Conservatives should focus on creating the legal space for innovation in higher education, not regulate it more.
Donald Trump has happily announced that his administration will be dedicated to deregulation. And one very important place to deregulate is higher education. Not only will discarding regulations make education less expensive but it will help temper political correctness. Higher educational bureaucrats, not professors, are the worst offenders when it comes to forging the manacles for impressionable minds. And bureaucrats are hired and empowered in so no small part by federal regulations.
The volume of regulation in higher education is truly astonishing. It is not only conservatives who object. Here is a 2015 summary by the bipartisan task force on higher education:
Focusing solely on requirements involving the Department of Education, the 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 issued by the Department. . . . In 2012 alone, the Department released approximately 270 “Dear Colleague” letters and other electronic announcements—this means that more than one new directive or clarification was issued every working day of the year.
But classical liberal and conservatives have particular reason to object to these regulations. First, the regulations of higher education emerge without complying with the processes of administrative law that are supposed to tame the modern state. Dear Colleague letters in particular often provide interpretations of the law that purport to resolve policy questions without going through notice and comment rulemaking. And, as my co-blogger, Mike Rappaport has noted, those rules can be enforced without judicial oversight, because universities who fail to comply may lose all their federal funds.
Second, the substance of these letters sometimes offends basic notions of due process. The Education Department has encouraged students to be expelled from university for sexual offenses on the basis of a preponderance of the evidence even without having the formal right to confront their accusers.
Third, and most importantly, the federal regulatory regime empowers university bureaucrats. And it is those bureaucrats rather than professors who are most responsible for political correctness. For instance, it was a group of university bureaucrats who sent out instructions on how Yale students should dress on Halloween. At Harvard they told students how to talk to their less enlightened family members. Deregulation deprives the engine of political correctness of its high octane fuel.
Thus, President Trump’s Education Department should revoke controversial Dear Colleague letters and promise not to regulate by informal missives in the future. More generally, it should greatly streamline the regulations of higher education, freeing up universities to fire many of their bureaucrats and use the money to lower tuition and improve instruction.