For Opinion See 5 F.3d 658

Briefs and Other Related Documents

United States Court of Appeals,Third Circuit.
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
BROWN UNIVERSITY, et al., Defendants,
Massachusetts Institute of Technology, Defendant-Appellant.
No. 92-1911.
January 20, 1993.

On Appeal from the United States District Court for the Eastern District of Pennsylvania

Brief for Appellee United States of America
Of Counsel: Robert E. Bloch, D. Bruce Pearson, Seymour H. Dussman, Jessica N. Cohen, Jon B. Jacobs, Michael P. Gaughan, Attorneys, Department of Justice, Washington, DC 20530, J. Mark Gidley, Acting Assistant Attorney General, Robert B. Nicholson, David Seidman, Attorneys, Department of Justice, Washington, DC 20530, 202-514-4510

*i TABLE OF CONTENTS

TABLE OF AUTHORITIES ... iii

STATEMENT OF JURISDICTION ... 1

STATEMENT OF ISSUES ... 1

STATEMENT OF THE CASE ... 2

STATEMENT OF FACTS ... 4

 A. MIT, Its Co-Conspirators, and the Price of Education ... 5

 B. The Ivy Overlap Aid Cartel ... 7

 C. The District Court's Decision ... 12

STATEMENT OF RELATED CASES AND PROCEEDINGS ... 14

STATEMENT OF THE STANDARD OR SCOPE OF REVIEW ... 14

SUMMARY OF ARGUMENT ... 14

ARGUMENT ... 16

I. THE CONSPIRATORS' EXCHANGE OF EDUCATIONAL SERVICES FOR MONEY IS TRADE OR COMMERCE WITHIN THE MEANING OF THE SHERMAN ACT ... 16

II. THE DISTRICT COURT PROPERLY FOUND UNLAWFUL PRICE-FIXING ... 21

 A. MIT And Its Co-Conspirators Engaged In Price Fixing That Is Unlawful Per Se Under Section 1 Of The Sherman Act ... 21

 B. If The Conspiracy Was Not Unlawful Per Se, The District Court's Analysis Under The “Quick Look” Form Of The Rule Of Reason Was Proper ... 25

  1. The Conspiracy's Plainly Anticompetitive Character Satisfied the Necessary Condition for Applying the Quick Look Rule of Reason ... 25

*ii   2. The District Court Properly Rejected MIT's Proffered Justifications for Its Price Fixing ... 31

 C. MIT's Analysis Of How The Case Might Have Been Analyzed Under The “Traditional” Rule Of Reason Is Beside The Point And Misleading ... 36

III. THE FIRST AMENDMENT DOES NOT SHIELD PRICE FIXING CONSPIRACIES, EVEN THOSE AMONG UNIVERSITIES, FROM THE SHERMAN ACT ... 37

CONCLUSION ... 41

CERTIFICATE OF BAR MEMBERSHIP ... 42

*iii TABLE OF AUTHORITIES

Cases

Albrecht v. Herald Co., 390 U.S. 145 (1968) ... 27

Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492 (1988) ... 40

Apex Hosiery v. Leader, 310 U.S. 469 (1940) ... 40

Arizona v. Maricopa County Medical Society, 457 U.S. 332 (1982) ... 22, 28, 29, 35

Blair v. United States, 250 U.S. 273 (1919) ... 38

Broadcast Music, Inc. v. CBS, 441 U.S. 1 (1979) ... 25

Catalano v. Target Sales, Inc., 446 U.S. 643 (1980) ... 22, 24

Chicago Professional Sports Ltd. Partnership v. National Basketball Association, 961 F.2d 667 (7th Cir.), cert. denied, 61 U.S.L.W. 3354 (Nov. 3, 1992) ... 25, 26

Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752 (1984) ... 39

Costello Publishing Co. v. Rotello, 670 F.2d 1035 (D.C. Cir. 1981) ... 19

Donnelly v. Boston College, 558 F.2d 634 (1st Cir.), cert. denied, 434 U.S. 987 (1977) ... 19

Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961) ... 39

FTC v. Indiana Federation of Dentists, 476 U.S. 447 (1986) ... 16, 25, 27

FTC v. Superior Court Trial Lawyers Association, 493 U.S. 411 (1990) ... 14, 15, 18, 22, 24, 39, 40

General Engineering Corp. v. Virgin Islands Water & Power Authority, 805 F.2d 88 (3d Cir. 1986) ... 38

Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975) ... 13, 14, 17, 18, 20, 23

Hospital Corp. of America v. F.T.C., 807 F.2d 1381 (7th Cir. 1986), cert. denied, 481 U.S. 1038 (1987) ... 29, 38

*iv Jones v. NCAA, 392 F. Supp. 295 (N.D. Mass. 1975) ... 19

Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, Inc., 340 U.S. 211 (1951) ... 28

Marjorie Webster Junior College, Inc. v. Middle States Association of Colleges & Secondary Schools, Inc., 432 F.2d 650 (D.C. Cir.), cert. denied, 400 U.S. 965 (1970) ... 18

Missouri v. National Organization for Women, Inc., 620 F.2d 1301 (8th Cir.), cert. denied, 449 U.S. 842 (1980) ... 19

NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) ... 19, 40

National Collegiate Athletic Association v. Board of Regents, 468 U.S. 85 (1984) ... 25, 26, 32, 32

National Organization for Women, Inc. v. Scheidler, 968 F.2d 612 (7th Cir. 1992), petition for cert. pending, 61 U.S.L.W. 3371 (U.S. Nov. 2, 1992) ... 18, 19

National Society of Professional Engineers v. United States, 435 U.S. 679 (1978) ... 14, 15, 16, 23, 24, 25, 27, 32, 34, 35

Pennsylvania Dental Association v. Medical Service Association of Pennsylvania, 815 F.2d 270 (3d Cir.), cert. denied, 484 U.S. 851 (1987) ... 24, 27, 39

Proctor v. General Conference of Seventh-Day Adventists, 651 F. Supp. 1505 (N.D. Ill. 1986) ... 19

Regents of the University of Michican v. Ewing, 474 U.S. 214 ... 38

Simmons v. City of Philadelphia, 947 F.2d 1042 (3d Cir. 1991), cert. denied, 112 S. Ct. 1671 (1992) ... 38

United States v. National Society of Professional Engineers, 389 F. Supp. 1193 (D.D.C. 1974), vacated, 422 U.S. 1031 (1975), on remand, 404 F. Supp. 457 (D.D.C. 1975), aff'd in part & remanded, 555 F.2d 978 (D.C. Cir. 1977), aff'd, 435 U.S. 679 (1978) ... 27, 28

United States v. Socony-Vacuum Oil Co., 310 U.S. 150 (1940) ... 21, 28, 30

*v STATUTES AND RULES

Sherman Act, §  1, 15 U.S.C. 1 ... passim

15 U.S.C. 4 ... 1

28 U.S.C. 1291 ... 1

Higher Education Amendments of 1992, Pub. L. No. 102-235, §  1544, 106 Stat. 448, 837 (1992) ... 35

Fed. R. App. P. 28(i) ... 38

OTHER AUTHORITIES

Ambrose Bierce, The Devil's Dictionary (1911, Laurel ed. 1991) ... 20

J. Peter Byrne, Academic Freedom: A ‘Special Concern of the First Amendment’, 99 Yale L.J. 251 (1989) ... 39

Richard Morrison, Note, Price Fixing Among Elite Colleges and Universities, 59 U. Chi. L. Rev. 807 (1992) ... 18

*1 STATEMENT OF JURISDICTION

The District Court had subject matter jurisdiction pursuant to 15 U.S.C. 4 and entered its final judgment on September 2, 1992. Appellant filed a timely notice of appeal on October 30, 1992. This Court has jurisdiction pursuant to 28 U.S.C. 1291.

STATEMENT OF ISSUES

1.  Whether the exchange of educational services for money constitutes “trade or commerce” within the meaning of Section 1 of the Sherman Act.
*2 2.  Whether an agreement among competing colleges and universities to fix the amounts students and their families must pay for educational services is price fixing that violates Section 1 of the Sherman Act.
3.  Whether the First Amendment protects price fixing by colleges and universities from Section 1 of the Sherman Act.

STATEMENT OF THE CASE

Nature of the case. This is a civil price-fixing case under Section 1 of the Sherman Act, 15 U.S.C. 1. The United States alleged and proved a conspiracy by the Massachusetts Institute of Technology (“MIT”) and eight other colleges and universities to restrain price competition among them for undergraduate students receiving financial aid.

Course of Proceedings. On May 22, 1991, the United States brought this civil antitrust action for injunctive relief against MIT and eight other colleges and universities, all participating members of the “Ivy Overlap Group.”[FN1] The complaint alleged that since at least 1980 the defendants and their co-conspirators had violated Section 1 of the Sherman Act, 15 U.S.C. 1, by agreeing “to restrain price competition among [the defendants and co-conspirators] for students receiving financial aid, resulting directly in higher family contributions for some financial aid applicants” (App. 435-436). More specifically, the complaint alleged (App. 436) that the defendants and their co-conspirators agreed

FN1. The eight other defendants were the Ivy League institutions: Brown University, Columbia University, Cornell University, Dartmouth College, Harvard University, Princeton University, the University of Pennsylvania, and Yale University. Finding 8, App. 453. “Finding[s],” followed by one or more numbers, refers to the numbered Findings of Fact in the court's Decision and Order. The Decision is referred to as “Op.”

o not to offer financial aid based on “merit”;
*3 o to use a formula for determining the cash payment for student fees that would be required of financial aid applicants (“family contribution”);
o to eliminate significant differences in family contributions required by co-conspirators of the same applicants, so that family contributions would be comparable.

