Implications of the Dissolution of the Chevron Doctrine on New Title IX Rules

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For a detailed analysis of these rulings, see here.

In the 1984 decision, Chevron USA v. Natural Resources Defense Council, if US Congress did not directly address the question at the center of the dispute, a court was required to uphold the agency's interpretation of the statute if it was reasonable. The Chevron doctrine allowed for a two-step process for interpreting federal statutes administered by government agencies. First, courts would determine whether Congress had directly addressed the issue at hand. If Congress had addressed the issue, courts were obligated to follow the intent of Congress. If Congress had not directly addressed the issue and the statute was left ambiguous, then courts deferred to the federal agency's interpretation.

Impacts on New Title IX Rule

Recently, the US Department of Education (ED) under the Biden Administration codified new protections for transgender students that mandate how schools must respond to sexual misconduct. The changes to Title IX will prohibit sex-based discrimination in any federally funded education program by expanding the definition of sex discrimination based on sexual orientation and gender identity. Furthermore, the ED interpreted Title IX to increase protections for sexual assault and harassment victims by lowering the threshold for initiating investigations.

The Biden Administration's new Title IX rule, set to take effect in August, faces new legal challenges following the passage of Loper Bright. Title IX is regularly at the center of political debate, sparking disagreement among states on how schools should investigate sexual misconduct. Over the course of three presidential administrations, the ED has interpreted Title IX in three different ways.

The Biden Administration's Title IX rule is facing several lawsuits seeking injunctions. With the overturning of Chevron, the ED's ability to defend its interpretation is limited. More than two dozen state attorneys general are challenging the rule in court to prevent its implementation. Several states, including Louisiana, Montana, Florida, South Carolina, and Oklahoma, have said they will not comply with the new rule. Furthermore, the federal law that barred sex-based discrimination in school settings for half a century will become more complicated without the Chevron doctrine.

Replacing the expertise of ED officials with the deliberation of judges and their staff to interpret Congressional acts is unchartered territory. This newly expanded role for the courts is unlikely to result in the deep analysis that agency experts engage in full-time. Judges and their staff do not have the luxury of extended time to become experts in interpreting Congress' intent. The approach now dictated by the Supreme Court will likely result in more delays and a need for Congress to be more deliberate with language use and intent while drafting new laws. Members of Congress can no longer leave uncertainty regarding implementation of their laws up to the agencies. This will result in fewer laws passed, more delay in the legislative process, and increased challenges to court decisions by those who cannot easily become experts in every area of law.

As Congress braces for changes following the overturning of the Chevron doctrine, we will observe in real time how our lawmakers move forward in drafting and passing laws.

Our team at ArentFox Schiff will continue to monitor and provide updates on the effects of this new approach to legislative interpretation and its direct impact on education policy throughout the country. For any questions, connect with our Government Relations team.

• David P. Grosso

  Partner
• Starshine S. Chun*

  Government Relations Coordinator