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There Is No Way to Prevent the Next Cheating Scandal

The college-admissions scandal that led to federal bribery charges against dozens of parents last week unfolded at selective universities that pride themselves on “holistic” evaluations of their applicants. This process typically means that several admissions officers review a file and consider factors beyond grades and test scores, often intangible qualities that aren’t quantifiable and are usually gleaned from an applicant’s extracurricular activities, essays, and recommendations. This approach is nearly ubiquitous among selective schools.

Given this scrutiny of applications, among the questions raised following the Justice Department probe is how the actions of a few rogue coaches and SAT proctors could go totally undetected in these admissions offices. How did the alleged cheater not get caught?

Over the past four months, I have sat with admissions readers and committees at three selective colleges as they chose this fall’s freshman class, as part of research for a book I am writing about the inner workings of the admissions business. (None of the three schools I’m following for the book was named in the investigation.) While readers—as the people who review applications are called—would sometimes raise questions about absent pieces of information or other inconsistencies, the issues were usually minor: unfamiliar acronyms, missing scores for AP tests, or a recommendation that mentioned a school club not listed elsewhere in the file. Even in those cases, the readers usually didn’t have time to search the internet for additional information, so they moved on, assuming, perhaps, that these were oversights and nothing more.

[Read more: Why the college admissions scandal is so absurd]

Admissions counselors are not hired to be detectives. An ever-increasing number of applications have swamped admissions offices in recent years, resulting in faster reading of files. Whereas once readers could spend 16 to 20 minutes on a given applicant, the average is now around eight minutes. The high volume of applications and small number of staff leave the process vulnerable to embellishment or outright lying, especially at selective colleges where the competition for a scarce number of seats is fierce. Selective colleges—those that accept fewer than half of applicants—accounted for about a third of all college applications in 2017, but for only 20 percent of undergraduates enrolled in American higher education.

“The entire admissions process is built on trust,” says Michael Steidel, the dean of admission at Carnegie Mellon University. “There is a fear, as application pools grow and as time spent on a review is reduced, [that] there is opportunity for problems.” Moreover, even if deans suspect fraud, federal antitrust laws prohibit universities from exchanging information about applicants.

Admissions deans I spoke with say fraud like that at the center of Operation Varsity Blues—the FBI’s nickname for the investigation—is likely rare, but they readily admit that it’s difficult to track. Some recent incidents give admissions officials cause for concern.

Last year, The New York Times found that a private high school in Louisiana, T.M. Landry College Preparatory School, forged transcripts and fabricated stories for application essays so that students would get accepted into selective colleges, including Yale, Brown, and Princeton. Two years ago, Technolutions, a company that operates a popular database system used by nearly 1,000 universities to organize applications, found that more than a quarter of recommendations provided for applicants to a graduate business school were all written on the same computer. But Alexander Clark, the CEO of Technolutions, told me his company’s system, called Slate, is unable to similarly track the so-called metadata of undergraduate applications because they are transmitted to colleges on platforms operated by the Common Application or its competitor, the Coalition for Access, Affordability, and Success.   

Since the scandal broke last week, one element of the scheme troubling admissions deans is that a few of the schools named in the affidavit were allegedly betrayed by their own athletic coaches. Coaches had allegedly classified applicants as recruited athletes even though they had no experience playing the sport.

How colleges recruit athletes varies widely by school. In general, coaches recruit athletes well before their applications are submitted to the admissions office. At some schools, a specific number of slots are reserved for athletes. (Georgetown, for example, allocates about 158 slots a year to its coaches, according to the affidavit.) Typically, admissions officers “pre-read” the applications of highly rated athletes to see if they can make the cut academically, and most are officially accepted during the early-decision round of admissions in the fall.

[Read more: College sports are affirmative action for rich, white kids]

“When coaches say that this is a five-rated kid, we trust that,” says Chris Gruber, the vice president and dean of admission and financial aid at Davidson College in North Carolina, which competes at the Division I level. “At the same time, we have processes in place of checks and balances.”

