Michael Porter is a partner with Miller Nash Graham & Dunn LLP, with offices in Oregon and Washington. You may contact him at Mike.Porter@MillerNash.com.

Almost every higher ed administrator is involved in federal government compliance efforts. Financial aid administrators must track and implement detailed Title IV regulations, and student life administrators must assess how specific Title IX guidance requirements are followed on their campuses. Security officials must stay attuned to the Clery Act and vagaries of the definitions of certain crimes and offenses. The list goes on and on.

Indeed, the costs of compliance-related work range from 7 percent of one school’s noncompensation operating budget to 11 percent of overall expenditures at another school, according to “Recalibrating Regulation of Colleges and Universities: Report of the Task Force on Federal Regulation of Higher Education.”

With the pending reauthorization of the Higher Education Act, a bipartisan group of U.S. senators created a task force of chief executive officers from a range of different types of institutions along with the American Council on Education. The senators charged the task force to review the state of federal regulatory requirements and provide recommendations for streamlining and consolidating regulations, as well as recommendations for eliminating overly burdensome and confusing regulations.

Report addresses challenges

To that end, the task force undertook a comprehensive review of the breadth of regulations and their costs to institutions. The task force report acknowledges the need for accountability with respect to expenditure of federal money but carries a theme that the expanded volume of formal regulations and related guidance undermines efforts to innovate on campus as well as efforts to address valid policies underlying the laws.

Among examples cited by the task force:

  • The Department of Education issued approximately 270 “Dear Colleague Letters” or other guidance documents to amend or clarify rules related to institutional compliance, resulting in a rate of more than one document per workday for the year of 2012.
  • The Clery Act and related guidance require more than 90 policy statements.
  • Higher ed positions that include the title of “compliance officer” have grown by 33 percent in the past 10 years.

The task force criticized the ED’s approach concerning regulation and enforcement. The ED can issue regulations interpreting statutes through negotiated rulemaking, in which it proposes rules, takes and evaluates comments concerning those proposed rules, and then issues final regulations. The task force found that the ED has increasingly moved to issuing informal guidance that has substantial policy implications — or even requirements — instead of relying on negotiated rulemaking.

In addition, the task force described how, when the ED has been challenged in court for overreaching through its informal guidance, the ED has continued to assert that its policy guidance must be followed — even after the courts rule against such guidance.

The task force was similarly critical of ED investigations and enforcement. Some compliance investigations have taken more than 10 years to complete, and fines for technical violations of unclear regulations or guidance are disproportionate to the errors.

The task force report also contrasted the short time that institutions often have to respond to inquiries from the ED as compared to the time that the ED has taken to provide information required by Congress. For example, six years ago Congress required that the ED develop a compliance calendar. But, six years later, the ED has yet to create that calendar.

The costs to institutions for compliance efforts, managing compliance reviews and enforcement take resources away from enhancing the institutions’ work and inhibit innovation, the task force concluded.

Report recommends guiding principles

The task force’s bipartisan congressional mandate as well as its comprehensive report resulted in a forceful statement that institutions of higher education can use when addressing concerns about the burdens of regulatory compliance.

While critical of the ED, the task force doesn’t take extreme positions. Instead, the task force recommended guiding principles for the ED’s development and enforcement of regulations, which include:

  • Ensuring that regulations are related to education, student safety, and stewardship of federal funds.
  • Using negotiated rulemaking and not regulatory guidance for substantive policies.
  • Ensuring that regulations are clear and comprehensible.

Further, the task force report includes a detailed matrix of regulations describing specific regulatory problems and recommending solutions.

The task force report provides substantive support for institutional efforts to educate congressional representatives and all of an institution’s constituencies that should understand how — in at least some, if not many, cases — regulation has clearly become overregulation. When this occurs, it creates disincentives to innovation as well as costs that inhibit educational efforts instead of ensuring the advancement of legitimate policy goals.

Student affairs professionals interested in advancing the conversation about the challenges associated with regulatory compliance should read the task force report and use its information and themes to support efforts to move toward a more effective regulatory environment for higher education.

Source: Campus Legal Advisor