Actions Required in Response to the US Department of Justice Investigation
At the 2019 NACAC National Conference on Sept. 28, Assembly delegates and voting members at the Annual Membership Meeting will cast votes on matters of critical importance to the future of our association. Proposed changes would remove three specific mandatory provisions from our Code of Ethics and Professional Practice (CEPP) and would provide a limited extension of authority to the NACAC Board of Directors to make changes to our Bylaws, but only under extraordinary legal circumstances.
Approving these measures is in the best interest of NACAC and its members and an essential step to help bring closure to a two-year, ongoing investigation by the Antitrust Division of the US Department of Justice (DOJ). The department has indicated that it is likely to seek a “consent decree” – a formal agreement, approved by a federal judge, that would compel NACAC, under a court order, to delete three provisions from the CEPP.
The changes being proposed at the national conference are intended to advance a good-faith compromise with the department and to mitigate the potential impact of other actions the department might take. Failure to make these changes – and prolonging the DOJ investigation – would have serious negative consequences for NACAC’s finances and ability to operate, including the possibility of extremely costly and time-consuming litigation and, potentially, even more burdensome requirements mandated by federal authorities.
How Did We Get Here?
The Department of Justice investigation concerns “restraint of trade” under the federal antitrust laws. The department believes that the three provisions of NACAC’s CEPP inhibit, to some extent, competition among colleges for students. Notwithstanding numerous meetings and conversations with the department's staff and its superiors, the department has not been persuaded to close its investigation but rather has told us that the investigation will continue unless we agree to a consent decree by which we agree to delete the three provisions from the CEPP.
Throughout the nearly two years of the department's investigation, NACAC has cooperated in good faith to resolve the inquiry while staying true to our core mission and principles. This includes our commitment to protecting students throughout their transition to college. Until now, on the advice of our legal counsel, NACAC senior leadership has kept the content of our discussions with the department strictly confidential. However, now that there is a strong possibility of the department’s obtaining a consent decree that could have serious implications for the association, we are sharing this information with our membership and recommending a path forward.
What We Are Asking of You
The likelihood of a consent decree – as well as the prospect of a continuing investigation and possible litigation, along with the accompanying burden of complying with the department's investigatory demands and associated legal costs – leaves NACAC with little choice. As such, we believe the best course of action is to make the changes to our CEPP that the department is requiring.
The Assembly’s approval is required to remove specific statements in the CEPP identified by the department as problematic. These provisions cover offering exclusive incentives for Early Decision, recruiting first-year undergraduates who have committed elsewhere, and recruiting transfer students. (Please review the proposed motions in the 2019 Assembly Meeting Background.)
It is also possible that a consent decree could require additional timely action, on a court-ordered timeline that would be impossible to meet, given the organization’s current rules permitting amendments to the CEPP and Bylaws only at the national conference. For this reason, we are proposing that the NACAC Board of Directors be given limited authority to make necessary changes under extraordinary legal circumstances such as these. The board would only be permitted to use this emergency authority in extreme situations that threaten the continued viability of NACAC, such as in response to a government investigation, court order, other government action, or pending or threatened litigation. (Please review the proposed bylaw changes within the links on the Notice of 2019 Annual Membership Meeting).
We recognize that these proposed changes are significant and may present a difficult decision for NACAC’s members – just as they did for its leadership. Please plan to attend the Annual Membership Meeting on Saturday, Sept. 28, or, if you cannot attend, please use a proxy ballot and cast your vote on this critical matter. We promise to do our part to work with our membership to implement the changes in ways that are as consistent as possible with our values and commitment to students. Despite these developments, we can and will remain a champion for the best and ethical practice of college admission and a steadfast advocate for protecting students throughout their transition to higher education.
We request your support for the proposed changes so that NACAC can move forward with undivided focus on fulfilling its essential mission.
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Sept. 12 Webinar Recording
In the "Critical Decisions for NACAC Members" webinar, we shared what we know about the DOJ investigation and answered your questions. Part of the webinar was also devoted to the revised membership model proposal. A recording of the webinar is now available.Register to view recording
Click below to download the presentation slides used in the Sept. 12 webinar, "Critical Decisions for NACAC Members."Download Now
We are asking NACAC members to make critical decisions for the future of the association during the 2019 NACAC membership meeting. A private Facebook group has been set up to give you a chance to voice any concerns and get your questions answered ahead of the meeting.Join