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Focus on Regulation, Not Just Legislation

Note: This week, Deven Carlson, an Assistant Professor of Political Science at Oklahoma University, is guest-blogging. His work explores education policy and politics.

The education policy community waited with breathless anticipation throughout much of 2015 to see if the Elementary and Secondary Education Act (ESEA) would be reauthorized. In the end, Congress ultimately passed the Every Student Succeeds Act (ESSA), which President Obama signed into law on December 10, 2015. After a few weeks of parsing the statutory language—figuring out was and wasn't in the law—most folks started to lose interest and turned back to their pet issues and debates. Ironically, it was just at the time that many folks were losing interest in ESSA that the actual policy details started to be determined. Despite the law being passed several months prior, the policy details started to be hammered out in March 2016 when the ESSA Negotiated Rulemaking Sessions began.

Many peoples' eyes start to glaze over when they hear terms like negotiated rulemaking, notice of proposed rulemaking, and other seemingly arcane and technical aspects of the regulatory process. Folks often assume that these processes just make sure that all the i's are dotted and t's are crossed—they think that all of the important policy details must have been addressed during the legislative process. And Congress certainly could choose to specify every little detail in the legislation. But legislators have enormous flexibility in choosing which details they specify statutorily and which they leave for the bureaucracy to determine via the regulatory process. More often than not, Congress elects to delegate substantial authority to determine policy details to the bureaucracy, especially when a topic is controversial or when an issue is technical or complex and the bureaucracy holds valuable expertise.

As an example of the importance of regulation, the statutory language authorizing Race to the Top (RTTT) ran less than 10 pages. In contrast, the final rule specifying the details and selection criteria for the grant competition covered nearly 150 pages of the Federal Register. As for the incentives to adopt Common Core (or other college- and career-ready standards)? The development of principal and teacher evaluation systems? The implementation of statewide longitudinal data systems? None of these issues were ever specifically mentioned in the authorizing statute. Rather, they were determined by personnel at the U.S. Department of Education (USED) and given the power of law via the regulatory process.

Before going any further, it might be helpful to give a quick, surface-level primer on the regulatory process. This process commences when an initiating event prompts an agency to begin the rulemaking process. In education, major legislation like ESSA is a common initiating event, but these events can also include lawsuits, OMB directives, or even just new agency initiatives. The agency then goes through the process of determining whether a rule is needed and—assuming it concludes one is necessary—takes steps to develop a proposed rule.

Agencies have significant flexibility in how they conduct the process of developing a proposed rule. They can develop the rule entirely in-house, they can solicit external information to inform rule development via an Advanced Notice of Proposed Rulemaking (ANPRM), or they can convene a group of stakeholders to develop a rule in a process known as Negotiated Rulemaking. After finalizing the proposed rule, the agency publishes it and solicits public comments, considers and responds to those comments, and then prepares a final rule. Upon completion of OMB review, the final rule is published and at that point it carries the force of law.

Scholars of education policy and politics have devoted considerable effort to understanding federal education policy from a legislative perspective. We have great analyses of No Child Left Behind, and terrific work on ESSA is sure to come in the near future. However, we have paid very little attention to analyzing policy made via the regulatory process. How has the regulatory activity of USED changed over time? Do regulations cover a wider range of issues and topics than they did 5, 10, or 25 years ago? How many and which interest and advocacy groups comment on proposed rules? What do those comments say? Do they seem to have any effect on the substance of proposed regulations? We haven't paid enough attention to the regulatory process to answer even fairly basic questions like these.

As something of an aside, several foundations and scholars have expressed interest in assessing the use of evidence in the policymaking process. These assessments seem to generally conclude that evidence has relatively little influence in this process. However, these conclusions are largely based on analyses of the legislative process. In my view, evidence seems much more likely to influence the substance of regulations, where the issues at hand are often more technical and less visible. Indeed, evidence is unlikely to convince a legislator whether or not to support requiring test-based accountability systems in legislation. It is much more likely, for example, to influence whether regulations allow those systems to consider both student achievement levels and student achievement growth, or just levels. The use and influence of evidence in the education regulatory process is something I plan to study in the near future.

With many things in life, the devil is in the details. In other words, the most boring and mundane things can ultimately prove to be among the most important. It is much more fun to shop for cars and look for the heated seats and a sunroof than it is to open the hood and check the condition of the alternator or the timing belt. Regulations are the alternators and timing belts of the policymaking process, and it is time for us to open the hood and get a better understanding of the condition they're in.

--Deven Carlson

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