Don’t punish the innocent in college scandal
By STEPHEN L. CARTER | | Published: June 13, 2019
But what about the kids?
As the guilty pleas mount in Operation Varsity Blues, which sparked the college admissions scandal, I’ve found myself wondering about the fate of the students whose parents have been implicated. What should happen to the children on whose behalf they cheated?
For most observers, the answer is simple: Kick them out.
According to news reports, the schools involved have reacted variously. Georgetown has expelled two unnamed students because of whatever their parents did to get them in. Yale, where I teach, and Stanford have dismissed a single undergraduate each. Several students at the University of Southern California have been informed that until the school’s investigation is complete, they are not permitted to withdraw but are also not permitted to attend classes or obtain copies of their transcripts. A number of schools have rescinded offers of admission. As for those students admitted through the bribery network who graduated before the scandal broke, USC is reportedly considering whether to revoke their degrees, and an online petition calls upon Georgetown to do the same.
Color me skeptical.
Yes, there are bound to be some of these students who knew exactly what their parents were up to. For kids who were complicit, there’s no reason for sympathy. They were participants in a fraud, and cannot be permitted to keep their ill-gotten gains.
But if news reports are to be believed, many of the young people whose parents were caught up in the scandal didn’t know what was being done on their behalf. There’s an argument to be made that they’re as much victims of the fraud as the colleges involved — arguably more so.
Strictly speaking, the question is not legal but ethical. The law might provide a helpful starting point. My first-year contracts students are almost always surprised to learn that innocent beneficiaries of a fraud will sometimes get to keep what they got. A well-known case from six decades ago involves a woman who, on her deathbed, tried to change the beneficiaries of her will. Relatives in the room physically restrained her so that she could not sign the document. By the time their actions were discovered, the woman had died, and her property had been distributed. The court ruled that those who were involved in preventing her from signing the new will had to give back the property they inherited under the old one, but concluded that justice required that innocent beneficiaries of the old will be allowed to keep what they had received. (And yes, the case is still good law.)
I’m not suggesting that the situations are analogous. I’m only pointing out that courts often have sympathy for those who gain innocently from the fraud of another.
Similarly, the ethical question shouldn’t be whether the students gained admission through their parents’ wrongdoing; the question should be whether, under all the facts, they should suffer for it.
Start with students who have already graduated. If they didn’t know about the scheme, then to revoke their degrees would be wrong. When deciding whether to allow innocent beneficiaries to keep their gains from fraud, judges will sometimes look at the resources the beneficiaries have invested in improving whatever they received. Students who have received their degrees certainly fall into this category.
Next, consider the students who are (or were) currently enrolled. The argument is similar. They, too, have put significant work into their educations. They, too, have proved that they can do the work. The equities in favor of the members of this group are a little weaker, because the schools have yet to confer degrees upon them, and so have not certified their ability to finish what they’ve started. But if they’re truly innocent, the investment made creates a reasonable case for allowing them to try.
The weakest case involves students who have been admitted but have not yet enrolled. Because they have not taken a single class, they have not made the same category of human capital investment.
You might disagree with all of this. You might take the view that none of these students should benefit from what their parents did. Fair enough. But it’s wrong to see the admissions scandal as a story about how a bunch of hapless colleges were defrauded and everyone else involved was a perpetrator.
From one angle, yes: A handful of wealthy, selective schools were taken advantage of, in all innocence, by their own trusted employees. From another, however, a handful of well-to-do young people were taken advantage of, in all innocence, by their own trusted parents. I’d argue that the latter breach of trust is worse than the former. Schools choose their employees; young people don’t choose their parents. Yet so far it’s been only the students, not the schools, who have suffered. Ethically, this result is inside-out.
And if you’re worried that letting the kids continue in school means that future parents thinking about fraud won’t be deterred — relax. Some of the parents, remember, may be going to prison. If incarceration proves an insufficient deterrent, the lesson won’t be that the children should have been punished. The lesson will be that the sentences weren’t long enough. So let’s punish the guilty and leave the innocent alone.
Stephen L. Carter is a professor of law at Yale University.