Justice Department Investigates Early-Decision Admissions

Note: This article has been updated from a version posted Friday evening.

The Justice Department has started an investigation into whether some colleges' early-decision admissions programs violate federal antitrust laws through agreements among institutions or through the sharing of information about accepted applicants.

Colleges reported receiving letters from the department Thursday and Friday in which the agency told the institutions of the investigation and demanded that certain documents, if they exist, be maintained.

The letter, a copy of which was obtained by Inside Higher Ed, says the investigation pertains to "a potential agreement between colleges relating to their early decision practices." In early-decision programs, applicants pledge to enroll at colleges that admit them. The programs have become quite popular with applicants and colleges. Many colleges that are competitive in admissions admit large shares of their classes this way.

The Justice Department letter does not detail what agreement or practices are being investigated. But the letter gives some indication, by outlining the documents that colleges are being required to maintain. The focus of the investigation appears to be whether colleges with early-decision programs are sharing information about admitted applicants with other colleges as a way to enforce the requirement that early-decision applicants attend institutions that admit them. Students appear to give permission for this when they use the Common Application to apply early. And some admissions experts say that some colleges indeed share information about those admitted early.

The Justice Department letter asks colleges to maintain:

• "Agreements, both formal and informal, to exchange or otherwise disclose the identities of accepted students with persons at other colleges or universities.
• Communications with persons at other colleges or universities relating to the transmission of identities of accepted students, including the justifications for such transmission.
• Internal documents relating to the transmission of identities of accepted students to or from persons at other colleges or universities.
• Communications in which identities of accepted students are sent to or received from persons at other colleges or universities.
• Communications with persons at any other college or university relating to any student accepted at the college or university.
• Records of actions taken or decisions made based in whole or part on information received from another college or university about the identities of accepted students.
• Admissions records of any individual identified in any transmission as accepted by another college or university, including applications from, internal analyses of, and communications with the applicant."

For years, some elite colleges -- members of what was then called the Overlap Group -- shared financial information on admitted applicants, seeking to agree upon common aid offers. But in 1991, Ivy League institutions agreed to stop sharing such information. The agreement followed a Justice Department investigation into the practice, which the universities said promoted fairness but that the department said was an antitrust violation.

Generally, college leaders have said the Overlap Group investigation discouraged them from sharing any information about applicants.

But there are definite indications that some sharing goes on.

A 2016 article in U.S. News & World Report provided advice on what students should do if they change their minds about enrolling at a college to which they have applied and been admitted early decision. While there are circumstances in which colleges will release an admitted applicant from the obligation to enroll, the article noted that not all colleges will accept such a decision. The article said, "Katharine Fretwell, dean of admission and financial aid at Amherst College … says her school and about 30 other colleges share lists of students admitted through early decision. And Fretwell says she'd likely also share the names of students who were admitted via early decision, but who are not attending for financial aid and other reasons."

An Amherst spokeswoman confirmed that the college is among those that were contacted by the Justice Department and said the college was "cooperating fully." But the spokeswoman declined to comment on the Fretwell quote or the sharing Amherst may do concerning the names of applicants admitted early.

Several admissions officials said they believed the practice did not raise legal issues because students -- when applying early through the Common Application -- sign a waiver stating that they are aware that institutions that admit them early may share the information. Parents and students' high school counselors must also sign the statement. A spokesman for the Common Application said that any sharing of this data is by colleges and not the Common App. The spokesman said the Common App has not been contacted by the Justice Department on this matter.

Typically, college admissions officers view applicants who apply early decision without intending to enroll as abusing the system. Many colleges are more likely to admit applicants early than in the regular decision period, so the applicants gain an edge, but in theory the college gets an advantage, too, in that it can count on those admitted enrolling. (Some colleges have early early-action programs in which applicants apply and are informed of the admissions decision earlier than normal, but no commitment is made to enroll.)

Several senior admissions officials at institutions with early-decision programs said they do not share any information. "To my knowledge the only data sharing my admissions offices have done involves aggregated data where individual students can’t be identified," said Andrew Flagel, senior vice president for students and enrollment at Brandeis University.

Robert J. Massa, senior vice president for enrollment and institutional planning at Drew University, said his institution does not share information about those admitted early, but "I know of some who have in the past."

Terry W. Hartle, senior vice president for government relations and public affairs at the American Council on Education, said it is always difficult to know the thinking behind a new Justice Department investigation. But he said there are important ways that the sharing permitted by the Common Application is different from the Overlap Group comparisons of aid offers. Under Overlap, students applying for financial aid at participating institutions had no control over whether their information would be shared. But there is no requirement that anyone apply early decision, he said, so students who do not want their information shared need not apply that way.

He noted that early decision is intended only for those who are certain of their first-choice college and who are willing to make a commitment to attend if admitted. And he noted that colleges themselves make a commitment and can't revoke an early offer if the college receives lots of great applications through regular decision.

"Early decision is totally voluntary, and if terms and conditions aren't acceptable, people shouldn't use early decision," Hartle said.

Hartle said he did not know whether the Common App waiver of privacy rights for early applicants changed the legal issues involved for colleges. Of the sharing that goes on, he said it appears to primarily affect the very small number of those admitted early decision who want to back out of their commitments.

"These practices have been around a long time, and it's not a bad idea to shed light on them," Hartle said. "They either will withstand scrutiny or they won't."

Many admissions observers have criticized early decision over the years, primarily saying that it favors wealthier applicants who are more likely to have had a head start on college planning, and who may have the financial resources not to feel the need to compare aid offers. Noted Hartle, “Equity considerations related to early decision have long been a concern within higher education, but this is the first time in my memory that the issue has come up in the context of antitrust concerns.”

Other Justice Department Actions on Admissions

The Justice Department investigation is its second antitrust probe of college admissions practices this year.

In January, it launched an investigation into whether the ethics code of the National Association for College Admission Counseling violates federal antitrust law. The department sent information requests to NACAC and to professionals from various schools and colleges who were involved in drafting the new version of the ethics code, which was adopted last year. That Justice Department letter said that the investigation pertains to a possible agreement "to restrain trade among colleges and universities in the recruitment of students." The investigation stunned many admissions leaders, who said that the NACAC ethics code is typical of codes in many professions that seek to promote ethical conduct. (NACAC sent a statement to members Monday morning indicating that it did not believe the new investigation is related to the one of its ethics code.)

And on Friday, the Justice Department filed a brief in a lawsuit in which Asian-Americans plaintiffs are charging Harvard University with discriminating against Asian-American applicants. The brief came in a legal battle over whether evidence in the case should be generally public (except for identifying information about individuals). Harvard has opposed such a move. But those suing Harvard are pushing for the release of as much information as possible. The Justice Department is backing those suing Harvard, and the government brief said it is currently investigating similar issues to those raised by the lawsuit.