How Early Decision college acceptance became “binding”

One year ago, in a widely reported college admissions scandal, an entire high school was punished for a single student’s actions. The student, who attended Colorado Academy in Denver, had submitted an early-decision application to Tulane, declaring that they would withdraw applications to all other schools if admitted. Upon acceptance, however, the student chose not to enroll after all, thereby breaking the early-decision agreement with the university. Tulane then took the highly unusual step of penalizing the student’s high school, announcing that the entire class of 2026 at Colorado Academy would be ineligible to submit early-decision applications to Tulane in the following season.

Early Decision (ED) is a distinctive feature of American college admissions. Whereas students applying Regular Decision can generally compare their offers in the spring, ED requires the student, the student’s parent or legal guardian, and their high school college counselor to sign a form accepting a “binding” plan to attend the college if admitted. But contrary to what many students and their families believe, this commitment is not enforceable through ordinary contract law.

The history of how colleges created and enforced this system can help us understand why Tulane responded the way it did, and why families take ED so seriously.

The idea of applying “early” to college emerged in the 1950s, after campuses had been flooded by GIs returning from World War II. With some colleges receiving three times as many applicants as in the prewar years, prospective students realized they could no longer count on being admitted to their first-choice school and began applying to multiple colleges. To deal with the increasing demand, Harvard, Princeton, and Yale introduced the “A-B-C” system in 1954, whereby applicants from prestigious boarding and preparatory schools could receive an early indication of their chances of admission.

The system was not binding, however. Students who received an “A” were still free to apply elsewhere, leaving colleges without any guarantee that they would enroll. It was only in 1959 that the Seven Sisters colleges introduced ED programs, which required admitted students to commit to attending. They were joined by small liberal arts colleges including Amherst, Oberlin, and Williams between 1961 and 1965, and most of these programs remain in place today.

A major shift took place in 1983 with the emergence of U.S. News & World Report, which began publishing rankings of American colleges. These rankings quickly became important to colleges at a time when they were competing more intensely for applicants and prestige. As the rankings evolved, colleges with ED programs were favored because they not only had a lower acceptance rate but also a higher “yield” (i.e. the percentage of admitted students who eventually enrolled). This, along with a perception by counselors that applying early increased the odds of being admitted, led approximately 100 colleges to add early admissions programs between 1990 and 1996, including both binding ED and nonbinding Early Action programs. The practice continued to spread, and ED remains common at many of the most selective private colleges today.

Colleges have long claimed that ED benefits students by helping them nail down their plans by December, thus reducing stress in the final year of high school. And ED applicants are often admitted at substantially higher rates: the University of Pennsylvania, for example, accepted 14.2% of its ED applicants to the class of 2028, compared with about 5.4% of applicants overall. While that difference may partly reflect differences between the ED and Regular Decision applicant pools, it is easy to see why students are tempted to submit a binding application.

But critics have long claimed that ED benefits the institutions themselves much more than it benefits students. In 2001, James Fallows wrote in The Atlantic that “Everyone involved with the early-decision process admits that it rewards the richest students from the most exclusive high schools and penalizes nearly everyone else.” Whereas students at prestigious schools are advised by counselors who know how to play the ED game and can afford to visit campuses to make a decision, applicants who depend on financial aid miss out on the opportunity to compare packages from competing institutions.

But a central question remains: how did ED become such a prevalent system when its central tenet — a promise on the part of the student to attend if admitted — is not legally enforceable? Until recently, when Tulane penalized an entire high school, there were two main ways of enforcing ED. First, many private colleges routinely shared lists of students admitted by the ED method. When other colleges received such a list, they removed the names from their own applicant pools, thus preventing these students from obtaining competing offers of admission. Second, high school guidance counselors were increasingly drawn into ensuring that students honored their commitments. By 2001, the National Association for College Admission Counseling was asking counselors to countersign ED applications to certify that students understood the commitment. Once students had been admitted ED to a college, counselors also often agreed not to send official transcripts to other colleges. Through these methods, a “binding” commitment that is not legally enforceable has remained a central part of the college admissions infrastructure.

In June 2002, however, Harvard nearly upended the whole system when it announced that it was considering a policy change that would allow it to consider applications from students who had accepted ED offers from other colleges. Harvard eventually backed down, and the Director of Admissions, Marlyn McGrath Lewis, justified the decision this way: “If we admitted someone and then found out they murdered someone, we probably would rethink that case as well.”

But in the years that followed, an argument emerged among legal scholars that warned of the bigger danger to come. In 2005, Adam L. Henry argued in the University of Pittsburgh Law Review that the agreement among colleges to mutually enforce ED commitments violated the Sherman Act by suppressing competition over financial aid packages. A year later, Ruby Z. Afram, writing in the Yale Law Journal, similarly argued that by sharing lists of admits, competitor schools were promising not to compete with the ED school, creating “monopolies on certain customers’ business,” which she argued was illegal.

All this came to a head recently after four current and former students from Wesleyan University, Vassar College, and Washington University in St. Louis filed a lawsuit alleging that 32 colleges violated the Sherman Act by conspiring not to compete for students admitted through ED. The plaintiffs claimed that the colleges presented ED as legally binding by requiring students to sign a document resembling a contract, and they took issue with the agreement among colleges not to compete for ED admits. As a result of the reduced competition stemming from these practices, the plaintiffs claimed that colleges were “participating in practices that entrench patterns of inequality of access while inflating the price of attendance.” On Aug. 7, U.S. District Judge Angel Kelley ruled that the plaintiffs’ “well-pleaded allegations” were sufficient to allow their claims against the schools to proceed. If the case acquires class-action status, it could include tens of thousands of members.

So, whereas the ethics of one Tulane applicant’s actions were put under the microscope last year, colleges themselves are now under scrutiny as to whether the system they created and maintained is even legal. Will any of this have an impact on the continued existence of ED? It’s difficult to say. What we do know is that the practices that have made ED work for decades are now being tested. If colleges are no longer able to rely on one another to honor ED commitments, they may have to reconsider what “binding” actually means.

Ben Urwand is a historian and founder of Real College Essays, which provides live, one-on-one college essay coaching.

Made by History takes readers beyond the headlines with articles written and edited by professional historians. Opinions expressed do not necessarily reflect the views of The Inquirer.