AuthorRowe, Rachel


INTRODUCTION 183 I. THE LANDSCAPE OF HIGHER EDUCATION 186 II. THE LEGISLATIVE RESPONSE TO THE COLLEGE 190 ADMISSIONS SCANDAL A. Proposals to Enhance Transparency 191 1. College Equity Audits 191 2. Increasing Oversight of Students admitted "by exception" 192 3. Regulation of College Counselors 194 B. Proposals to Create Equity Through Direct Regulation 195 1. Discouraging Preferential Admissions for Donors and 195 Alumni 2. Adjusting Tax Benefits to De-incentivize Unethical 197 Behavior 3. Reducing the Role of Donations by Restricting 198 Tax Deductions C. Proposals to Advance Equal Opportunity for Low-Income 200 Students 1. Re-Evaluating the Role and Effectiveness of College 200 Entrance Exams.. 2. Improving College Affordability 203 III. WORKING TOWARDS A LONG-TERM SOLUTION 205 INTRODUCTION

"OK, so, who we are... what we do is we help the wealthiest families in the US get their kids into school... There is a front door which means you get in on your own. The back door is through institutional advancement, which is ten times as much money. And I've created this side door in." (1)

In March of 2019, the U.S. Department of Justice arrested fifty-three individuals (2) because of their alleged involvement in a conspiracy to commit racketeering, money laundering, wire and/or mail fraud, and fraud the United States. (3) The suspects involved in this nationwide conspiracy facilitated cheating on standardized tests, college acceptance bribery, money laundering, and document fabrication to aid students in gaining acceptance into elite universities as purported athletic recruits. (4) They included athletic coaches from Yale, Stanford, USC, Wake Forest, and Georgetown, (5) along with high-profile television star Lori Loughlin, fashion designer Mossimo Giannulh, and actress Felicity Huffman. (6) The leader of this scandal--William "Rick" Singer--explained to parents that there are three "doors" available for entry into elite universities. (7) There is a "front door" which is based on one's merit, exceptional grades, and standardized test scores. (8) There is a "backdoor" which requires large donations to the university to ensure a second look at an applicant; and finally, there is a "side door" that Singer created, which involved cheating, fraud, and bribery. (9) For several years, this "side door" was used to help more than 850 applicants get into college. (10) In fact, it is reported that a total of $25 million was used to bribe college coaches, school officials, and administrators, (11) and that one parent spent $6.5million to guarantee their child's admission into an elite university. (12) To date, this case is the largest college admissions scandal ever prosecuted by the U.S. Department of Justice. (13)

Some view the college admissions scandal as a visceral display of how wealth and privilege dominate the college admissions system, while others believe that the scandal exposes the underlying inequities and corruption that are deeply rooted in higher education. (14) Because this scandal exposed illegal and unethical conduct in admissions, it has undercut public confidence and trust in higher education. (15) This is problematic because it fuels already existing concerns about whether higher education is a worthy investment of public funds and "whether we're getting our money's worth." (16) Ultimately, such public opinion may undermine the integrity of higher education because a lack of American support for public spending on higher education can influence Congress to reduce federal funding. (17) Because "[h]igher education has become increasingly necessary for occupational and economic success in the United States," (18) a reduction in federal funding could have grave consequences. (19) For example, a rollback in funding could threaten affordability and access for students. (20) Historically, funding cuts have led to (1) an increase in tuition costs, which has made it difficult for students to enroll and graduate, and (2) an increase in racial and class inequality because higher tuition prices have deterred low-income and minority students from attending college. (21)

In this comment, I argue that creating an equitable, more transparent college admissions system is necessary to preserve the legitimacy of higher education. Specifically, this comment argues that the college admissions scandal (22) has caused serious and potentially permanent damage to public confidence in the college admissions process. Because an unregulated college admissions system encourages a race to the bottom, (23) the federal and state legislature should enact appropriate legislation to reverse this trend and rebuild legitimacy in higher education. (24)

