Legal Issues in Higher Education - University of Vermont
October 17-29, 2010
Addressing Access to Higher Education, U. S. Department of Education1
Georgia Yuan, Deputy General Counsel
U. S. Department of Education
History of the United States Department of Education
The original Department of Education was created in 1867 to collect information on
schools and teaching that would help the States establish effective school systems. While
the agency's name and location within the Executive Branch have changed over the past
130 years, this early emphasis on getting information on what works in education to
teachers and education policymakers continues down to the present day.
The passage of the Second Morrill Act in 1890 gave the then-named Office of Education
responsibility for administering support for the original system of land-grant colleges and
universities. Vocational education became the next major area of Federal aid to schools,
with the 1917 Smith-Hughes Act and the 1946 George-Barden Act focusing on
agricultural, industrial, and home economics training for high school students.
World War II led to a significant expansion of Federal support for education. The Lanham
Act in 1941 and the Impact Aid laws of 1950 eased the burden on communities affected
by the presence of military and other Federal installations by making payments to school
districts. And in 1944, the "GI Bill" authorized postsecondary education assistance that
would ultimately send nearly 8 million World War II veterans to college.
The Cold War stimulated the first example of comprehensive Federal education
legislation, when in 1958 Congress passed the National Defense Education Act (NDEA)
in response to the Soviet launch of Sputnik. To help ensure that highly trained individuals
would be available to help America compete with the Soviet Union in scientific and
technical fields, the NDEA included support for loans to college students, the
improvement of science, mathematics, and foreign language instruction in elementary and
secondary schools, graduate fellowships, foreign language and area studies, and
The anti-poverty and civil rights laws of the 1960s and 1970s brought about a dramatic
emergence of the Department's equal access mission. The passage of laws such as Title VI
of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, and
Text in this paper is taken from the web sites shown with minor editorial changes.
Section 504 of the Rehabilitation Act of 1973 which prohibited discrimination based on
race, sex, and disability, respectively made civil rights enforcement a fundamental and
long-lasting focus of the Department of Education. In 1965, the Elementary and
Secondary Education Act launched a comprehensive set of programs, including the Title I
program of Federal aid to disadvantaged children to address the problems of poor urban
and rural areas. And in that same year, the Higher Education Act authorized assistance for
postsecondary education, including financial aid programs for needy college students.
In 1980, Congress established the Department of Education as a Cabinet level agency.
Today, the Department operates programs that touch on every area and level of education.
The Department's elementary and secondary programs annually serve nearly 14,000
school districts and some 56 million students attending roughly 99,000 public schools and
34,000 private schools. Department programs also provide grant, loan, and work-study
assistance to more than 14 million postsecondary students.
Despite the growth of the Federal role in education, the Department never strayed far from
what would become its official mission: to promote student achievement and preparation
for global competitiveness by fostering educational excellence and ensuring equal access.
The Department engages in four major types of activities to achieve this mission. It
establishes policies related to federal education funding, administers distribution of funds
and monitors their use, collects data and oversees research on America's schools,
identifies major issues in education and focuses national attention on them, and enforces
federal laws prohibiting discrimination in programs that receive federal funds.
While the Department’s programs and responsibilities have grown substantially over the
years, the Department itself has not. In fact, with a planned fiscal year 2010 level of 4,199,
the Department’s staff is 44 percent below the 7,528 employees who administered Federal
education programs in several different agencies in 1980, when the Department was
created. These staff reductions, along with a wide range of management improvements,
have helped limit administrative costs to approximately 2 percent of the Department's
discretionary budget and less than 1 percent of all grants and loans made by the
Department. Effectively, the Department is allocating 99 cents of every dollar it receives
in the form of education assistance to States, school districts, postsecondary institutions,
Office of Postsecondary Education
The Office of Postsecondary Education (OPE) formulates federal postsecondary education
policy including policy relating to the federal student financial assistance programs. OPE
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also collects and disseminates student financial assistance program data as well as data in
several key areas relating to postsecondary education.
