Exclusive Inclusion Seth C. Oranburg1 Abstract Institutions publicly committed to “inclusive” can produce systematic identity-based exclusion as a structural output. This Essay introduces exclusive inclusion to name this condition: the governance state in which sel --- -perpetuating boards, unen --- orceable --- iduciary duties, and the absence o --- stakeholder standing create an accountability void that organized --- actions exploit to exclude dis --- avored identity groups. The mechanism is architectural, not attitudinal, and operates across identity categories: Women o --- Color in STEM, Black students at liberal arts colleges, conservative --- aculty, Jewish students, and students with disabilities all --- ace exclusion through the same governance --- ailures. Drawing on organizational theory and the author’s prior work on “sovereign charities,” this Essay o --- --- ers a diagnostic tool, the disentanglement matrix, to separate protected individual expression --- rom institutional identity- based exclusion. Three structural re --- orms --- ollow: stakeholder standing modeled on corporate derivative suits, en --- orceable mission speci --- icity, and an operational test --- or tax exemption adapted --- rom hospital community bene --- it standards. Because exclusive inclusion is structural, governance re --- orm bene --- its every a --- --- ected constituency. I. Introduction American universities produce systematic identity-based exclusion through governance architecture, not despite their commitments to pluralism but because o --- governance structures that make those commitments unen --- orceable. This Essay names and diagnoses that condition. Exclusive inclusion is the governance state in which an institution claims to protect all members while structurally ensuring that some are unprotected, because sel --- -perpetuating boards, hollow --- iduciary duties, and the absence o --- stakeholder standing create an accountability void that organized --- actions can exploit. The phenomenon is not speci --- ic to any single identity group. The same governance architecture that enabled the systematic exclusion o --- Jewish students a --- ter October 7, 2023 has enabled the exclusion o --- Women o --- Color --- rom STEM departments with --- ormal gender equity programs, o --- Black students --- rom liberal arts colleges with explicit DEI commitments, and o --- conservative --- aculty --- rom universities claiming intellectual diversity.2 Governance re --- orm that addresses the accountability void would bene --- it all a --- --- ected constituencies, because the void is the disease and the exclusion is the symptom. 1 Pro --- essor o --- Law, University o --- New Hampshire Franklin Pierce School o --- Law; J.D., University o --- Chicago. For help --- ul comments and conversations, I thank [names]. All errors are mine. 2 The cross-identity pattern is theoretically signi --- icant because it con --- irms that the mechanism is structural, not cultural, and practically signi --- icant because it suggests that governance re --- orm would bene --- it all a --- --- ected constituencies. See in --- ra Part I.C (documenting the pattern across --- ive identity groups). 2 Exclusive Inclusion What happened on campuses a --- ter October 7, 2023 --- orced an unusually honest set o --- admissions. University presidents told Congress they could not guarantee the sa --- ety o --- Jewish students.3 Federal o --- --- icials launched Title VI investigations into more than sixty institutions.4 Federal en --- orcement actions extracted nine- --- igure settlements --- rom universities that had, months earlier, claimed to embody the values o --- inclusion and open inquiry.5 National surveys con --- irmed what a --- --- ected students already knew: 57.3% o --- Jewish students reported direct experiences o --- antisemitism, 63.4% reported bystander exposure, and most lacked con --- idence that their universities would respond.6 Those --- indings documented not a cultural --- ailing but a governance indictment. The crisis was real, and the acknowledgments were welcome. But they were incomplete, because they identi --- ied the symptom without diagnosing the disease. The disease is structural. Encampments, exclusion zones, --- aculty boycotts, and the systematic intimidation o --- Jewish students are not governance anomalies. They are governance outputs: predictable products o --- institutional architecture that creates an accountability void at the center o --- university decision-making. At multiple University o --- Cali --- ornia campuses, departmental units used delegated authority to advance coordinated campaigns that --- ueled exclusion and intimidation o --- particular student groups, and the Board o --- Regents had no governance mechanism to intervene. 7 Faculty boycott endorsers held academic leadership positions at UCLA, UC Berkeley, and UC Santa Cruz, shaping curricula, pedagogy, and speaker selection through captured governance structures.8 The --- ailure runs through the entire institutional architecture: boards answerable to no one, --- iduciary duties with no en --- orcement mechanism, mission statements too vague to constrain, and no stakeholder standing to challenge any o --- it. Campus antisemitism, however visible, is one mani --- estation o --- a broader structural pattern. Computer science departments at --- our public universities with --- ormal gender equity programs systematically excluded Women o --- Color through race-avoidant governance processes that 3 See Hearing Be --- ore the H. Comm. on Educ. & the Work --- orce, 118th Cong. (Dec. 5, 2023) (testimony o --- Claudine Gay, President, Harvard Univ.; Liz Magill, President, Univ. o --- Pennsylvania; Sally Kornbluth, President, Massachusetts Inst. o --- Tech.). Magill resigned December 9, 2023; Gay resigned January 2, 2024. 4 U.S. Dep’t o --- Educ., O --- --- ice --- or Civil Rights, Letters to 60 Universities Under Investigation --- or Antisemitic Discrimination and Harassment (2025), https://www.ed.gov/about/news/press-release/us-department-educations- o --- --- ice-civil-rights-sends-letters-60-universities-under-investigation-antisemitic-discrimination-and-harassment. 5 See Settlement Agreement, United States v. Trs. o --- Columbia Univ., No. 1:25-cv-______ (S.D.N.Y. Mar. 2025) (approximately $200 million in combined commitments); Settlement Agreement, United States v. Brown Univ., No. 1:25-cv-______ (D.R.I. 2025) ($50 million over ten years). Columbia separately --- aced cancellation o --- $400 million in --- ederal grants and contracts. [CITE NEEDED: Veri --- y docket numbers --- or both settlement agreements when publicly --- iled.] 6 Amiya Waldman-Levi, Zahava L. Friedman, Janet Falk-Kessler, Lola Halperin & Lisa Gordon-Handler, Antisemitism and Daily Occupations, OTJR: Occupation, Participation & Health (2025), https://doi.org/10.1177/15394492251344525 (reporting 57.3% o --- 147 surveyed Jewish students experienced antisemitism directly and 63.4% witnessed it as bystanders, with documented impacts on sa --- ety, mental health, and daily academic participation). 7 AMCHA Initiative, When Faculty Takes Sides: How Academic In --- rastructure Drives Antisemitism at the University o --- Cali --- ornia (2026), https://amchainitiative.org/uc-system-report-pr/. 8 Id. (documenting 115 boycott endorsers at UCLA including 20 with chairs or leadership roles; 171 at UC Berkeley including 19 with academic leadership; 55 at UC Santa Cruz including an Associate Campus Provost and --- our residential college provosts; and antisemitic incidents rising as high as 3,000% during the 2023-2025 academic years at the three examined campuses). 2026-03-15] 3 prioritized gender while erasing race. 9 At a predominantly White liberal arts college with explicit DEI commitments, a --- acially neutral behavioral policy produced systematic racial inequality through di --- --- erential en --- orcement: Black students --- aced higher stakes --- or violations, reduced access to in --- ormal rule-breaking, and intensi --- ied surveillance.10 Faculty hiring in many departments operates through in --- ormal culture and committee discretion that e --- --- ectively screens out conservative and libertarian candidates, substituting ideological con --- ormity --- or open intellectual inquiry.11 In each case, --- ormal institutional commitments to pluralism coexist with governance structures that predictably produce systematic exclusion o --- particular identity groups. The governance architecture that enables systematic exclusion a --- --- ects multiple identity groups because the architecture does not discriminate; it simply --- ails to constrain. Two dominant policy responses have emerged: --- ederal coercion and institutional compliance. Neither has worked. Between April and November 2025, the Trump administration --- roze billions in --- ederal --- unding and conditioned restoration on sweeping changes to governance, speech policy, and admissions. 12 Universities capitulated at speed. Harvard won a judicial victory declaring the --- unding --- reeze unconstitutional, with the court --- inding that the administration “used antisemitism as a smokescreen --- or a targeted, ideologically-motivated assault on this country’s premier universities.”13 Yet the governance void that produced the original crisis persists at Harvard as at every other institution. Settlement agreements required universities to adopt de --- initions, appoint liaisons, and conduct climate surveys.14 Not one settlement required governance re --- orm. Not one mandated changes to board composition or selection procedures. Not one created stakeholder standing --- or students to challenge department-level exclusion. The settlements treated exclusive inclusion 9 Julia Rose Karpicz, Tomoko Nakajima & Justin A. Gutzwa, Challenging Normalized Gendered Racism in Departmental E --- --- orts to Broaden Participation in Computer Science, J. Women & Gender Higher Educ. (2024), https://doi.org/10.1080/26379112.2024.2373479 (conducting narrative analysis o --- 55 --- aculty, sta --- --- , students, and administrators at --- our public universities identi --- ied as leaders in DEI e --- --- orts --- or computer science). 10 A.R. Gillis & Elena G. van Stee, The Pact: How a Seemingly Race-Neutral Behavioral Policy Reproduced Racial Inequality at a Predominantly White Liberal Arts College, Socius (2024), https://doi.org/10.1177/23780231241286371 (analyzing three waves o --- interviews with 30 undergraduates documenting disparities in social isolation, access to sa --- e rule-breaking, visibility/surveillance, and stakes o --- violation). 11 Joshua Dunn Jr. & Jon A. Shields, Passing on the Right: Conservative Pro --- essors in the Progressive University (2016) (interviewing 153 pro --- essors --- rom 84 universities across six disciplines in social sciences and humanities and --- inding conservative pro --- essors describe themselves as a “stigmatized minority”); Yoel Inbar & Joris Lammers, Political Diversity in Social and Personality Psychology, 7 Persp. on Psych. Sci. 496 (2012), https://doi.org/10.2139/ssrn.2002636 ( --- inding only 6% o --- social and personality psychologists identi --- y as conservative and documenting willingness to penalize conservative colleagues in peer review and hiring). 12 See U.S. Dep’t o --- Educ., O --- --- ice --- or Civil Rights, Notice o --- Compliance Review and Intent to Initiate Administrative Proceedings (Apr. 2025); Exec. Order No. 14,133, Additional Steps to Combat Anti-Semitism, 90 Fed. Reg. ______ (2025). [CITE NEEDED: Veri --- y Executive Order number and Federal Register citation when published.] 