April 3, 2019

Neither Left nor Right, but Catholic


 By Stephen M. Krason

The college admissions scandal that hit the news a few weeks ago has generated shock, a lot of commentary, and many calling for the heads of the rich and prominent who tried to get special treatment for their offspring. We need, however, to take a sober look at the legal response to this and what the scandal tells us about the state of American higher education. Such a happening rightly angers people—not the least for the rank opportunism, favoritism, and immorality displayed—but we must be cautious about letting outrage justify an improper response.

There are a number of problematical and troubling questions about the criminal investigation and prosecution spearheaded by the U.S. Attorney’s Office for Massachusetts. The first is that it is certainly irregular for a U.S. Attorney to pursue investigations and action outside of his jurisdiction. Here, he is seeking indictments of people for alleged acts all over the country. This is comparable—and maybe has been encouraged—by the current readiness of federal district judges to issue injunctions that (they claim) apply nationwide. This goes against the clear understanding of how the legal process works in the federal system. Secondly, the U.S. Attorney’s action conjures up questions of motivation. As Paul Craig Roberts and Lawrence M. Stratton wrote almost twenty years ago, U.S. attorneys are notorious for their focus on securing convictions—and advancing themselves—irrespective of doing justice. This is, to say the least, an uncommon kind of matter for a U.S. Attorney’s office to take up. So, why did they get into it?

The prominent people in question—and it is likely there will be more indictments, perhaps mostly of parents of students—have been accused primarily of mail fraud, honest services fraud, and conspiracy. Charges of these two types of fraud have generated much controversy: mail fraud because it has become an all-purpose offense to charge someone with when there is nothing else to reach for and honest services fraud because of its vagueness. As far as conspiracy is concerned, one can be charged with it even if a planned crime was never actually committed. Again, it’s an all-purpose offense that can make it easier to ensnare people who are targeted. Some of the charges involve federal racketeering laws, which again have sometimes been used in a manner far beyond their original purpose of going after organized crime.

Some media reports talked about this case involving bribery, but the crime of bribery involves offering money or some other valuable thing to public officials or public decision-makers to get desired actions from them. That is not at all in question in the admissions scandal.

There seems in all this to be a ring of the Mueller investigation of Russian “collusion” in the 2016 presidential campaign. It was a major criminal investigation even though there no such thing as a crime of collusion.

The prosecutorial practices seemed additionally troubling when it was revealed that the apparent ringleader in the scandal, Rick Singer—who set up both for-profit and tax-exempt organizations to supposedly counsel and help high school students and their parents about college admissions and proceeded to pursue the underhanded methods—coped a plea and was wired by the U.S. Attorney’s Office in order to ensnare the prominent parents who sought his help. Normally, it’s the accomplices who are the plants to snare the ringleader, not the other way around. It makes one wonder if the aim was not especially to target these prominent people. What was driving the prosecutorial team’s thinking? The best take one can have on it is that the prosecutors saw a problem—which they learned about in an investigation on an unrelated matter—and thought they just had to do something about it (and of course the vague federal statutes made it possible for them to proceed). However, were they somehow influenced by the attitudinal ambience that has taken hold in our political discourse where slamming the rich and even touting socialism has become respectable? As far as the ringleader goes, however, his cooperation with prosecutors may have been motivated by the fact that he faced up to 65 years behind bars. Some people might say, “sock it to him—he deserves it.” One should pause even about this, however, considering that the average sentences actually served by first-degree murderers is 17 years. Does this perhaps illustrate how disproportionate and unreasonable criminal sentencing has become, especially perhaps for white-collar crimes? One wonders, again, if this is motivated by justice or a desire to “get” a certain class of people.

Maybe another issue should be considered in this case—which often seems to get little attention from prosecutors, judges, and others in the criminal justice system. If people like those charged so far in this probe—noted actresses, financiers and the like—are sent to jail could they become particular targets for assault, brutality, and the like from some elements of the prison population? Shouldn’t this be even more a concern when it’s quite unclear that the alleged actions actually were in any true sense federal crimes? What was going on was reprehensible, but that doesn’t justify twisting the law to address it.

