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Federal Opinion

How Uncle Sam Writes the Rules for Schools

By Rick Hess — December 09, 2021 6 min read
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One of the more important yet least understood facets of federal education policy is “negotiated rule making,” a process which the U.S. Department of Education uses to craft the regulations that turn legislation into real-world policies that affect schools and classrooms. Especially with topics ranging from Title IX to school discipline in the spotlight, I thought it worth taking a look at how all this works. For the inside scoop, I turned to Michael Brickman, a former senior adviser at the U.S. Department of Education, where he led several major higher education regulatory reforms. Here’s what he had to say.

—Rick

Rick: What is negotiated rule making?

Michael: Negotiated rule making, also known as “neg-reg,” is a process that occurs before a new regulation is proposed. It enables regulated parties and regulators themselves to sit at a table and work out their competing interests—before rules are formalized and released to the public for input. Neg-reg was designed primarily for rule making related to “highly technical standards,” but the Department of Education is required by Congress to use neg-reg more often, especially in higher education. K-12 rules also occasionally require the use of neg-reg, such as for state accountability plans and the department’s guidelines on states’ use of federal funds.

Rick: Where did this come from?

Michael: In 1982, an obscure federal agency called the Administrative Conference of the United States (ACUS) suggested that the relationship between federal regulators and regulated parties was too adversarial, with parties merely positioning themselves to take any new rule to court as soon as it was finalized. The ACUS predicted improvement if both sides could sit at a table and work out their competing interests from the start. Thus, negotiated rule making was born.

Rick: How does negotiated rule making work?

Michael: Neg-reg originally focused significantly on rule makings related to “highly technical standards.” Just last year, for example, the U.S. Department of Transportation’s rule making on accessible lavatories on airplanes convened a group of industry representatives, disability advocates, and experts in accessibility research. In cases such as this, the affected parties are obvious, and the range of policy choices are limited. As a result, a well-executed negotiation could accommodate the needs of people with disabilities without requiring airlines to do something impossible or prohibitively expensive. As an outsider to that process, this seems to me to be an example of neg-reg working in a way that it can be successful—by allowing parties with competing interests the opportunity to negotiate and propose a reasonable outcome within a narrowly defined set of policy choices.

Rick: Does it work the same way over at the Department of Education?

Michael: Not quite. In most cases, Congress has allowed federal agencies to use neg-reg at their discretion if they feel that it would be a useful exercise. However, Congress has deemed that regulations relating to programs under Title IV of the Higher Education Act, which governs student loans, Pell Grants, and other issues, must be negotiated. Congress also mandates that certain parties must be involved in higher education rule makings, including “students, legal assistance organizations that represent students, institutions of higher education, state student grant agencies, guaranty agencies, lenders, secondary markets, loan servicers, guaranty agency servicers, and collection agencies.” Many of the key higher education stakeholder groups represent special-interest groups or ideologically charged advocates. While neg-reg for K-12 rule makings is not mandated with the same frequency, when it does happen, Congress requires representation from administrators, parents, teachers, paraprofessionals, and members of local school boards. Other relevant parties, such as taxpayers, may not have a chance to directly share their views and represent their interests.

Rick: What happens if all those groups don’t reach consensus?

Michael: Failure to reach consensus allows the department to go through the normal notice-and-comment regulatory process and write any regulation it would like. It’s quite a disincentive for the Department of Education to be collaborative.

Rick: If the Department of Education can do whatever it wants when negotiators disagree, why should people get involved?

Michael: The department has even less reason to compromise if few on the sidelines are actively engaged in the process. If the department does not anticipate much legal or public backlash, there might be little reason to give an inch, even if what they plan to do is quite radical. For example, consider higher education financing. Everyone has a stake in an affordable and accessible higher education system that ensures taxpayers are not on the hook for unreasonable costs or postsecondary education programs that provide little value back to the public. They should not expect such a system to simply materialize on its own though.

Rick: So, where does negotiated rule making fit in at the K-12 level?

Michael: At the Department of Education, neg-reg has been much more of a focus in higher education rule makings rather than K-12 or other closely watched efforts such as Title IX. Nevertheless, the Every Student Succeeds Act requires negotiated rule making for new rules on state plans for school accountability using their chosen standards and assessments. Neg-reg is also required if rules are developed related to ESSA’s “supplement, not supplant” provision, which specifies that federal funds must not be used to replace existing state funding for a program or service. The Obama administration conducted neg-reg on these issues in 2016; they were unable to finalize regulations on “supplement, not supplant,” but they were able to issue regulations on assessments.

Rick: How can educators, school leaders, parents, or local officials learn more about ongoing negotiations?

Michael: They should follow the negotiations by following the livestreams and watching for new information released by the department. They can then share what they learn with the communities they work with. Too many people are not even aware that these regulations are being developed, much less that they can have a say in the end result. By the time they find out, the rules have changed, and there’s nothing they can do.

Rick: Any advice on how people in schools and communities can help influence how the Department of Education writes all these rules and regulations?

Michael: It is true that the department has significant power here, and there should be more conversation about whether that is appropriate. However, people can and do have a real voice. Writing in public forums, contacting members of Congress, and submitting substantive and constructive comments to proposed rules when they are published by the Federal Register are all more helpful than people sometimes think. When it comes to rule makings, the department must write substantive responses to any specific critiques and concrete ideas for improvement they receive about a proposed rule. But it’s not enough to engage on one’s own. Educating peers and others in your community is just as important. Bottom line, educators and citizens should do anything they can to bring sunshine to these often very difficult-to-follow government machinations with significant real-world implications.

This interview has been edited and condensed for clarity.

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.

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