13 President & Fellows o --- Harvard Coll. v. U.S. Dep’t o --- Educ., No. 1:25-cv-10807-ADB (D. Mass. July 14, 2025) (Burroughs, J.) ( --- inding that “none o --- the --- ederal government’s grant termination letters speci --- ied how Harvard --- ailed to respond to any acts o --- antisemitism in violation o --- Title VI” and concluding the administration “used antisemitism as a smokescreen --- or a targeted, ideologically-motivated assault on this country’s premier universities”). 14 See sources cited supra note 5. 4 Exclusive Inclusion as a compliance de --- icit curable by policy adoption. The structural conditions producing exclusion remain unchanged.15 In a companion article, I develop the concept o --- the “sovereign charity” to explain how elite private universities came to wield public power without public accountability.16 This Essay applies that structural analysis to a speci --- ic governance output: the production o --- systematic identity-based exclusion by institutions whose stated commitments run in precisely the opposite direction. Existing theories o --- discrimination --- ocus on individual prejudice or disparate impact; theories o --- organizational hypocrisy address gaps between --- ormal policy and actual practice; institutional isomorphism explains why organizations adopt similar structures. None explains how institutions with genuine pluralist commitments, sta --- --- ed by individuals who sincerely support those commitments, produce systematic exclusion as a structural output. Exclusive inclusion theory --- ills that gap by identi --- ying governance architecture as the causal mechanism.17 This Essay proceeds as --- ollows. Part I de --- ines exclusive inclusion as a structural condition, documents its operation across --- ive identity categories, introduces the disentanglement matrix as a diagnostic tool, and situates the concept within organizational theory. Part II establishes the governance void that makes exclusive inclusion possible by summarizing the “sovereign charity” --- ramework and its three architectural --- eatures: the sel --- -perpetuating board, the hollow duty o --- obedience, and the absence o --- stakeholder standing. Part III examines the 2025 --- ederal interventions as a case study in whether coercion can substitute --- or governance re --- orm, and concludes it cannot. Part IV proposes three structural re --- orms, stakeholder standing, mission speci --- icity, and operational test re --- orm, that target each --- eature o --- the accountability void, explains how the re --- orms work as an integrated system, and addresses the strongest objections. II. Exclusive Inclusion as a Structural Condition Exclusive inclusion is not an accident o --- bad actors or un --- ortunate timing. It is the predictable output o --- governance architecture. This Part de --- ines the concept, distinguishes it --- rom related theories o --- organizational --- ailure, documents its operation across --- ive identity categories, and o --- --- ers the disentanglement matrix as a diagnostic tool. A. De --- ining the Concept Stokely Carmichael and Charles V. Hamilton introduced the concept o --- structural discrimination into American political thought in 1967 by distinguishing between individual prejudice and the “established and respected --- orces in the society” that generate inequality 15 The --- ailure o --- --- ederal intervention and policy compliance is not merely disappointing; it is structurally inevitable. No amount o --- --- ederal pressure or policy re --- orm can succeed when the governance architecture that produces exclusive inclusion remains unchanged. See in --- ra Part III (analyzing the structural limits o --- --- ederal coercion). 16 Seth C. Oranburg, Sovereign Charities (2025), https://ssrn.com/abstract=5260677. 17 This theoretical contribution is distinct --- rom cultural explanations (which --- ocus on attitudes and belie --- s), legal compliance explanations (which --- ocus on individual violations), and disparate impact theory (which --- ocuses on --- acially neutral policies). See in --- ra Part I.B (distinguishing exclusive inclusion --- rom related concepts). 2026-03-15] 5 without requiring any individual to harbor hostility.18 The breakthrough was analytical: by shi --- ting --- ocus --- rom motive to mechanism, Carmichael and Hamilton made it possible to study discrimination as an organizational phenomenon. Intent became irrelevant to diagnosis. Structure became everything. Three bodies o --- organizational theory converge to identi --- y the conditions under which exclusive inclusion occurs. Mark Suchman’s --- oundational work on institutional legitimacy distinguishes between the perception that an organization’s actions are proper and the structural conditions that sustain or erode that perception.19 Henry Hansmann’s analysis o --- nonpro --- it governance identi --- ies voice and exit as the two mechanisms by which stakeholders discipline institutional behavior; when both are absent, managerial autonomy becomes managerial impunity. 20 Elinor Ostrom’s work on commons governance demonstrates that institutions excluding a --- --- ected parties --- rom decision-making processes tend to produce outcomes serving insiders at the expense o --- outsiders.21 Together, these --- rameworks identi --- y a condition that has no established name in organizational law. This Essay proposes one. Exclusive inclusion is the condition in which an organization’s governance structures systematically --- ail to protect certain members --- rom identity-based exclusion, while protecting other members --- rom comparable harms, because o --- structural --- eatures o --- the organization rather than the prejudice o --- any individual decision-maker. The --- ailure is predictable --- rom the governance architecture: where sel --- -perpetuating boards eliminate electoral accountability, unen --- orceable --- iduciary duties eliminate legal accountability, and the absence o --- stakeholder standing eliminates a --- --- ected-party accountability, the resulting void makes systematic exclusion structurally likely and, when it occurs, structurally di --- --- icult to remedy. Four elements warrant emphasis, and a --- i --- th clari --- ication is necessary. 1. Predictability Exclusive inclusion --- ollows --- rom --- eatures o --- institutional design, not --- rom bad luck or unusually bad actors. When a university’s board is sel --- -perpetuating, its mission is vague, its --- iduciary duties are unen --- orceable, and no stakeholder has standing to challenge governance decisions, the institution is structurally vulnerable to capture by whichever --- action is most organized.22 The capturing --- action need not be hostile in the conventional sense. It needs only to be indi --- --- erent to the exclusion o --- a particular group, or willing to tolerate it as an acceptable cost o --- pursuing other goals. Indi --- --- erence, in a governance void, is su --- --- icient. The existence o --- antisemitism “hotspots” on some campuses but not others con --- irms the structural diagnosis: 18 Stokely Carmichael & Charles V. Hamilton, Black Power: The Politics o --- Liberation in America 4 (1967). 19 Mark C. Suchman, Managing Legitimacy: Strategic and Institutional Approaches, 20 Acad. Mgmt. Rev. 571, 574-77 (1995) (distinguishing pragmatic, moral, and cognitive --- orms o --- organizational legitimacy). 20 Henry B. Hansmann, The Role o --- Nonpro --- it Enterprise, 89 Yale L.J. 835, 849-52 (1980) (identi --- ying the “nondistribution constraint” and analyzing voice and exit as stakeholder discipline mechanisms in nonpro --- it organizations). 21 Elinor Ostrom, Governing the Commons: The Evolution o --- Institutions --- or Collective Action 90-102 (1990) (demonstrating through empirical analysis o --- long-enduring commons that institutions excluding a --- --- ected parties --- rom decision-making produce outcomes serving insiders at the expense o --- outsiders). 22 This analysis draws on the agency-costs --- ramework developed in my companion article on university governance. See Seth C. Oranburg, University Disentanglement (2024), https://ssrn.com/abstract=4997569. 6 Exclusive Inclusion institutions with similar --- ormal commitments to pluralism produce dramatically di --- --- erent outcomes --- or Jewish students depending on their governance architecture.23 This variation is inconsistent with explanations attributing campus antisemitism primarily to external political --- orces or generational attitudes, and consistent with the hypothesis that governance structures determine whether institutions can prevent or remedy identity-based exclusion. 2. Asymmetry Exclusive inclusion involves what I have elsewhere called “inclusion asymmetry”: the selective application o --- institutional protection such that some groups receive robust support while others are le --- t procedurally exposed. 24 Universities maintain o --- --- ices, programs, and en --- orcement mechanisms dedicated to racial equity, gender inclusion, LGBTQ+ advocacy, and disability access. These are appropriate institutional commitments. But when the same university treats identity-based exclusion o --- one group as a civil rights matter and identical exclusion o --- another group as political expression, the asymmetry is not incidental. It is the operative institutional policy, whether or not anyone chose it deliberately.25 The asymmetry determines which harms count as civil rights violations warranting institutional en --- orcement and which are re --- ramed as political disagreements --- alling outside the scope o --- university civil rights in --- rastructure. 3. Mechanism Exclusive inclusion operates through a two-step process. First, the absence o --- external accountability (no stakeholder standing), internal accountability (unen --- orceable --- iduciary duties), and electoral accountability (sel --- -perpetuating boards) creates an opportunity --- or organized --- actions to capture governance structures. Capture occurs when a --- action gains control over decision-making in a particular domain, a DEI committee, a hiring committee, a student conduct o --- --- ice, without e --- --- ective oversight or constraint. 26 Second, once a --- action captures governance, it can implement policies that systematically exclude identity groups the --- action dis --- avors while claiming to advance the institution’s --- ormal commitments. The governance architecture cannot distinguish legitimate policy implementation --- rom identity- based exclusion because there is no mechanism --- or a --- --- ected parties to challenge decisions, no en --- orceable standard against which to measure decisions, and no external body with authority to review decisions. Each individual decision may appear de --- ensible in isolation, but the 23 See GW Wright, S. Volodarsky, S. Hecht & L. Saxe, In the Shadow o --- War: Hotspots o --- Antisemitism on US College Campuses (2024) (mapping geographic and institutional variation in antisemitism and identi --- ying campuses where Jewish students report particularly elevated rates o --- antisemitic incidents and institutional non-response). 24 Oranburg, University Disentanglement, supra note 22. 25 The asymmetry is not merely a matter o --- resource allocation but o --- institutional recognition o --- which harms count as civil rights violations and which are re --- ramed as political disagreements. This distinction determines whether institutional en --- orcement mechanisms are activated or whether a --- --- ected students are told their concerns are outside the scope o --- university civil rights in --- rastructure. 