seeking equitable relief. First, when lawyers seek equitable relief, we must demonstrate to the court first that there is no adequate remedy at law — meaning no amount of money can adequately remedy our client’s harm. Then we must demonstrate that our client’s injuries are irreparable.
There is a good reason for this heavy burden. Equity not only compels conduct (as opposed to simply paying money), but violating an equitable order risks an individual’s liberty. We have long ago abolished debtor’s prisons. So, while your property and assets may be seized or siphoned if you violate a monetary judgment, your personal liberty is not at risk. But if an individual fails to comply with an equitable order, the courts may use the full power of law enforcement to compel compliance, including jailing those in contempt. When President John F. Kennedy famously deployed the United States Marshals to the “Ole Miss” to escort James Meredith to register for classes, it was due to an equitable order from the U.S. Supreme Court to desegregate the campus.
READ MORE — George Hofmann: Amy Coney Barrett is a threat to lazy politicians, not healthcare
When progressives use the term “equity” together with diversity, they seek to use the full power of government to achieve their goal of obtaining equality of outcome — but without the same high legal barriers to meet the standards of equitable relief. They also want to dispense with the neutral arbiter, the courts, in deciding when equity is permitted. Instead, it is through vaguely worded government and institutional diktats — which will then be wielded by a team of sympathetic administrators — to decide what is equitable and who meets the standard of equitable relief. Even worse, they want to dispense of the need to prove that the person compelled by equity is the cause of the harm that requires equity to resolve.
Language and power
Inequity should not be confused with inequality — hence the language shift of the progressive left of late. An inequitable situation occurs when the offending actor is the clear source of the injured party’s harm. If my neighbor decided to open a slaughterhouse in his backyard, I could seek an equitable order to stop his conduct because it is his conduct alone that is the source of my harm. If the government passes a law impinging on a constitutional freedom, equity is necessary because the law is the source of my harm. But there are many reasons for racial inequality — far more than can be covered in one piece. There are also a variety of remedies that can and should be tried to ameliorate those differences. All of it should be debated.
But if somebody proposes using equity to rectify racial inequality, then at a minimum they should be required to demonstrate that a specific activity is the cause of that harm before forcing someone — a business, a governmental institution — to act or to stop acting. This is usually a Herculean task for those signing off on the progressive equity doctrine. When I asked the leaders of my school district’s “diversity, inclusion, and equity” committee over Zoom to identify the source of the inequity and why equity was necessary to resolve it, instead of an answer, I was met with the familiar eye-rolls and refrains of being a “racist” and a “troll.”
Society should demand more. This would be required in court, and should be required in our schools and businesses.
Wally Zimolong, Esquire is a veteran trial lawyer who has acted as lead plaintiff or defense counsel in nearly 500 cases. He has tried numerous cases to verdict and boasts an undefeated jury trial record. @WallyZimolong.