The governance void in American higher education did not produce the conditions of exclusive inclusion by accident. It produced them by design: not the design of malicious individuals, but the design of legal architecture constructed without external accountability, maintained without stakeholder recourse, and justified by claims to pluralist mission that the same architecture makes impossible to enforce.

Federal coercion addresses symptoms. Compliance addresses optics. Neither reaches the void.

What exclusive inclusion is

Exclusive inclusion is the governance state in which an institution claims to protect all members while structurally ensuring that some are unprotected. The mechanism has three architectural features: self-perpetuating boards eliminate electoral accountability, hollow fiduciary duties eliminate legal accountability, and the absence of stakeholder standing eliminates affected-party accountability. The resulting void makes systematic exclusion structurally likely and, when it occurs, structurally difficult to remedy.

Five elements distinguish this from a buzzword. It is predictable – it follows from features of institutional design, not from bad luck or bad actors. It is structural – the exclusion operates through governance architecture rather than individual prejudice. It involves inclusion asymmetry – some groups receive robust institutional protection while others are left procedurally exposed. It is systematic – patterned, persistent, and predictable from the architecture. And it is mechanism-agnostic – the governance analysis does not require determining whether individual actors harbor animus, ideological commitment, or simple indifference. The structure enables exclusion regardless.

Not just antisemitism

This is the hardest point to make and the most important. The same governance architecture that enabled the systematic exclusion of Jewish students after October 7 has enabled the exclusion of Women of Color from STEM departments at universities recognized as leaders in DEI for computer science, of Black students from liberal arts colleges with explicit DEI commitments, of conservative and libertarian faculty from universities claiming intellectual diversity, and of students with disabilities from institutions with compliance offices.

I document five cases. At four public universities, departmental DEI leadership prioritized gender while systematically avoiding race, producing what researchers term “race-avoidant processes” – institutional DEI roles that narrowly define diversity and operate as structural filters, protecting formal gender equity language while excluding Women of Color. At a predominantly White liberal arts college, a facially neutral behavioral policy produced systematic racial inequality through differential enforcement: Black students faced higher stakes for violations, reduced access to informal rule-breaking, and intensified surveillance. In legal academia, hiring committees systematically screen candidates based on ideological orientation; only 6% of social and personality psychologists identify as conservative; 35% of faculty reported toning down written work from fear of controversy, compared to 9% during McCarthyism, and 47% of conservative faculty self-censor compared to 19% of liberal faculty. Students with disabilities face systematic exclusion through accommodation systems that centralize medical verification and grant discretionary power to procedural adjudicators, transforming legal entitlements into contingent privileges.

The cross-identity pattern is theoretically significant because it confirms that the mechanism is structural, not cultural. If the problem were cultural hostility toward a particular group, we would not expect the same governance failures to affect Jewish students, Women of Color, Black students, conservative faculty, and students with disabilities simultaneously. Fixing the structure benefits every affected constituency. This is not a zero-sum conflict among identity groups. It is a shared governance problem with a shared structural solution.

The disentanglement matrix

University controversies involving speech, identity, and institutional authority do not arrive pre-sorted. Academic freedom claims, political expression claims, and civil rights claims all run together, and the actors deploying each set of claims have strong incentives to frame their conduct in the most protected available category.

I offer a diagnostic tool that sorts these cases along two axes. The first asks who is acting: an individual exercising personal judgment, or an institution deploying organizational authority, resources, or official channels. The second asks what is targeted: a perspective (a political viewpoint, policy position, or ideological commitment) or an identity (a people, ethnicity, national origin, or religious group).

The matrix exposes what I call jurisdictional retreat. An act of exclusive inclusion sits in the bottom-right quadrant: an institution deploys its authority to exclude on the basis of identity. When challenged, the actors retreat to the top-left quadrant, claiming the protection of individual academic freedom and political expression. The institutional character of the act disappears. The identity-based effect disappears. The defender’s framing reduces the act to protected individual speech.

The academic boycott illustrates the retreat. Faculty for Justice in Palestine chapters used departmental authority over hiring, curriculum, and programming to advance anti-normalization campaigns requiring institutional severance of ties with Israeli universities. At UCLA, 115 academic boycott endorsers included 20 with chairs or leadership roles. At UC Berkeley, 171 endorsers included 19 with academic leadership. At UC Santa Cruz, 55 endorsers included an Associate Campus Provost and four residential college provosts. When Jewish colleagues objected, defenders cast the response in top-left terms: the department was merely expressing the political views of its members. But the act was institutional – the department deployed its resources through official channels with the imprimatur of faculty governance. The operation was identity-based – the policy excluded Israeli scholars and Jewish scholars by their affiliations, regardless of any individual’s views on any contested question. The boycott resolution did not ask whether a particular collaborator supported any specific policy. It excluded categorically.

A department cannot hide behind the professor’s First Amendment rights any more than a corporation can hide behind an employee’s right to speak. Institutional action has its own accountability framework, one that under current law has no enforcement mechanism. That is the governance void the matrix is designed to expose.

The governance void

Why do American universities lack the governance mechanisms to prevent exclusive inclusion? The accountability void is not an oversight. It is the product of legal architecture that concentrates authority without oversight, insulates decisions without recourse, and invokes pluralist mission without enforceable commitment.

The self-perpetuating board. Harvard’s Corporation has governed by internal appointment since 1650. Yale’s trustees elect their own replacements. At most elite private universities, faculty, students, alumni, and the public have no binding role in governance. An institution so structured can absorb and ignore external criticism indefinitely, because the people with authority to respond are the people with authority to do nothing.

