Ethics Quote of the Week

“One of my students this year has a vaguely Hispanic name but is literally the whitest girl you’ve ever met. Her mother straight out asked, ‘If we mark she’s Latino on the application, is that something that they would ever challenge?’ I told her honestly my best guess, which was no. And, if early admissions are any indication, it seemed to work.”

—-A  guidance counselor (and former Ivy League admission officer) at a private school in the South, quoted by Kathleen Kingsbury in her report for The Daily Beast on dubious college admission tactics.

This, of course, is completely unethical for both the student and the counselor, who is exactly like a tax attorney or accountant who lets a client know that his fraudulent return will almost certainly not be audited by the I.R.S. Both of those professionals violate their ethics codes by aiding and abetting such conduct, and the quoted counselor is just as bad.

What should the counselor have said? Something like this: “If you mark her Latino, you may be taking a slot away from a deserving Hispanic student. The issue isn’t whether she can get away with lying, the issue is whether she should lie, and the answer is no. If I believe she has misrepresented herself on the application, I will call the college admissions office myself and set the record straight.”

The quote reminded me of an incident I was involved in that raised some similar issues.

When I was an administrator at a major law school at the peak of affirmative action policies, a wealthy alumnus whose daughter was half Asian and was applying to the school asked me if she should note her ethnicity on her form, since her last name gave no hint of her Asian heritage. “It seems wrong, somehow,” he said. “She’s as American as a kid can be, and she’s hardly disadvantaged. She doesn’t consider herself Asian in any way. Why should she get the benefit of special consideration because her mother happens to be Japanese?”

“That’s the school’s problem, not yours or hers,” I told him. “The policy gives an advantage to minorities, an unfair advantage in my view, and doesn’t consider whether there is any real disadvantage involved. I think it’s  a terrible policy, but your daughter can either be helped by it, or hurt by it. She qualifies to be helped, and she has more than enough credentials for admission anyway; it’s not as if she is going to be using the affirmative action standards to get something she doesn’t deserve. I see nothing wrong with her telling the truth on her application, and getting the full advantage of being considered a minority, even though the policy makes no sense in her case. She legitimately qualifies for affirmative action because of her mother’s race. How your daughter regards herself has nothing to do with the admission policy.”

She did as I recommended, was admitted, and is a successful lawyer today. My advice was ethical. The Southern guidance counselor’s was not.

And I still think the law school admission policy was absurd.

10 thoughts on “Ethics Quote of the Week

  1. I am not in the least surprised, though I am disappointed. Competition to get into college has reached insane levels and parents and kids are understandably nervous, but leveraging fake ethnicities is wrong, and I’m sorry this parent encouraged her daughter to do it. I’d wager their financial aid application is not 100% accurate, either.

  2. Not to pick nits, but willfully filing a fraudulent Federal tax return is a crime (under 26 U.S.C. section 7207), so (under 18 U.S.C. section 2) aiding or abetting the filing of a fraudulent return is also a crime. (I haven’t checked all 50 states, but I’m betting that criminal penalties apply to fraudulent state tax returns in most, if not all, states as well.) Your hypothetical attorney or account could therefore be subject to a fat fine and a prison sentence, during which he or she would doubtless have plenty of time to ponder whether the conduct was also unethical.

    In your situation, the attorney or accountant is a “tax return preparer” as defined in 26 U.S.C. section 7701(a)(36), and would be potentially subject (under 26 U.S.C. section 6694(b)) to a civil penalty of $5,000 or (if greater) 50% of the return preparation fee. The tax return preparer penalty can be imposed for preparing a return containing an “unreasonable tax position”, and increased if the conduct is a “willful attempt to understate tax liability” or is a “reckless or intentional disregard of rules or regulations.” It’s not a crime, but it sure as hell sounds unethical to me.

    Glad I was able to clear that up.

