To the University Community
In September 1989, the University of Pennsylvania received from the United States Department of Justice a request for information in connection with an inquiry into potential agreements among colleges and universities relating to financial aid, tuition, and faculty and administra tive salaries. Cooperating fully with the investigation, the University provided many
thousands of documents to the Justice Department.
The Justice Department's inquiry culminated in the entry on September 20, 1991, of a final judgment in the United States District Court for the Eastern District of Pennsylvania. Under the terms of that judgment, the University of Pennsylvania and seven other Ivy League schools agreed not to exchange certain types of information, such as financial aid data and "plans and projections, including budget assumptions, regarding future student fees or general faculty salary levels...."
In 1992, Congress modified the requirements of the final judgment by enacting legislation that allowed colleges and universities to agree to award institutional financial aid on the basis of need; the law did not authorize them to discuss financial aid awards to specific common applicants. That law, which expired on September 30, 1994, has been replaced by new legislation that permits colleges and universities that practice "need -blind" admissions to: (a) agree to award aid only on the basis of financial need; (b) use common principles of analysis for determining need; (c) use a common aid application form; and (d) exchange certain limited financial aid data with respect to commonly admitted applicants prior to making an aid award.
"Need-blind" admissions is defined as making admissions decisions "without regard to the financial circumstances" of the student. Like the prior law, the new legislation does not authorize colleges and universities to discuss specific awards to common applicants. Under the final judgment, the University is still required to maintain an enforcement program that disseminates the rules set out in the judgment and monitors compliance with the antritrust laws.
In accordance with the requirements of the final judgment, I have been designated Antitrust Compliance Officer with responsibility for implementing the antitrust compliance program. While complying with the final judgment is a priority, it should not impede appropriate commu nication among schools. Accordingly, we are republishing the final judgment in United States v. Brown University, et al. and the University's guidelines on cooperative exchanges of certain University information. Attorneys for the University are available to confer with you regarding compliance with the final judgment and the antitrust
laws. Please direct your questions to the Office of the General Counsel, 221 College Hall; telephone: 898-7660.
--Shelley Z. Green, General Counsel
Questions about these Guidelines should be directed to the Office of the General Counsel.
UNITED STATES OF AMERICA,
BROWN UNIVERSITY IN PROVIDENCE IN THE STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS;
THE TRUSTEES OF COLUMBIA UNIVERSITY IN THE CITY OF NEW YORK;
THE TRUSTEES OF DARTMOUTH COLLEGE;
PRESIDENT AND FELLOWS OF HARVARD COLLEGE, MASSACHUSETTS;
MASSACHUSETTS INSTITUTE OF TECHNOLOGY;
THE TRUSTEES OF PRINCETON UNIVERSITY;
THE TRUSTEES OF THE UNIVERSITY OF PENNSYLVANIA; and
Civil Action No. 91-3274
Filed: September 19, 1991
Entered: September 20, 1991
ORDERED, ADJUDGED AND DECREED:
This Court has jurisdiction of the subject matter of this action and of each of the parties consenting to this Final Judgment. The Complaint states a claim upon which relief may be granted against each defendant under Section 1 of the Sherman Act, 15 U.S.C. § 1.
As used in this Final Judgment:
(A) "Student Fees" means the tuition, room, board, and mandatory fees, or any of these individually, a college, or university charges.
(B) "Family Contribution" means the amount the student and the student's family pay from their income and assets towards the Student Fees.
(C) "Parental Contribution" means the portion of the Family Contribution the student's parent or parents contribute from their income and assets.
(D) "Financial Aid" means a reduction of the total Student Fees for a particular student. It consists of grants (gift aid) and self-help (loans and the student's income from term time employment offered by, or through, the college or university).
(E) "Merit Aid" means Financial Aid that is not based on economic need.
(F) "Needs Analysis Formula" means any formula for calculating or ascertaining a student's need or Family or Parental Contributions.
(G) "Summer Savings Requirement" means the amount the college or university requires the student to earn during the summer to contribute to his or her Student Fees for the following year.
This Final Judgment shall apply to each defendant and to each of their officers, trustees, and other members of their governing boards, employees, agents, successors, and assigns, and to all other persons in active concert or participation with any of them who shall have received actual notice of this Final Judgment by personal service or otherwise.
