The Department of Justice (DOJ) is probing Early Decision (ED) admissions practices for potential antitrust law violations by Wesleyan and several other colleges and universities. The letter sent by the DOJ to the University, which was obtained and first reported on by Inside Higher Ed, did not specifically state the focus of the investigation, but the documents the DOJ requested that the University maintain indicate the probe surrounds the practice of colleges sharing the identities of students accepted through ED admissions processes. The letter also indicated the investigation will be run by the DOJ’s Antitrust Division.
Through a spokesperson, Wesleyan confirmed that it had received the letter from the DOJ on Wednesday.
“While we don’t know exactly what the Department of Justice may be investigating, we are cooperating fully,” the spokesperson wrote in an email to The Argus.
The DOJ declined to comment on the nature of its investigation into Wesleyan.
Williams College, Middlebury College, Pomona College, Wellesley College, Amherst College, and Grinnell College were also contacted by the DOJ concerning their early admissions practices, according to The Wall Street Journal.
Through ED programs, accepted students agree to withdraw all outstanding applications and not initiate new ones. Students are only allowed to break the agreement if they applied for financial aid and received an insufficient amount that would render them unable to attend.
“Early Decision is the application process in which students make a commitment to a first-choice institution where, if admitted, they will enroll,” reads Wesleyan’s ED agreement. “If you are accepted under an Early Decision plan, you must promptly withdraw the applications submitted to other colleges and universities and make no additional applications to any other university in any country.”
While few students back out of Early Decision agreements for illegitimate reasons, it still occurs.
Katharine Fretwell, Dean of Admission and Financial Aid at Amherst College, told U.S. News that her institution shares the identities of students accepted through its ED program with approximately 30 other schools. This allows schools to check if the students accepted have been offered ED acceptance by one of the other institutions. The investigation, which may focus on antitrust law violations, may involve this sharing of information.
Ted Hartle, Vice President of Government Relations and Public Affairs at the American Council for Education (ACE), a leading trade group of which Wesleyan is a member, said that while he understands concerns over ED disproportionately hurting poorer students who have less access to college counseling, he had not previously heard of antitrust concerns.
Through spokespeople, Amherst and Middlebury said they were cooperating with the investigation but declined to comment on the practice of sharing the identities of students accepted through ED. In a statement, Wellesley confirmed they had received the letter but declined to comment further. Williams has not responded to requests for comment.
Theodore Banks, an attorney with over 40 years of experience and an adjunct professor in corporate compliance at the Loyola University Chicago School of Law, says that while the investigation remains nebulous, the documents listed indicate that the Department is looking for agreements between the institutions over which students they will accept.
“Universities are competing for students, and by agreeing not to go after someone who’s been accepted Early Decision somewhere else, they are agreeing not to go after that student,” Banks said in an interview with The Argus. “Any situation where you’re agreeing with a competitor not to compete violates anti-trust law.”
Banks said that, from the information currently available, the probe seems less likely to be a criminal antitrust investigation, which would represent a clear attempt to restrict competition by Wesleyan, and instead suspects it to be a civil case that deals with whether or not the University’s actions unreasonably hindered competition. Thus, investigators would be looking for an agreement between the schools that amounts to an unreasonable restraint on the market for students through coordination over the admission of students.
“It is a problem,” Banks said. “I mean, there are some situations where competitors need to share information and the question is whether this is one of those situations—whether it’s reasonable, or there are ways in which it could be done that are more reasonable. Is there some interest of a student being hurt if once they’re accepted one place, everyone agrees to lay off?”
Adam Biegel, a lawyer with nearly 20 years of experience in antitrust law and the co-chair of the antitrust practice group at Alston & Bird LLP, said the currently available facts indicate that the DOJ is looking at the full spectrum of violations, from serious coordination over which students to accept to a reasonable discussion with benign impacts.
“I got the inkling that there was some sort of nefarious coordination between the schools that they are trying to see if it existed or if it falls into the more defensible area of the creation of new product, the successful early admissions program, and the enforcement of rules to support that,” Biegel told The Argus, reiterating that not all facts were public nor available to him. “I can see the whole spectrum of good and bad behavior possibly being under consideration.”
Biegel explained the most nefarious activity could fall in joint decisions between schools over which students to accept, or in changing the rules in a way that skews the system against students. Biegel also warned that the Department’s investigations should not be taken lightly and that they needed to have a strong reason for believing practices were harming the competition for students.
The National Association for College Admission Counseling (NACAC), which consists of college admissions officers and high school admissions counselors, publishes a code of ethics and professional practices to which all members, including the University, must adhere. While the agreement prohibits member colleges from divulging information regarding an individual’s application, enrollment, financial aid, scholarship, or admission, it creates an express loophole for students admitted through ED.
“It is understood, however, that if a candidate has been admitted Early Decision, then the college may notify the candidate’s high school and other colleges of the candidate’s application status,” the agreement says.
A Wesleyan spokesperson declined to comment on whether or not the University engages in this practice.
“We have no reason to believe that this new inquiry is connected to the Justice Department’s recent requests for information about our Statement of Principles of Good Practice: NACAC’s Code of Ethics and Professional Practices,” NACAC President David Burge said in a statement regarding the investigation. “We continue to cooperate fully with that inquiry even as we remain confident in the values that underpin the code and its mission to serve students and our fellow professionals.”
The statement also says that NACAC has no additional knowledge regarding the kind of information desired by the Department or why they are investigating the schools.
ED agreements are intended to be a commitment by a student to enroll in a specific college, but they are not legally binding. Thus, colleges discourage this breach of agreement through different measures. Richard Nessbitt, the Director of Admissions at Williams College, told U.S. News that if a student had been accepted through ED to both Williams and another school, they would contact the other school and the student would risk losing both acceptances.
Admissions counselors from Wesleyan, Wellesley, Amherst, and Williams have not responded to requests for comment on the frequency of students breaking ED agreements.
When asked to comment on the practice of institutions sharing the names of students accepted through ED with others, an ACE spokesperson referred The Argus to an interview Hartle gave to The New York Times, in which he says that the Council supports Early Decision and that students agree to the practice through the Common App agreement.
“Early Decision is totally voluntary,” Hartle told Inside Higher Ed. “And if terms and conditions aren’t acceptable, people shouldn’t use early decision.”
Biegel says the DOJ’s request for Wesleyan to maintain records indicates that they have a reasonable expectation of litigation and that they plan to request information.
The letter sent by the DOJ has not been publicly released in its full format. The letter asks Wesleyan to maintain communications with people at other colleges or universities that relate to any student accepted at the college or university, as well as internal documents relating to the transmission of identities of accepted students; agreements to exchange or disclose the identities of accepted students; and communications in which records of accepted students are sent to or received from persons at other colleges or universities.
This article is a developing story and will be updated accordingly.
This article was amended to reflect the origin and recipient of the letter and that the letter itself does not request documents from the University.
Mason Mandell can be reached at email@example.com or on Twitter @MasonMandell.