Exclusive Inclusion {#exclusive-inclusion .Title}

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 self-perpetuating boards, unenforceable fiduciary duties, and the absence of stakeholder standing create an accountability void that organized factions exploit to exclude disfavored identity groups. The mechanism is architectural, not attitudinal, and operates across identity categories: Women of Color in STEM, Black students at liberal arts colleges, conservative faculty, Jewish students, and students with disabilities all face exclusion through the same governance failures. Drawing on organizational theory and the author’s prior work on “sovereign charities,” this Essay offers a diagnostic tool, the disentanglement matrix, to separate protected individual expression from institutional identity-based exclusion. Three structural reforms follow: stakeholder standing modeled on corporate derivative suits, enforceable mission specificity, and an operational test for tax exemption adapted from hospital community benefit standards. Because exclusive inclusion is structural, governance reform benefits every affected constituency.

Introduction

American universities produce systematic identity-based exclusion through governance architecture, not despite their commitments to pluralism but because of governance structures that make those commitments unenforceable. 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 self-perpetuating boards, hollow fiduciary duties, and the absence of stakeholder standing create an accountability void that organized factions can exploit. The phenomenon is not specific to any single identity group. The same governance architecture that enabled the systematic exclusion of Jewish students after October 7, 2023 has enabled the exclusion of Women of Color from STEM departments with formal gender equity programs, of Black students from liberal arts colleges with explicit DEI commitments, and of conservative faculty from universities claiming intellectual diversity.² Governance reform that addresses the accountability void would benefit all affected constituencies, because the void is the disease and the exclusion is the symptom.

What happened on campuses after October 7, 2023 forced an unusually honest set of admissions. University presidents told Congress they could not guarantee the safety of Jewish students.³ Federal officials launched Title VI investigations into more than sixty institutions.⁴ Federal enforcement actions extracted nine-figure settlements from universities that had, months earlier, claimed to embody the values of inclusion and open inquiry.⁵ National surveys confirmed what affected students already knew: 57.3% of Jewish students reported direct experiences of antisemitism, 63.4% reported bystander exposure, and most lacked confidence that their universities would respond.⁶ Those findings documented not a cultural failing but a governance indictment. The crisis was real, and the acknowledgments were welcome. But they were incomplete, because they identified the symptom without diagnosing the disease.

The disease is structural. Encampments, exclusion zones, faculty boycotts, and the systematic intimidation of Jewish students are not governance anomalies. They are governance outputs: predictable products of institutional architecture that creates an accountability void at the center of university decision-making. At multiple University of California campuses, departmental units used delegated authority to advance coordinated campaigns that fueled exclusion and intimidation of particular student groups, and the Board of 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 failure runs through the entire institutional architecture: boards answerable to no one, fiduciary duties with no enforcement mechanism, mission statements too vague to constrain, and no stakeholder standing to challenge any of it.

Campus antisemitism, however visible, is one manifestation of a broader structural pattern. Computer science departments at four public universities with formal gender equity programs systematically excluded Women of Color through race-avoidant governance processes that prioritized gender while erasing race.⁹ At a predominantly White liberal arts college with explicit DEI commitments, a facially neutral behavioral policy produced systematic racial inequality through differential enforcement: Black students faced higher stakes for violations, reduced access to informal rule-breaking, and intensified surveillance.¹⁰ Faculty hiring in many departments operates through informal culture and committee discretion that effectively screens out conservative and libertarian candidates, substituting ideological conformity for open intellectual inquiry.¹¹ In each case, formal institutional commitments to pluralism coexist with governance structures that predictably produce systematic exclusion of particular identity groups. The governance architecture that enables systematic exclusion affects multiple identity groups because the architecture does not discriminate; it simply fails to constrain.

Two dominant policy responses have emerged: federal coercion and institutional compliance. Neither has worked. Between April and November 2025, the Trump administration froze billions in federal funding and conditioned restoration on sweeping changes to governance, speech policy, and admissions.¹² Universities capitulated at speed. Harvard won a judicial victory declaring the funding freeze unconstitutional, with the court finding that the administration “used antisemitism as a smokescreen for 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 definitions, appoint liaisons, and conduct climate surveys.¹⁴ Not one settlement required governance reform. Not one mandated changes to board composition or selection procedures. Not one created stakeholder standing for students to challenge department-level exclusion. The settlements treated exclusive inclusion as a compliance deficit curable by policy adoption. The structural conditions producing exclusion remain unchanged.¹⁵

