Diversity as Commons

Sheldon Bernard Lyke

Whittier Law School

May 8, 2013

88 Tulane Law Review 317 (2013)
Northwestern Public Law Research Paper No. 13-15

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 anti-affirmative action lawsuits — individuals like Abigail Fisher in Fisher v. University of Texas — 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.

Number of Pages in PDF File: 48

Keywords: commons, enclosure, diversity, equality, affirmative action, equal protection, Fourteenth Amendment, race, ethnicity, property, higher education, critical mass, constitutional law

JEL Classification: K10, K19, K30, K39

Accepted Paper Series

Download This Paper

Date posted: May 10, 2013 ; Last revised: April 18, 2014

Suggested Citation

Lyke, Sheldon Bernard, Diversity as Commons (May 8, 2013). 88 Tulane Law Review 317 (2013) ; Northwestern Public Law Research Paper No. 13-15. Available at SSRN: http://ssrn.com/abstract=2262567

Contact Information

Sheldon Bernard Lyke (Contact Author)
Whittier Law School ( email )
3333 Harbor Blvd.
Costa Mesa, CA 92626
United States
Feedback to SSRN

Paper statistics
Abstract Views: 425
Downloads: 127
Download Rank: 127,643

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo4 in 0.765 seconds