The Department of Education Needs a Researcher On Its Rule-Making Panel

How else can the agency gauge how colleges might respond to major changes in federal policies?

The U.S. Department of Education officially unveiled on Monday the membership committees for its spring 2019 negotiated rule-making sessions on accreditation and innovation. This incredibly ambitious rule-making effort includes subcommittees on the TEACH Grant, distance education, and faith-based institutions and has wide-ranging implications for nearly all of American higher education. If all negotiators do not reach consensus on a given topic (the most likely outcome), ED can write regulations as it sees fit. (For more on the process, I highly recommend Rebecca Natow’s great book on negotiated rule-making.)

The Department of Education is tasked with selecting the membership of negotiated rule-making committees and subcommittees by choosing people who are nominated to participate by various stakeholders. Traditionally, ED has limited the positions to those who are representing broad sectors of institutions (like community colleges) or affected organizations (like accrediting agencies). But given the breadth of the negotiations, I felt that it was crucial for at least one researcher to be a negotiator.

I heard from dozens of people both online and offline in support of my quixotic effort. But ED declined to include any researchers in this negotiated rule-making session, which I find to be a major concern.

Why is the lack of an academic researcher such a big deal? First of all, it is important to have an understanding of how colleges may respond to major changes in federal policies. Institutional stakeholders may have a good idea of what their college might do, but may be hard to honestly explain unintended consequences when all negotiations are being livestreamed to the public. Including a researcher who is not representing a particular sector or perspective provides the opportunity for someone to speak more candidly without the potential fear of reprisal.

Additionally, the Department of Education’s white papers on reform and innovation did not demonstrate full knowledge of the research on the areas to be negotiated. As I told The Chronicle of Higher Education:

“In general, ED didn’t do an awful job describing the few high-quality studies that they chose to include, but they only included a few quality studies alongside some seemingly random websites. If one of my students turned in this paper as an assignment, I would send it back with guidance to include more rigorous research and fewer opinion pieces.”

Including a researcher who knows the body of literature can help ensure that the resulting regulations have a sound backing in research. This is an important consideration given that the regulations can be challenged for either omitting or misusing prior research, as is the case with Sandy Baum’s research and the gainful employment regulations. Including a researcher can help ED get things right the first time.

In the future, I urge the Department of Education to include a spot in negotiated rulemaking committees for a researcher. This could be done in conjunction with professional associations such as the American Educational Research Association or the Association for Education Finance and Policy. This change has the potential to improve the quality of regulations and reduce the potential that regulations must be revised after public comment periods.

The only alternative right now is for someone to show up in Washington on Monday morning—the start of the semester for many academics—and petition to get on the committee in person. While I would love to see that happen, it is not feasible for most researchers to do. So I wish negotiators the best in the upcoming sessions, while reminding the Department of Education that researchers will continue to weigh in during public comment periods.

[Cross-posted at Kelchen on Education]

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Robert Kelchen

Robert Kelchen, an associate professor of higher education in the Department of Education Leadership, Management, and Policy at Seton Hall University, is data manager of the Washington Monthly College Guide.