Supreme Court decision weakens Education Department

Over the past 16 years, presidential administrations of both parties have used the Education Department’s authority not only to implement legislative directives from Congress but also to create their own policies—changing the federal government’s role in higher education. They have rewritten rules for accreditors, added new accountability measures for for-profit programs, overhauled the student loan system and changed how colleges respond to reports of sexual harassment.

Not all policy changes survived legal challenges, but the legacy of rulemaking through regulation endured. As Congress struggled to pass significant higher education legislation due to partisan gridlock, presidents increasingly chose to use the rulemaking process to put their stamp on America’s colleges and universities.

But future administrations likely won’t rewrite regulations in the same way, after the Supreme Court on Friday ended a 40-year precedent that allowed federal courts to defer to agencies’ interpretations of ambiguous statutes. Supreme Court Justice John Roberts Jr. wrote in the majority opinion that the deference to agencies known as the Chevron doctrine “cannot be reconciled” with federal law dictating how the executive branch writes policy. Instead, federal judges should have the authority to determine whether a regulation complies with federal law.

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“In one fell swoop, the majority now arrogates to itself exclusive authority over every open question — no matter how expert-based or policy-laden — involving the meaning of regulatory law,” Justice Elena Kagan wrote in a dissenting opinion to last week’s ruling.

Court decision in the case The Loper Bright Enterprises v. Raimondo case significantly weakens the Education Department and other federal agencies and could paralyze the higher education policymaking process if Congress does not act, experts said Monday, warning of chaos and uncertainty for colleges and universities.

“Almost every aspect of running a modern campus is dictated in some way by federal regulations or guidelines—whether it’s how decisions are made about staffing, compensation, training, or enrollment, or the level of content that gets posted on a website,” writes Jon Fansmith, senior vice president for government relations and national engagement at the American Council on Education, in an essay for Inside higher education today. “It may be burdensome or contradictory and in some cases nonsensical, but for the most part it was ‘law.’ Not anymore.”

The Biden administration’s new Title IX rules, debt relief, gainful employment and other issues could face greater judicial scrutiny in a post-Chevron environment. For example, on Monday, a federal judge presiding over a lawsuit challenging the new Title IX rules required the suing states and administration lawyers to file briefs on the potential impact of the Loper Bright decision. There’s also uncertainty about what might happen to a batch of rules negotiated in the spring that address accreditation, state authorization and textbook prices.

Some policy analysts, however, question the significance of the court’s decision, given that the doctrine has not been applied consistently across the judiciary and the Supreme Court has not invoked it since 2016. Jason Delisle, a senior policy fellow at the Urban Institute’s Center for Education Data and Policy, said the agency’s actions are constantly being challenged in courts, and judges could still side with the department.

Delisle added that those complaining about the end of Chevron seem to support the idea that “Congress can pass vague laws and agencies can do whatever they want.”

“If this is really as big a deal as people think it is, there’s a really simple solution, which is that Congress could just be more specific in the law and not be so bold with its regulations,” Delisle added. “What’s so wrong with that?”

In a sign of coming action from Republicans in Congress, Dr. Bill Cassidy, a U.S. senator from Louisiana, asked over the weekend for more information on how the Education Department plans to comply with the court ruling.

“Given the history of your agency, I am concerned about whether and how the department will comply and faithfully implement both the letter and the spirit of this decision,” wrote Cassidy, the top Republican on the Senate Education Committee. “The department has flagrantly and repeatedly violated the law.”

Cassidy celebrated Chevron’s demise, saying in a statement that Chevron’s deference allowed unelected bureaucrats to “exercise power that exceeds their authority” and that the decision restores Congress’s legislative role. An association representing for-profit colleges and universities also praised the court’s decision.

“No agency has overstepped Congress’s authority more than the current U.S. Department of Education,” said Jason Altmire, CEO of Career Education Colleges and Universities. “We are pleased that the Supreme Court has once and for all curbed the ability of ideologically driven bureaucrats in the department to create rules based on their own whims and prejudices rather than (not) what Congress intended.”