The eight Ivy League defendants immediately settled the case by consent decree.[FN2] The consent decree (Docket No. 42) enjoined the Ivy League conspirators from the specific practices alleged in the complaint and from:

FN2. The proposed decree was filed simultaneously with the complaint. The court entered it as a final judgment on September 20, 1991, Docket No. 42.

(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 [i.e., tuition, room, board, and mandatory fees] or general Faculty Salaries; and
(I) entering into, directly or indirectly, any contract, agreement, understanding, arrangement, plan, program, combination, or conspiracy with any other college or university .... to fix, establish, raise, stabilize, or maintain Student Fees or Faculty Salaries. (Id. at 5.)

MIT chose to litigate. Trial to the court (Hon. Louis C. Bechtie, Ch. J.) began on June 25, 1992, and took ten days. There was no serious dispute that MIT had engaged in the conduct the United States alleged. The government contended that this was unadorned price fixing that is per se unlawful under Section 1 of the Sherman Act. MIT claimed that its price fixing was a charitable activity wholly outside the scope of Section 1. Alternatively, it argued that because its motives were beneficent, its conduct should be evaluated under the full antitrust Rule of Reason, which is not ordinarily applied to price fixing. Moreover, MIT *4 sought to demonstrate that while the colleges fixed the prices paid by individual students, the price-fixing agreements did not affect the average price paid by students, so that the price fixing did not injure consumer welfare.

Disposition. The district court found a violation of Section 1 and entered a judgment for the United States (App. 499-500) enjoining MIT from
entering into, being a party to, maintaining or participating in -- directly or indirectly, on a case-by-case basis or otherwise -- any combination or conspiracy which has the effect, or the tendency to affect, the determination of the price, or any adjustment thereof, expected to be paid by, or on behalf of, a prospective student, whether identified as tuition, family contribution, financial aid awards, or some other component of the cost of providing the student's education by the institutions to which the student has been admitted.[FN3]

FN3. Unlike the consent decree, the litigated judgment made no mention of faculty salaries.
STATEMENT OF FACTS

This case is about agreements among MIT and its eight Ivy League rivals to eliminate competition in the prices they charge to students they have admitted who seek financial aid. Pursuant to the agreements, the colleges:

1. Awarded financial aid to college students solely on the basis of financial need and prohibited merit scholarships. Findings 51-53, 57, 64, 85, App. 460-67; GX-3, App. 1211-12.

2. Used a common methodology, called Ivy Needs Analysis Agreements, to determine the price to be paid by admitted aid applicants.

3. At an annual Spring Overlap Meeting collectively set the price, or “family contribution”, to be paid by financial aid applicants admitted to two or more participating colleges.

*5 It is not disputed that MIT and its co-conspirators made these agreements for the express purpose of eliminating price competition among themselves. Op. 35, App. 484. As they stated in their written agreement, “families will be asked to pay approximately the same amount regardless of the Ivy Group institution they choose to attend.” GX 3, App. 1211. It is likewise not disputed that they had substantial success in achieving their purpose.

A. MIT, Its Co-Conspirators, and the Price of Education

MIT and the other Ivy Overlap members are among the most prestigious universities in America. Finding 9, App. 453. Admission is highly selective, and these schools are able to choose from exceptionally talented applicants. MIT, for example, receives 6,000 to 7,000 applications from high school seniors for admission to its freshman class each year, but it admits only 2,000 of them. Finding 11, App. 453. Nonetheless, because of competition for these outstanding students from other colleges (particularly Harvard, Yale, Princeton, and Stanford), MIT actually enrolls only 1,100 of the 2,000 students to whom it offers admission. Findings 11, 14, App. 453-454. It seeks to admit the most qualified applicants (Gray tr., App. 834), because they attract better faculty and improve the quality of research and education at MIT (id. 831-832). Accordingly, factors unrelated to qualifications, such as relationship to alumni, the fact of being an athlete, or financial resources, do not affect admissions decisions (id. 834).

College education is big business. MIT's operating budget is about $1.1 billion. Its endowment of $1.5 billion is among the ten largest in the nation. Finding 5, App. 452. The endowments of Harvard, Princeton and Yale substantially exceed MIT's. GX 191, App. *6 1313. MIT's students pay approximately $200 million every year in tuition and room and board charges. Op. 26, App. 475.

The current cost to a student of tuition, room and board and other expenses at MIT is approximately $25,000 per year. Finding 43, App. 458. Prices at the other Ivy Overlap schools have traditionally been substantially the same as MIT's. GX 300 at PR 11032. In addition to being substantially uniform, the prices of education at Ivy Overlap colleges have increased dramatically. During the period 1976-1989, increases in student charges at the Ivy Overlap colleges greatly exceeded increases in disposable income, the Consumer Price Index, and increases at other private colleges. GX 239, App. 1338, 1341.

MIT and its co-conspirators have been well aware of this remarkable increase in their prices. Every winter, the presidents of the eight Ivy League colleges held a meeting, to which they have invited the president of MIT. According to former MIT President Paul Gray, at one of these meetings the presidents expressed concern that they were “pricing themselves out of the market” and inviting public criticism of their supra-inflationary price increases. GX 55, App. 1244-45; Gray tr., App. 775-84. This concern did not, however, stop the Ivy Overlap presidents from using the annual meeting to exchange and discuss the prices that they intended to charge in the upcoming year. Nor did it lead them to stop the regular exchanges of prospective price information among their financial aid officers. Gray tr., App. 775-78; Gallagher tr., App. 578-81, 584-91; GX 42, App. 1242-43; GX 67, App. 1246-48. MIT used these exchanges with its competitors to set its tuition. Gallagher tr., *7 App. 584-91; GX 42, App. 1242-43; see also Routh tr., App. 670 (Columbia plans 10% tuition increase unless other Ivies pull it up to 12-15%).[FN4]

FN4. These regular exchanges of prospective price information stopped in 1988, Both the consent decree and Judge Bechtle's judgment prohibit the fixing of tuition prices as well as these types of exchanges.

While they steadily increased the list price of a college education, the Ivy Overlap Group nonetheless engaged in substantial discounting in the form of financial aid. Such discounting is common among private colleges in the United States. Indeed, it is a traditional method by which colleges compete for the best students. Op. 34, App. 483. Consequently, most private colleges give financial aid to students they regard as particularly meritorious -- whether that merit is defined by outstanding grades, extracurricular activities, or leadership qualities. MIT and the other Ivy Overlap schools routinely give financial aid to their numerous graduate students on the basis of merit, and in so doing use financial aid as a competitive tool for recruiting such students. GX 9, App. 1227; Gallagher tr. App. 532; GX 195, App. 1317-18. With respect to financial aid for undergraduates, however, they offer financial aid only on the basis of financial need. It is the prerogative of every college as a matter of federal antitrust law unilaterally to grant financial aid on any basis it chooses. The members of the Ivy Overlap Group, however, were unwilling to act independently, and instead formed a cartel to control discounts in the form of financial aid.

B. The Ivy Overlap Aid Cartel

Since at least 1958 MIT and the other Ivy Overlap schools have agreed not to give merit scholarships and to award financial aid to undergraduates solely on the basis of financial need. Findings 51-53, App. 460-461. They have also agreed to use a common *8 methodology -- known as Ivy Needs Analysis Agreements -- to measure financial need, and to that end they met annually to upgrade and refine the methodology. Findings 51, 57, App. 460-62.[FN5] Finally, in order to insure that they actually charged financial aid applicants the same price, the colleges met annually at the Spring Overlap Meeting and decided precisely how much they would charge each commonly-admitted student.

FN5. The starting point for the needs analysis is a financial aid methodology approved by the U.S. Department of Education, which governs the distribution of federal financial aid to education. Prior to 1988, this was the Uniform Methodology; since then, it has been the Congressional Methodology. Findings 31-33, App. 456-457. Federal methodology, however, leaves colleges some discretion, when “special circumstances” exist, to increase or decrease the sum of aid computed under federal methodology by the use of the college's “professional judgement.” Findings 34, 35, App. 457. Professional judgment is permitted only on a case-by-case basis, sparingly, and not for the “special circumstances” of an entire class of students. Findings 35, 38, App. 457, 458. Purporting to exercise that discretion, the conspirators made Ivy Needs Analysis consistently less generous to applicants than federal methodology in three main ways: apportioning family income when there are multiple siblings attending college; seeking separate payment from non-custodial parents where there is a divorce or separation; and treatment of business losses. Findings 58-61, App. 462-63.

Prior to the Spring Meeting, each college used the Ivy Needs Analysis Agreements to determine the price to charge each admitted financial aid applicant. It then transmitted this data to a data processing firm to compile into rosters for use during the meeting. Findings 65-72, 75, App. 463-65; Gallagher tr., App. 549-51; Jones tr., App. 687; GX 85, App. 1023; GX 219, App. 1337. The firm would produce lists of students admitted to more than two Ivy Overlap Schools (multilateral rosters) and of students admitted to only two participating schools (bilateral rosters). Financial aid officers from all schools would meet to handle the multilateral rosters, and officers from the two schools involved would handle each bilateral roster. Finding 72, App. 464; Gallagher tr., App. 550-551.

