In 1896, the Supreme Court foisted “separate but equal” upon American law and society in Plessy v. Ferguson. This ruling allowed states to pretend that in transportation (or schools or hospitals), “separate” can also be “equal.” The question today is whether ubiquitous, well-intentioned demands for “equity” (call it “equitism”) might lead to a similarly problematic standard of “separate, but equitable.”
Plessy required conceit and deceit. The conceit was the presumption that public officials possessed sufficient wisdom, competence and resources to micromanage resources such that Whites and non-Whites could be separated in ways that yielded equality. The deceit was the presumption that officials really wanted equality.
Today, well-meaning equitists intend no such deceit but practice a parallel conceit by reintroducing racial categorization into our institutions and assuming that governments will handle it better than their predecessors did.
Louisiana’s Separate Car Act of 1890 required White and Black railroad passengers to ride in separate compartments. Homer Plessy’s ancestry was one-eighth African and seven-eighths European. By outward appearance, he was White, but state laws defined him as “colored.” Seeking to challenge the law, Plessy sat in a Whites-only car and was arrested. Seven justices upheld the law. Only Justice John Marshall Harlan dissented, arguing that constitutionally the law “is colorblind, and neither knows nor tolerates classes among citizens.”
Enforcing the Separate Car Act required Louisiana officials to: (1) officially define each racial category; (2) construct a database applying these labels to every resident; (3) determine what constitutes “equality”; (4) require railroad personnel to act as agents of the state in enforcing the law; (5) specify civil and criminal penalties for passengers and railroad officers violating the law; and (6) harness police powers to punish passengers and railroad officers who violate the law.
Today, Justice Harlan’s principle of colorblindness has once again become controversial in certain circles because of entirely different motivations. In 2021, two physicians proposed race-based hospital admissions, arguing that racial disparities “(give) the lie to the effectiveness of colorblind policies.” In some states, access to lifesaving drugs depends partly on one’s race.
The underlying argument is that “structural racism” is baked into American institutions, leading to disparities in health and other variables. The alleged curative is for central authorities to prioritize people of color over Whites in distributing goods, services, money or privileges. A webpage of the George Washington University’s Milken Institute of Public Health states this vision succinctly: “Equality means each individual or group of people is given the same resources or opportunities. Equity recognizes that each person has different circumstances and allocates the exact resources and opportunities needed to reach an equal outcome.”
There is no intellectual inconsistency in believing (as I do) that structural racism is a legitimate phenomenon and simultaneously thinking (as I do) that schemes like those described in the previous paragraph will likely be ineffective or counterproductive. Those pushing equitism today in healthcare (and in education, employment, etc.) do not bear the racial animus that 19th-century Louisiana legislators exhibited in passing the Separate Car Act. But one can still worry about the efficacy and ethics of today’s curatives.
If equitism demands that people of color have priority in acquiring drugs or hospital admissions, the state must: (1) officially define who belongs to which race; (2) construct and maintain a database to apply the designated racial label to every resident; (3) legally determine what constitutes “equity”; (4) require healthcare personnel to act as agents of the state in enforcing the law; (5) specify civil and criminal penalties for patients and providers violating the law; and (6) harness police powers to punish those violators.
The relevant question is not whether the desire for some vision of equity is genuine but rather whether today’s government officials are sufficiently wise, competent, resourceful and benevolent for us to entrust them to define and pigeonhole us by race (and other innate characteristics) and to micromanage some of the most intimate aspects of our lives — healthcare.
One would also be wise to ask whether conferring such powers on governments will benefit or further harm those whom the policies are ostensibly supposed to help.
