US universities fear new Supreme Court ruling on regulations

A new U.S. Supreme Court ruling against federal regulatory powers poses a profound, costly and fundamentally unpredictable threat to the norms of government oversight of higher education, the sector’s top expert body warns.

The high court’s decision, which went against its own 40-year-old Chevron deference rule, is yet another overturning of key precedents set by a majority of conservative justices during the Trump administration.

Chevron’s compliance largely gave federal agencies the authority to set the terms of implementation of laws passed by Congress — often with a wide range of options and authorities — through a process that came to be called negotiated rulemaking.

Created in 1984 as a result of a Supreme Court case against a major U.S. oil company, the measure has played a key role in shaping numerous higher education policies, including several that are still hotly contested, such as student loan protections, gender discrimination policies, accreditation, student visa processes and the treatment of for-profit institutions.

Ending Chevron’s allegiance will likely have far-reaching effects on higher education, many of them negative, said Matthew Owens, president of the Council on Governmental Relations, an association of American research universities that largely helps them with government and regulatory affairs.

Even if U.S. colleges and universities manage to avoid unwelcome, major changes in federal policy, Owens said, the process of adjusting to the post-Chevron environment will almost certainly involve expensive work to build and tear down compliance systems.

“This will result in a waste of valuable time and money that could be spent on teaching and research,” he said.

The change also carries the risk of long-term costs and complications for higher education because it will likely create a patchwork of regional differences in interpretations of legal and regulatory rules, Owens said.

“Imagine the complications that could create when universities in different district court jurisdictions collaborate on the same federal research grant but have to comply with different federal regulations,” he said. “These complications could ultimately discourage some research collaborations.”

But among those applauding the Supreme Court’s rejection of the Chevron decision was the largest group of for-profit colleges and universities in the country that have opposed various “gainful employment” provisions that tie eligibility for federal student loans to the job success of their graduates.

While presidential administrations can simply rewrite regulations written by their predecessors from the opposite political party, and often have, an association known as Career Education Colleges and Universities said it was grateful for the Supreme Court ruling because of its potential to constrain the Biden administration’s actions.

“No agency has overstepped Congress’ authority more than the current U.S. Department of Education,” said the for-profit organization’s CEO, Jason Altmire, a former Democratic member of Congress.

“The Supreme Court has once and for all curbed the ability of ideologically motivated bureaucrats in the department to create rules based on their own whims and prejudices rather than on what Congress intended.”

But current Democratic congressman Bobby Scott, the ranking member of his party’s education committee, said the prospect of higher costs and regulatory complexity is just part of the problems now facing American higher education and many other institutions affected by the loss of Chevron’s support.

An even bigger loss, Mr. Scott said, was that courts across the country would now increasingly be making decisions on complex policy issues, rather than subject matter experts in the federal government. “We are now more likely to get caught up in politicized legal battles in which bad actors can use the courts to advance their own political regulatory agenda,” he said.

Still, Owens said, it’s possible that Chevron’s compliance could ultimately lead to improved regulation of higher education and other parts of society if Congress decides to step in by hiring its own experts to allow it to be more precise in crafting laws.

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