Proxy Discrimination After Students for Fair Admissions

TL;DR

This paper proposes a legal test for regulating proxy variables in decision-making algorithms, emphasizing comparative analysis and the development of proxy power caps to promote fairness.

Contribution

It introduces a novel legal framework for assessing proxy discrimination, including a comparative test and proposals for caps on proxy power over time.

Findings

Algorithms using less proxy variables can be more equitable.

Comparative analysis helps identify more fair decision tools.

Legal caps on proxy power can evolve with understanding of variable influence.

Abstract

Today, there is no clear legal test for regulating the use of variables that proxy for race and other protected classes and classifications. This Article develops such a test. Decision tools that use proxies are narrowly tailored when they exhibit the weakest total proxy power. The test is necessarily comparative. Thus, if two algorithms predict loan repayment or university academic performance with identical accuracy rates, but one uses zip code and the other does not, then the second algorithm can be said to have deployed a more equitable means for achieving the same result as the first algorithm. Scenarios in which two algorithms produce comparable and non-identical results present a greater challenge. This Article suggests that lawmakers can develop caps to permissible proxy power over time, as courts and algorithm builders learn more about the power of variables. Finally, the Article considers who should bear the burden of producing less discriminatory alternatives and suggests plaintiffs remain in the best position to keep defendants honest - so long as testing data is made available.