The hollow duty of obedience. Nonprofit law requires trustees to act within the stated mission. But boards write their own mission statements, and when the statement is vague enough to accommodate any conceivable decision, the duty becomes unenforceable. Harvard’s mission – “to educate future leaders” and “strive toward a more just, fair, and promising world” – does not describe a standard capable of judicial enforcement. Alan Palmiter has described the duty of obedience as the “forgotten fiduciary obligation.”

The absence of stakeholder standing. In a for-profit corporation, shareholders can bring derivative suits to discipline the board. In a nonprofit university, no comparable mechanism exists. Students, faculty, alumni, and donors generally lack standing to challenge governance decisions. The state attorney general is the nominal enforcer, but attorneys general are chronically under-resourced and politically disinclined to sue wealthy, prestigious institutions. The result is structural impunity.

The void operates like an immunodeficiency. A healthy immune system does not prevent the introduction of pathogens; it provides mechanisms to identify and neutralize them before they cause systemic damage. A healthy governance system does not prevent the emergence of factional interests; it provides mechanisms – stakeholder voice, board accountability, enforceable mission commitments – to ensure that factional interests cannot capture institutional authority to the systematic detriment of particular groups. When those mechanisms are absent, organized factions can deploy institutional resources, official channels, and delegated authority to produce identity-based exclusion, and the institution has no capacity to respond.

Why coercion hasn’t worked

Between April and November 2025, the Trump administration froze billions in federal funding and conditioned restoration on sweeping changes. Columbia agreed to approximately $200 million in settlements and saw $400 million in federal grants immediately cancelled. Brown committed $50 million over ten years. Universities capitulated at speed.

What did capitulation produce? Settlement agreements required universities to adopt definitions, appoint liaisons, conduct climate surveys, and submit demographic data. Notice what none of these settlements required: governance reform. No settlement mandated changes to board composition or selection procedures. None created stakeholder standing for students to challenge department-level exclusion. None strengthened the fiduciary duty of obedience or required mission statements specific enough to constrain future board discretion.

University counsel understood that policy changes are reversible and monitoring is temporary, while governance reform is permanent. This is option value theory applied to institutional behavior: preserving flexibility has value, and governance reform eliminates flexibility. The settlements represent a rational institutional choice – pay the fine, adopt the policy, preserve the structure. The problem is that this rational choice for the institution produces an irrational outcome for the students the institution claims to protect.

Harvard’s case is instructive from the opposite direction. Judge Allison Burroughs found that the funding freeze violated the First Amendment and concluded that the administration had “used antisemitism as a smokescreen for a targeted, ideologically-motivated assault on this country’s premier universities.” The ruling was correct on the administrative law. But it does nothing to address the governance failure that left students exposed at Harvard in the first place. Harvard won in court. The governance void persists on campus.

The cycle is predictable: crisis emerges, federal intervention follows, universities comply on paper, political attention shifts, compliance lapses, the same governance structure that produced the original crisis remains in place, crisis re-emerges. Only structural reform can break this cycle.

Three structural reforms

I propose three procedural reforms, not substantive ones. They do not require universities to adopt particular values, admit particular students, or reach particular conclusions about any contested political question. They require only that universities govern themselves through structures that make institutional capture harder, stakeholder recourse available, and identity-based exclusion cognizable.

Stakeholder standing – modeled on corporate derivative suits – would permit affected stakeholders to bring derivative actions to enforce existing fiduciary duties against nonprofit educational institution boards. Procedural safeguards from corporate practice (demand requirements, heightened pleading, bond requirements, fee-shifting, abuse-of-discretion review) would prevent harassment litigation. The standing reform creates accountability without dictating outcomes. Corporate derivative suits have not produced a flood of frivolous litigation; the primary effect has been deterrent – boards exercise greater care knowing that stakeholders can enforce duties.

Enforceable mission specificity – state legislatures would require mission statements of tax-exempt educational institutions to include specific, measurable commitments to equal treatment regardless of religion, ethnicity, national origin, and other protected characteristics. The specificity requirement does not dictate substantive values. It requires that whatever values the institution claims to hold be stated with sufficient precision to permit enforcement. An institution that does not wish to commit to equal treatment would be free to say so explicitly, but could not claim such a commitment while maintaining governance structures that produce systematic exclusion.

An operational test for tax exemption – adapted from hospital community benefit standards. The IRS conditions hospital tax exemption on promoting “the health of a broad class of individuals in the community served.” In exchange for approximately $37.4 billion in tax exemptions, nonprofit hospitals must satisfy concrete requirements for emergency care access, service to Medicaid patients, and community health programming. Universities receive comparable public subsidies but face no comparable governance accountability requirement. A reformed operational test would condition public subsidy on governance structures that do not produce systematic identity-based exclusion. It would not mandate any particular viewpoint. It would require that the institution’s governance architecture make exclusive inclusion structurally unlikely.

The three reforms are complementary, each addressing a different dimension of the accountability void. Together they create overlapping accountability mechanisms: internal accountability through stakeholder enforcement, legal accountability through enforceable fiduciary duties, and external accountability through tax exemption conditions. This redundancy is intentional. Exclusive inclusion persists because the current system has no accountability mechanisms. Creating multiple overlapping mechanisms makes systematic exclusion structurally unlikely even if any single mechanism fails.

Read the full article: Seth C. Oranburg, Exclusive Inclusion, SSRN (2026). SSRN