West Virginia v. EPA- Will Supreme Court Decision Impact the New Title IX Regulations?

September 29, 2022

In West Virginia v. EPA, the Supreme Court limited the Environmental Protection Agency’s (EPA) Clean Power Plan initiated by President Obama in 2015 and reduced the agency’s authority to regulate greenhouse gas emissions. While this June 2022 decision had an immediate effect on the global effort to combat climate change, the Court’s reasoning may impact other agencies, including the Department of Education.

In his majority opinion, Chief Justice Roberts based his decision on the “major questions” doctrine, a first for a majority opinion. Under the major questions doctrine, Congress has to be extremely clear and focused when authorizing an agency (like the EPA or DOE) to make “decisions of vast economic and political significance.” To apply this doctrine, the Court also set forth a two-part test: (1) does the case trigger the major questions doctrine, and (2) if so, can the agency identify “clear congressional authorization” to regulate in the way they propose.

Experts believe this decision will have two main impacts on administrative law. First, the Court’s endorsement of the major questions doctrine means that agency discretion will be closely scrutinized when regulating significant topics such as health, education, immigration, and the environment. Second, this decision weakens the well-known Chevron doctrine which gives agencies broad discretion when interpreting statutes from Congress.

In the context of education law, this ruling could impact the authority the Department of Education has to broaden the scope of Title IX in the pending 2022 Regulations. If the DOE is limited in its ability to interpret its enabling statutes, new Title IX regulations made without clear Congressional intent may be challenged. Specifically, some higher education practitioners believe that the DOE’s decision to not address transgender participation in athletics in the 2022 Title IX NPRM was motivated in part by the West Virginia ruling.

While the broad impacts of this decision are not yet known, we predict that federal agencies will have a high standard to meet before exercising their authority. As the DOE reviews the latest comments to the NPRM and a final rule is crafted, this new standard in administrative law may be examined in other industries and provide more guidance.

ICS provides a wide range of compliance services to assist institutions and school districts with staying up to date on all the latest in Title IX. Contact us for more information.