In mid-March, federal prosecutors revealed that they had uncovered evidence of a massive collegiate cheating scandal, which involved some fifty people “cheating on standardized tests or bribing college coaches and school officials to accept students as college athletes — even if the student had never played that sport.” Holly Yan, “What we know so far in the college admissions cheating scandal,” CNN, Mar. 19, 2019, at https://www.cnn.com/2019/03/13/us/what-we-know-college-admissions-cheating-scandal/index.html (last visited Mar. 20, 2019). The federal investigation led to the arrests of several individuals, including certain celebrities, and criminal charges have been filed. See, e.g., id. What remains to be seen, however, is how the civil angles of this scandal will play out, which is this article addresses.
The scandal was administered and operated by the CEO of a collegiate prep company, who has pled guilty to the four counts that have filed against him thus far. See, e.g., id. The scam involved two kinds of fraud, according to a U.S. Attorney: “[o]ne was to cheat on the SAT or ACT, and the other was to use his connections with Division I coaches and use bribes to get these parents’ kids into school with fake athletic credentials.” Id. Parents of certain students paid tens of thousands of dollars to falsify their children’s test scores, and a third party would secretly take the standardized tests, replacing the students’ answers with the ones supplied by the prep company CEO. See, e.g., id. Each party who knowingly took part in these fraudulent schemes faces criminal liability. The criminal enterprise appears to have included parents, the college prep CEO & his affiliates, and certain staff members at universities in athletic departments.
Issues concerning civil liability, legal angles, and remedies for the impacts of the scandal are complex. In particular, there are questions regarding the various parties that were or may have been affected by the scandal.
(1). Current students who benefitted from the fraud: Although the falsification and bribery at issue in the university scandal are crimes, students who applied to colleges benefitted from the fraud may be treated differently than other involved parties. This is for two reasons.
First, applicants who did not falsify information but later learned of a parent’s having done so may not face criminal culpability. The question may still arise, however, as to how to treat such students, as they did benefit from a fraudulent act. Some students who did not know that their applications were falsified by a parent (and have since discovered that fact) have expressed feelings of guilt and contrition. See Madeline Holcomb, “USC says students connected to cheating scheme will be denied admission,” CNN, Mar. 14, 2019, at https://www.cnn.com/2019/03/13/us/college-admission-cheating-scheme-wednesday/index.html (last visited Mar. 20, 2019). For example, one such student stated, “I am upset that I was unknowingly involved in a large scheme that helps give kids who may not work as hard as others an advantage over those who truly deserve those spots. For that I am sorry.” Id. The University of Southern California plans to review these situations on a case-by-case basis in order to determine what action, if any, to take with students in this position. See id. Expert witnesses may be able to help in this regard. They can consult with universities to help determine which current students were admitted or otherwise treated preferentially because of the cheating scheme, and experts can also help resolve how students who were unaware of the scandal should be treated.
Second, some students may have known that their parents were engaging in the fraud to improve their chances of admission, or they may, themselves, have played an active role in falsifying their applications. In such cases, although these actions would typically be treated as criminal, if applicants were minors at the time and/or were not the instigators of the fraudulent activities, criminal action may be inappropriate. Instead, universities will have to determine other redress, which expert witnesses can offer assistance with.
(2). Prospective students who benefitted: Some of the considerations that are discussed regarding current students are applicable in analyzing how to address potential candidates. USC has already declared that it will deny admission to any applicants who are connected to the scandal, but other universities may have different policies. Additionally, USC’s rule may be subject to challenge—because federal prosecutors have stated that in most cases they have encountered, the students/applicants were not the culprits, schools that automatically deny admission on this basis may face litigation. See, e.g., id. If, for example, a student unknowingly was fraudulently assisted by a parent, they may feel that being denied an opportunity to attend a university is a punitive measure that is aimed at the wrong party. Experts in education can help colleges craft policies to ensure just results for as many applicants as possible, while still refusing to reward the criminal activity behind the cheating scandal. Perhaps asking students to retake a standardized test would be one potential solution, or deferring admission until credentials can be more carefully evaluated.
(3). Applicants who were harmed: Clearly, the cheating scandal benefitted a group of applicants at the expense of others, on the basis of test scores and achievements that have turned out to have been fraudulent. See, e.g., id. As one commentator explained, “[Q]ualified students were denied entry into their programs in lieu of the children of the rich and famous.
‘For every student admitted through fraud…an honest, genuinely talented student was rejected.’” Id.
