The U.S. Department of Education officially unveiled on Monday the membership committees for its spring 2019 negotiated rulemaking sessions on accreditation and innovation. This incredibly ambitious rulemaking 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 rulemaking.)
The Department of Education is tasked with selecting the membership of negotiated rulemaking committees and subcommittees by choosing from among people who are nominated to participate by various stakeholders. Traditionally, ED has limited the positions to those who are representing broad sectors of institutions (such as 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 rulemaking 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 (see here and here) 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.
Robert Kelchen 
I am less optimistic about having a designated slot for a researcher on neg-reg panels. I have seen enough blogs by researchers claiming expertise, who then exhibit none. Dedicating a position does nothing to assure your desired outcome.
Furthermore, I doubt that professional organizations would be comfortable in a vetting role. Nor are they likely to be sufficiently nimble in generating a response.
There is a workaround, one that worked in several organizations for which I worked. I stayed informed about pending participation by members of the administration, prepared a brief for their consideration, and then personally lobbied them on specific issues.
This approach also has the benefit of guidance coming from someone others on the panel are likely to see as a peer and who speaks the language of the other members.