Office of Postsecondary Education - Negotiated Rulemaking
The Negotiated Rulemaking Process for Title IV Regulations – FAQ
What is negotiated rulemaking? Typically, the Department of Education (the Department)
develops its proposed regulations without public input and then publishes them in the
Federal Register for comment by the public. The published document is known as a
Notice of Proposed Rulemaking, or NPRM. Under negotiated rulemaking, the Department
works to develop an NPRM in collaboration with representatives of the parties who will
be affected significantly by the regulations. This is done through a series of meetings
during which these representatives, referred to as negotiators, work with the Department
to come to consensus on the Department’s proposed regulations. These meetings are
facilitated by a neutral third-party. The Department is specifically required by law to use
negotiated rulemaking to develop NPRMs for programs authorized under Title IV of the
Higher Education Act of 1965, as amended (Title IV programs) unless the Secretary
determines that doing so is impracticable, unnecessary, or contrary to the public interest.
The Department generally follows these same procedures when it uses negotiated
rulemaking to develop NPRMs for programs other than the Title IV programs.
How are the issues to be negotiated determined? The issues to be negotiated come from
three sources: newly enacted laws, the Department, and the public. Because negotiated
rulemaking is required for development of NPRMs for the Title IV programs, newly
enacted statutory provisions for which Title IV regulations are needed are automatically
included on an agenda for negotiated rulemaking (unless the Secretary determines that
negotiated rulemaking is impracticable, unnecessary, or contrary to the public interest; see
Q1&A1). Other issues for negotiated rulemaking are identified by the Department when it
makes a determination that existing regulations need to be amended. Once the Department
determines that rulemaking is necessary, it publishes a Notice in the Federal Register
announcing its intent to conduct negotiated rulemaking and identifying the areas in which
it intends to develop or amend regulations. This Notice announces a public meeting (or
meetings) to obtain advice and recommendations on the issues to be negotiated from the
public. The Department may also solicit written submissions of advice and
recommendations. After consideration of this public input, the Department develops a list
of the issues that a negotiating committee (or committees) is likely to address, and
publishes the list in another Notice in the Federal Register. When the negotiating
committee first meets, members may suggest additional issues that may be added to the
agenda, subject to the full committee’s approval.
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How are negotiators selected? Negotiators are nominated by the public, and selected by
the Department. In the same Federal Register Notice that announces the Department’s
intent to conduct negotiated rulemaking or a subsequent Notice, the Department solicits
nominations for negotiators to represent the constituencies who will be significantly
affected by the regulations. The Department identifies in the Notice the constituencies it
believes will be significantly affected. This may include, but is not limited to, students,
legal assistance organizations that represent students, institutions of higher education,
state student grant agencies, guaranty agencies, lenders, secondary markets, loan servicers,
guaranty agency servicers, collection agencies, state agencies, and accrediting agencies.
The Department welcomes nominations for representatives of other constituencies who
are thought to be significantly affected. Before nominating an individual to participate as a
negotiator, the nominator should confirm that the potential nominee can and will make the
necessary time commitment to the process (see Q5&A5). The Department selects
negotiators for a committee from the list of nominees with the goal of providing adequate
representation for the affected parties while keeping the size of the committee
manageable. By law, a federal agency must limit membership on a negotiated rulemaking
committee to 25 members unless the agency head determines that a greater number of
members is necessary for the functioning of the committee, or to achieve balanced
membership. Typically, the Department convenes committees of 12 to 15 negotiators, as
well as an alternate for each negotiator to ease attendance concerns for negotiations
consisting of multiple sessions. Each committee includes at least one Department
representative. Once members of a committee have been confirmed, the Department
publishes another Notice in the Federal Register announcing the committee and its
membership. The committee may also add members at the committee meetings, subject to
the full committee’s approval. Individuals who are not selected as negotiators but who
will be affected by the regulations may still participate in the proceedings in several ways,
such as having access to the individuals representing their constituency to express their
views, and participating in informal working groups on issues between meetings. For
more on the public’s role in the negotiated rulemaking process, see Q4&A4. Of course,
individuals who are not selected as negotiators--like any other member of the public--can
always submit comments in response to the published NPRM.
Is negotiated rulemaking open to the public? Members of the public may observe
meetings of the negotiating committee, but cannot speak unless recognized by the
committee. Typically, at the end of each day’s meeting, the committee provides an
opportunity for the public to comment. Caucuses (i.e., meetings of smaller groups of
negotiators) are open to the public at the discretion of the negotiating committee. Printed
materials used by the negotiators are available to the public on the Department’s
negotiated rulemaking Web site. The address for this Web site is announced in the Federal
Register Notice announcing the members of the committee. The committee protocols
usually address how the negotiators may interact with the media.