26 These three conditions, capture, absence o --- recourse, and selective en --- orcement, are individually insu --- --- icient but jointly su --- --- icient to produce exclusive inclusion. An institution with two o --- the three conditions may produce episodic exclusion; an institution with all three produces systematic exclusion as a structural output. 2026-03-15] 7 aggregate e --- --- ect is systematic exclusion that no single actor can be held accountable --- or producing.27 4. Systematicity Exclusive inclusion produces systematic exclusion, meaning it is not sporadic or isolated but patterned, persistent, and predictable --- rom the governance architecture. Systematic exclusion a --- --- ects multiple individuals within an identity group, persists over time despite complaints or policy changes, --- ollows predictable patterns, survives leadership changes, and coexists with --- ormal institutional commitments to inclusion. 28 Sporadic exclusion, by contrast, involves isolated incidents addressed through existing mechanisms, does not --- ollow identity-group patterns, and is remedied when brought to institutional attention. The distinction matters because sporadic exclusion can be addressed through policy compliance; systematic exclusion requires structural re --- orm. 5. Relationship to Cultural Factors The governance analysis does not require determining whether individual actors harbor cultural animus, ideological commitments, or simple indi --- --- erence. Many participants in the documented cases believed they were advancing legitimate institutional goals or expressing de --- ensible political views. Whether they harbored hostility, ideological commitment, or indi --- --- erence toward particular groups, the governance structure enabled systematic exclusion and a --- --- orded the excluded group no recourse.29 Cultural --- actors may contribute to campus climates and individual incidents, but the governance thesis is additive, not substitutive: structural --- eatures are su --- --- icient to produce systematic exclusion even where cultural --- actors are ambiguous, contested, or absent, and structural re --- orm is necessary regardless o --- cultural context.30 27 This is the structural mechanism that produces what I call “laundering” o --- exclusion: each individual decision appears de --- ensible, but the aggregate e --- --- ect is systematic exclusion that no single actor can be held accountable --- or producing. See in --- ra Part I.D (developing the disentanglement matrix). 28 The distinction between systematic and sporadic exclusion has practical signi --- icance --- or remedy selection. Policy compliance can address sporadic exclusion by correcting speci --- ic incidents. Systematic exclusion requires structural re --- orm because it persists across changes in leadership, culture, and policy. 29 The governance analysis is agnostic on motivation precisely because governance structures determine outcomes regardless o --- individual intent. This is the central insight o --- organizational theory applied to civil rights: structure shapes behavior more reliably than culture or individual attitudes. 30 This additive --- raming distinguishes the governance thesis --- rom both cultural explanations (which --- ocus on attitudes and belie --- s) and legal compliance explanations (which --- ocus on individual violations). The governance thesis is that structural --- eatures are su --- --- icient to produce systematic exclusion and that structural re --- orm is necessary to address it. 8 Exclusive Inclusion B. Distinguishing Exclusive Inclusion --- rom Related Concepts Exclusive inclusion theory di --- --- ers --- rom --- our related --- rameworks, and the distinctions carry practical implications --- or re --- orm. Unlike traditional discrimination theory, which traces exclusion to individual prejudice or intentional institutional policy, exclusive inclusion operates through governance structure without requiring any individual to harbor hostility. The mechanism is architectural, not attitudinal. Unlike disparate impact doctrine, which identi --- ies --- acially neutral policies that produce discriminatory e --- --- ects, exclusive inclusion involves --- ormal commitments to inclusion that governance architecture --- ails to en --- orce. The problem is not a neutral policy with discriminatory e --- --- ects but an a --- --- irmative commitment to pluralism that the governance structure cannot vindicate.31 Unlike organizational hypocrisy as described by Nils Brunsson, which addresses the gap between what organizations say and what they do, exclusive inclusion is not merely symbolic adoption o --- policies that leadership has no intention o --- en --- orcing. The problem is structural inability to en --- orce, not unwillingness. Many university leaders genuinely want to --- ul --- ill their pluralist commitments but lack governance mechanisms to prevent --- actional capture o --- delegated authority.32 Unlike institutional isomorphism as described by DiMaggio and Powell, which explains why organizations adopt similar structures under normative and coercive pressures, exclusive inclusion explains why those adopted structures --- ail to produce their stated objectives. Isomorphism explains why every university has a DEI o --- --- ice; exclusive inclusion explains why those o --- --- ices cannot prevent systematic exclusion.33 The practical implication is that re --- orms targeting individual prejudice, disparate impact, organizational hypocrisy, or isomorphic adoption will not remedy exclusive inclusion, because none addresses the governance architecture that produces it. Only structural re --- orm, changing the accountability void itsel --- , can make exclusive inclusion less likely. C. The Pattern Across Identity Groups Scholars have not applied Carmichael and Hamilton’s analytical shi --- t with equal rigor across identity groups or institutional contexts. But the pattern is present. Five documented cases illustrate how the same governance architecture produces exclusive inclusion across di --- --- erent constituencies. 31 C --- . Griggs v. Duke Power Co., 401 U.S. 424 (1971) (establishing the disparate impact --- ramework); Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 582 (1983) (applying disparate impact analysis under Title VI). 32 See Nils Brunsson, The Organization o --- Hypocrisy: Talk, Decisions and Actions in Organizations (2d ed. 2002) (distinguishing between organizational talk, decisions, and actions and explaining why organizations routinely produce inconsistencies among the three). 33 See Paul J. DiMaggio & Walter W. Powell, The Iron Cage Revisited: Institutional Isomorphism and Collective Rationality in Organizational Fields, 48 Am. Soc. Rev. 147 (1983) (explaining coercive, mimetic, and normative isomorphism). 2026-03-15] 9 1. Jewish Students A --- ter October 7 Survey research documents that Jewish university members experienced sharp increases in exposure to hate and signi --- icant declines in daily com --- ort immediately --- ollowing October 7, 2023.34 The speed and scale o --- the deterioration are inconsistent with the hypothesis that universities simply needed time to develop appropriate responses to a novel situation. Instead, the temporal pattern suggests that governance structures lacked the capacity to protect Jewish students --- rom predictable consequences o --- a major geopolitical event, revealing accountability voids that existed be --- ore October 7 but became visible only when tested. Faculty --- or Justice in Palestine chapters that emerged a --- ter October 7 used departmental authority over hiring, curriculum, and programming to advance anti-normalization campaigns requiring institutional severance o --- ties with Israeli universities.35 At UCLA, 115 academic boycott endorsers included 20 with chairs or leadership roles. At UC Berkeley, 171 endorsers included 19 with academic leadership positions. At UC Santa Cruz, 55 endorsers included an Associate Campus Provost and --- our residential college provosts.36 When Jewish colleagues objected, de --- enders cast their response as individual political expression. But the act was institutional: departments deployed resources through o --- --- icial channels with the imprimatur o --- --- aculty governance. The operation was identity-based: the policy excluded Israeli scholars by nationality and Jewish scholars by their a --- --- iliations, regardless o --- any individual’s views on any contested question. 2. Women o --- Color in STEM Departments At --- our public universities recognized as leaders in DEI e --- --- orts --- or computer science, researchers documented what they term “race-avoidant processes” within departmental governance structures.37 Departmental DEI leadership and programming prioritized gender while systematically avoiding race, producing a speci --- ic governance mechanism: institutional DEI roles and departmental governance that narrowly de --- ine diversity operate as structural --- ilters, protecting --- ormal gender equity language while excluding Women o --- Color.38 Recent scholarship on diversity initiatives provides a theoretical --- ramework: --- ormal programs can center dominant epistemic norms rather than remedy structural barriers, creating what scholars term “tokenizing inclusion” that leaves racialized power dynamics undisturbed. 39 Comprehensive reviews o --- DEI implementations across higher education institutions con --- irm 34 Mateus Rennó Santos & Dikla Yogev, How October 7th Changed Fear and Exposure to Hate (Preprint 2024), https://doi.org/10.31235/os --- .io/q --- aj3 (documenting temporal increases in exposure to hate and declines in daily com --- ort among Jewish university members a --- ter October 7, 2023). 35 AMCHA Initiative, supra note 7. 36 Id. 37 Karpicz et al., supra note 9. 38 Id. 39 Mvikeli Ncube, The Paradox o --- Diversity Initiatives: Structural Disadvantages --- or Global South Scholars in Academia (2025), https://doi.org/10.64074/ --- tgs9y42 (identi --- ying epistemic centrism and tokenizing inclusion as mechanisms by which --- ormal diversity programs reproduce rather than remedy exclusion). 10 Exclusive Inclusion that these --- ailures are systematic rather than isolated, consistently disadvantaging the same constituencies while bene --- iting others.40 3. Black Students at Liberal Arts Colleges At a predominantly White liberal arts college with explicit DEI commitments, researchers studied a campus behavioral pact and documented systematic racial inequality through di --- --- erential en --- orcement.41 Black students --- aced higher stakes --- or violations, reduced access to in --- ormal rule-breaking, and intensi --- ied surveillance: outcomes produced by institutional characteristics and governance priorities rather than individual prejudice. 42 Comparative analysis o --- university board minutes at two institutions reveals that governing boards reasoning --- rom reputational and institutional-interest --- rames structurally --- oreclose equitable remedies --- or students o --- color, making --- ormal DEI commitments contingent on institutional optics rather than substantive protection.43 Empirical research on pre-medical education at a small liberal arts college documents how race, socioeconomic status, and gender shape competitive dynamics and resource access within departments, illustrating how governance structures that --- ail to extend accountability to the departmental level enable exclusion despite --- ormal institutional commitments.44 4. Conservative and Libertarian Faculty Empirical research on legal academia documents signi --- icant underrepresentation o --- conservative and libertarian scholars and identi --- ies selection processes consistent with ideological bias in hiring. 