The 2016 Election and Higher Education Rulemaking: Important Implications for Regulations Governing Financial Aid and Other Federal Programs

As the millions of college students who receive some form of federal financial aid head to campus this fall, the upcoming presidential election seems to be at the top of everyone’s mind. And with good reason. Among the many important implications of the outcome of the election is the future of the federal role in higher education, including federal policy regarding student financial aid. Federal regulations help to shape financial aid policy in important ways, and because these regulations are issued by the U.S. Department of Education – part of the executive branch whose leaders are presidential appointees – whether Hillary Clinton or Donald Trump becomes president is likely to have a profound influence on the trajectory of the regulations, as these candidates’ policy positions on higher education differ in important ways. My forthcoming book, Higher Education Rulemaking: The Politics of Creating Regulatory Policy (due out from Johns Hopkins University Press this fall), discusses the findings of extensive research I’ve conducted on the Department of Education’s rulemaking (i.e. regulation-creating) process. My findings demonstrate, among other things, that the president’s ideology and policy preferences toward higher education are reflected in final regulations that govern financial aid and other important federal programs relating to higher education.

First, my research indicates that the political institutions that exert meaningful influence over higher education rulemaking when high-profile regulations (such as the controversial Gainful Employment Rules) are under consideration include the White House, Congress, well-resourced interest groups, and political leadership in the Department of Education.  An example of how higher education regulatory policy can differ during different presidential administrations is illustrated by the evolution of incentive compensation regulations. These regulations govern the details of how and under what circumstances college recruiters can be paid based on contingencies such as how many students they enroll and how the students they recruit perform during college – a practice employed by a number of for-profit colleges and universities. A rule recognizing “safe harbors” for the allowance of incentive payments was issued during George W. Bush’s presidency, but then these “safe harbors” were substantially restricted during the early years of Barack Obama’s presidency. (Following litigation regarding the incentive compensation regulations brought by an association representing for-profit institutions, the Department of Education recently announced that it will not be enforcing some of these regulations.)

My research also demonstrates that party control of Congress may influence the higher education rulemaking process – something for voters to keep in mind in light of the fact that all House of Representatives seats and much of the Senate are up for election this November. It is Congress which passes the laws that the Department of Education implements through regulations. Thus, Congress can control not only the subject matter of higher education regulations, but also how much discretion the Department will have in implementing the law, depending on how vaguely or specifically the legislation is drafted.

In light of the importance of rulemaking for federal financial aid programs – and the importance of financial aid for college access and affordability – the future of higher education rulemaking is yet another important consideration for voters in the 2016 election.

Rebecca S. Natow is a senior research associate with the Community College Research Center at Teachers College, Columbia University. She is coauthor of The Politics of Performance Funding for Higher Education: Origins, Discontinuations, and Transformations and Performance Funding for Higher Education. Her latest book is Higher Education Rulemaking: The Politics of Creating Regulatory Policy.

The start of a new school year is upon us, and our authors have taken to the blog to discuss the past, present, and future of the education landscape in the United States and abroad. From administrative imperatives, to advice for parents, to student mental wellness, our authors will examine education from every angle. Check back with us for more from our JHU Press back-to-school series