TASHJY: Supreme Court’s recent decision will impact Biden's attempts to overhaul Title IX

Ken Tashjy served as General Counsel for the Massachusetts Community College System for over 21 years and currently serves as a higher education attorney and consultant. He has taught as an adjunct instructor at Suffolk University since 2008, and previously at Brandeis University as a Guberman Teaching Fellow. He received a B.A. in Psychology from Susquehanna University, an M.Ed. in Higher Education Administration from the University of Massachusetts Amherst, and his J.D. from Suffolk University Law School.  

In 1987, the U.S. Supreme Court issued a decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc., which held that federal agencies can use their regulatory authority to resolve ambiguities in federal law and that federal courts must defer to an agency’s interpretation so long as it is reasonable.

Simply put, federal agencies were now in charge of deciding what a law means, rather than the federal courts.   

This is known as the Chevron Doctrine.      

For nearly 40 years and in more than 18,000 judicial opinions, federal courts have deferred to federal agencies to reasonably interpret ambiguous federal law per the Chevron doctrine on topics ranging from regulation of tobacco products to immigration to the implementation of the Affordable Care Act.

In a recent landmark ruling, the U.S. Supreme Court struck down the Chevron Doctrine, dealing a heavy blow to the administrative state and the regulatory authority to interpret federal law wielded by federal agencies.

[Related: Supreme Court Decision Weakens Education Department]

Writing for the majority, Chief Justice John Roberts dispelled the belief that federal agencies possess some “special competence in resolving statutory ambiguities,” labelling Chevron’s presumption as “misguided.” 

Rather, “[t]he Framers anticipated that courts would often confront statutory ambiguities and expected that courts would resolve them by exercising independent legal judgment.”

With the demise of the Chevron Doctrine, the responsibility to rectify or interpret ambiguous or imprecise statutes now rests with Congress through the legislative process or the courts.

This decision comes at a time when multiple states are suing the Biden Administration to block its Final Title IX Regulations from going into effect on August 1, 2024.  

The states are challenging, among other things, the right of students to sue for sex discrimination based on their gender identity and claim that extending protections to students based on their preferred gender identity is a significant and unreasonable departure from the original intent of the law, which was to end sex discrimination against females.   

[Related: Utah governor signs resolution blocking enforcement of Biden Title IX overhaul]

In 1972, Congress passed and President Richard Nixon signed Title IX into law. 

Title IX’s primary purpose was to eradicate unequal treatment between men and women in education by breaking down discriminatory barriers, in, among other areas, admissions, financial aid, academics and athletics, and providing protections against sexual harassment. 

Over the past 52 years, the impact of Title IX has been transformative for girls and women. 

Females earning a high school diploma jumped from 59% to 92%, a college degree from 8% to 40%, and high school athletic participation dramatically rose from 250,000 to over 3.24 million.

[Related: Over 20 states sue Biden Admin for ‘destroying women’s sports’ with Title IX changes]

Opponents of the final regulations assert, among other claims, that the Department exceeded its authority by expanding the definition of sex discrimination to now include gender identity.  

Critics argue that the Department’s clarification goes well beyond Congress’s original meaning and intent of the law, which was to end discrimination and inequities based on sex in education among biological males and biological females.  

Undoubtedly, the Department of Education will claim that Title IX is ambiguous as to whether its protections against sex discrimination are limited to biological males and females, and that its clarification extending protections to gender identity is a reasonable interpretation of the law.

Now, post-Chevron, federal courts are no longer obligated to defer to the Department of Education’s interpretation of Title IX, but shall make their own independent judgment as to whether Congress intended to include gender identity within the protective purview of Title IX when it was enacted in 1972.

Some claim that shifting the responsibility for interpreting our federal laws from agency bureaucrats to federal judges will result in chaos.  

I believe it is a long overdue realignment that reaffirms the importance of the separation of powers, shifts authority away from ideologically and politically motivated federal agencies, and restores proper judicial oversight of the executive branch and the administrative state.