The Trump Administration has consistently targeted colleges’ and universities’ diversity, equity, and inclusion (DEI) and LGBTQ initiatives. These efforts have included sweeping funding cuts, investigations into alleged racial discrimination, and actions against foreign students. The Administration’s stance has been reinforced by Executive Orders and memos that emphasize merit-based opportunities and the elimination of race-based preferences.
Newest Development
A new memo from the Department of Justice (DOJ), dated May 19, 2025, introduces the Civil Rights Fraud Initiative. Under Attorney General Pam Bondi’s leadership, the DOJ plans to enforce federal civil rights laws through the vigorous application of the False Claims Act (FCA) against entities that allegedly defraud the United States by violating civil rights laws while receiving federal funds. This initiative specifically targets colleges and universities that are alleged to engage in discriminatory practices, including antisemitism and DEI programs that assign benefits based on race, ethnicity, or national origin.
Summary of FCA Elements
The FCA is the federal government’s primary civil tool for combating fraud. To establish liability under the FCA, the following elements must be satisfied:
- A False Claim. The claim must be factually or legally false.
- Scienter. The false claim must be made with knowledge of its falsity.
- Materiality. The false claim must be material to the government’s decision to pay.
- Causation. The false claim must cause the government to pay money.
Liability under the FCA carries treble damages and significant penalties. This means that institutions found to violate the FCA could face having to pay three times the amount of federal funds received that are proven to be damages sustained by the government, as well as additional fines and penalties. The memo emphasizes that the DOJ will not hesitate to pursue legal action against colleges and universities that engage in discriminatory practices while receiving federal funds.
FCA Risk for Colleges and Universities
Colleges and universities may face significant FCA risk due to their certifications of compliance with Titles IV, VI, and IX of the Higher Education Act. For example, the execution of the program participation agreement (PPA) set forth in 34 C.F.R. § 668.14 may serve as the certification that provides for FCA liability. The PPA conditions the participation of eligible institutions in programs under Title IV upon compliance with certain statutory and regulatory provisions. The DOJ may claim the certifications made in conjunction with the PPA and other certifications establish liability under the FCA. Claims of discrimination while asserting compliance with Titles IV, VI, and IX may be argued to be a false certification of compliance that can trigger FCA liability.
Specific Examples of Potential Violations
The DOJ memo outlines several specific examples of potential violations that colleges and universities should be aware of:
- Antisemitism. Any actions or policies that discriminate against individuals based on their religious identity are subject to scrutiny under the Civil Rights Fraud Initiative.
- Gender. University policies that “allow[] men to intrude into women’s bathrooms, or requires women to compete against men in athletic competitions.”
Other areas of risk may include:
- Discriminatory Admissions Practices. Universities that use race, ethnicity, or national origin as criteria for admissions may be in violation of federal civil rights laws.
- Biased Scholarship Programs. Scholarship programs that favor certain racial or ethnic groups over others could be considered discriminatory.
The memo provides additional insights into the enforcement strategy and priorities of the Civil Rights Fraud Initiative, which will be co-led by the DOJ’s Civil Division Fraud Section and the Civil Rights Division. The memo calls for each division to identify a team of attorneys to aggressively pursue this strategy. Additionally, each of the nation’s 93 U.S. Attorneys’ Offices will be required to identify an assistant U.S. attorney to pursue these FCA claims against colleges and universities. The memo also outlines the collaboration between the DOJ and other federal agencies as well as state attorneys general for comprehensive enforcement.
Private Qui Tam Litigation
Finally, the memo “strongly encourages” the filing of FCA lawsuits and litigation by private citizens. The memo also encourages anyone with knowledge of discrimination to report that information to the federal authorities.
Proactive Measures
This memo undoubtedly foreshadows increased FCA litigation brought both by the federal government and private litigants. But colleges and universities can take several proactive measures to comply with federal civil rights laws and mitigate the risk of FCA liability. Here are some key steps:
- Conduct Regular Audits. Institutions should regularly audit their policies, practices, and programs to make sure they comply with federal civil rights laws. This includes reviewing admissions criteria, scholarship programs, and any other initiatives that may involve race, ethnicity, or national origin.
- Implement Comprehensive Training Programs. Colleges and universities should provide comprehensive training for staff and faculty on civil rights laws, anti-discrimination policies, and the implications of the FCA. This will help ensure that everyone is aware of the legal requirements and the importance of compliance.
- Establish Clear Reporting Mechanisms. Institutions should establish clear and accessible reporting mechanisms for students, staff, and faculty to report any suspected violations of civil rights laws. This includes creating anonymous reporting channels and making sure that reports are thoroughly investigated.
- Enhance Whistleblower Protections. Colleges should enhance protections for whistleblowers to encourage individuals to come forward with information about potential violations. This includes safeguarding against retaliation and providing support for whistleblowers throughout the investigation process.
- Utilize Data Analytics. Institutions can leverage data analytics to identify patterns of discrimination and fraud. By analyzing data on admissions, scholarships, and other programs, colleges can proactively address any issues and ensure compliance with civil rights laws.
- Collaborate with Legal Experts. Colleges should collaborate with legal experts to review their policies and practices to be certain they comply with federal laws. Legal experts can provide valuable insights and guidance on how to mitigate FCA risk and avoid potential violations.
By taking these proactive measures, colleges and universities can demonstrate their commitment to compliance and reduce the risk of FCA liability. It is crucial for institutions to stay vigilant and continuously monitor their practices to ensure they are aligned with federal civil rights laws.
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