When reviewing applications, Gruber and his staff keep an eye out for inconsistencies. For instance, if a student writes about the illness or death of a parent in the essay, that event is often reflected elsewhere in the application, perhaps in a recommendation. If not, “then you’re left wondering why no one else is talking about these things,” Gruber says.

Short of outright lying, high-school counselors I interviewed say the pressure on applicants to present a perfect picture in their application forces students to at times overstate their accomplishments or stretch stories in their essays. “Every student thinks they need a hook,” says Hannah Wolff, the college and career-center specialist at Langley High School in Virginia, who is also a part-time admissions reader at UC Berkeley. “They have an impression that being in the honor society, doing community service, getting all A’s in AP courses is not enough.”

All this has left admissions officers wondering if the overall application—test scores, grades, recommendations, extracurricular activities, and essays—remains an accurate portrayal of the student who is applying. “The concern I have is not fraud, but the overall fidelity of the correspondence they send us,” says one admission dean at a prominent university, who asked to remain anonymous to talk freely about the scandal. “Grades are inflated, activities are embellished, recommendations lack negative comments, and the standard now is test prep and multiple editors for essays.”

As a result, some admissions deans want to ask for different evidence of an applicant’s potential beyond the usual polished checklist. The coalition application, for instance, gives students a private virtual “locker” to upload materials, such as documents, photos, and videos, that they can later add to their application. For the past three years, students applying to Yale University have taken the option to use the coalition application to submit a document, image, audio file, or video instead of responding to two short essay prompts on the Common Application.

Meanwhile, a group of deans from selective colleges, including Bucknell University, MIT, and Swarthmore College, are examining the use of assessment tools to measure an applicant’s character attributes. “We are not saying throw out testing and replace it with noncognitive measures,” says William T. Conley, the vice president for enrollment management at Bucknell. “But we know that things like persistence and teamwork are important to success in college and afterwards, and they should be part of holistic admissions.”

Inevitably, whenever colleges shift what they want in their application, students change their own behavior in response, or new industries sprout up to assist them. As long as applications to elite schools are abundant and seats scarce, applicants will look for ways—even sometimes those that push up against ethical lines—to stand out. And because admissions officers tend to trust applicants and have neither the time nor the resources of the FBI to check out anything they might question, the only safeguard built into any admissions system (now or in the future) is cultural norms about honesty.

Opinion analysis: Washington state motor-fuel tax violates Yakama Treaty

With a three-justice plurality opinion, a two-justice concurrence in the judgment and two dissents, Washington State Department of Licensing v. Cougar Den appears unusually fractured at first glance. But the disagreements among seven of the justices are relatively small, turning largely on whether and why Washington’s motor-fuel tax really burdens the Yakama treaty right to travel. Only the dissent by Justice Brett Kavanaugh, joined by Justice Clarence Thomas, indicates a fundamental disagreement about the rules of tribal treaty interpretation.

Justice Stephen Breyer’s plurality opinion, joined by Justices Sonia Sotomayor and Elena Kagan, holds that an 1855 treaty guaranteeing the Yakama “the right, in common with citizens of the United States, to travel upon all public highways,” pre-empts a tax triggered when motor fuel “enters into [Washington] state.” The tax exempts entry by “bulk transfer,” i.e., by “pipeline or ship” rather than “ground transportation. The Washington Supreme Court found that the tax targeted the right to travel by highway with fuel, and the Supreme Court agreed. Relying on time-honored canons of treaty interpretation, as well as the agreed-upon history of the treaty negotiations, the plurality found that the right to travel with goods for sale or distribution was a key part of the treaty. Because the motor-fuel tax imposed a “tax upon traveling with certain goods,” it impermissibly burdened that treaty right.

At oral argument the state argued, and the justices seemed concerned, that ruling for Cougar Den would permit travel with fireworks, diseased apples, or other goods hazardous to health and safety. The plurality, however, emphasized that “we do not say or imply that the treaty grants protection to carry any and all goods,” or that “the treaty deprives the State of the power to regulate to prevent danger to health and safety.” The plurality analogized to earlier decisions finding that the treaty right to fish “in common with” the citizens of the United States did not pre-empt state regulations “necessary to the conservation of fish” or “indispensable to the effectiveness of a state conservation program.” The court suggested that the records of the treaty negotiations might support a state right to regulate highway travel for health and safety, but did not squarely announce a state right to regulate.

