Class Dismissed: Ascertainability, Adequacy, and the College Bribery Cases by Vanessa Miller

Aggregate-party litigation, particularly the class action device, is a powerful and pervasive tool of social change. The class action is an “ingenious procedural innovation that enables persons who have suffered a wrongful injury…to obtain relief as a group” (Eubank v. Pella Corp., 7th Cir. 2014). There are few examples in the history of aggregate-party litigation where the preservation of the public interest is as salient and important than in education.

Beginning with the onset of the civil rights movement, when the NAACP filed a class action lawsuit against the Board of Education of Topeka Public Schools that ultimately led to the landmark decision in Brown v. Board of Education (1954), the breadth and significance of the class action device in education litigation have proven irrefutable. Class action lawsuits in education have addressed segregation on the basis of race (Brown v. Board of Education, 1954), inequities in school funding (San Antonio School. District v. Rodriguez, 1973), access to public schools for undocumented students (Plyer v. Doe, 1982), race-conscious admissions policies (Regents of the Univ. of Cal. v. Bakke, 1978; Gratz v. Bollinger, 2003; Grutter v. Bollinger, 2003; Fisher v. University of Texas, 2016), and a failure to address debt relief requests from students previously attending for-profit institutions (Sweet v. Devos, N.C. Cal., 2019).

Several education-related class action lawsuits currently sit before the courts awaiting a determination on class certification or are gradually advancing through the judicial system awaiting a final judgment. Those suits center around Greek life’s discriminatory actions against women and non-binary students, Title IX and due process, modifications to faculty tenure policies, and student-athletes’ scholarships. The class action device in higher education is an effective, competent, and meaningful way to address issues facing students, faculty, and institutional organization.

Notwithstanding the purposes and impact of the class action device, opponents and critics of the class action point to charges of abuse, ethical violations of class counsel’s professional conduct, and the required supervisory demands on an already burdened judiciary as a judgment of the device’s effectiveness and necessity (Underwood, 1983). Moreover, it is important to question whether courts are an appropriate medium to advance education reform. Specifically, questioning whether courts are a competent mechanism to address social and economic inequities that limit access to colleges and universities.

Here, I discuss the role and competency of the class action device in litigation centered around postsecondary education. Specifically, I will focus on the proposed class action lawsuits against William “Rick” Singer, Singer’s businesses (the Key Worldwide Foundation and the Edge College & Career Network), and eight selective universities over claims of fraud and bribery in the university admissions process (hereinafter the “Bribery Cases”). The Bribery Cases directly follow the U.S. Department of Justice federal investigations into more than fifty wealthy parents for fraud and bribery in university admissions (Olsen, et al. v. Singer, 2019; Tamboura, et al. v. Singer, 2019). The Bribery Cases allege a fraudulent university-admission scheme coordinated between wealthy parents, William Singer and his fraudulent academic mentoring businesses, and individuals at the university willing to accept bribes (Temboura, et al. v. Singer, 2019).

To evaluate the role and competency of the class action device in the Bribery Cases, I provide an analysis of the procedural and substantive issues facing the suits. Specifically, I argue the Bribery Cases fail two requisite thresholds for class certification under Rule 23: ascertainability and adequacy.

Based on the ascertainability and adequacy issues raised in this paper, the class certifications in the Bribery Cases should be denied.

Ascertainability

The ascertainability requirement necessitates that a class be defined by “objective means” such that an “administratively feasible” method can identify the class members. The proposed class definitions for both the Tamboura, et al. and Olsen, et al. lawsuits may fail to meet the ascertainability standard, even using a broad interpretation of what constitutes ascertainability. Plaintiffs’ proposed class suits are more favorable under the California Supreme Court’s ascertainability analysis; however, ambiguity in the ascertainability of class membership may be an issue.

Most notably, central to the suits are the claims that the admissions processes at the eight named universities are unfair, deceptive, and engage in unfair competition. Plaintiffs paid an application fee (generally ranging from $55 to $100 depending on the institution and year) for the purpose of “being considered for admission as part of a fair process in which all applicants would be evaluated using the same set of criteria” (Olsen, et al. v. Singer, 2019; Tamboura, et al. v. Singer, 2019). Plaintiffs “did not receive fair consideration and a fair merit-based application process because other applicants were admitted based on different criteria, i.e., whether they were willing to pay bribes.”

Ultimately, the plaintiff’s argument turns on their argument that they did not receive “what they paid for,” which is a “fair” admissions process. The difficulty here is determining whether the plaintiffs can establish (1) an administratively feasible method to determine applicants who were also denied (2) a fair admissions process. Procedural issues aside, determining fairness in a system already hampered by partiality is unlikely.

Adequacy

The adequacy requirement is twofold: both the representative parties and the class counsel must “fairly and adequately protect the interests of the class.” The actions of the named plaintiffs and class counsel will have direct and lasting consequences on the claims and interests of the class members (Klonoff, 2017). Therefore, court supervision of the class representatives and class counsel is “essential” to “the fair functioning” of the class action (Klonoff, 2017 pp. 115-116).

