Negotiated Rulemaking for U.S. Higher Education Regulatory Policy: A Process of Deliberative Democracy?

Abstract

The rulemaking process through which higher education regulatory policy is created in the U.S. Department of Education has received critical attention in recent years. One concern is that this important policymaking process takes place in an agency of unelected officials, sometimes with the help of select interest groups. How, then, does this process maintain its democratic legitimacy? An important aspect of the process-known as negotiated rulemaking-may help to promote democratic legitimacy through open deliberations and broad stakeholder participation. Through the lens of deliberative democratic theory, this article draws on dozens of interviews and documentary data regarding a number of higher education regulations to analyze the ways in which negotiated rulemaking for U.S. higher education regulatory policy reflects (and does not reflect) aspects of deliberative democracy.

Research Use and Politics in the Federal Higher Education Rulemaking Process

“…This study addressed a gap in previous literature by documenting the forms of research use that have occurred in the higher education rulemaking process—a consequential educational policymaking process that requires some use of evidence (e.g., Belfield et al, 2018), but for which no previous studies have analyzed how research has been used in the process. This process is rather unique in that it involves open deliberation among policymakers and stakeholders via negotiated rulemaking (Natow, 2019), and many of the participants represent universities and other organizations that conduct research. As such, higher education rulemaking presents an optimal case for studying how research use and politics interact in a policymaking environment.…”

“…This rulemaking process for higher education follows a procedure that is governed by the Administrative Procedure Act, the Higher Education Act, certain executive orders, and other federal laws. This process (as described more fully in Kerwin & Furlong, 2015;Natow, 2017Natow, , 2019Office of the Federal Register, 2011 andPelesh, 1994) generally proceeds in the following manner: First, the Department of Education decides to create a new regulation. Unless a limited exception applies, the department must post a Notice of Proposed Rulemaking containing the details and language of the proposed regulation in the Federal Register.…”