Can Affirmative Action Offer a Lesson in Fighting Enclosure?

This chapter argues that race-based affirmative action in higher education is an intangible commons where the shared resource is diversity, the members are universities and students, and the individuals who seek to end affirmative action are agents of enclosure. The diversity commons provides insight into the conservation vulnerabilities of other commons resources. When affirmative action faces hostile litigation – universities (i.e., the protectors of the diversity commons) focus solely on diversity arguments. Universities’ interests diverge from minority students when they fail to offer equality based defenses (i.e., that admissions are racially discriminatory).While many members of the commons have overlapping interests, a commons is vulnerable to the extent that commons managers have divergent interests from other members. Conservationists must be aware of a party’s interest when considering who should have authority to defend the commons. In the diversity commons, a possible solution is to grant minority students intervenor status so they can advance equality arguments. This solution, if applied abstractly to other commons, would mean introducing gridlock as a conservation tool. One manifestation of gridlock could be to give all commons members with use rights the power to defend against development and enclosure.