IV. PROHIBITED CONDUCT
Each defendant is enjoined and restrained from:
(A) agreeing directly or indirectly with any other college or university on all or any part of Financial Aid, including the Grant or Self-help, awarded to any student, or on any student's Family or Parental Contribution;
(B) agreeing directly or indirectly with any other college or university on how Family or Parental Contribution will be calculated;
(C) agreeing directly or indirectly with any other college or university to apply a similar or common Needs Analysis Formula;
(D) requesting from, communicating to, or exchanging with any college or university the application of a Needs Analysis Formula to, or how family or parental contribution will be calculated for, a specific Financial Aid applicant;
(E) agreeing directly or indirectly with any other college or university whether or not to offer Merit Aid as either a matter of general application or to any particular student;
(F) requesting from, communicating to, or exchanging with any other college or university its plans or projections regarding Summer Savings Requirements or Self-help for students receiving Financial Aid;
(G) requesting from, communicating to, or exchanging with any other college or university, the Financial Aid awarded or proposed to be awarded any Financial Aid applicant except as required by federal law;
(H) requesting from, communicating to, or exchanging with any other college or university any information concerning its plans or projections, including budget assumptions, regarding future Student Fees or general Faculty Salary levels; and
(I) entering into, directly or indirectly, any contract, agreement, understanding, arrangement, plan, program, combination, or conspiracy with any other college or university or its officers, directors, agents, employees, trustees, or governing board members to fix, establish, raise, stabilize, or maintain Student Fees or Faculty Salaries.
V. COMPLIANCE PROGRAM
Each defendant is ordered to maintain an antitrust compliance program which shall include designating, within 30 days of the entry of this Final Judgment, an Antitrust Compliance Officer with responsibility for accomplishing the antitrust compliance program and with the purpose of achieving compliance with this Final Judgment. The Antitrust Compliance Officer shall, on a continuing basis, supervise the review of the current and proposed activities of his or her defendant institution to ensure that it complies with this Final Judgment. The Antitrust Compliance Officer shall be responsible for accomplishing the following activities:
(A) distributing, within 60 days from the entry of this Final Judgment, a copy of this Final Judgment (1) to all trustees and governing board members, and (2) to all officers and non-clerical employees who have any responsibility for recommending or setting of fees, salaries, or financial aid in the offices of the President, Vice Presidents, Provost, Deans, Financial Aid, Admissions, Budget, Controller, Treasurer, and other similar offices;
(B) distributing in a timely manner a copy of this Final Judgment to any officer, employee, or trustee who succeeds to a position described in Section V(A);
(C) briefing annually those persons designated in Section V(A) on the meaning and requirements of this Final Judgment and the antitrust laws and advising them that each defendant's legal advisers are available to confer with them regarding compliance with the Final Judgment and the antitrust laws;
(D) obtaining from each officer, employee, or trustee designated in Section V(A) an annual written certification that he or she: (1) has read, understands, and agrees to abide by the terms of this Final Judgment; (2) has been advised and understands that non-compliance with this Final Judgment may result in his or her conviction for criminal contempt of court; and (3) is not aware of any past or future violation of this decree that he or she has not reported to the Antitrust Compliance Officer; and
(E) maintaining a record of recipients to whom the final Judgment has been distributed and from whom the certification in V(D) has been obtained.
(A) Within 75 days after the entry of this Final Judgment, each defendant shall certify to the plaintiff whether it has designated an Antitrust Compliance Officer and has distributed the Final Judgment in accordance with Section V above.
(B) For 10 years after the entry of this Final Judgment, on or before its anniversary date, the Antitrust Compliance Officer at each defendant school shall certify annually to the Court and the plaintiff whether that defendant has complied with the provisions of Section V.
(C) At any time, if a defendant's Antitrust Compliance Officer learns of any past or future violation of Section IV of this Final Judgment, that defendant shall, within 45 days after such knowledge is obtained, take appropriate action to terminate or modify the activity so as to comply with this Final Judgment.
(D) If any person designated in Section V(A) learns of any past or future violation of this decree, he or she shall report it to the Antitrust Compliance Officer promptly.
(A) If, after the entry of this Final Judgment, any defendant violates or continues to violate Section IV, the Court may, after notice and hearing, but without any showing of willfulness or intent, impose a civil fine upon that defendant in an amount reasonable in light of all surrounding circumstances. A fine may be levied upon a defendant for each separate violation of Section IV.
