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link to the published version: IEEE Computer, January, 2020


accesses since December 19, 2019

A CRITICAL LOOK AT THE 2019 COLLEGE ADMISSIONS SCANDAL

Hal Berghel

In the end, Operation Varsity Blues will produce little of enduring value beyond increasing media advertising revenue and advancing a few political careers.

As the reports of the Operation Varsity Blues story evolved over the past year, the reporting reached a level of absurdity that put a full body press on my crap detector. I reached my breaking point a few days ago, so I decided to try to contextualize the narrative. Here is a humble reality check for those who are actually mislead into believing that this story is newsworthy.

Let me begin with a disclaimer: I am making no legal excuses for the participants in the current scandal. I am only offering contextual background that places the scandal in a broader academic, cultural and political perspective required for understanding. The current scandal is but the most recent installment of the well-worn narrative: the controlling elite make their own rules and live by them as long as they can get away with it. Unfortunately, some of the participants who are either serving or facing jail time didn't understand that you don't go to a gunfight with a sharp stick. Money alone is not enough to avoid prosecution for fraud – you need political clout. The best protection a defendant can have is a prosecutor who fears political reprisal. Compare how the Koch Brothers escaped prosecution for stealing millions of oil dollars from native American tribes [LEONARD] [SCHULMAN] with the fate of actresses Lori Loughlin and Felicity Huffman who face jail time for paying bribes to get their children into good universities. [KIRCHER] [ALFONSO] In the former case, the federal prosecutor who dared to empanel a grand jury to get at the truth was fired for cause, which put a quick end to the prosecution pure and simple. In the latter case the prosecutors pushed for jail terms and public admonishment with the zeal of Oliver Cromwell. So there you have it: stealing oil from native Americans vs. trying to bribe your way to get your kids into a great university. Where is the greater crime? Admittedly, these actresses and their cohorts are likely to serve their time at Camp Cupcake, but even that seems an injustice to me for they engaged in behavior that (with one exception) has been widely practiced for generations by those who's mantra is “before honesty, the right fork.”

THE PLAYERS

The story begins in 2018 when a security fraudster named Morrie Tobin implicates Yale women's soccer coach Rudolph Meredith in a college bribery scheme. In order to gain court favor before his sentencing hearing for his pump-and-dump security fraud scheme, Tobin wore a wire to help the FBI entrap Meredith accepting a bribe to ensure college admission for Tobin's daughter. [LEVITZ] Meredith, in turn, cooperates with the FBI and implicates William Singer, alleged organizer of the admissions scheme who, in turn, snitches on all of his patrons/customers/victims (depending on perspective) to reduce his penalty. FBI agent Laura Smith then provided an affidavit [SMITH] in support of the criminal complaint of mail and honest services fraud against the financial beneficiaries of the racketeering [10081] and the patrons of the conspiracy [INVEST]. Singer laundered the bribes through a non-profit under his control, Key Worldwide Foundation, that provided a veil to obscure the intent of the bribe [GOGGIN] [DICKSON] while also allowing the contributors to write off the bribes on their tax returns [NBCCONNECT]. Singer's charge sheet seems to be the most extensive of all, including racketeering, money laundering, conspiracy to defraud the U.S., obstruction of justice, and two forfeiture allegations. [SINGCHG] Singer cooperated with the government in exchange for a plea deal [TAYLOR] with judge Rya Zobel (appt. by Carter); Meredith accepted a plea deal that involved money and asset forfeiture [NBCCONNECT] negotiated through the court of U.S. Attorney Andrew Lelling (appt. by Trump). The New York Times provides a worthy summary of the details of the scandal, including bribery, false claims of learning disabilities, stand-ins for SAT or ACT exams, the use of fake handwriting, photo shopping applicant faces onto athletes' bodies, false claims of athletic abilities, and tax cheating – all in the quest for admission to premiere universities by children of privilege, who would not normally qualify on the basis of academic record. [NYT] The remaining details have been painfully documented by the commercial media outlets [RICHER].

