A New Pattern of Listening to Comments

Are we seeing the advocates being cast out, or at least ignored, at the end of the Biden Administration?

Author

Phil Hill
January 09, 2025

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At the end of 2024, I wrote a post about the US Department of Education (ED) pulling back its plans to require attendance-taking (really reporting of academic activities across multiple platforms) for all online courses and programs. What was perhaps even more significant was the newfound willingness of ED to listen to public comments and to respond, as highlighted from the public notice of rules [emphasis added].

An accurate withdrawal date is critical to ensure that the right amount of unearned title IV aid is returned, and students’ accounts are properly reduced. However, we are persuaded by concerns about the need for continued development in these tools to make them consistently effective for this purpose, including the need for system interoperability. As such, we will not be finalizing this provision to provide more time to evaluate technological changes that can better track student engagement. The Department will continue to monitor the state of this tracking and may revisit this issue at a later date.

It turns out that this behavior was not isolated, as seen from the public notice by ED of its termination of rulemaking around Cash Management (specifically its efforts to gut Inclusive Access programs) [emphasis added].

The Department also has decided to terminate the negotiated rulemaking process on the third remaining regulatory area, cash management. While we discussed several regulatory changes to this topic, the most significant was a proposal addressing textbook billing practices. That issue generated significant discussion during negotiated rulemaking and from public commenters, among all the cash management proposals. We are persuaded by concerns raised during the negotiated rulemaking sessions about the need to gather additional data, assess evolving industry practices, and evaluate how policies related to the costs of books and supplies as part of tuition and fees best serve students and their use of financial aid.

In that same notice, ED terminated its rulemaking plans to gut State Authorization Reciprocity Agreements [emphasis added].

However, the Department has decided not to make any regulatory changes on the issues of accreditation, state authorization, and cash management at this time, to allow for additional evaluation of recent changes in other regulations and industry practices. This decision reflects the Department’s commitment to deliberative policymaking and consideration of feedback received during the negotiated rulemaking process, which highlighted the need for additional time and further study. Terminating the negotiated rulemaking process at this time will allow the agency to gather additional data, assess evolving industry practices, and evaluate whether existing regulations remain necessary or require modification.

New Pattern

Not only did ED back out of some very poorly-designed policy proposals, but it also appears to have listened to public comments and been persuaded for the need to adjust, gather more data, and figure out better approaches. This is a significant new pattern in ED’s rulemaking.

I checked the final rules in the Federal Register from ED for 2022 - 2024 for the topics we cover or indirectly cover (Financial Value Transparency, Financial Aid and Repayment, Program Integrity, Distance Education). In that three-year period I could not find a single case where ED said it was persuaded by public comments and adjusted or pulled back policy proposals. I found numerous cases of “the Department was not persuaded by these arguments,” or “we are not persuaded by commenters’ arguments.”

The issue at hand is not whether one thinks policy X or Y is right, it is whether ED actually listens to feedback and willingly considers if its policies need to be adjusted or withdrawn.

What we saw in late December was very different in tone and action. Why would ED change its approach at this stage?

One explanation is that the election is over, and ED insiders either want to appear reasonable for future opportunities or simply to acknowledge that the game is up.

Grima and Théoden Pulling Apart

But there may be a different explanation that can best be compared to a storyline in the Lord of the Rings trilogy. Grima is a longtime servant of King Théoden who changes by aligning with Saruman in an effort to control the kingdom - acting not an advisor but instead to manipulate the king for his own goals. In a key scene from The Two Towers, Grima is exposed and Saruman is cast out of his behind-the-scenes role, freeing up Théoden to become himself once again.

In many private conversations with people who directly interacted with ED both during the Obama and Biden Administrations, we have talked about the surprise of the hard line taken by insiders such as Under Secretary James Kvaal during the past few years. Not just with formal regulations, but also with guidance on Third Party Servicer expansion, the desire to rescind the bundled services exception, and the characterization of online education as predatory in nature.

We have written extensively at On EdTech about the unprecedented union of ED policy and activist-led policy recommendations, making it difficult to see the difference between the Arnold Ventures-funded coalition and ED itself.

But now, I note that the activists have not at all taken a similar conciliatory tone seen in ED’s recent decisions, or even demonstrated a willingness to listen to counter-arguments and adjusting views.

I’m seeing a lot of disappointment in the closure of many of ED’s actions in the past month or two. This post-election coalition letter did not mince words.

We write as a coalition of organizations representing students, consumers, veterans, and researchers to urge you to take immediate action to protect students and taxpayers from predatory for-profit online program managers (OPMs) by rescinding the 2011 Bundled Services Guidance. We are alarmed at the Department of Education’s failure to rescind the Guidance, which is inconsistent with the statutory ban on incentive compensation. [snip]

For three and a half years, the Department has failed to take the necessary steps to rein in OPMs’ predatory practices and to fix its own error in issuing the Guidance. As the Biden Administration considers its legacy in protecting students and families from predatory practices, it is time for the Department to take action to rescind the Guidance. This action will fulfill the Department’s duty to protect students and taxpayers from abuse.

AV’s Grima and ED’s Théoden could be on different paths. For the past 3+ years, the coalition has been guiding ED policy and its approach of rejecting any counter-arguments.

But now, it appears that Théoden is listening to the community and willing to ignore Grima.

Why Does This Matter?

There is an argument that even if I am right, it doesn’t matter due to the end of the Biden Administration. But I think it might matter in the future.

  • The Trump Administration appears to have similar views on accountability for academic programs, and to the degree that both sides are willing to listen to others and adjust plans, the more likely it is that we will get some bipartisan policy. I know, not very likely but one can hope.

  • Democrats will win the White House again, and I’m hoping that when that happens we will have a much more rational process of regulation that actually listens to the community and adjusts accordingly.

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