45 The study tests multiple hypotheses, including sel --- -selection, di --- --- erential quali --- ication, and discrimination, and --- inds evidence supporting the discrimination hypothesis: hiring committees systematically screen candidates based on ideological orientation. Departments’ emphasis on “ --- it” and networked recommendation channels 40 See Elsbeth K. Paige-Je --- --- ers & Ruth A.H. Lahti, Interrupting Inequity Within the Higher Education System, in Advances in Religious and Cultural Studies (2023) (analyzing persistent exclusionary practices across institutional strata and documenting pit --- alls o --- DEIB implementations); see also C.S. Wei, C.G. Janke & M. Pervez, Diversity, Equity, and Inclusion (DEI) in Higher Education: A Systematic Review, J. Educ. & Soc. Pol’y (2023) (summarizing challenges in implementing DEI across institutions and highlighting gaps between --- ormal policies and everyday experiences). [CITE NEEDED: Veri --- y Wei et al. journal volume and page numbers.] 41 Gillis & van Stee, supra note 10. 42 Id. 43 K. Cho & Natacha Cesar-Davis, Governance Boards and Student Activism: Responding to Racism, 12 Educ. Sci. 939, 944-47 (2022), https://doi.org/10.3390/educsci12120939 (analyzing university board minutes at two institutions and --- inding that governing boards reasoning --- rom reputational and institutional-interest --- rames structurally --- oreclose equitable remedies --- or students o --- color). 44 Amanda B. Deming, How Race, Socioeconomic Status, and Gender Shape Feelings o --- Competition within the Pre-Med Department at a Small Liberal Arts College (B.A. thesis, Middlebury Coll. 2020) (documenting how departmental cultures at small institutions produce exclusionary competition and barriers --- or underrepresented students). [CITE NEEDED: Veri --- y degree-granting institution.] 45 JC Phillips, Why Are There So Few Conservatives and Libertarians in Legal Academia: An Empirical Exploration o --- Three Hypotheses (2014) (testing sel --- -selection, di --- --- erential quali --- ication, and discrimination hypotheses and --- inding evidence supporting the discrimination hypothesis). 2026-03-15] 11 --- unctions as a structural gatekeeping device that substitutes ideological con --- ormity --- or open intellectual inquiry.46 Survey evidence --- rom social and personality psychology con --- irms that evaluative gatekeepers report willingness to penalize openly conservative colleagues in peer review and hiring, with only 6% o --- social and personality psychologists identi --- ying as conservative.47 A nationwide --- aculty survey documents pervasive sel --- -censorship among politically minority --- aculty: 35% reported toning down written work --- rom --- ear o --- controversy, compared to 9% during McCarthyism, and 47% o --- conservative --- aculty sel --- -censor compared to 19% o --- liberal --- aculty. 48 Where institutions apply policies vaguely or selectively, minority-view --- aculty disproportionately report --- ear o --- retaliation, demonstrating that governance structures, not only culture, produce predictable chilling e --- --- ects. 5. Students with Disabilities Legal compliance o --- --- icers and paper policies cannot by themselves ensure inclusion --- or students with disabilities. When operational units retain discretion and administrators en --- orce rules weakly, ADA-era commitments become procedural shells that systematically exclude students with disabilities, illustrating how principal-agent breakdowns convert --- ormal legal obligations into hollow governance structures. 49 Accommodation systems that centralize medical veri --- ication and grant discretionary power to procedural adjudicators create durable exclusionary bottlenecks, trans --- orming legal entitlements into contingent privileges.50 Students with disabilities --- ace systematic exclusion not through individual prejudice but through governance architecture that makes accommodation a discretionary bene --- it rather than an en --- orceable right. 6. The Common Structural Pattern The pattern is consistent across all --- ive cases. Formal institutional commitments to inclusion coexist with governance structures, captured DEI in --- rastructure, selective en --- orcement, procedural gatekeeping, in --- ormal hiring screens, and board reputational priorities, that predictably produce systematic exclusion o --- particular identity groups. This cross-identity pattern is theoretically signi --- icant because it con --- irms that the mechanism is structural, not cultural: i --- the problem were cultural hostility toward a particular group, we 46 Dunn & Shields, supra note 11, at 87-139. 47 Inbar & Lammers, supra note 11. 48 Nathan Honeycutt, Silence in the Classroom: The 2024 FIRE Faculty Survey Report, OSF (2024), https://doi.org/10.31234/os --- .io/7xr4z (surveying 6,269 --- aculty at 55 --- our-year institutions and --- inding 35% toned down written work --- rom --- ear o --- controversy compared to 9% during McCarthyism, with 47% o --- conservative --- aculty sel --- -censoring compared to 19% o --- liberal --- aculty). 49 Barry Kelly, Disabilities Legislation Implementation in American Universities, 18 J. Higher Educ. Pol’y & Mgmt. 189, 195-201 (1996), https://doi.org/10.1080/1360080960180207. 50 Tara Dylann Roslin, Vitriolic Veri --- ication: Accommodations, Overbroad Medical Record Requests, and Procedural Ableism in Higher Education, 48 Am. J.L. & Med. 507, 520-36 (2022), https://doi.org/10.1017/amj.2022.32 (documenting how accommodation systems centralize medical veri --- ication and grant discretionary power to procedural adjudicators, creating durable exclusionary bottlenecks). 12 Exclusive Inclusion would not expect the same governance --- ailures to a --- --- ect Jewish students, Women o --- Color, Black students, conservative --- aculty, and students with disabilities simultaneously. The pattern is also practically signi --- icant because it means governance re --- orm bene --- its all a --- --- ected constituencies. Fixing the structure is not a zero-sum con --- lict among identity groups. It is a shared governance problem with a shared structural solution. D. The Disentanglement Matrix I --- exclusive inclusion is a governance phenomenon rather than an aggregation o --- individual acts, practitioners and policymakers need a tool --- or identi --- ying it. University controversies involving speech, identity, and institutional authority do not arrive pre-sorted. Academic --- reedom claims, political expression claims, and civil rights claims all run together, and the actors deploying each set o --- claims have strong incentives to --- rame their conduct in the most protected available category. Practitioners need a --- ramework that cuts through the --- raming to the underlying structure o --- the act. The disentanglement matrix sorts these cases along two axes. 51 The --- irst asks who is acting: an individual exercising personal judgment, or an institution deploying organizational authority, resources, or o --- --- icial 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). Perspective-Based Identity-Based Individual Actor Protected Expression Personal Discrimination Institutional Actor Governance Question Exclusive Inclusion Table 1. The Disentanglement Matrix. Top-Le --- t: Individual/Perspective = Protected Expression. A pro --- essor who declines to collaborate with a colleague over a disagreement about --- oreign policy exercises academic --- reedom. A student who re --- uses to join a study group because o --- its political positions makes a personal choice. These acts may be distaste --- ul. No governance re --- orm reaches them. Top-Right: Individual/Identity = Personal Discrimination. A pro --- essor who re --- uses to supervise any student identi --- ying with a particular religious or ethnic group engages in personal discrimination, already prohibited by Title VI. 52 The problem in this quadrant is en --- orcement capacity, not de --- initional clarity. Bottom-Le --- t: Institutional/Perspective = Governance Question. When a university divests --- rom particular investments through proper board channels, or when a --- aculty senate passes a resolution criticizing a --- oreign government’s policy, the action deploys institutional authority in service o --- a political perspective.53 Whether universities should take such positions 51 The disentanglement matrix is developed more --- ully in my companion article. See Oranburg, University Disentanglement, supra note 22. 52 42 U.S.C. § 2000d (2018); 34 C.F.R. § 100 (2025). 53 Whether universities should take institutional positions on contested political questions is itsel --- contested. Compare Robert Post, The Classic First Amendment Tradition Under Stress: Freedom o --- Speech and the University, 2 J. Free Speech L. 1 (2022) (de --- ending institutional neutrality), with Erwin Chemerinsky & Howard 2026-03-15] 13 is contested. The Kalven Committee’s 1967 report provides the --- oundational articulation o --- institutional neutrality: a university should not, “as an institution, in the name o --- the university, take collective action on the issues o --- the day.”54 That principle speaks directly to this quadrant, and the proper objection to institutional political action sounds in institutional neutrality. But when an institution deploys its authority against an identity group, the bottom-right quadrant, the objection sounds in civil rights, not neutrality. De --- enders o --- exclusive inclusion invoke Kalven in reverse, claiming that the university should remain neutral about exclusion when in --- act the institution has already abandoned neutrality by permitting its governance structures to serve identity-based purposes. The matrix exposes this inversion by --- orcing the threshold question o --- whether institutional authority has been deployed, and i --- so, whether its target is a perspective or an identity. Bottom-Right: Institutional/Identity = Exclusive Inclusion. When a department uses its authority over programming and curriculum to advance a campaign that systematically excludes scholars and students based on national origin or religious a --- --- iliation; when a university’s civil rights in --- rastructure extends resources to every marginalized group except one; when campus --- acilities become exclusion zones --- rom which certain students are physically barred, the institution deploys its authority against an identity group.55 The governance void makes this possible. Governance re --- orm is the remedy. The matrix’s critical analytical move involves what it exposes as a jurisdictional retreat. An act o --- exclusive inclusion sits in the bottom-right quadrant: an institution deploys its authority to exclude on the basis o --- identity. When challenged, the actors retreat to the top-le --- t quadrant, claiming the protection o --- individual academic --- reedom and political expression. The institutional character o --- the act disappears. The identity-based e --- --- ect disappears. The de --- ender’s --- raming reduces the act to protected individual speech. The academic boycott illustrates the retreat concretely. Faculty --- or Justice in Palestine chapters used departmental authority over hiring, curriculum, and programming to advance anti-normalization campaigns requiring institutional severance o --- ties with Israeli universities. When Jewish colleagues objected, de --- enders cast the response in top-le --- t terms: the department was merely expressing the political views o --- its members through shared governance. But the act sat in the bottom-right quadrant. The act was institutional: the department deployed its resources through o --- --- icial channels with the imprimatur o --- --- aculty governance. The operation was identity-based: the policy excluded Israeli scholars by nationality and Jewish scholars by their a --- --- iliations, regardless o --- any individual’s views on any contested question. The boycott resolution did not ask whether a particular collaborator Gillman, Free Speech on Campus (2017) (arguing universities should protect open debate while maintaining institutional commitment to inclusive learning environments). 