(B) Nothing in this Final Judgment shall bar the United States from seeking, or the Court from imposing, against any defendant or person any other relief available under any other applicable provision of law for violation of this Final Judgment, in addition to or in lieu of civil penalties provided for in Section VII(A) above.
VIII. PLAINTIFF ACCESS
(A) To determine or secure compliance with this Final Judgment and for no other purpose, duly authorized representatives of the plaintiff shall, upon written request of the Assistant Attorney General in charge of the Antitrust Division, and on reasonable notice of the relevant defendant, be permitted:
(B) Upon the written request of the Assistant Attorney General in charge of the Antitrust Division, a defendant shall submit such written reports, under oath in requested, relating to any of the matters contained in this Final Judgment as may be reasonably requested.
(C) No information or documents obtained by the means provided in this Section VIII shall be divulged by the plaintiff to any person other than a duly authorized representative of the executive branch of the United States, except in the course of legal proceeding to which the United States is a party, or for the purpose of securing compliance with this Final Judgment, or as otherwise required by law.
IX. LIMITING CONDITIONS
(A) Nothing in this Final Judgment shall prevent defendants that are members of a common athletic league from: (1) agreeing to grant financial aid to recruited athletes or students who participate in athletics on the sole basis of economic need with no differentiation in amount or in kind based on athletic ability or participation, provided that each school shall apply its own standard of economic need; (2) agreeing to permit independent auditors access to Financial Aid information to monitor adherence to this agreement so long as the monitoring process does not disclose financial aid information, needs analysis or methodology to other league members; or (3) interpreting this agreement and enforcing it so long as such interpretation and enforcement do not disclose financial aid information, needs analysis or methodology to other league members.
(B) Nothing in this Final Judgment shall prohibit any defendant from advocating or discussing, in accordance with the doctrine established in Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961), and its progeny, legislation, regulatory actions, or governmental policies or actions.
(C) Nothing in this Final Judgment shall prevent any defendant from: (1) disclosing policies or information to the public; or (2) communicating to others policies or information once they have been made public. However, no individual designated in Section V(A) shall communicate to any individual similarly situated at another defendant institution any plans or projections, including budget assumptions, regarding Student Fees or general Faculty Salary levels prior to their approval by that defendant's Governing Board.
(D) Nothing in this Final Judgment shall prohibit any defendant from unilaterally adopting or implementing a Financial Aid program based, in whole or in part, on the economic need of applicants.
(E) Nothing in this Final Judgment shall prohibit or regulate conduct that federal legislation enacted subsequent to the entry of the Final Judgment authorizes or exempts from the antitrust laws.
(F) Nothing in this Final Judgment shall prevent the defendants from each unilaterally utilizing or appointing an independent agency, whether or not utilized by other defendants, to collect and forward information from Financial Aid applicants concerning their financial resources. The agency may only forward the financial aid information requested by that particular defendant.
(G) Nothing in this Final Judgment shall prohibit defendants or their representatives from continuing their consultations with the College Scholarship Service concerning the processing and presentation of its data in the same manner and degree as currently exists.
(H) Nothing in this Final Judgment shall prohibit an individual designated in Section V(A) from serving as and performing the normal functions of a trustee or governing board member of another college or university that is not a defendant to this action. However, the individual may not disclose any non-public information including student fees, faculty salaries, or financial aid to any other college or university.
(I) Nothing in this Final Judgment shall prohibit any defendant from disclosing information as part of the accreditation process. However, any individual participating in the accreditation process may not disclose any non-public information including student fees, faculty salaries, or financial aid to any college or university.
(J) Nothing in this Final Judgment shall prohibit any defendant from providing financial aid for an individual student in situations where such defendant is jointly providing education or financial aid for that student with another college or university.
X. FURTHER ELEMENTS OF DECREE
(A) This Final Judgment shall expire 10 years from the date of entry.
(B) Jurisdiction is retained by this Court for the purpose of enabling any of the parties to this Final Judgment to apply to this Court at any time for further orders and directions as may be necessary or appropriate to carry out or construe this Final Judgment, to modify or terminate any of its provisions, to enforce compliance, and to punish violations of its provisions.
(C) Entry of this Final Judgment is in the public interest.
Dated: September 19, 1991
Volume 42 Number 32
May 14, 1996
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