Wednesday, August 2, 2017

Opportunity for Public to Participate in the Direction of U.S. Department of Education

Nora Gordon and Eloise Pasachoff penned a new essay in Edweek.  They implore the public to go back to the basics and engage the notice and comment process that dictates the development of federal policy.  For all the objectionable things Secretary DeVos has done or promoted since taking the job, the public push back has primarily been in newspapers. While newspapers provide a means for political accountability, the administration is completely free to ignore them.  What the administration must, however, address are the comments that individuals and groups make as part of the formal notice and comment period surrounding changes in federal regulations and guidance.

Gordon and Pasachoff remind us that in February, "President Donald Trump called on federal agencies to review their regulations and identify which to cut."  DeVos is now digging into that work and has "issued a notice in the Federal Register asking the public to identify 'unduly costly or unnecessarily burdensome' regulations and guidance documents by submitting comments to the Education Department by Aug. 21."  This process, however, can be used to do more than target those policies that need to be eliminated, it can be used to focus on things that must be kept (because others will certainly be calling for elimination).

Gordon and Pasachoff note various recent changes that the public might comment on, including the "roll[] back [of] Obama administration’s civil rights protections for transgender students; . . . freezing the implementation of the Obama-era borrower-defense-to-repayment rule, which would shield borrowers from having to repay debt accrued at institutions of higher education that lured them with substantially false information; . . . state ESSA plans[; and] . . . indications that [the Department] intends to change course on the Obama administration’s framework for addressing sexual assault on campuses."

Not only do the comments that the public makes require some response (if if only internal to the Department), they require a "cost-benefit analysis to make sure that rules are for the common good."

Gordon and Pasachoff offer these directions on engaging the process:

The more specific you can make your comments, the better. You can find the Education Department’s existing regulations at Title 34 of the electronic version of the Code of Federal Regulations, and the significant guidance documents are also available online. Explain what you like, referring to specific language. Offer language on desired changes, citing provisions by number. Alternative policy solutions are welcome. You can submit comments on both regulations and guidance online (at docket number ED-2017-OS-0074-0001) by the strict deadline of Aug. 21.

Read the full essay here.

http://lawprofessors.typepad.com/education_law/2017/08/opportunity-for-public-to-participate-in-the-direction-of-us-department-of-education.html

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