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Here’s the question everyone’s asking: Will the new administration’s education department spur states toward voucher programs and relax regulation of for-profit higher ed?
Maybe the question should not be if these changes would be made, but how.
And that’s why more attention should be paid to one of the most important and direct mechanisms the department may use to change policy: the rulemaking process. “Rulemaking” refers to the process through which a government agency creates regulations that administer programs and implement legislation.
When statutory provisions are vague or key terms in legislation are undefined, this gives departments an opportunity to step in and define those terms or provide specific directions as to how legislation should be implemented.
Although the rulemaking process is rarely front-and-center in the eye of the general public, it is a process that gives the executive branch substantial power. For this reason, the process has been quite controversial, and the so-called “iron triangle” of legislators, interest groups, and agency personnel stay well-versed in the process so they can exert their influence when it touches their interests.
Rulemaking received some attention during DeVos’s confirmation hearing last week, when Senator Elizabeth Warren asked DeVos if, as secretary of education, she would commit to enforcing the Gainful Employment rule, a regulation of career education programs developed during the Obama administration.
DeVos did not commit to this but said that the Department would “review” the rule to ensure it is achieving its objectives. A formal rollback of the Gainful Employment regulations would require the initiation of the rulemaking process, and given the high-profile nature of the rule, such a rulemaking would be sure to receive a great deal of attention from the media, interest groups and policymakers.
New rules must derive from an authorizing statute – such as the Every Student Succeeds Act or the Higher Education Act – but rulemaking need not wait for the reauthorization or amendment of a statute. Moreover, the Higher Education Act is due for reauthorization.
Assuming that happens in the next few years, it will give the Trump administration’s Department of Education an opportunity to create new regulations that could usher in a dramatic shift in higher education regulatory policy. We can expect the department to use the rulemaking process to bend policy in the direction of its ideological perspective on the role that government should play in education — as the Obama administration did when it came into office. During the last Republican administration, the Department of Education issued some regulations that were viewed as favorable toward the for-profit higher education sector.
The Obama administration rolled some of these provisions back, and additional regulations of career training programs were adopted. Now that a Republican administration will again be in power — to be led by a secretary of education with ties to the business community — we may expect to see regulations of for-profit higher education move in a different direction.
Research that I have conducted shows that powerful government and interest group actors tend to dominate the higher education rulemaking process. When a proposed rule governing federal higher education policy is controversial (such as the Gainful Employment rule), congressional leaders, political appointees to the Department of Education, and well-resourced interest groups tend to hold more sway over rulemaking.
When proposed rules have a lower profile and are more technical in nature, the Department’s career bureaucrats and interest groups with specialized knowledge of the regulated area become more influential. What all of these policy actors have in common is that they tend to hold a lot of political power or, at the very least, have time and resources to devote to developing expertise in the subject of regulations and to persuade regulatory policymakers to respect their points of view.
Part of the procedure often involves negotiated rulemaking, a step in the drafting process during which the agency meets with groups representing key stakeholders for the purpose of developing proposed regulatory language.
The goal is for the negotiated rulemaking committee to reach consensus on the proposed language. But even with this amount of stakeholder input, the Department of Education retains a great deal of power: if any member of the negotiating committee – even the Department’s own representative – does not consent to the regulatory language, then the Department gets to write the proposed rule on its own.
Concerned members of the public can monitor this process and provide input to decision makers. Negotiated rulemaking proceedings are open for public view, and interested parties can attend and speak at regional meetings that precede negotiated rulemaking. There is a notice-and-comment period after proposed rules are issued, during which members of the public can make their perspectives on proposed rules known to federal agencies. This can easily be done through the Regulations.gov website. Given the high stakes of rulemaking outcomes, it is important for all stakeholders to be aware of this procedure and to know how to voice opinions about it to key decision makers.
Rebecca S. Natow is a senior research associate with the Community College Research Center at Teachers College, Columbia University, and the author of Higher Education Rulemaking: The Politics of Regulatory Policymaking.