Like mail and wire fraud, this crime is triggered by lies, but the victims of this crime are not students, they are agencies of the federal government. The statute, 18 U.S.C. section 1001, commands that
Whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully ... (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact', (2) makes any materially false, fictitious, or fraudulent statement or representation; or (3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious or fraudulent statement or entry, (307) commits a felony.
The crime of false statements is committed when a person or entity submits a false statement to any branch or agency of the federal government (Agency). (308) In recent years law schools have submitted some of the same information not only to U.S. News, but also to the Section on Legal Education and Admissions to the Bar of the ABA, the only organization authorized to accredit law schools for the U.S. Department of Education (DOE). (309) In these overlapping categories, if a school submitted false information to U.S. News, then it also submitted a "false writing or document" to the accrediting agency.
The ABA serves as the DOE's official accrediting agency for law schools in the United States. As may be expected of a lawyers' organization, the ABA emphasizes the federal regulatory sources of its authority to establish standards with which law schools must comply to be accredited in the eyes of the DOE.
Under Title 34, Chapter VI, [section] 602 of the Code of Federal Regulations, the Council and the Accreditation Committee of the ABA Section of Legal Education and Admissions to the Bar are recognized by the United States Department of Education (DOE) as the accrediting agency for programs that lead to the J.D. degree. In this function, the Council and the Section are separate and independent from the ABA, as required by DOE regulations. The Council of the Section promulgates the Standards and Rules of Procedure for Approval of Law Schools with which law schools must comply in order to be ABA-approved. The Standards establish requirements for providing a sound program of legal education. The law school approval process established by the Council is designed to provide a careful and comprehensive evaluation of a law school and its compliance with the Standards. (310) The DOE confirms that the ABA, like the accrediting agencies for other types of educational institutions, performs functions integral to the DOE's mission.
The U.S. Department of Education does not accredit educational institutions and/or programs. However, the Secretary of Education is required by law to publish a list of nationally recognized accrediting agencies that the Secretary determines to be reliable authorities as to the quality of education or training provided by the institutions of higher education and the higher education programs they accredit. (311) A false statement submitted directly to the DOE concerning any of these issues would trigger federal jurisdiction under section 1001 because the DOE "has the power to exercise authority in [the] particular situation" in which the false statement arose. (312) But the falsehoods at issue here were not submitted directly to the DOE. Instead they were submitted to a private organization, the ABA. That anomaly will not defeat federal jurisdiction. Federal jurisdiction can exist even if the defendant did not make the false statement directly to the relevant federal agency. (313) Jurisdiction can exist even if the defendant submitted the information to a private entity (314) or a state government agency. (315)
The relationship between the ABA and the DOE seems consistent with the cases finding jurisdiction in these circumstances. The DOE has neither the legal authority nor the resources to develop and implement accreditation standards for the many hundreds of post-secondary schools and educational programs in the United States. The accrediting agencies upon which the DOE relies, including the ABA, perform essential functions that must be performed by someone or some group if the DOE is to have any chance of fulfilling its core mission of promoting "student achievement and preparation for global competitiveness by fostering educational excellence and ensuring equal access." (316)
In pursuing this mission, the DOE "engages in four major types of activities." (317) The ABA's work is relevant to all four, but here we will focus on only one, "[c]ollect[ing] data and oversee[ing] research on America's schools." (318) This set of tasks is itself essential for the DOE to succeed at its other major tasks, which it defines as establishing policies related to federal funding of education, identifying and focusing on important educational issues, and enforcing anti-discrimination laws in programs receiving federal funds. (319)
Once again history helps explain how the DOE's mission to collect data is relevant to possible crimes under the false statements statute. As noted earlier, the contemporary statute, 18 U.S.C. section 1001, was promoted by the first Franklin Roosevelt administration, which argued that neither the existing federal administrative agencies nor the new ones emerging from the New Deal could fulfill their institutional mandates unless they could collect reliable information upon which to base rules, actions, and policies. (320) If people and organizations could prevaricate when submitting data requested by an agency or department, the government could not function properly.
Secretary of the Interior Harold Ickes used his Department as an example when he lobbied both the House and Senate Judiciary Committees for an expanded false statements law. (321) Ickes argued that the Supreme Court's narrow interpretation of the 1918 Act created a gap in federal criminal law that would diminish his agency's effectiveness. (322)
In particular the Secretary was concerned that there were at present no statutes outlawing, for example, the presentation of false documents and statements to the Department of the Interior in connection with the shipment of 'hot oil,' or to the Public Works Administration in connection with the transaction of business with that agency. (323) Armed with the knowledge that the central purpose of the modern false statements law is not to prosecute false claims for money or property, (324) but instead is to punish those who do not submit to federal departments and agencies the accurate, honest information needed for effective governance, we can understand how gathering information from law schools, as is required by the ABA's accreditation and approval standards, fits squarely within that legislative purpose (along with the Department's other fundamental purpose, "fostering educational excellence").
The DOE confirms the importance of the recognized accrediting agencies and these agencies' authority to set standards for the schools they accredit.
The goal of accreditation is to ensure that education provided by institutions of higher education meets acceptable levels of quality. Accrediting agencies, which are private educational associations of regional or national scope, develop evaluation criteria and conduct peer evaluations to assess whether or not those criteria are met. Institutions and/or programs that request an agency's evaluation and that meet an agency's criteria are then "accredited" by that agency. (325) The statements and actions of the ABA and the DOE confirm the most logical understanding of the ABA's role in accrediting law schools: in this realm the ABA is a federal agency within the meaning of section 1001.
Although this interpretation seems the most logical interpretation of the law and facts, we have not found any judicial or administrative decisions reaching that conclusion. To apply the statute to information submitted to the ABA by law schools would be a new development in the long history of this statute. But it is a development that seems justified by the statute's history, its text, and the relevant facts. Because the statute's evolution and interpretation over the past century are relevant to understanding why it might apply to the current discussion, we begin by looking at the text and its history.
Like the crimes discussed earlier in the article, the false statements statute is applied expansively. The text is rife with words and phrases demanding broad application: whoever, any matter, any trick, scheme or device. (326) And the statute's expansive words have been amplified by amendments confirming Congress' intent to apply the statute expansively and to all branches of government. (327)
Indeed, the nearly 150-year history of the statute is defined by repeated expansion of the statute's scope by Congress. The statute originated in a Civil War statute that prohibited submitting false claims to the federal government. (328) In 1918, another great war produced a significant broadening of the statute, making it "[t]he first federal criminal statute prohibiting the making of a false statement in matters within the jurisdiction of any federal agency...." (329) In 1926, the Supreme Court interpreted the statute more narrowly than its new language suggested, holding that it applied only to "the fraudulent causing of pecuniary or property loss" to the federal government, and did not criminalize false statements submitted to the government for other purposes. (330)
However, early in the New Deal the it was concluded "that the 1918 Act, as thus narrowly construed, was insufficient to protect the authorized functions of federal agencies from a variety of deceptive practices," (331) and the Roosevelt administration asked Congress to overrule the Supreme Court's narrow interpretation by amending the statute to expressly apply to false...
Law deans in jail.
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