An archival photograph of Harvard University's main gateBettmann / Getty

Getting into America’s top colleges is extremely hard, but making sense of how it’s decided who gets in is arguably even harder. By and large, colleges—especially the most selective ones—are allowed to keep their methods to themselves.

Terry Hartle, of the American Council on Education, the leading group representing colleges and universities, calls admission to an elite college “very desirable, exceptionally competitive, and inherently subjective.” Hartle’s first two descriptors are reason enough to examine how institutions choose who to let in, but—given how lucrative it is to hold a degree from such institutions—it’s the third that most invites scrutiny.

Recently, it has been the Department of Justice that has taken up the invitation. Over the past year and a half, the department has started a handful of inquiries into the practices of a number of elite institutions in order to see if their admissions processes violate federal law.

Late last week, several highly selective colleges received letters from the department regarding “a potential agreement between colleges relating to their early decision practices.” The news was first reported by the trade publication Inside Higher Ed. The “agreement”—under which colleges are thought to pass information to each other about which students have gotten in where— may constitute an antitrust violation in the eyes of the Justice Department. Wesleyan University, Wellesley College, and Middlebury College are among the institutions that received the letters, according to The Wall Street Journal. (The Department of Justice declined to comment for this story.)

Outsiders have long been curious how admissions decisions are made. Most of the time this desire for transparency stems from a desire for fairness: Given how few acceptances elite institutions can offer, admitting any group of students almost always means excluding a much larger group that is just as qualified. So the unfortunate truth that investigators and the public may discover after peering into the black box of college admissions is that there are few, if any, procedures for deciding who gets in that would be perceived as fair.

This larger idea looms behind the Justice Department’s inquiry, but the department’s specific concern here is about the particularities of schools’ information-sharing arrangements. “Early decision” is an option offered by some schools that allows students to apply early and receive a decision sooner than usual, on the condition that they’ll accept an offer of admission. If a student is accepted early decision, they’re expected to withdraw their applications at any other schools.

Still, a very small number of students break these agreements and don’t withdraw their other applications. Which is where the information-sharing comes in: It’s helpful for colleges to know whether a student is already bound to attending another institution—and for the college that has accepted the student to know they are coming. Colleges can use this information to plan out who to admit, and it also reduces comparison-shopping on the part of students who might consider breaking an early-decision agreement for the promise of a sweeter financial-aid package at another school. But again, because it’s rare that students renege on early-decision admissions, the scope of the investigation is quite small.

Early decision has been controversial for a long time, but not for antitrust reasons. As Kim Cook, the executive director of the National College Access Network, an advocacy group, puts it, many low-income and first-generation college students do not always have the “luxury of committing to a school and a package without the ability to compare that financial-aid package and find out where they and their family can afford.”

The colleges that received letters from the Justice Department were told to hold onto documents reflecting communication that might hint at—or outright state—those agreements, among other information. Of course, several admissions officers quickly noted that they did not have such agreements, and, in fact, most colleges don’t. But some officials anonymously acknowledged to The Chronicle of Higher Education that they did have such agreements with small groups of institutions and that they only shared names of students who were accepted.

This is not the Justice Department’s first foray into investigating potential antitrust issues with college admissions. In November, the department requested information regarding a revised admissions ethics code from the National Association for College Admission Counseling (NACAC), a trade group; investigators said they were interested in whether colleges agree to “restrain trade” by complying with NACAC’s updated ethics code. David Burge, the president of the organization, said in a statement that the association had no reason to believe that this inquiry is related to the Justice Department’s more recent one.

There is another inquiry as well. Harvard does not appear to be implicated in either aforementioned antitrust investigation, but it is the subject of a separate inquiry, into the use of race in admissions, that has been ongoing since last fall. Last Friday, the Justice Department urged the public disclosure of the college’s admissions practices. It’s usually hard to argue against transparency, but the move was a bit puzzling: As Neal Hutchens, a professor of higher education at the University of Mississippi, told me, the department likely already had this information from its own investigation, and yet it was was asking Harvard to make it public.

The Justice Department and Harvard both have their own interpretations of the situation. The department argued in a “notice of interest” filed last Friday that “the public funds Harvard at a cost of millions of dollars each year, and thus has a paramount interest in any proof of these allegations, Harvard’s responses to them, and the Court’s resolution of this dispute.” The notice was filed in an outside case brought by an advocacy group called Students for Fair Admissions, which accuses Harvard of discriminating against Asian American applicants. Harvard, for its part, has alleged that the department is fighting on behalf of Edward Blum, an anti–affirmative action advocate who founded Students for Fair Admissions. (Blum has denied urging the government weigh in on his organization’s case.) Also, the department’s interest in the case may simply be a gateway to take a broader look at race in admissions (even though race usually constitutes only a sliver of the admissions criteria at the colleges that actually consider it).

The federal government’s probing of college admission is, according to Hartle, indicative of two larger tensions in American higher education. “This is fundamentally a problem about access at the best places in the world being inherently limited, and a process that is subjective and not terribly public.” As long as the process stays that way, the government—and the many students who are subject to its whims each year—will want to know more about it. And they might not like what they find.

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