00-3937, 01-2841 U.S. v. Frost

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“Although each of the 19 files lacks proof that the student took and passed an ability-to-benefit test, there are two plausible reasons (other than fraud) for that omission. First, Biocic was not well organized; this much the United States concedes. Likely she failed to ensure that appropriate notations were made in at least some of the records (although she may have indicated in some other way that the applicant passed). Second, the school’s files were themselves a mess. After it closed, heaps of miscellaneous records were scattered about. The agent who examined the students’ files did not look through these documents. If the evidence showed that the school had not set out to administer proper tests, or that defendants had tried to subvert Wonderlic’s process, then a search would not have been necessary. But because the United States concedes that defendants delegated the testing, it was essential to investigate the possibility that the lack of notations in the 19 files reflects a failure at Wonderlic’s end, or of the school’s filing system, as opposed to culpable fraud on defendants’ part. Nineteen students is a small portion of the enrollment, making record-keeping errors more plausible as an explanation (and calling into question whether defendants had much to gain by skipping the test for so few students).”

Affirmed in part, reversed in part, and vacated in part.

Appeals from the United States District Court for the Northern District of Indiana, Moody, J., Easterbrook, J.