*9 A “driver” chaired each multilateral group and would go down the lengthy lists of cross-admitted financial aid applicants -- by 1989, 3100 names on bilateral and multilateral rosters. GX 102, App. 1280. Whenever there was a difference of more than $500 in the proposed price to be charged a prospective student, there would be a brief discussion. Because of the great number of students to deal with, discussions were necessarily short. As a result, the financial aid officers made no genuine effort to assess accurately the students' financial circumstances. Finding 76, App. 465. Frequently the colleges compromised on what they believed to be the “right” price and struck a deal in the middle. Finding 76, App. 465-66; Jones tr., App. 691-92; Routh tr., App. 656-57; GX 114, App. 1291. By the end of two days, the schools almost invariably agreed on the price to be charged to each applicant. Finding 78, App. 466; Routh tr., App. 659; Case tr., App. 948.[FN6] The price fixed at the Spring Meeting remained in effect until the student committed himself to a particular college and thus gave up his other choices. Finding 83, App. 466-67.

FN6. After the Spring Meeting, the Ivy Group members continued to agree on family contributions in a post-Overlap process for financial aid applicants whose applications were incomplete at the time of the Spring Meeting, for those who appealed the price agreements made at the meeting, and for applicants who were subsequently admitted from wait lists. Findings 79-82, App. 466-67; Routh tr., App. 639; Gallagher tr., App. 574, 576; Levine tr., App. 699-700; GX 95, App. 1277.

The participants in the Ivy Overlap cartel were generally very faithful to their agreements. They realized that cheating could lead to sanctions from other members, and rarely engaged in it. Findings 91-92, App. 468. Thus, when Princeton in October, 1986, began to compete for top students by awarding $1,000 “research grants” without regard to *10 financial need, the other colleges vigorously protested, and Princeton abandoned the awards. Finding 93, App. 468-69; GX 7, App. 1213-16; GX 8, App. 1217-24.

The protests are easily understood, because fidelity to the price fixing agreements enabled all the members to raise their prices substantially. Sam Jones, MIT's veteran associate director of financial aid, analyzed the data for 1985 and found that MIT's use of the agreed-on Ivy Needs Analysis produced $4 million more in revenue per year for MIT than if it had used the Uniform Methodology. Jones tr., App. 679; GX 74, App. 1263. MIT data for enrolled students, submitted in an interrogatory response, revealed substantially higher prices: $609 per year higher per student enrolling at MIT in 1988; $1361 higher for each student admitted who enrolled elsewhere in 1987. GX 225, App. 1067. The burden of higher prices fell particularly hard, MIT found in 1987, on traditionally disadvantaged minorities: $993 per year higher parental contribution for each black student and $2,116 higher for each Puerto Rican student, using the Ivy Needs Analysis Agreements. GX 229, App. 1071; Leffler tr., App. 57-60; GX 158. See also GX 466, App. 1153; GX 467, App. 1154; Leffler tr., App. 372-376 (effects on all minorities). Other members of the cartel also found that these agreements produced higher prices. Yale's director of financial aid told Yale's comptroller that as much as $315,000 in 1983 undergraduate financial aid savings resulted from its deviation from Uniform Methodology “(in concert with the Ivy Group).” GX 206, App. 1323; Routh tr., App. 647-49. And Harvard's associate director of financial *11 aid estimated that in 1989, participation in Overlap enabled Harvard to charge incoming aid applicants an extra $250,000. GX 135, App. 1304; GX 136, App. 1309.[FN7]

FN7. The expert economists for the government and MIT agreed that a price-fixing agreement among non-profit institutions, such as universities, is consistent with economic theory. Such universities, although not organized for profit, have the incentive to increase their overall revenue so that they can use the extra money for whatever institutional purposes they consider important. Leffler tr., App. 14-15; Carlton tr., App. 168.
These experts disagreed, however, on whether the Ivy Overlap Group had in fact increased the members' revenues. In a study prepared for trial, MIT's expert economist performed a multiple regression analysis including the Overlap schools and over 200 “comparable” schools that, he said, failed to show a net revenue effect from Overlap beyond the analysis's margin of error. Carlton tr., App. 202, 256, 311-312. Some of the data were clearly in error (Carlton tr., App. 287-307), But even using Dr. Carlton's data, the government's expert economist found a “significant” net revenue difference between the Ivy Overlap and a smaller group of comparable major research universities. Leffler tr., App. 358-363.

Aside from Princeton's short-lived effort to cheat, cartel members saw a meaningful competitive threat to their price-fixing agreement from only one source: non-member Stanford. Finding 90, App. 468; GX 230, App. 1072; GX 168, App. 1025. To the displeasure of the cartel, Stanford competed consistently and effectively on price and regularly offered lower prices (higher discounts) to financial aid applicants, Stanford's analysis of its own data and MIT's showed that it charged $713 less per student for the 33 commonly-admitted aid applicants who actually enrolled at MIT, and $3,423 less per student for the 66 common applicants who enrolled at Stanford. GX 226, App. 1068 (1988 figures). Stanford's analyses of data from other cartel members confirmed that Stanford was underpricing them substantially on commonly-admitted applicants: $939 at Princeton, $1,055 at Harvard, and $2,399 at Yale. GX 227, App. 1069. Not surprisingly, the Ivy Overlap *12 schools were concerned that Stanford was gaining “more than its market share” of the common admits. GX 198, App. 1320.

The cartel responded to this competition by trying to recruit Stanford as a cartel member. Financial aid officers of MIT and other schools travelled to Stanford in 1986 in an effort to get its alliance -- ideally to have it join as a member of Overlap, but at least get its agreement to use Ivy Needs Analysis and thus to offer higher prices to applicants with divorced or separated parents. Routh tr. 323-29. This effort, dubbed the High Stick Agenda,[FN8] failed. As Yale's director of financial aid, Skip Routh, wrote to fellow High Sticker Sam Jones of MIT, “I guess they [Stanford] are just too paranoid of the subject of collusion.” GX 198, App 1322. The “paranoia” which concerned MIT and its fellow Overlap members was the judgment of Stanford Provost (and antitrust economist) James Rosse that Ivy Overlap violated the antitrust laws. Finding 90, App. 468; GX 76, App. 1276.

FN8. “High Stick” is a literal translation from the Spanish of “Palo Alto” -- the city where Stanford is located. Routh Tr. 325-26.

Stanford's competition and refusal to participate in the Ivy Overlap agreements, though troubling, did not cause the cartel to change its behavior. Routh tr. 351. It was only in 1991, when the Justice Department told the Ivy Overlap Group that it was contemplating suit, that the Group abandoned its collusive practices. Routh tr., App. 634.

C. The District Court's Decision

After a ten-day trial, the district court issued a decision and order. In 93 findings of fact, the court described the origin, purpose, and workings of the Ivy Overlap Group. From *13 these specific findings it drew the ultimate finding that “[t]he Ivy Overlap Group members, which are horizontal competitors, agreed upon the price which aid applicants and their families would have to pay to attend a member institution to which that student had been accepted.” Op. 32-33, App. 481-482. The court further found that “the Ivy Overlap Group's agreed-upon ban on merit scholarships foreclosed the possibility that non-aid applicants could receive a discount based on any type of meritorious achievement.” Id. at 33, App. 482.

The court concluded that this conduct violated Section 1 of the Sherman Act. Preliminarily, the court ruled that, since each year MIT exchanged educational services for some $200 million in tuition and room and board charges, its activities constituted “trade or commerce” under Section 1 as interpreted by the Supreme Court in Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975), and other decisions. Op. at 24-27, App. 473-476. The court then observed that the Ivy Overlap process is “the type of price fixing which is ordinarily per se unreasonable” and hence illegal under the Sherman Act. Op. at 32, App. 481. But, “in the exercise of caution and in light of the Supreme Court's repeated counsel against presumptive invalidation of restraints involving professional associations,” the court examined the cartel under the antitrust laws' Rule of Reason. Id. at 33, App. 482.

The court held that since “the fundamental objective of the Ivy Overlap Group was to eliminate price competition among the member institutions,” it was “inherently suspect,” and there was no need to perform an “elaborate industry analysis.” Id. at 35, 39, App 484, *14 488.[FN9] The court did take care to assess any pro-competitive justifications offered by MIT. But all the justifications MIT offered were social policy matters of the sort held irrelevant in National Society of Professional Engineers v. United States, 435 U.S. 679 (1978). Op. 41-46, App. 490-495.

FN9. Accordingly, the court noted the disagreement between the two parties' economists on whether the cartel actually succeeded in raising prices, but found no need to decide the question. Op. 36-38, App. 485-487.
STATEMENT OF RELATED CASES AND PROCEEDINGS

This case has not been previously before the Court. We are unaware of any related case or proceeding, other than those described in MIT's Civil Appeal Information Statement, completed, pending, or about to be presented before this Court or any other court or agency.

STATEMENT OF THE STANDARD OR SCOPE OF REVIEW

All three issues presented in the case are legal questions subject to de novo appellate review.

SUMMARY OF ARGUMENT

MIT sells educational services to its students. The Supreme Court has unmistakably held that the exchange of money for services is “commerce” within the meaning of Section 1 of the Sherman Act. Goldfarb v. Virginia State Bar, 421 U.S. 773, 787-88 (1975). Accordingly, MIT's agreements with its competitors, which affect the exchange of services for money, involve trade or commerce and are therefore subject to Section 1. Goldfarb and other cases such as FTC v. Superior Court Trial Lawyers Assn., 493 U.S. 411, 427 (1990), make clear that altruistic or public-spirited motivation does not remove the sale of services from the realm of commerce.