54 Kalven Comm., Univ. o --- Chi., Report on the University’s Role in Political and Social Action 1 (1967), https://provost.uchicago.edu/sites/de --- ault/ --- iles/documents/reports/KalsurvenReport.pd --- (articulating the --- oundational case --- or institutional neutrality on political controversies). Many universities have adopted or endorsed the Kalven Report’s principles. See generally Geo --- --- rey R. Stone et al., Report o --- the Committee on Freedom o --- Expression (Univ. o --- Chi. 2015) (rea --- --- irming and extending the Kalven Report’s --- ramework). 55 The distinction between institutional action and individual expression is not always clear at the boundary, but the core cases are straight --- orward. When a department votes as a department, uses departmental resources, and speaks in the department’s name, it is institutional action. 14 Exclusive Inclusion supported any speci --- ic policy. It excluded categorically. Institutional means accomplished identity-based targeting, and the academic --- reedom o --- individual pro --- essors, however robust, does not shelter institutional discrimination.56 The matrix makes the retreat visible. It --- orces the threshold question: did the institution take this act through institutional channels, using institutional authority and resources? I --- so, it is institutional action, and the academic- --- reedom de --- ense belongs to individual --- aculty members, not to the department.57 A department cannot hide behind the pro --- essor’s First Amendment rights any more than a corporation can hide behind an employee’s right to speak. Institutional action has its own accountability --- ramework, one that under current law has no en --- orcement mechanism. That is the governance void the matrix is designed to expose. A note on the line between perspective and identity. The matrix does not claim that opposition to particular government policies and hostility toward particular identity groups are identical. Many people hold critical views o --- various governments’ policies without harboring animus toward people o --- particular nationalities or religions, and this Essay does not contest that. The matrix does not ask about belie --- . It asks about operational e --- --- ect.58 The operational test is disproportionate impact, not per --- ect sorting. When an institutional boycott o --- universities in a particular country excludes 90% o --- nationals --- rom that country, the identity- based character predominates. Courts applying Title VI use similar reasoning when assessing --- acially neutral policies with disparate impact.59 E. Second-Order Diversity and Institutional Design The disentanglement matrix identi --- ies exclusive inclusion at the point o --- institutional action, but it does not explain the mechanism by which disaggregated governance produces the aggregate pattern. Heather Gerken’s work on second-order diversity --- ills that gap. Gerken demonstrates that disaggregated institutional design, multiple departments, committees, or governance units, can institutionalize exclusion through aggregation rules, control-in --- luence tradeo --- --- s, and cycling e --- --- ects that concentrate protection --- or some groups while leaving others vulnerable.60 Formal pluralist commitments at the institutional level do not guarantee plural outcomes when subunit governance structures lack accountability mechanisms.61 The second-order diversity --- ramework adds analytical precision to the exclusive inclusion diagnosis by explaining how disaggregated governance produces systematic exclusion. When a university delegates authority to departments, each department may adopt policies that appear 56 The academic --- reedom de --- ense is available to individual --- aculty members but not to departments or institutions. See generally Judith Areen, Government as Educator: A New Understanding o --- First Amendment Protection o --- Academic Freedom and Governance, 97 Geo. L.J. 945 (2009). 57 Id. 58 The operational test is consistent with disparate impact doctrine under Title VI, which asks whether a --- acially neutral policy produces discriminatory e --- --- ects, not whether the policy was motivated by discriminatory intent. See Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 582 (1983). 59 See Griggs v. Duke Power Co., 401 U.S. 424 (1971) (establishing disparate impact --- ramework); Elston v. Talladega Cnty. Bd. o --- Educ., 997 F.2d 1394 (11th Cir. 1993) (applying disparate impact analysis in education context). 60 Heather K. Gerken, Second-Order Diversity, 118 Harv. L. Rev. 1099, 1103-15 (2005). 61 Id. at 1116-28. 2026-03-15] 15 reasonable in isolation but aggregate to produce systematic exclusion o --- particular groups. The central administration claims commitment to pluralism. Individual departments claim to exercise legitimate academic judgment. The excluded group has no recourse because no single decision-maker is responsible --- or the pattern.62 This is the governance mechanism that the disentanglement matrix exposes and that the re --- orms proposed in Part IV are designed to address. Exclusive inclusion operates through the interaction o --- institutional disaggregation and accountability voids. The solution requires both transparency about who is acting (the matrix) and structural re --- orm to create accountability (the re --- orms). III. The Governance Void Why do American universities lack the governance mechanisms to prevent exclusive inclusion? The accountability void that enables --- actional capture and systematic exclusion is not an oversight. It is the product o --- legal architecture that concentrates authority without oversight, insulates decisions without recourse, and invokes pluralist mission without en --- orceable commitment. Three --- eatures o --- this architecture warrant analysis. A. The Sovereign Charity Framework Elite private universities are what I term “sovereign charities”: institutions that wield public in --- luence, receive public subsidy, and per --- orm public --- unctions, while governing themselves as private corporations answerable to no external constituency. 63 They are not public agencies subject to democratic oversight, nor market actors subject to shareholder discipline. They are nonpro --- it corporations whose boards select their own successors, de --- ine their own missions, and interpret their own compliance with those missions, while receiving billions in --- ederal grants, tax exemptions, and student --- inancial aid. The tension between public --- unction and private impunity is structural, and three architectural --- eatures contribute directly to the production o --- exclusive inclusion.64 1. The Sel --- -Perpetuating Board Every colonial-era university charter, and most modern ones, vests ultimate governance authority in a board o --- trustees that selects its own members.65 Harvard’s Corporation has 62 Id. at 1129-43. Gerken’s --- ramework was developed in the context o --- jury composition and electoral districting, but the analytical insight applies with equal --- orce to university governance. When authority is disaggregated across multiple units (departments, committees, o --- --- ices), the aggregation rules determine whether minority interests are protected or systematically excluded. 63 Oranburg, Sovereign Charities, supra note 16. 64 Id. The tension between public --- unction and private impunity is not unique to universities but is particularly acute in higher education because o --- the combination o --- enormous endowments, --- ederal research --- unding, student --- inancial aid, and tax exemptions that together constitute a massive public subsidy to ostensibly private institutions. 65 See Harvard University Charter o --- 1650; Yale University Charter o --- 1701 (as amended). The colonial charters established a governance model that persists to this day: boards that select their own successors, with no binding role --- or --- aculty, students, alumni, or the public. 16 Exclusive Inclusion governed by internal appointment since 1650. Yale’s trustees elect their own replacements. At most elite private universities, --- aculty, students, alumni, and the public have no binding role in governance. They may advise; they do not decide. An institution so structured can absorb and ignore external criticism inde --- initely, because the people with authority to respond are the people with authority to do nothing.66 Reputational pressure can in --- luence board behavior, but no --- ormal mechanism translates that pressure into compelled action. A board can listen or ignore as it chooses. 2. The Hollow Duty o --- Obedience Nonpro --- it law nominally requires trustees to act within the institution’s stated mission: the “duty o --- obedience” is supposed to constrain mission dri --- t.67 But when trustees write the mission statement themselves, and when the statement is vague enough to accommodate any conceivable set o --- decisions, the constraint is --- ormal rather than operative. Harvard’s mission, “to educate --- uture leaders” and “strive toward a more just, --- air, and promising world,” does not describe a standard capable o --- judicial en --- orcement. Courts de --- er to trustees’ own interpretations under the business judgment rule, and state attorneys general rarely allocate resources to challenge even --- lagrant mission inconsistency. The vagueness is not accidental: boards dra --- t mission statements to preserve maximum --- lexibility and avoid judicial review. Alan Palmiter has described the duty o --- obedience as the “ --- orgotten --- iduciary obligation,” a duty with a long-standing history that modern nonpro --- it practice has rendered toothless.68 3. The Absence o --- Stakeholder Standing In a --- or-pro --- it corporation, shareholders can bring derivative suits to discipline the board. In a nonpro --- it university, no comparable mechanism exists. Students, --- aculty, alumni, and donors generally lack standing to challenge governance decisions.69 The state attorney general is the nominal en --- orcer, but attorneys general are chronically under-resourced and politically disinclined to sue wealthy, prestigious institutions.70 The general rule that only the attorney general has standing to en --- orce charitable obligations re --- lects an era when charities were small and local. Applied to institutions with billion-dollar endowments and tens o --- thousands o --- 66 This is not to say that external criticism has no e --- --- ect; reputational concerns can in --- luence board behavior. But external criticism has no --- ormal mechanism through which to compel board action. 67 See Evelyn Brody, Charity Governance: What’s Trust Law Got to Do with It?, 80 Chi.-Kent L. Rev. 641, 643-46 (2005) (tracing the duty o --- obedience to charitable trust doctrine and documenting its erosion in modern nonpro --- it law). 68 Alan R. Palmiter, Duty o --- Obedience: The Forgotten Duty, 55 N.Y.L. Sch. L. Rev. 457, 458 (2010-11) (reviving the traditional duty o --- obedience as a distinct --- iduciary obligation requiring nonpro --- it trustees to abide by legal restrictions applicable to their organizations). 69 The general rule is that only the attorney general has standing to en --- orce charitable obligations. See Restatement (Third) o --- Trusts § 94 (2012). Some jurisdictions recognize limited exceptions --- or settlors or bene --- iciaries with special interests, but these rarely apply to university students or --- aculty. 