Justice Neil Gorsuch, joined by Justice Ruth Bader Ginsburg, concurred in the judgment. The concurrence was even more emphatic about why the 1855 treaty should be interpreted as the Yakama understood it: It was drafted by the United States in a language the Yakamas could not read, and the Yakamas gave up a vast territory in exchange for their reserved treaty rights. “The Tribe bargained for a right to travel with goods off reservation just as it could on reservation and just as it had for centuries. If the State and federal governments do not like that result, they are free to bargain for more, but they do not get to rewrite the existing bargain in this Court.”

Unlike the plurality opinion, the concurrence came down firmly in favor of the power of the state to regulate treaty travel. By guaranteeing the right to use the highways “in common with the citizens of the United States,” the treaty indicated that tribal members knew they would have to “accept regulations designed to allow the two groups’ safe coexistence.” This would include “critical safety regulation[s]” on the highways. Although diseased apples should be regulated where grown or sold, if they “somehow pose a threat to safe travel on the highways,” Washington could regulate them, “just as the State may require tribal members to abide nondiscriminatory regulations governing the safe transportation of flammable cargo.”

But if the concurring justices only wanted to express their opinion on something the Supreme Court did not decide, why concur in the judgment only, rather than in the opinion? Chief Justice John Roberts’ dissent suggests that the plurality held that the treaty pre-empts any law that burdens the Yakamas when traveling on the highways, while the concurrence relied more on the right to travel with goods, but the difference seems slim. Perhaps the concurring justices disagreed that the court should grant deference to the Washington Supreme Court’s interpretation of the state statute, or with the formalist approach the court took in determining that the fuel tax was a tax on travel. Both concerns would be consistent with Ginsburg’s 2005 dissent in Wagnon v. Prairie Band Potawatomi Nation, but both seem like something the five justices could have resolved in the course of issuing a majority opinion.

Roberts wrote a dissent joined by Thomas, Justice Samuel Alito and Kavanaugh. The dissent disagreed that the tax falls on travel with, rather than possession of, fuel, noting that the same per-gallon tax would apply if the fuel entered by rail, barge or pipeline. Because the tax burdens possession rather than travel, the dissenters argued, it does not affect the treaty right. The dissenters were also dubious that the treaty would permit state regulation of travel to protect health and safety.

Although the chief justice’s dissent did not raise any fundamental disagreement regarding treaty law, Kavanaugh proposed an interpretation that departs from past precedent. Joined by Thomas, he argued that the “in common with” language meant that the treaty guaranteed the Yakamas only the right “to travel on the public highways on equal terms with other U.S. citizens.” The state, therefore, could apply any nondiscriminatory laws to that travel. This is a possible interpretation of the treaty text, but it runs up against more than a century of Supreme Court precedent, as well as (Gorsuch slyly noted) the treaty’s “original meaning.”

In United States v. Winans, the Supreme Court in 1905 rejected precisely this interpretation of the same treaty’s guarantee to the Yakamas of rights to fish “in common with” U.S. citizens at their usual and accustomed fishing grounds. Winans called the argument that the treaty guaranteed no more than the fishing rights of any white man “certainly an impotent outcome to negotiations and a convention which seemed to promise more, and give the word of the Nation for more.” As Breyer’s and Gorsuch’s opinions noted, the Supreme Court has rejected Kavanaugh’s interpretation of the “in common with” language several times since Winans. Gorsuch also highlighted the “uncontested factual findings” establishing that this was not how the treaty was understood when drafted: “Our job in this case is to interpret the treaty as the Yakamas originally understood it in 1855–not in light of new lawyerly glosses conjured up for litigation a continent away and more than 150 years after the fact.” Although Kavanaugh’s questions during oral argument appeared receptive to the treaty argument, this opinion suggests a willingness to disregard established doctrines of federal Indian law.

