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Illustration of a broken pencil writing policy

The Education Department’s ability to make rules is likely going to be lacking following a Supreme Court decision striking down a 40-year precedent known as the Chevron doctrine.

Photo illustration by Justin Morrison/Inside Higher Ed | tonefotografia/iStock/Getty Images

Over the last 16 years, presidential administrations of both parties have wielded the power of the Education Department not to just carry out congressional legislative directives but also to make their own policies—reshaping the federal government’s role in higher education. They’ve retooled the 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 misconduct.

Not all of the policy changes survived legal challenges, but the legacy of legislating via regulation has endured. As Congress struggled to pass meaningful legislation related to higher education thanks to partisan gridlock, presidents increasingly opted to use the rule-making process to leave their mark on America’s colleges and universities.

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

“In one fell swoop, the majority today gives itself exclusive power over every open issue—no matter how expertise-driven or policy-laden—involving the meaning of regulatory law,” Justice Elena Kagan wrote in the dissent to last week’s ruling.

The court’s decision in Loper Bright Enterprises v. Raimondo significantly weakens the Education Department and other federal agencies and could grind the gears of higher ed policymaking to a halt unless Congress steps up, 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 guidance—whether that’s how you make staffing, compensation, training or enrollment decisions all the way down to the level of what you put on your website,” Jon Fansmith, senior vice president for government relations and national engagement at the American Council on Education, writes in an essay for Inside Higher Ed today. “It can be burdensome or contradictory and in some cases nonsensical, but mostly it was ‘the law.’ No more.”

The Biden administration’s new rules on Title IX, debt relief, gainful employment and more could all face greater judicial scrutiny in a post-Chevron environment. Case in point: On Monday a federal judge presiding over a lawsuit challenging the new Title IX rule requested that the states suing and the administration’s lawyers file briefs addressing the potential impact of the Loper Bright decision. What could happen to the batch of rules negotiated in the spring that deal with accreditation, state authorization and textbook pricing is also uncertain.

Some policy analysts, though, question the significance of the court’s decision, given that the doctrine hasn’t been applied consistently across the judiciary and that the Supreme Court hasn’t relied on it since 2016. Jason Delisle, a nonresident senior policy fellow at the Urban Institute’s Center on Education Data and Policy, said agency actions are challenged in courts all the time and judges could still side with the department.

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

“If it really is as big of a deal as people think it is, then there’s a really easy solution, which is Congress can just specify things in law more and don’t make bold moves in your regulation,” Delisle added. “What’s so bad about that?”

In a signal of what’s to come from Republicans in Congress, Dr. Bill Cassidy, a U.S. senator from Louisiana, sought more information over the weekend about how the Education Department plans to comply with the court’s ruling.

“Given your agency’s track record, I am concerned about whether and how the department will adapt to and faithfully implement both the letter and 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 deference allowed unelected bureaucrats “to exercise power that exceeds their authority” and that the decision returns the role of legislating to Congress. The association representing for-profit colleges and universities also applauded the court’s decision.

“No agency has overreached more in exceeding congressional authority than the current U.S. Department of Education,” said Jason Altmire, chief executive officer of Career Education Colleges and Universities. “We are pleased that the Supreme Court has, once and for all, restrained the ability of the ideologically driven bureaucrats in the department to craft regulations based upon their own whims and biases, rather [than] what Congress had intended.”

Chevron Deference and Higher Ed

A 14-year project at the federal level to define what it means “to prepare students for gainful employment in a recognized occupation” is a case study in how agencies rely on Chevron deference to justify their actions.

When Congress first required some higher education programs to prepare their students for gainful employment in 1965, it didn’t define the term. Then, in 2010, the Obama administration’s Education Department rolled out a proposal to measure whether students were prepared for employment largely by looking at their debt load and earnings. Programs that failed the tests in the proposal would’ve lost access to federal financial aid, though 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 regulations, citing Chevron. The Trump administration later rescinded that rule, but the Biden administration resurrected the issue last year.

The latest version of the gainful-employment rule took effect Monday and applies to programs at for-profit institutions as well as nondegree programs in any sector, but the demise of Chevron could make the regulations more vulnerable to challenge.

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

“Without Chevron deference, courts can second-guess what agencies are deciding,” said Natow. “That’s problematic. The judges and federal law clerks are lawyers, not experts. They’re not living in the regulations the way the people that work in the agencies are … Just because agencies are unelected bureaucrats, it’s not a reason to take the deference away from them. They have all of that technical knowledge, all of that expertise.”

Barmak Nassirian, vice president for higher education policy at Veterans Education Success, an advocacy group, has participated in several rounds of rule making on gainful employment and other topics. He’s worried about giving judges the power to decide higher education policy—judgments that require an understanding of the technical details of regulations.

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

Nassirian added that deference to agencies isn’t “always a happy thing,” particularly if you disagree with the party in power. But then when the politics favor your interests, he said, there are opportunities to change policies.

“That’s the nature of democracy,” he said. “This basically ends all of that.”

‘Congress Is a Mess’

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

“It shows the importance of statute moving forward, and boy, does that worry me, because Congress is a mess,” she said. “It’s hard to envision good, thoughtful, smart bipartisan [legislation].”

The Higher Education Act of 1965, last updated in 2008, is long overdue for a refresh, and Fishman said that reauthorizing the legislation that governs federal financial aid programs and a range of other policies is going to be even more important post-Chevron.

Natow expects the end of Chevron to bring federal policymaking to a “near standstill” with a divided Congress and increasing political polarization that makes bipartisan compromise elusive.

“It’s really, really hard to get any meaningful higher education legislation through Congress, and I can’t imagine [this decision] is going to jolt Congress into, all of the sudden, wanting to have the two parties work together and pass legislation.”

Ending Chevron also means that when Congress does pass a law, the legislation will have to be more detailed and clear. But, Natow said, the more detailed the legislation gets, the harder it is to build consensus.

“Legislation has to be vague or it would never get through,” she said.

Nassirian is also skeptical of Congress’s capacity to step in and fill the void left by a potentially weaker Education Department.

“Congress, at some point, has to rely on the agency,” he said. “I just can’t grasp the notion of attempting to run the government through explicit legislative authorization. So it’s hard to do lots of details. There’s lots of things that are susceptible to change that cannot be chiseled into marble through legislative language. So there has to be some discretion, some interpretive discretion, for agencies to run the system … You really ponder how we can function as a country.”

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