*15 The district court found that MIT and its co-conspirators had fixed the prices students applying for financial aid would have to pay to attend MIT or one of the Ivy League conspirators (Op. 33, App. 481-482). They agreed on the formulas they would use to determine how much these students and their families would have to pay, and, where two or more of the conspirators applying the same formula reached varying results, they met and, frequently, split the difference. They did all this to eliminate price competition among themselves.

The district court correctly concluded that this was price fixing of the kind normally held unlawful per se, unlawful without further inquiry, under Section 1. That conclusion should have ended the analysis, for there is no discretion in whether to apply the per se rule to classic price fixing.  Superior Court Trial Lawyers, 493 U.S. at 433. No different principles apply to such public-spirited groups as professional associations. E.g., Goldfarb: National Society of Professional Engineers v. United States, 435 U.S. 679 (1978). Nor do different principles apply depending on whether the prices are fixed above, below, or at the same level as what they would otherwise be.

In an excess of caution, however, the district court did not apply the per se rule, but instead applied the Rule of Reason to determine whether MIT's price-fixing conspiracy was unreasonable and therefore violated Section 1. Assuming that Rule of Reason analysis could ever properly be applied to a classic price-fixing conspiracy, the district court's analysis under the Rule of Reason was without error. The court correctly concluded that the manifestly anticompetitive character of the price fixing agreement justified use of the “quick look” form of Rule of Reason analysis and required that the agreement be condemned under *16 the Rule of Reason unless MIT demonstrated competitive justification for it. The court also correctly concluded that there were no procompetitive justifications for the price-fixing agreement. And it rightly held that the Supreme Court in Professional Engineers and FTC v. Indiana Fed'n of Dentists. 476 U.S. 447 (1986), had precluded justifying the elimination of competition by social policy considerations. Finding no cognizable justifications for the price fixing, the court properly found it to violate Section 1.

Amici's argument to the effect that the First Amendment precludes application of the per se rule or the quick look Rule of Reason to cartels of universities is not properly before the Court and in any event is wrong. Whatever constitutional protections apply to unilateral decisionmaking by universities, no special First Amendment protections can apply when universities surrender their autonomy to cartels. And it is hornbook law that general First Amendment protections do not shield price-fixing conspiracies from the law.

ARGUMENT

I. THE CONSPIRATORS' EXCHANGE OF EDUCATIONAL SERVICES FOR MONEY IS TRADE OR COMMERCE WITHIN THE MEANING OF THE SHERMAN ACT

Section 1 of the Sherman Act applies only to conspiracies that involve “trade or commerce.” 15 U.S.C. 1. The district court ruled that MIT's conspiracy did involve commerce, because “MIT provides educational services to its students, for which they pay significant sums of money.” (Op. 26, App. 475.) It observed that “[b]y agreeing upon aid applicants' families' expected financial contribution, the Ivy Overlap Group schools were setting the price aid applicants and their families would pay for educational services.” (Id.) *17 The court concluded that it could “conceive of few aspects of higher education that are more commercial than the price charged to students.” (Id.) The court was plainly right.

The Supreme Court in Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975), held that the term “trade or commerce” includes the sale of services by professionals. That case involved lawyers' fixing of fees for legal services. The lawyers argued that Congress could not have intended “trade or commerce” to reach the learned professions, because “enhancing profit is not the goal of professional activities; the goal is to provide services necessary to the community” Id. at 786. The Supreme Court concluded otherwise, however. It described the distinction between service and profit as “the classic basis traditionally advanced to distinguish professions from trades, business and other occupations.” Id. at 786-87. But it observed that this distinction “loses some of its force when used to support ... fee control activities.” Id. at 787. And the Court went on to describe the exchange of money for services as “ ‘commerce’ in the most common usage of that word” and as subject to the Sherman Act. Id. at 787-88.

Every year MIT exchanges its educational services for some $200 million in tuition and room and board charges. Op. 26, App. 475. The undiscounted price for each student is approximately $25,000 per year. Finding 43, App. 458. Given these undisputed facts and the holding in Goldfarb (which MIT never cites), little remains of MIT's argument.[FN10]

FN10. As the district court recognized, it is MIT's sale of educational services and not merely its status as a “significant economic entity” (Br. 46-47) that causes it to be engaged in commerce. See Op. 26, App. 475. And it rightly described the charging of a lower price to aid applicants as a “discount.” Ibid. Although MIT calls the analogy faulty (Br. 47), on its face the conspirators' practice of offering to exchange a year of educational services for one amount of money to some students and for a lesser amount of money to other students is discounting and affects prospective buyers of those services, the students, exactly the way discounting would. See Richard Morrison, Note, Price Fixing Among Elite Colleges and Universities, 59 U. Chi. L. Rev. 807, 818 (1992). To avoid the court's correct description, MIT argues that the law should treat it differently because its motives are good. (See Br. 48 & n.24.) But a discount is a discount, whatever motives inspire it.

*18 To be sure, the court rejected MIT's contention that the Sherman Act does not reach “conduct that is motivated by noncommercial objectives” (Br. 43), apparently whatever the nature of the conduct itself.[FN11] But the Supreme Court also rejected this “motivation” requirement” in Goldfarb when it held that an intent to serve the community does not remove the exchange of service for money from the ambit of “trade or commerce.” 421 U.S. at 787-88. See also FTC v. Superior Court Trial Lawyers Assn., 493 U.S. 411, 427 (1990) (price fixing of professional services subject to antitrust laws “no matter how altruistic the motives of respondents may have been”); National Org. for Women. Inc. v. Scheidler, 968 F.2d 612, 621 (7th Cir. 1992) (“Non-commercial purpose alone will not shield activity from antitrust scrutiny”), petition for cert. pending, 61 U.S.L.W. 3371 (U.S. Nov. 2, 1992) (No. 92-780).[FN12]

FN11. Despite MIT's categorical claims about its motives, the record amply supports skepticism about the conspirators' altruism in the financial aid process, just as the record in Goldfarb provided reason to question the motives of the Virginia legal profession in fixing prices, 421 U.S. at 786 n.16. MIT's co-conspirator Yale, in a paper on “Tuition Income,” explains that “Tuition, modified by student aid expenditures, is in essence the price that the University charges for its educational programs.” (App. 1315) Tuition, however, is an obstacle to the University's goal of enrolling the best students. Therefore, “the objective is to find the combination of tuition and student aid levels that will produce the most income while maintaining the quality and diversity of the student body.” (Id., emphasis supplied) This analysis undermines MIT's claim that it was “not revenue-enhancing policy, that produced Overlap.” (Br. 48)

FN12. We agree with the district court (Op. 24, App. 473) that Goldfarb and its progeny have cast doubt on the force of Marjorie Webster Junior College. Inc. v. Middle States Ass'n of Colleges & Secondary Schools. Inc., 432 F.2d 650, 654-55 (D.C. Cir.), cert. denied, 400 U.S. 965 (1970) (see Br. 44-46). In any event, neither Marjorie Webster nor any case cited by MIT or its amici holds that such a plainly commercial activity as the regular and substantial exchange of an organization's services for money can be transformed from commerce into something else by the organization's motives. Most of the cases MIT cites (Br. 45 n.21) involve nothing so plainly commercial as “the price charged to students.” (Op. 26, App. 475.) See NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) (consumers' boycott); Scheidler, 968 F.2d at 615, (conspiracy to close women's health centers through illegal activity); Missouri v. National Org. for Women, Inc., 620 F.2d 1301 (8th Cir.) (boycott by consumers seeking a legislative goal), cert. denied, 449 U.S. 842 (1980); Donnelly v. Boston College, 558 F.2d 634, 635 (1st Cir.) (law school admissions, not the price of attendance), cert. denied, 434 U.S. 987 (1977); and Jones v. NCAA, 392 F. Supp. 295 (N.D. Mass. 1975) (eligibility rules for amateur sports). Only Proctor v. General Conference of Seventh-Day Adventists, 651 F. Supp. 1505, 1516-17 (N.D. Ill. 1986), involved sales, but there the structure of sales was so intertwined with the “literature ministry,” itself an integral part of “Church's overall evangelistic mission,” as to raise special problems not generally arising out of non-commercial motivation. Proctor is difficult to reconcile with Costello Publishing Co. v. Rotello, 670 F.2d 1035, 1046 & n. 17 (D.C. Cir. 1981) (actions by Episcopal Conferences of four countries to restrict sales of religious text not altogether exempt simply because their motive -- to protect the integrity of the Roman Catholic liturgy worldwide -- was religious).

*19 MIT's challenge to the district court thus centers on an “attempt to disassociate the Overlap process from the commercial aspects of higher education,” which the district court viewed as “pure sophistry,” (Op. 26, App. 475.) MIT argues that its sale of educational services is not commerce “where it is undisputed that no student's contribution even approaches the cost of providing an education.” (Br. 47.) Even if it is true that no student's payment covers MIT's costs of providing its services,[FN13] then MIT is subsidizing not only *20 the poor, but everyone else as well. And in that event MIT is necessarily arguing that the exchange of educational services for even undiscounted tuition is not commerce because subsidized. MIT does not explain why subsidizing sales to those who need no subsidy removes those sales from the realm of commerce. On that contention, MIT and its co-conspirators would be free to fix tuition prices without regard to Section 1. But even Paul Gray, MIT's chairman and former president, said that fixing full tuition would not be “proper or defensible.” (Gray Tr., App. 853-54) Whether above or below the cost to MIT of providing its services, the amount the student must pay is the price.