***

Past cases linked to in this post:

United States v. Winans, 198 U.S. 371 (1905)
Wagnon v. Prairie Band, 546 U.S. 95 (2005)

The post Opinion analysis: Washington state motor-fuel tax violates Yakama Treaty appeared first on SCOTUSblog.

Loud explosions heard…

The Israeli military confirmed that two rockets were fired towards central Israel on Thursday evening, with at least two loud explosions heard the Gush Dan region.One was reported to have been intercepted by the Iron Dome missile defense system while another one is said to have fallen in open territory.  There were reports of a number of Israeli who were treated for shock.It was the first time sirens were activated in Tel Aviv since the last war with Gaza in 2014.

Video of an Iron Dome missile being fired over #TelAviv pic.twitter.com/UYxFzuGMa6

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Facebook Won’t Let Employers, Landlords or Lenders Discriminate in Ads Anymore

Facebook advertisers can no longer target users by age, gender and ZIP code for housing, employment and credit offers, the company announced Tuesday as part of a major settlement with civil rights organizations.

The wide-ranging agreement follows reporting by ProPublica since 2016 that found Facebook let advertisers exclude users by race and other categories that are protected by federal law. It is illegal for housing, job and credit advertisers to discriminate against protected groups.

ProPublica had been able to buy housing-related ads on Facebook that excluded groups such as African Americans and Jews, and it previously found job ads excluding users by age and gender placed by companies that are household names, like Uber and Verizon Wireless.

“This settlement is a shot across the bow to all tech companies and platforms,” said Peter Romer-Friedman, a lawyer with Outten & Golden in Washington who represented the plaintiffs along with the ACLU. “They need to understand that civil rights apply to the internet, and it’s not a civil rights-free zone.”

The changes apply to advertisers who offer housing, employment and credit offers to U.S.-based users of Facebook, Instagram and Messenger. Facebook said it hopes to implement the requirements by the end of the year.

The agreement also will create a separate online portal for housing, credit and employment offers. Those advertisers will not be able to target users in a geographic area smaller than a 15-mile radius, which advocates say tamps down on “digital” neighborhood redlining.

Housing, job and credit advertisers will also now only be able to choose from a few hundred interest categories to target consumers, down from several thousand. Critics have said such a swath of finely tuned categories, like people interested in wheelchair ramps, are essentially proxies to find and exclude certain groups. Facebook said it will keep more generic interests like “real estate,” “apartment” and “job interview.”

Facebook also said it will create a page where users can see all current housing ads whether or not the users were among those targeted. The agreement says Facebook will also study how algorithms can be biased.

“There is a long history of discrimination in the areas of housing, employment and credit, and this harmful behavior should not happen through Facebook ads,” Facebook Chief Operating Officer Sheryl Sandberg wrote in a statement Tuesday.

The changes are part of Facebook’s settlement in five discrimination lawsuits. Plaintiffs included the Communications Workers of America and several fair-housing organizations, as well as individual consumers and job seekers. The settlement includes a payout of about $5 million to plaintiffs, mostly to defray legal costs.

The company agreed last year to limit advertisers’ ability to target by some demographic categories, following a complaint by Washington state.

Facebook has previously said that it was being held to an unreasonably high standard, and that ads excluding users by age and gender were not discriminatory. “We completely reject the allegation that these advertisements are discriminatory,” Vice President of Ads Rob Goldman wrote in a December 2017 post. “Used responsibly, age-based targeting for employment purposes is an accepted industry practice and for good reason: it helps employers recruit and people of all ages find work.” The post was titled: “This Time, ProPublica, We Disagree.”

Facebook said Tuesday it had “not seen the kind of explicit discriminatory behavior that civil rights groups are concerned about.” But ProPublica used a crowdsourcing project to find dozens examples of job ads that excluded workers over 40, women and other protected groups.

Facebook has made another move recently that resulted in less transparency around ads. This year, it moved to block a ProPublica project that allowed the public to see how political ads are being targeted on Facebook.

The company said it was simply enforcing its terms of service.

