University of Chicago Law School Chicago Unbound Journal Articles Faculty Scholarship 1992 The Illusory Distinction between Equality of Opportunity and Equality of Result David A. Strauss Follow this and additional works at: https://chicagounbound.uchicago.edu/journal_articles Part of the Law Commons Recommended Citation David A. Strauss, "The Illusory Distinction between Equality of Opportunity and Equality of Result," 34 William and Mary Law Review 171 (1992). This Article is brought to you for free and open access by the Faculty Scholarship at Chicago Unbound. It has been accepted for inclusion in Journal Articles by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. THE ILLUSORY DISTINCTION BETWEEN EQUALITY OF OPPORTUNITY AND EQUALITY OF RESULT DAVID A. STRAUSS* I. INTRODUCTION "Our society should guarantee equality of opportunity, but not equality of result." One hears that refrain or its equivalent with increasing frequency. Usually it is part of a general attack on gov- ernment measures that redistribute wealth, or specifically on af- firmative action, that is, race- and gender-conscious efforts to im- prove the status of minorities and women. The idea appears to be that the government's role is to ensure that everyone starts off from the same point, not that everyone ends up in the same condi- tion. If people have equal opportunities, what they make of those opportunities is their responsibility. If they end up worse off, the government should not intervene to help them.1 In this Article, I challenge the usefulness of the distinction be- tween equality of opportunity and equality of result. I do not sug- gest that the notion of equality of opportunity is an empty one; on the contrary, it is a powerful and important ideal. It is, however, much more complex than the proponents of the distinction be- tween "opportunity" and "result" acknowledge. The most natural conception of equality of opportunity, which I discuss in Part II, is that equality of opportunity requires the elim- ination of barriers to advancement that are in some sense arbi- trary. I will try to show that this conception of equality of opportu- nity requires large-scale redistributions of resources-perhaps not literal equality of results, in the sense that every person must have * Professor of Law, the University of Chicago. A.B. 1973 and J.D. 1978, Harvard Univer- sity; B. Phil., Oxford, 1975. I thank my colleagues Elena Kagan, Lawrence Lessig, Geoffrey Stone, and Cass Sunstein for their helpful comments on an earlier draft. The Russell Baker Scholars Fund and the Lee and Brena Freeman Faculty Research Fund at the University of Chicago provided financial support. 1. See sources cited infra note 5. Arguments of this kind were frequently made, for exam- ple, by opponents of versions of the Civil Rights Act of 1991. See, e.g., 137 CONG. REc. $7247 (daily ed. June 6, 1991) (statement of Sen. Dole). HeinOnline -- 34 Wm. & Mary L. Rev. 171 1992-1993 WILLIAM AND MARY LAW REVIEW [Vol. 34:171 the same resources, but a much closer approximation to that state than the advocates of "equality of opportunity, not result" would ever suspect (and probably much closer than anyone would desire). The central idea is a simple and familiar one: talents and abilities, the qualities that (ideally) are responsible for inequalities in re- sults, are in an important sense no less arbitrary than the barriers that any advocate of equality of opportunity would want to eliminate. In Part III, I will discuss a different conception of equality of opportunity, one that is perhaps closer to what the advocates of "equality of opportunity, not result" have in mind. This concep- tion sees equality of opportunity as a meritocratic principle that allows, roughly speaking, the free operation of the market. Accord- ing to this view, government actions that alter outcomes produced by the market derogate from equality of opportunity and can be viewed only as efforts to promote equality of result. My argument in Part III is that the market-oriented mer- itocratic conception of equality of opportunity, although a coher- ent view, is an ideal of equality only in a limited and somewhat counter-intuitive sense. More important, the form of equality that characterizes well-functioning market processes also characterizes well-functioning democratic processes. Therefore, in principle, there is no difference between the equality manifested in market- oriented meritocracy (so-called equality of opportunity) and the equality characteristic of a well-functioning democracy that alters market outcomes (so-called equality of result). The distinction be- tween opportunity and result is an unhelpful and misleading way to categorize social institutions. II. EQUALITY OF OPPORTUNITY AS THE ELIMINATION OF ARBITRARY BARRIERS TO ADVANCEMENT A. Formal Equality of Opportunity I begin with what I consider