Morrie Tobin's case is worthy of additional comment. According to the most recent SEC complaint [SEC], Tobin and his fellow defendants attempted to defraud investors through a pump and dump investment scheme. This was prior to his involvement in the admissions scandal, and his motivation for rolling over on Meredith and starting the investigation. One recent report estimates that the broader scheme “generated more than $165 million of illegal sales of stock in at least 50 microcap companies.” [HAMILTON] Such being the case, it seems remarkable that the district court judge (Nathaniel Gorton, app. by George H.W. Bush) would limit the government's forfeiture claim to $4 million. [GORTON] I am no expert on the U.S. Federal Sentencing Guidelines, but based on the previous two references it would appear that this scheme was so profitable to Tobin - even after the federal forfeiture is taken into account – that is takes on an aura of moral hazard. I leave consideration of whether his penalty relief seems proportional to upside of his fraud to the reader.

 

THE EXERCISE OF PRIVILEGE

It is reasonable that the people who organized this scandal or sought to benefit financially from this scandal were prosecuted. But how about the others – entertainers, business leaders, etc. – who were indicted for federal program bribery? That's where the prosecutorial aggression becomes questionable in my view – not because I endorse bribing universities as a way of obtaining college admission for children of privilege (usually this sort of thing falls under the rubric of quid-pro-quo), but because it has gone on unimpeded for many years. In a very real sense, the current crop of favor-seekers aren't doing anything very different from the behavior that the privileged elite have been doing for generations. My feeling is that the prosecutors diminish their credibility by going after the lowest hanging fruit on the quid pro quo tree. If they really wanted to stop this activity, the targets should be the people who are donating libraries, endowed chaired professorships, and new athletic fields in exchange for favorable consideration for their relatives. If the current crop of bribers is to be faulted, it's for their naivety, lack of legal acumen and willful ignorance of the darker side of college admissions and the unsavory characters who serve these interests.

That they should have known better is an understatement. Singer's claim to fame, such that it was, was a co-authored and self-published series of truly undistinguishable books on gaming the college admissions process (still available on Amazon at this writing [SINGER]) His co-author/ghostwriter, Rebekah Hendershot, seems to share some interest in serving a quasi-scholastic academic student community with Singer through her company, although she distances herself from the felonious dimension of Singer's activities of racketeering, money laundering, tax evasion, coach-bribing, test-rigging, etc. [DICKSON][KORTE] It should be emphasized that such resources are widely available, and not isolated examples. A cottage industry has existed for many years to improve the chances of the admissions-challenged college applicants among us and to elevate their grades once admitted. These days, $50 can get a “premium quality” undergraduate research paper delivered electronically in 6 hours ( https://www.college-paper.org/prices.html ). In such an environment, it should surprise no one that $500,000 should be able to buy quite a bit more than a term paper. Non-praiseworthy college aids surpassed Cliff's Notes several presidential impeachment hearings ago.

No matter how reprehensible we find Singer et al's, situational ethics, they must be contextualized if we are to understand the scandal. Is it really the act of bribery that drives the prosecution? Or, could it be the visibility and profile of the cases, with concomitant public relations value for the prosecutors and politicians who champion the prosecution?

In the U.S. (and presumably most other economically advanced countries) prestige universities are really two schools in one that share the name: a larger one that serves the scholastically prepared and academically meritorious student, and a much smaller, though in some ways more important, university that serves the students of the economically and politically well-connected families. Look up “gentleman's C” (perhaps gentleman's B-‘s with today's grade inflation) in your preferred urban dictionary. The phrase does not apply to students who attend class in top hat and tails. It describes a mechanism to align the quid-pro-quo system of the development office with the registrar's academic grading and student retention policy. After all, we can't admit the children of privilege only to flunk them out. While prestige universities advance scholarship magnificently, they also advance class interests by acknowledging and recognizing pedigree.

