Defining corruption through college admissions: answering the call for a redefinition of corruption by turning to the real world

• Author: Philip M. Nichols
• Position: Joseph Kolodny Professor of Social Responsibility in Business and Professor of Legal Studies and Business Ethics, the Wharton School of the University of Pennsylvania
• Pages: 481-530

FEATURED ARTICLE

DEFINING CORRUPTION THROUGH COLLEGE ADMISSIONS:

ANSWERING THE CALL FOR A REDEFINITION OF CORRUPTION

BY TURNING TO THE REAL WORLD

Philip M. Nichols*

ABSTRACT

The United States has two problems with corruption. Most evidently, the

United States experiences corruption, and suffers its harms. More problemati-

cally, the United States’ legal system struggles with the concept of corruption,

and how to define it. Over the last fifteen years, the Supreme Court has aggres-

sively narrowed its definition, acutely undercutting the ability of the legal system

to control corruption. Legal scholars, and the public, have emphatically responded

with calls for reconsideration and redefinition. The furious reactions to the

Court’s definitional sleight of hand, however, seem to die out after those calls are

made, and legal scholarship lies adrift, seeking a useful approach to defining cor-

ruption. Intriguingly, an approach lies directly in the vision of the legal system.

For the past quarter century, while the Supreme Court has enfeebled the law, ac-

tivity among anticorruption organizations has surged. Those practitioners have

coalesced around a shared understanding of corruption. This Article explores that

definition by applying it to the recent scheme involving college admissions. To do

so, the Article first must explore the missions of universities and the admissions

process that supports those missions, and second must closely examine the scheme

itself. When applied to this scheme, the general understanding effectively distin-

guishes corrupt acts from other acts and provides other insights. Corruption is a

real-world phenomenon, and the general understanding shared by real-world

practitioners constitutes a valuable tool, which merits consideration and use by

the legal system.

INTRODUCTION

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482

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

I. DEFINING CORRUPTION 484

A. The Supreme Court’s Shrinking Definition . . . . . . . . . . . . . . . 484

B. A General Understanding of Corruption . . . . . . . . . . . . . . . . 488

II. THE SCHEME TO EXPLOIT COLLEGE ADMISSIONS . . . . . . . . . . . . . . . . . 492

A. The College Admissions Process . . . . . . . . . . . . . . . . . . . . . . 492

* Joseph Kolodny Professor of Social Responsibility in Business and Professor of Legal Studies and Business

Ethics, the Wharton School of the University of Pennsylvania. © 2023, Philip M. Nichols.

481

B. Rick Singer’s Scheme . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 500

1. Indicators of the Likelihood of Academic Success . . . . . . 502

2. Recruiting for Particular Characteristics . . . . . . . . . . . . . 505

3. The Flow of Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . 508

III. APPLICATION OF THE GENERAL UNDERSTANDING TO THE COLLEGE

ADMISSIONS SCHEME . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 510

A. Abuse or Misuse of Authority or Trust . . . . . . . . . . . . . . . . . . 511

B. Personal-Regarding Interest . . . . . . . . . . . . . . . . . . . . . . . . . 515

IV. “CORRUPTION” THAT DOES NOT FALL WITHIN THE GENERAL

UNDERSTANDING OF CORRUPTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 518

A. Failure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 519

B. Undue Influence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 523

V. THE GENERAL UNDERSTANDING SATISFIES DEFINITIONAL NEEDS

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . 526

CONCLUSION 529

INTRODUCTION

The United States has two problems with corruption. Most evidently, corruption

occurs in the United States, which almost certainly inflicts the same harms and

degradations as found in other countries.

1

More problematically, the United States’ legal system struggles to conceptualize

corruption, let alone to control it. Over the last fifteen years, the Supreme Court

has weakened or eradicated laws intended to control corruption.

2

Often, they have

done so by narrowing the definition of corruption, or by redefining it in ways that

limit the scope of those laws.

3

The enfeeblement of anticorruption laws through definitional sleights of hand

has generated calls for reconsideration of the definition of corruption.

4

The

1. See TRANSPARENCY INTERNATIONAL, CORRUPTION PERCEPTIONS INDEX 2022 at 2 (2023) (giving the United

States a score of 69 out of 100, which places it in the second tier of integrity). Numerous studies measure the

harms inflicted by corruption, which include: shorter lifespan, increased infant mortality, lower levels of

education and literacy, environmental degradation, increased bureaucracy, degradation of qualifications of

bureaucrats, increased costs to conducting business, and decreased business efficiency. See Philip M. Nichols,

Corporate Accountability for Corruption and the Business Case for Transparency, in THE CAMBRIDGE

COMPANION TO BUSINESS & HUMAN RIGHTS LAW 260, 266–70 (Ilias Bantekas & Michael Ashley Stein eds.,

2021) (reviewing studies); Philip M. Nichols, The Business Case for Complying with Bribery Laws, 49 AM. BUS.

L.J. 325, 335–41 (2012) (reviewing studies).