In a companion article, I develop the concept of 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 specific governance output: the production of systematic identity-based exclusion by institutions whose stated commitments run in precisely the opposite direction. Existing theories of discrimination focus on individual prejudice or disparate impact; theories of organizational hypocrisy address gaps between formal policy and actual practice; institutional isomorphism explains why organizations adopt similar structures. None explains how institutions with genuine pluralist commitments, staffed by individuals who sincerely support those commitments, produce systematic exclusion as a structural output. Exclusive inclusion theory fills that gap by identifying governance architecture as the causal mechanism.¹⁷

This Essay proceeds as follows. Part I defines exclusive inclusion as a structural condition, documents its operation across five 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” framework and its three architectural features: the self-perpetuating board, the hollow duty of obedience, and the absence of stakeholder standing. Part III examines the 2025 federal interventions as a case study in whether coercion can substitute for governance reform, and concludes it cannot. Part IV proposes three structural reforms, stakeholder standing, mission specificity, and operational test reform, that target each feature of the accountability void, explains how the reforms work as an integrated system, and addresses the strongest objections.

Exclusive Inclusion as a Structural Condition

Exclusive inclusion is not an accident of bad actors or unfortunate timing. It is the predictable output of governance architecture. This Part defines the concept, distinguishes it from related theories of organizational failure, documents its operation across five identity categories, and offers the disentanglement matrix as a diagnostic tool.

Defining the Concept

Stokely Carmichael and Charles V. Hamilton introduced the concept of structural discrimination into American political thought in 1967 by distinguishing between individual prejudice and the “established and respected forces in the society” that generate inequality without requiring any individual to harbor hostility.¹⁸ The breakthrough was analytical: by shifting focus from 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 of organizational theory converge to identify the conditions under which exclusive inclusion occurs. Mark Suchman’s foundational 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 of nonprofit governance identifies 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 affected parties from decision-making processes tend to produce outcomes serving insiders at the expense of outsiders.²¹ Together, these frameworks identify 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 fail to protect certain members from identity-based exclusion, while protecting other members from comparable harms, because of structural features of the organization rather than the prejudice of any individual decision-maker. The failure is predictable from the governance architecture: where self-perpetuating boards eliminate electoral accountability, unenforceable fiduciary duties eliminate legal accountability, and the absence of stakeholder standing eliminates affected-party accountability, the resulting void makes systematic exclusion structurally likely and, when it occurs, structurally difficult to remedy.

Four elements warrant emphasis, and a fifth clarification is necessary.

Predictability

Exclusive inclusion follows from features of institutional design, not from bad luck or unusually bad actors. When a university’s board is self-perpetuating, its mission is vague, its fiduciary duties are unenforceable, and no stakeholder has standing to challenge governance decisions, the institution is structurally vulnerable to capture by whichever faction is most organized.²² The capturing faction need not be hostile in the conventional sense. It needs only to be indifferent to the exclusion of a particular group, or willing to tolerate it as an acceptable cost of pursuing other goals. Indifference, in a governance void, is sufficient. The existence of antisemitism “hotspots” on some campuses but not others confirms the structural diagnosis: institutions with similar formal commitments to pluralism produce dramatically different outcomes for Jewish students depending on their governance architecture.²³ This variation is inconsistent with explanations attributing campus antisemitism primarily to external political forces or generational attitudes, and consistent with the hypothesis that governance structures determine whether institutions can prevent or remedy identity-based exclusion.

Asymmetry

Exclusive inclusion involves what I have elsewhere called “inclusion asymmetry”: the selective application of institutional protection such that some groups receive robust support while others are left procedurally exposed.²⁴ Universities maintain offices, programs, and enforcement 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 of one group as a civil rights matter and identical exclusion of 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 enforcement and which are reframed as political disagreements falling outside the scope of university civil rights infrastructure.

Mechanism

Exclusive inclusion operates through a two-step process. First, the absence of external accountability (no stakeholder standing), internal accountability (unenforceable fiduciary duties), and electoral accountability (self-perpetuating boards) creates an opportunity for organized factions to capture governance structures. Capture occurs when a faction gains control over decision-making in a particular domain, a DEI committee, a hiring committee, a student conduct office, without effective oversight or constraint.²⁶ Second, once a faction captures governance, it can implement policies that systematically exclude identity groups the faction disfavors while claiming to advance the institution’s formal commitments. The governance architecture cannot distinguish legitimate policy implementation from identity-based exclusion because there is no mechanism for affected parties to challenge decisions, no enforceable standard against which to measure decisions, and no external body with authority to review decisions. Each individual decision may appear defensible in isolation, but the aggregate effect is systematic exclusion that no single actor can be held accountable for producing.²⁷

Systematicity

Exclusive inclusion produces systematic exclusion, meaning it is not sporadic or isolated but patterned, persistent, and predictable from the governance architecture. Systematic exclusion affects multiple individuals within an identity group, persists over time despite complaints or policy changes, follows predictable patterns, survives leadership changes, and coexists with formal institutional commitments to inclusion.²⁸ Sporadic exclusion, by contrast, involves isolated incidents addressed through existing mechanisms, does not follow 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 reform.