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How is the negotiated rulemaking process structured and what is the time commitment for
a negotiator? A negotiating committee usually meets for three sessions at roughly
monthly intervals. Each session usually lasts three days. The number of sessions, meetings
in a session, length of the session meetings, and the time between sessions may vary
depending on the issues being negotiated. The first order of business for a negotiating
committee is to finalize the agenda and protocols, which are agreed upon by consensus of
the committee. Once the agenda and protocols are finalized and agreed upon, the
committee begins its negotiations of the issues on the agenda. During the time between
sessions, the Department drafts and amends the proposed regulatory language based on
committee discussions and on any tentative agreements reached on the issues. The
Department provides this draft regulatory language to the negotiators prior to the
subsequent session. Subcommittees formed by the negotiators may meet during this time
to work on specific issues. The subcommittees bring the results of their discussions to the
full committee when it reconvenes. Again, a nominator should confirm that a potential
nominee can and will make the necessary time commitment to the process before
nominating an individual to participate.
How is consensus defined for purposes of negotiated rulemaking? Consensus means that
there is no dissent by any member of the negotiating committee. Thus, no member can be
outvoted. The absence or silence of a member at the time the final consensus vote is taken
is equivalent to not dissenting. All agreements reached during the negotiations are
assumed to be tentative agreements until members of the committee consider all of the
issues included on the agenda, and vote on the entire proposed regulatory language at the
end of the final session of the negotiated rulemaking. If final consensus is achieved,
committee members may not withdraw their consensus and the Department will use this
consensus-based regulatory language in its NPRM. Only under very limited circumstances
may the Department depart from this language.
What happens after the negotiations have concluded? If consensus is achieved, the
Department uses that regulatory language in its NPRM. If consensus is not achieved, the
Department determines whether to proceed with regulations. If the Department decides to
proceed with regulations, it may use regulatory language developed during the
negotiations as the basis for its NPRM, or develop new regulatory language for all or a
portion of its NPRM.
Once the proposed regulatory language for the NPRM is finalized, the Department drafts
the preamble language (the portion of the NPRM that explains the proposed regulatory
text). If consensus was reached, the Department usually shares the preamble language
with the negotiators who may review it for accuracy. Although the preamble language is
not negotiated, the Department may agree during the negotiations to include in the
preamble explanations of certain issues. If the committee did not reach consensus, the
preamble language is not shared with the negotiators. When the NPRM is published in the
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Federal Register, it contains a request for public comments and a deadline for submitting
those comments. If consensus was reached, negotiators and those persons and entities
whom they represent may not comment negatively on the consensus-based regulatory
language. The Department considers the comments received by the close of the comment
period in developing final regulations. The final regulations published in the Federal
Register contain the regulations with which affected parties must comply and the date by
which they must do so. The preamble of the final regulations includes a summary of the
comments received, the Department’s response to the comments, and an explanation of
any changes made to the regulations that differ from the proposed regulations.
Family Policy Compliance Office (FPCO)
The Family Educational Rights and Privacy Act of 1974 also known as the Buckley
Amendment after Senator James L. Buckley of New York its primary sponsor, is the
primary law protecting the privacy of student records. Because it was offered as an
amendment on the Senate floor and was not the subject of Committee consideration
traditional legislative history for FERPA as first enacted is unavailable.
Senators Buckley and Pell sponsored major FERPA amendments that were enacted on
December 31, 1974, just four months later, and made retroactive to its effective date of
November 19, 1974. These amendments were intended to address a number of
ambiguities and concerns identified by the educational community, including parents,
students, and institutions. On December 13, 1974, these sponsors introduced the major
source of legislative history for the amendment, which is known as the "Joint Statement in
Explanation of Buckley/Pell Amendment" ("Joint Statement"). See Volume 120 of the
Congressional Record, pages 39862-39866.
The Family Policy Compliance Office (FPCO) interprets FERPA and develops policy and
regulations related to it. The mission of the FPCO is to meet the needs of the
Department's primary customers--learners of all ages--by effectively implementing two
laws that seek to ensure student and parental rights in education: the Family Educational
Rights and Privacy Act (FERPA) and the Protection of Pupil Rights Amendment (PPRA).