From the scholastic point of view, students who matriculate prestige universities enjoy exposure to best and brightest scholars and scientists in the world. However, the children of wealth and privilege may well have experienced different admissions standards and participated in different classes, majors, and university programs where the primary value was more a product of social networking and political connections than acquaintance with the Mensa set. Operation Varsity Blues is best seen as a reminder of a system that has been in place since the founding of the country. One only has to refer back to the Federalist/Anti-Federalist debates to understand how many of the power elite in the 18 th century viewed the proper role of education. It had little to do with the improvement of the masses then, and not much more by some accounts today.

So what new insights can be drawn from the recent college admissions scandal? Well, let's look.

AFFIRMATIVE ACTION BY ANOTHER NAME?

Most of my generation were introduced to the notion of affirmative action through presidential executive orders issued since the early 1960's [EO 11246] whereby the federal government agencies were directed to prevent employment discrimination based on “race, color, religion, sex, sexual orientation, gender identity, or national origin.” These EOs, as well as the more expansive 1964 Civil Rights bills were not universally popular in Congress, with the final Senate version approved by a 73-27 margin after considerable delays, filibustering and a rare cloture vote. That this was unpopular legislation in the southern states is beyond dispute, and it has been revisited by the courts continuously since passage. One of the reasons for this resistance was the belief that these federal initiatives challenged the remnants of a social order that grew out of the slavery economics and conservative religious dogma prevalent since the founding of the country.

One of the most important components of this social order was/is the belief in the entitlement of privilege, whether based on wealth, political power, religious order, inheritance, etc. And that's where this resistance ties in with the current college admissions scandal. The activity that the parents involved in the bribery of university representatives were engaged in has been present since the founding of the country. Universal entitlement to education (like universal suffrage and the right to privacy) was not a constitutional guarantee by design. The earliest statement of a universal entitlement to education that I know of appeared in 1948 as article 26 of the United Nations' Universal Declaration of Human Rights [UDHR]. In fact, prior to the enlightenment, education was considered to be a parental or ecclesiastic responsibility, and the notion that the U.S. government bore any responsibility at all to educate all children remained unchallenged in the U.S. by any administration until Franklin Roosevelt's Second Bill of Rights speech in 1944. ( http://www.fdrlibrary.marist.edu/archives/address_text.html ). I emphasize that the exercise of privilege that the parents involved in the current college admissions scandal was actually considered normal for the privileged class throughout most of U.S. history. If one accepts a broader interpretation of affirmative action (viz, a positive step to ensure the access of opportunity to a protected group – in this case privileged kids), one may see that a parent using whatever resources they might have to advantage their children should be understood as affirmative action for the country club set. The notion that affirmative action should be a government program to ensure fairness and equal opportunities to economically/socially/politically marginalized populations is a relatively recent idea – and to this day it remains unpopular with large segments of the population - as does the question of what constitutes an acceptable curriculum, for that matter. And this opposition comes from several sources: postmodernists; religious and cultural and conservatives, authoritarians, etc. Adherents of enlightened education are usually people who have partaken of it.

So the practice of using influence to obtain admission to select schools for children has always been part of the social-political landscape (most likely everywhere that has select schools), as has the use of money to influence such purposes. This is well documented by Pulitzer Prize-winning Wall Street Journal reporter Daniel Golden in his book, The Price of Admission [GOLDEN1] which is highly recommended to everyone who experienced even moderate surprise at the recent college admissions scandal. What I describe here applies to the “other” prestige university discussed above: the smaller, shadow university that serves the privileged elite. First, we cast the broadest net. Admissions preferences are routinely extended to two basic categories which include:

Group 1

Group 2

I've broken this preferential treatment into two categories for a reason. Preferential treatment to Group 1 is more common and less controversial. After all, the elite schools argue, we are a family – a community – so showing preference to children of graduates, and employees falls under the rubric of community enhancement and empowerment. It's all about kith and kin. I take no position on the merit of this position; I am just reporting it as a widespread practice. It must be admitted that there are downstream financial rewards from family estates that are bonded to the universities through the matriculation of generations of family members. And it goes without saying that the preference given to Title IX and minority applicants is motivated by federal affirmative action legislation, and, in many minds, is the right thing to do. The goodness-of-fit for recruited athletes with this group is the most tenuous.