Relationship to Cultural Factors

The governance analysis does not require determining whether individual actors harbor cultural animus, ideological commitments, or simple indifference. Many participants in the documented cases believed they were advancing legitimate institutional goals or expressing defensible political views. Whether they harbored hostility, ideological commitment, or indifference toward particular groups, the governance structure enabled systematic exclusion and afforded the excluded group no recourse.²⁹ Cultural factors may contribute to campus climates and individual incidents, but the governance thesis is additive, not substitutive: structural features are sufficient to produce systematic exclusion even where cultural factors are ambiguous, contested, or absent, and structural reform is necessary regardless of cultural context.³⁰

Distinguishing Exclusive Inclusion from Related Concepts

Exclusive inclusion theory differs from four related frameworks, and the distinctions carry practical implications for reform.

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 identifies facially neutral policies that produce discriminatory effects, exclusive inclusion involves formal commitments to inclusion that governance architecture fails to enforce. The problem is not a neutral policy with discriminatory effects but an affirmative 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 of policies that leadership has no intention of enforcing. The problem is structural inability to enforce, not unwillingness. Many university leaders genuinely want to fulfill their pluralist commitments but lack governance mechanisms to prevent factional capture of 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 fail to produce their stated objectives. Isomorphism explains why every university has a DEI office; exclusive inclusion explains why those offices cannot prevent systematic exclusion.³³

The practical implication is that reforms 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 reform, changing the accountability void itself, can make exclusive inclusion less likely.

The Pattern Across Identity Groups

Scholars have not applied Carmichael and Hamilton’s analytical shift 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 different constituencies.

Jewish Students After October 7

Survey research documents that Jewish university members experienced sharp increases in exposure to hate and significant declines in daily comfort immediately following October 7, 2023.³⁴ The speed and scale of 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 from predictable consequences of a major geopolitical event, revealing accountability voids that existed before October 7 but became visible only when tested.

Faculty for Justice in Palestine chapters that emerged after October 7 used departmental authority over hiring, curriculum, and programming to advance anti-normalization campaigns requiring institutional severance of 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 four residential college provosts.³⁶ When Jewish colleagues objected, defenders cast their response as individual political expression. But the act was institutional: departments deployed resources through official channels with the imprimatur of faculty governance. The operation was identity-based: the policy excluded Israeli scholars by nationality and Jewish scholars by their affiliations, regardless of any individual’s views on any contested question.

Women of Color in STEM Departments

At four public universities recognized as leaders in DEI efforts for 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 specific governance mechanism: institutional DEI roles and departmental governance that narrowly define diversity operate as structural filters, protecting formal gender equity language while excluding Women of Color.³⁸ Recent scholarship on diversity initiatives provides a theoretical framework: formal 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 of DEI implementations across higher education institutions confirm that these failures are systematic rather than isolated, consistently disadvantaging the same constituencies while benefiting others.⁴⁰

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 differential enforcement.⁴¹ Black students faced higher stakes for violations, reduced access to informal rule-breaking, and intensified surveillance: outcomes produced by institutional characteristics and governance priorities rather than individual prejudice.⁴² Comparative analysis of university board minutes at two institutions reveals that governing boards reasoning from reputational and institutional-interest frames structurally foreclose equitable remedies for students of color, making formal 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 fail to extend accountability to the departmental level enable exclusion despite formal institutional commitments.⁴⁴

Conservative and Libertarian Faculty

Empirical research on legal academia documents significant underrepresentation of conservative and libertarian scholars and identifies selection processes consistent with ideological bias in hiring.⁴⁵ The study tests multiple hypotheses, including self-selection, differential qualification, and discrimination, and finds evidence supporting the discrimination hypothesis: hiring committees systematically screen candidates based on ideological orientation. Departments’ emphasis on “fit” and networked recommendation channels functions as a structural gatekeeping device that substitutes ideological conformity for open intellectual inquiry.⁴⁶

Survey evidence from social and personality psychology confirms that evaluative gatekeepers report willingness to penalize openly conservative colleagues in peer review and hiring, with only 6% of social and personality psychologists identifying as conservative.⁴⁷ A nationwide faculty survey documents pervasive self-censorship among politically minority faculty: 35% reported toning down written work from fear of controversy, compared to 9% during McCarthyism, and 47% of conservative faculty self-censor compared to 19% of liberal faculty.⁴⁸ Where institutions apply policies vaguely or selectively, minority-view faculty disproportionately report fear of retaliation, demonstrating that governance structures, not only culture, produce predictable chilling effects.

