Jeff Jacoby / May 27, 2020

College Admissions Cheating Is Sleazy, but It Shouldn't Be a Federal Case

Lori Loughlin and Mossimo Giannulli threw in the towel last week. The married couple, a Hollywood actress and a fashion designer, pleaded guilty in federal court to conspiracy to commit fraud in connection with the "Varsity Blues" college admissions scandal.

Lori Loughlin and Mossimo Giannulli threw in the towel last week. The married couple, a Hollywood actress and a fashion designer, pleaded guilty in federal court to conspiracy to commit fraud in connection with the “Varsity Blues” college admissions scandal. Abandoning their year-long attempt to get the charges dismissed, they accepted a plea deal under which Loughlin would serve two months in prison and pay a fine of $150,000. For Giannulli, prosecutors recommend five months behind bars and a $250,000 fine.

I won’t be shedding any tears for Loughlin and Giannulli. Their behavior, it is clear, was dishonest and disgraceful. What isn’t clear is why this had to be turned into a federal matter.

Like the dozens of other rich celebrities and CEOs charged in the case, Loughlin and Giannulli were accused of swindling their children’s way into college with the help of ringleader Rick Singer. So far, more than 30 of the parents named by the FBI and the US Attorney for Massachusetts have pleaded guilty. They made payments to Singer’s “charitable” foundation; he used the money to facilitate cheating on the kids’ college entrance exams, or to bribe coaches to designate the students as highly sought-after athletes. Loughlin and Giannulli, for example, paid $500,000 and got their daughters admitted to the University of Southern California as recruits for the USC crew team, even though neither girl had any rowing experience. Another actress, Felicity Huffman, paid Singer to have someone rig her daughter’s SAT scores.

So rich parents spread money around to grease their kids’ way into elite colleges they might not have gotten into on their own merits. It was underhanded. It was deceitful. It was also the kind of thing that many rich parents have been doing for their kids since the beginning of time.

But was it a crime against the United States of America?

It is hard to see how this case ever legitimately justified a sweeping federal prosecution. For tampering with tests and college applications, the parents could have been pursued in state court. The colleges themselves could have sued the parents and Singer for suborning coaches and bribing proctors.

Why did the federal government need to get involved? Myriads of illegal crimes and conspiracies — opioid smuggling, counterfeiting, healthcare fraud, human trafficking, identity theft — are indisputably public threats. Combating such offenses, plus the scourge of public corruption, often requires deploying the intimidatingly immense resources of the FBI and the Justice Department. But to nail a few dozen rich couples because they cut corners and paid bribes so their children could attend tony colleges? Was that really a national priority? Or was it overkill driven by a desire to score juicy press coverage?

“Since J. Edgar Hoover’s time, the FBI has been obsessed with chasing headlines that made them appear like righteous avenging angels,” says investigative journalist James Bovard, who has made a career of exposing government overreach. Those headlines are amply justified when the crooks being taken down are Ponzi schemers like Bernie Madoff, gangsters like Whitey Bulger, terrorists like Khalid Sheikh Mohammed, or racist mass killers like Dylann Roof. It is harder to see what the public gains, apart from the schadenfreude of seeing a rich celebrity fall humiliatingly from grace, when the feds make it their goal to lock up movie actresses like Loughlin and Huffman, who aren’t a danger to society.

Most of the “Varsity Blues” defendants have been convicted of committing (or conspiring to commit) “honest services fraud,” which is banned by a notoriously vague statute that makes it illegal “to deprive another of the intangible right of honest services.” It was passed by Congress in 1988 to make it easier to convict corrupt public officials (mere dishonesty being easier to prove than actual bribery or extortion), and it’s sometimes used by prosecutors to reach fraud in corporate settings. But the statutory language could theoretically reach any transaction that involves logrolling or string-pulling. In a 2009 opinion, the late Supreme Court Justice Antonin Scalia warned that aggressive prosecutors could use the nebulous “honest services” hook to go after “a mayor for using the prestige of his office to get a table at a restaurant without a reservation.”

US attorneys have wide latitude in deciding when and whether to prosecute potential crimes, and they are obliged to exercise that discretion wisely. Would the feds have pursued this case if they didn’t know the public would eat it up? The “Varsity Blues” parents behaved badly, but this was overkill.

(Jeff Jacoby is a columnist for The Boston Globe).

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