Chevron Deference and Higher Education

A 14-year federal project to define what it means to “prepare students for gainful employment in a recognized profession” is a case study in how agencies invoke Chevron’s deference to justify their actions.

When Congress first required some higher education programs to prepare students for the workforce in 1965, it did not define the term. Then, in 2010, the Obama administration’s Education Department introduced a proposal to measure whether students were prepared for the workforce, primarily by analyzing their debt and earnings. Programs that failed the proposal’s tests would lose access to federal financial aid, although that never happened.

The 2010 version of the so-called gainful employment rule was struck down by the courts, but a district judge dismissed a challenge to the 2014 rule, citing Chevron. The Trump administration later repealed the rule, but the Biden administration resurrected the issue last year.

The latest version of the gainful employment rules went into effect Monday and apply to programs at for-profit institutions as well as part-time programs in any sector, but the collapse of Chevron could make the rules more vulnerable to challenge.

Rebecca Natow, an assistant professor of educational leadership and policy at Hofstra University who studies federal higher education policy, said the end of Chevron will likely open the door to more lawsuits challenging administrative actions ranging from regulations to guidance documents, and the latest rule on gainful employment may now be in trouble.

“Without respect for Chevron, the courts can question the agency’s decisions,” Natow said. “That’s problematic. Judges and federal paralegals are lawyers, not experts. They don’t live in the rules like the people who work in the agencies. … The fact that the agencies are unelected bureaucrats is no reason to disrespect them. They have all this technical knowledge, all this experience.”

Barmak Nassirian, vice president of higher education policy at Veterans Education Success, an advocacy group, has been involved in several rounds of rulemaking on gainful employment and other topics. He worries about giving judges the authority to rule on higher education policy — rulings that require understanding the technicalities of the law.

“We’re talking about taking on challenges that make your eyes glaze over,” he said. “The idea that you can now go to a judge who had never heard of gainful employment until this case came up—it’s hard to believe.”

Nassirian added that respect for the agency isn’t always a “happy thing,” especially if you disagree with the party in power. But when politics advance your interests, he said, there are opportunities to change policy.

“That’s the nature of democracy,” he said. “It basically ends everything.”

“Congress is a mess”

For Rachel Fishman, director of higher education policy at New America, a left-leaning think tank, the implications of Loper Bright’s decision The decision is hard to imagine in terms of the potential impact of new and future regulations. It won’t be good for students or taxpayers, he predicts, although other potential consequences are unclear.

“It shows how important it is for these bills to move forward, and boy, does that worry me because Congress is a mess,” she said. “It’s hard to imagine good, thoughtful, smart bipartisan (legislation).”

The Higher Education Act of 1965, last updated in 2008, is long overdue for a refresh, and Fishman said reauthorizing the legislation governing federal financial aid programs and a range of other policies will become even more important after the Chevron case.

Natow expects the end of Chevron will lead to a “near-total paralysis” of the federal policymaking process, with Congress divided and political polarization increasing, making it harder to reach bipartisan compromise.

“It’s really, really hard to get any significant higher education legislation through Congress, and I don’t think this decision is going to suddenly get Congress to work together and pass legislation on a bipartisan basis.”

Ending Chevron also means that when Congress passes legislation, the regulations will have to be more specific and clear. But, Natow said, the more specific the regulations become, the harder it is to build consensus.

“Legislation has to be vague, otherwise it will never get passed,” she said.

Nassirian is also skeptical about Congress’s ability to step in and fill the void created by a potentially weaker Education Department.

“Congress has to rely on an agency at some point,” he said. “I just can’t fathom the idea of ​​trying to run the government by express legislative authority. So it’s hard to do a lot of the details. There are a lot of things that are subject to change that you can’t carve in marble with legislative language. So there has to be some discretion, some interpretive discretion, for agencies to run the system. … You really wonder how we can function as a country.”