To the University Community:
In September 1989, the University received from the U.S. Justice Department
a request for information in connection with its inquiry into potential
agreements among colleges and universities relating to financial aid, tuition
and faculty and administrative salaries. Cooperating fully with the investigation,
the University provided many thousands of documents to the Justice Department.
The inquiry culminated in the entry on September 20, 1991, of a final judgment
in the U.S. District Court for the Eastern District of Pennsylvania. Under
the terms of that judgment, Penn 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. . . ." The University
is required to maintain an enforcement program that communicates the rules
set out in the judgment and monitors compliance with the antitrust laws.
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 and to discuss and adopt principles for
determining student financial need. The law, however, did not authorize
them to discuss financial aid awards to specific common applicants. That
law was replaced by legislation permitting colleges and universities that
practice need-blind admission to agree to award aid only on the basis of
financial need, to use common principles of analysis for determining need,
to use a common aid application form, and to exchange certain limited financial
data with respect to commonly-admitted applicants prior to making an aid
award. The legislation defines "need-blind admission" as making
admissions decisions without regard to the financial circumstances of the
student. The law does not authorize colleges and universities to discuss
specific aid awards to common applicants, and 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 antitrust 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 communication 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. The Office of the General Counsel
is available to answer your questions about compliance with the final judgment
and the antitrust laws.
--Wendy S. White, Office of the General Counsel
Guidelines on Cooperative Exchanges of Certain University
- These Guidelines apply to University information pertaining to tuition
(including fees for room and board), financial aid and salary levels for
faculty and administrative personnel.
- University officials may disclose policies and information to the public
and may communicate to others policies and information once they have been
made public. However, no University official shall communicate to an official
of another school any plans or projections, including budget assumptions,
regarding tuition and fees or general faculty salary levels prior to their
final approval by the administration or the Trustees, as appropriate.
- University officials must not participate in one-on-one or roundtable
discussions with representatives of other institutions about projected
or anticipated levels of tuition, fees, and salaries, or budget assumptions,
and if such discussions occur, University officials must excuse themselves.
- Decisions by the University relating to the setting of tuition, fees
and salaries or the awarding of financial aid must not be based upon or
refer to projections of tuition, fees, and salaries or financial aid by
other educational institutions. University officials cannot solicit information
concerning projected levels of tuition, fees and salaries or the methodology
for awarding financial aid at other educational institutions.
- No University official may request from, communicate to or exchange
with any college or University confidential financial aid information.
For purposes of this policy, confidential financial aid information includes
but is not limited to the application of a Needs Analysis Formula to, or
how family or parental contribution will be calculated for, a specific
applicant; the University's plans or projections regarding summer savings
requirements or self-help; the aid awarded or proposed to be awarded any
applicant except as required by federal law.
- In general, current and historical data relating to tuition, fees and
salaries may be discussed and exchanged with representatives of other institutions,
unless such disclosure is proscribed (for reasons other than the antitrust
laws) by University or legal regulations. (For example, the University
generally will not disclose the salary of any identified individual without
his or her consent.) Thus, University officials may release to representatives
of other institutions and to the press information relating to current
or past levels of tuition, fees and aggregate salaries, and may participate
in discussions with representatives of other institutions about such current
or past information. However, University officials cannot disclose budget
assumptions about future tuition, fees and salaries, or suggest that the
University will maintain current levels of tuition, fees and salaries or
will modify them in any particular way (e.g., to agree that tuition and
fees will rise by a specified percentage).
- Any University official who learns of a violation of these Guidelines
or of Section IV of the Final Judgment, must report it to the Antitrust
Questions about these Guidelines should be directed to the Office of
the General Counsel.
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
UNITED STATES OF AMERICA
BROWN UNIVERSITY IN PROVIDENCE IN THE STATE OF RHODE ISLAND AND PROVIDENCE
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
September 19, 1991
September 20, 1991
Plaintiff, United States of America, filed its Complaint on May 22, 1991.
Plaintiff and consenting defendants, by their respective attorneys, have
consented to the entry of this Final Judgment without trial or adjudication
of any issue of fact or law. This Final Judgment shall not be evidence or
admission by any party with respect to any issue of fact or law. Therefore,
before any testimony is taken, and without trial or adjudication of any
issue of fact or law, and upon consent of the parties, it is hereby
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
(C) "Parental Contribution" means the portion of the Family
Contribution the student's parent or parents contribute from their income
(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
(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
(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
Judgement, 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
(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 Section V(D) has been
(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
(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
(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
(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,
(1) access during that defendant's office hours to inspect and copy
all records and documents in its possession of control relating to any
matters contained in this Final Judgment; and
(2) to interview that defendant's officers, employees, trustees, or
agents, who may have counsel present, regarding such matters. The interviews
shall be subject to the defendants's reasonable convenience and without
restraint or interference from any defendant.
(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
(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
(C) Entry of this Final Judgment is in the public interest.
Dated: September 19, 1991
--Louis C. Bechtle, Ch.J.
Almanac, Vol. 47, No. 10, October 31, 2000
PAGE | CONTENTS
| OF RECORD: Alcohol
Policy Changes , Emergency
Closings & Guidelines on Cooperative Exchanges of Certain University
Information | FOR
COMMENT: FERPA Changes | PENNs
WAY 2001 | TALK
ABOUT TEACHING ARCHIVE | BETWEEN
ISSUES | NOVEMBER at PENN