The Supreme Court on Friday struck down a 40-year-old legal precedent that helped insulate federal regulations from legal challenges, a shift that will significantly limit the executive branch’s power to make rules touching all parts of American life — including higher education.
The 6-3 decision to invalidate the doctrine known as the “Chevron deference” will narrow how the Department of Education can make policies related to student-loan forgiveness, policing student outcomes at for-profit institutions, and preventing sex discrimination on campuses.
The gutted precedent, which arose out of the 1984 Supreme Court decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., required judges to defer to agencies’ “reasonable” interpretations of “ambiguous” federal laws when considering legal challenges. Without the Chevron deference, judges will have more leeway to decide whether federal regulations are consistent with the laws that underpin them.
“Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities,” Chief Justice John G. Roberts Jr. said in the majority opinion. “Courts do.”
Many observers expect more rules, including those governing colleges, to be struck down. In fact, the effect of the ruling may be especially acute in federal higher-education policy. The major federal law governing colleges, the Higher Education Act, was last reauthorized in 2008, leaving the three subsequent presidential administrations to make policy primarily through executive rules.
Title IX Implications
Most immediately, Friday’s ruling is likely to fuel the ongoing legal challenges to the Biden administration’s recently released Title IX rule, which has already been blocked by judges in 10 states. Critics argue that the Biden administration exceeded the parameters of the gender-equity law by extending the rule to protect LGBTQ students.
“The current litigation that is pending has a higher chance of being successful now, because they have the Supreme Court precedent on their side to bolster their argument,” said Emma Redden, a lawyer with the firm Baker Donelson.
In states entangled in legal disputes over Biden’s Title IX rule, Redden says that it will take some time before college leaders receive clear guidance on policies they will need to implement. As a result, colleges will either comply with the rule by the August 1 deadline spelled out in the guidance, wait to see what happens in court, or completely ignore the new regulations.
Amid the chaos, Redden said she fears Title IX policies will begin to differ greatly from campus to campus, and become another factor students and parents will be forced to evaluate when considering where to attend.
Another hallmark Biden initiative — student-debt relief — may also be in jeopardy. After the Supreme Court nixed the administration’s plan to forgive student debt for millions of Americans last year, the White House developed new measures it planned to enact through negotiated rulemaking. But the end of the Chevron deference “could provide another avenue to challenge these rules and put the possibility for any future student debt relief measures at risk,” warned the Center for American Progress in January.
The ruling may also imperil the administration’s new overtime rule, which makes more employees eligible for overtime pay, and could also complicate federal rules governing international students.
Will Congress Step In?
Opponents of the Chevron deference have raised concerns about how the precedent has allowed federal agencies to change their rules with each new presidential administration, forcing judges to defer to the continuously evolving interpretations of agencies.
“Rather than safeguarding reliance interests, Chevron affirmatively destroys them by allowing agencies to change course even when Congress has given them no power to do so,” Roberts said in the majority opinion.
Under the Obama administration, the Education Department adopted a strict approach to regulating for-profit colleges by creating the gainful-employment rule, holding such institutions accountable for their graduates’ earnings. If too many students were unable to earn enough to repay their loans, colleges would have been required to shut down specific programs with poor outcomes. But that rule was suspended by the Trump administration, which took a more favorable stance toward for-profit colleges. Then, the Biden administration brought a version of it back.
We’re opening a legal can of worms.
Jason Altmire, president and chief executive of Career Education Colleges and Universities, a trade group representing for-profit colleges, released a statement applauding Friday’s ruling. “No agency has overreached more in exceeding congressional authority than the current U.S. Department of Education,” Altmire wrote. “We are pleased that the Supreme Court has, once and for all, restrained the ability of the ideologically driven bureaucrats in the Department to craft regulations based upon their own whims and biases, rather what Congress had intended.”
Executive action on higher-education policy in recent years has partially filled in a gap left by congressional gridlock. Rebecca Natow, a professor and director of Hofstra University‘s doctoral program in educational and policy leadership, says the court’s ruling is aimed to push Congress to take action.
But the divided body has been beset by polarization in recent years. And when it does act, higher education is seldom the focus of major legislation. “Have you met Congress? They’re doing a whole lot of nothing,” Natow said. “Expecting them to act is not realistic.”
If legislators don’t take the Supreme Court’s nudge, judges in lower courts might — and it remains to be seen how profoundly that might change federal policy. “We’re opening a legal can of worms,” said Neal Hutchens, a professor at the University of Kentucky who focuses on intersections of higher-education law and policy. “We’ll just kind of have to see how things play out over just months and years.”