Negotiated Rulemaking for U.S. Higher Education Regulatory Policy: A Process of Deliberative Democracy?

The rulemaking process through which higher education regulatory policy is created in the U.S. Department of Education has received critical attention in recent years. One concern is that this important policymaking process takes place in an agency of unelected officials, sometimes with the help of select interest groups. How, then, does this process maintain its democratic legitimacy? An important aspect of the process – known as negotiated rulemaking – may help to promote democratic legitimacy through open deliberations and broad stakeholder participation. Through the lens of deliberative democratic theory, this article draws on dozens of interviews and documentary data regarding a number of higher education regulations to analyze the ways in which negotiated rulemaking for U.S. higher education regulatory policy reflects (and does not reflect) aspects of deliberative democracy.