Stemming the rising tide of regulation

Stemming the rising tide of regulation

Freeland, Richard M

The U.S. General Accounting Office recently confirmed what every campus administrator knows only too well: Federal regulation is growing at an alarming rate. Between April 1, 1996, and September 30, 1999, U.S. government agencies issued 15,280 regulations. Of this number, 222 were defined as “major rules,” each costing the country more than $100 million per year. In 1999 alone, the Environmental Protection Agency (EPA) issued 701 final rules-almost two per day-including six major rules.

Clearly, government regulations can and have had great bene fits. Many once-controversial regulations have had a positive impact-even if the regulations themselves are complex and costly, e.g., Title IX, Title VI of the Civil Rights Act, and the Americans with Disabilities Act (ADA). But despite potential benefits, federal regulation of higher education has grown exponentially in recent years, sending institutional costs and liability soaring.

Who’s Behind It?

The blame for increased regulation can be widely shared. Congress often imposes regulatory burdens in the legislation that it passes. Federal agencies do not always seek the simplest, most direct way to regulate. The Executive Branch often finds it easier to impose regulations (sometimes through Executive Orders) than to get legislation enacted.

In its closing days, the Clinton administration launched a flotilla of new regulations. Popularly known as “midnight regulations,” these dealt with everything from “ergonomics” to “blacklisting” to carbon dioxide emissions. Not all of them took effect; Congress killed some and others were withdrawn by the Bush administration. Some took effect and are awaiting judicial challenge.

It’s easy to blame Democrats for regulation. But both Republicans and Democrats are willing to regulate higher education, and efforts to eliminate existing regulations face a tough road. For example, despite its promises, the Reagan administration did not loosen federal constraints. It reduced enforcement, but the regulations remained on the books, like bombs set to detonate at some distant and unknown time. Moreover, regulatory expansion began to grow during the first Bush administration. The ADA, for example, was born in this period.

Now, as higher education’s importance to national well-being grows, so too does the amount of regulation we face. One prevailing view in Washington is that higher education is too important to be left to educators. Another point of view maintains that higher education’s prominence is all the more reason it should be watched more closely. As a result, higher education’s institutional associations, especially the American Council on Education, spend more time worrying about federal regulations than ever before. Indeed, sometimes we spend more time worrying about regulations than about anything else.

The impact of increasing regulation at the institutional level is equally striking. Like it or not, colleges are now governed by a complex network of dimly understood requirements. These rules command large amounts of attention and make campuses vulnerable to serious sanctions for transgressions that may occur far beyond presidential purview.

Casting a Wide and Lasting Net

Colleges face regulation on a wide array of issues. In fact, because we are so diverse, we are regulated on more issues than virtually any other industry. But, in general, federal regulation of higher education falls into two basic types: rules from the Department of Education and those emanating from every other federal agency.

Regulations from the Department of Education are aimed specifically at colleges, and often reflect the department’s intimate knowledge of institutional operations. But the department has been increasingly breaking ground in areas that it has not previously regulated. In the last year alone, new regulatory precedents have been set with respect to requiring colleges to take student attendance and imposing federal rules on the expenditure of institutional student aid.

Regulation of colleges by the Department of Education may be more sweeping than most presidents realize. For example, until last year, colleges were required to inform the federal government each time they changed a trustee. In addition, department regulations also affect more campus administrators than most realize. Many of these folks are relatively low-level employees who can get schools into a whole lot of trouble pretty quickly.

As for regulations from other federal agencies, higher education often falls victim to collateral damage. Regulations focused on other industries or concerns can easily affect colleges because we are large employers, we have power plants or telephone systems, or any number of other reasons. These noneducation regulations are often much more financially costly than those promulgated by the Department of Education. However, they are unlikely to affect the central mission of the university the way that education regulations do. The EPA, for example, rarely impinges on the academic enterprise; the Department of Education does it all the time.

Once established, federal regulations rarely melt away. Consider a requirement created in 1986 regarding money received from foreign sources. Colleges and universities are required to inform the Department of Education of every gift or contract worth more than $250,000 that they receive from foreign citizens, governments, or corpora

RICHARD M. FREELAND is president of Northeastern University and Chair of ACE’s Commission on Government and Public Affairs. TERRY HARTLE is senior vice president, government and public affairs. at the American Council on Education. The authors would welcome reactions from readers.

Copyright American Council on Education Fall 2001

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