When evaluating a system, we have a choice of evaluating its internal functions–the inside view–or evaluating its effects situated in a larger context–the outside view.
Decision procedures (whether they are embodied by people or performed in concert with mechanical devices–I don’t think this distinction matters here) for sorting people are just such a system. If I understand correctly, the question of which principles animate antidiscrimination law hinge on this difference between the inside and outside view.
We can look at a decision-making process and evaluate whether as a procedure it achieves its goals of e.g. assigning credit scores without bias against certain groups. Even including processes of the gathering of evidence or data in such a system, it can in principle be bounded and evaluated by its ability to perform its goals. We do seem to care about the difference between procedural discrimination and procedural nondiscrimination. For example, an overtly racist policy that ignores truly talent and opportunity seems worse than a bureaucratic system that is indifferent to external inequality between groups that then gets reflected in decisions made according to other factors that are merely correlated with race.
The latter case has been criticized in the outside view. The criticism is captured by the phrasing that “algorithms can reproduce existing biases”. The supposedly neutral algorithm (which can, again, be either human or machine) is not neutral in its impact because in making its considerations of e.g. business interest are indifferent to the conditions outside it. The business is attracted to wealth and opportunity, which are held disproportionately by some part of the population, so the business is attracted to that population.
There is great wisdom in recognizing that institutions that are neutral in their inside view will often reproduce bias in the outside view. But it is incorrect to therefore conflate neutrality in the inside view with a biased inside view, even though their effects may be under some circumstances the same. When I say it is “incorrect”, I mean that they are in fact different because, for example, if the external conditions of procedurally neutral institution change, then it will reflect those new conditions. A procedurally biased institution will not reflect those new conditions in the same way.
Empirically it is very hard to tell when an institution is being procedurally neutral and indeed this is the crux of an enormous amount of political tension today. The first line of defense of an institution blamed of bias is to claim that their procedural neutrality is merely reflecting environmental conditions outside of its control. This is unconvincing for many politically active people. It seems to me that it is now much more common for institutions to avoid this problem by explicitly declaring their bias. Rather than try to accomplish the seemingly impossible task of defending their rigorous neutrality, it’s easier to declare where one stands on the issue of resource allocation globally and adjust ones procedure accordingly.
I don’t think this is a good thing.
One consequence of evaluating all institutions based on their global, “systemic” impact as opposed to their procedural neutrality is that it hollows out the political center. The evidence is in that politics has become more and more polarized. This is inevitable if politics becomes so explicitly about maintaining or reallocating resources as opposed to about building neutrally legitimate institutions. When one party in Congress considers a tax bill which seems designed mainly to enrich ones own constituencies at the expense of the other’s things have gotten out of hand. The idea of a unified idea of ‘good government’ has been all but abandoned.
An alternative is a commitment to procedural neutrality in the inside view of institutions, or at least some institutions. The fact that there are many different institutions that may have different policies is indeed quite relevant here. For while it is commonplace to say that a neutral institution will “reproduce existing biases”, “reproduction” is not a particularly helpful word here. Neither is “bias”. What we can say more precisely is that the operations of procedurally neutral institution will not change the distribution of resources even though they are unequal.
But if we do not hold all institutions accountable for correcting the inequality of society, isn’t that the same thing as approving of the status quo, which is so unequal? A thousand times no.
First, there’s the problem that many institutions are not, currently, procedurally neutral. Procedural neutrality is a higher standard than what many institutions are currently held to. Consider what is widely known about human beings and their implicit biases. One good argument for transferring decision-making authority to machine learning algorithms, even standard ones not augmented for ‘fairness’, is that they will not have the same implicit, inside, biases as the humans that currently make these decisions.
Second, there’s the fact that responsibility for correcting social inequality can be taken on by some institutions that are dedicated to this task while others are procedurally neutral. For example, one can consistently believe in the importance of a progressive social safety net combined with procedurally neutral credit reporting. Society is complex and perhaps rightly has many different functioning parts; not all the parts have to reflect socially progressive values for the arc of history to bend towards justice.
Third, there is reason to believe that even if all institutions were procedurally neutral, there would eventually be social equality. This has to do with the mathematically bulletproof but often ignored phenomenon of regression towards the mean. When values are sampled from a process at random, their average will approach the mean of the distribution as more values are accumulated. In terms of the allocation of resources in a population, there is some random variation in the way resources flow. When institutions are fair, inequality in resource allocation will settle into an unbiased distribution. While their may continue to be some apparent inequality due to disorganized heavy tail effects, these will not be biased, in a political sense.
Fourth, there is the problem of political backlash. Whenever political institutions are weak enough to be modified towards what is purported to be a ‘substantive’ or outside view neutrality, that will always be because some political coalition has attained enough power to swing the pendulum in their favor. The more explicit they are about doing this, the more it will mobilize the enemies of this coallition to try to swing the pendulum back the other way. The result is war by other means, the outcome of which will never be fair, because in war there are many who wind up dead or injured.
I am arguing for a centrist position on these matters, one that favors procedural neutrality in most institutions. This is not because I don’t care about substantive, “outside view” inequality. On the contrary, it’s because I believe that partisan bickering that explicitly undermines the inside neutrality of institutions undermines substantive equality. Partisan bickering over the scraps within narrow institutional frames is a distraction from, for example, the way the most wealthy avoid taxes while the middle class pays even more. There is a reason why political propaganda that induces partisan divisions is a weapon. Agreement about procedural neutrality is a core part of civic unity that allows for collective action against the very most abusively powerful.
Zachary C. Lipton, Alexandra Chouldechova, Julian McAuley. “Does mitigating ML’s disparate impact require disparate treatment?” 2017