- Negotiated rulemaking part of process for higher ed rules
- Experts say process has value even if parties don’t agree
Students, colleges and other groups will soon begin negotiating over a regulation for college accrediting agencies, the gatekeepers of $120 billion annually in federal student aid.
Yet there’s little confidence the discussions, which start Jan. 14, will result in consensus, which would leave the Education Department officials to write their own regulation. That’s what happened earlier this year when two other negotiated rulemakings failed to reach consensus after more than a dozen days of in-the-weeds policy talks.
Given the wide range of topics for the upcoming discussions, it’s likely the process will be something of a charade, said Clare McCann, who worked on negotiated rule making for the borrower defense rule when she was at the Education Department and is now deputy director for federal higher education policy at New America. That rule dealt with when students deceived into attending colleges or universities could get their loans discharged.
“It sometimes works,” McCann said about regulatory negotiations. “And sometimes it’s a colossal failure.”
On the Ground Input
Not all departments are required to go through the process of negotiations before final rules are written. The Higher Education Act (Public Law 110-315), though, requires the Education Department to use the negotiated rulemaking process to clarify specific parts of the law.
Sarah Flanagan, who was an aide on the staff of the Senate committee dealing with education issues when the higher education law was updated in 1992, said regulations at the time had provisions that made them needlessly difficult to follow. In turn, she said, lawmakers were overwhelmed with requests to override minor provisions in the regulations.
Gathering those impacted by a regulation before it is written ensures that even if groups didn’t like the rule, it won’t be a headache to follow the law, said Flanagan, the vice president for government relations and policy development at the National Association of Independent Colleges and Universities.
“Even though consensus at this point is almost impossible to reach, you still have a lot done that just fixes little things and make policy smoother to implement,” she said.
Things have changed since 1992, Flanagan said. Then, it was assumed most regulations would be written to clarify recently enacted laws. Since President George W. Bush, the department has developed major regulations based on small, undefined sections of the law.
Now, the regulations might influence parts of an update to the higher education law. House Democrats have included language in their higher education bill (H.R. 6543) on when the department should discharge loans in cases where a school significantly misled students.
And Sen. Dick Durbin (D-Ill.) has asked the heads of the Senate education committee to codify both the borrower defense regulation and a related regulation dealing with tracking how well colleges are preparing students to get work and repay their loans after graduating.
To contact the reporter on this story: Emily Wilkins in Washington at firstname.lastname@example.org