Early Decision and the Limits of Competition

For many high school seniors, the grueling college search ends in December. That is because over the past few years, a stable number of these students, roughly 201 per year, have been accepted to Amherst College through the early decision (ED) process. The baseline represents a give-or-take 40% of each enrolled class. Across similar prestigious institutions, the number is even larger. Middlebury College, Brown University, Dartmouth College, and Bowdoin College all regularly fill more than 50% of their class with ED students, sometimes reaching 60% (Middlebury employs two rounds of ED, appropriately named ED I and ED II). Our sibling institutions, Williams College, Smith College, and Mount Holyoke College, admit a similar number of their enrolled classes as Amherst.

Colleges admit students in the ED process for many reasons, including fielding varsity teams (of which we have 27), protecting the college’s yield rate, building a predictable class roster, and, as the United States District Court of Massachusetts recently chose to adjudicate, financial aid.

In August 2025, four students sued 32 of the country’s most selective private colleges, including Amherst, along with the Common Application Inc. and Scoir Inc. Their case, D’Amico v. Consortium on Financing Higher Education, claims that the current affairs of ED among these schools create an antitrust market in which, if admitted to a school, a student is not only bound to attend it but also cannot be sought after by other colleges. D’Amico asserts that the tactic prevents families from bargaining for financial aid allocations by playing one college’s offer against another’s. On Aug. 7, 2026, Judge Angel Kelley rejected the defendant’s motion to dismiss and let the case go forward.

This piece is solely an attempt to break down the arguments from both sides as fairly as I can, and not to determine wrongdoing by Amherst or any of the colleges sued.

The Plaintiff, the Defendant, and the class action

There are four plaintiffs who initiated the civil lawsuit: Alayna D’Amico (Wesleyan University), Max Miller (Washington University in St. Louis), Bella Robinson (Vassar College), and Bram Silbert (Wesleyan). D’Amico, Silbert, and Robinson all enrolled through ED, wherein the first two paid full tuition throughout their time at college, and the latter paid part of the full cost of attendance. Miller enrolled through WashU’s regular decision (RD) process, paying the full cost of attendance. According to the formal complaint, all plaintiffs enrolled through ED “received an offer of admission that was presented as binding.” 

The complaint, the legal document a plaintiff files to officially start a civil lawsuit and demand a response from the defendant, requests a “class action.” The class definition exists because the plaintiffs are suing on behalf of a group. The size of the group determines whether the judge proceeds with the motion because, realistically, no courthouse can run trials involving thousands of people. It is the plaintiff’s responsibility, however, to define the scope of who is considered a member of the class. This occurs through four tenets. (1) Numerosity: too many plaintiffs to sue individually. They allege “at least tens of thousands of members.” (2) Commonality: shared questions of law or fact. They list five, including whether the conspiracy existed and “[t]he appropriate measure of class-wide damages.” (3) & (4) Typicality and Adequacy: The plaintiffs’ claims resemble other people’s, and they and their lawyers will appropriately represent the class.

To be considered a member of the class, you must have paid some tuition out of pocket, and you must fall into one of two groups: students admitted early who received partial grant aid, or students admitted through any round who received no grant aid at all.

The Complaint

The introduction of the complaint situates the defendant schools as arbiters of a “critical role in the American higher education landscape,” having presently or in the past perpetuated “practices that entrench patterns of inequality of access while inflating the price of attendance.” The selection of 32 names to be sued comes due to their participation in the Consortium on Financing Higher Education (COFHE), whose purpose was to encourage info-sharing among members regarding, with respect to this case, admissions of students. The consortium shut down on Dec. 31, 2025, after 50 years. Its website did not say why. The complaint also included the Common App and Scoir because they would be committed to the manufacturing and policing of the conspiracy, an agreement between two or more people to commit an illegal act or achieve a legal goal through illegal means.

We should start by clarifying that ED is not legally enforceable in any way. “While the Early Decision agreement is presented in a form that resembles a contract, an applicant’s commitment is not actually legally binding.” Admission administrators, of course, are aware of this. A former official at the National Admissions Counseling Association called it an “honor-bound agreement” that “doesn’t have any legal standing.” No college has ever sued a student for backing out. After all, many applicants sign these agreements at 17, an age at which you cannot enter a binding contract anyway.

