The Right to be Fairly Assessed

Merit-based procedures should be constantly reevaluated according to the circumstances to remain both valid and fair—two interrelated concepts. Inducing reevaluation, however, is difficult. These procedures are controlled by legitimate authorities, are rule and contract-bound, and can become quickly entrenched. This resistance to change calls for specific legal tools and institutions that can favour a potential review. This article advances the first of these tools: enacting the right to be fairly assessed. With this aim, we first explain why challenges to merit-based procedures are complex and then provide contingent justifications to base potential challenges. Our concern is the role of biases and conflicts of interests of authorities who define and control merit-based procedures. We then turn our focus to the institutional aspects of the problem. Administrative alternatives to induce reevaluation involve complex challenges, hence our defence of an actionable legal right. We illustrate the usefulness of this approach by showing how courts enforce fairness in testing in the USA. The need for the right to be both validly and fairly assessed is based on Chilean examples. Still, our argument also applies to other nations lacking equitable remedies and actions to deal with the same issues.