by James A. Bacon
A new Vanderbilt University study sheds light on the relentless increase in costs at U.S. colleges and universities: government regulation. In a detailed study of 13 institutions, Vanderbilt and the Boston Consulting Group found that compliance with federal regulations ranges between 3% and 11%, depending upon the institution, with a median cost of 6.4%. Research institutes bore the heaviest burden — grants & contracts incurred the greatest costs — but government regulations cut across all aspects of campus life.
The report delved deeper into the numbers than any previous study and is the most authoritative to date. “While many regulations are useful and effective, others are unrelated to the mission of higher education. All regulations impose cost, however,” said Thomas W. Ross, president of the 17-campus University of North Carolina, one of the study participants. (No Virginia university participated in the study.)
Under pressure for soaring tuition and fees, the higher ed sector has long complained about the cost of government regulation. A recent report, “Recalibrating Regulation of Colleges and Universities,” put it this way:
Over time, oversight of higher education by the Department of Education (DOE) has expanded and evolved in ways that undermine the ability of colleges and universities to serve students and accomplish their missions. The compliance problem is mandated by the sheet volume of mandates — approximately 2,000 pages of text and the reality that the Department of Education issues official guidance to amend or clarify its rules at a rate of more than one document per work day. As a result, colleges and universities find themselves enmeshed in a jungle of red tape, facing rules that are often confusing and difficult to comply with. They must allocate resources to compliance that would be better applied to student education, safety and innovation in instructional delivery.
Key points made in that study:
- Regulations are unnecessarily voluminous. Referring to Department of Education regs alone, “the Higher Education Act (HEA) contains roughly 1,000 pages of statutory language; the associated rules in the Code of Federal Regulations add another 1,000 pages. Institutions are also subject to thousands of pages of additional requirements in the form of sub-regulatory guidance.”
- Regulations are overly complex. “Frequent issuance of sub-regulatory guidance by the Department, although intended to clarify, often leads to further confusion.” A “Dear Colleague” letter on Title IX responsibilities regarding sexual harassment required further guidance in the form of a 53-page “Questions and Answers” document that took three years to complete. “And that raised even more questions. “Complexity begets more complexity.”
- The DOE has an increasing appetite for regulation. The growth in the “volume and velocity” of regulation has increased in recent years, even in the absence of new statutory changes from Congress. “Negotiated rulemaking sessions have addressed topics as varied as accreditation, college teacher preparation programs, PLUS Loans, debit cards, gainful employment, state authorization, and the credit hour — all undertaken solely at the Department’s initiative without any prior Congressional action.
- The DOE does not act in a timely fashion. “The HEA explicitly requires the Secretary of Education to issue final regulations within 360 days of the date of enactment of any legislation affecting these programs. The Department almost never meets this deadline.”
- Regulation can be a barrier to innovation. “The Department’s definition of credit hour … is one example. By relying on the concept of ‘seat time,’ the Department’s definition had discouraged institutions from developing new and innovative methods for delivering and measuring education, such as competency-based models.”
- The regulatory process is opaque. “While intimating that it consults professionals in the field in developing its calculations, we have been unable to locate a single institutional official who has ever been contacted by the Department for this purpose. Even more telling, we have been unable to locate any institutional official who has heard of anyone else ever being contact for this purpose.”
Bacon’s bottom line:
For perhaps the first time ever, I feel a smidgen of sympathy for Virginia’s university administrators. The DOE exercises fearsome power — the ability to cut off federal backing for college loans, upon which almost every college in the country is slavishly dependent. And the DOE has wielded that power to compel colleges to submit to new regulations. A recent example: The Obama administration’s aggressive interpretation of Title IX regulations to attack the supposed “epidemic of rape” on colleges campuses has led to the creation of a new bureaucratic apparatus to combat the problem. (Hopefully, Bacon’s Rebellion soon will be able to document how that has played out at the University of Virginia.)
The big take-away from these studies is to change the way we think about public oversight of Virginia’s “state” colleges and universities. They are “state” universities in the sense that the state provides financial support for them and provides modest regulatory oversight. But the federal government, in its overweening way, now exercises as much, if not more, control over “state” universities as the state does. Indeed, all major regulatory initiatives in recent years have emanated from the U.S. Department of Education, not the state, not Congress.
The fact is, the Governor of Virginia and the General Assembly aren’t the drivers behind higher educational policy in Virginia anymore. The federal government — more specifically, the Obama administration, acting without the authorization of Congress — has usurped that role. The federal leviathan grows ever more powerful in ways that may never be reversed.
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