Blog Post: No Consensus … No Wonder

By Kevin Kuzma, Editor

Those of you who are no strangers to business travel understand how being on the road amplifies your sense of time – and time wasted.

For example, during a five-hour layover in, say, Detroit, when you’re away from your family, it's hard to avoid a prolonged sense of waiting and wasted time when you realize how much faster a direct flight would have been.

With that same heightened awareness of waiting and obvious waste, I sat through days of negotiations of the Department of Education's negotiated rulemaking committee session on the gainful employment rule. From the opening moments of the first committee session on Sept. 9, it was clear the department had neither committed enough time to the matter nor found a concept that its panel members could forward in good stead.

By lunch time on Day One – the first of what was planned to be two sessions over a period of two months, and later became three – the committee had only managed to finish its agenda for its planned discussions. More than four hours were spent reviewing the rules of engagement for discussions, as well as nominations for new representatives to the committee, and making a list of what the committee would discuss. The panel only came to agreement on those matters at the behest of the committee moderator, who thankfully was congenial enough that he gave the meetings a slight touch of game-show flare.

So last week, when the third and final session of the department's negotiated rulemaking committee wrapped up without consensus, it was apparent the department had failed in almost every aspect of the negotiations, from panel selection to the time allotted. The insufficient planning created the perception – or is more like reality – that the committee was just for show – merely convened to give the career college sector and community colleges the perception that their views were being taken into consideration in the rule's final arrangement. But all along, the department's plan was to press on with its own draft. The panel is not required to listen to the ideas and concepts that negotiators suggested during the three committee meetings.

Following Friday's conclusion of the negotiation sessions, the department will submit its own final draft of the regulations for public comment. But, according to a report from Inside Higher Education, a department representative said it would "try to incorporate some of what they heard."

The problem is that there was a great deal of suggestions and possible answers for setting standards for vocational programs at for-profit institutions and community colleges. But given the way the committee was arranged and the half-hearted approach to truly gain consensus, the department's promise feels like an empty one.

As noted in a communication from the Association of Private Sector Colleges and Universities, there was not an officially recorded vote of supporters and opponents, rather it was noted that consensus was not reached. Some negotiators left before the vote was called. How can career colleges seriously count on this committee or even take the rule seriously when so many panelists couldn't agree on the need or concept of the rule, let alone how it would be formally drafted?

The discussion among panel members was so divergent, the sessions were like watching a seller of an overpriced used car refusing to find a middle ground with a hesitant buyer.

Regardless of whether or not its intentions were legitimate or for show, the department is essentially a political entity, and has shown it is not above posturing for the advancement of its own concepts it believes is for the betterment of higher education in general. The department believes in this rule and is insistent on its implementation. The rest of us see it as a flawed in concept, nearly impossible to actualize, and damaging to schools when it does come to fruition.

No one is going to miss the negotiated rulemaking sessions. Not the panelists, not educators, not those of us covering it. No one enjoys such a dull and fruitless loss of time, except maybe the officials who will spend the next few months in the belly of the Department of Education’s offices redrafting a rule that will be imperfect in every possible incarnation.

At least in the Detroit airport, they have a Cinnabon.

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