Education Dive

Dive Brief:

• The U.S. Supreme Court agreed last week to review the legal doctrine called the Auer deference, which gives federal agencies more power over interpreting their own regulations, The National Law Journal reported. The doctrine stems from a 1997 decision that directs courts to enforce a regulation as it is written if its meaning is clear and to defer to the relevant federal agency if it is ambiguous.
• The case has major implications for the higher education sector because Title IX regulations direct colleges on several key issues, including how to handle sexual misconduct on campus and what access transgender students have to gender-segregated facilities such as bathrooms and locker rooms, according to U.S. News & World Report.
• The justices’ review of the case comes at a time when the U.S. Department of Education is overhauling some provisions of Title IX, and it could ultimately impact how much say the agency has over how the final regulations are carried out.

Dive Insight:

The Auer deference has long been a target of many conservatives, who argue federal agencies use it to deliberately write vague regulations that they can then interpret however they want.

The Supreme Court could be poised to overturn the deference now that it has a conservative majority with the recent addition of Justice Brett Kavanaugh, who himself has predicted the Auer deference is on its way out. And at least four judges on the bench have signaled they are skeptical of the legal doctrine, Reuters reported.

An overturn of the Auer deference could have significant implications for how colleges handle sexual misconduct. Education Secretary Betsy DeVos proposed new Title IX rules in November that would grant more rights to the accused, narrow the types of cases that colleges will be responsible for investigating, and limit the purview of Title IX offices to harassment that occurs on campus or within a college’s program or activity.

Although DeVos has touted the proposed rules’ clarity, some Title IX and legal experts have pointed to elements that appear unclear in what they require of colleges. For example, what level of misconduct will trigger the grievance process and how Title IX offices are expected to deal with harassment that occurs online.

Meanwhile, the U.S. Department of Health and Human Services is reportedly crafting a narrow definition of sex that would effectively erase federal recognition of transgender individuals and the key protections that come with it. A ruling on the Auer deference could end up having an effect on those forthcoming regulations and the larger battle for transgender rights.

Since President Donald Trump took office, the Auer deference has already had a significant impact on court cases that concern transgender students’ rights in education.

Last year, for example, the Supreme Court was slated to take up its first lawsuit directly regarding transgender civil rights after Gavin Grimm, a transgender teen, sued the Gloucester County (Virginia) School Board over a policy that didn’t allow him to use bathrooms that align with his gender identity.

A federal appeals court ruled in favor of Grimm in 2016, deferring to Obama-era Title IX guidance that stated it was sex discrimination to bar transgender students from accessing the bathrooms that corresponded with their gender identity. The Supreme Court scheduled to hear the case in 2017, but then dropped it when the Trump administration repealed the guidance the appeals court cited, The New York Times reported. The justices also sent the case back to a lower court to review it again in light of the rescinded guidance. A district court ruled in Grimm’s favor in May 2018.

However, legal experts say issues over transgender rights could soon land at the steps of the Supreme Court. Grimm’s case is just one several similar lawsuits that have been working their way through the courts, PBS reported.