70 Evelyn Brody, Whose Public? Parochialism and Paternalism in State Charity Law En --- orcement, 79 Ind. L.J. 937, 940-44 (2004) (documenting chronic under-resourcing and political disinclination o --- attorneys general to challenge wealthy, prestigious charitable institutions). 2026-03-15] 17 students, the rule produces structural impunity: power exercised without meaning --- ul accountability. Limited exceptions exist but do not --- ill the void. Some states permit relator actions by private parties on behal --- o --- the state. Donor standing was recognized in Smithers v. St. Luke’s- Roosevelt Hospital Center, where the New York Appellate Division held that a donor’s estate could en --- orce restrictions on a charitable gi --- t.71 The Cali --- ornia Supreme Court’s decision in Turner v. Victoria bolstered whistleblower protections by holding that a nonpro --- it director who loses her board position a --- ter --- iling suit retains standing to maintain the action.72 Minnesota permits groups o --- voting members to bring actions --- or equitable relie --- .73 But none o --- these mechanisms provides standing --- or the constituencies most directly a --- --- ected by exclusive inclusion: students and --- aculty experiencing systematic identity-based exclusion. B. The Governance Void as Immunode --- iciency These three --- eatures, the sel --- -perpetuating board, the hollow duty, and the standing bar, constitute the governance void. The void is the structural precondition --- or exclusive inclusion.74 It does not generate exclusion the way a cause generates an e --- --- ect. It generates the conditions under which organized --- actions can produce exclusion and then resist removal, much as an immunode --- iciency does not cause in --- ection but eliminates the body’s capacity to respond. The analogy is precise. A healthy immune system does not prevent the introduction o --- pathogens. It provides mechanisms to identi --- y and neutralize them be --- ore they cause systemic damage. An immunocompromised patient --- aces the same pathogen exposure as a healthy person but lacks the capacity to mount an e --- --- ective response. Similarly, a healthy governance system does not prevent the emergence o --- --- actional interests. It provides mechanisms, stakeholder voice, board accountability, en --- orceable mission commitments, to ensure that --- actional interests cannot capture institutional authority to the systematic detriment o --- particular groups. 75 When those mechanisms are absent, organized --- actions can deploy institutional resources, o --- --- icial channels, and delegated authority to produce identity-based exclusion, and the institution has no capacity to respond. When the immune system --- ails, bombarding the patient with external treatments addresses the presenting symptoms while leaving the underlying vulnerability intact. The 2025 --- ederal interventions demonstrate this dynamic in real time. 71 Smithers v. St. Luke’s-Roosevelt Hosp. Ctr., 281 A.D.2d 127, 723 N.Y.S.2d 426 (N.Y. App. Div. 2001) (holding that a donor’s estate has standing to en --- orce restrictions on a charitable gi --- t). 72 Turner v. Victoria, No. S271054 (Cal. Aug. 3, 2023) (holding that a nonpro --- it director who loses board position a --- ter --- iling suit under Cali --- ornia Corporations Code §§ 5142, 5233 retains standing to maintain the action). 73 See Minn. Stat. § 317A.751 (permitting --- i --- ty or more voting members, or ten percent o --- members, to bring actions --- or equitable relie --- in nonpro --- it governance disputes). 74 The causal relationship is not deterministic but probabilistic. A governance void does not guarantee exclusive inclusion, but it makes exclusive inclusion structurally likely by removing the mechanisms that would otherwise prevent or remedy it. 75 These mechanisms need not be identical to corporate governance mechanisms (shareholder derivative suits, proxy contests, hostile takeovers), but they must provide some --- orm o --- external accountability. The current system provides none. 18 Exclusive Inclusion IV. Federal Coercion and Its Structural Limits The 2025 --- ederal campaign against university governance --- ailures tested whether coercion can substitute --- or governance re --- orm. It cannot. Federal intervention and policy compliance --- ailed not because they were poorly executed but because they attempted to change outputs without changing the governance structure that produces those outputs. Understanding why this --- ailure was structurally inevitable clari --- ies the case --- or the re --- orms proposed in Part IV. A. The Federal Intervention and Its Limits The Trump administration’s 2025 campaign against university governance --- ailures was, as an exercise o --- --- ederal power, unprecedented. The administration --- roze billions in research --- unding across dozens o --- institutions. Federal o --- --- icials opened Title VI investigations against more than sixty universities.76 The administration imposed conditions on restoration o --- --- unds ranging --- rom governance changes to admissions data to de --- initional mandates. Columbia University agreed to approximately $200 million in settlements and saw $400 million in --- ederal grants and contracts immediately cancelled.77 Brown University committed $50 million over ten years.78 Universities capitulated at a pace that surprised many observers. What did capitulation produce? Settlement agreements required universities to adopt particular de --- initions o --- antisemitism, appoint student liaisons, conduct campus climate surveys, and submit demographic data.79 One settlement a --- ter another addressed the visible sur --- ace o --- the problem while leaving its in --- rastructure untouched. Notice what none o --- these settlements required: governance re --- orm. No settlement mandated changes to board composition or selection procedures. None created stakeholder standing --- or students or --- aculty to challenge department-level exclusions. None strengthened the --- iduciary duty o --- obedience or required mission statements speci --- ic enough to constrain --- uture board discretion. The settlements treated exclusive inclusion as a compliance de --- icit curable by policy adoption. Only structural re --- orm can cure it. Harvard’s case is instructive --- rom the opposite direction. A --- ederal district court --- ound that the --- unding --- reeze violated the First Amendment and --- ailed the requirements o --- the Administrative Procedure Act. 80 Judge Allison Burroughs concluded that none o --- the government’s grant termination letters speci --- ied how Harvard had --- ailed to respond to antisemitism in violation o --- Title VI, and that the administration had “used antisemitism as a 76 The scope and speed o --- the --- ederal intervention were unprecedented, but the underlying legal authority was conventional: Title VI o --- the Civil Rights Act o --- 1964, which conditions --- ederal --- unding on nondiscrimination. 42 U.S.C. § 2000d. 77 See Settlement Agreement, United States v. Columbia Univ. (S.D.N.Y. 2025); U.S. Dep’t o --- Educ., Termination o --- Columbia University Federal Grants and Contracts (2025). Columbia also agreed to a separate $21 million EEOC settlement --- or antisemitic discrimination. See EEOC Press Release, $21 Million Payout Process Begins --- or Columbia University Antisemitism Settlement (2025), https://www.eeoc.gov/newsroom/21-million-payout-process- begins-columbia-university-antisemitism-settlement-eeoc. 78 Settlement Agreement, United States v. Brown Univ. (D.R.I. 2025). 79 See sources cited supra notes 77-78. 80 President & Fellows o --- Harvard Coll., No. 1:25-cv-10807-ADB, slip op. (D. Mass. July 14, 2025) (Burroughs, J.). See supra note 13 and accompanying text. 2026-03-15] 19 smokescreen --- or 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 --- ailure that le --- t students exposed at Harvard in the --- irst place. Harvard won in court; the governance void persists on campus. B. The Economic Logic o --- Institutional Response Why did universities capitulate to policy demands while uni --- ormly avoiding governance re --- orm? University counsel understood that policy changes are reversible and monitoring is temporary, while governance re --- orm is permanent.81 From a risk-management perspective, accepting compliance obligations preserves institutional autonomy; accepting structural re --- orm surrenders it. This is a straight --- orward application o --- option value theory: preserving --- lexibility has value, and governance re --- orm eliminates --- lexibility. Policy compliance preserves the option to reverse course when political conditions change; governance re --- orm --- orecloses that option. The settlements thus represent a rational institutional choice: pay the --- ine, adopt the policy, preserve the structure. The problem is that this rational choice --- or the institution produces an irrational outcome --- or the students the institution claims to protect. The governance void that produced the conditions requiring --- ederal intervention remains intact, ready to produce the next crisis when political attention shi --- ts.82 C. The Persistence o --- Governance Failure The pattern documented at University o --- Cali --- ornia campuses con --- irms that governance --- ailure persists at institutions never targeted by the --- ederal campaign.83 UC campuses are public universities subject to state oversight by the Board o --- Regents. Yet --- aculty governance --- ailure at multiple campuses produced severe conditions o --- student exclusion, with antisemitic incidents rising as high as 3,000% during the 2023-2025 academic years at the three examined campuses. 84 The documented recommendation is telling: it calls on the Regents to bar academic departments --- rom using their UC association to promote boycotts and political agendas and to prohibit political activism in the classroom. 85 It calls, in other words, --- or governance re --- orm: --- or the board to exercise oversight authority over --- aculty governance bodies that organized --- actions have captured. The cycle is predictable and structurally inevitable: crisis emerges, --- ederal intervention --- ollows, universities comply on paper, political attention shi --- ts, compliance lapses, crisis re- 81 This analysis applies option value theory to institutional behavior. See generally Avinash K. Dixit & Robert S. Pindyck, Investment Under Uncertainty (1994) (developing the theory that preserving --- lexibility has value because it preserves the option to reverse course when conditions change). 82 The cycle is predictable: crisis emerges, --- ederal intervention --- ollows, universities comply on paper, political attention shi --- ts, compliance lapses, crisis re-emerges. The only way to break the cycle is to change the governance structure that produces the crisis in the --- irst place. 83 AMCHA Initiative, supra note 7. 