Educational diversity arose as a shared valuable resource benefitting both universities and students in two landmark affirmative action cases—Regents of the University of California v. Bakke and Grutter v. Bollinger. This Article argues that diversity empirically resembles a commons (i.e., a shared resource). Extending this analysis exposes plaintiffs who file affirmative action lawsuits—individuals like Abigail Fisher in Fisher v. University of Texas at Austin—as agents of enclosure who are trying to enclose the educational diversity commons, destroy its management structure, and privatize it for their own benefit (i.e., to gain admission into elite universities). Examining diversity and affirmative action through a common property lens reveals that the defense of race-conscious admissions policies faces a collective action problem. The interests of universities and their minority students largely overlap in their desire to protect diversity. They diverge, however, when universities refuse to employ additional equality rationales that could strengthen the defense of diversity and race-conscious admissions. This refusal facilitates anti-affirmative action efforts. Relying on this analytical commons framework, this Article seeks a normative intervention. Searching for solutions to the diversity enclosure by reviewing how others have resisted property enclosure, five resistance strategies are identified: (1) reframing attacks as acts of enclosure, (2) disobeying the rules that enclose resources, (3) relying on government intervention, (4) changing the management structure of the commons, and (5) cooperating with those who seek to enclose. The main normative argument is that these opposition strategies for resisting enclosure can be imported into the affirmative action context as a means for preserving race-conscious admissions policies and combating present-day anti-affirmative action efforts.
This Article contributes to scholarship dedicated to developing a language for discussing how private interests quietly seize socially common shared resources. Employing a commons framework to discuss affirmative action identifies the actors responsible for the management and conservation of diversity. The commons metaphor permits a holistic view of race-conscious admissions and assists conversations concerning who is suited to defend diversity and how to best protect affirmative action policies from attack.