Civil rights, antitrust, and early decision programs.

• Author: Afram, Ruby Z.

INTRODUCTION

A 2003 study of students at Harvard, Princeton, MIT, and Yale found that, "among those students for whom financial aid was not a concern," seventy-eight percent used early admission programs to apply to college; among students for whom "financial aid was important to their choice of college, only 48.0 percent applied early." (1) That finding, and others like it, has sharpened a debate over college early admission programs in general, and early decision programs--which require applicants to a given university to enroll there if admitted early--in particular. On one side of the debate are those who argue that early admission programs offer significant benefits to both institutions and students, stabilizing enrollment levels while providing students a way of indicating their first-choice school. (2) On the other side are those who feel, in the words of one counselor, that early admission programs "serve the institutional needs of colleges a great deal more than [they] serve students." (3) While the schools benefit from the programs, the programs push the college search process earlier and earlier into students' high school careers. Students now begin the college admissions process--historically largely confined to a student's senior year--as early as freshman or sophomore year.

Beyond sharpening this debate over students' general well-being, (4) the release of the Avery study in 2003 expanded the incipient debates over the impact of early admission programs on the rate at which poor and minority students are admitted to universities. As Bruce Poch, Dean of Admissions at Pomona College, put it: "Whiter but richer kids [come] in early; middle-income kids and people of color apply later. It's a separate but maybe unequal system." (6)

The impact of early admission programs on access to higher education took on yet greater importance in the wake of the Supreme Court's 2003 decisions in Gratz v. Bollinger (7) and Grutter v. Bollinger. (8) The cases brought to a close years of litigation challenging the University of Michigan's undergraduate- and lawschool-admissions processes. In clear, cogent language, the Court announced that educational diversity is a compelling interest that justifies the consideration of race in higher education admissions practices. Dozens of institutions of higher education filed or joined amicus briefs in support of the University of Michigan, (9) arguing that a diverse student body is essential to fulfill their educational missions. (10) Yet many of those same institutions continue to employ early admission programs after Grutter and Gratz, even as growing evidence suggests that the programs limit student-body diversity. One of the questions this Note seeks to answer is why, if schools place such a high premium on diversity, early admission programs have become so prevalent over the past decade.

Early admission programs exploded in popularity during the 1990s, and the National Association of College Admissions Counseling (NACAC) estimates that roughly one-third of the nation's 1400-plus four-year colleges and universities now offer an early admission option. (11) Between 1990 and 1996, seventy colleges and universities started early decision programs. A study by the NACAC found "significant evidence of a trickle down effect: the most selective colleges had long used early admissions, while many of the less selective colleges ha[ve] implemented them since 1990." (12) The programs are heavily concentrated among the nation's elite schools, (13) but the programs have moved to less selective schools over the last decade. Some schools now accept half of their incoming classes through the programs. (14)

Early admission programs come in two basic forms--early decision (ED) and early action (EA)--both of which allow high school seniors to apply to a college or university in November. The schools then provide students with a decision in early December, in advance of other colleges' regular-decision application deadlines. (15) Under ED, applicants promise that they will enroll if admitted to the college or university. Under EA, students do not promise to enroll if admitted, but still benefit from a school's early reply. Under both ED and EA, a college can admit or reject an applicant, or defer consideration of the application to its regular-decision admissions cycle. (16) ED "predominates at the most selective colleges," while EA is more common at less selective colleges. (17)

This Note will focus on ED because, although ED and EA share certain features, ED has greater inequitable effects on the college admissions process. (18) This Note argues that ED diminishes campus diversity. The Avery study provides data analysis about early admission programs' wealth effects, but does not thoroughly discuss its findings' implications for campus diversity. Extrapolating from the study, it seems likely that, as colleges accept larger percentages of their classes through ED, colleges' socioeconomic and racial diversity are affected. A program that affects one may well impact the other; while the Avery study notes this, it does not attempt a more detailed analysis of the relation between race and ED. This Note moves beyond the Avery study to further delineate ED's possible relation to a school's racial composition.

This Note is not only descriptive, but also prescriptive. It uses legal analysis to shine light on possible solutions to these problems. There has been little discussion of the legal implications of ED, and no other commentator has used a legal framework, derived from either civil rights or antitrust law, to address the ED debate. (19) The debate, until now, has centered on whether it is appropriate for colleges and universities to employ ED programs in light of their commitments to educational diversity and student well-being. (20) The discussions have largely focused on the institutions' preferences rather than their legal obligations. Moving the debate away from educational choice and toward the available legal frameworks emphasizes different facets of early admission programs than the educational ethics debate does: It emphasizes race and class impact in place of student well-being as a measure of the programs' gains and losses. Legal analysis also provides a structure to the debate that, through litigation, can mandate change. This may be especially important because extralegal reform efforts, to date, have met with only limited success. (21)

This Note begins in Part I by briefly examining the rise of early decision. In Part II, it then considers why, if schools are concerned about diversity, they have done nothing about ED, when it has clear impacts on less privileged students. Part III then analyzes the relevance of civil rights law. It demonstrates how ED functions, and how schools might react to minority application shortfalls resulting from ED. It argues that because of its disparate impact on minority applicants, ED might violate Title VI of the Civil Rights Act of 1964. (22) This Part of the Note focuses on civil rights analysis and separates out ED's racial impact from more general discussions about ED's effects on student well-being. It shows that ED programs, rather than raising diffuse, debatable concerns, may in fact create specific legal harms that demand redress. A significant practical problem exists, however, with civil rights analysis: There is almost no readily available data about racial breakdowns for ED or regular-decision applicants. This makes a civil rights violation harder to prove once analysis moves outside the realm of theory. It is not an incurable problem, however. As the Avery study shows, colleges and universities do have the information that would allow a robust civil rights analysis. Nevertheless, the problem is a serious one, because they are extremely reluctant to release the data. (23)

Part IV considers an alternate legal framework for evaluating ED: antitrust. Moving to antitrust law shifts the focus from ED's racial impact to its socioeconomic impact and cures the informational problems that would plague any civil rights action. Given the practical limitations of civil rights analysis, antitrust law offers an alternative legal ground on which litigants challenging ED programs might prevail. While access to higher education has traditionally been litigated under civil rights laws, antitrust precedent exists that could be brought to bear in this context. Certain reciprocal actions by ED schools, used to enforce students' promises to attend, might trigger an analysis similar to that in United States v. Brown University. (24) And while introducing antitrust law does move the debate from race to class, antitrust analysis, like civil rights analysis, focuses the ED debate on a specific legal harm. Significantly, the practical problems interfering with civil rights analysis do not exist in the antitrust realm, permitting the application of a more robust legal critique to ED programs.

While there has been some legislative gesturing toward ED reform, neither the legal nor the educational community seems to have considered the possibility that ED's fate lies not with the institutions that employ ED but with the courts. Because both race and class have played such instrumental roles in the diversity debates, this Note focuses its discussion of diversity on those factors. For civil rights law, ED's racial effects come to the fore; in antitrust analysis, ED's effects on different socioeconomic groups predominate. Both civil rights law and antitrust law suggest that, beyond being unfair, ED programs may actually be illegal. The Note then concludes by discussing several options for reform. It argues that one option--a central first--choice clearinghouse--better serves both students and colleges than does the current model, while avoiding the more serious concerns raised by ED.

1. THE RISE OF EARLY DECISION

   Harvard, Yale, and Princeton first...