84 Id. 85 Id. 20 Exclusive Inclusion emerges. No amount o --- --- ederal pressure or policy re --- orm can succeed when the governance architecture that produces exclusive inclusion remains unchanged. Policy compliance cannot succeed without governance re --- orm because it attempts to change outputs without changing the structure that produces those outputs. Even i --- an institution adopts per --- ect policies and implements them per --- ectly, the governance architecture remains unchanged. When leadership changes or political attention shi --- ts, the same governance structure that produced the original crisis remains in place, ready to produce the next crisis. Only structural re --- orm, changing the governance architecture itsel --- , can break this cycle. V. Toward Structural Re --- orm This Essay proposes three procedural re --- orms rather than 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. Each re --- orm targets a speci --- ic --- eature o --- the accountability void, and together they create overlapping accountability mechanisms that make exclusive inclusion structurally unlikely. A. Standing Re --- orm The most immediate structural need is to give a --- --- ected stakeholders a legal mechanism to challenge exclusive inclusion when it occurs. Under current law, only the state attorney general can en --- orce --- iduciary duties against nonpro --- it boards, and attorneys general almost never do so. Students, --- aculty, alumni, and donors are locked out. The result is that no court can e --- --- ectively review department-level exclusion campaigns or the selective en --- orcement o --- inclusion policies. Legislatures could expand standing by enacting statutes that permit stakeholders with sustained institutional ties, currently enrolled students and currently employed --- aculty, to bring derivative actions to en --- orce existing --- iduciary duties against nonpro --- it educational institution boards.86 The model is the corporate derivative action, adapted --- or the nonpro --- it context. Corporate derivative suits have not produced a --- lood o --- --- rivolous litigation; instead, the primary e --- --- ect has been deterrent, with boards exercising greater care knowing that shareholders can en --- orce duties.87 The Cali --- ornia Supreme Court’s decision in Turner v. Victoria supports expansion by recognizing that restricting standing to institutional insiders can itsel --- undermine en --- orcement and acknowledging legislative authority to create stakeholder en --- orcement mechanisms --- or charitable entities.88 86 The standing re --- orm would not create a new cause o --- action but would expand standing to en --- orce existing --- iduciary duties. The substantive obligations remain unchanged; what changes is who can en --- orce them. 87 See generally Frank H. Easterbrook & Daniel R. Fischel, The Economic Structure o --- Corporate Law 96-99 (1991) (analyzing deterrent e --- --- ects o --- derivative suit mechanisms and documenting that procedural sa --- eguards e --- --- ectively prevent --- rivolous litigation while permitting meritorious en --- orcement). 88 Turner v. Victoria, No. S271054 (Cal. Aug. 3, 2023). 2026-03-15] 21 Procedural sa --- eguards --- amiliar --- rom corporate practice would prevent harassment litigation. A demand requirement would require stakeholders to petition the board and wait ninety days --- or response be --- ore --- iling suit, giving the board an opportunity to address the problem through internal governance.89 Heightened pleading standards similar to Federal Rule o --- Civil Procedure 23.1 would require plainti --- --- s to plead speci --- ic --- acts, not mere conclusions, showing breach o --- --- iduciary duty and harm. A bond requirement, set by the court based on the institution’s likely costs, would deter --- rivolous litigation while permitting waiver --- or plainti --- --- s demonstrating --- inancial hardship. Fee-shi --- ting provisions would allow prevailing plainti --- --- s to recover attorney’s --- ees --- rom the institution while permitting prevailing de --- endants to recover only when the action is --- ound --- rivolous or brought in bad --- aith.90 Judicial review --- or abuse o --- discretion rather than de novo review would preserve appropriate de --- erence to board judgment while creating accountability --- or decisions that breach --- iduciary duties. The standing re --- orm creates accountability without dictating outcomes. It does not require universities to adopt any particular policy, hire any particular person, or admit any particular student. It requires only that governance decisions be made through processes that do not systematically exclude stakeholders on the basis o --- identity, and that a --- --- ected stakeholders have a mechanism to challenge decisions that do. Knowing that stakeholders can en --- orce --- iduciary duties, boards would be more care --- ul to ensure that governance structures do not produce systematic exclusion.91 B. Duty o --- Obedience Re --- orm State nonpro --- it law requires trustees to act within the institution’s stated mission, but when mission statements are vague enough to accommodate any conceivable decision, the duty o --- obedience becomes unen --- orceable. 92 Universities dra --- t mission statements that sound aspirational but provide no operational constraint. “To educate --- uture leaders” does not tell a court anything about whether a board has --- ailed its duty. The duty o --- obedience exists. The problem is the vagueness that renders it toothless. State legislatures could operationalize the duty o --- obedience by requiring mission statements o --- tax-exempt educational institutions to include speci --- ic, measurable commitments to equal treatment o --- all members regardless o --- religion, ethnicity, national origin, and other protected characteristics.93 Such speci --- icity would give courts and attorneys 89 C --- . Del. Code Ann. tit. 8, § 327 (demand requirement in corporate derivative suits); Fed. R. Civ. P. 23.1 (particularized pleading requirements --- or derivative actions). 90 These procedural sa --- eguards mirror those that have e --- --- ectively prevented a litigation --- lood in the corporate derivative suit context while maintaining meaning --- ul accountability --- or board decisions. See Easterbrook & Fischel, supra note 87. 91 The re --- orm would also generate in --- ormation about governance practices that is currently hidden, enabling external monitoring and reputational accountability even apart --- rom litigation outcomes. Derivative suits in the corporate context have been shown to produce deterrence value exceeding their direct en --- orcement e --- --- ects. 92 See Palmiter, supra note 68. 93 The speci --- icity requirement would not dictate substantive values but would require that whatever values the institution claims to hold be stated with su --- --- icient precision to permit en --- orcement. An institution that does not wish to commit to equal treatment across identity groups would be --- ree to say so explicitly, but could not claim such a commitment while maintaining governance structures that produce systematic exclusion. 22 Exclusive Inclusion general a standard against which to evaluate institutional deviation. An institution that does not wish to commit to equal treatment across identity groups would be --- ree to say so explicitly, but could not claim such a commitment while maintaining governance structures that produce systematic exclusion. The Robertson v. Princeton University litigation demonstrated the principle. The Robertson --- amily donated $35 million in 1961 to --- und the Woodrow Wilson School with emphasis on placing graduates in --- ederal government service. When the heirs alleged Princeton had diverted endowment to unrelated purposes, the six-year litigation, though settled be --- ore --- inal judgment, demonstrated that when a mission commitment is speci --- ic enough to be justiciable, courts can evaluate whether institutional conduct is consistent with the --- iduciary obligation. 94 The settlement required structural separation: dissolution o --- the Robertson Foundation and trans --- er o --- $50 million to an independent entity. The problem is not the duty’s existence but the vagueness that renders it unen --- orceable. Requiring particularity in mission dra --- ting, as a condition o --- state charitable registration or tax exemption, would give the duty operative content. The speci --- icity requirement would not dictate substantive values. It would require that whatever values the institution claims to hold be stated with su --- --- icient precision to permit en --- orcement. Mission speci --- icity makes the duty o --- obedience en --- orceable, and en --- orceability creates the accountability that the governance void currently lacks.95 C. Operational Test Re --- orm The IRS conditions 501(c)(3) tax exemption --- or educational institutions on satis --- action o --- the “operational test,” the requirement that the organization operate exclusively --- or exempt purposes.96 But the operational test --- or universities imposes no accountability requirement --- or governance structures that produce systematic identity-based exclusion. Universities --- ace no obligation comparable to the community bene --- it standard that nonpro --- it hospitals must satis --- y. The hospital community bene --- it standard provides a working model. Revenue Ruling 69- 545 conditions hospital tax exemption on promoting “the health o --- a broad class o --- individuals in the community served,” and the A --- --- ordable Care Act’s Section 501(r) requirements mandate triennial community health needs assessments, community input processes, and implementation strategies.97 In exchange --- or approximately $37.4 billion in tax exemptions, 94 Robertson v. Princeton Univ., No. C-99-02 (N.J. Super. Ct. 2008) (settled). The six-year litigation cost approximately $90 million in legal --- ees. The settlement required dissolution o --- the Robertson Foundation and trans --- er o --- $50 million to an independent Robertson Foundation --- or Government. See generally Rob Reich, Philanthropic Mission and Accountability, in Philanthropy in Democratic Societies 231 (Rob Reich, Chiara Cordelli & Lucy Bernholz eds., Univ. o --- Chi. Press 2016) (discussing the Robertson litigation and its implications --- or donor intent and mission speci --- icity). 95 Mission speci --- icity also serves the institution’s own interests by clari --- ying expectations --- or board members, providing a --- ramework --- or evaluating institutional decisions, and reducing the risk o --- costly litigation over vague or contested obligations. 96 I.R.C. § 501(c)(3) (2018); Treas. Reg. § 1.501(c)(3)-1(c) (2025). 97 Rev. Rul. 69-545, 1969-2 C.B. 117 (conditioning hospital tax exemption on promoting “the health o --- a broad class o --- individuals in the community served”); I.R.C. § 501(r) (requiring triennial community health needs 2026-03-15] 23 nonpro --- it hospitals must satis --- y concrete requirements --- or emergency care access, service to Medicaid patients, and community health programming. 98 Universities receive comparable public subsidies through tax exemptions, deductible donations, and --- ederal grants, but --- ace no comparable governance accountability requirement. The IRS could reinterpret the operational test to condition tax exemption --- or educational institutions on demonstrated equal access across identity groups and governance structures that prevent systematic exclusion.99 The IRS has statutory authority to interpret the operational test through regulations and revenue rulings, and the hospital community bene --- it standard was adopted through IRS rulemaking rather than congressional legislation, demonstrating the administrative authority to condition tax exemption on governance structures that serve the public interest.100 A re --- ormed 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. One constitutional concern warrants direct engagement. Conditioning tax exemption on governance requirements implicates the unconstitutional conditions doctrine, under which the government may not leverage a bene --- it to compel relinquishment o --- constitutional rights.101 But the proposed operational test targets governance structures, not viewpoint or speech. Content-neutral conditions on tax exemption have survived constitutional scrutiny when they address organizational conduct rather than expressive activity; the hospital community bene --- it standard conditions exemption on service delivery and governance processes without triggering First Amendment review. 