OPINION:
Ask most people today what “Loper Bright” is, and you will likely get some funny answers: a new shampoo brand, a trendy yoga pose or even the name of a Marvel superhero. In many cases, you might get little more than a blank stare.
Yet, this seemingly obscure term refers to a major U.S. Supreme Court case decided just six months ago — one that legal experts are already calling a landmark decision with profound implications, especially for higher education and administrative law.
In 1984, the U.S. Supreme Court issued its decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc., which held that federal courts should defer to the interpretation of ambiguous laws by federal agencies, provided those interpretations are deemed “reasonable.” This became known as Chevron Deference.
Simply put, federal agencies, rather than the federal courts, were empowered to interpret what a law meant, giving agencies substantial authority and influence in shaping federal law.
For nearly 40 years, courts have deferred to federal agencies in more than 18,000 cases, ranging in topics from tobacco use, immigration and health care to environmental protection, occupational health and safety, and education policy. Chevron is arguably the “most cited administrative law case in our history.”
But that all changed with Loper Bright.
Writing for the majority, Chief Justice John G. Roberts Jr. dispelled the idea that federal agencies possess some “special competence” in resolving statutory ambiguities. He called Chevron’s presumption of deference “misguided.” He affirmed that the framers of the Constitution “anticipated that courts would often confront statutory ambiguities and expected that courts would resolve them by exercising independent legal judgment.”
The impact of Loper on the regulatory state has been immediate and significant. According to Bloomberg Law, federal agencies lost 22 of the 26 rulings in lawsuits targeting their regulations in the two months after the decision.
Now, a U.S. District Court in Kentucky has flexed its post-Chevron muscle and dealt a major blow to the Biden administration’s efforts to rewrite Title IX of the Educational Amendments of 1972 through regulatory fiat.
Title IX was signed into law to eradicate discrimination and unequal treatment between men and women based on sex in education and has had a transformative effect on girls and women since it was enacted.
It kicked in doors for females in academics, athletics and beyond, leading to gains such as an increase in high school female graduation rates from 59% to 92%, college graduation rates from 8% to 40% and a surge in female participation in high school athletics from 250,000 in 1972 to over 3 million today.
Under the Biden administration’s revised Title IX regulations, however, the Department of Education sought to expand the definition of “sex discrimination” to include gender identity.
This move would have allowed biological males who identify as female to access female bathrooms, locker rooms, showers and athletic teams and to compete for female academic and athletic scholarships and other opportunities.
In other words, biological males who identify as female would have had a legal right to access traditionally private female spaces, as well as benefit from the hard-fought gains achieved by girls and women over the past 53 years.
The Department argued that it merely offered “clarity” on sex discrimination under Title IX. Fortunately, the court didn’t buy it.
Exercising its newly minted independent legal judgment and relying on the plain text of Title IX, the court reaffirmed that Title IX and its prohibitions on sex discrimination apply only to biological males and females. The department’s efforts to expand those protections based on gender identity “turns Title IX on its head” and “eviscerates the statute.”
The court’s ruling, which struck down the Biden administration’s Title IX Final Rule, applied nationwide and sounded the death knell for the former administration’s radical attempt to redefine the law.
Critics may claim that shifting the responsibility for interpreting federal laws from executive branch agencies to federal judges will cause chaos. This argument is misguided. In reality, it is a necessary and long-overdue realignment that strengthens the separation of powers, reduces the influence of ideologically driven agency bureaucrats and reinstates proper judicial oversight over executive agency actions.
Ultimately, the Loper Bright decision ensures that our federal courts, not unaccountable, unelected agencies, will interpret the law, especially regarding core constitutional principles and fundamental rights.
• Kenneth A. Tashjy is a higher education attorney and consultant, former higher education fellow at campusreform.org, general counsel for over 20 years for 15 higher education institutions, and adjunct instructor at Suffolk University.
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