The Art of a Monster

The camera flies high above the palm trees of Hollywood, soaring north and west, all the way to the suburb of Simi Valley, where it slows down to seek out a certain street, and then slows some more until it finds a particular house. It hovers above it, and then swoops down, pushing in all the way to the doorstep, where it rests, impatient. It is the house where James Safechuck, one of the two men at the center of Leaving Neverland, an HBO documentary, grew up, but in a way it might as well be the Darlings’ house: “Peter Pan chose this particular house because there were people here who believed in him.”

But the Safechucks are not the only people who believe, because here is another suburban house, and here again is that seeking, searching intelligence, the camera pushing closer and closer. It is the house in Brisbane, Australia, where the other subject of the documentary, Wade Robson, grew up. The implication is clear: Michael Jackson could have any little boy in the world; all he needed were parents who would serve up their sons to him.

The two mothers, Stephanie Safechuck and Joy Robson, interviewed at length in the film, are a remarkable pair. Their eyes glimmer with excitement as they talk about hotel suites, meeting movie stars, the lavish guest rooms at Neverland Ranch and its excellent wine cellar. (“That was just something I really enjoyed,” Stephanie says in a matter-of-fact way, as though describing a nice feature of a resort.) They tell us that living in the orbit of Michael Jackson was a “dream,” a “fantasy,” even as one of them admits that she spent a lot of her time at Neverland alone, playing with the chimps, because Jackson and her son avoided her all day long. Most damning is the women’s tacit and unexamined admission that the central proposition upon which their fantastical stories depend—that it never occurred to them that Jackson might pose a threat to their sons—is false. Here is Stephanie pressing her ear against a hotel bedroom, trying to hear what is happening inside; here is Joy, realizing that a new boy appears every 12 months.

[Read: On not believing “Leaving Neverland”]

In early March, the physician Drew Pinsky said on the Daily Pop talk show that he suspected both of these women had themselves been the victims of childhood sexual abuse, before quickly walking back the statement to a less slanderous avowal that he did not know either of them, and was merely guessing. But his speculation offered the only explanation outside the demonic for the most harrowing of the women’s remarks; when Jackson asked Joy whether her son could live with him for a year, she offered a modified plan:  She would not leave Wade with him, but would “share Wade” with him.

The fathers, as is so often the case in stories of child sexual abuse, are largely absent from their sons’ lives. Pedophiles tend to skulk away from fathers, and for good reason. They believe that even an inattentive father—even a bad one—will usually stir to action if he senses that his children are under threat from an adult male. Both men seem to have enjoyed the material delights offered by Jackson’s obsession with their sons, but they were often called away to the drudgery of their own Dickensian jobs: James’s father had inherited a family rubbish business; Wade’s owned a couple of small fruit shops. Both marriages were unhappy.

“What the hell is wrong with Michael?” Chris Rock asked in Never Scared, which was filmed in 2004, the same year the pop star was indicted on a second child-molestation charge. “Another kid?” he asked, stunned, before summing up the situation perfectly: “We love Michael so much, we let the first kid slide.” In 1993, the parents of a boy named Jordan Chandler filed a civil suit against Jackson, which the entertainer settled for an estimated $25 million. The 2004 molestation charge against him was supported by evidence gained during a 2003 police raid on Neverland Ranch, including photographs of a hidden closet outfitted with multiple deadbolts and a bed, life-size mannequins of children that could be bent into various positions, and enough children’s toys to fill the lair of a figure from Grimms’ Fairy Tales. In 2005, Jackson was found not guilty of the molestation charge, and other charges against him. But the photographs and their terrible implications lived on, even as Jackson’s true believers insisted he was an innocent man.

[Read: I’m not black, I’m Kanye]

Like Hannibal Buress’s bit about Bill Cosby raping women, Leaving Neverland is what finally got many people to admit to themselves what they already believed. The testimony of the two men is so intimate, so drenched with the sorrow of ruined childhoods, that it cannot be denied. They talk about falling in love with Michael Jackson, about childhood sexual pleasure, and all the other aspects of this kind of abuse that we don’t want to understand. During descriptions of the sex acts, the film sometimes cuts away from the speaker to show pictures of the little boys they were at the time of the events. They were beautiful children, so young that a parent might still have read bedtime stories to them.