FN13. MIT relies for this assertion on its study, DX6, App. 1365. But the United States brought out on cross-examination of MIT's chairman, Paul Gray, that this study lumped together undergraduate and graduate education, even though this case involves only undergraduate education, and Gray admitted that graduate education might well cost more per capita than undergraduate education, and included such elements of cost as unsponsored faculty research and alumni association costs. Gray tr., App. 846-853. As one Harvard document reporting on a meeting noted, “[T]here was unanimous agreement that tuition is subsidizing research.” (GX 128, App. 1301)

MIT ultimately appears to contend that students do not pay MIT for educational services at all, so that the relationship is not commercial. Students instead “contribute varying amounts,” in much the manner that parishioners weekly contribute to the collection plate. (Br. 47) This image of a two-way flow of charitable contributions surely seems bizarre to a prospective student who must transfer substantial sums of money to MIT (or a nearly identical amount to any of its co-conspirators) or go elsewhere for an education. Any college graduate knows better: students pay, alumni contribute.

If MIT takes its understanding of “commerce” from Ambrose Bierce (see Br., inside front cover), it is not surprising that MIT seeks to disassociate itself from the concept. Bierce defined commerce as “[a] kind of transaction in which A plunders from B the goods of C, and for compensation picks the pocket of D of money belonging to E.” Ambrose Bierce, The Devil's Dictionary 24 (1911, Laurel ed. 1991). But the Supreme Court takes a less cynical view, and in this view the exchange of services for money is commerce within the meaning of Section 1. Goldfarb, 421 U.S. at 787-88.

*21 II. THE DISTRICT COURT PROPERLY FOUND UNLAWFUL PRICE-FIXING

A. MIX And Its Co-Conspirators Engaged In Price Fixing That Is Unlawful Per Se Under Section 1 Of The Sherman Act

The district court found that the “Ivy Overlap Group members, which are horizontal competitors, agreed upon the price which aid applicants and their families would have to pay to attend a member institution to which that student had been accepted.” (Op. 32-33, App. 481-482.)

We do not understand MIT to contest this finding, which, in any event, is plainly right, for here the conspirators' intent to fix prices and eliminate price competition is manifest in the record. As the court observed: “The purpose of the Ivy Overlap Group is set forth in the Manual of the Council of Ivy League Presidents” (Op. 11, App. 460). The Manual provides that “in order to insure that financial awards to commonly admitted candidates are reasonably comparable,” the conspirators would meet to “share financial information concerning admitted candidates” before notifying admittees of how much they would have to pay. And the Manual unequivocally states: “The purpose of the compare agreement is to neutralize the effect of financial aid so that a student may choose among Ivy Group institutions for non-financial reasons.” In short, price competition is to be eliminated through the fixing of prices: “Family contributions shall be compared and adjusted if necessary so that, as a general rule, families will be asked to pay approximately the same amount regardless of the Ivy Group institution they choose to attend.” GX 3, App. 1211, quoted at Op. 11, App. 460.

This conduct is plainly per se unlawful price fixing, as the Supreme Court made clear in United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 218, 221 (1940):
*22 [F]or over forty years this Court has consistently and without deviation adhered to the principle that price-fixing agreements are unlawful per se under the Sherman Act....

* * *

[T]o the extent that they raised, lowered, or stabilized prices they would be directly interfering with the free play of market forces. The Act places all such schemes beyond the pale .... Congress has not left with us the determination of whether or not particular price-fixing schemes are wise or unwise, healthy or destructive.

See also Arizona v. Maricopa County Medical Society, 457 U.S. 332, 347 (1982) (“We have not wavered in our enforcement of the per se rule against price fixing”); FTC v. Superior Court Trial Lawyers Association, 493 U.S. 411, 436 n.19 (1990) (horizontal price-fixing arrangement is “a type of conspiracy that has been consistently analyzed as a per se violation for many decades”).

Moreover, the district court found that the “agreed-upon ban on merit scholarships foreclosed the possibility that non-aid applicants could receive a discount based on any type of meritorious achievement.” (Op. 33, App. 482.) This too was price fixing. See Catalano v. Target Sales. Inc., 446 U.S. 643, 648 (1980) (an “agreement to eliminate discounts . . . falls squarely within the traditional per se rule against price fixing”), quoted at Op. 33.

In sum, the court found, and the evidence showed, a straightforward agreement to fix prices so that competitors would not compete on price. As the court stated, this is price fixing in more than just the literal sense. Op. 32-33 & n.7, App. 481-482. It is price fixing of the kind normally held per se unlawful -- unlawful without further inquiry.

Nevertheless, the district court chose not to apply the per se rule. Contrary to MIT's assertion (Br. 3), the court did so not because it “recognized that Supreme Court precedent *23 barred use of the per se rule to evaluate the challenged agreement,” but rather “in the exercise of caution and in light of the Supreme Court's repeated counsel against presumptive invalidation of restraints involving professional associations.” Op. 33, App. 482.

The Supreme Court, however, has made it clear that naked horizontal price fixing by professionals is per se unlawful. In Goldfarb it found the lawyers' fee schedule to be a “classic illustration of price fixing,” 421 U.S. at 783. Although the Court did not in terms add the phrase “per se” to that characterization, it hardly needed to do so in light of nearly 50 years of precedent holding such conduct illegal per se. And unmistakably the Court did not address the Rule of Reason.[FN14]

FN14. The Court's only analysis (other than of effect on interstate commerce, a supposed “learned profession” exemption, and state action, 421 U.S. at 780) addressed whether a fee schedule that was allegedly merely advisory amounted to price fixing. 421 U.S. at 781-83.
In discussing whether the learned professions were included in “trade or commerce,” the Court noted that “[i]t would be unrealistic to view the practice of professions as interchangeable with other business activities, and automatically to apply to the professions antitrust concepts which originated in other areas. The public service aspect, and other features of the professions, may require that a particular practice, which could properly be viewed as a violation of the Sherman Act in another context, be treated differently.” 421 U.S. at 788-89 n.17. But it is plain that the Court was addressing the possible legality of practices other than the classic price fixing before it: it added that “We intimate no view on any other situation than the one with which we are confronted today.” Ibid.

Nor does National Society of Professional Engineers v. United States, 435 U.S. 679 (1978), indicate that classic price fixing involving a professional association is anything but per se unlawful. There the Court, confronted with “an agreement among [professional] competitors to refuse to discuss prices with potential customers until after negotiations have resulted in the initial selection of an engineer,” held the practice to be “not price fixing as such.” Id. at 692. But echoing the two lower courts, which had applied the per se rule, the *24 Supreme Court without “elaborate industry analysis” concluded that “[o]n its face, this agreement restrains trade.” Id. at 692-93.[FN15]

FN15. In Catalano, 446 U.S. at 647, the Court cited Professional Engineers as an example of per se illegality.

Finally, just two years ago the Supreme Court once again held price fixing by an association of lawyers to be per se unlawful. The issue did not require much discussion, as the Court noted that a horizontal price-fixing arrangement is “a type of conspiracy that has been consistently analyzed as a per se violation for many decades.” Superior Court Trial Lawyers, 493 U.S. at 436 n.19.

Thus, horizontal price fixing agreements like MIT's are per se unlawful, and this Court should apply that decades-old rule to affirm the district court's judgment here.[FN16]

FN16. When conduct falls within the scope of the per se rule, application of the rule is not discretionary. Superior Court Trial Lawyers, 493 U.S. at 433. This is not a case like Pennsylvania Dental Association v. Medical Service Association of Pennsylvania, 815 F.2d 270, 274-5 (3d Cir.), cert. denied, 484 U.S. 851 (1987), where the Court, having concluded that a group boycott was unlawful under the Rule of Reason because of its similarity to conduct already condemned under the Rule of Reason by the Supreme Court, held there was “no reason” to consider whether the boycott was per se unlawful. Here, in contrast, there is no precedent for treating classic price fixing under the Rule of Reason.
*25 B. If The Conspiracy Was Not Unlawful Per Se, The District Court's Analysis Under The “Quick Look” Form Of The Rule Of Reason Was Proper

 1. The Conspiracy's Plainly Anticompetitive Character Satisfied the Necessary Condition for Applying the Quick Look Rule of Reason

Since courts decades ago abandoned the search for reasonableness in unvarnished price fixing conspiracies,[FN17] the district court, in evaluating this conspiracy under the Rule of Reason, followed the course charted for other types of restraints by the Supreme Court in National Collegiate Athletic Ass'n v. Board of Regents, 468 U.S. 85 (1984) (“NCAA”). That course has become known as the “ ‘quick look’ version of the Rule of Reason.” Chicago Professional Sports Ltd. Partnership v. National Basketball Association, 961 F.2d 667, 674 (7th Cir.), cert. denied, 61 U.S.L.W. 3354 (Nov. 3, 1992).

FN17. In contrast, courts continue to search for reasonableness where “horizontal restraints on competition are essential if the product is to be available at all.” NCAA, 468 U.S. at 101. This is so even if the restraint can be said to constitute “ ‘price fixing’ in the literal sense,” for even two partners jointly setting the price for the product they sell are “literally ‘price fixing.’ ” Broadcast Music. Inc. v. CBS, 441 U.S. 1, 9 (1979). But no authoritative case analyzes under the Rule of Reason combinations that can “be wholly equated with a simple horizontal arrangement among competitors.” Id. at 23. Although MIT says in its Summary of Argument that Ivy League Overlap “constitute[d] no more than a joint venture,” Br. 13, for which, presumably, full Rule of Reason analysis would be appropriate, it makes no such contention in its Argument.