It certainly looks binding, though. Allegedly, the defendants intentionally portray ED as such. As argued by the plaintiffs, the Common App and Coalition websites frame your decision to apply to a school through ED as a binding plan, requiring your legal name, exactly as it appears on official documents. Further stating on the Common App: “‘If the student is accepted under an early decision plan, the student must [emphasis added] promptly withdraw the applications submitted to other colleges and universities and make no additional applications to any other university in any country.’” Any country! Despite the different jurisdictions in these countries. A similarly worded requirement is present on Coalition. A court’s authority stops at its own borders, and a university in Canada or the U.K. never signed the agreement in the first place. To hold a student to this promise abroad, an American college would need comity, the courtesy by which one country’s courts choose to honor another’s legal obligations, for a pledge that is not a legal obligation at home.

There is, however, an exception: financial aid. Students are allowed to withdraw their application if their financial plan is too much of a burden. For any other reason, per the Director of Admissions at Williams, Richard Nesbitt, “[i]t would be a big ethical issue.” They were precise with the phrasing, as the NACAC’s “Guide to Ethical Practice in College Admission” advises its members to “educate students and families of their ethical responsibilities in the admission process.” Industry insiders go as far as saying that students go through with their decision because the consequences of backing out are just too great.

The question then is, if nobody can sue you, what makes students agree to conditions they are unhappy with?

Their answer is that the other colleges do. The complaint alleges that schools “regularly share lists of students admitted in the [ED] cycle in order to coordinate their allocation of applicants.” When a school receives such a list, it “routinely remove[s] those students from their own application processes.” Vanderbilt’s current general counsel, Ruby Shellaway, described the mechanism in her 2006 Yale Law Journal article, when she was a law student: “Once a school admits a student under ED, it notifies the student, and also sends a list of the students it has admitted ED to all of its competitor schools.” In her words, too, the agreement is “an illegal customer allocation and horizontal restraint of trade,” as the admitted student “cannot make a credible threat to go elsewhere, because his name has already been removed from other schools’ applicant pools.” She continued: “Just as it is illegal to act in combination with competitors to set different prices for different customers, it is also illegal for competitors to grant each other exclusive access to certain customers.”

Our own dean said it too. In 2016, Amherst’s then-Dean of Admissions and Financial Aid, Katharine Fretwell, told the U.S. News that the college and about 30 others shared lists of students admitted through early decision. 

So, from there, the student has no competing aid offer and no prospect of one. Georgetown University’s admissions dean, whose school does not use ED, describes what this does to a budget: early decision is “a programmatic way of rationing your financial aid,” because the early pool is wealthier and because “there is absolutely no need to compete on financial packages”. This raises tuition and lessens aid for those students. 

The Argument Against

The colleges did not answer the complaint, but tried to bury it. The defendant made four arguments: this court cannot hear the case, these students cannot bring it, two of them waited too long, and there is no conspiracy.

First, twenty out-of-state colleges and Scoir argued that a Boston court does not have jurisdiction over them because they do not do enough business in Massachusetts. Pomona College, for example, only has 2.3% of its students from Massachusetts. Amherst, of course, sat this one out. 

Second, standing. To sue under antitrust law, a plaintiff must have “suffered an injury of the kind antitrust laws were intended to prevent,” and the colleges argued these four students haven’t. 

Third, antitrust claims generally expire after four years after the injury, and D’Amico and Silbert applied to Wesleyan in 2018. For this, the defendant relied on a case against Brown where a student’s claim over a denied scholarship was thrown out as the plaintiff sued too late.

Lastly, the defense argued that the plaintiffs had described an agreement between the student and the school, not an agreement among colleges. At an oral argument in May, Doug Litvack (representing Dartmouth College and Rice University) told the court there was “no factual agreement among any schools not to compete for students after they are admitted early decision.” It is “totally voluntary” and “just a promise to attend.”

Students withdraw their application; no college does it for them. Aid applicants don’t have to withdraw anything until their package arrives; and the Coalition and Common App agreement explicitly states that, if the financial aid offered is too much of a burden for the family, you “may decline the offer of admission and be released from the Early Decision commitment”). ED here is just a plain old option among several. Want flexibility? Apply RD or early action (EA).

