The Early Decision Lawsuit Just Cleared Its First Hurdle
On August 7, 2026, U.S. District Judge Angel Kelley rejected an attempt by 32 of the nation's most selective colleges to have the early decision lawsuit against them thrown out. The case, D'Amico v. Consortium on Financing Higher Education, takes direct aim at early decision: the binding-commitment admissions plan that Amherst College, Columbia University, Duke University, the University of Pennsylvania, and 28 other institutions use to fill large portions of their freshman classes.
I spent years as a medical-malpractice litigator before moving into education, so I read the ruling with both hats on. My take: the plaintiffs got past the first checkpoint, but this case reads like sour grapes dressed up as antitrust, and nothing about it should change how a well-advised student applies this fall.
What the plaintiffs allege, and what the judge actually decided
The lawsuit was filed in August 2025 by current and former students at three of the defendant schools themselves: Wesleyan University, Vassar College, and Washington University in St. Louis. It makes a claim that sounds startling but rests on something admissions professionals have understood for years: early decision is not a legally enforceable contract.
The plaintiffs allege that these 32 colleges conspired, in violation of the Sherman Act (the federal law that prohibits price-fixing and collusion), to present early decision as "binding" when it is really an honor-bound promise, and to agree among themselves not to compete for students another school had already admitted early. In her ruling, Judge Kelley pointed to the Ivy League Agreement, a written pledge among the eight Ivy League universities to “honor” one another’s early decision acceptances, as direct evidence of a noncompetition agreement among the five Ivies that offer early decision, and found it plausible that the other defendant colleges maintain similar arrangements.
The economic theory follows from there. A student admitted in December with no competing offers has no leverage. A college facing no competition for that student has no incentive to sharpen its financial aid package. Multiply that across tens of thousands of early admits over the four-year class period, at schools charging more than $70,000 per year, and the plaintiffs say you get inflated net prices.
The colleges argued the opposite: early decision is voluntary, one option among several, and, in the words of defense attorney Doug Litvack, "a student who really just wants to preserve their flexibility entirely can just decide to apply regular decision or early action."
Here is what the judge decided, and what she did not. Denying a motion to dismiss means the plaintiffs' allegations, taken as true, state a plausible legal claim. That is a low bar. It is not a finding that any college broke the law. Judge Kelley also dismissed the claims against Common App, Scoir, and the Consortium on Financing Higher Education, narrowing the case to the colleges themselves. The suit now enters discovery, where internal emails and enrollment data get subpoenaed, and where these cases tend to get interesting. The court also has not yet decided whether the suit can proceed on behalf of all affected students as a group. Expect years, not months.
My read on the merits: sour grapes make weak antitrust
This is where I part company with the plaintiffs. These are students who received exactly the bargain they signed up for, admission in exchange for commitment, now asking a court to hand back the leverage they chose to trade away.
Start with the choice. Nobody is required to apply early decision; the defense is right about that. A student signs an ED agreement to buy a statistical edge, and the price is flexibility. The colleges are making the mirror-image choice: filling much of the class with students who have promised to attend. Tulane University, to take one example from outside the defendant list, fills more than 60% of its freshman class through early decision, according to Inside Higher Ed. A trade in which both sides get what they want is not a conspiracy. It is a market working.
The colleges' motive here is arithmetic. A college is a business that runs on tuition, and a freshman class that comes in short of target is a budget hole. Yield, the percentage of admitted students who actually enroll, is the statistic every enrollment office guards most jealously, because it protects both financial planning and the selectivity profile that prestige is built on. That is why binding early decision clusters at the most selective private colleges while less selective schools lean on non-binding early action: the schools with the strongest hand can ask for commitment, and families line up to give it. The plan being litigated as coercive is attached to the very colleges applicants want most.
None of this operates in secret. Last fall, Tulane publicly suspended early decision privileges for four high schools, including a one-year ban for Colorado Academy, after admitted students backed out of their commitments, a story first reported by The New York Times in October 2025. Reasonable people can argue about punishing a school for one student's decision; former NACAC president Jim Jump called it collective punishment. But a system enforced that openly is hard to characterize as a hidden scheme. Everyone knows the terms going in.
What does deserve scrutiny, and here I put the litigator hat back on, is the alleged agreement among the colleges not to compete for one another's early admits. Schools coordinating with each other is different in kind from a school striking a bargain with an applicant, and that is the thread discovery will pull. If the case eventually narrows to that agreement, it will have found its one serious question. The broader theory, that calling early decision "binding" is itself an antitrust violation, asks a court to rescue families from a deal they were free to decline.
Why this cycle's applicants should still take early decision seriously
Nothing in this ruling changes the admissions math for the high school class of 2027. Early decision still confers a real statistical advantage, and colleges are still filling their classes with it. The Higher Ed Dive report notes that the University of Pennsylvania admitted 14.2% of early decision applicants for its class of 2028 (students who entered in fall 2024) against a 5.4% overall rate. That pattern repeats across the defendant list, which is why applying early has never mattered more for students targeting selective schools. Nor is this dynamic confined to the private elites: Florida families saw it arrive close to home when Florida State University added its own binding early decision option.
