The U.S. Department of Justice has launched an investigation into whether the ethics code of the National Association for College Admission Counseling violates federal antitrust law.

The department has sent information requests to NACAC and to professionals from various schools and colleges who were involved in drafting the new version of the ethics code, which was adopted last year.

The letter from the department, a copy of which has been obtained by Inside Higher Ed, states that the investigation pertains to a possible agreement "to restrain trade among colleges and universities in the recruitment of students."

The Justice Department is seeking copies of all documents related to drafting the new version of the ethics code, known as the Statement of Principles of Good Practice.

The request covers "documents discussing the inclusion, drafting, enactment, enforcement of or justifications for any section."

The statement covers a wide range of issues, generally seen as encouraging ethical conduct by colleges and high schools in the admissions process. The statement encourages transparent policies and has many rules that are seen as protecting students. For instance, the policy states that colleges should not use the lure of good housing assignments to force students to respond instantly to admissions offers.

Some of those policies, however, do limit college actions -- and admissions experts fear that may be what the department is going after.

One admissions official who has seen the information request from the Justice Department said, "Are professional ethics no longer legal?"

The idea that admissions policies considered to be ethical by colleges could violate antitrust rules is not new. In 1991, Ivy League institutions agreed to stop sharing information about the financial aid offers made to students admitted to more than one member institution. The agreement followed a Justice Department investigation into the practice, which the universities said promoted fairness, but that the department said was an antitrust violation.

NACAC sent a note to members today saying in part, "At present, we know little about the scope and intent of the inquiry, but we are cooperating fully to provide all requested documents. We have also learned that members of the former Steering Committee on Admission Practices have requests from the DOJ to provide some records. In the meantime, we remain confident in the values that underpin SPGP: NACAC’s Code of Ethics and Professional Practice and its mission to serve students and our fellow professionals."

The Justice Department has not responded to a request for comment.

NACAC adopted the new statement at its annual meeting in September. The new version is trimmed down from previous iterations, and association leaders said they wanted to focus on key principles and interpretations.

Many of the rules in the document have historically come from college counselors who report that their students are frustrated by the way they have been treated by colleges to which they have applied.

Terry Hartle, senior vice president for government relations and public affairs at the American Council on Education, said that he did not think this would become a repeat of the investigation of Ivy institutions. "I don't think anything in the code of conduct is equivalent to devising common financial aid portraits for individual students."

As to whether there is anything to investigate in NACAC's statement, Hartle was dubious, having just read the ethics code. "I'm befuddled about the Justice Department's interest, as I suspect will be the case for anyone who reads NACAC's code of conduct," he said. "This document encourages ethical admissions practices, and it's hard to imagine why this code, which has been around for years, would suddenly be of interest to the Justice Department."

Wondering About the Rationale

Admissions officials generally said that they could not see any reason for the Justice Department probe. Many said that any weakening of the NACAC standards would hurt students.

"There is absolutely no justification for spending tax dollars to investigate a professional association’s principles of good practice, that was written and approved by members, and that focuses on protecting the 'consumer' with guidelines for transparency, honesty, confidentiality and, to the extent possible, simplicity," said Robert Massa, senior vice president for enrollment and institutional planning at Drew University, via email.

"The world of college admissions is very competitive. Colleges spend money on programs and facilities, not to mention marketing and scholarships, in order to influence student enrollment decisions. Without mutually agreed upon guidelines, one could imagine moving toward a free-for-all where, for example, students could be pressured to deposit early through a financial aid or housing incentive, or where a high school and a college could routinely work together behind the scenes to move a student toward a particular college because a commission is at stake for the counselor. The list of potential abuses is long, and NACAC’s revised Code of Ethics and Professional Practices seeks to provide the guidelines members believe are needed to assure that the student and not the institution is at the center of the admissions process."

Todd Rinehart, vice chancellor for enrollment management at the University of Denver, led the NACAC committee that developed the new version of the standards. He said he was surprised by the investigation.

The statement on ethics, he said, "is to serve students, to provide access to college in a way that is transparent, is clear and easy to understand, in a way that parents and school counselors can understand how the process works." He also noted that it represented policies agreed upon by members -- unanimously for the most recent version.

Some speculated about a political agenda behind the Justice Department's actions.

Jerome A. Lucido, executive director of the Center for Enrollment Research, Policy and Practice at the University of Southern California Rossier School of Education, said via email that he wondered if the department might be interested in the NACAC statement's expression of support for diversity -- especially since the department is looking into allegations that Harvard University has discriminated against Asian-American applicants.

"Why would the department be suspect of a code of ethics promulgated by a professional association, whose members are voluntary, that promotes truthfulness and transparency, fairness and equity, professional conduct consistent with student welfare and trust, and protection of applicant confidentiality, to name a few, raise concerns?" he said. "Without inside information from the DOJ, one might speculate that their interest has more to do with the preamble than the code itself. That preamble, which highlights values that promote equity and participation of underserved groups, may suggest to the department a profession that they may feel may go too far in tilting the scales to the historically underrepresented."

Nicholas Soodik, associate director of college counseling at Pingree School, said, "I am no expert in antitrust cases, so how our trade organization's statement of good practice violates such laws is beyond me. Instead, the investigation by the DOJ into NACAC's SPGP feels of a piece with an administration that has no interest in redressing social inequities and has previously shown hostility toward the broader mission of higher education."