The New York Times reported that the DOJ is investigating Harvard University’s admissions policy under the False Claims Act (FCA), suspicious that the university had falsely certified compliance with federal civil rights law.

However, details about the investigation are limited, and it is unclear what contractual, or grant agreements are implicated in the alleged false claims.

A memo from Deputy Attorney General Todd Blanche stated that universities and colleges, as well as companies that receive grants and perform contract work from the government, will potentially be scrutinized under the FCA for false certification of compliance with civil rights law.

Under that enforcement scheme violators could be subject to civil, and potentially criminal, penalties.

According to that memo, FCA claims could include failing to protect Jewish students, letting transgender athletes participate in sports, and race-conscious hiring and admissions practices, citing the Supreme Court’s 2023 decision striking down affirmative action.

A Harvard spokesperson stated that the university was in full compliance with federal civil rights law, including its hiring and admissions procedures, noting that admissions staff do not have access to applicants’ racial data before the admissions cycle is completed.

The FCA requires that false claims be made intentionally and that they be material to the government’s payment decisions, likely making potential enforcement an uphill battle.

The FCA and DEI

A Trump-issued executive order issued in January titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” reversed course on previous federal policy, asserting that diversity-conscious affirmative action measures are illegal under current law.

The order also stated that federal contracts will include:

• A term requiring the contractual counterparty or grant recipient to agree that its compliance in all respects with all applicable Federal anti-discrimination laws is material to the government’s payment decisions for purposes of section 3729(b)(4) of title 31, United States Code; and
• A term requiring such counterparty or recipient to certify that it does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.”

The FCA allows for treble (3x) damages per false claim submitted to the government in a contract, leading to the potential for significant exposure. Claims can also be filed by relators, private whistleblowers who stand to share a percentage of the total recovery.

FCA enforcement is proving to be a cornerstone of the Trump administration’s enforcement priorities, as stated by the DOJ in a recent announcement. Attention has been previously given to the DOJ’s use of the FCA to pursue high-profile Medicare fraud claims, as well as penalizing deficient contractual cybersecurity agreements.