Group 2, however, is no longer about kith and kin and helping marginalized and disadvantaged populations, etc. Group 2 is crony capitalism at its best. These admits are not an investment in education, but rather crass attempts to attract future capital, prestige, power, and influence. In this case the admits are not expected to contribute to the scholarly ambitions of the university, nor will they advance the educational prestige of the franchise. Their value to the brand is measured in economic terms (new buildings, extensions to the library, endowments, etc.) or future influence by graduates. It is expected in all of these cases that the economic contribution of the applicant will far exceed tuition and fees.

But let's be perfectly clear: Group 2 negotiations are never done in the open. Discretion is demanded by all parties. But it is folly to deny that they exist. While the connection between the quid and the quo is not exposed to daylight, it is ever present. In the academy there's even a name for the beneficiaries recipients: business office musts. [GOLDEN1] And they're not too difficult to detect: large contributions by sources connected to an otherwise unqualified applicant that precede admission is the clue. The patterns are unmistakable: (a) academic achievement that does not meet an institutions announced standards and (b) rather obvious financial, political, or social benefit to the institution (either by cash or pledge or other potential downstream advantages).

According to Golden, that's what happened with Jared Kushner after parent Charles pledged $2.5 million to Harvard. [GOLDEN2] In fact that was pattern was repeated several times as Charles Kushner made large donations to Harvard, NYU law, etc. prior to his children's acceptance. Let's face it, prestige universities don't build up their endowments on the backs of the underprivileged and marginalized among us. “The number of whites enjoying preference far outweighs the number of minorities aided by affirmative action. As Golden explains, “At least one-third of the students of elite universities … are flagged for preferential treatment in the admissions process. While minorities make up 10-15 percent of a typical student body, affluent whites dominate other preferred groups: recruited athletes (10-25 percent of students); alumni children, also known as legacies (10-25 percent); development cases (2-5 percent); children of celebrities and politicians (1-2 percent) and children of faculty members (1-3 percent).” [GOLDEN1] One chancellor of one of the state ivy's (Berkeley, Michigan, Virginia) reported to Golden that he estimates that “students without any nonacademic preference are vying for only 40 percent of the slots.” (ibid)

Quid pro quo college admissions operate in much the same way as the offering of ambassadorships to large political donors to presidential campaigns: merit has little or nothing to do with “fast track” appointments or admissions. That's not the way the system works.

As I mentioned above, there is one way in which the present college admissions scandal differs from the time-worn tradition of rewarding the controlling elite. The difference is not as one might expect that the money passed through middlemen or brokers. That isn't unusual, although the country club set would likely use a more sophisticated approach through less imperfect vehicles as Singer. Rather the difference is that in Operation Varsity Blues the money ultimately found its way to university employees and not the university itself. While institutional “bribes” to the university foundation are common and acceptable to the fancy linen set, bribing the water polo or fencing coach is considered de classe. But that's a moral distinction without a difference – certainly as far as the briber is concerned. The entertainers and business people who were recently busted just didn't know how this game is played. And in some cases the reported money involved would have been adequate to achieve the desired result had it gone through normal channels to the university's business office or foundation. Using Singer as a vehicle to bribe coaches is like using Rudy Giuliani to conduct foreign policy, it produces maximal risk with minimal expected benefit. So in the end, the prosecuted parents just didn't understand that how quid pro quos with elite universities work – bribes to coaches are fraught with difficulties, whereas bribes to business offices can work splendidly. Of course Lori and Felicity might be expected to treat such a difference as a nuance.

