Recently, a task force of college presidents chronicled massive regulatory overreaching by the U.S. Department of Education, which, on a daily basis, floods America’s schools with new rules and obligations that Congress never intended. Most of these rules are not even listed in the Code of Federal Regulations, and have never gone through the formal rulemaking process, much less been adequately vetted. “The Report of the Task Force on Federal Regulation of Higher Education: Recalibrating Regulation of Colleges and Universities” correctly notes that:
According to the basic tenets of administrative law, Congress passes laws, and it is up to the agencies to implement them. However, in recent years, the Department has increasingly used the regulatory process not in response to any specific legislative change enacted by Congress, but rather as a means to achieve its own policy objectives. (Pg. 35)
The compliance problem is exacerbated by the sheer 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. (Executive Summary, pg. 2).
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