Accreditation of Institutions of Higher Education
The goal of accreditation is to ensure that education provided by institutions of higher
education meets acceptable levels of quality.
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Accrediting agencies, which are private educational associations of regional or national
scope, develop evaluation criteria and conduct peer evaluations to assess whether or not
those criteria are met. Institutions and/or programs that request an agency's evaluation and
that meet an agency's criteria are then "accredited" by that agency.
The U.S. Department of Education does not accredit educational institutions or programs.
However, the Secretary of Education is required by law to publish a list of nationally
recognized accrediting agencies that the Secretary determines to be reliable authorities as
to the quality of education or training provided by the institutions of higher education and
the higher education programs they accredit.
The recognition process involves not only filing an application with the U. S. Department
of Education but also review by the National Advisory Committee on Institutional Quality
and Integrity, (NACIQI) which makes a recommendation to the Secretary regarding
recognition. The Secretary, after considering the Committee's recommendation, makes the
final determination regarding recognition.
Federal Student Aid
The 1998 Reauthorization of the Higher Education Act (HEA) established a performance-
based organization to administer the Federal Student Aid programs at the U.S. Department
of Education. These programs include grants, loans, and work-study to help students pay
for education beyond high school. In Fiscal Year 2009, the Department provided
approximately $113 billion of financial aid to almost 13 million college students.
Before July 1, 2010, Stafford, PLUS, and Consolidation Loans were also made by private
lenders under the Federal Family Education Loan (FFELSM) Program. As a result of the
Health Care and Education Reconciliation Act, signed into law on March 30, 2010, no
further loans will be made under the FFEL Program beginning July 1, 2010. All new
Stafford, PLUS, and Consolidation Loans will come directly from the U.S. Department of
Education under the Direct Loan ProgramSM.
Office of Civil Rights (OCR)
The mission of the Office for Civil Rights is to ensure equal access to education and to
promote educational excellence throughout the nation through vigorous enforcement of
civil rights. The Office serves student populations facing discrimination and the advocates
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and institutions promoting systemic solutions to civil rights problems. An important
responsibility is resolving complaints of discrimination. Agency-initiated cases, typically
called compliance reviews, permit OCR to target resources on compliance problems that
appear particularly acute. OCR also provides technical assistance to help institutions
achieve voluntary compliance with the civil rights laws that OCR enforces. An important
part of OCR's technical assistance is partnerships designed to develop creative approaches
to preventing and addressing discrimination.
The Office for Civil Rights enforces several Federal civil rights laws that prohibit
discrimination in programs or activities that receive federal financial assistance from the
Department of Education. Discrimination on the basis of race, color, and national origin is
prohibited by Title VI of the Civil Rights Act of 1964; sex discrimination is prohibited by
Title IX of the Education Amendments of 1972; discrimination on the basis of disability is
prohibited by Section 504 of the Rehabilitation Act of 1973; and age discrimination is
prohibited by the Age Discrimination Act of 1975. These civil rights laws enforced by
OCR extend to all state education agencies, elementary and secondary school systems,
colleges and universities, vocational schools, proprietary schools, state vocational
rehabilitation agencies, libraries, and museums that receive U.S. Department of Education
funds. Areas covered may include, but are not limited to: admissions, recruitment,
financial aid, academic programs, student treatment and services, counseling and
guidance, discipline, classroom assignment, grading, vocational education, recreation,
physical education, athletics, housing, and employment. OCR also has responsibilities
under Title II of the Americans with Disabilities Act of 1990 (prohibiting disability
discrimination by public entities, whether or not they receive federal financial assistance).
A complaint of discrimination can be filed by anyone who believes that an education
institution that receives Federal financial assistance has discriminated against someone on
the basis of race, color, national origin, sex, disability, or age. The person or organization
filing the complaint need not be a victim of the alleged discrimination, but may complain
on behalf of another person or group.
Most of OCR's activities are conducted by its 12 enforcement offices throughout the
country. These enforcement offices are organized into 4 divisions carrying out OCR's core
work -- preventing, identifying, ending, and remedying discrimination against America's
students. Two Enforcement Directors in the office of the Assistant Secretary oversee the
work of, respectively, the Eastern and Southern and the Midwestern and Western
divisions. OCR administrative offices in Washington, D.C., provide additional
administrative support, coordination, policy development and overall leadership.
