How Politics Shapes the Making of Higher-Education Regulations

The Education Department has been criticized for its heavy use of rule making to advance the Obama administration’s policy priorities — in particular, holding for-profit colleges accountable. But now many observers expect at least some of those efforts to be curtailed or ended under the incoming Trump administration.

To help make sense of this evolving landscape, The Chronicle spoke with Rebecca S. Natow, whose book, Higher Education Rulemaking: The Politics of Creating Regulatory Policy (Johns Hopkins University Press, 2016) was released last week. The conversation with Ms. Natow, a senior research associate with the Community College Research Center, at Columbia University’s Teachers College, has been edited and condensed.

Q. One of the main examples you follow in your book is the controversial gainful-employment rule. What lessons do you draw from this very contested, drawn-out rule-making process?

A. The for-profit higher-education sector, in particular, was very interested in opposing the gainful-employment rules, and so they spent a lot of money, a lot of energy, a lot of time, trying to influence that process. They participated in negotiated rule making, they sent comments during the notice-and-comment period, they made their voices heard about this.

We also saw some Republican lawmakers speaking out about the gainful-employment rules, in some cases calling them an example of overreach of the Department of Education’s authority.

Negotiated rule making did not result in consensus, and so the department was permitted to come up with the language of the proposed rule on its own. But you could definitely see where there was some influence from the for-profit sector, because the final language wasn’t as strong of a regulation as was initially being talked about.

Q. The Education Department’s considerable use of rule making under President Obama has received a lot of criticism. Do you think that’s fair?

A. You would need to look at every rule on its own, determining whether it’s something that is fairly implementing the statute. Depending on the ideology of whatever administration is in power at the time, you’ll see very different rules coming out, so that illustrates the political nature of rule making.

The regulations of the for-profit sector are a good example of that. We saw some regulations during the Bush administration that were somewhat favorable to the for-profit higher-education sector, for example regulations concerning incentive compensation for college recruiters. Then, when the Obama administration took over, there was a rollback of some of those rules.

Now we’re going to have a Republican administration coming in. Obviously the Trump administration has some deep ties to the business community. And the incoming designate for secretary of education [Betsy DeVos, a school-choice advocate] has embraced some market-based education policies at the K-12 level. I would expect to see some more favorable regulations for the for-profit sector.

Q. How effective is rule making as a form of policy making if it can be made and unmade so easily, depending on which party’s in power?

A. It’s very effective, as evidenced by the fact that some of these institutions are seeing their very existence being threatened by these regulations. It’s true that you do see some back and forth in terms of what the regulations say, but there is a whole process that the department needs to go through in order to get the regulations passed.

It’s an involved process, and it does take a bit of resources. It will have input from the public, and from interest groups and associations; they’ll participate in negotiated rule making, and Congress will weigh in.

So at the end of the day, it’s not as easy as it seems, even though the content does sometimes go back and forth depending on who’s in power. To a certain extent, we see that with legislation as well, so I don’t think it’s very different from that.

Q. How much of the Obama administration’s reliance on rule making was the result of being in a situation where getting legislation through just seemed impossible?

A. When you have a situation in recent administrations of divided party control — so during the Bush administration, at the very end when Congress was controlled by Democrats, and then during the Obama administration, when Congress was largely controlled by Republicans — divided party control and polarization can prevent legislation from going through.

But interestingly, in those two instances, I did notice a slight uptick of higher-education rules that were coming through. That could be an indication that policy is being made through the rule-making process during times when it’s particularly difficult to get legislation through Congress.

Q. Do you see evidence that Democrats tend to be more in favor of regulation in general?

A. One of the things I looked at in higher-education rule making over the past 25 years was how often you would see new rules issued depending on which party is in power. So I looked at presidential administrations, but I also looked at party control of Congress.

There were more initial rule makings on an average annual basis when you had Democrats under united party control, and there was the least amount of new rule making when you had Republicans with united party control. So that’s an indication that at least as far as new regulations are concerned, the Democratic Party, when they’re in control, would be inclined to create more rule makings than the Republican Party.

I do, however, have reason to believe that that will be different during the forthcoming era of united Republican Party control. One of those reasons is because there are some regulations on the books that are not favorable to the for-profit higher-education sector. I think that the new administration would be interested in doing some new rule making to change that.

The other reason is because there is going to likely be a reauthorization of the Higher Education Act coming up pretty soon — it’s overdue to be reauthorized — and my research found that after there is a reauthorization, there does tend to be a big spike in the number of new higher-education rules.

Beckie Supiano writes about college affordability, the job market for new graduates, and professional schools, among other things. Follow her on Twitter @becksup, or drop her a line at beckie.supiano@chronicle.com.