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Inside Higher Education
Justice Department
Investigates Early-Decision Admissions
Focus appears to be how some colleges share information about those
admitted early. Common App asks applicants to consent to the practice.
By Scott Jaschik
April 9, 2018
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.
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