Regulations that govern the implementation and administration of federal programs and policies under the Higher Education Act are created through the higher education rulemaking process. In my book, “Higher Education Rulemaking: The Politics of Creating Regulatory Policy” (recently published by Johns Hopkins University Press), I provide a comprehensive description of this important policymaking process, including the actors who have meaningful influence over the process, the ways in which surrounding contexts and ideologies influence higher education regulations, and the manner in which technology has been used during different stages of the process. In the following excerpt from my book, I explain how certain rulemakings – the Gainful Employment Rules of 2011 and 2014 – exemplify many of the factors that influence the higher education rulemaking process:
The higher education rulemaking procedures that are chronicled throughout this book — the Gainful Employment Rules and the unfinished Student Outcomes and Accreditation Rule — are in many ways emblematic of the findings of this study. The first Gainful Employment Rule, which focused largely on the accountability of for-profit institutions, was initiated after a new administration came to power — a Democratic administration following eight years of a Republican presidency. The for-profit sector mobilized to oppose the rule, and in doing so it actively sought information about the rule, participated in negotiated rulemaking, and made its position widely known (Gorski, 2010; Program Integrity Issues, 2010; researcher’s interviews). As a high-profile rulemaking, the first Gainful Employment Rule garnered the attention of members of Congress (Office of Representative Glenn W. Thompson, 2010; Office of Senator Bernie Sanders, 2010; researcher’s interviews). A very large number of comments were made in response to the NPRM during the notice-and-comment phase of the rulemaking via the Regulations.gov Internet site, which had been in use by the Office of Postsecondary Education for only a few years at that time. Some policy actors felt that the final Gainful Employment Rule reflected beliefs that the involvement of business interests in higher education should be limited (see, e.g., Nolter, 2012). After the rule became final, it was legally challenged, and part of the rule was ultimately nullified in court (APSCU v. Duncan, 2012; Nolter, 2012). Later, the same presidential administration underwent another rulemaking procedure to develop the second Gainful Employment Rule (Program Integrity: Gainful Employment, 2014), which faced its own court challenge (Devaney, 2014).
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These [and other] cases demonstrate how policy actors, their beliefs, and surrounding contexts can influence the initiation of rulemaking, the behavior of actors in the higher education rulemaking process, and the ultimate outcome of the rulemaking procedure, whether it be the particular content of the final regulations or whether a regulation gets issued at all. But these rulemakings also underscore another important point: that the outcomes of the higher education rulemaking process can have enormous stakes for postsecondary students as well as institutions.
With a new presidential administration beginning in January 2017 – one that will, in all likelihood, have a different perspective on higher education policy than the outgoing administration – and the Higher Education Act due for reauthorization, there will likely be a number of new higher education regulations created through the rulemaking process in the near future. The factors that influenced the Gainful Employment Rules will probably influence forthcoming rulemakings as well. Interested parties should observe the rulemaking process and keep these factors in mind if they wish to have their own influence on rulemaking outcomes.
Rebecca S. Natow is a senior research associate with the Community College Research Center at Teachers College, Columbia University. She is coauthor of The Politics of Performance Funding for Higher Education: Origins, Discontinuations, and Transformations and Performance Funding for Higher Education. Her latest book, Higher Education Rulemaking, is available now.
Association of Private Sector Colleges and Universities v. Duncan. Memorandum Opinion. Civil Action 11<H>1314 (RC) (D.D.C. 2012).
Devaney, T. (2014, November 6). Colleges sue feds over “gainful employment” rule. The Hill Newspaper. Retrieved from http://thehill.com/regulation/court-battles/223218-private-schools-challenge-unlawful-college-rules-in-court.
Gorski, E. (2010, September 24). Govt. delays rule opposed by for-profit colleges. Associated Press Online. Retrieved from Lexis-Nexis Academic.
Nolter, C. (2012, July 5). For-profit colleges win in court, face new uncertainty. The Deal Pipeline. Retrieved from Lexis-Nexis Academic.
Office of Representative Glenn W. Thompson. (2010, September 29). Thompson rallies with students for education rights. Retrieved from http://thompson.house.gov/press-release/thompson-rallies-students-education-rights.
Office of Senator Bernie Sanders. (2010, September 10). Senators call for “gainful employment” Dept. of Education rule. Retrieved from www.sanders.senate.gov/newsroom/news/?id=4555fcd2-0c9d-4fd4-8774-68fda030eb20.
Program Integrity: Gainful Employment: Final regulations, 79 Fed. Reg. 64890 (2014) (to be codified at 34 C.F.R. pts. 600 and 668).
Program Integrity Issues: Notice of proposed rulemaking, 75 Fed. Reg. 34806 (2010).