Recap: Neg Reg Prison Education Subcommittee Completes Discussions

By Owen Daugherty and Hugh T. Ferguson, NASFAA Staff Reporters 

A group of higher education stakeholders on Wednesday completed its negotiated rulemaking subcommittee session in which members focused on regulatory language to improve education access for incarcerated students.

The language recommended by participants is expected to be considered by the full committee, which will vote on suggested language changes concerning numerous regulatory definitions and metrics related to prison education programs. 

During the final day’s session, Department of Education (ED) moderators stressed that while language did not need to be finalized by the conclusion of Wednesday’s hearing, the department would begin drafting a report next week to develop a regulatory framework for the full committee’s November session. ED encouraged any suggested language to be submitted as soon as possible.

Aaron Washington, ED’s subcommittee leader, thanked participants for three days of thoughtful deliberation on pressing issues, noting that the department looks forward to taking the suggestions of language changes into consideration and having them reflected in the draft regulations ED produces. 

The subcommittee moved through a number of discussions on definitions for the prison education program. Advocates for incarcerated individuals and other stakeholders familiar with the landscape of correctional facilities argued for more precise definitions of “confined or incarcerated individual” to ensure that all categories of confinement or incarceration are accounted for in the regulations.

Throughout the process, Washington highlighted the department’s openness to incorporating changes proposed by subcommittee members.

“We completely agree that we want to balance the burdens to institutions and potential conflicts of interest, and the need to ensure that incarcerated students are getting a high quality education,” Washington said during Tuesday’s session. “We are also working within some specific statutory language, and we share that language with you to get your feedback.”

Kim Cary, director of financial aid at Ozarks Technical Community College and a NASFAA member, raised the issue of dependency status concerns since many incarcerated students are considered dependent for student aid purposes, but may face challenges providing parental information on the FAFSA. 

“That's an area that we have not yet found a way to address,” said David Musser, director of policy innovation and dissemination at the Office of Federal Student Aid. “If an individual does not meet one of the dependency requirements to be considered an independent student, they'd still be considered a dependent student and may have to obtain their family's financial information to complete the FAFSA. So we're still thinking about that one and we know that one's challenging.”

Significant discussion focused on the indicators that are expected to be used in determining whether a program operates in the best interest of students, which is a criterion set out in statute that the Bureau of Prisons and state departments of corrections are required to consider when they approve institutions of higher education to offer prison education programs in their facilities.

Throughout the week, members held lengthy discussions on how to measure employment and labor outcomes — two of the factors that may be used in determining whether a program operates in the best interest of students — for formerly incarcerated college students and how data can be collected by ED through the College Scorecard, census data, and potential surveys.

Subcommittee members delved into a discussion on metrics related to graduation rates and comparing outcomes for incarcerated students to non-incarcerated students. Participants expressed concerns over whether ED’s language would result in equitable benchmarks to evaluate the quality of prison education programs.

A key focus from participants throughout the three days of sessions was ensuring that outside stakeholders’ input is considered, particularly as it concerned the federal Bureau of Prisons and state departments of corrections approving prison education programs. Several participants stressed the importance of having the perspective of incarcerated and formerly incarcerated students who have to navigate this system present at the table to help shape regulations.

There was also discussion around programs that lead to licensure or certification and whether institutions should be able to offer prison education programs that lead to fields where students might not be able to get jobs due to rules prohibiting people who have been previously incarcerated from having those jobs.

“Students should have the agency to decide on what type of education they want to choose, with the expectation that the institution makes them aware of potential barriers that may exist,”  said Terrance McTier Jr., director of Washington University’s Prison Education Project. “But just to say that we can't offer degrees because of licensure, I don't agree with that.”

Beyond the work taking place during negotiated rulemaking sessions, Musser noted that ED is working on how to address student loan default among the incarcerated population and how to make it easier for them to resolve any issues so they can regain Pell Grant eligibility.

Cary said aid offices should consider how they can incorporate guidance and advice for how incarcerated students can connect with services to resolve these issues.

“I encourage financial aid administrators that are listening in to make that part of your onboarding process,” she said. “That's part of making them successful.”

Musser also said ED is looking into ways to identify which students are incarcerated at the time of application to explore whether verification requirements can be relaxed.

At the end of Wednesday’s session, ED concluded by taking a series of temperature checks on proposed regulatory frameworks to develop a more comprehensive package to be drafted for the full committee. During those checks, committee members reiterated previous concerns and expressed their desire that discussion over prison education programs be given more prominent standing before the full committee.

“This is a new program that's being established and so I think it needs an increased level of attention,” McTier Jr. said. “I hope we can get it pushed to the forefront, instead of at the end of the week.”

Washington said the order of the topics can be revisited and thanked participants for their involvement and discussion over the three days of sessions.

“Thank you all for providing your time to the department and working on behalf of these students,” he said in concluding the final day. “There’s been really great discussion this week and so much feedback and information to take back and process.”

Stay tuned to Today’s News for more updates and details on the ongoing negotiated rulemaking session.


Publication Date: 10/21/2021

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