On June 29, 2010, Assistant Secretary for Civil Rights Russlynn Ali and Assistant
Attorney General for Civil Rights Thomas E. Perez, U.S. Department of Justice, issued a
joint “Dear Colleague” letter concerning the obligation of colleges and universities to
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ensure that students with disabilities have equal access to emerging technologies in
education. The letter, a joint guidance from the Departments of Justice and Education,
reminds colleges and universities of the legal standards in regard to accessibility, and
applies those standards to electronic book readers. The letter states that it is impermissible
under federal law for colleges and universities to use electronic book readers or similar
technology in a teaching or classroom environment as long as the device remains
inaccessible to individuals who are blind or have low vision and reasonable
accommodation or modification for this type of technology do not exist or are not
The White House Initiative on Historically Black Colleges and Universities
The White House Initiative on Historically Black Colleges and Universities has as its
objective to strengthen the capacity of HBCUs to provide the highest quality education,
participate in and benefit from Federal programs, and help ensure that our Nation has the
highest proportion of college graduates in the world by the year 2020.
The Initiative works with executive departments, agencies, and offices, the private sector,
educational associations, philanthropic organizations, and other partners to increase the
capacity of HBCUs to provide the highest-quality education to a greater number of
students, and to take advantage of these institutions' capabilities in serving the Nation's
needs through five core tasks: (i) strengthening the capacity of HBCUs to participate in
Federal programs; (ii) fostering enduring private-sector initiatives and public-private
partnerships while promoting specific areas and centers of academic research and
programmatic excellence throughout all HBCUs; (iii) improving the availability,
dissemination, and quality of information concerning HBCUs to inform public policy and
practice; (iv) sharing administrative and programmatic practices within the HBCU
community for the benefit of all; and (v) exploring new ways of improving the
relationship between the Federal Government and HBCUs.
The White House Initiative on Education Excellence for Hispanic Americans
The White House Initiative on Education Excellence for Hispanic Americans has as its
mission to help restore the United States to its role as a global leader in education and
strengthen the Nation by increasing the quality of life of and opportunities for Hispanic
Americans by ensuring all Hispanics receive an education that prepares them for
productive and satisfying college, careers and community lives. White House Initiative
has been engaging Hispanic students, parents, families, organizations and anyone working
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in or with the education system in communities nationwide as active participants in
improving the academic achievement of Hispanic Americans.
The White House Initiative on Asian Americans and Pacific Islanders
On October 14, 2009, President Barack Obama signed the Executive Order reestablishing
the White House Initiative on Asian Americans and Pacific Islanders (Initiative). The
Initiative, co-chaired by U.S. Department of Education Secretary Arne Duncan and U.S.
Department of Commerce Secretary Gary Locke, is housed within the U.S. Department of
Education. The Initiative works to improve the quality of life and opportunities for Asian
Americans and Pacific Islanders by facilitating increased access to and participation in
federal programs where they remain underserved.
The Executive Order also established the President’s Advisory Commission on Asian
Americans and Pacific Islanders and the Federal Interagency Working Group. Working in
conjunction, the Commission and Federal Interagency Working Group are comprised of
individuals, executive branch departments, agencies, and offices representing a broad
spectrum of fields and programs impacting Asian Americans and Pacific Islander
White House Initiative on Tribal Colleges and Universities
The White House Initiative on Tribal Colleges and Universities ensures that the nation’s
Tribal Colleges and Universities are more fully recognized and have full access to federal
programs benefitting other higher education institutions and to bring economic
development and higher education to their communities and people. There are 36
federally recognized Tribal Colleges and Universities serving about 30,000 full and part-
time students. Tribal colleges are both integral and essential to their communities. Often
they are the only postsecondary institutions within some of our Nation's poorest rural
areas. They fulfill a vital role: in maintaining and preserving irreplaceable languages and
cultural traditions; in offering a high-quality college education to younger students; and in
providing job training and other career-building programs to adults and senior citizens.
Tribal colleges provide crucial services in communities that continue to suffer high rates
of unemployment and the resulting social and economic distress.
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