President Trump continues to ramp up his ongoing battle with Harvard University. His administration has attempted to block the university from enrolling international students, imposed a federal funding freeze, and has repeatedly threatened Harvard’s tax-exempt status. These actions have been viewed as politically motivated and as an attempt to force the Ivy League institution to abandon its commitment to diversity, equity, and inclusion initiatives. Last month, the U.S. Department of Justice launched its Civil Rights Fraud Initiative in an attempt to enforce the federal False Claims Act (FCA), which could be used against Harvard or other higher education institutions.
John P. Relman is the founding partner of Relman Colfax, a civil rights law firm, and Zoila Hinson is a partner at Relman Colfax and co-authored an explainer on the False Claims Act joined All Things Considered host Arun Rath to explain the False Claims Act and how it could be used against Harvard and other higher education institutions.
What follows is a lightly edited transcript of their conversation:
Arun Rath: John, give us some background on why this administration continues to take aim at Harvard specifically?
John Relman: The attack on Harvard is part of a broader campaign against universities that the administration perceives as too woke, too liberal. It began with Columbia, and then it turned to Harvard. The claims that the administration is making are that Harvard has not done enough to stop anti-Semitism on campus and that it has illegal DEI policies and is discriminating against whites in hiring and student admissions. And so earlier this year, the Trump administration threatened Harvard with a cutoff of federal funding if it didn’t do what it wanted. They wanted Harvard to essentially cede control of its academic content, its teaching, and governance. When Harvard refused to do that and said, 'we’re not going to cede control about how we run the university,' it still at the same time said it was willing to talk about how to resolve the administration’s concerns, but the government didn’t want any part of that, and they immediately responded by abruptly cutting off all federal funding. They essentially escalated things within hours.
Rath: Do we have a sense of when these lawsuits might be settled, when we might have clarity on this, and how long Harvard could sustain this?
Relman: This threat is quite existential to the university, both because of the amount of money that’s involved — we’re talking about billions of dollars of cuts — and the effect it has on essential research, medical research, and critical research on scientific advancements that affect millions of people. So, essentially, the threat is so existential to Harvard that they’ve had to move immediately to ask the court to freeze this until the court can rule. It’s called a temporary restraining order, and they got that. And now there’s a hearing that’s been set for July, and my expectation is that the judge will have to move pretty fast because Harvard can’t stay in limbo. And after Harvard sued, the Trump administration doubled down and upped the ante by challenging the university’s ability to host foreign students, international students. And as Harvard said, without its international students, Harvard is not Harvard. So you’ve got a new term coming up by the end of the summer. I think the court is going to have to rule quickly by the End of the Summer on these claims that Harvard has made. And what Harvard has essentially said is, what you’ve asked us to do is not only unconstitutional, but it violates Title VI of the Civil Rights Act of 1964, which is the law that the administration relies on to freeze the funding. And under that law, there are all kinds of processes that Harvard has to be afforded before funds can be frozen.
Rath: Zoila, let’s get into the False Claims Act. I don’t know if people are terribly familiar with it. I didn’t know anything about it until I read your explainer. Let’s go back to the original law. Tell us about the law, the context that it came up in. It wasn’t really about universities, was it?
Hinson: Not at all. The False Claims Act has been around since shortly after the Civil War. It was designed as a civil anti-fraud statute that was designed to prevent essentially war profiteers from defrauding the government and it’s still used today typically to investigate garden variety fraud by government contractors, Medicare insurers, contractors who just sell supplies to the government. And it creates civil liability for a company that submits claims for into the federal government. When the defendant knows the claims are false and the falsity is material to the government’s payment decision. So it’s not typically used against universities at all, and to my knowledge, has not been politicized in this way ever before.
Rath: So, the False Claims Act is sort of what it sounds like, an act about false claims made to the government. What’s the thinking behind how this could be applied to a university like Harvard?
Hinson: In the announcement of the Civil Rights Fraud Initiative, what the DOJ said is that when Harvard submitted claims for payments under, say, an NIH grant or a payment under a defense contract, it certified compliance with federal civil rights laws. And it claims that those certifications are false because, according to DOJ, Harvard and similar universities have, say, a DEI program or they allow trans women to use women’s bathrooms or play women’s sports. And the Department of Justice claims that those policies are violations of federal civil rights laws. So they’re saying that when Harvard and similar universities submitted their claims for payment, the claims were false for that reason.
Rath: You mentioned this hasn’t been used against universities before. Is there any kind of precedent for applying it in a way like this that is not really about fraud as traditionally understood so much as, well, I’m not sure how to put this, what they’re saying here.
Hinson: You know, I’m sure it has been at some point applied to a university that actually submitted false claims for payment. What’s different here is the politicization. And frankly, these claims are legally baseless for a number of reasons. Even though the administration is now saying that these DEI programs violate federal civil rights laws, there isn’t court precedent saying that. And so the idea of that these policies are illegal, and that therefore Harvard’s claims are false, is really legally baseless. But even if they were false, in order to establish liability under the False Claims Act, the government will also need to show that the university acted with knowledge that its claims were false and that the falsity was material to payment. On its face, there’s not really any reason why allowing a trans woman to use the appropriate bathroom would be material to the payment of, say, a Department of Defense research contract? And even if it could be, the Supreme Court has held that if the government continues to make payments knowing of the alleged falsity, that’s, quote, very strong evidence that falsity is not material. Here, Harvard has been open about its DEI policies. These have been widely-known publicly within the government for years, and until recently, the government approved of these policies. And third, it will be very difficult, if not impossible, for the government to show that Harvard acted with knowledge. There’s no real basis that Harvard could have concluded its policies were illegal. And again, there are a ton of cases that hold that if you disclose what you’re doing to the government, that you’re not acting with the required knowledge under the False Claims Act. And here again, Harvard has been incredibly open about its policies across the board. So I think what’s really new about this is this idea, both of trying to politicize the False Claims Act to use it to attack the administration’s political enemies and ideological enemies as it perceives them. And frankly, the idea that you’re just gonna find some law that’s completely unrelated to the claim that’s being submitted and say, oh, they’re maybe violating this law, and therefore they’re violating the False Claims Act. That’s just a bad False Claims Act case. If I were working for the Department of Justice, I would not advise them to take any case that was along these lines, political issues aside.
Rath: John, we’ve been talking about Harvard. Can you talk about how this legal battle on multiple fronts could signify for other higher education institutions or even other institutions, corporations that get money from the federal government?
Relman: In my view, this is about attempting to get the country’s most powerful, oldest, most prestigious university to bend the knee, to do Trump’s bidding. Because if he can get a university like Harvard to give in, if they can get Harvard to do that, there is a pretty good chance that other universities will follow suit. Because they’ll figure if Harvard, with all of its enormous endowment, its influence, its power, cannot resist Trump successfully, what chance do we have? And indeed, we saw that when Harvard stood up and said, 'no, we’re not gonna do this, this is unconstitutional, this is unacceptable, this is lawless,' that a number of other universities followed suit and said we’re gonna stand up as well. And so ... I think this is really about power. This is about a would-be authoritarian, Trump, who sees Harvard as an institution with power, with money, that he wants to dominate, that he wants to control, and also an institution that he perceives, that HE perceives as having an ideological viewpoint different from his political ideology. And therefore, an enemy.