As the district court explained, although the “Rule of Reason ordinarily requires an in-depth inquiry into the actual market impact of a restraint [, t]here are some agreements . . . that are so inherently suspect, that even under the Rule of Reason ‘no elaborate industry analysis is required to demonstrate [their] anticompetitive character.’ FTC v. Indiana Fed'n of Dentists, 476 U.S. 447, 459 . . .(1986); Professional Engineers, 435 U.S. at 692.” Op. 39, App. 488. Such a restraint “requires some competitive justification *26 even in the absence of a detailed market analysis.”  NCAA, 468 U.S. at 110.[FN18] “Unless there are sound justifications, the court condemns the practice without ado.” Chicago Professional Sports, 961 F.2d at 674. Thus, if no sound justifications are found, the inquiry will closely resemble that under the per se rule, but for the opportunity to offer justifications. Conversely, if sound justifications are found, the court will proceed to a full scale Rule of Reason analysis.

FN18. The Court's reference to “detailed market analysis” went primarily to the ordinary requirement of a showing of market power. NCAA, 468 U.S. at 110. Absent market power, a restraint is unlikely to harm competition. Therefore, the Court was excusing a showing of actual harm to competition.

The district court here found an agreement so inherently suspect that no elaborate industry analysis was required to demonstrate its anticompetitive character, and so concluded that a quick look Rule of Reason analysis was appropriate.

MIT first contends that a court may rely on this quick look “only where the evidence makes clear that the challenged practice . . . manifestly has an adverse effect on price, output, or quality” so that “economic harm to consumers may be presumed,” and that the court erred in applying the quick look without finding such evidence. Br. 41. This argument is wrong.

If quick look required a clear evidentiary showing of an adverse effect on price, output, or quality, it would cease to be quick. Proof of actual adverse effect will often require the detailed industry analysis the quick look is precisely designed to obviate in the absence of competitive justifications. And proving such an effect will usually prove a plaintiff's case under the full Rule of Reason.

*27 The Supreme Court requires no such evidentiary showing. MIT claims that the Supreme Court has applied this analysis in three cases, Indiana Federation of Dentists, Professional Engineers, and NCAA, Br. 41. In NCAA, the Court did rely on findings of adverse effect. Yet in Indiana Federation of Dentists, the Court made no evidentiary finding of actual adverse effect. Quite to the contrary, it stated that concerted activity likely “to disrupt the proper functioning of the price-setting mechanism of the market. . . may be condemned even absent proof that it resulted in higher prices or, as here, the purchase of higher priced services, than would occur in its absence.” 476 U.S. at 461-62.[FN19] And although MIT claims that the Court relied on evidentiary findings of adverse effect in Professional Engineers (Br. 41, citing 435 U.S. at 693), there were no such findings, by the Supreme Court, the court of appeals, or the district court. This absence is not surprising, since Professional Engineers is a per se case. The Supreme Court affirmed the court of appeals, which had in pertinent part affirmed the district court, and the district court had not even inquired into actual effect on prices. 389 F. Supp. 1192, 1200 (D.D.C. 1974).[FN20]

FN19. Indeed, the court of appeals, reversed by the Supreme Court, had reversed the FTC because, among other things, the FTC had failed to find that the restraint in question “had actually resulted in higher dental costs to patients and insurers.” Id, at 453; see Pennsylvania Dental Association, 815 F.2d at 274. The reference to “common sense and economic theory” (Br. 42, citing 476 U.S. at 456) is in support of the finding that, but for the conspiracy to withhold x rays, dentists would have had incentives to comply with insurers' requests for x rays. That finding went merely to whether the conspiracy affected market conduct at all. The Court went on to make clear that the conspiracy would have been unlawful even if the withheld information would have been useless to those seeking it. 476 U.S. at 462.

FN20. The district court's findings here exactly parallel those of the affirmed district court in Professional Engineers. Compare 389 F. Supp. at 1200 (rule had “as its purpose and effect the excision of price considerations from the competitive arena of engineering services”) with Op. 38-39, App. 487-488 (conspiring “institutions purposefully removed, by agreement, price considerations and price competition for an Overlap School education”); 389 F. Supp. at 1200 (a restriction on “the free play of market forces”) with Op. 35, App. 484 (a “horizontal restraint which interfered with the natural functioning of the marketplace”); 389 F. Supp at 1200 (“not important to know” the effect on price) with Op. 36-38, App. 485-487 (attempts to demonstrate the effect on price are a distraction).

*28 MIT also appears to argue, albeit in a different part of its brief (Br. 17-21) that, because it is a non-profit organization with no incentive to harm consumers through generally higher prices, the normal rules governing naked price fixing do not apply to it. This restatement of MIT's theory of differential antitrust law for at least some non-profits is unsound in law and in economics.

As a matter of law, the Supreme Court has consistently held that price fixing is per se unlawful whatever the effect on prices. As the Court explained in Maricopa, a case applying the per se rule to a maximum price agreement, “The per se rule ‘is grounded on faith in price competition as a market force [and not] on a policy of low selling prices at the price of eliminating competition.’ ” 457 U.S. at 348.[FN21] And the Court rested its rule of uniform treatment of price fixing on legal grounds, even if economic analysis might suggest a different rule. Ibid. Thus the district court was correct that the expert economists' debates over whether the conspiracy “increased or decreased net revenues” merely “distracted[ed] the court from the inescapable truth that by entering into the Ivy Overlap Agreements, the member institutions purposefully removed, by agreement, price considerations and price *29 competition for an Overlap school education.” (Op. 37-39, App. 486-488.)[FN22] It does not matter whether MIT's price fixing could be expected to raise, lower, or leave unchanged the average price at a conspiring school.[FN23] 

FN21. See also Socony-Vacuum, 310 U.S. at 221-222; Kiefer-Stewart Co. v. Joseph E. Seagram & Sons. Inc., 340 U.S. 211, 213 (1951); Albrecht v. Herald Co., 390 U.S. 145, 152-153 (1968).

FN22. MIT in effect argues that the district court's emphasis on free market forces (shared, of course, by the Supreme Court), is misplaced because regulation and subsidy themselves prevent the operation of the free market in higher education. Br. 25. One might as well argue that the per se rule should not apply to medical or agricultural markets because they are “ ‘widely deviant from a reasonably free competitive model,’ ” but that is just the argument the Court rejected in Maricopa. 457 U.S. at 350-51 & n.21.

FN23. MIT's argument is a variant of the argument that the prices the conspirators fixed are reasonable. The Supreme Court has described that argument as “the long-rejected position that fixed prices are reasonable if they are lower than free competition would yield.” Maricopa, 457 U.S. at 352 n.25.

As a matter of economic analysis, moreover, there is strong reason to fear that the conspiracy would lead to higher average prices. Both the government's economic expert (Leffler tr., App. 14-15) and MIT's economic expert (Carlton tr., App. 164-165, 168, 238-239) testified that, despite their not-for-profit status and their motivations, universities such as MIT have “an incentive to raise revenues by raising the price that students pay on average.” (Carlton tr., App. 168) The reason is obvious: “MIT would like some more money so that they can spend them [sic] on what they think are desirable projects.” (Ibid,) This testimony merely confirms courts' knowledge that “[t]he adoption of the nonprofit form does not change human nature, ... as the courts have recognized in rejecting an implicit antitrust exemption for nonprofit enterprises.”  Hospital Corp. of America v. F.T.C., 807 F.2d 1381, 1390 (7th Cir. 1986) (Posner, J.), cert. denied, 481 U.S. 1038 (1987). And when MIT and its main competitors followed human nature by agreeing to eliminate price *30 competition and fix prices, they created the power to raise prices. See Socony-Vacuum, 310 U.S. at 226 n.59.

Additionally, although MIT says the amount of financial aid is a fixed sum (Br. 38), it can enlarge that sum at any time if it thinks it important to do so. Op. 47-48, App. 496-497. Likewise, nothing insures that the increased revenues MIT gets from some students as a result of the conspiracy would be devoted to reducing correspondingly the revenues extracted from other students.[FN24] Indeed, the nature of the admissions and aid process at MIT shows that it could only be coincidence if the increased revenues resulting from increasing the price offered to one student were matched by a corresponding reduction in the price offered to another in any one year. MIT makes decisions on particular students independent of its decisions on other students, with every student offered either an undiscounted price or a price discounted to reflect the particular student's family's ability to *31 pay. Similarly, MIT points to no mechanism, and the government has found none, that would assure that increased revenues from raising family contributions one year would be followed by compensating smaller increases in either tuition or family contributions the following year.[FN25] Accordingly, even if the conspiracy left average prices unchanged in the past, but see nn.7, 24 supra, there is no reason to think it would do so in the future.

FN24. MIT repeatedly notes that the district court assumed that the effects of the conspiracy were “revenue neutral.” (Br. 10, 35, 38.) But the court did so only after expressing doubt about whether the actual effect of the conspiracy on revenues was “even capable of being proved with a reasonable degree of economic certainty.” (Op. 37, App. 486). And the context makes clear that the court's assumption reached only to the actual effects of the conspiracy, and not to whether the conspiracy was necessarily revenue neutral. Indeed, MIT's economic expert, Dr. Carlton, claimed no more than that his elaborate regression analyses failed to reject the hypothesis that the conspiracy had no effect on average price. (E.g., Carlton tr., App. 256, 261-262) Thus, even where Dr. Carlton's regressions estimate a price-increasing effect of the conspiracy, he concluded that no price-increasing effect was shown, because the estimate was not statistically significant (id. 270-271). But it is also true that even when his regressions estimated a price-decreasing effect of the conspiracy, he could not reject the hypothesis of a substantial price-increasing effect (id, 277-279). In short, the evidence that the conspiracy was “revenue neutral” in the past is merely evidence that Dr. Carlton's statistical methods had a large margin of error and did not find a revenue-increasing effect large enough to lie beyond that margin. The large margin of error (plus or minus $1500 in estimating the effect on average revenue) is attributable to data errors and the use of data for over 200 colleges, including many hardly comparable to the elite Ivy Overlap Group. Leffler tr., App. 345-356.