Students with Disabilities

Legal compliance officers and paper policies cannot by themselves ensure inclusion for students with disabilities. When operational units retain discretion and administrators enforce rules weakly, ADA-era commitments become procedural shells that systematically exclude students with disabilities, illustrating how principal-agent breakdowns convert formal legal obligations into hollow governance structures.⁴⁹ Accommodation systems that centralize medical verification and grant discretionary power to procedural adjudicators create durable exclusionary bottlenecks, transforming legal entitlements into contingent privileges.⁵⁰ Students with disabilities face systematic exclusion not through individual prejudice but through governance architecture that makes accommodation a discretionary benefit rather than an enforceable right.

The Common Structural Pattern

The pattern is consistent across all five cases. Formal institutional commitments to inclusion coexist with governance structures, captured DEI infrastructure, selective enforcement, procedural gatekeeping, informal hiring screens, and board reputational priorities, that predictably produce systematic exclusion of particular identity groups. This cross-identity pattern is theoretically significant because it confirms that the mechanism is structural, not cultural: if the problem were cultural hostility toward a particular group, we would not expect the same governance failures to affect Jewish students, Women of Color, Black students, conservative faculty, and students with disabilities simultaneously. The pattern is also practically significant because it means governance reform benefits all affected constituencies. Fixing the structure is not a zero-sum conflict among identity groups. It is a shared governance problem with a shared structural solution.

The Disentanglement Matrix

If exclusive inclusion is a governance phenomenon rather than an aggregation of individual acts, practitioners and policymakers need a tool for identifying it. University controversies involving speech, identity, and institutional authority do not arrive pre-sorted. Academic freedom claims, political expression claims, and civil rights claims all run together, and the actors deploying each set of claims have strong incentives to frame their conduct in the most protected available category. Practitioners need a framework that cuts through the framing to the underlying structure of the act.

The disentanglement matrix sorts these cases along two axes.⁵¹ The first asks who is acting: an individual exercising personal judgment, or an institution deploying organizational authority, resources, or official channels. The second asks what is targeted: a perspective (a political viewpoint, policy position, or ideological commitment) or an identity (a people, ethnicity, national origin, or religious group).

                        **Perspective-Based**   **Identity-Based**

Individual Actor Protected Expression Personal Discrimination

Institutional Actor Governance Question Exclusive Inclusion

————————- ———————– ————————-

. The Disentanglement Matrix.

Top-Left: Individual/Perspective = Protected Expression. A professor who declines to collaborate with a colleague over a disagreement about foreign policy exercises academic freedom. A student who refuses to join a study group because of its political positions makes a personal choice. These acts may be distasteful. No governance reform reaches them.

Top-Right: Individual/Identity = Personal Discrimination. A professor who refuses to supervise any student identifying with a particular religious or ethnic group engages in personal discrimination, already prohibited by Title VI.⁵² The problem in this quadrant is enforcement capacity, not definitional clarity.

Bottom-Left: Institutional/Perspective = Governance Question. When a university divests from particular investments through proper board channels, or when a faculty senate passes a resolution criticizing a foreign government’s policy, the action deploys institutional authority in service of a political perspective.⁵³ Whether universities should take such positions is contested. The Kalven Committee’s 1967 report provides the foundational articulation of institutional neutrality: a university should not, “as an institution, in the name of the university, take collective action on the issues of 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. Defenders of exclusive inclusion invoke Kalven in reverse, claiming that the university should remain neutral about exclusion when in fact the institution has already abandoned neutrality by permitting its governance structures to serve identity-based purposes. The matrix exposes this inversion by forcing the threshold question of whether institutional authority has been deployed, and if 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 affiliation; when a university’s civil rights infrastructure extends resources to every marginalized group except one; when campus facilities become exclusion zones from which certain students are physically barred, the institution deploys its authority against an identity group.⁵⁵ The governance void makes this possible. Governance reform is the remedy.

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

The academic boycott illustrates the retreat concretely. Faculty for Justice in Palestine chapters used departmental authority over hiring, curriculum, and programming to advance anti-normalization campaigns requiring institutional severance of ties with Israeli universities. When Jewish colleagues objected, defenders cast the response in top-left terms: the department was merely expressing the political views of its members through shared governance. But the act sat in the bottom-right quadrant. The act was institutional: the department deployed its resources through official channels with the imprimatur of faculty governance. The operation was identity-based: the policy excluded Israeli scholars by nationality and Jewish scholars by their affiliations, regardless of any individual’s views on any contested question. The boycott resolution did not ask whether a particular collaborator supported any specific policy. It excluded categorically. Institutional means accomplished identity-based targeting, and the academic freedom of individual professors, however robust, does not shelter institutional discrimination.⁵⁶

The matrix makes the retreat visible. It forces the threshold question: did the institution take this act through institutional channels, using institutional authority and resources? If so, it is institutional action, and the academic-freedom defense belongs to individual faculty members, not to the department.⁵⁷ A department cannot hide behind the professor’s First Amendment rights any more than a corporation can hide behind an employee’s right to speak. Institutional action has its own accountability framework, one that under current law has no enforcement mechanism. That is the governance void the matrix is designed to expose.

