The Harmful Effects of Federal Regulation on Higher Education

By Stearns, Josh | Journal of Law and Education, Spring 2017 | Go to article overview

The Harmful Effects of Federal Regulation on Higher Education


Stearns, Josh, Journal of Law and Education


I. INTRODUCTION

The institutions of Higher Education are some of the most extensively regulated institutions in the country, next to utility companies.1 Almost every facet and subject of administration within higher education is regulated by federal executive regulation or executive interpretation in the form of rulemaking.2 Traditionally, universities and other higher education institutions were almost completely free of federal regulation.3 However, as the states began to get involved in higher education, the federal government inserted itself into the regulatory sphere by relying on the Fourteenth Amendment.4

In the Nineteenth Century, the federal government became increasingly involved in higher education for multiple reasons. First, the federal government began spending exponential amounts of dollars on research at universities. Since the 1940's, federal funding of research at universities has increased by $26 billion dollars.5 To protect the funds, the government issued a vast array of regulations to ensure that "the research [would] be performed well and honestly."6 Further, federal regulation increased as equal opportunity and non-discrimination laws, such as the Civil Rights Act of 1964, were applied to colleges and universities.7 Additionally, the increase in federal financial aid programs placed a duty on Congress to ensure taxpayer money was being spent for "the general welfare" of the people. Even if a private college does not receive federal funding, they are still not free from federal regulation. This is because they are typically for-profit organizations, and thus, are regulated by the 1RS and subject to the Internal Revenue Code.8

The increase in federal regulation has not only proved to be a costly and ineffective means of achieving congressional objectives, but is also a great departure from constitutional doctrines, such as the separation of powers, the delegation doctrine, and concepts of federalism. The federal system of legislating and enforcing policy objectives for higher education creates a rigid and inflexible framework under which colleges and universities must operate. As a result, complying with these federal regulations have proved to be costly and ineffective.

This article will address these issues concerning the increase of federal regulation on higher education. Specifically, Part II will discuss and outline the federal government's power and authority to regulate colleges and universities. It will also discuss the regulations under two federal acts, the Higher Education Opportunity Act of 2008 and the Administrative Procedures Act, that pertain to colleges and universities. Part III will analyze and argue how these regulations run contrary to concepts of federalism, separation of powers, and the delegation doctrine. Part IV will suggest an alternative method of regulation that involves giving federal agencies less discretion in rule making, increasing cooperative federalism, and allowing more flexible methods of regulating. Finally, the article will urge administrators in these colleges and universities to challenge these far-reaching regulations in hopes of achieving this alternative approach.

II. FEDERAL REGULATIONS AND THEIR AUTHORITY

The federal government's interest in regulating higher education is typically well intended, however the broad application of the taxing, spending, and commerce powers have encroached on institutions that primarily originate and are organized under state law. As Justice Brandéis said, "experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. The greatest dangers to liberty lurk in insidious encroachment by means of zeal, well-meaning but without understanding."9

Relying on these powers, the federal government has enacted legislation focused at regulating colleges and universities such as The Higher Education Opportunity Act of 2008. Furthermore, the Administrative Procedures Act has enabled federal executive agencies to regulate higher education through their rulemaking authority. …

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