A group of students who applied to universities and were denied admission because their qualifications did not appear to be as impressive as the falsified ones have already filed a federal lawsuit. See Holly Yan, supra. The lawsuit, which is a class action comprised of parents and their children, was filed against a number of universities and alleges that “’their admissions process was “warped and rigged by fraud.’“ Eric Levenson, “Students and parents pursue class-action suit against universities linked to admissions scandal,” CNN, Mar. 20, 2019, at https://www.cnn.com/2019/03/14/us/college-admissions-scheme-lawsuit-class-action/index.html (last visited Mar. 20, 2019). Specifically, the complaint argues that the colleges committed negligence, subjected them to unfair competition, and violated various consumer protections. See id. To partially demonstrate their injuries, the plaintiffs stated that if they had been aware of the cheating scandal, they would not have spent the money applying to the schools they did, and that they did not get what their application fees paid for—“a fair admissions process.” Id.
To address this lawsuit and others like it that may arise, attorneys will require the help of expert witnesses. Experts in consumer laws, competition, negligence, and other fields, may be invaluable to resolving cases of this nature. Because damages are, in many regards, speculative, Plaintiffs experts can speak to the value of the education they would or could have otherwise have, as well as whether class certification is appropriate.
(4). Students who did not benefit: Students who attend or attended the schools that are the subject of the cheating scandal have also alleged injury from the crimes. See, e.g., Holly Yan, supra. Despite the fact that this group of students legitimately gained admission to the colleges at issue, they have expressed their belief that the scandal still harms them. See id. For example, “[t]hose students said their degrees are not worth as much because prospective employers might question whether they were accepted to their schools on their own merits.” Id. Upon graduation, students who were not part of the cheating scheme and did not benefit it may have difficulty convincing employers that their education was as high-quality as they had previously believed. Students in this situation may also have a cause of action, particularly if their schools’ reputations suffer and/or their earning capacities decrease as a result of the cheating scheme. Experts can assist prospective claimants in determining what civil causes of action may be available, what possible redress is available, and to whom liability should be affixed.
(5). Universities affected by the scandal: Interestingly, federal prosecutors have suggested that the criminal behavior of the parents and entities who took part in the cheating scandal victimized the universities they targeted for admission. See, e.g., Erik Levenson, supra. Those schools that were targeted may suffer the same damage to their reputations as their students and/or graduates have expressed concern about, and the effects may be lasting. Moreover, it appears that some college staff members took part in the cheating scheme, which is a betrayal of the ethics and policies of many of these long-established and prestigious schools. See, e.g., id. In addition, the schools that were subject to the scheme were deprived of students who were more qualified candidates and, instead, accepted applicants who did not possess the skills or acuity that their parents and third-parties had represented. Expert witnesses may be able to assist universities in a number of ways. As consultants, experts can help with rebuilding school images and public recognition. As testifying witnesses, they may be able to quantify the injuries colleges suffered from the cheating scandal. There may be lawsuits that can be filed against the parents, college prep individuals, and any employees who participated in the fraudulent activity. Experts in racketeering, employment, contractual breaches, education, and related fields can help colleges recover some of the ground they may have lost from a scandal of epic proportions.
The college cheating scandal has raised a number of legal questions, some of which have been discussed for decades but have recently been revived. For example, students who were not admitted to universities that were involved in the scandal have expressed anger at how privilege trumped their hard work. See, e.g., Madeline Holcomb, supra. In addition, a recent piece by CNN notes that one effect of the scandal being revealed has been to reignite discussions about affirmative action. See John Blake, “The college admissions scam opens a new front in the affirmative action debate,” CNN, Mar. 17, 2019, at https://www.cnn.com/2019/03/17/us/college-cheating-scandal-affirmative-action-debate/index.html (last visited Mar. 20, 2019). As one analyst observes, “Some supporters of affirmative action cite the scandal as evidence that the real scam in college admissions is how wealthy white parents game the system from cradle to campus.” Id. This is particularly interesting because the U.S. Supreme Court is expected to hear a case about Harvard University’s affirmative action policies in the near future, and if the cheating scandal is evidence of privilege, that may impact the arguments going forward.
Aside from the criminal charges filed by the government, many civil angles have arisen, and a number of questions are unanswered. How should students who benefitted from the scandal, inadvertently or not, be treated? Do students who were harmed by it have an action against the university at issue, or is someone else to blame? How should prospective students be treated, and is uniformity important in responses to this major scandal? What about schools? Are they victims? Perpetrators? Both? Neither?
Universities, attorneys, courts, and perhaps even legislators may be grappling with these questions in the near future and for years to come. To address these issues, expert witnesses must be involved at every juncture. Their guidance can help resolve confusion and provide a sense of fairness to as many aggrieved parties as possible. In their capacity as testifying witnesses, experts can help attorneys and courts crystalize and adopt theories that may have far-reaching implications. While the criminal aspects of the cheating scandal are undeniably grave and must be proficiently addressed, there is an important role for civil litigators as well. By helping sift through the uncertainties that linger after such an explosive revelation, attorneys in civil practice can help parties find their way and provide a sense of closure.