* – Originally drafted November, 1991 by Alan Rose, Esq. Last updated December, 2005 by Office of University Counsel.
This memorandum outlines below conduct which the Department of Justice believes is prohibited under the federal antitrust laws and our general guidelines for compliance with these laws. For purposes of this memo we use the term “employees” to mean all trustees, officers, or employees of Tufts University.
I. Financial Aid Information
In May, 1991 the Ivy League institutions entered into a consent decree with the United States Department of Justice. Without admitting participation in any past conduct (other than agreements on need-based aid and participation in Overlap financial aid meetings), and without admitting liability for any past conduct, the Ivy institutions agreed not to engage in nine specified areas of prohibited conduct. While the original consent decree has expired, the Department of Justice continues to take the position that universities should refrain from the following conduct:
(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; and
(G) requesting from, communicating to, or exchanging with any other college or university, the financial aid awarded or proposed to be awarded to any financial aid applicant except as required by federal law.
II. Other Information Sharing
In addition, employees are advised to refrain from:
(A) 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
(B) 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.
It should be understood that “agreements,” “understandings,” and “arrangements” need not be written or formal in order to violate the law. An agreement need only be a mutual meeting of the minds. The law permits courts to infer the existence of an agreement from the circumstances, and even tacit (not express) understandings can be deemed to be an unlawful agreement. It is therefore important to avoid even the appearance of joint activity or improper conduct on the above matters.
In order to comply with these rules, we suggest the following:
1. Many University employees attend meetings and seminars of professional associations and groups. These meetings have educational value, and we do not mean in any way to limit your participation or attendance at them unless a purpose for such an event is to engage in any of the above prohibited conduct. It is important, however, whether at meetings, seminars, by telephone, or otherwise, to avoid discussions of the University’s plans, projections or assumptions, particularly with respect to such sensitive areas as tuitions, faculty salaries, costs, budgetary figures, and financial aid formulas or awards. Participants must also avoid any conduct which might be construed as agreeing with any employee of any other institution with respect to any of the prohibited conduct defined above, or with respect to the methods or formulas to be used for making such determinations.
2. Tufts employees may engage in surveys seeking historical information. In this context, “historical” means that the party from whom information is sought has made its decision on the matter, and the decision is not subject to change in accordance with the institution’s ordinary rules. As an example, Tufts’ employees may seek information from other institutions, or may provide information to other institutions, regarding current faculty salaries, because the decisions as to those salaries have already been made and are not ordinarily subject to change during the current academic year. As another example, Tufts employees may seek information from other institutions regarding personnel benefits and policies which are currently in place at such other institutions. In all instances, however, Tufts employees must avoid entering into any agreements or understandings, directly or indirectly, expressly or tacitly, with any institutions on any of these subjects.
It is preferable that surveys be conducted in writing. When it is not practicable to do so, however, or if follow-up information or interpretations are needed, Tufts University employees may engage in oral surveys. Before doing so, a Tufts University employee who wishes to conduct an oral survey of other institutions should prepare and keep a written list of all questions which he or she wishes to ask, and should confine the conversation to those questions and answers, covering historical information only. The employee should also state at the outset of such a conversation that he or she is not seeking any information regarding plans or projections. By keeping a written record of the conversation Tufts University will be in a position to state what the conversation concerned, if a question later arises concerning the conversation.
3. The University’s employees may publicize or provide any information to the media, trade publications, journals, “profile” writers and editors, or any other organizations, so as to make public, or available generally to other institutions, historical information concerning Tufts.
4. Employees from Tufts and other institutions may discuss and advocate changes in legislation, regulatory actions, and governmental policy or activity which affect academic institutions, as long as such conduct does not result in agreements or conduct which may fall under the prohibited conduct defined above.
5. Tufts and other institutions may unilaterally appoint an independent third party to collect and forward information from financial aid applicants concerning their financial resources. The third party may only forward the financial aid information requested by that particular applicant.
6. The University’s employees are free to continue consultation with the College Scholarship Service with respect to the processing and presentation of financial aid data.
7. The University may verify a faculty or administrative salary offered by another institution to a prospective or current University employee by asking the prospective or current employee to supply the University with a copy of any writing from the other institution to the employee.
8. The University may verify a financial aid award offered by another institution to a financial aid applicant by asking the financial aid applicant to supply the University with a copy of any writing from the other institution to the applicant.
9. The University’s employees may continue to participate and disclose information as part of the normal 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 other college or university.
10. Restrictions concerning the sharing of financial aid information do not apply as to a particular student where Tufts is jointly providing education or financial aid for that student with another college or university.
11. Sharing “best practices” for on specific contract issues (or dealings with a vendor) is fine; however, agreeing that a group of universities will only accept certain contract terms may be problematic.
In the event you have questions on this policy, please consult one the Office of University Counsel.