Vance Asks FTC to Investigate Universities Over Alleged Admission Policy Collusion Following Affirmative Action Ban

Ohio senator says elite schools may be coordinating admissions practices to defy Supreme Court ruling

Yale University / Twitter screenshot
August 10, 2023

Sen. J.D. Vance (R., Ohio) is asking the Federal Trade Commission to investigate whether elite universities are coordinating their admissions policies in response to the Supreme Court’s ban on affirmative action, arguing that a synchronized effort to evade the ruling would violate antitrust law.

Schools "may be tempted to jointly adopt new and experimental policies, such as preferences for low-income students, assured in the knowledge that their competitors will not do otherwise," Vance wrote in a letter to FTC chair Lina Kahn on Thursday morning. "For example, it would raise alarms for federal authorities if other elite schools were to copy Columbia Law School’s recent (and now rescinded) effort to have applicants submit a video statement, thus allowing admissions officers to observe their race."

Vance's letter comes as 17 colleges are fending off a lawsuit backed by the Justice Department over alleged price-fixing in their financial aid policies. The ban on racial preferences could add to those antitrust headaches if universities—seeking to preserve the demographic makeup of their classes—agree behind the scenes to adopt the same admissions practices. Like regular corporations, colleges cannot collude in ways that dampen competition and harm consumers.

Such collusion may be happening already, Vance's letter suggests. In the wake of the Supreme Court’s decision, Vance pressed the presidents of eight Ivy League colleges, as well as Oberlin and Kenyon, for information about their compliance with the ruling. He received replies from every school except Yale—all of which bore an "uncanny similarity" in "substance and structure," Vance’s letter to Kahn states.

Each was "roughly the same length," used "more or less identical phrasing," and with one exception was signed by a government affairs official rather than a university president. Most were also sent the same day, July 21, according to copies of the replies reviewed by the Washington Free Beacon, and pledged to pursue diversity without violating the law.

"It is hard to believe that the schools responding to my letter could achieve such remarkable parallels in the absence of coordination or collusion," Vance told Kahn. "It is nearly impossible to believe that they would do so using the same structure, vocabulary, tone, and brevity."

Some passages in the replies are almost indistinguishable from each other. Brown said it was committed to "fostering the diversity that confers educational benefits for students." Columbia said that "diversity is central to our identity," "foster[s] meaningful interactions," and "prepare[s] students to make a difference in the world." Dartmouth said diversity is a "critical component of [students’] education" that "prepares them for a lifetime of learning and of responsible leadership."

Those similarities could indicate that the schools are communicating about the best way to respond to the Supreme Court’s ruling, Vance’s letter said. He called on the FTC to investigate their potentially "collusive behavior," using its subpoena power to obtain information from the schools about their communications with each other.

"Coordinating the response to a Senator’s letter is one thing," Vance wrote. "Coordinating admissions policies in the wake of the Harvard College decision is quite another."

The nine colleges did not respond to requests for comment.