Summary
In Miller, et al. v. Consortium on Financing Higher Education, et al., Judge Angel Kelley in the District of Massachusetts denied the motion to dismiss filed by 32 private colleges and universities against a Sherman Act Section 1 putative class action. The complaint alleges that the schools agreed not to compete for students that had been admitted through Early Decision at one of the other schools. The August 7, 2026, ruling allows the plaintiffs to proceed to discovery on their claim against the member schools that their purported Early Decision agreement is tantamount to an illegal restraint of trade.
The Upshot
- A federal court has allowed the putative antitrust class action—formerly known as D'Amico, et al. v. Consortium on Financing Higher Education, et al.—to proceed against 32 private colleges and universities, finding that the plaintiffs plausibly alleged a horizontal agreement among the schools not to compete for prospective students admitted through Early Decision, allegedly suppressing competition among the schools on tuition and financial aid.
- The court treated a joint statement as direct evidence of an agreement and found that parallel conduct by other schools that did not join the statement, including shared Early Decision admit lists, withdrawal of applications, and additional factors, supported the broader conspiracy allegations at the pleading stage.
- The court dismissed a trade organization and other alleged facilitators of the agreement for insufficient allegations of conspiratorial participation, although alleged information-sharing conduct by the trade organization member schools remains part of the case against the school defendants.
The Bottom Line
Higher education institutions should review any agreements with peer institutions that affect their admissions, financial aid, tuition, or scholarship practices and policies, as well as communications and information shared with peer institutions about these issues, to assess any risk, including antitrust risk.
On August 8, 2025, four current and former higher education students filed a putative class action in the U.S. District Court for the District of Massachusetts, 1:25-cv-12221. The complaint asserts a single claim under Section 1 of the Sherman Act against 32 private colleges and universities (the School Defendants) and the trade organization and other certain non-school defendants that allegedly assisted in facilitating admissions for the School Defendants. It alleges that the School Defendants agreed not to compete with each other for students admitted through Early Decision (ED), with the alleged purpose and effect of increasing tuition and decreasing financial aid. The proposed class includes students who enrolled at one of the School Defendants during the four years before the complaint was filed (i.e., since August 8, 2021) and paid some or all of the cost of attendance.
The complaint alleges that the School Defendants present ED commitments as binding even though they are not legally enforceable, and that the School Defendants enforce these commitments through coordination among competitors. The plaintiffs allege that ED is a per se violation of the antitrust laws because it is enforced by mutual agreement between would-be competitors not to compete for students offered admission through ED. The alleged mechanisms of coordination include exchanging lists of ED admits, withdrawing ED-admitted students from other schools’ pending applications, and adhering to a joint statement, under which participating schools agree to honor commitments made to another college. According to the plaintiffs, these practices deprive students of negotiating leverage, allow schools to identify price-insensitive applicants, and reduce incentives for the School Defendants to compete on tuition and need- or merit-based aid.
On August 7, 2026, Judge Angel Kelley denied the School Defendants’ joint motion to dismiss but dismissed the other defendants from the lawsuit. On standing, the court held that the plaintiffs adequately alleged antitrust standing based on the six-factor test set forth by the U.S. Supreme Court in Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519 (1983). The court found the first four factors sufficiently pleaded: a causal connection between the alleged restraint of the ED agreement and the claimed harm of higher tuition, an improper motive, an injury of the type that the antitrust laws address, and a direct antitrust injury. The court found this conclusion supported by allegations that tuition growth outpaced broader inflation and higher-education inflation and that students who were admitted via ED lost the ability to use competing offers to negotiate financial aid.
The court ultimately held that the plaintiffs plausibly alleged an unreasonable horizontal customer-allocation restraint against the School Defendants. However, the court dismissed the claims against the trade organization and other alleged facilitators. The litigation therefore proceeds against the 32 School Defendants, with discovery, class certification, and summary judgment among the next significant stages.
Although the ruling is limited to the pleading stage and does not resolve the merits of the claims, it highlights the new trend of plaintiffs’ attorneys using antitrust laws to target higher education institutions for practices and policies that have not historically been considered commercial conduct. Institutions should review their policies and procedures—including with regard to admissions, financial aid, tuition, and scholarships to confirm compliance with antitrust law.
Lawyers from Ballard Spahr's Education Industry Team and Antitrust and Competition Group are available to assist clients with antitrust compliance in admissions and financial aid, including reviewing Early Decision practices, peer communications, association protocols, and applicant-facing materials.
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