Opinion Blog


Rick Hess Straight Up

Education policy maven Rick Hess of the American Enterprise Institute think tank offers straight talk on matters of policy, politics, research, and reform. Read more from this blog.

Education Opinion

Focus on Regulation, Not Just Legislation

By Guest Blogger — August 26, 2016 5 min read
  • Save to favorites
  • Print

Note: This week, Deven Carlson, an Assistant Professor of Political Science at Oklahoma University, is guest-blogging. His work explores education policy and politics.

The education policy community waited with breathless anticipation throughout much of 2015 to see if the Elementary and Secondary Education Act (ESEA) would be reauthorized. In the end, Congress ultimately passed the Every Student Succeeds Act (ESSA), which President Obama signed into law on December 10, 2015. After a few weeks of parsing the statutory language—figuring out was and wasn’t in the law—most folks started to lose interest and turned back to their pet issues and debates. Ironically, it was just at the time that many folks were losing interest in ESSA that the actual policy details started to be determined. Despite the law being passed several months prior, the policy details started to be hammered out in March 2016 when the ESSA Negotiated Rulemaking Sessions began.

Many peoples’ eyes start to glaze over when they hear terms like negotiated rulemaking, notice of proposed rulemaking, and other seemingly arcane and technical aspects of the regulatory process. Folks often assume that these processes just make sure that all the i’s are dotted and t’s are crossed—they think that all of the important policy details must have been addressed during the legislative process. And Congress certainly could choose to specify every little detail in the legislation. But legislators have enormous flexibility in choosing which details they specify statutorily and which they leave for the bureaucracy to determine via the regulatory process. More often than not, Congress elects to delegate substantial authority to determine policy details to the bureaucracy, especially when a topic is controversial or when an issue is technical or complex and the bureaucracy holds valuable expertise.

As an example of the importance of regulation, the statutory language authorizing Race to the Top (RTTT) ran less than 10 pages. In contrast, the final rule specifying the details and selection criteria for the grant competition covered nearly 150 pages of the Federal Register. As for the incentives to adopt Common Core (or other college- and career-ready standards)? The development of principal and teacher evaluation systems? The implementation of statewide longitudinal data systems? None of these issues were ever specifically mentioned in the authorizing statute. Rather, they were determined by personnel at the U.S. Department of Education (USED) and given the power of law via the regulatory process.

Before going any further, it might be helpful to give a quick, surface-level primer on the regulatory process. This process commences when an initiating event prompts an agency to begin the rulemaking process. In education, major legislation like ESSA is a common initiating event, but these events can also include lawsuits, OMB directives, or even just new agency initiatives. The agency then goes through the process of determining whether a rule is needed and—assuming it concludes one is necessary—takes steps to develop a proposed rule.

Agencies have significant flexibility in how they conduct the process of developing a proposed rule. They can develop the rule entirely in-house, they can solicit external information to inform rule development via an Advanced Notice of Proposed Rulemaking (ANPRM), or they can convene a group of stakeholders to develop a rule in a process known as Negotiated Rulemaking. After finalizing the proposed rule, the agency publishes it and solicits public comments, considers and responds to those comments, and then prepares a final rule. Upon completion of OMB review, the final rule is published and at that point it carries the force of law.

Scholars of education policy and politics have devoted considerable effort to understanding federal education policy from a legislative perspective. We have great analyses of No Child Left Behind, and terrific work on ESSA is sure to come in the near future. However, we have paid very little attention to analyzing policy made via the regulatory process. How has the regulatory activity of USED changed over time? Do regulations cover a wider range of issues and topics than they did 5, 10, or 25 years ago? How many and which interest and advocacy groups comment on proposed rules? What do those comments say? Do they seem to have any effect on the substance of proposed regulations? We haven’t paid enough attention to the regulatory process to answer even fairly basic questions like these.

As something of an aside, several foundations and scholars have expressed interest in assessing the use of evidence in the policymaking process. These assessments seem to generally conclude that evidence has relatively little influence in this process. However, these conclusions are largely based on analyses of the legislative process. In my view, evidence seems much more likely to influence the substance of regulations, where the issues at hand are often more technical and less visible. Indeed, evidence is unlikely to convince a legislator whether or not to support requiring test-based accountability systems in legislation. It is much more likely, for example, to influence whether regulations allow those systems to consider both student achievement levels and student achievement growth, or just levels. The use and influence of evidence in the education regulatory process is something I plan to study in the near future.

With many things in life, the devil is in the details. In other words, the most boring and mundane things can ultimately prove to be among the most important. It is much more fun to shop for cars and look for the heated seats and a sunroof than it is to open the hood and check the condition of the alternator or the timing belt. Regulations are the alternators and timing belts of the policymaking process, and it is time for us to open the hood and get a better understanding of the condition they’re in.

--Deven Carlson

The opinions expressed in Rick Hess Straight Up are strictly those of the author(s) and do not reflect the opinions or endorsement of Editorial Projects in Education, or any of its publications.

