"Two Men Enter, One Man Leaves"

On Bravery and the Zero-Sum Equal Opportunity Workplace Hiring and Promotion Game

Admissions, hiring, and promotion are zero-sum games. Like the Mad Max line, "two men enter, one man leaves," this is the essence of competitive selection when there is a fixed number of seats.

In the much-expected Supreme Court ruling striking down race-based admissions at UNC and Harvard, and likely DEI (Diversity, Equity, and Inclusion) hiring and promotion schemes in the private sector, two key items jumped out to me, including the use of the phrase "zero sum" in the majority ruling.

The first point that stood out is how easy it is to overlook the fact that the Constitution's Equal Protection clause may never be used as a negative or operate as a stereotype, as Chief Justice Roberts stated.

Yet it did for so many years, skimming under the surface of clear judicial intent.

Roberts elaborates: "The First Circuit found that Harvard's consideration of race has resulted in fewer admissions of Asian-American students. Respondents' assertion that race is never a negative factor in their admissions programs cannot withstand scrutiny. College admissions are zero-sum, and a benefit provided to some applicants but not to others necessarily advantages the former at the expense of the latter."

Within the procurement and supply chain professions, I have heard from half a dozen professionals in the past year seeking roles or promotions who were discriminated against because they did not tick the black or brown box. Being Asian, Middle Eastern, Indian, or Jewish doesn't count either, unless you identify as LGBTQ.

In other cases that I've become aware of in Fortune 500 procurement teams, similar unprotected groups were offered early retirement packages based solely on the desire to promote, literally, diversity status at the expense of all other considerations, including merit and performance.

Prior to last week's ruling, these programs operated in a gray area, but not one so gray that even East Coast elites in HBR (Harvard Business Review) were not afraid to instruct readers, literally, on how to skirt the law in the article: To Drive Diversity Efforts, Don’t Tiptoe Around Your Legal Risk -- Address it directly with your lawyers from the start

Going forward, if you follow HBR's previous advice, you will not be acting in the interests of shareholders, who will face investment risk in their portfolio from assets violating the Constitution's Equal Protection requirements.

The second item that stood out to me in the text of the ruling was the level of discrimination in admissions, at least at UNC. Specifically, according to the plaintiffs' sources, "over 80% of all black applicants in the top academic decile were admitted to UNC, while under 70% of white and Asian applicants in that decile were admitted... In the second-highest academic decile, the disparity is even starker: 83% of black applicants were admitted, while 58% of white applicants and 47% of Asian applicants were admitted... And in the third-highest decile, 77% of black applicants were admitted, compared to 48% of white applicants and 34% of Asian applicants."

If anyone cannot look at this and not see what is unconstitutional, then they are letting feelings get in the way of facts—facts that show discrimination violating the "no negative" requirements of the Equal Protection clause.

In April 2023, Tablet published a piece that closely resonated with my own experience: "Ivy League Exodus." Observing that "the number of Jews on major Ivy League campuses has been cut in half or more over the past decade by new elite doctrines that downplay merit in favor of amorphous definitions of diversity and privilege," the article goes into great detail on how universities like my own, the University of Pennsylvania, have placed Jews (along with Asians and Whites) in the crosshairs of zero-sum games.

I admit that I was one of the beneficiaries of largely merit-based admissions (and scholarship money) for working-class Jews and Whites at Penn in the '90s. That is, despite overcoming challenges in my youth which could have made me a victim, but instead steeled my resolve to succeed.

When the Supreme Court ruling came out, Penn put out a statement essentially saying how it would skirt the ruling on Linkedin (like many other universities), I responded by pointing out in a comment the echo chamber that Penn has become in recent decades, silencing all voices that contradict the prevailing narrative.

Even though I was one of the editors of the libertarian/conservative paper while at Penn, for the past few years, I've bitten my tongue more than I care to admit when it comes to not pointing out discriminatory behavior (in my profession) that violates the Equal Protections doctrine -- even if it came from a place of wanting to do the right thing.

Not surprisingly, in this vein, LinkedIn initially tried to censor one of my comments in the above-linked thread by stating it violated their standards on race and harmful speech. On appeal, they let it stand.

Only through bravery can we ensure that Equal Opportunity and non-discrimination in the workplace become the standard of treatment, as it is constitutionally guaranteed.