A more or less open state of war exists between President Trump and academia. Opening shots have been fired, most notably by Harvard in its lawsuit seeking to restore funding that the administration has frozen. As I wrote here, I expect that Harvard will win that case.
But that is a battle, not the war. At Legal Insurrection, my friend Louis Bonham lays out a strategy that seems promising. It begins with the fact that universities, to receive federal funding, must certify that they do not engage in illegal discrimination. Universities submit this certification routinely, but the fact is that most of them do, under the holding of the Harvard and University of North Carolina cases. Louis Bonham explains:
Through a recent “Dear Colleague” letter, the Trump administration has warned schools that any programs or practices that favor or disfavor anyone based on race, color, ethnicity, national origin, etc. are illegal under federal law, and thus the annual nondiscrimination certifications require the school to aver that they do not have any such programs or practices.
But faced with the choice of foregoing federal funds (which would be fiscally impossible for most schools) and ending DEI programs (which the school may view as a moral imperative, regardless of their illegality), most schools will likely choose door number 3: they will falsely certify that they do not have discriminatory programs or practices, but will continue them sub rosa. This is the same attitude evidenced by UC Berkeley law school Dean Erwin Chemerinski’s admission (on video) that notwithstanding the Supreme Court’s SFFA decision, his school continues to engage in “unstated affirmative action,” but that “if ever I’m deposed I’m going to deny I said this to you.”
What to do about it? Bonham suggests using the False Claims Act:
The False Claims Act (31 U.S.C. § 3730; the “FCA”) was passed over 150 years ago to address a seemingly intractable problem: widespread fraud by defense contractors during the Civil War. Under the FCA, a person who knowingly submits a false claim to the government is liable for three times the government’s damages plus additional penalties. For example, a hospital that knowingly obtains $10 million from the federal government on bogus Medicare invoices would be liable to the government for over $30 million.
That is obviously a potent hammer. But that isn’t all:
But while the government can bring such claims itself, the FCA has another important component: the ability for whistleblowers (i.e., people with inside information of the fraud) to bring FCA suits in the government’s name, and receive a reward of up to 30% the funds recovered. Such private prosecutions are known as qui tam actions, and the vast majority of the billions recovered annually under the FCA arise from them.
Do the math: if Harvard received $2 billion in federal funds, and were found to discriminate, it could be liable for $6 billion, and a qui tam whistleblower would be in line for up to $1,800,000,000 (minus his attorney’s fee). That would get someone’s attention!
Say that you are an employee (or even a professor or administrator), and are privy to the school’s hush-hush communications on how it is going to “resist” the Trump administration and the Supreme Court by continuing their race preferences in admissions and hiring, and that the school’s administration is behind the effort.
If the school signs a nondiscrimination certification, and thereafter receives, say, $500 million in federal funds, turning whistleblower could yield you upwards of $75 million (which, even net of a 40% contingency fee for your lawyers, would be still be a huge payday). Now add the fact that the potential reward goes to the first person to blow the whistle (i.e., “you snooze, you lose”), and you can see the incentives this creates.
Yes. And if a couple of schools are forced to repay triple the amount they got from the federal government, the rest would take notice. Even their most sacred values–DEI–would be sacrificed to fiscal necessity.
As Louis Bonham concludes, “It’s time to unleash the hounds.”
And, of course, a school that engages in race discrimination–like Harvard and nearly every selective college–can lose its tax-exempt status.
