One of the dozens of parents charged this week in the college admissions scandal was Gordon Caplan, co-chair of the international law firm Willkie Farr & Gallagher LLP. In an ironic twist, lawyers from Willkie Farr also represent James Gatto, a former Adidas executive recently convicted in the NCAA basketball recruiting scandal. The two cases reveal two different seamy undersides of the admissions process at elite universities. They also highlight the sometimes blurry line between what is criminal and what may be merely deplorable.
In the admissions case unveiled this week, Caplan is charged with allegedly paying the owner of a college counseling business, Rick Singer, $75,000 to have a proctor alter Caplan’s daughter’s ACT exam answers and improve her score. Singer’s schemes with other parents also allegedly included falsifying application materials to make students appear to be star athletes and paying bribes to college coaches and administrators to admit them.
In the NCAA basketball case, the defendants secretly paid star high school athletes and their families thousands of dollars in exchange for their agreement to attend particular universities and later sign sponsorship deals with Adidas. This violated NCAA rules that, among other things, prohibit student athletes from being paid. Gatto and his co-defendants were convicted of defrauding the universities by helping them admit athletes who would end up being ineligible to play if the payments were ever discovered.
Gatto’s attorneys — Caplan’s law firm colleagues — have argued convincingly, albeit so far unsuccessfully, that Gatto’s behavior violated NCAA rules but did not rise to the level of criminal fraud. Caplan and other parents in the admissions case may make a similar argument: that their behavior was wrong, but not criminal. After all, if you cheat on an exam in college, you would expect to be disciplined, but you wouldn’t expect to be charged with a crime. If you cheat to gain admission, you might expect to be disgraced and have your child expelled but not to be branded a felon — particularly if you have paid or are planning to pay the school roughly a quarter-million dollars in tuition and fees over four years.
Yet there are some significant differences between the two cases. In the NCAA case, the athletes who were paid were being aggressively recruited by the schools — the supposed victims. There was no question the students were qualified to play and that the universities wanted them to attend. It’s hard to see how the universities were defrauded by getting the very players they so desperately wanted, particularly when some of their own coaches were allegedly in on the scheme.
That’s not true in the new admissions case. The students admitted were reportedly not otherwise qualified and were not being recruited. By allegedly falsifying test scores and application materials, the defendants obtained or sought to obtain valuable admission slots to which the students were not otherwise entitled. They deprived the universities of their ability to award those slots to students who were truly deserving.
In the NCAA case, although the payments to the students were secret, there was nothing inherently fraudulent about them. If they were professional athletes, the money would have been considered a signing bonus. It was only the violation of NCAA rules and the fiction that Division I NCAA student athletes are “amateurs” that supposedly transformed the payments into a fraud.
But in the admissions case, the allegations involve altered test scores, doctored admissions files and bribe payments laundered through a phony charitable organization. These are inherently corrupt activities — what prosecutors sometimes call badges of fraud. They do not depend on the rules of a private organization like the NCAA to make them wrong.
Those directly involved in paying and receiving bribes will find their conduct hard to defend, and Singer and a coach have already pleaded guilty. With the accused parents, it’s going to vary case by case. Those who only reportedly paid for fake test scores may argue that cheating on a test should not be a crime. For parents whose students were allegedly admitted as a result of bribes, everything will turn on what prosecutors can prove about their knowledge. Some may claim they thought they were simply paying a high-priced consultant or making a sizable donation to the school but did not know the details of the bribery scheme. Parents may also face tax issues if they improperly took a charitable deduction for their alleged payments to Singer’s organization.
We are currently in the midst of a national debate about over-criminalization. Not everything that causes outrage merits a federal prosecution. The NCAA defendants are appealing their convictions and have a plausible argument that prosecutors have pushed the boundaries of criminal fraud too far. Parents charged this week may try to make a similar claim, but given the nature of the schemes here, they will have a steeper hill to climb.