This information is provided for general educational purposes only. It should not be relied upon as, or in place of, professional advice. Readers are encouraged to work with their schools’ lawyers when addressing specific issues.
In the wake of “Varsity Blues” — the federal investigation into admissions corruption at several high-profile universities — independent schools may want to take a closer look at their internal controls around admissions fraud. Prosecutors not only implicated individuals in the criminal investigation but also made allegations that create a complex array of risks that may affect independent schools as well as colleges and universities. Heather Hoerle, executive director and CEO of The Enrollment Management Association, and Debra Wilson, president and CEO of Southern Association of Independent Schools, addressed these legal issues and best practices in a recent NBOA webinar, “The Fallout from the College Admissions Scandal for Independent Schools.”
Preparing for an Admissions Investigation
Educational institutions should expect that the fallout from Varsity Blues will lead to increased scrutiny by prosecutors, governmental authorities and accrediting agencies. Should your school be issued a subpoena, a number of steps may help safeguard your school against potential risks or vulnerabilities, said Hoerle and Wilson.
My experience working at the DOJ, in both criminal and civil [cases], is that people are pretty reasonable, but you want to have very straightforward conversations with all parties.
Debra Wilson
Southern Association of Independent Schools
- Identify the nature of the court order, subpoena and requested records. Subpoenas are used in both criminal and civil cases and are generally issued to persons or entities who are parties to the lawsuit, but other individuals not involved in the lawsuit may also receive subpoenas. These are known as “third party subpoenas.” Schools are typically served with “third party” subpoenas to access records that school may maintain. Clarifying whether the subpoena is part of a criminal or civil case will help both the school and attorneys maintain legal compliance and inform their response.
- State the school intends to comply with the subpoena by providing the requested records. A subpoena is part of a court's legal process, and failure to respond to a subpoena risks the school being found in contempt of court in most states. However, it is possible to negotiate the scope of records to be released. “My experience working at the DOJ, in both criminal and civil [cases], is that people are pretty reasonable, but you want to have very straightforward conversations with all parties,” said Wilson.
- Determine whether to the student or parent of the release of the records. Independent schools are generally not required to comply with the Family Education Rights and Privacy Act, particularly if the schools does not receive federal funds from the federal Department of Education. Unlike in the public school setting, this may mean that the school does not have to notify the parents of the subpoena response, and in a criminal proceeding, the prosecutor may prefer that the school does not notify the target or subject of the investigation. If a school must comply with FERPA, then the school will want to work with its counsel to determine if it must make a “reasonable effort to notify” the affected student or parents in the case, according to the Family Policy Compliance Office. See the exception to this requirement in the side bar, “When a Board Parent Is Under Investigation.”
- Follow all press protocols. The best practice for responding to the press is to avoid speaking or speculating about particular incidents as much as possible and, when necessary, communicate that the school is cooperating with the investigation. An air-tight communications protocol may help mitigate the risk of getting sued by any party and support the needs of current families and students.
- Consider an internal investigation or audit. Schools may find that subpoenas trigger a need or desire to do an investigation of the issue internally. Even schools that do not receive subpoenas may wish to conduct an internal audit of their college admissions processes to review any potential for incidents of admissions fraud. In either an investigation or audit, schools should talk with faculty and staff to see if they have been exploited during the admissions process to ensure that parents have not provided any gift or favor in exchange for a recommendation, reference or other action bolstering students’ application materials. “Even if the school is not the source of a federal or state investigation, it helps to understand what might have been happening within your walls,” said Wilson. See more on internal investigations in the article “With Justice For All.”
Lessons Learned
If there’s an immediate lesson in the “Varsity Blues” story, it’s that independent schools must continue to monitor the integrity of their testing and counseling processes, as well play a more active role in responding to the intense pressure many parents and students face.
“I think all of this is largely driven by parent anxiety about getting into the right college and securing a future for their kids,” said Wilson. That anxiety often plays out in a narrow race to get into the “best school” for its own sake, rather than around a clear sense of the functional pay-off a school will have, the doors it will open or what students might do once enrolled.
“Even if your kids get into a bunch of highly competitive colleges around the United States, do they really want to pay $70,000 a year?” posed Hoerle. In other words, the social and emotional pressures surrounding college admissions can often obscure other factors in deciding where students choose to go to college.
Besides legal counsel and precautions, Hoerle and Wilson cite a supportive and transparent relationship with parents and students as the right step when it comes to de-pressurizing the college admissions process. “Educate parents, recognize their anxiety and let them know that, frankly, they’re kind of targets out there to people who want to exploit their anxieties and fears,” said Hoerle. Then, help students focus on what’s important and broaden students’ choices so they can find the right match.
The best outcome for the independent school community might be to take a step back and ask serious questions about how this process became so pressurized that parents would knowingly lie and cheat to get their children into college. “It’s clearly time for us to think holistically,” said Hoerle.
For more case studies about these current issues, including the recent ruling on Harvard University’s affirmative action case and the legal complexities that many independent schools could be facing in the future, visit the archived webinar and slides.
