In the aftermath of the Supreme Court’s decision, Student for Fair Admission, which banned the use of affirmative action in university admissions, the real possibility of suing higher education institutions under the federal False Claims Act was raised, not only for continuing to use race in admissions, but also for engaging in any “diversity, equity, and inclusion” (DEI) programming that was seen as race-discriminatory. President Trump’s recent Executive Order, Ending Illegal Discrimination and Restoring Merit-Based Opportunity, has only heightened the possibility of bringing such suits, as it explicitly invoked language from the False Claims Act as an incentive to federal grant awardees to abide by federal anti-discrimination laws.
What would it mean to bring an action under the federal False Claims Act for race or sex discrimination on the part of a college or university? Though it is an untested and complicated area of the law, this article considers how private and public universities could face huge damage claims under potential False Claims Act filings for any past race and sex preferences conducted under the guise of DEI. In addition, it is suggested how colleges and universities might yet avoid such legal exposure for past False Claims Act violations.
To receive federal monies, colleges and universities must regularly certify they will comply with Title VI and Title IX, the federal laws forbidding discrimination based on race and sex, respectively. Such...
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