Management by Judiciary

The Supreme Court’s Friday decision in the Loper Bright case, overruling the Chevron doctrine, signals a seismic shift for higher education compliance. Unfamiliar legal territory lies ahead: the Supreme Court has diminished the authority of federal regulators and increased the power of federal judges in regulatory matters. Here comes a federal regulatory era destined to be managed heavily by the federal judiciary.

There were many signals that this new ruling, diminishing the authority of federal regulators and empowering federal judges, was on its way. The Supreme Court had already countermanded federal agency action (notably related to environmental protection regulations and student loan forgiveness) under the “major questions” doctrine minted in 2022—a prognosticator for what was to come. However, a few administrative law tremors did not prepare the higher education industry for life after Loper Bright.

Do not be lured into thinking that this is the end of dynamic, challenging, at times inconsistent compliance mandates for higher education. Instead, higher education’s lived regulatory experiences likely will only become more complex and legalistic.

Loper Bright ends deference to federal agency interpretation of federal statutory language, holding that judges should have the final word on federal statutory interpretation. Perhaps the sky is not falling. Federal courts may, and likely will, back federal agency actions in future rulings. In many ways life in the regulatory world around higher education might proceed largely as usual. However, there are prominent aspects of federal regulation of higher education that are highly likely to land squarely on federal judges’ desks to review almost immediately.

Let’s start with Title IX of the Education Amendments of 1972. There are already federal lawsuits and injunctions in effect regarding the 2024 Title IX regulations. Expect Loper Bright to create a new and more potent platform for attack on the 2024, and even 2020, regulations. Do the 37 words of Title IX support federal regulation mandating elaborate college grievance systems? What will become of the legal meaning of the word “sex” that Congress itself left undefined in Title IX? Might federal courts eviscerate all or most of the current Title IX regulations?

Or let’s turn attention to regulation of the cardiovascular systems of higher education. Accreditation is the foundation upon which federal monies flow to colleges. The current systems of accreditation— supervised by the Department of Education, which recognizes and empowers accreditors—are already under legal attack and are likely to become targets for further litigation and scrutiny following Loper Bright. Debt relief has already been a focal point under the major questions doctrine preceding Loper Bright. Rules on gainful employment and financial oversight, regulation of the online program management industry, and state authorization rules risk even more intense federal judicial scrutiny.

Moving past a few obvious first targets for potential judicial reform, it is mind-boggling to think about all the various ways the current regulation of higher education ultimately may be impacted. Disability law regulations? FERPA regulations? Clery Act regulations? Fair Labor Standards? OSHA workplace safety standards? Compliance with Title IV of the Civil Rights Act? Nothing is sacred enough to avoid potential Loper Bright scrutiny.

A tricky feature of compliance work moving forward will be that the law is the law until it is not. Higher education compliance efforts must attempt to decipher what is and may be subject to support or rejection from the judiciary. Federal courts had already begun to play an increasing role in day-to-day management of higher education (for example, in opening the courthouse doors wider to allegations that Title IX matters have been mismanaged), but this role will only grow larger. Does a campus want to know what it can, should or must do? Ask your local federal judiciary.

The Supreme Court will not be able to do all the Loper Bright work itself. Inevitably, colleges will receive mandates from lower federal courts that will not be reviewed by higher courts. The Supreme Court, which takes only a few cases per term, will not rectify every inconsistent precedent in lower federal courts: even federal circuit courts of appeal will not have the resources to manage every matter in their circuits. An era of potential uncertainty and inconsistency on many issues looms. Higher education has had a preview of what lies ahead in the proliferation of complex and often inconsistent federal case law interpreting Title IX. Greater involvement on campus of legally trained staff and lawyers will be needed to decipher and manage federal compliance mandates on a case-by-case basis.

Hope for a seamless, coherent web of regulation? Instead, there is a distinct possibility of a tangled, complex web of management by federal case law … and state law. Compliance mandates will increasingly vary state to state and federal circuit to federal circuit—creating different compliance experiences for students and administrators across the country. Compliance may become increasingly situational and contextual to time and place. Imagine, for example, Title IX regulations are thrown out en masse. Some states might move to increase state law compliance requirements. California already has laws paralleling Title IX. The trend toward greater state law compliance management is already well under way—simply look at the proliferation of DEI-related legislation in the last few years. The fall of federal regulators suggests a potential for the rise of state regulation.

Loper Bright is here to stay. Theoretically, Congress might act to revive Chevron with legislation overruling Loper Bright. However, there are major obstacles. It is unlikely that a deeply divided Congress will take such action. Even if it did, there is no guarantee that a seated president would not veto such legislation. Perhaps an even greater hurdle could arise from the fact that some justices on the court view the Loper Bright ruling as essentially connected to constitutional requirements of separation of powers. Thus, Loper Bright might have to be overruled by the Supreme Court or be subject to constitutional amendment—neither of which is likely to occur soon, if ever.

Ultimately, Loper Bright signals that higher education compliance mandates are subject to grand political forces, many of which are beyond the control of the higher education industry. As Congress remains gridlocked and the executive branch manages its own set of issues, the judicial branch of government is taking on ever greater significance in refereeing all legal disputes and running the United States. More matters are devolving to state regulation. Widespread mistrust of higher education will drive ever more issues to be decided by federal courts and state laws. Do not expect fewer or easier compliance challenges as regulatory power shifts to federal courts and state legislatures.

Whatever its operational impacts on higher education, perhaps the most challenging feature of Loper Bright will be integrating the rule of law, lawyers and judges with our educational missions. Last term Harvard University asked the Supreme Court to “trust us” in its famous admissions case. The court rejected this entreaty, insisting that colleges use objective, measurable metrics that courts can evaluate in admissions processes. Loper Bright effectively asks us to trust the court and its cultural and epistemological approaches to determining legislative intent as it supervises the federal regulatory landscape. Will we? This new era of regulation under federal law will be a two-way street that will impact trust in the court, and faith in the rule of law and lawyers, as much as in higher education.