Lawyer smells a rat in ‘Varsity Blues’ cases
It is common knowledge that elite college and university admissions officers put their thumbs on the scale in order to facilitate the admission of the children of major donors — those who provide large gifts or endowments or who finance new buildings or professorial chairs (usually named after the donors).
This time-honored practice is completely legitimate and is universally recognized as such despite sometimes being viewed as “unfair.”
However, the recent series of federal prosecutions in Boston, colloquially dubbed the “Varsity Blues” cases, raises the profound legal and ethical question of where to draw the line between a legitimate gift and a criminal bribe.
In “Varsity Blues,” some of the money went through college counselor William “Rick” Singer to the schools. Some Singer kept. And in some cases, Singer routed the money to corrupt insiders.
As a result, a number of parents have already been convicted and sentenced to prison. Some have already served their sentences and have been released. One was even pardoned by former President Donald Trump.
Yet, as is sometimes the case in any series of prosecutions of defendants thought to be in the same category, a defendant or two turns out not to fit neatly into the pattern. The prosecution of John Wilson is a case in point.
Wilson, it was alleged in the indictment, paid Singer $1.2 million in order to aid in the admission of all three of his children to elite colleges: the University of Southern California, Harvard University and Stanford University.
One of the three children, Wilson’s son, according to the indictment, was falsely portrayed as a skilled water polo athlete. The other children, Wilson’s two daughters, were considered, from the start, to participate on sports teams in supporting roles, not as athletes, and there was no discussion of fake profiles.
All of Wilson’s funds were meant as donations to the school athletic programs, not to any corrupt insiders. In fact, when Wilson’s son was applying to USC, the school’s assistant athletic director, Alex Garfio, told Wilson to donate to the school’s water polo team through Singer’s organization as a way to boost his son’s chances of being accepted.
In the government’s sentencing memorandum, the government mentions that Wilson’s son quit the water polo team after the season ended as supporting evidence that Wilson was in on Singer’s illegal activity.
However, Wilson’s son quit the team, as he noted in his resignation letter, after he had his fourth concussion — totally unrelated to Singer’s “side door” business.
Wilson’s donation to USC should come as no surprise; he has, in fact, a history of donating to a multitude of schools and organizations, including Harvard, all before his children applied for college.
In Wilson’s case, the money went to the universities through Singer’s organizations, Key Worldwide Foundation and The Key, and a personal payment was made to Singer for his work.
Wilson did not hire Singer with bad intentions; Singer had been recommended to Wilson as a college counselor who would help Wilson’s children with preparation for college, and for years Singer did just that.
Despite the fact that there remained no evidence of fraud or bribery, the trial judge, Nathaniel Gorton, sentenced Wilson to 15 months in prison.
Wilson’s defense lawyers, former federal prosecutor Michael Kendall and the highly reputed Noel Francisco, argued before Judge Gorton during Wilson’s motion for release pending appeal that their client did not commit
federal bribery, because “bribery occurs when an official or employee allows his private interests to control the exercise of his duties to his principal. When payment is made to the agent’s principal, that simply has not occurred, even if the agent also derives some indirect benefit.”
Wilson donated specifically to the universities’ athletic programs, which in turn benefited his kids by increasing their chances of being accepted to those universities. All of this is completely legal. With no federal bribery going on, Wilson’s conviction of tax fraud is also moot.
In short, having not known about the true nature of Singer’s operation, Wilson could not have conspired with him in the first place.
Yet, Gorton disagreed. He claimed to be “dumbfounded and appalled” by the situation. He decried parents who would employ such donations to help their kids into college, claiming that Wilson “stole admissions spots at good colleges from other students who did not have all of your advantages.”
While this may be unfair, it is a common practice that continues to this day and is not illegal. In fact, it’s a meaningful part of many university business models and a major source of funding for scholarships and facilities.
The case is now on appeal.
I spoke with Hank Asbill, one of the lawyers working on the case with Francisco. He pointed out the obvious fact that many parents donate to colleges in order to help get their kids admitted. Asbill posited the obvious: Wilson’s contributions were legitimate donations, because all the money went to the schools themselves (not individual coaches), and his kids were fully qualified for admission.
Asbill was particularly worked up over the fact that even though all phone calls made by “cooperating witnesses” were supposed to be duly recorded, Singer, on his own, was allegedly left alone in the government’s own offices to make the critical set-up call to the Wilsons while five FBI agents and the lead prosecutor left him alone for 43 minutes with no recording device. On this non-recorded phone call, Singer spoke to Wilson’s two daughters, Wilson’s wife and Wilson himself.
As a criminal defense and civil liberties lawyer since I entered the bar in 1967, I smell a rat.