How Uncle Sam writes the rules for schools (Opinion)

One of the most important but least understood aspects of federal education policy is “negotiated rule-making,” a process the US Department of Education uses to develop regulations that transform the government. legislation into actual policies that affect schools and classrooms. Especially with topics ranging from Title IX to school discipline in the spotlight, I thought it was worth taking a look at how it all works. For the inside scoop, I turned to Michael Brickman, a former senior adviser in the US Department of Education, where he led several major higher education regulatory reforms. Here is what he had to say.

– Grinding wheel

Grinding wheel: What is negotiated rule making?

Michael: Negotiated rule making, also known as “neg-reg”, is a process that takes place before a new settlement is proposed. It allows regulated parties and regulators themselves to sit around a table and determine their competing interests, before the rules are formalized and made public. Neg-reg was designed primarily for rule making related to “highly technical standards,” but the Education Department is required by Congress to use neg-reg more often, especially in higher education. K-12 rules also sometimes require the use of neg-reg, such as with state liability plans and department guidelines on state use of federal funds.

Grinding wheel: Where does it come from?

Michael: In 1982, an obscure federal agency called the United States Administrative Conference (ACUS) suggested that the relationship between federal regulators and regulated parties was too confrontational, with parties simply positioning themselves to take any new rule to court as soon as it came up. ‘it would be finalized. . ACUS predicted improvement if both sides could sit down at a table and define their competing interests from the start. Thus, the development of negotiated rules was born.

Grinding wheel: How does the development of negotiated rules work?

Michael: Neg-reg originally focused significantly on rule making related to “highly technical standards”. Last year, for example, the development of the U.S. Department of Transportation’s rules for accessible toilets on airplanes brought together a group of industry representatives, disability advocates and research experts on the accessibility. In cases like this, the parties involved are obvious and the range of policy choices is limited. As a result, well-conducted negotiation could meet the needs of people with disabilities without forcing airlines to do something that is impossible or prohibitively expensive. As a stranger to this process, this strikes me as an example of a neg-reg operating in a way that can be successful – allowing parties with competing interests the opportunity to negotiate and come up with a reasonable result in a tightly knit package. defined of political choices.

Grinding wheel: Does it work the same way at the Ministry of Education?

Michael: Not enough. In most cases, Congress has allowed federal agencies to use neg-reg at their discretion if they feel it would be a worthwhile exercise. However, Congress has ruled that program regulations under Title IV of the Higher Education Act, which governs student loans, Pell grants and other matters, need to be negotiated. The Congress also gives mandate that certain parties should be involved in shaping the rules of higher education, including “students, legal aid organizations that represent students, higher education institutions, public student grant agencies, guarantee agencies, lenders, secondary markets, loan officers, guarantee agency agents and collection agencies. Many of the major stakeholder groups in higher education represent special interest groups or ideologically charged advocates. Although neg-reg for making K-12 rules is not mandatory with the same frequency, when it does occur, Congress requires representation of administrators, parents, teachers, paraprofessionals and members of local school boards. Other affected parties, such as taxpayers, may not have the opportunity to directly share their views and represent their interests.

Grinding wheel: What if all of these groups fail to come to a consensus?

Michael: In the absence of consensus, the ministry can go through the normal regulatory notice and comment process and draft any regulations it wishes. It is rather dissuasive for the Ministry of Education to collaborate.

Grinding wheel: If the education ministry can do what it wants when negotiators disagree, why should people get involved?

Michael: The department has even less reason to compromise if few people on the sidelines are actively engaged in the process. If the department doesn’t anticipate a lot of legal or public backlash, there might be little reason to give in, even if what it does plan to do is pretty drastic. For example, consider the funding of higher education. Everyone has a stake in an affordable and accessible higher education system that ensures taxpayers are not exposed to unreasonable costs or post-secondary education programs that provide little value to the public. However, they shouldn’t expect such a system to simply materialize.

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

Michael: At the education ministry, neg-reg has focused much more on developing the rules of higher education rather than Kindergarten to Grade 12 or other closely watched efforts such as Title IX. Nonetheless, the Every Student Achievement Act requires the development of negotiated rules for new rules on state plans for school accountability using the standards and assessments chosen. Neg-reg is also required if rules are developed regarding the ESSA’s “deputize, do not supplant” provision, which specifies that federal funds are not to be used for. to replace existing public funding for a program or service. The Obama administration conducted a neg-reg on these issues in 2016; they could not finalize regulation on “complete, not supplant”, but they were able to issue valuation regulations.

Grinding wheel: How can educators, school leaders, parents or local officials find out more about the ongoing negotiations?

Michael: They should follow the negotiations by following live broadcasts and on the lookout for new information released by the ministry. They can then share what they learn with the communities they work with. Too many people don’t even know these regulations are being developed, let alone that they can have a say in the end result. By the time they find out, the rules have changed and there is nothing they can do.

Grinding wheel: Do you have any advice on how people in schools and communities can help influence how the Department of Education writes all of these rules and regulations?

Michael: It is true that the department has significant power here, and there should be more discussion as to whether this is appropriate. However, people can and do have a real voice. Write in public forums, contact members of Congress, and submit substantive and constructive comments on proposed rules when they are posted by the Federal Register are all more useful than you sometimes think. With respect to rule-making, the ministry should draft substantive responses to any specific criticisms and concrete ideas for improvement it receives about a proposed rule. But it is not enough to do it alone. Equally important is educating peers and other members of your community. Ultimately, educators and citizens alike should do all they can to shed some light on these often very difficult government machinations to follow with significant real-world implications.

This interview has been edited and condensed for clarity.

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