Events

Jobs October 2021 Virtual Career Fair for Teachers and K-12 Staff
Find teaching jobs and other jobs in K-12 education at the EdWeek Top School Jobs virtual career fair.
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Data Webinar
Using Integrated Analytics To Uncover Student Needs
Overwhelmed by data? Learn how an integrated approach to data analytics can help.

Content provided by Instructure
Classroom Technology Webinar How Pandemic Tech Is (and Is Not) Transforming K-12 Schools
The COVID-19 pandemic—and the resulting rise in virtual learning and big investments in digital learning tools— helped educators propel their technology skills to the next level. Teachers have become more adept at using learning management

EdWeek Top School Jobs

Teacher Jobs
Search over ten thousand teaching jobs nationwide — elementary, middle, high school and more.
View Jobs
Principal Jobs
Find hundreds of jobs for principals, assistant principals, and other school leadership roles.
View Jobs
Administrator Jobs
Over a thousand district-level jobs: superintendents, directors, more.
View Jobs
Support Staff Jobs
Search thousands of jobs, from paraprofessionals to counselors and more.
View Jobs

Read Next

Education Vulnerable Students Left Behind as Schooling Disruptions Continue
The effects of unpredictable stretches at home can mirror those of chronic absenteeism and lead to long-term harm to learning.
4 min read
Students board a school bus on New York's Upper West Side on Sept. 13, 2021. Even as most students return to learning in the classroom this school year, disruptions to in-person learning, from missing one day because of a late school bus to an entire two weeks at home due to quarantine, remain inevitable as families and educators navigate the ongoing pandemic.
Students board a school bus on New York's Upper West Side on Sept. 13, 2021. Even as most students return to learning in the classroom this school year, disruptions to in-person learning, from missing one day because of a late school bus to an entire two weeks at home due to quarantine, remain inevitable as families and educators navigate the ongoing pandemic.
Richard Drew/AP
Education 'Widespread' Racial Harassment Found at Utah School District
The federal probe found hundreds of documented uses of the N-word and other racial epithets, and harsher discipline for students of color.
1 min read
A CNG, compressed natural gas, school bus is shown at the Utah State Capitol, Monday, March 4, 2013, in Salt Lake City. After a winter with back-to back episodes of severe pollution in northern Utah, lawmakers and Utah Gov. Gary Herbert will discuss clean air legislation and call for government and businesses to convert to clean fuel vehicles.
Federal civil rights investigators found widespread racial harassment of Black and Asian American students in the Davis school district north of Salt Lake City, Utah.
Rick Bowmer/AP Photo
Education Tiny Wrists in Cuffs: How Police Use Force Against Children
An investigation finds children as young as 6 and a disproportionate amount of Black children have been handled forcibly by police officers.
15 min read
Jhaimarion, 10, reacts as he listens to his mother, Krystal Archie talking with an Associated Press reporter in Chicago on Sept. 23, 2021. Archie’s three children were present when police, on two occasions, just 11 weeks apart, kicked open her front door and tore through their home searching for drug suspects. She’d never heard of the people they were hunting. Her oldest child, Savannah was 14 at the time; her youngest, Jhaimarion, was seven. They were ordered to get down on the floor.
Jhaimarion, 10, reacts as he listens to his mother, Krystal Archie talking with an Associated Press reporter in Chicago on Sept. 23, 2021. Archie’s three children were present when police, on two occasions, just 11 weeks apart, kicked open her front door and tore through their home searching for drug suspects. She’d never heard of the people they were hunting. Her oldest child, Savannah was 14 at the time; her youngest, Jhaimarion, was seven. They were ordered to get down on the floor.
Nam Y. Huh/AP
Education Gunman in 2018 Parkland School Massacre Pleads Guilty
A jury will decide whether Nikolas Cruz will be executed for one of the nation’s deadliest school shootings.
3 min read
Annika Dworet and her husband, Mitch Dworet, wipe away tears as their son's name is read aloud during Marjory Stoneman Douglas High School shooter Nikolas Cruz's guilty plea on all 17 counts of premeditated murder and 17 counts of attempted murder in the 2018 shootings, at the Broward County Courthouse in Fort Lauderdale, Fla. on Wednesday, Oct. 20, 2021. The Dworet's son, Nicholas Dworet, 17, was killed in the massacre.
Annika Dworet and her husband, Mitch Dworet, wipe away tears as their son's name is read aloud during Marjory Stoneman Douglas High School shooter Nikolas Cruz's guilty plea on all 17 counts of premeditated murder and 17 counts of attempted murder in the 2018 shootings, at the Broward County Courthouse in Fort Lauderdale, Fla. on Wednesday, Oct. 20, 2021. The Dworet's son, Nicholas Dworet, 17, was killed in the massacre.
Amy Beth Bennett/South Florida Sun Sentinel via AP