It is important to say that the plaintiffs anticipated this and argued that these are “vague and subjective standards that imply it would be invoked only rarely.” It is still, however, the plaintiff’s responsibility to produce evidence that rules out this explanation.

Finally, there is also a more straightforward story: Admitting a student who has already been admitted elsewhere is usually a wasted offer and drags your yield. The student’s counselor signed the same ED agreement, and they send you students every year. Poach one committed student, and you damage a relationship worth far more than the one you have with the student. Each college, reasoning alone and independently, arrives at the same policy. Antitrust law calls this conscious parallelism, and it is not illegal.

What the Judge Thinks

On Aug. 7, 2026, Judge Angel Kelley issued two rulings. She denied the college’s motion to dismiss but granted the platforms’ and the consortium’s. In the second, she kept the out-of-state colleges in Boston.

This means that, at this point, the court accepts everything in the complaint as true and asks whether there is enough evidence to substantiate the claim: “The question at the pleading stage is not whether there is a plausible alternative to the plaintiff's theory; the question is whether there are sufficient factual allegations to make the complaint's claim plausible.” No one has found that Amherst has done anything wrong. At this stage, the school is just required to hand over internal documents for investigation.

Judge Kelley reached six conclusions:

1. On jurisdiction, what matters, she wrote, is “the total volume of business in a forum, rather than the proportion.” Thus, a family paying a fortune for tuition is as substantial as any other business.  
2. The plaintiffs lost bargaining power. Once admitted ED, a student “cannot make a credible threat to go elsewhere.” Whether the damages are speculative and whether they can be divided among the class is another story.
3. On timing, she sides with D’Amico and Silbert. The Brown case did not apply because the injury comes from paying tuition over and over, not a scholarship provided once. “[E]ach semester where the School Defendants collect tuition and fees at inflated prices, a new antitrust injury occurs.”
4. There is no conscious pluralism. For such a concept to be in place, there must be motive, action against self-interest, and evidence of an agreement. There is direct evidence of an agreement in the Ivy League Joint Statement. Only five defendants are Ivies, but that didn’t matter because “[d]irect evidence that some Defendants entered into the agreement, combined with the fact that the remaining Defendants engaged in conduct closely conforming to that of those who had joined, supports the inference that all Defendants were parties to the agreement.” The colleges plausibly acted against their interests, which hints at coordination: “It is reasonable to infer that a school acting in its own interest has no rational, self-contained reason to walk away from highly qualified students who happen to be admitted to another school.”
5. She declined to opine whether ED is a good practice.

Aftermath

I believe there are two claims on the table with differing strengths. The first one states that colleges coordinate with each other. With publicly available documents and admissions and a defense that has not yet explained why the exchange is necessary, I anticipate that this stands. 

Their second claim is that this coordination inflates tuition. The complaints’ correlation is too weak. There must be an expert model separating one admissions practice from everything else, driving costs across 32 schools with different aid policies.

How much do these claims apply to us? In some cases, the claims apply to us directly because the 2016 statement is in the complaint and the judge’s ruling. We were also among the colleges that received letters from the Justice Department in April 2018, when the Antitrust Division asked schools to preserve communications about sharing the identities of early admits. Amherst confirmed it received the letter and said it was cooperating fully. However, Amherst is need-blind, meets full demonstrated need, awards no merit aid, and includes no loans. If we do not offer aid through a table-sat negotiation, wrongdoing will be harder to locate. 

Ultimately, it would be irresponsible not to consider who this lawsuit is helping. At a college like ours and the ones involved, which, by definition, are only included because of their elite status, have come to rely on ED to secure full-paying students, and they will have to find another way.

It is important to reflect on the demographics behind ED. Amherst’s own former Dean of Admissions and Financial Aid, Tom Parker, said in 2001 that “[t]he whole early-decision thing is so preposterous, transparent, and demeaning to the profession that it is bound to go bust.” The Plaintiff’s reply is deserved: “Though Dean Parker was right about Early Decision’s merits, he was wrong about its staying power.” Under Parker, the college held ED admits to roughly 30%. We are now well above that.