Published on: July 3, 2025
An ATIXA Tip of the Week by Kayleigh Baker, J.D., and Dan Fotoples, J.D., M.A.
As the legal and regulatory landscape evolves, Title IX, Title VI, and DEI practitioners are increasingly expected to understand how their work intersects with broader federal compliance frameworks.
One such framework that practitioners need to put on their radar is the False Claims Act (FCA), a statute typically associated with fraud in sectors like healthcare and defense, but now becoming more prominent in the context of education and civil rights compliance. In fact, the Trump Administration has recently announced a new division within the Department of Justice (DOJ) set up to wage FCA litigation against colleges and schools. We should take this turn of events seriously.
What is the FCA?
The FCA is a federal law that penalizes those who knowingly defraud the federal government. The law is most commonly applied to federal contractors, although it has also been used in the past to police for-profit college recruitment practices and various non-profit college fraud allegations, leading to some of the most costly litigation higher education has faced.
The FCA allows the federal government to sue, but it also permits and incentivizes private individuals to sue and file actions on behalf of the federal government. Individuals who successfully alert the government to a legitimate issue under the FCA or are successful in a lawsuit on behalf of the government under the FCA may receive reasonable attorney fees and up to 30% of the recovered damages, which could be up to three times the amount of the implicated federal dollars.
Intersections of the FCA and Civil Rights Compliance in Education
On April 3, 2025, the U.S. Department of Education (ED) released new guidance directed at K-12 State Education Agencies (SEAs) requiring them to certify compliance with Title VI, including ED’s interpretations informed by Students for Fair Admissions v. Harvard, as a condition of receiving federal funding (ED Press Release; NYT Coverage).
That memo is part of a broader trend: tying federal financial support to civil rights compliance, with increased focus on formal certifications made by institutions. It outlines that a failure to comply with federal law, including Title VI, could result not only in the loss of federal funding but also in liability under the False Claims Act, marking a new and significant shift in compliance enforcement.
If there were any doubts that this was the direction that the federal government was headed with respect to enforcement, this was spelled out by another recent announcement from the DOJ. On May 19, 2025, the DOJ announced the formation of the Civil Rights Fraud Initiative, which aims to use the FCA to investigate and pursue claims against recipients of federal funds, potentially including schools and universities that violate federal civil rights laws.
How Does the FCA Apply?
Since the False Claims Act creates liability when an institution knowingly submits false statements or certifications to the federal government in connection with funding, in the civil rights context, this could mean:
- Certifying compliance with Title IX or Title VI without fully meeting regulatory expectations.
- Overlooking patterns of non-compliance while affirming adherence in funding applications.
- Failing to address known issues while continuing to accept federal funds.
- And, according to the Trump Administration, failing to comply with its Executive Order banning DEI, though that premise remains to be tested in court.
To be clear, historically, the FCA was not designed to punish honest mistakes or evolving interpretations of the law. Instead, it was intended as an enforcement tool to ensure good-faith alignment between compliance practices and federal representations. However, the threat of an FCA lawsuit looms large until it is clear how the current ED will interpret noncompliance through its policy positions and legal interpretations.
While the Trump Administration has gone after colleges like Harvard and Columbia and restricted various types of federal funds, these actions restrict the funds allocated to the entire institution. That raises controversy over whether the government can restrict funds allocated to programs that are not engaged in noncompliance.
The Civil Rights Fraud Initiative memo states that a school that accepts federal funds and is “encouraging antisemitism” or “requir[ing] women to compete against men in athletic competitions” could lead to the school violating the FCA, but this has not yet been tested in court. Under the FCA, a jury could allow the government to recover up to three times the funding provided to a college as a penalty for engaging in fraud.
In addition to the potential exposure to treble damages, one thing that stands out about the FCA is the potential benefit for “whistleblowers” (students, parents, third parties, or even employees) who report, and then potentially profit from, a school district or University’s non-compliance. The FCA offers the potential for millions of dollars in incentives to whistleblowers who identify and root out fraud.
When coupled with the current Administration’s “End DEI” Portal, which has already laid the groundwork for whistleblowers’ reports of discrimination, and the explicit mention of the FCA in the memo to SEAs, the FCA is something that should be on the radar of civil rights professionals working in education.
What Practitioners Can Do
This is an opportunity, not only a risk, for Title IX, Title VI, and DEI professionals to:
- Enhance collaboration between their offices and institutional grants/funding teams.
- Build strong documentation of training, prevention, resolution, and evaluation efforts.
- Engage in proactive audits or reviews, especially around federal certifications or assurances.
- Educate campus leadership about how compliance programs support institutional integrity and federal funding.
- Work with legal counsel before submitting any certification or assurances, and as compliance concerns come up.
Bottom Line
While the False Claims Act isn’t new, its application to public and private schools and universities is growing. Title IX, Title VI, and DEI leaders can mitigate risk by understanding how their compliance work aligns with broader institutional obligations and by supporting their teams in adopting a proactive and transparent approach to certification and documentation.
As always, TNG consultants are here to help whenever you need guidance. Contact our team today to get the support you need.