an indisputable aspect of equality of opportunity, what one might call formal equality of opportunity.2 I believe that those who rely on the distinction between equality of 2. For an account of this principle, see HENRY SIDGWICK, THE METHODS OF ETHIcs 285 n.1 (7th ed. 1907). HeinOnline -- 34 Wm. & Mary L. Rev. 172 1992-1993 1992] EQUALITY OF OPPORTUNITY opportunity and equality of result have this principle in mind as the minimum content of equality of opportunity. The principle of formal equality of opportunity holds, in the classic formulation, that careers should be open to talents.' The law should not bar a person from an occupation or a position of prestige just because-as the principle would have been stated at a time when it was more controversial than today-that person was born into a family that does not belong to the aristocracy.4 Today the equivalent example would probably not be birth into a non- aristocratic family but birth into a certain racial group. Any law that bars members of a-racial minority from certain jobs, for exam- ple, denies them equality of opportunity. Why are formal barriers to opportunity unacceptable? Perhaps the most obvious reason is the intuition that a person's fortunes should not depend on such arbitrary circumstances as race or fam- ily background. These are accidents of birth that are beyond an individual's control. It is therefore unfair to the individual to allow these factors to be so influential. There are other plausible argu- ments against formal barriers, of course. For example, one might say that formal equality of opportunity is desirable not because it is fairer to the individual but because it maximizes social well- being. I will consider those arguments below. The most obvious and immediate argument for equality of opportunity, I believe, is based on the idea that it is unfair to allow arbitrary factors to have a dramatic effect on a person's life. This argument for equality of opportunity, however, quickly leads to arguments for much more than the elimination of formal barriers. The call for "equality of opportunity, not equality of re- sult" is sometimes offered as a reason for opposing welfare state measures.' But if the basis of equality of opportunity is the unfair- ness of allowing arbitrary factors to affect a person's chances in life, it is immediately apparent that equality of opportunity might 3. See id. 4. For a well-known account of the historical development of this principle, see RICHARD H. TAWNEY, EQUALITY ch. III, § 2 (4th ed. 1964). 5. See, e.g., MhCHAEL NOVAK, THE SPIRIT OF DEMOCRATIC CAPITALISM 123-25 (1982); THOMAS SOWELL, CIVIL RIGHTS: RHETORIC OR REALITY? 37-60 (1984). HeinOnline -- 34 Wm. & Mary L. Rev. 173 1992-1993 174 WILLIAM AND MARY LAW REVIEW [Vol. 34:171 require extensive government welfare and redistribution programs.6 Even without formal barriers, a person with as much talent and initiative as another may not do as well if he or she has had, for example, an inferior education or inferior health care. Indeed, be- cause family background has such a powerful influence on people's fortunes, true equality of opportunity probably would require a de- gree of intervention into the family that we would find unaccept- able.7 For example, parents' willingness to play an active role in their children's education surely affects the children's prospects in life. But having parents interested in one's welfare is as much an arbitrary factor as having parents descended from King Arthur. Therefore the idea of equality of opportunity as elimination of ar- bitrary barriers, if extended logically, would require that the inter- ests and abilities of parents be equalized among families. No one would accept that conclusion. The government might, however, do many things short of that to equalize opportunity. It could ensure, for example, equal schooling and equal access to health care without unacceptably interfering in the family. The notion of equal schooling is more complex than it might appear at first: some might dispute, for example, whether the government should provide the same resources to all or special educational benefits to those with special needs." In any event, this conception of equality of opportunity would still require substan- tial government activity, in the nature of welfare state measures. It does not follow that the distinction between equality of oppor- tunity and equality of result is useless. It is plausible and coherent to say that the government should ensure that no one's fortunes in life will suffer because he or she did not have access to health care or education as good as anyone else's, but that if opportunities are equalized in that way, the government must not correct any differ- ences in results. Those differences, it might be said, are caused by differences in talent or initiative, not differences in opportunities.