Chevron ruling introduces judicial governance (opinion)

Friday’s Supreme Court decision in Loper Bright, striking down the Chevron doctrine, marks a seismic shift in higher education compliance. Uncharted legal territory lies ahead: The Supreme Court has reduced the authority of federal regulators and expanded the authority of federal judges in regulatory cases. An era of federal regulation is coming, one that is to be largely governed by the federal judiciary.

There were plenty of signs that this new ruling, which would reduce the authority of federal regulators and strengthen the hand of federal judges, was on the way. The Supreme Court has already invalidated federal agency actions (most notably related to environmental regulations and student loan forgiveness) under the “leading questions” doctrine developed in 2022—a precursor of things to come. But several administrative law shocks have failed to prepare the higher education sector for life after Loper Bright.

Don’t be fooled into thinking this is the end of dynamic, difficult, sometimes inconsistent compliance mandates for higher education. Instead, higher education’s regulatory experience is likely to become even more complex and legalistic.

Loper Bright concludes with deference to federal agency interpretation of federal statutory language, ruling that judges should have the final say on federal statutory interpretation. Perhaps the sky won’t fall. Federal courts can, and likely will, support federal agency actions in future rulings. In many ways, life in the regulatory world surrounding higher education can go on largely as usual. But there are important aspects of federal higher education regulation that are likely to go straight to the desks of federal judges for near-immediate review.

Let’s start with Title IX of the Education Amendments of 1972. There are already federal lawsuits and injunctions against the 2024 Title IX regulations. Loper Bright can be expected to create a new and more effective platform to attack the 2024 regulations, or even the 2020 regulations. Do the 37 words of Title IX support federal regulations mandating robust systems for handling complaints against colleges? What will happen to the legal meaning of the word “sex,” which Congress itself did not define in Title IX? Can federal courts gut all or most of the current Title IX regulations?

Or consider the cardiovascular regulation of higher education. Accreditation is the foundation on which federal money flows to colleges. The current accreditation systems—supervised by the Department of Education, which recognizes and authorizes accreditors—are already under legal attack and are likely to become the target of further litigation and scrutiny after Loper Bright. Debt relief was already a focal point of the principal questions doctrine preceding Loper Bright. Gainful employment and financial oversight laws, regulation of the online program management industry, and state authorization laws are all ripe for even more intense federal judicial scrutiny.

Leaving aside some obvious first targets for potential criminal justice reform, it’s hard to believe how many different ways it could ultimately affect current higher education regulations. Disability rights laws? FERPA? Clery Act regulations? Fair Labor Standards? OSHA workplace safety standards? Title IV compliance? Nothing is so sacred as to escape potential Loper Bright scrutiny.

One difficult feature of compliance work in the future is that the law is the law until it isn’t. Compliance efforts in higher education must try to decipher what is or can be supported or rejected by the judiciary. Federal courts have already begun to play a larger role in the day-to-day administration of higher education (for example, by opening the doors of the courts wider to allegations that Title IX cases were mismanaged), but that role will only expand. Does a campus want to know what it can, should, or must do? Ask the local federal courts.

The Supreme Court will not be able to do all of Loper Bright’s work on its own. Inevitably, colleges will receive orders from lower federal courts that will not be reviewed by higher courts. A Supreme Court that hears only a handful of cases per semester will not fix every inconsistent precedent in lower federal courts: even federal appellate courts will not have the resources to manage every case in their circuits. An era of potential uncertainty and inconsistency on many issues is coming. Higher education has had a taste of what lies ahead with the proliferation of complex and often inconsistent federal case law interpreting Title IX. More on-campus legally trained staff and attorneys will be needed to decipher and manage federal compliance orders on a case-by-case basis.

The hope for a seamless, coherent web of regulation? Instead, there is the distinct possibility of a tangled, complex web of governance through federal case law… and state law. Compliance mandates will increasingly vary by state and federal circuit, creating different compliance experiences for students and administrators across the country. Compliance may become increasingly situational and contextual depending on time and place. Imagine, for example, Title IX regulations being thrown out en masse. Some states may take action to increase compliance requirements with state law. California already has laws parallel to Title IX. The trend toward greater governance of compliance with state law is already underway—just witness the proliferation of DEI-related legislation over the past few years. The decline of federal regulators suggests the potential for increased state regulation.

Loper Bright is here to stay. In theory, Congress could act to revive Chevron with legislation to repeal Loper Bright. But there are significant obstacles. It is unlikely that a deeply divided Congress would take such action. Even if it did, there is no guarantee that a sitting president would not veto such legislation. Perhaps an even greater obstacle is the fact that some justices on the court see the Loper Bright ruling as fundamentally tied to constitutional separation of powers requirements. So Loper Bright may have to be overturned by the Supreme Court or subject to a constitutional amendment — neither of which is likely to happen anytime soon, if ever.

Ultimately, Loper Bright signals that compliance mandates in higher education are subject to major political forces, many of which are beyond the control of the higher education sector. While Congress remains at gridlock and the executive branch manages its own set of problems, the judicial branch of government is becoming increasingly important in resolving all legal disputes and guiding the United States. More and more cases are moving to state regulation. Widespread distrust of higher education will result in more and more issues being decided by federal courts and state laws. We should not expect fewer or easier compliance challenges as regulatory authority shifts to federal courts and state legislatures.

Whatever the operational impact on higher education, perhaps the most challenging aspect of Loper Bright will be integrating the rule of law, lawyers, and judges into our educational missions. Last semester, Harvard University asked the Supreme Court to “trust us” in its famous admissions case. The court rejected that request, insisting that universities use objective, measurable metrics that courts can evaluate in their admissions processes. Loper Bright effectively asks us to trust the court and its cultural and epistemological approach to determining legislative intent in overseeing the federal regulatory landscape. Should we? This new era of federal regulation will be a two-way street that will affect trust in the court and faith in the rule of law and lawyers as much as it does in higher education.