The publicity and media attention given to the current scandal is misplaced. The newsworthy part (and it's not very newsworthy at that) involves the criminal behavior of Singer, Tobin, Meredith, et al. Were responsible editors and publishers at work these stories would appear in the back pages beneath the fold. In the world of corruption, wire fraud, etc., this story is insignificant, and yet it achieved notoriety on a par with the Panama Papers which revealed a genuine scandal of global proportions and huge economic impact. In a very real sense, a case could be made that the celebrity and business bribers were just small time versions of the billionaires mentioned in Golden's book – but people who just didn't know the drill. While I readily agree that the world would be better off if the university admissions procedures were based on merit and purged of quid-pro-quo arrangements, this is one category of privilege that the controlling elite will never relinquish. To try to require merit of silver spoon applicants would have the same effect as trying to limit tax deductions for donations of fine art to the contributor's basis in the donation – the beneficiaries have too much to lose to allow politicians that long of leash. That ethical egoism is now and will forever be a constant companion to the power elite should surprise no one?

That said, let not your faith in the value of higher education be diminished, but only your faith in the value of a diploma. A diploma should be seen as a hunting license: it certifies that the recipient has satisfied some minimal requirements. Your own diplomas may actually use that very wording.

(I would be remiss if I failed to mention that Golden mentions three reputable universities who flourish without providing special preferences for the children of privilege: Cal Tech, Cooper Union, and Berea College!)

REFERENCES

[LEONARD] Leonard, Christopher, Kochland: The Secret History of Koch Industries and Corporate Power in America, Simon and Schuster (2019)

[SCHULMAN] Schulman, Daniel, Sons of Wichita: How the Koch Brothers Became America's Most Powerful and Private Dynasty, Grand Central Publishing reprint (2015)

[KIRCHER] Kircher, Madison, College Admissions Scam Fallout: What Happened to Everyone in the Scandal, New York Intelligencer (updated), Apr. 15, 2019. ( https://nymag.com/intelligencer/2019/04/college-admissions-scandal-fallout.html )

[ALFONSO] Alfonso III, Fernando and Veronica Rocha, Felicity Huffman sentenced to prison, CNN News, September 13, 2019. ( https://www.cnn.com/us/live-news/felicity-huffman-sentencing-college-scandal/index.html )

[LEVITZ] Levitz, Jennifer and Melissa Korn, The Yale Dad Who Set Off the College-Admissions Scandal, The Wall Street Journal, March 14, 2019. ( https://www.wsj.com/articles/the-yale-dad-who-set-off-the-college-admissions-scandal-11552588402 )

[SMITH] Smith, Laura, Affidavit in Support of Criminal Complaint, March 11, 2019. ( https://www.justice.gov/file/1142876/download )

[10081] U.S. v. Gorden Ernst, et al, Case 10-cr-10081, March 5, 2019. ( https://www.justice.gov/file/1142881/download )

[INVEST] Investigations of College Admissions and Testing Bribery Scheme, U.S. Attorney's Office, District of Massachusetts, March 12, 2019. ( https://www.justice.gov/usao-ma/investigations-college-admissions-and-testing-bribery-scheme )

[GOGGIN] Goggin, Benjamin, Meet the accused ringleader of the massive college-admissions scandal, William 'Rick' Singer, the owner of Edge College & Career Network, Insider, March 12, 2019. ( https://www.insider.com/william-rick-singer-the-accused-ringleader-college-admissions-scandal-2019-3 )

[DICKSON] Dickson, EJ, Who is Rick Singer, the Mastermind Behind the College Admissions Scam?, Rolling Stone, March 13, 2019. ( www.rollingstone.com/culture/culture-news/rick-singer-college-admissions-scam-807736/ )