FN25. That the meetings at which MIT and its co-conspirators fixed prices to individual students frequently resulted in one conspirator's increasing the price it offered one student while another conspirator decreased the price offered the same student also provides no assurance of overall revenue neutrality, even leaving aside collusive adoption of formulas for computing prices. The inevitable result of such decisions is to raise the minimum price the conspirators offer a particular student for the educational services of any of the conspiring institutions, so that the student's “best financial opportunity” is worsened. (Op. 38 n.10, App. 487.) To the extent students and their families would tend to select the lowest price alternative among these institutions, the corresponding increasing and decreasing offers would result in a higher price paid by every affected student's family.

The district court was thus correct in concluding that a price-fixing conspiracy, even among institutions such as MIT, was “plainly anticompetitive” (Op. 40, App. 489). If the activity is not per se unlawful, that conclusion justifies application of the quick look Rule of Reason and places upon MIT “a heavy burden of establishing an affirmative defense which competitively justifies this apparent deviation from the operations of a free market.' ” (Op. 40-41, App. 489-490, quoting NCAA, 468 U.S at 113.

 2. The District Court Properly Rejected MIT's Proffered Justifications for Its Price Fixing

MIT also argues that the district court misapplied the quick look test by ignoring the “procompetitive effects of, or other legitimate justifications for, the challenged conduct.” Br. 42. This is wrong. The district court did consider whether there were procompetitive justifications for Ivy Overlap, and it correctly found that there were none.

*32 MIT's most straightforward claim of a procompetitive benefit is that the elimination of price competition increased competition in “areas such as curriculum, campus life and student-faculty interaction” (Br. 28). But almost any effective seller's price-fixing conspiracy will force buyers to focus on something other than price. That is not a procompetitive benefit, but simply a necessary consequence of eliminating price competition.[FN26] The elimination of price competition in Professional Engineers focused competition on background and reputation, 435 U.S. at 684, 685 n.7, but that was not allowed to offset the restraint on price competition. The elimination of price competition cannot be its own pro-competitive justification.[FN27]

FN26. For this reason, there is no merit to MIT's contention (Br. 28) that the elimination of price competition fostered competition among students for admission, by removing financial means as a factor.

FN27. MIT's doctrine of compensating competitiveness (Br. 28) finds no support in NCAA. The Supreme Court's recognition that enhancement of athletic competitiveness might justify some restraints on economic competition depended entirely on its finding that “[w]hat the NCAA and its member institutions market in this case is competition itself -- contests between competing institutions.” 468 U.S. at 101. Nor does the argument find support in the principle that enhanced interbrand competition can justify vertical restraints on intrabrand competition (Br. 28). Even had the Supreme Court extended this principle to price fixing, it would be beside the point. There is no suggestion here that MIT and its co-conspirators, by fixing prices, made some collective product better able to compete against the products of other institutions.

MIT's claims that the conspiracy increased the quality of Ivy Overlap education by increasing the diversity of student bodies and enhanced consumer choice by making it possible for some poor students to attend these institutions (Br. 27) are doubly unsound.

First, they rest on the factual assumption that without the conspiracy neither MIT nor the Ivy League schools could maintain their policies of need-blind admissions and need-based *33 aid (Op. 41-42, App. 490-491)[FN28] -- a proposition the court did not accept. If the policies can be maintained without the conspiracy, then the benefits the policies provide cannot be attributed to the conspiracy. Of course, MIT, relying on the testimony of its chairman and former president (Gray), the former president of a co-conspirator (Bowen), and the president of an institution involved in similar practices (Keohane, see Keohane tr., App. 858), predicts that the conspiring institutions would, absent the conspiracy, abandon these policies “in the face of constant pressure from various segments of the university to use school resources to attract the most desirable students” (Br. 36). Perhaps, absent the conspiracy, MIT and the Ivy League might choose to do so. But the district court, after assessing the record, found “no evidence supporting MIT's fatalistic prediction that the end of the Ivy Overlap Group necessarily would sound the death knell of need-blind admissions or need-based aid.” Op. 46, App. 495. The court determined that if the colleges abandoned these policies, it would indicate minimal dedication to them (Op. 47, App. 496), rather than the necessity of conspiracy. Since MIT nowhere it its brief says that these findings are clearly erroneous, its argument fails as a matter of fact.[FN29]

FN28. One of the conspirators, Brown University, departed from these policies at least a decade ago despite the conspiracy. Routh tr., App. 670; Widmer tr., App. 1004-1005.

FN29. MIT contends that the United States had the burden of showing that the co-conspirators, absent their conspiracy, could “fully fund both need-blind/full-need aid and no-need aid.” (Br. 40). But there is no dispute about whether the co-conspirators have the resources fully to fund “need-blind/full-need aid” (with funds left over), absent the conspiracy, should they choose to do so. MIT here argues only that “[i]f financial aid expenditures remain constant” absent the conspiracy, then increased “no-need aid” means decreased need-based aid. (Br. 39-40) But there is no requirement that MIT refuse to increase the amount it spends on financial aid. The conspiracy is therefore not necessary to the policies, however true it may be that faculties would force administrators to abandon these policies were the bonds of conspiracy severed.

*34 Moreover, these “pro-competitive benefits” are actually not that, but instead are matters of social policy. We do not question the value of diversity in a student body as a matter of educational policy. But it can no more justify a horizontal price-fixing conspiracy than the protection of public safety by preventing inferior and unsafe engineering work could justify the restraint on competition in Professional Engineers. In each case, the claim is a “frontal assault on the basic policy of the Sherman Act” of the sort the Supreme Court “has never accepted” in a Rule of Reason analysis. Professional Engineers, 435 U.S. at 694-95. And however enlightened may be the policies enforced through conspiracy that altered the mix of students, this supposed increase in competition among students is plainly a matter of distribution of wealth, which MIT itself contends is not a matter of concern to the antitrust laws (Br. 22-23).

The crux of MIT's assault on the district court's treatment of justifications proffered for price fixing, however, is that “the trial court expressly refused to consider the educational and social policy justifications” (Br. 29).[FN30] The court indeed refused to consider them, and it was absolutely right to do so. As the court held, the Supreme Court in Indiana Federation of Dentists and Professional Engineers has made it crystal clear that “the elimination of competition itself can[not] be justified by non-economic designs” (Op. 43, App. 492).

FN30. MIT properly includes “socioeconomic diversity” in its discussion of non-economic objectives of the conspirators' policies (Br. 30).

MIT does not deny that Professional Engineers and Indiana Federation on their face bar Rule of Reason consideration of just such social policy defenses as MIT proffers. But it seeks to limit these cases to their facts while drawing authoritative law from the dissenting *35 opinion of two Justices in NCAA (Br. 29, 34). There is, however, nothing in the language of Professional Engineers and Indiana Federation that in any way suggests that they are limited to the social policy justifications offered by dentists and engineers. Seemingly, MIT thinks that the motives of these professionals are base.[FN31] Certainly it thinks that its motives and those of the Ivy League are so clearly distinguishable as to compel courts to balance competition against other social values. Br. 33-34. It is a sufficient answer that the Supreme Court has made plain that “the statutory policy precludes inquiry into the question whether competition is good or bad.” Professional Engineers, 435 U.S. at 695.

FN31. MIT is harder on the motives of the engineers in Professional Engineers (“enhanc[ing] their own profits by increasing prices to consumers,” Br. 33) than was the Supreme Court. Indeed, the question before the Court was “whether the canon [of ethics prohibiting competitive bidding] may be justified under the Sherman Act. . . because it was adopted by members of a learned profession for the purpose of minimizing the risk that competition would produce inferior engineering work endangering the public safety.” 435 U.S. at 681.

This does not mean that MIT is without recourse in seeking to further its views of sound social policy. Congress is the appropriate forum for debating whether to limit competition in the interest of other societal goals. See Maricopa, 457 U.S. at 354-55. Indeed, it appears that the Ivy Overlap Group has already turned to that forum -- and with partial success. Trial in this case was shortly followed by enactment of Section 1544 of the Higher Education Amendments of 1992, Pub. L. No. 102-235, §  1544, 106 Stat. 448, 837 (1992). Section 1544 provides, in essence, that some kinds of agreements regarding financial aid are authorized.[FN32] It also says that “No inference of unlawful contract, combination, or conspiracy shall be drawn from the fact that institutions of higher education engage in *36 conduct authorized by this section.” §  1544(d). Congress, however, explicitly excluded from its authorization hard-core price fixing of the kind proved here: “Institutions of higher education shall not discuss or agree with each other on the prospective financial aid award to a specific common applicant for financial aid.” §  1544(c). MIT remains free to lobby Congress for legislation to legitimate such conduct.

