Expel the Students? It’s Not an Easy Choice for Duped Colleges

(Bloomberg Opinion) -- After the initial shock from the college admissions cheating scandal passes, university administrators will have to face the unenviable problem of whether to throw out the students who got in under false pretenses.

You might think the solution is simple: If the parents cheated, the kids should pay the price. But things are a little more complicated, at least from the standpoint of the universities.

Some students knew that they were cheating on the ACT or SAT exams. But others didn’t. According to one statement made on a taped call by William Singer, the college admissions consultant who ran the whole scheme, “most of the kids” didn’t know that their scores were being enhanced after they left the testing center.

As for the students whose applications falsely claimed they were elite athletes, most must have realized that their paperwork was doctored.

But in at least one instance, the tapes suggest that a student admitted to the University of Southern California had no idea he had been classified as a varsity track and field athlete until he showed up as a freshman and started getting emails about practices and team events. Even then, the tapes hint, his parents tried hard to avoid telling him that he’d been admitted by fraud.

So the first job facing the universities would be to figure out, case by case, what the applicants knew and when they knew it. Then they would have to figure out whether those students who were actually ignorant of their parents’ efforts should be freed from any discipline.

After the fact-finding, universities will have to wrestle with the tricky question of what sanction would be appropriate for what form of wrongdoing.

Take the standardized-test cheating. Knowingly and intentionally cheating on the SAT or ACT should presumably be grounds for discipline and maybe expulsion.

Before kicking anybody out, however, the universities would have to be sure they were following their existing policies. For those universities that have previously expelled students who cheated on admissions tests, the path would be relatively clear. Others, however, may have adopted more moderate sanctions for cheaters. It would be unfair for the students in the scandal revealed Tuesday to be punished more harshly just because their cases got publicity.

The lying about athletic ability is more complex still. Unfortunate though it is, students exaggerate and pad their resumes all the time. Colleges will therefore have to sort through and compare the different kinds of lies — and assess them in comparison with other kinds of overstatements or exaggerations.

For some of the applicants, Singer and his team invented whole athletic careers that didn’t exist — like the student admitted to Stanford’s sailing team who had never sailed. For others, though, Singer just advised the parents to exaggerate the applicant’s existing athletic accomplishments, effectively promoting the student from enthusiastic high school athlete to elite status. Arguably, the latter lie is less deserving of harsh punishment than the former, and more similar to ordinary applicant exaggerations.

Perhaps most intriguing is the question of a teenager’s moral culpability. It’s worthwhile to note that the Massachusetts U.S. attorney’s office chose not to indict any of the children — or even mention their names.

That’s not because the students’ conduct wasn’t criminal. Although the parents paid the bribes, the whole fraudulent enterprise qualified as a criminal conspiracy in legal terms.

In a conspiracy, anyone who agrees to participate can be held legally responsible for the crimes of the other participants. Students who agreed to cheat on the tests or lie on their applications logically participated in the conspiracy in this instance.

More likely, the U.S. attorney’s office didn’t charge the students because the crimes took place before the applicants were 18. Under the relevant federal law, juveniles can ordinarily be charged as adults only for crimes of violence or certain drug offenses, or if state law is inadequate to address their crimes. Although there could conceivably have been some way to prosecute the students federally, it would have been difficult to do so.

From the standpoint of the universities, there could be a natural tendency to treat teenage applicants as kids deserving sympathy more than condemnation. It could also be disruptive on campus for students to disappear suddenly, based on their conduct in applying — especially at USC, where the largest number of fake athletes seems to have been admitted. Expulsions could also generate bad publicity.

At the same time, if the universities don’t act against the students, they may come under harsh criticism from outside for coddling the children of the rich and for failing to treat crimes seriously. This is especially likely to be true where the student is high profile, like the implicated influencer-students, one of whom has 1.4 million Instagram followers.

All this adds up to major headaches for university administrators. Let’s hope they remember that no good crisis should be wasted, and take steps to reform admissions.

Singer may have been lying, of course.

For example, an ongoing criminal conspiracy that bridges an offender's 18th birthday allows federal prosecution — which arguably might have been the case here, depending on whether the crime is thought to have concluded on admission or only on graduation.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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