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On Saturday in Louisville, Ky., the membership of the National Association for College Admission Counseling voted to remove three provisions from its Code of Ethics and Professional Practice (CEPP). The action comes in the face of an investigation by the Department of Justice’s Antitrust Division alleging that provisions prohibiting poaching of students enrolled at or committed to other institutions constitute restraint of trade.
For the second consecutive year, the NACAC conference intersected with breaking national news. A year ago it was the confirmation hearings for Justice Brett Kavanaugh, including Christine Blasey Ford’s testimony that Kavanaugh had sexually assaulted her while in high school. This year it was the whistleblower complaint about President Trump appearing to ask the president of the Ukraine to help his 2020 re-election campaign by investigating former vice president Joe Biden, currently the leading contender to be Trump’s Democratic opponent, and his son Hunter.
On Thursday one of the cable networks described last week as one that will end up in the history books. The vote in Louisville has the same gravity and significance for the college admissions world. Will we look back on last week as the beginning of the dismantling of the rules and conventions that have guided the ethical practice of college admission and protected students from coercion and manipulation for 80 years?
The mood in Louisville is best described as somber, but I’m not sure that captures it. It felt, depending on your literary bent, like being in a Lewis Carroll novel or the "Bizarro World" episode of Seinfeld, with everything viewed through a lens that distorts reality.
If I twist my head and squint hard enough, I can see the logic used by the DOJ. We have a changing admission landscape, with an increasing number of small, tuition-driven colleges in existential danger. We need to be sensitive to the challenges they face. It is a legitimate topic of conversation to ask if the rules outlined in the CEPP restrict their ability to recruit a class or even to survive. But the notion that NACAC, a nonprofit organization, is some sort of cabal controlling college admission and restraining trade doesn’t match reality.
As a taxpayer I have to wonder if investigating NACAC is a good use of government time and funds. Are there not bigger fish to fry in the antitrust arena, say, in the social media realm? Can’t Attorney General Bill Barr and his employees find any high crimes and misdemeanors to keep them busy protecting the public?
The truth is that the government has the power and the resources to bully NACAC into submission. NACAC has already spent somewhere close to $1 million responding to the investigation, and any prolonged litigation could jeopardize the organization’s financial health and its long-term vitality. The DOJ is capable of laying siege and forcing NACAC into a war of attrition it can’t win. Recognizing that reality meant that the majority of delegates to the Assembly, NACAC’s legislative body, and those attending the general membership meeting held their noses and voted with their heads rather than their hearts to give NACAC’s leadership the ability to enter into a consent decree.
Just how much power the government wields was clear in some subtle ways. I expected the vote to pass, but only after considerable debate, discussion and venting beforehand. In the Assembly there was none. That might be a sign that NACAC’s leadership successfully laid out the case for the necessity of the vote, but a couple of delegates also told me that they were advised not to speak out in opposition lest the DOJ turn its sights on their institutions. The three delegates who voted their consciences against the proposal were regrettably almost immediately slammed on social media, but that was nothing compared to the tweetstorm that erupted during and following the conference keynote address on Thursday afternoon.
So what conclusions can we draw and where do we go from here?
I hope this won’t be seen as an admission of guilt or wrongdoing on NACAC’s part. NACAC has to go down this path/rabbit hole for pragmatic reasons, but the provisions being questioned were developed from motives that were pure and intended to benefit students. Ethics always involves a balancing of interest and perspectives, and the DOJ’s view is that the needle should move in the direction of institutional interest.
This decision means that the ethical rules guiding college admission will change, but that has happened before. I was reminded several times during the conference of the 1990s debate within the profession over need-blind admission. At one time the profession’s code of ethics required colleges to be need blind, with two different requirements. One was that colleges should make admission decisions without regard to a student’s financial need, and the other was that colleges should meet full need. Both are laudable, but by the early 1990s a number of NACAC member institutions were finding it difficult to achieve both provisions. After a spirited and passionate debate, the ethical rules were changed to recognize that some colleges have no choice but to be need aware. Unfortunately need aware has become much more common than need blind.
What doesn’t need to change, and what I hope will never change, are the ethical principles that are the foundation of the CEPP. Those principles include a belief that students should be able to make a decision that is potentially life changing without coercion or manipulation. The question now is whether colleges will resist the temptation to poach students committed to other colleges with practices and incentives that will destroy whatever trust remains in the college admission profession. The last thing we need is a Crazy Eddie approach to college admission with colleges promising to beat any competitor’s deal. I also hope that as admission professionals we will remain faithful to ethical principles like honesty, truthfulness, transparency and respect for the dignity of every one of the students we deal with.
What comes next? One hint came in the questions Assembly delegates were asked to discuss during their caucus time on Saturday morning. They were asked to consider how NACAC and college admission might change if the provisions in the CEPP were no longer mandatory but rather best practices, or if the focus of the NACAC Admission Practices committee was education rather than enforcement.
A number of leading admission professionals have talked about voluntarily asserting their continued commitment to both the principles and the practices promoted by NACAC through the CEPP, and whether a voluntary list of signatories would work. That’s an appealing approach, but the legal opinions I’ve heard suggest that even that could be interpreted by the DOJ as some form of collusion. In the wake of the Trump administration’s attack on California’s fuel emission standards, the DOJ has suggested that even automobile manufacturers who voluntarily decide to adhere to the higher standards could be seen as violating antitrust laws. So much for freedom of choice.
Last week’s vote will change NACAC in ways that are not yet apparent, perhaps for better, perhaps not. What it can’t change is the work each of us does on a daily basis to help our students and stand up for what we believe in.