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 of various governments’ policies without harboring animus toward people of particular nationalities or religions, and this Essay does not contest that. The matrix does not ask about belief. It asks about operational effect.⁵⁸ The operational test is disproportionate impact, not perfect sorting. When an institutional boycott of universities in a particular country excludes 90% of nationals from that country, the identity-based character predominates. Courts applying Title VI use similar reasoning when assessing facially neutral policies with disparate impact.⁵⁹

Second-Order Diversity and Institutional Design

The disentanglement matrix identifies exclusive inclusion at the point of 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 fills that gap. Gerken demonstrates that disaggregated institutional design, multiple departments, committees, or governance units, can institutionalize exclusion through aggregation rules, control-influence tradeoffs, and cycling effects that concentrate protection for 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 framework 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 reasonable in isolation but aggregate to produce systematic exclusion of 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 for the pattern.⁶² This is the governance mechanism that the disentanglement matrix exposes and that the reforms proposed in Part IV are designed to address. Exclusive inclusion operates through the interaction of institutional disaggregation and accountability voids. The solution requires both transparency about who is acting (the matrix) and structural reform to create accountability (the reforms).

The Governance Void

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

The Sovereign Charity Framework

Elite private universities are what I term “sovereign charities”: institutions that wield public influence, receive public subsidy, and perform public functions, 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 nonprofit corporations whose boards select their own successors, define their own missions, and interpret their own compliance with those missions, while receiving billions in federal grants, tax exemptions, and student financial aid. The tension between public function and private impunity is structural, and three architectural features contribute directly to the production of exclusive inclusion.⁶⁴

The Self-Perpetuating Board

Every colonial-era university charter, and most modern ones, vests ultimate governance authority in a board of trustees that selects its own members.⁶⁵ Harvard’s Corporation has governed by internal appointment since 1650. Yale’s trustees elect their own replacements. At most elite private universities, faculty, students, alumni, and the public have no binding role in governance. They may advise; they do not decide. An institution so structured can absorb and ignore external criticism indefinitely, because the people with authority to respond are the people with authority to do nothing.⁶⁶ Reputational pressure can influence board behavior, but no formal mechanism translates that pressure into compelled action. A board can listen or ignore as it chooses.

The Hollow Duty of Obedience

Nonprofit law nominally requires trustees to act within the institution’s stated mission: the “duty of obedience” is supposed to constrain mission drift.⁶⁷ But when trustees write the mission statement themselves, and when the statement is vague enough to accommodate any conceivable set of decisions, the constraint is formal rather than operative. Harvard’s mission, “to educate future leaders” and “strive toward a more just, fair, and promising world,” does not describe a standard capable of judicial enforcement. Courts defer to trustees’ own interpretations under the business judgment rule, and state attorneys general rarely allocate resources to challenge even flagrant mission inconsistency. The vagueness is not accidental: boards draft mission statements to preserve maximum flexibility and avoid judicial review. Alan Palmiter has described the duty of obedience as the “forgotten fiduciary obligation,” a duty with a long-standing history that modern nonprofit practice has rendered toothless.⁶⁸

The Absence of Stakeholder Standing

In a for-profit corporation, shareholders can bring derivative suits to discipline the board. In a nonprofit university, no comparable mechanism exists. Students, faculty, alumni, and donors generally lack standing to challenge governance decisions.⁶⁹ The state attorney general is the nominal enforcer, 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 enforce charitable obligations reflects an era when charities were small and local. Applied to institutions with billion-dollar endowments and tens of thousands of students, the rule produces structural impunity: power exercised without meaningful accountability.

Limited exceptions exist but do not fill the void. Some states permit relator actions by private parties on behalf of 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 enforce restrictions on a charitable gift.⁷¹ The California Supreme Court’s decision in Turner v. Victoria bolstered whistleblower protections by holding that a nonprofit director who loses her board position after filing suit retains standing to maintain the action.⁷² Minnesota permits groups of voting members to bring actions for equitable relief.⁷³ But none of these mechanisms provides standing for the constituencies most directly affected by exclusive inclusion: students and faculty experiencing systematic identity-based exclusion.

