Two cases, one before the U.S. Supreme Court and the other before the U.S. Court of Appeals for the First Circuit, both grapple with an age-old question: Should an applicant’s privilege impact whether a prestigious university offers admission?
Yet Students for Fair Admissions v. Harvard and U.S. v. John Wilson pose radically different risks for the two defendants who are accused of breaking laws on account of privilege. And the Cambridge, Mass., institution plays a featured role in both cases.
Harvard is defending an admission policy that awards “tips” for such factors as legacy status, being the child of a large donor, being the child of faculty or staff, being a recruited athlete or having a certain race or ethnicity. In an oral argument last month, several justices suggested Harvard’s policy benefits children of the elite as much as it diversifies the student body. Squash, crew and certain other varsity sports, in the words of Justice Neil Gorsuch, “predominantly favor white children.” An attorney for the group suing Harvard insisted “there are 23 rich students for every one low-income student on campus.”
Harvard is accused of violating Title VI of the Civil Rights Act of 1964. This law makes it illegal for colleges to discriminate or deny benefits on account of race, color or national origin. If Harvard loses, it would be required to redesign its admission policy. The same is true of other universities whose policies blend privilege and diversity.
No one from Harvard would be sent to jail, however.
The same can’t be said for John Wilson. A private equity investor and Harvard graduate, Wilson faces 15 months in prison after a jury last year convicted him on wire fraud and bribery charges as part of Operation Varsity Blues. Wilson, who is free pending the outcome of his appeal, paid more than $1.2 million, including a six-figure donation to a foundation established by infamous admissions consultant Rick Singer. Wilson said he anticipated the money would enhance college athletic programs. His son and twin daughters were admitted into USC, Stanford and Harvard as members of water polo and sailing teams.
Unlike other parents nabbed by the Justice Department, Wilson wasn’t accused of bribing university employees, bribing proctors to boost his children’s SAT scores, inventing fictitious learning disabilities for extra test-taking time, staging fake sports photos or generating misleading application materials. The former president of Staples International insists his kids were qualified for admissions.
Former U.S. Solicitor General Noel Francisco argued on Wilson’s behalf in a First Circuit hearing in Boston last Monday. Francisco, now the partner-in-charge at Jones Day in Washington, D.C., asserted his client wasn’t part of any conspiracy with other parents, but was instead akin to a customer. Singer sold Wilson (and other parents) on the “side door,” which offered a vehicle for affluent parents to secure the admissions of children who might fall short in a highly competitive selection process. It was also more affordable and certain than the “back door” wherein a parent legally donates millions of dollars to a university in anticipation it will lead to their child’s admission.
“[Wilson] was convicted not for what he did,” Francisco charged, “but for what others did.” Francisco’s argument focused on the government’s depiction of the parents as conspiring through Singer. Many of the parents cut deals with the government in which they agreed to testify and admit they had criminal intent in exchange for a relatively light penalty. This allowed prosecutors to argue that Wilson also had criminal intent, specifically to deprive a school of the honest services of an employee. But Francisco blasted this method of prosecution since, he argued, the parents weren’t conspirators in any logical sense of that word; if anything, they were competitors since their children were competing for the same admissions slots.
Francisco analogized the parents to customers who buy an illegal product, such as drugs. Those customers, under court precedent, have not been identified as conspirators. “Customers are not interdependent—they don’t care about one another, they just want their product,” Francisco charged.
Wilson’s case, along with several other defendants who have challenged the government, invites debate about why using the side door is a crime while using the back door is not only lawful, but, as the Harvard case shows, welcomed by universities. Both involve privileged parents spending money to increase the odds their children are admitted into elite schools. The main difference, prosecutors contend, is that the side door deprives universities of the honest services of employees who partake in the scheme whereas the latter does not.
Is that enough of a difference for one to be a crime and the other to be a standard operating procedure?
During last Monday’s hearing, First Circuit Judge Sandra Lynch wondered what Congress intended when it passed the criminal laws at issue. “I sort of feel like we’re in a law school class,” she quipped, alluding to the uncertainty over the government’s use of bribery and conspiracy laws to police parents.
Francisco seized on that observation to note prosecutors “can’t find one example ever … that fits this fact pattern.” He added, “the first time my client, John Wilson, had notice his conduct was a crime was when the government filed this indictment, because it’s the first time in all of history that anybody has ever charged bribery on this set of facts.”
Decisions on the Harvard and Wilson cases will land in the coming months—watched closely, no doubt, by a certain cohort of parents.