2. See Ben Covington, State Official Misconduct Statutes and Anticorruption Federalism after Kelly v. United

States, 121 COLUM. L. REV. F. 273, 278–79 (2021) (stating that over time and “across several different statutes,

the Court has narrowed the reach of federal official corruption law (sometimes dramatically so)”).

3. See Michael S. Kang, The End of Campaign Finance Law, 98 VA. L. REV. 1, 27 (2012) (“The corruption

interest had been dramatically shrunk down to what the Court had previously called a ‘crabbed view of

corruption[.]’” (quoting McConnell v. FEC, 540 U.S. 93, 152 (2003)); Ciara Torres-Spelliscy, Deregulating

Corruption, 13 HARV. L. & POL’Y REV. 471, 479 (2019) (noting that the Supreme Court “has wreaked havoc on

the meaning of the word corruption––nearly defining it away to meaninglessness––while simultaneously gutting

nearly every campaign finance law it has touched”).

4. See Scott P. Bloomberg, Democracy, Deference, and Compromise: Understanding and Reforming

Campaign Finance Jurisprudence, 53 LOY. L.A. L. REV. 895, 898 (2020) (noting that the narrowing of

482 AMERICAN CRIMINAL LAW REVIEW [Vol. 60:481

response from legal scholarship has been largely theoretical.

5

The voices and expe-

rience of those who deal with corruption around the world have played little or no

role in those jurisprudential discussions. The disconnect between jurisprudential

theory and reality risks the development of legal structures and theories that, while

elegant, have little effect in controlling corruption.

6

Among practitioners who work with corruption, and those who study or work

with practitioners, a general understanding of corruption has emerged. This Article

articulates that understanding: corruption is an abuse or misuse of authority or trust

for personal-regarding reasons rather than the reasons for which authority or trust

was bestowed.

7

This Article argues that corruption is a real-world phenomenon,

and therefore legal scholarship would be well-served by using an understanding

developed by real-world practitioners. To demonstrate the utility of this under-

standing, this Article uses and thoroughly explicates a real-world situation widely

decried as corrupt—a scheme involving the college admissions system.

8

The

Article first reviews universities’ missions and the ways in which admissions sys-

tems support those missions.

9

The piece then thoroughly examines the structure of

and actions involved in the scheme to exploit the college admissions system.

10

By

applying the general understanding to that scheme,

11

the Article demonstrates the

utility of that understanding. The general understanding capably distinguishes

between corrupt and noncorrupt actions and provides insights into each.

12

Not all of the structures or actions associated with college admissions that have

generated accusations of corruption fall within the general understanding of cor-

ruption. Some commentators argue, for example, that the general failure of the

definitions by the Supreme Court has “prompt[ed] calls for reform from the public and from scholars”); Jacob

Eisler, The Unspoken Institutional Battle over Anti-Corruption: Citizens United, Honest Services, and the

Legislative-Judicial Divide, 9 FIRST AMEND. L. REV. 363, 366 (2011) (calling for the development of corruption

theory); Deborah Hellman, Defining Corruption and Constitutionalizing Democracy, 111 MICH. L. REV. 1385,

1421 (2013) (arguing that Congress must develop a theory and definition of corruption); Anthony Johnstone, A

Madisonian Case for Disclosure, 19 GEO. MASON L. REV. 413, 449 (2012) (calling for a broader and more

informed understanding of corruption); Anna A. Mance & Dinsha Mistree, The Bribery Double Standard:

Leveraging the Foreign-Domestic Divide, 74 STAN. L. REV. 163, 203 (2022) (arguing that Congress must

redefine corruption); Torres-Spelliscy, supra note 3, at 476 (observing public demand for definitional reform).

5. See, e.g., Deborah Hellman, A Theory of Bribery, 38 CARDOZO L. REV. 1947, 1952 (2017) (stating that she

will parse theory, philosophy, and “intuition” to develop a theory).

6. See David Fontana & Aziz Z. Huq, Institutional Loyalties in Constitutional Law, 85 U. CHI. L. REV. 1, 83

n.393 (2018) (“There is also some reason to think the [McDonnell v. United States] decision rests on an infirm

understanding of how quid pro quos distort public action.”); Miriam Galston, Buckley 2.0: Would the Buckley

Court Overturn Citizens United?, 22 U. PA. J. CONST. L. 687, 689 (2020) (decrying, in the context of campaign

finance law, “the disconnect between the lofty rhetoric” and reality, and warning that “the Court has created an

alternative universe”).

7. See infra notes 58–69 and accompanying text.

8. See John F. Gaski, The College Admissions Racket, 56 SOC’Y 357, 357 (2019) (labelling the scheme as

corrupt).

9. See infra notes 72–125 and accompanying text.

10. See infra notes 126–204 and accompanying text.

11. See infra notes 205–302 and accompanying text.

12. See infra notes 303–12 and accompanying text.

2023] DEFINING CORRUPTION 483