In a recent article for Law360, Bass, Berry & Sims attorney Audrey Anderson examined the significant challenges the Department of Justice (DOJ) may face as it seeks to use the False Claims Act (FCA) to pursue allegedly unlawful diversity, equity, and inclusion (DEI) practices.
The article underscores the uncertainty surrounding what constitutes “illegal DEI,” an ambiguity that caused many institutions to remove DEI programs entirely. “Entities made risk-based calculations, based on their mission, based on their boards, based on their bottom lines to, in some cases, really make sure they wouldn’t be a target, and to do that, you had to completely excise DEI from your entity,” said Audrey. “You couldn’t say you were doing DEI, you couldn’t say you were doing something that looked like DEI, you had to get rid of all of it.”
Further complicating the enforcement landscape are evolving—and at times inconsistent—government directives. For example, at the February 2026 Federal Bar Association 2026 Qui Tam Conference Brenna Jenny, deputy assistant attorney general of the DOJ’s Commercial Litigation Branch, attempted to explain the differences between a permissible and an illegal DEI policy. Following those comments, Audrey, who also participated in a panel at the February event, said “What still has me a little bit confused, though, is when she [Brenna Jenny] explained at least some of the things that the department is investigating as illegal DEI, I didn’t necessarily see illegality in the program she was describing. What I saw was the department assuming if you have any racial component to goals you are pursuing, you must be using illegal discriminatory means to reach those goals.”
The full article, “Using FCA to Go After DEI Poses Legal Hurdles for DOJ,” was published by Law360 on May 8 and is available online (subscription required).
To read more on this topic, Audrey co-authored an article for Law360 with colleague Denise Barnes, “What’s Missing From Latest Gov’t Claims Against Harvard,” and co-authored a blog post with Denise and Richard Arnholt, “FAR Council Moves Quickly on DEI Executive Order, Which Has Already Been Challenged in District Court.”