102 Universities possess academic --- reedom claims that hospitals lack, but the proposed test does not regulate what universities teach, whom they admit based on intellectual criteria, or what positions --- aculty may hold. It requires only that governance architecture not produce systematic identity-based exclusion. Such a structural requirement is analogous to nondiscrimination conditions that already attach to --- ederal --- unding under Title VI, which condition public subsidy on institutional conduct without assessments, community input, and implementation strategies --- or nonpro --- it hospitals as a condition o --- tax exemption). 98 See Health A --- --- airs Brie --- , Nonpro --- it Hospitals: Community Bene --- it Requirements (noting approximately $37.4 billion in tax exemptions --- or nonpro --- it hospitals subject to community bene --- it requirements), https://www.healtha --- --- airs.org/content/brie --- s/nonpro --- it-hospitals-community-bene --- it-requirements. 99 The IRS has statutory authority to interpret the operational test through regulations and revenue rulings. I.R.C. § 7805(a). The hospital community bene --- it standard was adopted through IRS rulemaking, not congressional legislation, demonstrating the administrative authority to condition tax exemption on governance structures that serve the public interest. 100 See sources cited supra notes 97-98. 101 See Speiser v. Randall, 357 U.S. 513, 518-19 (1958) (establishing the unconstitutional conditions doctrine in the tax exemption context); see also Agency --- or Int’l Dev. v. All. --- or Open Soc’y Int’l, Inc., 570 U.S. 205, 214 (2013) (rea --- --- irming that the government “may not deny a bene --- it to a person on a basis that in --- ringes his constitutionally protected . . . --- reedom o --- speech” (quoting Perry v. Sindermann, 408 U.S. 593, 597 (1972))). 102 Revenue Ruling 69-545 conditions hospital tax exemption on community bene --- it without implicating hospital “speech.” See Rev. Rul. 69-545, 1969-2 C.B. 117. Nondiscrimination requirements that attach to --- ederal --- unding under Title VI provide a parallel model: they condition public subsidy on institutional conduct without regulating institutional expression. See 42 U.S.C. § 2000d (2018); c --- . Rums --- eld v. Forum --- or Acad. & Inst. Rights, Inc. (FAIR), 547 U.S. 47, 59-60 (2006) (holding that conditions on --- ederal --- unding requiring equal access --- or military recruiters did not violate universities’ First Amendment rights because they regulated conduct, not speech). 24 Exclusive Inclusion regulating institutional speech. Content-neutral governance requirements occupy di --- --- erent constitutional ground than viewpoint-based conditions on institutional expression. D. How the Three Re --- orms Work Together The three re --- orms are complementary and mutually rein --- orcing, each addressing a di --- --- erent dimension o --- the accountability void. Stakeholder standing creates a mechanism --- or en --- orcement but requires en --- orceable standards. Without mission speci --- icity, stakeholders would have standing but no clear standard to en --- orce. Mission speci --- icity creates en --- orceable standards but requires someone with standing to en --- orce them. Without stakeholder standing, mission speci --- icity would be unen --- orceable in practice. Operational test re --- orm creates external accountability through tax exemption conditions but requires internal accountability mechanisms to be e --- --- ective. Without stakeholder standing and mission speci --- icity, institutions could satis --- y the operational test on paper while continuing to produce systematic exclusion in practice.103 Together, the three re --- orms create overlapping accountability mechanisms: internal accountability through stakeholder en --- orcement, legal accountability through en --- orceable --- iduciary 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 i --- any single mechanism --- ails. E. Addressing Objections Three objections to these re --- orms deserve engagement. 1. The Litigation Flood Objection Critics may argue that stakeholder standing will produce a --- lood o --- --- rivolous litigation, overwhelming courts and institutions. Corporate derivative suit experience demonstrates otherwise. Despite decades o --- shareholder standing, derivative suits remain a small --- raction o --- --- ederal litigation, and the procedural sa --- eguards, demand requirements, heightened pleading, bond requirements, and --- ee-shi --- ting, e --- --- ectively deter --- rivolous claims while permitting meritorious ones. 104 Even i --- litigation increases, that increase would re --- lect currently unaddressed governance --- ailures, not --- rivolous claims. The primary e --- --- ect o --- standing is deterrent: boards will exercise greater care to prevent systematic exclusion knowing that 103 The complementary relationship among the three re --- orms ensures that no single point o --- --- ailure can de --- eat the accountability system. I --- stakeholder standing produces insu --- --- icient litigation, mission speci --- icity and the operational test provide alternative accountability mechanisms. I --- mission speci --- icity is undermined by vague interpretations, stakeholder standing and the operational test provide checks. I --- the operational test is weakened by administrative discretion, stakeholder standing and mission speci --- icity provide internal accountability. 104 See Easterbrook & Fischel, supra note 87, at 96-99; see also James D. Cox & Randall S. Thomas, Does the Plainti --- --- Matter? An Empirical Analysis o --- Lead Plainti --- --- s in Securities Class Actions, 106 Colum. L. Rev. 1587 (2006) ( --- inding that procedural sa --- eguards e --- --- ectively screen --- rivolous --- rom meritorious derivative and class actions). 2026-03-15] 25 stakeholders can en --- orce duties. I --- the prospect o --- accountability deters board service, that itsel --- suggests boards are not currently accountable. 2. The Institutional Autonomy Objection Critics may contend that these re --- orms inter --- ere with academic governance and institutional autonomy. Standing is limited to en --- orcement o --- --- iduciary duties, not academic decisions. Courts applying derivative suit standards de --- er to board decisions made in good --- aith under the business judgment rule. The re --- orms address governance --- ailures, systematic identity-based exclusion, not academic judgments about curriculum, hiring criteria, or admissions philosophy. Institutional autonomy is not absolute and has never meant immunity --- rom accountability; it must be balanced against the rights o --- the constituencies that institutions exist to serve.105 Framed properly, these re --- orms serve institutional interests: they reduce litigation risk --- rom --- ederal en --- orcement actions, improve institutional reputation, enhance mission --- ul --- illment, and strengthen institutional legitimacy. 3. The Structural Insu --- --- iciency Objection Some may argue that governance re --- orm is too slow to help students who need protection now. This objection re --- lects a --- alse choice. Federal en --- orcement and policy compliance should continue to address immediate crises, but they must be accompanied by governance re --- orm to prevent --- uture crises. The choice is not between immediate relie --- and long-term re --- orm but between temporary relie --- that requires constant renewal and permanent re --- orm that makes --- uture crises structurally unlikely.106 Federal coercion without governance re --- orm is a reprieve. Governance re --- orm is a reconstruction. VI. Conclusion The governance void in American higher education did not produce the conditions o --- exclusive inclusion by accident. It produced them by design: not the design o --- malicious individuals, but the design o --- legal architecture constructed without external accountability, maintained without stakeholder recourse, and justi --- ied by claims to pluralist mission that the same architecture makes impossible to en --- orce. Federal coercion addresses symptoms. Compliance addresses optics. Neither reaches the void. 105 See generally Iris J. Goodwin, Donor Standing to En --- orce Charitable Gi --- ts: Civil Society vs. Donor Empowerment, SSRN (2004) (analyzing the tension between institutional autonomy and stakeholder accountability in nonpro --- it governance); Dana Brakman Reiser, Director Independence in the Independent Sector, 76 Fordham L. Rev. 795 (2007) (discussing governance design limits in the nonpro --- it sector). 106 Federal en --- orcement and governance re --- orm are complements, not substitutes. Federal en --- orcement addresses immediate crises and signals that systematic exclusion is unacceptable. Governance re --- orm prevents --- uture crises by changing the structural conditions that produce them. Neither alone is su --- --- icient; both together can break the cycle. 26 Exclusive Inclusion Exclusive inclusion theory identi --- ies what existing --- rameworks o --- discrimination, organizational hypocrisy, and institutional isomorphism cannot explain: how institutions with genuine commitments to pluralism produce systematic exclusion through governance architecture alone. The mechanism operates across identity categories because the accountability void does not discriminate among the groups it leaves unprotected. The disentanglement matrix makes this structural character visible, separating individual expression --- rom institutional action and perspective-based disputes --- rom identity-based exclusion. Together, the concept and the diagnostic tool make exclusive inclusion cognizable and remediable. The accountability void diagnosed here is not unique to universities. Museums governed by sel --- -perpetuating boards, --- oundations with vague mission statements, and major nonpro --- it organizations whose governance combines public --- unction with private impunity share the structural conditions that make exclusive inclusion possible. I --- the --- ramework proves explanatory in higher education, where the accountability void is most visible and the evidence most developed, --- uture scholarship should test whether the same governance architecture produces comparable patterns across the nonpro --- it sector, and whether stakeholder standing, mission speci --- icity, and operational test re --- orm can be adapted to institutional environments where the stakes and stakeholders di --- --- er but the structural logic is the same. Three re --- orms target the three --- eatures o --- the void. Built on existing legal --- rameworks in corporate governance and hospital regulation, they create overlapping accountability mechanisms that make systematic exclusion structurally unlikely without imposing ideological requirements. They create procedural conditions under which institutional authority is harder to capture and, when captured, more likely to --- ace challenge. What the 2025 settlements purchased was a reprieve; but what university governance requires is a reconstruction o --- standing, o --- --- iduciary duty, o --- the relationship between public subsidy and institutional accountability. that rebinds institutional authority to the public purposes that justi --- y it. The task is not to reinvent American higher education. It is to make its governance mean what it claims.