I recently discussed the Trump administration’s plan to apply the False Claims Act (FCA) to enforce its Civil Rights Fraud Initiative, targeting diversity programs.
This announcement plays off of the June 2023 ruling in Students for Fair Admissions [SFFA] v. Harvard, preventing college admissions programs from using affirmative action. While the FCA has traditionally been used to target fraud, its application to diversity, equity and inclusion (DEI) programs will be harder to prosecute.
“With admissions programs, it’s going to be difficult for the government to prove a knowing violation of civil rights laws, especially for Harvard,” I explained in the article. “Harvard has said publicly after the SFFA decision against it, their admissions staff does not know the race of any applicants as they are going through the admissions process.”
Even if intent will be hard to prove in court, the prospect of facing an FCA suit can be a huge problem for schools, both in terms of cost and as a hit to their reputations, I added.
“SFFA has had to work hard to establish plaintiffs,” I said. “But to bring a False Claims Act suit, you don’t have to have been harmed. So it really expands the world of people who can bring a lawsuit, and it greatly enhances the monetary penalties.”
The full article, “As Trump Wields FCA, Whistleblowers May See ‘Dollar Signs’” was published by Law360 on May 22 and is available online.