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88 Tul. L. Rev. 317 (2013-2014)

handle is hein.journals/tulr88 and id is 347 raw text is: Diversity as Commons Sheldon Bernard Lyke* Educational dversity arse as a shared valuable resource benefittig both universities and students in two landmark aflinnative action cases-Regents of the Uhiversity of California v Bakke and Grutter v Bolhiger This Article argues that diversity empircally resembles a commons (ie, a shared resource). Extendng this analysis exposes plaintiffs who file anti- affirmative action lawsuits-individuals like Abigail Fisher in Fisher v University of Texas at Austin-as agents of enclosure who air tryig to enclose the educational diversity commons, destroy its management structure, and prvatize it for their own benefit (e, to gain admission into elite universities). Examining dversity and afluimative action thmugh a common property lens reveals that the defense of race-conscious admissions policies faces a collective action problem. The intersts of universities and their minoity students largely overlap in their desie to protect diversity They dveige, howeve; when universities refuse to employ addfional equality rmtionales that could strengthen the defense of diversity and race-conscious admissions. This refusal facilitates anti-affAimative action efforts. Relying on this analytical commons flamewor, this Article seeks a normative intervention. Searching for solutions to the dversity enclosure by reviewing how others have msisted property enclosure, five resistance strategies are identified (1) rfraiming attacks as acts of enclosure (2) dsobeying the rules that enclose resources, (3) relying on government * © 2013 Sheldon Bernard Lyke. Assistant Professor, Whittier Law School. Ph.D. 2013, Department of Sociology, University of Chicago; J.D. 1999, Northwestern University School of Law; A.B. 1996, Princeton University. I am especially grateful to Guy-Uriel Charles and Peter DiCola for challenging me to complicate the framing of this project. This Article would look fundamentally different if not for their rumination and insight. I thank Lisa Bernstein, Luke A. Boso, Dorothy Brown, Charlton Copeland, Erin Delaney, Shari Diamond, Jessica Eaglin, David Martin Ferguson, Joshua Fischman, Emily Kadans, Andrew Koppelman, Ainsley LeSure, Jim Lindgren, H. Timothy Lovelace, Kali Murray, Walter Keith Robinson, Bertrall Ross, Len Rubinowitz, Nadav Shoked, Carleton Waterhouse, and Lua Yuille for their comments, conversations, and feedback on this project. I am thankful to Cheryl I. Harris, Jerry Kang, and Richard Sander for a series of conversations that helped me think about ways to develop the basic framework of this Article when it was only a nascent seed idea. Thanks to James Coss and Alice Lin for excellent research assistance. My gratitude is shared with the participants of the Race and Racial Ideologies Workshop at the Center for the Study of Race, Politics, and Culture at the University of Chicago; the Workshop for New Law Professors and Entry-Level Candidates sponsored by the Duke Center on Law, Race & Politics; the Legal Scholarship Workshop at the University of Chicago School of Law; the 2012 Midwestern People of Color Legal Scholarship Conference; the 2012 Fellows Workshop of the Williams Institute at the University of California at Los Angeles School of Law; the LatCrit/SALT Junior Faculty Development Workshop; the Faculty Internal Workshop and the Zodiac Junior Faculty Workshop at Northwestern University School of Law; the Ownership: With, For, and Against Others panel at the 2012 Law and Society conference; and the 2012 John Mercer Langston Black Men's Faculty Writing Workshop. Additional thanks to the law faculty members of Hofstra, SUNY Buffalo, and Whittier, where I presented more finalized versions of this Article. This Article began (and was presented as a work in progress) while serving as the inaugural Dorr Legg Law and Policy Fellow at the Williams Institute at the UCLA School of Law. Please direct comments or questions to sblyke@alumni.princeton.edu. 317

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