The lawsuit also does not make early decision "non-binding" in any way families should act on. It was never legally binding; there is no known case of a college suing a student for enrolling elsewhere. What enforces early decision is reputation and process: your high school counselor signs the agreement alongside you, and counselors will not knowingly support a student walking away from an ED commitment without cause. And as the Tulane episode shows, a college can hold a breach against the high school itself, which is why counselors take the agreement so seriously. That machinery is fully intact while this case is litigated. Treat early decision as binding, because functionally it still is.
There has always been one legitimate exit, and it matters more than ever now: most colleges will release a student from an early decision commitment when the financial aid offer genuinely does not make attendance workable. That release valve is real. But it is a poor substitute for planning, because a student released from ED in late December has burned the early round almost entirely.
The real lesson: run the numbers before you commit, not after
Strip away the legal theory and the D'Amico case is about families who committed first and saw the price second. Whatever the courts eventually decide about the colleges' conduct, the strategic failure it describes is avoidable at the kitchen table.
Before any student in my orbit signs an early decision agreement, four things happen:
The family runs the college's net price calculator (the aid-estimate tool on every college's website) with real tax documents, not guesses, so the likely package is a known quantity before the application is filed.
We confirm the school is a genuine first choice on its merits, because trading your negotiating position for an admissions edge only makes sense for a school you would choose over every alternative at the expected price.
We compare the ED school against the student's full list, including early action options that carry no commitment, so applying early somewhere does not mean applying early everywhere on the same terms.
We stress-test the budget: if the aid comes in 20% below the calculator, can the family still say yes? If not, ED is the wrong tool, no matter how attractive the admit-rate boost looks.
If comparing aid offers matters to your family, hear this plainly: regular decision and early action exist so you can put competing packages side by side. That comparison leverage is the very thing the plaintiffs say early decision strips away. You do not need to wait for a jury to protect yourself; you can simply choose the application plan that preserves it.
What to watch as the case unfolds
Discovery will determine whether this becomes a landmark or a footnote. Watch for three things. First, whether discovery turns up agreements beyond the Ivy League’s that prove as coordinated as the complaint alleges. Second, whether the colleges settle; elite institutions have historically preferred settlement to airing enrollment strategy in open court, as they did in the earlier 568 Group litigation, a separate antitrust case accusing selective colleges of colluding on financial aid formulas that ended in settlements totaling hundreds of millions of dollars. Third, whether colleges quietly soften their ED language. There is precedent: after a Justice Department antitrust inquiry in 2019, NACAC dropped several recruiting restrictions from its ethics code, and admissions recruiting practices changed almost overnight.
Any of those outcomes could reshape early decision for students now in ninth or tenth grade. None of them will arrive in time to matter for seniors applying this fall. For the class of 2027, the job is unchanged: build a balanced college list and know your numbers before you commit. Use the early round deliberately, not reflexively. That is the work we do every day in our college guidance and counseling practice, and this lawsuit is a useful reminder of why the sequencing matters so much.
Frequently Asked Questions
Is early decision legally binding?
No. Early decision is an honor-bound commitment, not an enforceable contract, and there is no known case of a college suing a student who backed out. In practice it functions as binding because your high school counselor co-signs the agreement and colleges expect it to be honored. The current early decision lawsuit challenges how colleges present and coordinate around that commitment, but students should still treat ED as a promise to attend.
What is the early decision lawsuit about?
Students allege that 32 selective colleges violated antitrust law by presenting early decision as binding and agreeing not to compete for each other's early admits, which they say inflated tuition and suppressed financial aid. A federal judge ruled on August 7, 2026 that the case can proceed to discovery. No court has found the colleges liable; the ruling only means the claims are plausible enough to litigate.
Should my student still apply early decision this year?
Yes, if the school is a true first choice and the family has confirmed affordability in advance. The admit-rate advantage remains substantial; the University of Pennsylvania, for example, admitted 14.2% of ED applicants versus 5.4% overall for its class of 2028. Skip ED if comparing financial aid offers is a priority, because the commitment forecloses that comparison.
Can you get out of an early decision agreement?
Yes, for one reason colleges routinely accept: the financial aid package genuinely does not make attendance feasible. Backing out for any other reason carries real consequences. Colleges compare enrollment lists, and in 2025 Tulane University suspended early decision privileges for four high schools after admitted students reneged. Treat the release as a safety valve for aid shortfalls, not a strategy.
Which colleges are named in the early decision lawsuit?
The 32 defendants are Amherst College, Barnard College, Bowdoin College, Brown University, Bryn Mawr College, Carleton College, Columbia University, Cornell University, Dartmouth College, Duke University, Emory University, Haverford College, Johns Hopkins University, Macalester College, Middlebury College, Mount Holyoke College, Northwestern University, Oberlin College, Pomona College, Rice University, Smith College, Swarthmore College, Trinity College (Connecticut), the University of Chicago, the University of Pennsylvania, the University of Rochester, Vanderbilt University, Vassar College, Washington University in St. Louis, Wellesley College, Wesleyan University, and Williams College. Claims against Common App, Scoir, and the Consortium on Financing Higher Education were dismissed.
JRA Educational Consulting guides families through every stage of the admissions process – from school selection and application strategy to early decision planning and final choices. To learn more, visit jraeducationalconsulting.com.
