NYT: Yumpin’ Yiminy, Harvard Officials Worry Probes Could Put Them In Yail

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Could the Trump administration’s battle with Harvard put its officers in danger of criminal prosecution? With the exception of a foreign researcher who smuggled materials into the country, that seems unlikely to most. The investigations of Harvard’s policies and practices have thus far involved grants and other federal subsidies, along with potential civil liability for racial and religious discrimination.

According to the New York Times today, though, the concern over criminal liabilities has begun to prey on the minds of Harvard officials. 

Harvard has basked in acclaim from White House critics for fighting back so far. After Mr. Trump threatened the school’s federal funding, Harvard sued the administration, and legal experts said the university has a strong case.

But behind closed doors, several senior officials at Harvard and on its top governing board have acknowledged they are in an untenable crisis. Even if Harvard quickly wins in court, they have determined, the school will still face wide-ranging funding problems and continuing investigations by the administration.

Some university officials even fear that the range of civil investigations could turn into full-blown criminal inquiries.

Could be worse. They could be going to Yale rather than jail. I kid, I kid …

This seems a bit far fetched, though. What exactly would criminal liabilities be at Harvard for the violations alleged by the Trump administration? Discrimination is a civil issue, not criminal, unless it involves some sort of fraud. Speaking of which, it does look as though the Department of Justice is at least looking at the possibility of criminal conduct based on fraud and discrimination:

In a letter on Monday, the Justice Department notified Harvard about an investigation into whether its admissions process had been used to defraud the government. The inquiry was opened under the False Claims Act, a law designed to punish those who swindle the government, according to the letter, which was reviewed by The New York Times.

The investigation adds to the mounting pressure on the nation’s oldest, wealthiest university to overhaul its admissions, curriculum and hiring practices to align with President Trump’s political agenda. The Education Department also informed Harvard earlier this month that its admissions policies were the subject of a new compliance review to determine whether the university was racially discriminating against undergraduate applicants, according to a letter from the agency that was also seen by The Times.

The compliance review and the Justice Department investigation have not been previously reported. Targeting a university under the False Claims Act is highly unusual, reflecting the administration’s increasingly aggressive tactics.

Readers may remember what I wrote about the False Claims Act (FCA) last month, after litigator Louis Bonham alerted everyone to its potential at Legal Insurrection. The most apparent risk with the FCA is still the civil liabilities that would result in whistleblowers coming forward with provable cases of fraud. Those result in treble damages, and the FCA incentivizes whistleblowers by paying them 30% of the proceeds in any successful action. The financial hit alone should scare the establishment at Harvard.

But does the FCA have a criminal component? Not under 31 USC 3730 itself, which is entirely focused on civil prosecution. Criminal fraud would presumably have to fall under 18 USC 47, but that may be tricky too. Unlike with FHA and HUD, which have specific statutes within this umbrella, there is no specific criminal subsection regarding Department of Education fraud. Whatever allegations get made could perhaps fit in the more general subsections of this code. However, the specificity of these subsections to issues like highway funding, federal land bank mortgage transactions, bank transactions, etc make a case that an omission by Congress regarding Dept of Ed transactions was likely purposeful. 

Perhaps I’m missing something in either the FCA or 18 USC 47. If so, I’d love to get an update. What the sudden ‘concern’ over criminal charges looks like is more like a Fantasy Martyrdom League projection at Harvard than reality. And the reality of an FCA prosecution should be worrisome enough; it might well be existential for Harvard if the government can make its case. And based on what Christopher Rufo has dug up just this week alone, Harvard has plenty to worry about:

For years, Harvard’s DEI department has explicitly sought to engineer a more racially “diverse” faculty pool. The university-wide Inclusive Hiring Initiative provided “guidelines and training” for those involved in the hiring process and was explicitly tied to Harvard’s DEI goals. The stated mission of the initiative is to “[i]nstill an understanding of how departments can leverage the selection process” to build “an increasingly diverse workforce.”

In another hiring guide, “Best Practices for Conducting Faculty Searches,” the university recommends several discriminatory practices. At the beginning of the hiring process, Harvard instructs search committees to “ensure that the early lists include women and minorities” and to “consider reading the applications of women and minorities first.” The university counsels that committee chairs should “continually monitor” the racial composition of the candidate list and, as they narrow it down, “attend to all women and minorities on the long list.”

Harvard deliberately factors race into the hiring process. The university gives committee chairs privileged access to “self-identified demographic data, including gender, race, and ethnicity” and encourages chairs to “use this information to encourage diversity in the applicant pool, long list, and short list.” Harvard admits that some of its hiring programs have explicit “placement goals” for women and minorities—which, despite the university’s denial, function as a soft quota.

The situation is not just untenable; it is potentially catastrophic. Harvard could lose a ten-figure judgment in an FCA case based on how much revenue they received from the federal government while falsely certifying that they comply with anti-discrimination laws. Even if they manage to defeat an FCA action, they can kiss the federal spigot goodbye for the next four years, and likely their access to foreign students through the Department of Homeland Security, not to mention their tax-exempt status in the Bob Jones precedent. Harvard would achieve independence, granted, but by the most difficult path possible — and all while obstinately demanding the right to discriminate on the basis of race and religion. 

That still won’t put them in jail. But maybe it should put their students in Yale. 

Addendum: Even if the message still isn’t sinking in at Harvard, the faculty at Columbia has gotten the message. And they are putting the blame where it belongs, even if behind closed doors:

🧵I attended a not-for-attribution call yesterday about the situation inside Columbia.

The key takeaway is that a lot of people, probably a majority, are done with the protestors and the corrupt faculty who support them. They want change.

— Steve McGuire (@sfmcguire79) May 16, 2025

Read the whole thread. This seems most on point about the issue: 

“It is not lost on them that the funding cuts have hurt the science and medical divisions … when all the chaos is caused by people in humanities (plus social work, etc.). … As one participant said, this isn’t about free speech. We all know what their views are. They’re trying to disrupt and damage the university. The protestors have been ruining the campus environment for long enough. They have very few supporters.”