FN32. By it terms, the section does not affect this litigation, and automatically expires two years after enactment.
C. MIT's Analysis Of How The Case Might Have Been Analyzed Under The “Traditional” Rule Of Reason Is Beside The Point And Misleading

As we have shown, this is a plain case of per se Sherman Act liability, and even if quick look Rule of Reason applies, the court's quick look analysis was unexceptionable. Thus, MIT's lengthy discussion of how the court might have conducted a more elaborate Rule of Reason inquiry (Br. 16 et seq.) is beside the point.

If the Court nevertheless concludes that there must be a full scale Rule of Reason analysis, there must be a remand, for the district court performed no such analysis. We emphasize this point lest MIT's repeated assertions about the government's supposed evidentiary failures[FN33] and about MIT's supposed proof, or the court's assumption, of revenue neutrality,[FN34] mislead the Court about what has or has not already been decided. The district court was explicit: it did not decide that the United States failed to prove that the conspiracy raised the average price, and it did not decide that MIT had proved that the *37 conspiracy had no effect on the average price. Instead, expressing doubt that the conflicting economic testimony and evidence allowed the question to be resolved “with a reasonable degree of economic certainty” (Op. 37, App. 486), it chose not to resolve the question, because resolution was unnecessary to demonstrate the conspiracy's anticompetitive character (Op. 36-39, App. 485-488). If this Court determines that a price fixing conspiracy cannot be held unlawful without such resolution, it is for the district court to resolve it in the first instance.

FN33. E.g., “Division's failure to show harm to consumer welfare,” Br. 17; “unable to prove a deleterious effect on price, output or quality,” Br. 19; “if the Division had been able to establish a cognizable anticompetitive effect,” Br. 26.

FN34. E.g., “Since Overlap was revenue neutral, the schools derived no financial benefit from participating [and] the group of students attending these institutions paid no more as a result,” Br. 10; “MIT proved . . . that Overlap was revenue neutral,” Br. 13; “collective action produced no change in average price,” Br. 34.
III. THE FIRST AMENDMENT DOES NOT SHIELD PRICE FIXING CONSPIRACIES, EVEN THOSE AMONG UNIVERSITIES, FROM THE SHERMAN ACT

MIT's amici, while conceding that perhaps under some circumstances the Sherman Act might apply to collusion among universities (Brief Amicus Curiae for Twelve Non-Profit Higher Education Associations In Support of the Massachusetts Institute of Technology (“Ass'ns Br.”) 22, 24), argue that the “First Amendment rights of academic freedom” (id. 22) should protect a university price-fixing cartel unless the court also finds that the cartel actually managed to raise prices or reduce output (id. 24-25). Since, as we have shown, neither the per se rule nor the quick look Rule of Reason conditions a finding of liability on a finding of an actual effect on prices or output, amici in effect argue that there is a First Amendment barrier to application of both the per se rule and the quick look Rule of Reason to a university price-fixing cartel. This argument, presented only by the amici, is not properly before the Court. In any event, it is wrong.

It is long-settled that courts will not decide a constitutional question “unless obliged to do so ... when the question is raised by a party whose interests entitle him to raise it.” *38 Blair v. United States, 250 U.S. 273, 279 (1919). This principle gives particular force in this case to the general rule that appellate courts refuse to consider arguments raised only by an amicus and not by a party. General Engineering Corp. v. Virgin Islands Water & Power Authority, 805 F.2d 88, 92 n.5 (3d Cir. 1986). Although the twelve amici plainly argue that the district court's decision violates the First Amendment, MIT does not.[FN35] Rather, by means of a footnote in a discussion of substantive Sherman Act law, MIT “endorses and adopts the arguments” of the amici. Br. 30 n.17. But the Federal Rules of Appellate Procedure, which expressly provide for such adoption of arguments in parties' briefs (Fed. R. App. P. 28(i)), conspicuously omit any such provision for arguments in amici's briefs. MIT was at liberty, of course, to find room in its own brief for the arguments of its related amici (MIT is a member of several of these higher education associations). It chose not to do so, and as a consequence the constitutional issue is not properly before the Court.

FN35. MIT's 35-page “Argument” does not even contain the simple statement that the district court's decision violates the First Amendment, let alone any argument to prove the point. There is a hint of such an assertion in MIT's statement of issues, but as Judge Becker has observed, “a passing reference to an issue in a brief will not suffice.” Simmons v. City of Philadelphia, 947 F.2d 1042, 1066 (3d Cir. 1991) (opinion of Becker, J.), cert. denied, 112 S. Ct. 1671 (1992). And see Hospital Corp. of America, 807 F.2d at 1382, where the court held that a party had not adequately raised a constitutional question by briefing it at four-page length.

Amici's claim of a First Amendment barrier to per se or quick look Rule of Reason treatment of university price fixing is, in any event, insubstantial. No case holds there is any such barrier. Indeed, amici admit that the concept of “academic freedom protects ‘autonomous decisionmaking by the academy itself,’ ” (id, 23, quoting Regents of the University of Michigan v. Ewing, 474 U.S. 214, 226 n.12 (1985)), the individual corporate *39 entity. In that event, universities should have no greater First Amendment freedoms than non-universities when they surrender their autonomy to collective cartel decisionmaking.[FN36] Section 1 of the Sherman Act leaves MIT free to make whatever decisions it likes concerning selection of students and the price it charges them; MIT's agreements with its co-conspirators surrender that freedom.[FN37]

FN36. The sole authority cited suggesting a special constitutional status for university cartels is a law review article, J. Peter Byrne, Academic Freedom: A ‘Special Concern of the First Amendment’, 99 Yale L.J. 251, 333 n.325 (1989) (Ass'ns Br. 24). Writing long before this case was filed, Professor Byrne suggests that an investigation of agreements on “tuition or financial aid policies. . . seems . . . potentially in violation of constitutional academic freedom.” He certainly does not mention agreements on the prices to be charged to particular students. And he admits that “no federal regulation has been invalidated” for violating this variety of academic freedom. 99 Yale L.J. at 312. That is not surprising, for as Professor Byrne concedes, there is “not even a colorable claim that the founders specifically intended to provide any constitutional status for higher education.” Id, at 331.

FN37. It is ironic that MIT relies on a concept of academic freedom emphasizing autonomous decisionmaking by the university in its corporate capacity, see id. 311-312, to shield it from Section 1 of the Sherman Act, when Section 1 itself embodies a parallel concern for “independent centers of decisionmaking.” Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 769 (1984).

Since universities that surrender their autonomy to cartels can claim no special First Amendment protections, the amici's First Amendment claims are without merit. The First Amendment as it applies generally surely does not protect price-fixing. Amici erroneously rely on Eastern Railroad Presidents Conference v. Noerr Motor Freight. Inc., 365 U.S. 127 (1961) (Ass'ns Br. 23-24), The Noerr doctrine, which limits the Sherman Act in light of the Petition Clause of the First Amendment, see, e.g., Superior Court Trial Lawyers, 493 U.S. at 424, protects political activity but has no bearing absent so much as a claim the restraint of trade was directed toward obtaining governmental action. See, e.g,. *40Pennsylvania Dental  Ass'n, 815 F.2d at 277. Moreover, it does not protect price fixing, even if it is directed at obtaining governmental action. Superior Court Trial Lawyers, 493 U.S. at 425, quoting Allied Tube & Conduit Corp. v. Indian Head Inc., 486 U.S. 492, 503 (1988). Apex Hosiery v. Leader, 310 U.S. 469 (1940) (Ass'ns Br. 24), is no more on point. The Apex Court both carefully distinguished the sitdown strike in that case from agreements to fix prices, 310 U.S. at 494-97, and made plain that price fixing agreements were unlawful under the Sherman Act because they “tend to raise prices or otherwise take from buyers or consumers the advantages which accrue to them from free competition in the market,” id. at 497. Apex nowhere requires a showing that a price fixing conspiracy actually raised price. Quite the contrary: “in general restraints upon competition have been condemned only when their purpose or effect was to raise or fix the market price.” Id. at 500. In this case, both the purpose and effect of the conspiracy were to fix prices, and it properly stands condemned under the Sherman Act.[FN38]

FN38. Claiborne Hardware (Ass'ns Br. 22), not a Sherman Act case, is also beside the point. The NAACP's boycott was intended to redress constitutional grievances, but not “to destroy legitimate competition.” 485 U.S. at 914. The conspirators here intended to destroy legitimate competition. “The right of business entities to ‘associate’ to suppress competition may be curtailed.” Superior Court Trial Lawyers, 493 U.S. at 428 n.12.
*41 CONCLUSION

This Court should affirm the district court's judgment.

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. BROWN UNIVERSITY, et al., Defendants, Massachusetts Institute of Technology, Defendant-Appellant.
1993 WL 13120271 (C.A.3) 

Briefs and Other Related Documents(Back to top)

• 1992 WL 12132453 (Appellate Brief) Brief Amicus Curiae for Twelve Non-Profit Higher Education Associations in Support of the Massachusetts Institute of Technology (Dec. 14, 1992)
• 1992 WL 12132454 (Appellate Brief) Brief for the Defendant-Appellant Massachusetts Institute of Technology (Dec. 14, 1992)
• 1992 WL 12132455 (Appellate Brief) Brief Amicus Curiae for the Association of Alumni and Alumnae of the Massachusetts Institute of Technology in Support of Appellant (Dec. 14, 1992) Original Image of this Document (PDF)
• 1992 WL 12132456 (Appellate Brief) Brief of Amici Curiae The School District of Philadelphia, et al. (Jan. 01, 1992) Original Image of this Document with Appendix (PDF)

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