The most grievous moment of the film is when Wade describes the horror of a particular sex act forced on him: “To be graphic about it … a full, adult, grown-man-sized penis in my mouth … in a little 7-year-old’s mouth.” And the most heartbreaking moment takes place when James describes what it was like to meet the fate that all these children apparently met: being replaced by another boy and, his bond with his own family already broken, abandoned. One night, James went to spend the night at Jackson’s Century City apartment, but another little boy was also there. Jackson took that child to his bedroom and closed the door, leaving James to sleep alone on the couch. “I cried and cried,” he tells us of that long night, “and I cried out for my mom.”

There is one moment in the film in which it is possible to think that Jackson—otherwise portrayed as monstrous—might have had moments of self-awareness, even of guilt. Wade says he once woke up in the middle of the night to find him sitting in the corner of the bedroom, sobbing. Jackson told him that he was sad because the boy was scheduled to return to Australia the next day, but throughout Jackson’s long, public life were hints that on some level, he was grappling with the deep horrors that he was allegedly committing in private.

Jackson’s childhood was marked by terror of his father. He said that just catching sight of the man could make him vomit; that Joe Jackson beat his sons with razor strops and belts when they made slight mistakes rehearsing. Michael’s sister La Toya accused their father of sexually abusing her in her early adolescence, but the claim was roundly denied by members of the family, who also deny the sexual-abuse allegations made in the documentary. (Jackson’s estate is suing HBO for $100 million, for violating a nondisparagement agreement.)

One of Jackson’s most famous songs grapples with the notion of guilt—“I’m starting with the man in the mirror/I’m asking him to change his ways”—and the “Thriller” video is about a young man trying to convince people that he turns into a monster at night. Perhaps, as he began to develop his relationships with young boys, he was testing the public, waiting for a punishment that never came. His plastic surgery seemed to become an act of self-erasure. In the end, the only way he could conquer the night was to have a doctor come and put him under anesthesia.

And through this terrible man, this destroyer, poured a force that can only be truthfully described as art. Michael Jackson’s dancing is no mortal enterprise: James Brown’s shuffle, Fred Astaire’s precision, and some other element that exists so far beyond anything as simple as influence, or talent, that we can only say we know it when we see it. It’s not a gift; it’s the gift itself.

The ancient question: What moral stain awaits us if we cannot abandon the art of a monster? None.

[Read: The disturbing truth about Kevin Spacey’s “Let Me Be Frank” video]

Edmund Wilson taught us in “The Wound and the Bow”—nominally about Sophocles’s Philoctetes, an obscure play about the great archer who was bitten by a snake and suffered from its suppurating wound for years—that “the victim of a malodorous disease which renders him abhorrent to society and periodically degrades him and makes him helpless is also the master of a superhuman art which everybody has to respect and which the normal man finds he needs.” T. S. Eliot wrote in “Tradition and the Individual Talent,” “The more perfect the artist, the more completely separate in him will be the man who suffers and the mind which creates.” More to the point, Don Cornelius said, “It is always a pleasure to find something that matters.”

Michael Jackson’s art matters. It matters not because of any sociopolitical significance, although many of his songs bear uplifting messages. It matters not for its implications about race in America. It matters because of the simple fact that it is, in every sense, the gift revealed.

A generation ago, young people read Lewis Hyde’s The Gift to understand how to live meaningful lives by cultivating within themselves the ability to receive art: “An essential portion of any artist’s labor is not creation so much as invocation. Part of the work cannot be made, it must be received; and we cannot have this gift except, perhaps, by supplication, by courting, by creating within ourselves that ‘begging bowl’ to which the gift is drawn.”

You can cast away Picasso because Hannah Gadsby told you he was cruel to women. But can you cast away Guernica? Art isn’t something mere; it doesn’t exist as the moral bona fides of the person who made it. That person is a supernumerary. Separate yourself from any art—even popular art; even art created simply as entertainment—and you separate yourself from all of it.

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