Here, the adequacy requirement raises several concerns. First, applicants are denied admission to a university for a multitude of reasons. Rejection from a university may include a failure to meet any number of implied or stated academic threshold requirements, such as graduating from high school, meeting target GPA and standardized exam scores, or providing transcripts. To claim that the plaintiffs in either Bribery Case can represent the class as a whole on the premise that they were all rejected from admission to the university dismisses the individual holistic review a majority of university admissions offices assert to practice.

Moreover, even if the defendant universities do not practice an individual holistic review during the admissions process, to allege that the only times in which the admissions process was wrought with bribery and fraud was during the 2012 and 2018 years is a significant flaw in the plaintiffs’ argument. The admissions process at selective institutions has been at the center of debate in the educational and legal context since before Brown (1954), including racial segregation of Black applicants (Missouri ex rel Gaines v. Canada, 1938), gender segregation of women applicants (U.S. v. Virginia Military Institute (1996), and admissions policies to promote a diverse student body (Regents of the Univ. of Cal. v. Bakke, 1978; Gratz v. Bollinger, 2003; Grutter v. Bollinger, 2003; Fisher v. University of Texas, 2016).

Additionally, the plaintiffs’ argument overlooks empirical evidence describing the significant racial and socio-economic inequities already in existence at the primary and secondary level. Racially minoritized students, students from low-socioeconomic status (SES) families, first-generation students, English learner students, immigrant and undocumented students, and students from rural areas lack the financial means to access resources necessary to compete with students who are privileged to navigate the admissions system.

Relatedly, the plaintiffs assert they would not have applied to the universities had they known about the fraudulent admissions process. The plaintiffs cannot adequately represent all rejected students because many students are well informed of the inherently unfair system of education. All applicants used a system that was already wrought with fraud. There is no right to know about the fraud and bribery inherent in the admissions process. The plaintiffs’ argument would have been better positioned had they asserted there was no way to know about the bribery, rather than they have a right to know about the fraudulent practices in admissions.

Second, applicants who are accepted but are unable to financially afford to attend a university are also disadvantaged by the same fraudulent process the plaintiffs describe. The mere rejection by a university does not trigger the adverse effects of the alleged fraud in the admissions process. Arguably, the fraud alleged in the admissions process extends past the rejection/acceptance stage. Those with the financial means to ply the wares of the admissions process continue to reap the benefits years after acceptance.

The Bribery Cases hold considerable legal and public policy concerns over class certification. As noted above, the admissions process at selective institutions was always bent in favor of those with the resources to navigate the process. This lawsuit comes at a time when similar class action lawsuits alleging fraud in the admissions process, such as the settlement against the former for-profit law school Charlotte School of Law (Barchiesi et al., v. Charlotte School of Law, LLC, et al., 2019), have demonstrated authentic and considerable harm to a number of students facing financial hardship.

Conclusion

The class action device is one of the most powerful legal tools available. Rule 23 provides a legal recourse for individual claims that would have not been otherwise brought before the courts. It provides an economic solution to litigation and empowers individuals without the resources to singularly engage with the legal system. The “Bribery Cases” following the federal investigations into the college cheating scandal at elite American universities raise significant legal questions about the universities’ conduct. However, the Bribery Cases’ request for class certification in its current form contain procedural and substantive issues on two requirements of Rule 23: ascertainability and adequacy. Based on the ascertainability and adequacy issues raised in this paper, the class certifications in the Bribery Cases should be denied. Class dismissed.

Vanessa Miller is a J.D./Ph.D. candidate in Higher Education at The Pennsylvania State University and Penn State Law. Her research interests include law and higher education, social science research in the law, and racial and gender equity in law and graduate schools. Vanessa holds a master’s degree in Philosophy and Education from Teachers College, Columbia University and bachelor’s degrees in Philosophy and Criminology & Law from University of Florida.

References

Barchiesi et al., v. Charlotte School of Law, LLC, et al., No. 16-CV-00861-GCM (W.D. NC. February 1, 2019).

Brown v. Board of Education, 347 U.S. 483 (1954)

Eubank v. Pella Corp., 753 F.3d 718, 719 (7th Cir. 2014)

F. R. Civ. P. Rule 23(a)(4)

Fisher v. University of Texas, 579 U.S. _ (2016)

Gratz v. Bollinger, 539 U.S. 244 (2003)

Grutter v. Bollinger, 539 U.S. 306 (2003)

Klonoff, R. H. (2017). Class actions and other multi-party litigation cases and materials (4 ed.) West Academic Publishing.

Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938)

Olsen, et al. v. Singer, et al., No. 19-CV-01351 (N.D. Cal., March 13, 2019)

Plyer v. Doe, 457 U.S. 202 (1982)

Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978)

San Antonio School District v. Rodriguez, 411 U.S. 1 (1973)

Sweet v. Devos, No. 19-CV-03674 (N.D. Cal., October 30, 2019)

Tamboura, et al. v. Singer, et al., No. 19-CV-03411 (N.D. Cal., June 14, 2019)

Underwood, R. H. (1983). Legal ethics and class actions: Problems, Tactics, and judicial responses, 71 Ky. L.J. 787.

U.S. v. Virginia Military Institute, 518 U.S. 515 (1996)