By Owen Daugherty, NASFAA Staff Reporter
The final day of the Department of Education’s (ED) negotiated rulemaking subcommittee on prison education programs (PEP) was marked by contentious discussion and several negotiators expressing their displeasure with the entire process of working to craft regulatory language to present to the full committee.
As was the case throughout much of the subcommittee’s work this week, substantive conversations were often offset by frustration from negotiators that their recommendations were not reflected in the proposed amendatory text the group was tasked with producing.
“I'm not exactly sure as to how much we've actually accomplished because there's still so much confusion, a lot of ambiguity within this document, people not at the table. And we are trying to roll this out and we're all not in agreement,” said Terrance McTier Jr., director of Washington University’s Prison Education Project, at the conclusion of Wednesday’s final session.
The subcommittee is responsible for helping ED craft regulatory language on Pell Grant eligibility for PEPs for the main negotiating committee to consider and vote on. The subcommittee convened last month over the course of three days, and though they came to tentative agreement on a number of topics, they failed to agree in some key areas.
Recommendations to be included in regulatory text from McTier and Stanley Andrisse, an assistant professor at Howard University’s School of Medicine, were in some instances left out, with ED officials often citing statutory limitations.
Ultimately, the subcommittee came to general agreement on all but three areas. Aaron Washington, ED’s subcommittee leader, reminded negotiators that in addition to the subcommittee’s work being presented to the full committee next month, any negotiator can present alternative language to the full committee for a vote.
Areas of significant disagreement between ED and negotiators included the role of state departments of corrections and the federal Bureau of Prisons in the administration of PEPs, which data and metrics would be used to determine the quality and success of PEPs and whether programs are operating in the best interest of students, and a student’s conviction potentially barring them from pursuing licensure or employment in certain professions in a given state. For example, some state laws bar individuals with a drug conviction or sexual offense from working in the medical field, and negotiators disagreed on whether prison education programs should be permitted to offer programs when such bans might preclude individuals from future employment in the field.
Andrisse and McTier generally expressed their hangup on these topics due to concerns that some of the definitions and regulatory text were creating barriers and limiting access to PEPs and Pell Grant eligibility for incarcerated individuals.
There was also an overarching concern among negotiators about the lack of presence from stakeholders associated with the Bureau of Prisons and state departments of corrections. And there were instances throughout the day where very few negotiators were present for discussions regarding the recommendations for regulatory language.
Andrisse took specific issue with a perceived conflict of interest since Washington was the de facto facilitator and also a negotiator on behalf of ED. The department did not utilize a facilitating service for the subcommittee’s work.
Steve Finley, ED’s general counsel, noted the difference between the subcommittee and the full committee, saying the goal is for the subcommittee to provide the group’s collective opinions to the full committee, even if that opinion is not one in agreement.
“Our goal for this session is going to be to make sure that the document captures the different impressions and comments that we received from the subcommittee members, particularly where there are not agreements,” he said.
Stay tuned to Today’s News for coverage of the full committee’s work next month and read up on all sessions of the 2021 negotiated rulemaking process with NASFAA’s recap articles.
Publication Date: 11/11/2021
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