The Governance Void as Immunodeficiency

These three features, the self-perpetuating board, the hollow duty, and the standing bar, constitute the governance void. The void is the structural precondition for exclusive inclusion.⁷⁴ It does not generate exclusion the way a cause generates an effect. It generates the conditions under which organized factions can produce exclusion and then resist removal, much as an immunodeficiency does not cause infection but eliminates the body’s capacity to respond.

The analogy is precise. A healthy immune system does not prevent the introduction of pathogens. It provides mechanisms to identify and neutralize them before they cause systemic damage. An immunocompromised patient faces the same pathogen exposure as a healthy person but lacks the capacity to mount an effective response. Similarly, a healthy governance system does not prevent the emergence of factional interests. It provides mechanisms, stakeholder voice, board accountability, enforceable mission commitments, to ensure that factional interests cannot capture institutional authority to the systematic detriment of particular groups.⁷⁵ When those mechanisms are absent, organized factions can deploy institutional resources, official channels, and delegated authority to produce identity-based exclusion, and the institution has no capacity to respond.

When the immune system fails, bombarding the patient with external treatments addresses the presenting symptoms while leaving the underlying vulnerability intact. The 2025 federal interventions demonstrate this dynamic in real time.

Federal Coercion and Its Structural Limits

The 2025 federal campaign against university governance failures tested whether coercion can substitute for governance reform. It cannot. Federal intervention and policy compliance failed 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 failure was structurally inevitable clarifies the case for the reforms proposed in Part IV.

The Federal Intervention and Its Limits

The Trump administration’s 2025 campaign against university governance failures was, as an exercise of federal power, unprecedented. The administration froze billions in research funding across dozens of institutions. Federal officials opened Title VI investigations against more than sixty universities.⁷⁶ The administration imposed conditions on restoration of funds ranging from governance changes to admissions data to definitional mandates. Columbia University agreed to approximately $200 million in settlements and saw $400 million in federal 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 definitions of antisemitism, appoint student liaisons, conduct campus climate surveys, and submit demographic data.⁷⁹ One settlement after another addressed the visible surface of the problem while leaving its infrastructure untouched. Notice what none of these settlements required: governance reform. No settlement mandated changes to board composition or selection procedures. None created stakeholder standing for students or faculty to challenge department-level exclusions. None strengthened the fiduciary duty of obedience or required mission statements specific enough to constrain future board discretion. The settlements treated exclusive inclusion as a compliance deficit curable by policy adoption. Only structural reform can cure it.

Harvard’s case is instructive from the opposite direction. A federal district court found that the funding freeze violated the First Amendment and failed the requirements of the Administrative Procedure Act.⁸⁰ Judge Allison Burroughs concluded that none of the government’s grant termination letters specified how Harvard had failed to respond to antisemitism in violation of Title VI, and that the administration had “used antisemitism as a smokescreen for a targeted, ideologically-motivated assault on this country’s premier universities.” The ruling was correct on the administrative law. But it does nothing to address the governance failure that left students exposed at Harvard in the first place. Harvard won in court; the governance void persists on campus.

The Economic Logic of Institutional Response

Why did universities capitulate to policy demands while uniformly avoiding governance reform? University counsel understood that policy changes are reversible and monitoring is temporary, while governance reform is permanent.⁸¹ From a risk-management perspective, accepting compliance obligations preserves institutional autonomy; accepting structural reform surrenders it. This is a straightforward application of option value theory: preserving flexibility has value, and governance reform eliminates flexibility. Policy compliance preserves the option to reverse course when political conditions change; governance reform forecloses that option.

The settlements thus represent a rational institutional choice: pay the fine, adopt the policy, preserve the structure. The problem is that this rational choice for the institution produces an irrational outcome for the students the institution claims to protect. The governance void that produced the conditions requiring federal intervention remains intact, ready to produce the next crisis when political attention shifts.⁸²

The Persistence of Governance Failure

The pattern documented at University of California campuses confirms that governance failure persists at institutions never targeted by the federal campaign.⁸³ UC campuses are public universities subject to state oversight by the Board of Regents. Yet faculty governance failure at multiple campuses produced severe conditions of 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 from using their UC association to promote boycotts and political agendas and to prohibit political activism in the classroom.⁸⁵ It calls, in other words, for governance reform: for the board to exercise oversight authority over faculty governance bodies that organized factions have captured.

The cycle is predictable and structurally inevitable: crisis emerges, federal intervention follows, universities comply on paper, political attention shifts, compliance lapses, crisis re-emerges. No amount of federal pressure or policy reform can succeed when the governance architecture that produces exclusive inclusion remains unchanged. Policy compliance cannot succeed without governance reform because it attempts to change outputs without changing the structure that produces those outputs. Even if an institution adopts perfect policies and implements them perfectly, the governance architecture remains unchanged. When leadership changes or political attention shifts, the same governance structure that produced the original crisis remains in place, ready to produce the next crisis. Only structural reform, changing the governance architecture itself, can break this cycle.

