Now Negotiated Rulemaking’s Prison Education Subcommittee Meetings Are Over, What’s Next for the Reinstatement of Pell?
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Dec. 1, 2021
What started out as a beam of promise to expand access to higher education for students confined within U.S. federal and state prisons, quickly became a topic of contention on new regulations stemming from legislation that recently reinstated Pell Grants for incarcerated adults. The U.S. Department of Education’s negotiated rulemaking (neg reg) subcommittee on prison education is part of a regulatory agenda, which also includes affordability and student loan topics. Over the past two months, eight nominated individuals devoted their time and expertise, representing various constituencies to the subcommittee. Yet, by the second session, many subcommittee members quickly realized their advocacy efforts around “Pell for all” was not a regulatory reality.
“We have been spending years trying to [reinstate Pell] and this is not Pell for all.” – Subcommittee Member, Second Session
Based on proposed regulatory language the subcommittee offers, and whether the full committee unanimously votes in agreement, determines whether and how access, equity, inclusivity and quality play out in the reinstatement of Pell. If the full committee, and ultimately the Education Department, do not consider critical recommendations that the subcommittee presents, the Department risks students slipping through the cracks and missing an opportunity to expand postsecondary access to some of our country’s most marginalized students.
To catch you up to speed on what happened during the second session of the prison education program subcommittee that took place a few weeks ago, this blog outlines the major areas of agreement and non-agreement that subcommittee representatives will likely present to the full committee next week to vote on. Selected subcommittee members will present their recommendations because subcommittee members are only allowed to make recommendations to the full committee of negotiators and are unable to vote on the proposed regulatory language. To guide your understanding of what happens next, we conclude with a timeline to display the remaining process to implement Pell Grants to incarcerated students by July 1, 2023.
Areas of Consensus
Overall, there were more areas of general agreement on almost a dozen items between the subcommittee members and the Education Department. The areas of agreement typically were on regulatory language that guides the administration and logistics of implementing Pell for eligible prison education programs. Some of those areas were on the following:
● A higher education institution must update reporting information to the Education Department if changes occur (e.g. exceeds 25% enrollment threshold of incarcerated students, establishment of an additional location, etc.).
● Accreditation requirements (i.e. prison education programs must meet requirements of the higher education institution’s accrediting agency).
● Reporting requirements (i.e. postsecondary institutions submit annual reports to the Education Department).
● Limit or termination of approval (i.e. occurs when a prison education program is in violation of the terms and agreements).
Areas of Non-Consensus
Yet topics centered on access, inclusivity and data collection efforts often ended in disagreement between subcommittee members and the Education Department. In addition, the lack of representation from the Department of Corrections on the subcommittee created ambiguity, disconnection and confusion on the feasibility and capacity of the Department of Corrections (deemed as an oversight entity based on regulatory language).
While the full committee unanimously voted to include a State Department of Corrections representative to join the subcommittee for the second session (while previously the full committee did not come to a consensus to add other representatives from the civil rights and for-profit student communities), the representative rarely showed up during the subcommittee meeting with a cameo appearance on Day One of the afternoon session. Some areas of non-consensus both within the subcommittee and between the Education Department are outlined below:
● Student eligibility (just one subcommittee member opposed regulatory language of student eligibility to receive Pell due to their concerns around inclusivity. In order to receive a Pell Grant, the student must enroll in a prison education program -- excluding incarcerated students enrolled in college programs not acknowledged by the Department as a prison education program).
● Language on institutions’ responsibility to inform students whether a given state bans, bars or prohibits licensure or employment based on specific types of criminal convictions. (i.e. a higher education institution must notify the student if a student is enrolling in a program that would not qualify that student for licensure for consumer protection and transparency purposes). Disagreement buzzed around:
- Concerns that the language will discourage educational providers from offering professional programs to those in prison (such as pre-law and pre-med programs).
- The timing of this disclosure to students on whether the program allows licensure in a given state.
- Concerns that the language risks discouraging states from drafting legislation to remove these licensure bans.
- Limits access to career opportunities should a student want to live in another state upon release that does not have such a restriction or ban.
● Request to draft language to add an Advisory Committee to help advise the oversight entity (defined as State Department of Corrections or Federal Bureau of Prisons or other entity responsible for overseeing a correctional facility).
● The role of Department of Corrections as an oversight entity and capacity of data infrastructure to provide requested data required in regulatory language (e.g. the Education Department was unsure whether Department of Corrections could provide release data – yet will need this data to track whether students continue to use Pell post-release).
● Inclusion of third party partnership programs as part of the application requirement (e.g. higher education institutions partner with reentry services, etc.).
● Conditions of institutional eligibility if an institution receives a waiver to enroll more than 25% of its student body as incarcerated students (i.e. concerns around how much more are postsecondary institutions able to increase incarcerated student enrollment).
What’s Next?
The goal of the subcommittee meetings were for subcommittee members to develop recommendations to the Education Department and then present those proposals to the full committee next week for the main committee to vote on. In order for the subcommittee’s recommendations to move forward, the full committee must unanimously approve them. If and where full consensus is reached by the full committee, the figure below outlines the remaining process. However, if there is no consensus by the end of next week's negotiated rulemaking meeting, the Department will move forward with publishing their desired rule for public comment.