Justice Department Pressures Admissions Group to Change Ethics Code

The National Association for College Admission Counseling (NACAC) has proposed to delete several provisions from its Code of Ethics and Professional Practice at the association’s meeting at the end of September. According to NACAC, these proposed changes are the result of the association’s effort to resolve a two-year investigation by the Antitrust Division of the Department of Justice (DOJ).
 
The DOJ investigation has focused on several provisions in NACAC’s code of ethics that DOJ believes constitute unlawful restrictions of competition in violation of federal antitrust laws, including provisions that would:

• Preclude institutions from providing exclusive incentives to early decision applicants;
• Bar the recruitment of students who have committed to another college unless the students initiate an inquiry; and
• Prohibit the recruitment of transfer students unless the students initiate contact.

In order to resolve the investigation and avoid litigation, NACAC is proposing to eliminate the above provisions from its code of ethics. NACAC is also negotiating with DOJ over the terms of a consent decree that would prohibit implementation of these same provisions.
 
It is important to note that the DOJ investigation may have implications for admissions practices at private, nonprofit colleges and universities. In general, institutions may individually determine and apply recruiting and admissions practices as each sees fit. However, it’s important to note that any effort by institutions to continue these practices in a cooperative manner with other institutions risks a DOJ investigation. If a college or university is considering changes to its admissions practices in response to these developments, it should discuss the legal implications with counsel before doing so.
 
In the meantime, the American Council on Education, in conjunction with the National Association of College and University Attorneys, prepared a summary of this issue.