  3. The issue I was raising is a bit narrower. Most states hold that a lawyer or accountant can answer the question, “if I do this, will anyone find out?”, and in the tax field, “is it true that the IRS assumes some under-reporting, and allows a certain margin to go by the boards?” but that then the lawyer or accountant must attempt to dissuade the client and resign if the client insists on a fraudulent statement.
    And unlike the guidance counselor, the lawyer and accountant are bound by client confidentiality…they can resign, but they can’t tell anyone unless the client really laid out a criminal plan—and this wouldn’t qualify.

    What was it you cleared up, again?

  4. The whole problem seems to be the whole race-based system of admissions currently in place, which just lets people who don’t need the help to completely game the system (I’ve heard even recent African immigrants are taking advantage of it).

    Also, standards for entry into higher education are actually on average even more stringent for East Asians (Full Disclosure: I am one myself, if the last name wasn’t a hint) than they are for whites. I remember it was Clinton who expressed worries about Asians swarming all the top-tier universities (like my parents) when the UC system began lifting quotas.

    • That’s right Julian; when I had my little dilemma, the fact that Asian-Americans were outscoring every other group hadn’t sunk in. Just one more reason college admissions need to be race, ethnic and gender-neutral. Using other factors, like socio-economic disadvantage, is still worthy of debate.

  5. This is one of the unintended consequences of placing achievement above character. A basic maxim is: If I promote achievement to the exclusion of character, I can inadvertently encourage bad character.

    We have done this throughout our society and it is one of the reasons that cheating is so prevalent in our educational system. We have put the grade ahead of character qualities like attentiveness, diligence, thoroughness, and punctuality – the qualities that make for a good student.

    It’s one of the reasons drug use is prevalent in the sporting arena. We’ve put winning the game ahead of good character.

    It’s why people will lie on a job application or during an interview. We have put getting the job ahead of good character.

    And it is why people will falsify information on a college application. We have put getting admitted ahead of good character.

    Achievement is like the fruit and character is like the seed. Plant a good seed, in good soil, nourish it, encourage it, cultivate it — and it will produce a good crop.

    It’s the Law of the Harvest:
    You reap what you sow, you reap it later, and you reap it in greater abundance — good or bad…

    Our grandmothers told us this — it really DOES matter how you play the game…

    Thanks for the “Alarm…”

    Sheriff Ray

  6. I think you missed something in the analysis. That something is the definition of Latino. For the sake of argument, let’s say that her last name comes from her paternal grandfather who was Guatemalan. Although she may look ‘white’, she is 1/4 Latino. How latino do you have to be before you can be considered latino? Who gets to decide? Do all minorities need to go before some minority classification board and be issued ‘race cards’ to make sure only genuine minorities get the special benefits they are entitled to? This is the system tribal members go through. They only need to be 1/16 to qualify for tribal membership and their membership card. Blond hair, blue eyes, and fair skin do not exclude you from tribal membership.

  7. Michael: if she qualifies as Latino, then she’s Latino: then it’s the same situation as my Georgetown Law Center situation. I was taking the quote at face value: if they asked “will anyone check?”, then I presume checking would have shown that she didn’t, in fact, qualify because she wasn’t. in fact, Hispanic.

    • You didn’t exactly answer the question. What DOES qualify as Latino? If she is 1/4 Latino, but she doesn’t look Latino, she may wonder if someone would challenge her ‘Latinoness’ and she would get in trouble. It is not unreasonable for a mongrel American (myself included) to wonder which category they belong in from time to time. What qualifies, what doesn’t qualify, and why? And how do you ‘check’ to see if she is hispanic? Most people don’t have racial identity cards for themselves or their relatives? In most cases, and especially for hispanics, there is not definitive genetic test.

  8. It’s a murky area, for sure. I think self-identification will suffice as long as there is something to support it. I took the question to refer to someone whose name alone suggested Hispanic roots. For example, people thought for years that Red Sox player Kevin Youkilis was Greek, but he’s really Jewish. It would be fraudulent for him to apply for a Greek scholarship. But if his great-grandmother was Greek? Maybe that’s enough. It still shows the absurdity of such policies.

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