Harvard Privilege on Docket and Admissions, Varsity Blues Cases | Tech US News

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Two cases, one before the U.S. Supreme Court and the other before the U.S. Court of Appeals for the First Circuit, grapple with an age-old question: Should applicant privilege affect whether a prestigious university offers admission?

yet Students for Fair Admissions v. Harvard and United States v. John Wilson pose radically different risks to the two defendants charged with violating the privilege laws. And the Cambridge, Massachusetts, institution plays an important role in both cases.

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Harvard maintains an admissions policy that awards “tips” for factors such as legacy status, being the child of a major donor, being the child of faculty or staff, being a recruited athlete, or belonging to a particular race or ethnicity. In oral arguments last month, several justices said Harvard’s policy benefits elite kids as much as it diversifies the student body. Squash, crew, and some other college sports, according to Judge Neil Gorsuch, “overwhelmingly favor white kids.” A lawyer for the group suing Harvard insisted that “for every low-income student on campus, there are 23 wealthy students.”

Harvard is accused of violating Title VI of the Civil Rights Act of 1964. That law prohibits colleges from discriminating or denying benefits based on race, color, or national origin. If Harvard loses, it should overhaul its admissions policy. The same is true of other universities whose policies combine privilege and diversity.

But no one from Harvard would be sent to prison.

The same cannot be said for John Wilson. Private equity investor and Harvard graduate Wilson faces 15 months in prison after being convicted by a jury last year on 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 set up by notorious admissions consultant Rick Singer. Wilson said he expected the money to improve the university’s athletic programs. His son and twin daughters were accepted to USC, Stanford and Harvard as members of the water polo and sailing teams.

Unlike other parents caught by the Justice Department, Wilson was not accused of bribing university officials, bribing proctors to improve his children’s SAT scores, inventing fictitious learning disabilities to get extra time on tests, staging fake sports photos or creating misleading application material. The former president of Staples International insists his children were qualified for admission.

Former US Solicitor General Noel Francisco defended Wilson at a hearing in the First Circuit in Boston last Monday. Francisco, now managing partner at Jones Day in Washington, DC, insisted that his client was not part of any conspiracy with the other parents, but was a client-like entity. Singer sold Wilson (and other parents) on the “side door,” which offered a vehicle for wealthy parents to secure admission for children who might fail the highly competitive selection process. It was also more accessible and reliable than the “back door,” where a parent legally donates millions of dollars to a university in the expectation that it will lead to their child’s admission.

“[Wilson] he was convicted not for what he did,” Francisco charged, “but for what others did.” Francisco’s argument focused on the government’s portrayal of parents as conspirators through Singer. Many parents took plea deals with the government in which they agreed to testify and admit they had criminal intent in exchange for a relatively light sentence. This allowed prosecutors to argue that Wilson also had criminal intent, specifically to deprive the school of an employee’s honest services. But Francisco blasted this method of prosecution, arguing that the parents were not conspirators in any logical sense of the word; if anything, they were rivals, as their children competed for the same enrollment spots.

Francisco compared parents to customers who buy an illegal product like drugs. These parties have not been identified as co-conspirators by court precedent. “Customers are not interdependent – ​​they don’t care about each other, they just want their product,” Francisco said.

Wilson’s case, along with many 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 legal but, as the Harvard case shows, welcomed by universities. Both involve privileged parents spending money to increase their children’s chances of getting into elite schools. The main difference, prosecutors argue, is that backdoors deprive universities of fair service to employees who participate in the scheme, while the latter do not.

Is that a big enough difference that one is a crime and the other is standard operating procedure?

Maybe not.

During a hearing last Monday, First District Judge Sandra Lynch questioned what Congress intended when it passed the criminal law in question. “I kind of feel like we’re in law school,” she joked, hinting at uncertainty about the government’s use of bribery and conspiracy laws for police parents.

Francisco seized on this observation to note that prosecutors “never find a single case … that fits this fact pattern.” He added: “The first time my client, John Wilson, noticed that his conduct was criminal was when the government brought this indictment, because this is the first time in everything history that anyone has ever accused bribery based on this set of facts.”

Decisions on the Harvard and Wilson cases will be handed down in the coming months – no doubt with a certain group of parents watching closely.

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