President Donald Trump and his minions just deployed a new weapon in their war on higher education. The Department of Justice announced Monday that it will use the False Claims Act to ensure no forbidden diversity, equity, and inclusion efforts—aka the DEI bogeyman—are hanging around.
Deputy Attorney General Todd Blanche, who got his high-level government job because he was one of the president’s numerous criminal defense attorneys, is calling this the “Civil Rights Fraud Initiative,” which is an awkward name that makes it sound like an initiative to create civil rights fraud. Which, given how the False Claims Act works, just might be the case here.
The False Claims Act allows the government to recover up to three times its supposed damages from the submission of a, you guessed it, false claim to the government. It is not really a civil rights powerhouse kind of law, but instead used for things like recovering money from managed health care providers and defense contractors who attempted to defraud the government.
But the FCA has a unique feature that is undoubtedly why the administration is choosing to make it the backbone of its efforts to attack the liberal elite: It allows private citizens to bring a private lawsuit and keep up to 30% of any government money recovered. Typically, the person bringing the suit is a whistleblower—someone at a company who is aware of the fraud, for example.
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You might be wondering what type of false claim or fraud arises because your local college made students read a book by a gay person or because it still has a Black student union. The answer, obviously, is that it does not. But if you follow the tortured logic of the DOJ on this, the idea is:
- Step 1: Colleges and universities get federal funds. Okay, this is true. So far, so good.
- Step 2: Some of those colleges and universities still have DEI, which Trump and co. have declared illegal. Okay, less good, as there isn’t a law against diversity, no matter how much the administration wishes there were.
- Step 3: Some part of those federal funds was improperly used for the illegal DEI. Okay, now we’ve really lost the plot.
Let’s agree with Blanche, for the purpose of argument, that schools are secretly using federal money for diversity initiatives. How much, exactly, do you think that actually is? False Claims Act cases recover huge amounts of money—including $2.9 billion in 2024 alone—but there has to be an actual false claim or fraud for that to happen. Yes, the government can get triple damages, but the recovery is still based on the actual amount falsely claimed. Any lawsuit would have to show that a school took X amount of federal money and then used that money not for the purpose it was given, but instead for the forbidden DEI initiatives.
As much as conservatives probably believe that universities are spending millions on secret DEI efforts, they’re just not. And it’s even more unlikely that universities are taking federal funding earmarked for one purpose and instead using it for all that super-secret DEI. It’s not clear that Blanche or anyone else in the administration understands that the False Claims Act isn’t a mechanism that allows the government to withhold or claw back funds from schools.
But let’s not let facts and the law get in the way of ideological bullying here. The DOJ is making this a signature initiative, with a memo from Blanche explaining that it will be handled by attorneys from both the Civil Division’s Fraud Section and the Civil Rights Division. All 93 U.S. Attorney's Offices must identify a staff lawyer to work on this. The Departments of Education, Health and Human Services, Housing and Urban Development, and Labor are required to coordinate with the DOJ on this regularly. Oh, and there will also be “partnerships” with state attorneys general and local law enforcement.
Blanche knows it takes a village to root out diversity, though, which is why the memo also says that the DOJ “strongly encourages” people to file private lawsuits because it can’t possibly identify “every instance of civil rights fraud.” Well, it probably can’t identify any instance of civil rights fraud, because that’s not a thing. If all of this sounds a lot like the administration is promising to pay hard-right weirdos to bring frivolous whistleblower lawsuits against universities, that’s probably because it is.
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Conservatives really, really hate higher education, in no small part because conservatives need an uninformed populace in order for right-wing policy to succeed, and schools have a bad habit of teaching people to think critically. The Trump administration will continue to hammer on colleges and universities with everything it’s got, no matter how ill-suited a tool like the False Claims Act might be.
It’s depressing to see yet another way in which the administration is utterly warping the concept of civil rights enforcement. When Trump took office in January, the DOJ immediately halted most civil rights work, including pausing consent decrees with police departments that have long histories of violent racism.
As far as Trump is concerned, civil rights means something like having the DOJ investigate the mayor of Chicago for being too Black. And now it means putting our country’s colleges and universities even more squarely in the right’s crosshairs.
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