Justice Department to Pursue Fraud Claims for Civil Rights Violations

The Department of Justice (DOJ) announced that the agency will step up enforcement under the False Claims Act (FCA) in order to target federal grantees and contractors – including colleges and universities – suspected of committing civil rights violations.

Specifically, DOJ has established the Civil Rights Fraud Initiative to “pursue claims against any recipient of federal funds that knowingly violates federal civil rights laws,” citing diversity, equity, and inclusion (DEI) programs, as well as “racist preferences, mandates, … and activities.” The Initiative will be co-led by attorneys in DOJ’s Fraud Section and Civil Rights Division and supported by lawyers in each of the 93 United States Attorney’s Offices.

Typically, recipients of federal funds must certify compliance with federal civil rights laws when they enter into grant or contract agreements. Separately, the FCA authorizes both the federal government and private individuals to sue anyone who submits a fraudulent claim to the government. If a college or university falsely certifies it is in compliance with federal civil rights laws and knowingly violates those laws, it is potentially liable under the FCA for significant monetary damages and other penalties.

Already, DOJ has announced that it is conducting an FCA investigation of Harvard University to determine whether the school was using its admissions program to defraud the government by failing to comply with the Supreme Court’s affirmative action ruling.

While it may be a high legal bar to prove a FCA violation related to civil rights compliance – in other words, to prove both that a civil rights violation occurred and that an institution violated the law knowingly – the FCA is nonetheless a powerful enforcement tool that can expose an institution to investigations, lawsuits, and broad legal liability. In particular, the provision authorizing private individuals to sue on behalf of the government – and to receive a portion of the recovered funds – is deliberately designed to incentivize the filing of lawsuits under the FCA.

For more information, please contact:
Jody Feder