Toward Structural Reform

This Essay proposes three procedural reforms 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 reform targets a specific feature of the accountability void, and together they create overlapping accountability mechanisms that make exclusive inclusion structurally unlikely.

Standing Reform

The most immediate structural need is to give affected stakeholders a legal mechanism to challenge exclusive inclusion when it occurs. Under current law, only the state attorney general can enforce fiduciary duties against nonprofit boards, and attorneys general almost never do so. Students, faculty, alumni, and donors are locked out. The result is that no court can effectively review department-level exclusion campaigns or the selective enforcement of inclusion policies.

Legislatures could expand standing by enacting statutes that permit stakeholders with sustained institutional ties, currently enrolled students and currently employed faculty, to bring derivative actions to enforce existing fiduciary duties against nonprofit educational institution boards.⁸⁶ The model is the corporate derivative action, adapted for the nonprofit context. Corporate derivative suits have not produced a flood of frivolous litigation; instead, the primary effect has been deterrent, with boards exercising greater care knowing that shareholders can enforce duties.⁸⁷ The California Supreme Court’s decision in Turner v. Victoria supports expansion by recognizing that restricting standing to institutional insiders can itself undermine enforcement and acknowledging legislative authority to create stakeholder enforcement mechanisms for charitable entities.⁸⁸

Procedural safeguards familiar from corporate practice would prevent harassment litigation. A demand requirement would require stakeholders to petition the board and wait ninety days for response before filing suit, giving the board an opportunity to address the problem through internal governance.⁸⁹ Heightened pleading standards similar to Federal Rule of Civil Procedure 23.1 would require plaintiffs to plead specific facts, not mere conclusions, showing breach of fiduciary duty and harm. A bond requirement, set by the court based on the institution’s likely costs, would deter frivolous litigation while permitting waiver for plaintiffs demonstrating financial hardship. Fee-shifting provisions would allow prevailing plaintiffs to recover attorney’s fees from the institution while permitting prevailing defendants to recover only when the action is found frivolous or brought in bad faith.⁹⁰ Judicial review for abuse of discretion rather than de novo review would preserve appropriate deference to board judgment while creating accountability for decisions that breach fiduciary duties.

The standing reform 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 of identity, and that affected stakeholders have a mechanism to challenge decisions that do. Knowing that stakeholders can enforce fiduciary duties, boards would be more careful to ensure that governance structures do not produce systematic exclusion.⁹¹

Duty of Obedience Reform

State nonprofit 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 of obedience becomes unenforceable.⁹² Universities draft mission statements that sound aspirational but provide no operational constraint. “To educate future leaders” does not tell a court anything about whether a board has failed its duty. The duty of obedience exists. The problem is the vagueness that renders it toothless.

State legislatures could operationalize the duty of obedience by requiring mission statements of tax-exempt educational institutions to include specific, measurable commitments to equal treatment of all members regardless of religion, ethnicity, national origin, and other protected characteristics.⁹³ Such specificity would give courts and attorneys 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 free 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 family donated $35 million in 1961 to fund the Woodrow Wilson School with emphasis on placing graduates in federal government service. When the heirs alleged Princeton had diverted endowment to unrelated purposes, the six-year litigation, though settled before final judgment, demonstrated that when a mission commitment is specific enough to be justiciable, courts can evaluate whether institutional conduct is consistent with the fiduciary obligation.⁹⁴ The settlement required structural separation: dissolution of the Robertson Foundation and transfer of $50 million to an independent entity. The problem is not the duty’s existence but the vagueness that renders it unenforceable. Requiring particularity in mission drafting, as a condition of state charitable registration or tax exemption, would give the duty operative content.

The specificity requirement would not dictate substantive values. It would require that whatever values the institution claims to hold be stated with sufficient precision to permit enforcement. Mission specificity makes the duty of obedience enforceable, and enforceability creates the accountability that the governance void currently lacks.⁹⁵

Operational Test Reform

The IRS conditions 501(c)(3) tax exemption for educational institutions on satisfaction of the “operational test,” the requirement that the organization operate exclusively for exempt purposes.⁹⁶ But the operational test for universities imposes no accountability requirement for governance structures that produce systematic identity-based exclusion. Universities face no obligation comparable to the community benefit standard that nonprofit hospitals must satisfy.

