In their article on diversity, equity, and inclusion initiatives and differing definitions of fairness, Eric Silver and John Iceland make the helpful distinction between fairness understood as evenly distributed outcomes and fairness understood as evenly applied processes. They argue that one of the main sources of disagreement between DEI advocates and critics is that they tend to employ different definitions of fairness. They contend that advocates of DEI programming adopt what they describe as a “social justice perspective, in which fairness is measured in terms of evenly distributed outcomes, while critics of DEI programming tend to adopt a social process perspective, in which fairness is measured in terms of evenly applied processes [italics in the original].” They suggest that these competing definitions frequently lead those on different sides of the DEI issue to misunderstand one another and that recognizing the definitional differences can be a step toward having productive conversations.

The clear identification of these two definitions of fairness is extremely helpful. However, I think Silver and Iceland miss the depth of disagreement between the two sides and the fact that the two sides actually do understand each other. These are not simply two opposed definitions, nor is their clash reducible to a lack of communication between people using the same word to mean different things. Most advocates of equal outcomes understand the equal processes perspective perfectly well. But they reject it as maintaining and reproducing social inequality. For example, the 2001 Fordham Law Review article “Equal Treatment and the Reproduction of Inequality,” by Cheryl Harris, recognizes and rejects the view that individuals in different racial groups should be treated equally and in a nondiscriminatory manner. More recently, the celebrated author Ibram X. Kendi, whom Silver and Iceland cite, explicitly and strongly argues against equal, nondiscriminatory treatment, maintaining that achieving equal outcomes requires the preferential treatment of members of marginalized groups. Kendi understands the equal-processes definition of fairness, but he characterizes it as “racist” because it does not aim at equalizing outcomes.

Similarly, those on the process side understand that those favoring organizational policies to equalize conditions across social categories hold a competing view of fairness. But they necessarily oppose this view as the use of institutional power to discriminate against individuals and to enforce a program of social goals.  Writing in the Wall Street Journal in March 2021, Charles Lipson accused advocates of “equity” of “throwing out the American principle of equality under the law.” Linguist and social commentator John McWhorter has described the attempt to use thoroughgoing racial preferences to achieve equal outcomes as “neoracist.” We do not have a failure of communication here but a fundamental ideological disagreement. No amount of clarifying definitions will resolve this conflict of sociopolitical values.

I appreciate the acknowledgment of racial inequality at the beginning of the Silver and Iceland article. Reading this, one has to recognize that there are legitimate arguments for the equal-outcomes view dominant at the authors’ own institution and in most others. But as one on the process side, I want to point out that the dominance of the equal-outcomes view, which Silver and Iceland describe as the social justice perspective, behind many DEI initiatives poses serious problems for higher education. The inclusivity favored by the equal-outcomes advocates is a highly selective one and one that demands conformity in word and deed. The language of the 2020 Penn State report cited by Silver and Iceland illustrates this point. According to the report, “…antiracist work … can and must be embedded into every Penn State degree program.”

The report also clearly envisions the universal enforcement of intellectual conformity. In the quotation provided by Silver and Iceland, it recommends that the university “[m]ake DEI-centered responsibilities explicit in job descriptions, performance appraisals, and promotion and tenure criteria.” What about faculty members who may not agree with those responsibilities? I don’t know whether or to what extent Penn will adopt these recommendations, but these do not just offer a definition of fairness with which some may disagree. The recommendations imply punishing or even pushing out of the university anyone who may take a process view of fairness.

These kinds of initiatives are not unique to Penn, where Silver and Iceland teach. In June 2020, Duke University president Vincent Price announced that the university must take “transformative action now toward eliminating systems of racism and inequality … That starts with personal transformation…. It must end in institutional transformation and that is the hard work before all of us.” To achieve this transformation, President Price committed the university to “…reviewing the curriculum, incorporating anti-racism lessons into it” and “… requiring anti-racism and anti-bias training for all faculty staff and students.”

At the University of Oklahoma, according to the Foundation for Individual Rights in Education (FIRE), faculty and staff were compelled to take an online mandatory diversity training program “that required trainees to acknowledge their agreements with the university’s approved political viewpoints.” There is not much room for debate or diversity of opinion there. Faculty and staff will all have to salute, fall into formation, and march toward administratively decreed objectives.

Institutional programs such as these make it evident that the DEI issue is not a debate between those holding two different views of fairness. At Penn, Duke, and Oklahoma, administrations hold the equal-outcomes approach as doctrine, not as a point for debate. The problem is not that they do not understand the equal-processes definition of fairness, but that they will tolerate it.

It may be that some compromise between the outcomes and processes understandings of fairness is possible. Perhaps universities can promote greater opportunities for people in historically marginalized groups through specific initiatives, while refraining from requiring any faculty or staff to endorse those initiatives or to take oaths of allegiance to an institutional ideology. But this would entail accepting that however one defines fairness, life, as President Kennedy famously observed, is unfair.