In College Admissions, Like Politics, the Scandal Is What’s Legal

In College Admissions, Like Politics, the Scandal Is What’s Legal

From left to right, top to bottom: Felicity Huffman, Lori Loughlin, Former Virginia Governor Robert McDonnell, Michael Cohen.

SourceComposite Sean Culligan/OZY, Image Getty

Why you should care

In academia and politics, we deal well with open criminality, but not the rampant favor-buying behind the scenes.

Dozens of people have been indicted in connection with a college admissions bribery scheme that is both breathtakingly audacious and, at the same time, entirely predictable: This is just the tip of the iceberg.

Everyone knows that the wealthy and well-connected have a leg up in getting their kids into elite colleges. They have the money to send their kids to expensive private schools or to live in expensive towns with top-notch public schools. They shell out for SAT, ACT and various AP preparation courses, and even, it seems, for professionals to “help” their kids write their college admissions essays. They endow their progeny with the benefits of legacy admissions. They pay for their kids to learn to play sports and pursue other activities (fencing, oboe playing, documentary filmmaking, anyone?) that give them advantages in the admissions process that kids from more modest backgrounds simply don’t have. And, in the most extreme cases, they give the target schools multimillion-dollar financial contributions that make it virtually impossible for admissions officers to say no to an applicant.

What should money be able to buy?

All of that is legal, of course, and practically expected of parents who really want to give their children all the opportunities they can. What isn’t legal, and what led to criminal charges announced this week, is parents bribing college coaches and college administrators to designate their children as recruited athletes regardless of athletic ability, and paying off college entrance exam administrators to give their kids the answers in advance.

This kind of gross criminality, as the tip of a corrupt iceberg, is also a good metaphor for our electoral politics. When they’re exposed by investigators, we can see bribes accepted by public officials, campaign payments made in violation of legal limits and illegal harvesting of absentee ballots. But for every crime, there are thousands of entirely legal transactions that nevertheless unfairly advantage the wealthy and well-connected. Wealthy individuals can legally give contributions to an unlimited number of different candidates across the country and thereby influence policy outside of the districts in which they live. They can spend unlimited amounts of money in so-called “independent” expenditures that often greatly benefit the candidates and issues they favor. And they can give money to political action committees, often in ways that are difficult to trace.

We as a society are pretty good at dealing with the outright criminality. The college admissions case unveiled Tuesday, dubbed “Operation Varsity Blues,” reportedly involved 200 federal agents nationwide, resulting in charges against 50 people in six states. Some defendants have already pleaded guilty and agreed to cooperate with investigators.

With outright political bribery, the record is more mixed. The political operative responsible for the illegal ballot harvesting scheme in a recent North Carolina scheme has been indicted, and the election will be rerun. President Donald Trump’s lawyer Michael Cohen will go to jail, in part for his participation in a scheme to pay illegal hush funds to women who claimed they had affairs with Trump. But the conviction of Virginia’s former governor Robert McDonnell – for accepting expensive gifts from a businessman in exchange for helping his company – was ultimately vacated by the Supreme Court.

Cases like this last one make us wonder whether the line between what is permitted and what is not has been drawn in the right place. Strikingly, in the McDonnell case, the Supreme Court interpreted the federal bribery statute in such a way that permits a public official to exchange money for access. If the politician accepts “gifts” in exchange for setting up meetings with other public officials, this sale of access is not bribery, according to the Supreme Court.

But should it be? And should large “donations” to universities offered to facilitate the admission of the “donor’s” child be legal and acceptable? Underneath these questions is a more basic and central one: in a democratic society based on the equality norm of one person-one vote and an education system based on principles of academic achievement, what should money be able to buy?

This is the iceberg lying beneath the surface, and simply ignoring it will not make it go away.

Stuart Green and Deborah Hellman are law professors at Rutgers University and the University of Virginia, respectively.

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