What Is Negotiated Rulemaking at the US Department of Education?

Negotiated rulemaking (neg-reg) has now been used by administrations of both parties to enact major changes to Department of Education rules. The goal of neg-reg is consensus, and the agency's proposals and the conversations during the rulemaking sessions naturally determine whether that goal will be achievable with the parties at the table. To launch a negotiated rulemaking, the department must first notify the public that neg-reg will take place and on which topics. This might have resulted in more deliberately crafted rules or forced the rejection of more half-baked or politically fringe ideas. However, it has also forced administrations to spend the better part of a presidential term simply reversing what the previous administration did, with little opportunity for forward momentum. Congress should at least reconsider whether negotiated rulemaking is a net benefit when it next reauthorizes the Higher Education Act (HEA) and, more broadly, set a higher bar for the enactment of new regulations than for the repeal of failed ones.