Negotiating Public Policy

In a recent blog (The Exclusionary Language of Public Policy), Dr. Jill Creighton offered a primer of often utilized terms as a means to demystify and promote understanding of the public policy landscape. As national and state policies impact all facets of our work in higher education, it is important that those interested in serving as agents of change have an understanding in how policies are influenced, shaped, and created. In the spirit of making policy more accessible, this blog will focus on regulatory guidance.

Dr. Creighton’s blog briefly refers to the School House Rock video famously detailing the lengthy legislative lifecycle from idea to signature of the executive along with the perils found throughout this process. After threats of dying in committee, failing to pass either legislative chamber, and surviving a presidential veto, the well-known cartoon ends with a legislator enthusiastically announcing, “He signed you Bill. Now you’re a law.”

While this School House Rock cartoon ends in triumph, for most legislation the signature of the president is not the ending, but the beginning of a regulatory process. Enacted legislation is directed to agencies, commissions, or boards (such as the Office for Civil Rights in the Department of Education) charged with enforcement of the law. Receiving agencies often create regulatory guidance from the legislation through a process known as rulemaking. The agency’s proposed rule(s) are publicly posted in the Federal Register for a proscribed period (often 30-60 days) to allow for feedback from interested parties. Public comments from this Notice of Proposed Rulemaking (NPRM) process are reviewed by the agency prior to implementing a final rule. Rules are implemented through this rulemaking process by agencies as outlined in the Administrative Procedure Act and have the same legal effect as statutes passed by the legislature.

This process received much attention when Secretary DeVos and Department of Education’s invitation of NPRM received over 124,000 public comments on the proposed Title IX regulations in 2020. The resulting final rule was 2033 pages due in part to the requirement for the Department to respond to these comments and how they were resolved in the final regulations. While President Biden’s March 8 Executive Order requests Secretary Cardona and the Department of Education to review regulations, policies, and guidance to ensure “all students should be guaranteed an educational environment free from discrimination on the basis of sex, including discrimination in the form of sexual harassment, which encompasses sexual violence, and including discrimination on the basis of sexual orientation or gender identity,” the recourse to amend the Title IX regulations formulated through the 2020 rulemaking process will require either legislative action (which is complicated due to the narrow majority of the Democratic Party in the Senate) or a new Notice of Proposed Rulemaking process initiated by the Department of Education. Processes to amend existing Title IX regulations will not be swift.     

As you can see, even this greatly abridged explanation of the rulemaking process would challenge even the most deft and creative lyricist; this is likely why where there isn’t a companion “I’m Just A Rule” School House Rock video to share. With that stated, however, the Federalist Society does offer a short video that details the similarities and differences between statutes and rules. This 30,000 foot overview only touches the surface of the complexity of the agency guidance and the rulemaking process. If you are interested in learning more about the specifics of the rulemaking process, the Federal Register offers this helpful guide.

I will conclude with one final thought offered as a paraphrase of former Speaker of the House Tip O’Neill: All policy is local. While much attention is often focused on the national policy landscape, it is critical to remain actively engaged and grounded in the policies of your state, commonwealth, or territory. If you are not certain where to begin, the Library of Congress Law Library offers a useful resource page, and please feel free to reach out to your Public Policy Division regional representative or NASPA policy and advocacy staff, we are here to help!