WASHINGTON — The Justice Department is probing whether colleges and universities are violating antitrust laws by exchanging information about prospective students who make early decision commitments, the latest in a series of higher education-admissions policies that prosecutors are scrutinizing.
In a letter sent last week, the department asked several colleges and universities to preserve all communication with officials at other schools that includes agreements to share or exchange the identities and admissions records of accepted students, and any records indicating actions taken or decisions made based on the information received about the applicants.
The “early decision” process allows prospective students to apply to a preferred college or university with the understanding that an acceptance binds the applicant to attend. Early decision applicants tend to have a better chance at admission to competitive schools, but those institutions have less incentive to offer financial aid, since the applicant has already agreed to accept an offer.
It is not clear how many schools received the letter, which was obtained by The New York Times, and officials at the Justice Department declined to comment on the scope of the investigation, which was first reported by Inside Higher Ed, a trade publication.
The Justice Department letter said the investigation focuses on “a potential agreement between colleges relating to their early decision practices,” and will be investigated by the agency’s Antitrust Division, which enforces laws governing fair consumer and competitive market practices. In the early 1990s, the division investigated Ivy League universities for their use of “overlap meetings,” in which the eight colleges shared information to collaborate on financial aid offers.
At least one institution, Amherst College in Massachusetts, confirmed that it had been contacted by the department. A spokeswoman said the college “is fully cooperating with their request for information,” but could not provide further comment.
In 2016, Amherst’s dean of admissions told U.S. News that the college and about 30 others shared lists of students admitted through early decision, and that she would also be open to sharing the names of students who chose not to attend and for what reasons.
Early decision acceptances are not legally binding, but they do reflect a “moral contract” with students, securing peace of mind in securing a spot at their first-choice school in exchange for a commitment that they won’t shop around for other admissions packages.
Colleges will release students from their early-decision commitments if they face financial or familial hardship, but to breach the contract can be consequential.
College counselors say that depending on the institutions, the repercussions could range from schools canceling a student’s applications to rescinding admissions offers. A university could also retaliate against the student’s high school by limiting the number of students they admit.
“Once a student signs something, they have you. And when a student pulls out of a decision, they lose so much control,” said Craig Meister, who founded the college admissions consulting firm Admissions Intel, and serves as director of college counseling at Oxbridge Academy, a high school in Florida.
Terry Hartle, senior vice president of the American Council on Education, said the early decision practice has been longstanding and without issue. He said the Justice Department’s inquiry was surprising.
The early admission decisions have been criticized as potentially favoring alumni and higher-income applicants, but had never been raised as a potential antitrust issue. The council’s position is that it is not.
“If you want the certainty of your first choice school, and you agree not to consider other offers, then it’s the right way to go,” Mr. Hartle said. “And about 98 percent of people use it exactly in that way.”
Mr. Hartle noted that students who apply to colleges through what is known as the common application acknowledge that following an offer of admission, the institution they are applying to may share their commitment with other institutions.
Daniel Obregon, a spokesman for the common application — which more than 1 million students use to submit 4 million applications annually — said that fewer than 10 percent of applicants apply through early decision.
What may be in question is whether colleges, recognizing that they have little recourse, are using backdoor channels to find out whether students are holding up their end of the bargain.
Mr. Meister said that although most colleges and universities will make their best offers to net students in the early decision process, families sometimes worry that they would get a better merit-based aid package if they went through nonbinding application processes.
Early-decision commitments also allow colleges and universities to maintain their rankings. Many colleges and universities rely on early decisions to demonstrate a high “yield,” the percentage of admitted students who enroll, which bolsters a school’s selectivity in national rankings.
Early decision programs have afforded some colleges nearly half of their freshman classes. Duke University reported last year that its early-decision applicants comprised just under 51 percent of its freshman class.
Mr. Meister is up front with parents and students when he advises them on the college application process, telling them that the college admissions world is small and that “people talk.”
“I would never assume as a high school counselor, that I’d have to tell them there are official back channels that could hinder your chances of getting into other schools,” Mr. Meister said. “I don’t think it’s illegal to do, but it’s wrong to do. If there’s some coordinated policy, that is extremely concerning and warrants some sort of action.”
Mr. Hartle said he found the Justice Department’s inquiry into early admissions programs surprising, given that only about 200 schools of the more than 4,000 in the country use early decision. “Given that this doesn’t affect many schools, or many students, it’s the ultimate first-world problem,” he said.
The National Association for College Admission Counseling said in a statement that it is monitoring the early decision inquiry closely, as it could affect some of its members. But the organization maintained that it had no information about what the government might be seeking, or why.
The Justice Department’s Antitrust Division began an inquiry into the organization’s new code of ethics and professional practice in November. The association said it did not believe that was connected to the new early admission inquiry.
The ethics code included new policies and practices related to student disciplinary infractions, financial aid award letters and the recruitment of students who have already enrolled at other colleges. It also tightened restrictions on the use of housing deadlines to manipulate commitments.
The Justice Department is also investigating the role of affirmative action in admissions at Harvard University amid a lawsuit from Asian-American students who say they were discriminated against. In August, the department announced it was recruiting attorneys for “investigations and possible litigation related to intentional race-based discrimination in college and university admissions.”
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