Could the Biden administration’s proposed regulations for Title IX of the Education Amendments of 1972 be subject to a strict legal test of executive power? Two panelists at a Federalist Society event Wednesday said yes.
The panelists—Montana solicitor general Christian Corrigan and Jennifer Braceras, director of the Independent Women’s Law Center, a conservative civil liberties organization—were skeptical that the proposed regulations, once they’re finalized, would pass the strict test known as the major questions doctrine. The doctrine says in part that agencies need clear congressional authorization when carrying out policies that have economic and political significance.
The Supreme Court’s conservative majority has invoked the major questions doctrine, which grew out of conservative legal theory, to curb executive power in some recent decisions, including its nixing of the administration’s student loan forgiveness program.
Braceras said the Education Department doesn’t have the power to rewrite the Title IX statute, which prohibits sex discrimination at federally funded colleges, universities and schools. The Biden administration said in 2021 that Title IX protects students from discrimination based on sexual orientation and gender identity.
Corrigan and Braceras spoke on a panel about Education Department rule making, which was part of the Federalist Society’s daylong Education Law and Policy Conference. In addition to Title IX, the conversation among the five panelists touched on the Supreme Court’s decision to strike down President Biden’s debt-relief plan, the upcoming round of negotiated rule making related to student loan forgiveness and the legality of other student loan policies.
One panelist, Farnaz Thompson, a partner at the law firm McGuireWoods and former deputy general counsel at the Education Department during the Trump administration, cast doubt on whether the department had the authority to discharge student loans via the borrower defense to repayment rules. Under those rules, which Thompson helped to write, students can apply for debt relief if they were defrauded or misled by their institution.
On the Title IX changes, Lanae Erickson, senior vice president for social policy, education and politics at Third Way, a center-left think tank, said the Biden administration updated the definition of “sex discrimination” in response to court decisions and was generally supportive of the update.
Erickson was skeptical, however, about whether the proposed Title IX rules, particularly the provision to prohibit blanket bans barring transgender students from participating in the sport consistent with their gender identity, would meet the major questions threshold.