Part II of this comment introduces the landscape of higher education and the legal constraints and pressures that universities face in today's college admissions system. Part III analyzes the legislative proposals that were introduced in response to the college admissions scandal and highlights the strengths and weaknesses of each proposal. Part III also classifies these proposals, placing them into one of three categories based on their legislative intent and purpose. The first set of bills focus on enhancing transparency in the college admissions system. The second set of bills look to create equity through direct regulation. The final set of bills aim to advance equal opportunity for low-income students. By highlighting these proposals, this comment posits that higher education has reinforced inequity rather than combat it. Part IV concludes that the college admissions scandal exposed the issues of inequity in higher education and that the federal and state legislatures should re-examine the bills proposed in the wake of the scandal to determine the best course of action for prospective bills.


    Acceptance into an elite university is more competitive now than ever before. (25) Today, approximately 75% of high school graduates apply to some form of higher education. (26) Additionally, 19.7 million students expected to attend college in the Fall of 2020. (27) Despite such staggering numbers, college acceptance rates continue to plummet and admission into college has become that much harder. (28) For the first time in history, the college admission rate dropped as low as 4.5%, (29) and such meager acceptance rates are commonplace at elite universities. In the 2018-2019 academic year, the acceptance rate at Harvard University was 4.5%, Columbia University was 5.1%, Princeton University was 5.8%, and Yale was 5.9%. (30) While acceptance rates continue to fall, students and parents face increased pressure to be one of the lucky few that receive a rarified acceptance letter. The "college admissions cheating scandal shows just how far some people are willing to go to get their kids into an elite university." (31) Most importantly, this scandal exposed "how college admissions have become so cutthroat and competitive that some have sought to break the rules." (32)

    In the wake of the college admissions scandal, legislators and scholars continue to debate the best course of action to advance equal opportunity in higher education, (33) within the constraints of what is constitutionally acceptable. (34) Since the 1970s, the Supreme Court has imposed progressively more limitations on the use of race in college admissions. In 1978, the Court in Regents of the University of California v. Bakke approved UC Davis School of Medicine's limited use of race in admissions but concluded that it was inappropriate for universities to set aside a specified number of seats for diverse students. (35) In 2003, the Court held in Gratz v. Bollinger that it was unconstitutional for the University of Michigan to automatically assign points to an underrepresented minority applicant because it did not provide individualized consideration. (36) However, in that same year, the Court in Grutter v. Bollinger upheld the University of Michigan Law School's policy to admit a critical mass of minority students, reasoning that it did not award "predetermined diversity 'bonuses' based on race or ethnicity" but instead focused "on all factors that may contribute to student diversity." (37) Because diversity can only be used as a plus factor, the Court has made it very difficult for universities to achieve a more diverse student body or advance equal opportunity.

    It is also important to recognize that this conversation is occurring in a time in which a number of institutions of higher education are facing financial crisis. (38) Over the last decade, public funding for higher education has faced severe budget cuts. (39) As a result, public and private institutions have been forced to increase tuition (40) and recruit high-income students to stay afloat. (41) While universities aim for a more equitable admission process and diverse admission class, financial challenges have made these goals more difficult. Universities find themselves having to recruit affluent students because they need tuition revenue. (42) Thus, "[c]olleges preferring wealthy students from elite families has been a legal form of discrimination for over a century." (43) A recent report by the National Association for College Admission Counseling revealed that approximately half of American universities consider an applicant's "ability to pay" as an important and influential factor in the decisionmaking process. (44) For example, admissions officers from the University of Wisconsin-Stout installed a tracking software on their school website that allowed their department to collect data about prospective students visiting their site. (45) This data aided officers in determining whether the prospective student had enough family income to help their school meet revenue goals. (46)

    Wealth plays a major role in our current admissions system because there are several legal ways that money can be used to increase a...

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