The hospital community benefit standard provides a working model. Revenue Ruling 69-545 conditions hospital tax exemption on promoting “the health of a broad class of individuals in the community served,” and the Affordable Care Act’s Section 501(r) requirements mandate triennial community health needs assessments, community input processes, and implementation strategies.⁹⁷ In exchange for approximately $37.4 billion in tax exemptions, nonprofit hospitals must satisfy concrete requirements for emergency care access, service to Medicaid patients, and community health programming.⁹⁸ Universities receive comparable public subsidies through tax exemptions, deductible donations, and federal grants, but face no comparable governance accountability requirement.

The IRS could reinterpret the operational test to condition tax exemption for 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 benefit 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 reformed operational test would condition public subsidy on governance structures that do not produce systematic identity-based exclusion. It would not mandate any particular viewpoint. It would require that the institution’s governance architecture make exclusive inclusion structurally unlikely.

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 benefit to compel relinquishment of 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 benefit standard conditions exemption on service delivery and governance processes without triggering First Amendment review.¹⁰² Universities possess academic freedom claims that hospitals lack, but the proposed test does not regulate what universities teach, whom they admit based on intellectual criteria, or what positions faculty 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 federal funding under Title VI, which condition public subsidy on institutional conduct without regulating institutional speech. Content-neutral governance requirements occupy different constitutional ground than viewpoint-based conditions on institutional expression.

How the Three Reforms Work Together

The three reforms are complementary and mutually reinforcing, each addressing a different dimension of the accountability void.

Stakeholder standing creates a mechanism for enforcement but requires enforceable standards. Without mission specificity, stakeholders would have standing but no clear standard to enforce. Mission specificity creates enforceable standards but requires someone with standing to enforce them. Without stakeholder standing, mission specificity would be unenforceable in practice. Operational test reform creates external accountability through tax exemption conditions but requires internal accountability mechanisms to be effective. Without stakeholder standing and mission specificity, institutions could satisfy the operational test on paper while continuing to produce systematic exclusion in practice.¹⁰³

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

Addressing Objections

Three objections to these reforms deserve engagement.

The Litigation Flood Objection

Critics may argue that stakeholder standing will produce a flood of frivolous litigation, overwhelming courts and institutions. Corporate derivative suit experience demonstrates otherwise. Despite decades of shareholder standing, derivative suits remain a small fraction of federal litigation, and the procedural safeguards, demand requirements, heightened pleading, bond requirements, and fee-shifting, effectively deter frivolous claims while permitting meritorious ones.¹⁰⁴ Even if litigation increases, that increase would reflect currently unaddressed governance failures, not frivolous claims. The primary effect of standing is deterrent: boards will exercise greater care to prevent systematic exclusion knowing that stakeholders can enforce duties. If the prospect of accountability deters board service, that itself suggests boards are not currently accountable.

The Institutional Autonomy Objection

Critics may contend that these reforms interfere with academic governance and institutional autonomy. Standing is limited to enforcement of fiduciary duties, not academic decisions. Courts applying derivative suit standards defer to board decisions made in good faith under the business judgment rule. The reforms address governance failures, systematic identity-based exclusion, not academic judgments about curriculum, hiring criteria, or admissions philosophy. Institutional autonomy is not absolute and has never meant immunity from accountability; it must be balanced against the rights of the constituencies that institutions exist to serve.¹⁰⁵ Framed properly, these reforms serve institutional interests: they reduce litigation risk from federal enforcement actions, improve institutional reputation, enhance mission fulfillment, and strengthen institutional legitimacy.

The Structural Insufficiency Objection

Some may argue that governance reform is too slow to help students who need protection now. This objection reflects a false choice. Federal enforcement and policy compliance should continue to address immediate crises, but they must be accompanied by governance reform to prevent future crises. The choice is not between immediate relief and long-term reform but between temporary relief that requires constant renewal and permanent reform that makes future crises structurally unlikely.¹⁰⁶ Federal coercion without governance reform is a reprieve. Governance reform is a reconstruction.

Conclusion

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

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

Exclusive inclusion theory identifies what existing frameworks of 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 from institutional action and perspective-based disputes from 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 self-perpetuating boards, foundations with vague mission statements, and major nonprofit organizations whose governance combines public function with private impunity share the structural conditions that make exclusive inclusion possible. If the framework proves explanatory in higher education, where the accountability void is most visible and the evidence most developed, future scholarship should test whether the same governance architecture produces comparable patterns across the nonprofit sector, and whether stakeholder standing, mission specificity, and operational test reform can be adapted to institutional environments where the stakes and stakeholders differ but the structural logic is the same.

Three reforms target the three features of the void. Built on existing legal frameworks 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 face challenge.

What the 2025 settlements purchased was a reprieve; but what university governance requires is a reconstruction of standing, of fiduciary duty, of the relationship between public subsidy and institutional accountability. that rebinds institutional authority to the public purposes that justify it. The task is not to reinvent American higher education. It is to make its governance mean what it claims.