DOJ Makes Early-Decision to Take Elite Colleges and Universities to School

by K&L Gates LLP

K&L Gates LLP

The Department of Justice (“DOJ”) is currently investigating to what extent colleges and universities communicate with each other about prospective students that apply through the early decision process. While it is still uncertain, the DOJ appears to be taking the position that this information-sharing may violate antitrust laws. According to the Wall Street Journal, a number of colleges and universities received a preservation request from the DOJ on April 6th related to the investigation. [1] The DOJ’s preservation request specifically indicated that the investigation will focus on “a potential agreement between colleges relating to their early decision practices,” and will be investigated by its Antitrust Division, which enforces laws governing fair consumer and competitive market practices. The preservation request asked the schools to save any emails and/or other messages that concern, among other topics:

  1. Agreements with other schools regarding their communications with one another about admitted students and how they might use that information;
  2. Formal or informal agreements to share the identities of accepted students with people at other colleges;
  3. The sharing of identities of accepted students with other schools;
  4. Officials discussing accepted students with officials from other institutions; and
  5. Records of actions that the schools took based at least in part on information received through those communications with other colleges.

The early decision process enables prospective students to apply to their preferred college or university with the understanding that if accepted, the student will attend. Prospective students opt to apply early decision because they tend to have a better chance at admission to competitive schools. While early decision acceptances are not legally binding, these acceptances are often considered a “moral contract,” whereby the student has peace of mind in securing a spot at their first-choice school in exchange for a commitment that he or she will not pursue other admissions packages. The student is also expected to withdraw any other applications at other schools. [2] The information-sharing is beneficial for schools because it enables them to use the information to plan who to admit, and it also reduces comparison-shopping on the part of students who might consider breaking an early decision agreement for the promise of a more attractive financial-aid package elsewhere.

While some college and universities openly admit that they communicate with other schools and share information such as the names and high schools of admitted students, other schools deny the extent of such information-sharing. In 2016, Amherst College’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.” [3] Recently, Amherst College confirmed that it is “fully cooperating” with the DOJ’s investigation. [4] However, several other admissions officials say 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. [5]

While it is understood that the DOJ is probing, in part, whether universities violated the law by sharing names of early decision students to determine whether those same students made multiple early decision applications, it is unclear exactly what aspect of the early decision process the DOJ believes potentially constitutes an antitrust violation. Certainly, the early decision process has faced criticism in the past as potentially favoring alumni and higher-income applicants. It has also been criticized on the basis that schools have less of an incentive to offer financial aid packages to students admitted early decision, and for locking students into a serious financial commitment without an opportunity to consider other options. However, it has never been raised as a potential antitrust issue or prompted a federal investigation until now.

One theory may be that the DOJ believes early decision programs, coupled with collusion between the colleges and universities, are limiting student choice. Some believe that the focus of the investigation is whether colleges with early decision programs are sharing information about applicants with other colleges in order to disqualify students who seek to apply to multiple schools through the early decision process. However, most are still trying to understand the actual antitrust concern that propels the investigation. Susan K. Tree, codirector of college counseling at Westtown School, like most others, is not sure where the DOJ would find a potential antitrust violation. “I don’t see it yet,” Tree said, “…maybe something is going to surface.” [6]

Finally, it is important to bear in mind that the information-sharing between schools and colleges may implicate the Family Educational Rights and Privacy Act (FERPA), a federal law that protects the privacy of student education records. While there are exceptions, schools generally must have written permission from the parent or eligible student in order to release any information from a student’s education record. Schools may disclose, without consent, “directory” information, including a student’s name, address, telephone number, date and place of birth, honors and awards, and dates of attendance. However, schools are required to inform parents and eligible students about directory information and allow them a reasonable amount of time to request that the school not disclose the student’s directory information.

It is critical that the colleges and universities that have received a preservation request be aware that the DOJ routinely issues subpoenas shortly after such requests. These preservation requests can often be quite burdensome. Among other initiatives, schools in receipt of a preservation request should consult with counsel experienced in government investigations and begin work with them immediately to identify the documents that should be preserved and the individuals, departments or functions who might possess those documents.

[1] Schools among those reported to have received the preservation request include Amherst, Williams, Middlebury, Wesleyan, Wellesley, Grinnell, and Pomona. See NPR interview with Melissa Korn, Wall Street Journal, April 13, 2018.
[2] In reality, a very small number of students break their early decision agreement and fail to withdraw other applications.
[3] Erica L. Green, Justice Dept. Launches Probe of Early College Decisions, THE NEW YORK TIMES (April 10, 2018),
[4] John Bowden, DOJ targets elite universities in early admissions probe: report, THE HILL (April 11, 2018),
[5] Scott Jaschik, Justice Dept. Investigates Early Decision Admissions, INSIDE HIGHER ED (April 9, 2018), Scott Jaschik,
[6] Deirdre Fernandes, Why is the government investigating early decision at elite colleges?, THE BOSTON GLOBE (April 11, 2018),

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© K&L Gates LLP | Attorney Advertising

Written by:

K&L Gates LLP

K&L Gates LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.