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What the Supreme Court’s Chevron Decision Could Mean for Biden’s Title IX Rule

In a decision that may be felt in schools and colleges across the country, the U.S. Supreme Court on Friday overruled a major precedent on when courts should defer to federal agencies’ interpretations of the laws that apply to them.

The 6-3 decision in Loper Bright Enterprises v. Raimondo could have near-term implications on matters such as the U.S. Department of Education’s recent final regulation interpreting Title IX to protect transgender students. The rule, scheduled to take effect Aug. 1, has been challenged in multiple lawsuits and has already been blocked from taking effect in 10 states.

Chief Justice John G. Roberts Jr. wrote the majority opinion that overrules a 1984 decision, Chevron U.S.A. Inc. v. Natural Resources Defense Council, that requires courts to give deference to federal agencies’ interpretations of statutes when those laws are “silent or ambiguous.”

Chevron is overruled,” Roberts said. “Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the [Administrative Procedure Act] requires.”

The Chevron decision was “misguided because agencies have no special competence in resolving statutory ambiguities. Courts do,” the chief justice said, adding that the framers of the U.S. Constitution “anticipated that courts would often confront statutory ambiguities and expected that courts would resolve them by exercising independent legal judgment.”

Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch, Brett M. Kavanaugh, and Amy Coney Barrett joined the chief justice’s opinion, with Thomas and Gorsuch filing concurrences.

Justice Elena Kagan was joined by Justices Sonia Sotomayor and Ketanji Brown Jackson in her dissent, part of which she read from the bench.

The majority “gives courts the power to make all manner of policy calls, including about how to weigh competing goods and values,” Kagan said. “It puts courts at the apex of the administrative process as to every conceivable subject—because there are always gaps and ambiguities in regulatory statutes, and often of great import.”

Abner S. Greene, a law professor at Fordham University and an expert on administrative law, said in an interview that the change in courts’ approach to regulatory matters is likely to be profound.

“The Roberts opinion seems to think courts have all the right answers,” he said.

Federal agencies such as the Education Department will have specific authority when Congress spells it out clearly in the laws it passes, but many statutes have vague and ambiguous provisions, and courts will now have more power to essentially make policy decisions, Greene said.

A case on fishing rules has major implications

The case before the court involved a challenge to a federal regulation requiring the Atlantic herring fishing industry to pay for federal observers who are authorized by statute and join vessels to prevent overfishing. But the justices made clear they were taking up the case to decide whether to overrule Chevron.

The case attracted wide attention from business interests, which wanted to see Chevron deference go. Amid dozens of briefs filed in the case, just one focused some attention on the Department of Education and the then-pending Title IX regulation.

A friend-of-the-court brief that was written and filed last year by the Alliance Defending Freedom, the Scottsdale, Ariz.-based legal organization that has fought against transgender rights in several arenas, argues that the department’s then-pending Title IX rule would interpret “sex” under the statute to mean “gender identity,” with implications for school sports and restrooms.

“When the department’s final rule issues, the agency will likely inevitably [invoke] Chevron deference,” says the brief. “No court should be forced by Chevron to defer to the department’s claim that Title IX means the opposite of what it says. The statute deals with discrimination on the basis of sex, not gender identity, and Title IX’s direct reference to a male-female binary excludes any gender identity interpretation.”

(The department’s final rule actually did not invoke Chevron, but that may be because the doctrine has nothing to do with the Title IX regulations but would be something the federal government would cite in defending the rule.)

In a statement reacting to the Loper Bright decision, Alliance Defending Freedom Senior Counsel Julie Marie Blake said the court “has rightly held that unelected, unaccountable bureaucrats can’t weaponize federal laws to violate Americans’ most fundamental rights.”

There is a practical matter worth noting with regard to the work Chevron has been doing with regard to Education Department regulations.

U.S. Solicitor General Elizabeth B. Prelogar submitted to the court a list of cases, going back decades, in which the Supreme Court had invoked Chevron deference. There was only one case on the list involving an Education Department rule—a 2007 case, Zuni Public School District v. Department of Education, which involved a regulation about the distribution of federal impact aid.

Roberts, in his majority opinion, noted that the Supreme Court has not deferred to an agency interpretation under Chevron since 2016.

Only brief discussions of Chevron in recent challenges to Title IX rule

The recent lawsuits challenging the department’s final Title IX rule, some of which involve states and other plaintiffs represented by Alliance Defending Freedom, have been filed in federal district courts where they were likely to end up before conservative judges.

In the two decisions so far that have blocked the rule in at least some states, the judges made quick work of Chevron deference.

In a June 17 ruling involving a challenge by Tennessee, Indiana, Kentucky, Ohio, Virginia, and West Virginia, U.S. District Judge Danny C. Reeves of Lexington, Ky., acknowledged that “Chevron requires a federal court to accept the agency’s construction of the statute, even if the agency’s reading differs from what the court believes is the best statutory interpretation.”

“But an agency has no authority to promulgate a regulation that undoes the unambiguous language of the statute,” Reeves said, which is what he concluded the Education Department was doing with its expansive view that Title IX’s protection against sex discrimination covered transgender students.

Citing the then-pending Supreme Court case, Reeves said he “recognizes that Chevron’s future is uncertain. However, this uncertainty does not impact the court’s analysis because it does not defer to the department’s interpretation of Title IX under Chevron.”

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