What law is broken when you cheat on a college admissions test?

BOSTON (CN) — Moving past the ethical implications of cheating, a parent who paid to swap out answers on his son's college entrance exam fought on appeal Wednesday to draw the line well before criminal liability.

If federal wire fraud law applies here, then “every act of cheating, in grade school, in middle school or in high school is a crime,” defense lawyer Carter Phillips told a panel of judges in Boston hearing the appeal of Bill McGlashan, who pleaded guilty to one count of wire fraud after he was implicated in the massive college admissions scandal of 2019.

McGlashan, a private-equity superstar who founded TPG’s Growth Fund and co-founded the social-impact Rise Fund along with rock star Bono and the former president of eBay, paid $50,000 to have a test proctor secretly correct the answers his son bubbled in on the ACT college entrance exam. Surveillance tapes also showed McGlashan talking to the scheme's ringleader, Rick Singer, about paying a $250,000 bribe to get his son recruited as an athlete at the University of Southern California.

The bribe was never paid, and the bribery charges McGlashan initially faced were dropped when he pleaded guilty to fraud. He was sentenced to three months in jail, two years of probation, a $250,000 fine and 250 hours of community service.

On appeal, he is asking the First Circuit to consider whether the test scores at issue fit the text of the wire fraud statute, which statute makes it illegal to use fraud to obtain “property.”

Through his attorney Phillips, McGlashan contends that scores cannot be considered either physical property or intellectual property as they aren’t confidential — the whole point of test scores is to openly share them with admissions offices.

Phillips — who has argued 79 cases before the U.S. Supreme Court, more than any other lawyer in private practice — said the larger issue is whether there’s any practical limit on wire fraud prosecutions. “I have for 40 years tried to narrow the scope of this statute,” he told the judges, adding that if cheating on a test can result in 20 years in jail, “there’s no limit to what the government can do.”

U.S. Circuit Judge O. Rogeriee Thompson appeared reluctant Wednesday to swallow the lawyer's slippery slope connection between college entrance exams and less controlled testing.

But “every form of cheating doesn’t have economic value,” the Obama appointee noted. “If a fifth grader copies someone’s test answers, that doesn’t involve money.”

Phillips replied that “If he said, ‘I’ll look at your answers and I’ll give you a Diet Coke afterward,’ that’s a federal crime punishable by 20 years in prison.” Congress “couldn’t have meant that,” he added.

“But the kid with the Coke doesn’t have a property interest in the test,” Thompson objected.

In his brief to the court, Phillips wrote that the labeling of test scores as property means “any student in any setting who cheats on any test or assignment using the Internet, email, Zoom, or text messaging has committed wire fraud.” This “imperils federalism and due process” by “converting federal prosecutors into academic disciplinarians," he wrote

Thompson wrestled with this argument at the hearing. “People pay to take the test,” she said. “ACT and SAT have the exclusive right to control how the scores are distributed. They have to be distributed directly to the school to have value. The fact that it’s given to the student doesn’t give it value because colleges have to get the scores from ACT or SAT.”

“That’s all true,” said Phillips, is a partner with Sidley Austin in Washington. “But it doesn’t make test scores property. Just because something has value doesn’t make it property.” He noted that ACT is a nonprofit, and it “didn’t suffer any economic harm” from the cheating.

A contrary ruling would criminalize “everyday lies” including practical jokes, Phillips warns in his brief. “A run-of-the-mill online fib to secure a date could constitute wire fraud if the deceived party pays for cab fare or dinner.”

U.S. Chief Circuit Judge Jeffrey Howard, a George W. Bush appointee, said he thought of the statute as covering not just theft but “the loss of the ability to bargain with the true facts in front of you, the loss of the ability to make a true assessment.” He asked, “Is there something wrong with the way I’m looking at it?”

Phillips replied: “Access to all the information is not what the statute is about. It’s designed to deal with stealing money, which is why there’s a 20-year sentence. It’s inconceivable that Congress had in mind this type of behavior and thought it deserved a 20-year sentence.”

U.S. Circuit Judge Gustavo Gelpí, a Biden appointee who joined the court in October, worried that, under Phillips’ interpretation, “hundreds of thousands of convictions could be suspect.”

Phillips conceded that hundreds of convictions could be vulnerable to reversal, but he pointed to a 1987 U.S. Supreme Court case that did the same to hundreds of convictions by narrowing the wire fraud statute.

In addition to property, the wire fraud statute also covers the deprivation of “honest services,” a section that Congress added in 1987 to enable prosecutions for public corruption. The government charged McGlashan under this section as well on the theory that the test proctor was an “informal fiduciary.”

While Phillips struggled to persuade the judges that test scores aren’t property, he made headway here. Assistant U.S. Attorney Alexia De Vincentis spent most of her time fending off the judges’ challenges on this point and ended up arguing that the judges should simply bypass the issue because McGlashan hadn’t preserved it for appeal, which Phillips immediately denied.

Still, even if McGlashan wins on the honest services issue, he’ll still lose if the court finds that test scores are property.

“At the end of the day,” Phillips told the court, “not every act of bribery is a federal criminal offense.” Which might be true, but the judges didn’t appear convinced that this particular act of bribery was legal.

Some 57 people have been charged in the scandal that the FBI dubbed "Varsity Blues," a fitting film reference for an operation that rattled Hollywood with the arrests of the actors Lori Loughlin and Felicity Huffman. Loughlin was sentenced to two months in prison and her husband, fashion designer Mossimo Giannulli, was sentenced to five. Huffman was sentenced to two weeks at a minimum-security prison and served 11 days. 

Singer faces up to 65 years in prison and a $1.25 million fine but has been out on bail as a cooperating witness.  

To date, 38 parents have pleaded guilty or been convicted of paying Singer more than $25 million between 2011 and 2018. A handful of cases remain scheduled for trial this year.  

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