Key Takeaways:
- The U.S. Department of Justice ("DOJ") announced the creation of a new initiative focused on using the False Claims Act ("FCA") to pursue "Civil Rights Fraud."
- DOJ warned FCA claims could arise when a federal funds recipient certifies compliance with civil rights laws while in knowing violation of those laws.
- The memo announcing this initiative emphasizes antisemitism and diversity, equity, and inclusion activities as focus areas for enforcement.
- While the memo does not change federal civil rights law, it nonetheless portends enforcement attention with severe potential penalties on government contractors and funds recipients.
On May 19, 2025, the U.S. Department of Justice ("DOJ") announced a new "Civil Rights Fraud Initiative," which plans to leverage the False Claims Act ("FCA") in the Trump administration's ongoing efforts against antisemitism and diversity, equity, and inclusion ("DEI") (as previously detailed here and here). In a memo from Deputy Attorney General Todd Blanche (the "CRFI Memo"), DOJ calls the FCA the Department's "primary weapon against government fraud, waste, and abuse," and states its intention to pursue "vigorous enforcement" of the Act. The CRFI Memo asserts that entities receiving federal funds that fail to take certain steps to adhere to the administration's view of civil rights may be committing "fraud" that is actionable under the FCA and subject to its steep treble-damages sanctions.
The CRFI Memo identifies several specific focus areas of concern. According to the memo, when a federal contractor or funds recipient certifies compliance with the civil rights laws, including Title VI and Title IX of the Civil Rights Act of 1964, as a condition of payment, it may be doing so "falsely" if it:
- "encourages antisemitism";
- "refuses to protect Jewish students";
- "allows men to intrude into women's bathrooms";
- "requires women to compete against men in athletic competitions"; or
- "engag[es] in racist preferences, mandates, policies, programs, and activities, including [DEI] programs that assign benefits or burdens on race, ethnicity, or national origin."
The CRFI Memo specifically identifies colleges and universities as potential targets of this enforcement, noting that they "cannot accept federal funds while discriminating against their students." But the FCA is certainly not limited to the education sector; the FCA applies broadly across nearly every sector of the economy wherever federal funds are involved.
The CRFI Memo then outlines the resources DOJ is committing to this initiative. The Civil Division's Fraud Section and the Civil Rights Division will co-lead DOJ's efforts. The CRFI Memo directs these two components to then coordinate and share information on potential violations, including by working with other federal agencies (including the Department of Education and the Department of Health and Human Services, among others) as well as state and local law enforcement. Moreover, each U.S Attorney's Office is directed to identify an Assistant U.S. Attorney to support the initiative.
In addition to the deployment of these expansive government resources, the FCA permits private parties, including activists and whistleblowers, to bring FCA cases on behalf of the government. So as this DOJ initiative develops over the coming months, it may provide a roadmap for private litigants to follow in making similar claims.
Implications of the CRFI Memo
The CRFI Memo does not change the existing state of civil rights law. It reiterates the administration's previously expressed view that DEI programs may constitute racial discrimination in violation of federal civil rights law when they "assign benefits or burdens on race, ethnicity, or national origin." And by referencing bathroom use and gendered athletic competition, the CRFI Memo also advances the administration's views of impermissible gender discrimination under Title IX.
Notwithstanding those views of civil rights law, the CRFI Memo recognizes that an FCA violation occurs when a federal contractor or funds recipient "knowingly violates civil rights laws" and "falsely certifies compliance with such laws," noting only that the specified activities listed above "could violate the False Claims Act." Organizations have an obligation to know what their policies and practices are and whether they comply with applicable civil rights laws prior to making any certification to the federal government.
All federal contractors and grant recipients, including those in the highly scrutinized higher education sector, should appreciate the implications of the administration's stated intent and should evaluate their compliance with federal civil rights law and their certifications of payment conditions. Such reviews are essential to maintaining an effective compliance program and reducing risk. Members of Foley Hoag's White Collar & Government Investigations and Education practices are highly experienced in advising both on potential FCA claims and DEI program compliance, and are available to help navigate the developing enforcement landscape.
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