Law deans in jail.

• Author: Cloud, Morgan
• Position: P. 958-994

2. LSAT Scores and Undergraduate Grade Point Averages

   Law schools' false reporting of these "objective" data about students enrolled in their J.D. programs offer some of the most surprising and disturbing examples of possible violations of the mail and wire fraud statutes. Median LSAT scores and undergraduate GPAs of a school's first-year class are two of the most important components in the overall rankings by U.S. News. These two items account for 12.5% and 10% respectively of a school's overall score. (116) Thus by "improving" these numbers, a school can alter the data used to calculate almost one-quarter of the rankings' weighted score.

   Schools have artificially improved these numbers in different ways. Some schools have simply reported inaccurate numbers. One egregious example involves Villanova University School of Law, which has admitted that it knowingly reported false, inflated information to U.S. News about its students' LSAT scores for several years. (117) Over the course of a half-decade--from 2005 through 2009--Villanova reported that the median LSAT scores for its entering classes were two to three points higher than the actual scores. (118) In a letter to students and alumni, the law school's new law dean stated that "a small group of employees who had responsibility for admissions were responsible for the reporting of inaccurate data. Those employees asserted that former senior Law School administrators directed the misreporting activity." (119) Identifying the employees who participated in the scheme is necessary if prosecutors want to charge culpable individuals, but under the doctrine of respondeat superior either the employees or the former senior administrator were capable of creating institutional criminal liability for the school. (120)

   Six months later, the University of Illinois (Illinois) announced that its law school had engaged in a similar pattern of exaggerating its students' academic records. In September 2011, Illinois announced that its

   [I]nvestigation into the past 10 years of College of Law test scores and grade point averages (GPA) ... determined that inaccurate data were reported for four of those years. The findings indicate inaccurate data were entered that improved the Law School Admissions Test (LSAT) and GPA information describing the enrolled classes of 2011 through 2014. (121) In three of the years, the false data were reported to U.S. News. In two of the years, the school reported median LSAT scores of 166, when the correct score was 165. (123) During the third year the school reported the accurate LSAT score (which was 167), but claimed that the median GPA was 3.8, when in fact it was 3.6. (124) The impact of even these small falsehoods on the schools' U.S. News rankings is unknown. The authors are unaware of any effort by U.S. News to alert its customers and the public of these errors, or how the errors might have improperly elevated the law school's rank (which would inevitably lower the ranking of one or more other schools). Because even small changes in these numbers can be amplified by the magazine's methodology, the possible impact on each year's ranking, and its effect on students' decisions about which school to attend, cannot be discounted.

   Illinois' announcement highlights the importance of external verification of each law schools' self-reported statistics. After admitting that the law school had disseminated erroneous "[m]edians for both Law School Admission Test (LSAT) scores and grade point averages (GPA) ... for the classes of 2011 through 2014," Illinois provided what it labeled as "[t]he accurate, verified median data...." (125) Unfortunately, it appears that law schools and their administrators cannot be trusted to report even "objective" data accurately and honestly. We must question whether any ranking system affecting important interests that relies, even in part, on self-reported data can be trusted if it does not verily the accuracy of the data it employs. (126)

   Another statement in the University of Illinois' press release demonstrates that publication in U.S. News is not the only way that law schools marketing inaccurate or falsified LSAT and GPA numbers may be committing mail and wire fraud. The University admitted:

   For the Class of 2014, the information was disseminated through College of Law promotional materials though not reported to the ABA or rankings organizations. The 2011-2013 data had been shared both with the ABA and with U.S. News & World Report. The University has been in contact with the ABA and U.S. News, which ranks law schools. (127) The law school's promotional materials falsely claimed that the class of 2014 (the class entering law school in the fall of 2011) had a median LSAT score of 168 when the actual median score was 163. (128) A discrepancy of this magnitude undoubtedly would affect the school's U.S. News total score.

   The University's intervention may--or may not--have prevented 2011's inaccurate number from being used by U.S. News. (129) However, the University confirmed that its law school already had included the false numbers in its printed promotional materials and had posted them on the school's website. (130) This conduct illustrates another basis for charges of mail and wire fraud. The printed and digitized promotional materials were very likely distributed by mail and interstate wire communications to the people, including prospective students, who visited the school's website or received these promotional materials. Of course, the same possible liability exists for other law schools that have included false information in promotional materials mailed to prospective students or posted on the school's website. (131)

   U.S. News' responses to public admissions of wrongdoing by the University of Illinois and Villanova University raise further issues regarding the magazine's potential criminal liability for publishing these false data. In February 2011, Villanova informed U.S. News that the LSAT and grade information that it had submitted and that U.S. News was currently selling were false, deceptively inflating its students' median LSAT scores and undergraduate grade point averages. (132) U.S. News publicly acknowledged that, even if it had not yet received complete information about Villanova's misconduct, the false information submitted by that school had likely affected the rankings that U.S. News was selling at the time. (133) Shortly after Villanova's disclosure, Robert Morse, veteran director of the magazine's rankings program, explained how the falsehoods affected the rankings:

   How does the rankings data for the J.D. class entering in 2010 compare to the previous year's? The difference is significant enough between the older and newer data to have a meaningful negative impact on Villanova's upcoming ranking: For the fall 2009 entering class, Villanova reported inaccurately a median LSAT score of 162 and median undergraduate GPA of 3.44. For the fall 2010 entering class, Villanova certifies its median LSAT score was 160 and its median undergraduate GPA was 3.33. (134) This passage contains two critical admissions: U.S. News knew (1) it was publishing false data about Villanova law students' test scores, and (2) U.S. News' current ranking of the school was invalid. At the time Morse made these admissions, U.S. News was selling that invalid ranking online and in its printed guides.

   The responsibility of the magazine in this situation seems obvious: it should have taken reasonable action to protect its customers from the harms posed by the invalid information U.S. News knew it had published. Its failure to do so constituted mail or wire fraud. Like other companies that have sold defective products, U.S. News had options. It could, for example, have "recalled" the printed hard copies of the rankings and replaced them with new versions that corrected these known errors. U.S. News was unlikely to do this, if only because its next edition was to be published in only a few weeks. With this in mind, the magazine could claim that the costs of replacing the printed versions of the magazine so late in its publication cycle were unjustified--which might or might not be a defense to liability for mail or wire fraud. Even if not accomplished by replacing the printed versions of the magazine, correcting the rankings was, of course, still possible. U.S. News could simply have removed Villanova from the rankings, and published new rankings online. As another alternative, U.S. News also could have replaced the false data with the corrected lower scores and GPAs (assuming they were available), recalculated the rankings, and included Villanova in revised rankings published online.

   But these were not the magazine's only options. The magazine could easily have alerted its customers by placing prominent warnings on its website pages, and printing warnings in any printed publications marketed until the next year's rankings were published. U.S. News is in the business of communicating with its customers online and in its publications. Furthermore, as a publisher on a national scale, U.S. News has the ability to communicate to its customers in ways not available to companies that produce other kinds of goods. The nature of its business organization and functions provide it with tools for alerting its customers about defects in its published rankings, and with the means of distributing revised rankings to correct the known problems.

   It is worth noting that even in February 2011, a robust warning campaign would have been timely for some, perhaps most, students who had relied upon the rankings published over the previous months to choose a school to attend the following fall semester. Matriculating law students often do not make their final decisions about which schools to attend until the spring or summer before the students enroll. Had U.S. News taken aggressive action to announce the defect in its current...