[NBCCONNECT] Hoffman, Loughlin Among 50 Indicted in College Admissions Scandal, nbc Connecticut wire report, Mar 12, 2019. ( https://www.nbcconnecticut.com/news/national-international/College-Entrance-Exam-Cheating-Scandal-Indictment-FBI-US-Attorney-Boston-507030761.html )

[SINGCHG] U.S. v. William Rick Singer, case 1:19-cr-10078-RWZ, U.S. District Court, District of Massachusetts, 03/05/19. ( https://www.justice.gov/file/1142901/download )

[Taylor, Kate and Patrick Lyons, William Singer, the Man in the Middle of the College Bribery Scandal, The New York Times, March 12, 2019. ( https://www.nytimes.com/2019/03/12/us/william-singer-admissions-scandal.html )

[RICHER] Richer, Alanna Durkin and Collin Binkley, TV stars and coaches charged in college bribery scheme, APnews, March 12, 2019. ( https://apnews.com/2450688f9e67435c8590e59a1b0e5b47 )

[SEC] Securities and Exchange Commission v. Morrie Tobin et al, Civil Action No. 18-CV-12451 (amended), U.S. District Court District of Massachusetts, filed 08/29/10. ( https://www.sec.gov/litigation/complaints/2019/comp24583.pdf )

[HAMILTON] Hamilton, Brenda, SEC Charges Four in Fraudulent Microcap Manipulation Scheme Orchestrated Through International Account, Securities Lawyer 101, Hamilton & Associates Law Group, undated. ( https://www.securitieslawyer101.com/2018/sec-charged-morrie-tobin-three-others/ )

[GORTON] U.S. v. Morrie Tobin, criminal case No. 18-10444-NMG, United States District Court, District of Massachusetts, Filed 06/05/19. ( https://www.courtlistener.com/recap/gov.uscourts.mad.204491/gov.uscourts.mad.204491.43.0_2.pdf )

[SINGER] Singer, Rick, Getting IN: Gaining Admission To Your College of Choice, Key Worldwide (self published), 2014.

[KORTE] Korte, Gregory, 'So that's what he was up to': Rick Singer, architect of scam, peddled a 'side door' to college admissions, USA Today, March 12, 2019. ( https://www.usatoday.com/story/news/education/2019/03/12/college-scam-rick-singer-william-singer-felicity-huffman-lori-loughlin/3142687002/ )

[EO 11246] Executive Order 11246 as amended, 1965 ff. ( https://www.dol.gov/ofccp/regs/statutes/eo11246.htm )

[UDHR] Universal Declaration of Human Rights, United Nations, 1948. ( https://www.un.org/en/universal-declaration-human-rights/index.html) )

[GOLDEN1] Golden, Daniel, The Price of Admission: How America's Ruling Class Buys Its Way into Elite Colleges – and Who Gets Left Outside the Gates, Crown, 2006.

[GOLDEN2] Golden, Daniel, The Story Behind Jared Kushner's Curious Acceptance Into Harvard, Pro Publica, November 18, 2016. ( https://www.propublica.org/article/the-story-behind-jared-kushners-curious-acceptance-into-harvard )

[EO 11246] Executive Order 11246 as amended, 1965 ff. ( https://www.dol.gov/ofccp/regs/statutes/eo11246.htm )

[UDHR] Universal Declaration of Human Rights, United Nations, 1948. ( https://www.un.org/en/universal-declaration-human-rights/index.html) )

[GOLDEN1] Golden, Daniel, The Price of Admission: How America's Ruling Class Buys Its Way into Elite Colleges – and Who Gets Left Outside the Gates, Crown, 2006.

[GOLDEN2] Golden, Daniel, The Story Behind Jared Kushner's Curious Acceptance Into Harvard, Pro Publica, November 18, 2016. ( https://www.propublica.org/article/the-story-behind-jared-kushners-curious-acceptance-into-harvard )