Over the weekend the Wall Street Journal reported that last week a number of colleges and universities received preservation requests from the Department of Justice (“DOJ”) related to an investigation by DOJ into whether communications among officials at competing colleges about early-decision applicants violate antitrust laws. The Wall Street Journal obtained a copy of the April 6 preservation request and reported that it asked colleges and universities to preserve emails and other messages that concern, among other topics:

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

The Wall Street Journal reports that the preservation letter suggests that the DOJ is examining whether schools accept or reject students based on the admission decisions of other colleges and are probing whether communications among officials at competing schools could affect students’ admission opportunities. This would not be the only open DOJ investigation into colleges and universities. It has been reported that the DOJ is also investigating the use of race in Harvard University’s admissions practices and the National Association for College Admission Counseling’s code of ethics that addresses topics such as when in the year schools can begin accepting applications and when they should stop courting candidates.

For those colleges and universities that have received a preservation request, the DOJ nearly always follows that up shortly thereafter with a subpoena. Accordingly, we expect that the colleges and universities that received a preservation request will receive a subpoena in the near future and should consider lining up counsel now. Engaging counsel now will also allow counsel experienced in government investigations to guide the school in addressing the preservation request, which can often be quite burdensome. Schools in receipt of a preservation request should begin work immediately with outside counsel or in-house counsel, or both, to identify the documents that should be preserved and who might possess those documents.