The ability of U.S. attorneys to use vague statutes in order to pursue questionable prosecutions raises a deeper question: Aren’t we long overdue for a general revision of the increasingly expansive federal criminal code?

So, what should the response be to the scandal? Is there anything the law can do? Without stretching and twisting, the federal criminal law is not the place to turn. One would know if the criminal law of the states where the corruption occurred could be applicable only by examining their criminal codes.

If the law is to be turned to at all, the civil law seems more appropriate. Students who thought they easily met admissions requirements but were turned down when the others were illicitly admitted might be able to sue at tort law for fraud, deceit, misrepresentation, and possibly even for negligence in not properly controlling their employees who acted improperly. It even conceivable that contract law could be turned to since the universities in question didn’t uphold the stated grounds in their catalogs and other informational materials for student admission. Such suits would not be easy to win, but highly qualified students who were turned away and could show a connection to the abuses might be able to prevail. State governments could also sue the institutions on other grounds, perhaps under consumer protection and false advertising laws. Both aggrieved students and the federal and state governments could bring suit against Singer’s organizations and even move to shut them down. The class action suits being filed by students who were refused admission by the universities are perhaps a stretch, however. Proving that all the members of large group of students were refused admission because of the alleged favoritism and payouts would be  difficult to prove. A complication of such possible civil suits is that courts might be reluctant to wade into something which could open the door to floods of suits in the future challenging not only scandalous behavior like here and quiet advantages given to the children of big donors—“legacy admissions”—but also potentially suits from many aggrieved parents who might believe, for whatever reason, that a school should have accepted their child. The courts hardly want to become substitute admissions offices for higher education institutions.

Otherwise,  what might be the best way to address this scandal? First, the people employed by the institutions who took the payoffs should be summarily fired (as has already happened to some), denied their pension rights, and their names widely disseminated in the academic community and the media so they are permanently excluded from it and from any positions of trust elsewhere. Next, the students who were illegitimately admitted should forthwith be dismissed and forbidden to reapply. Any credits they have earned should be negated and if they earned a degree or other credential it should be revoked. If that seems severe and almost unprecedented, it is better than their parents going to prison. It is also entirely logical: the students had no right to be at the universities in the first place so they could not legitimately take classes and earn credits.

Furthermore, it’s time for the accrediting agencies to get serious about restoring the integrity and true character of the higher education enterprise. They seem to spend most of their time nowadays forcing schools to do all manner of number-crunching and wasting time and manpower in meaningless assessment regimens that have hardly improved the quality of higher education. In the meantime, they have nothing to say about the increasingly routine suppression of free speech and serious academic inquiry on campuses and have long since ceased to be concerned about the evisceration of the liberal arts. The scandal represents a serious assault on the integrity of higher education that should cause them to wake up. The sensible response is that the accrediting agencies should put the schools on probation—just because they are “elite” institutions, they shouldn’t be above serious sanction—and require that they change their practices and put the necessary safeguards in place before their full accreditation can be restored. The NCAA should impose stiff sanctions on the schools where paid-off coaches wrangled to get students admitted as athletes even though they weren’t.

More basically, attitudes have to change. It’s time for a long-overdue consideration of what higher education is supposed to do. Instead of being captivated by “elite” colleges—where political correctness and suppression of free academic inquiry and debate now seem to be the order of the day—parents should look to schools where their children can truly be educated in the liberal arts tradition. They should take note of what even some of the leading corporate executives say: they prefer to hire people who have had a liberal arts education. Further, it’s time to stop the over-credentialism and get away from the false notion that a college degree is needed for so many kinds of jobs. That would go a long way toward mitigating the temptation that leads to scandals like this one.

Stephen M. Krason’s “Neither Left nor Right, but Catholic” column appears monthly (sometimes bi-monthly). He is Professor of Political Science and Legal Studies and Associate Director of the Veritas Center for Ethics in Public Life at Franciscan University of Steubenville. He is also co-founder and President of the Society of Catholic Social Scientists and a lawyer. Among his books are: Liberalism, Conservatism, and Catholicism; The Transformation of the American Democratic Republic; Catholicism and American Political Ideologies, and a Catholic political novel, American Cincinnatus. This column originally appeared in Crisismagazine.com and may be freely reproduced so long as the place of its original publication is noted.


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