The recent Supreme Court decision in Loper Bright Enterprises v. Raimondo marks a significant shift in how federal courts will approach administrative agencies’ interpretation of laws, including Title IX regulations. If a statute was ambiguous or left an administrative gap, the long-standing Chevron deference, established in Chevron v. NRDC, required a court to defer to the judgment of the administrative regulatory agency if its interpretation of the statute was reasonable.[1]
By overturning Chevron, the Supreme Court in Loper Bright now requires courts to exercise their independent judgment when deciding whether an agency acted within its statutory authority.[2] The Court asserted that prior Chevron deference “forced judges to abandon the best reading of the law in favor of view of those presently holding the reins of the Executive Branch.”[3] Because we have seen different applications of Title IX under each Presidential administration, this decision has significant implications for Title IX, particularly with regard to ongoing legal challenges related to gender equality in collegiate athletics and participation of transgender athletes.
Title IX Enforcement
The elimination of Chevron deference means that courts are likely to scrutinize more closely the regulations implemented under Title IX. In the past, courts have given the Department of Education much leeway in creating and implementing policies. As an example, the Court of Appeals for the First Circuit stated, “The degree of deference is particularly high in Title IX cases because Congress explicitly delegated to the agency the task of prescribing standards for athletic programs under Title IX.”[4] Now, with courts exercising more direct oversight, any rules and regulations will likely face more frequent and increasingly difficult legal challenges.
If universities believe Title IX rules or enforcement actions are misaligned with the statute, we could also see an increase in litigation originating from universities. For example, if the Department of Education brings an enforcement action against a university for certain violations, the university may now see a path to a successful challenge, rather than paying a large fine or settlement.
Legal Uncertainty Lies Ahead
The Biden administration implemented new Title IX regulations that were to be effective as of August 1, 2024. However, courts in many states have already issued preliminary injunctions prohibiting the administration from enforcing the new regulations, while the regulations remain effective in the rest of the country.[5] Rather than deferring to the agency, each court now imposes its own interpretation of the statute when issuing a ruling. For these regulations, that likely means that there will be no national resolution until it reaches the Supreme Court, or Congress passes clarifying legislation.
Even though the case was about fishing, the Loper Bright decision ends the era of Chevron deference, and ushers in a new era of courts actively seeking out their own statutory interpretations. Stakeholders across collegiate athletics should be prepared for an increase in legal challenges as a result. Whether courts throw out the last 50 years of Title IX precedent remains to be seen in the years ahead.
[1] Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837 (1984).
[2] Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244 (2024).
[3] Id. at 2285.
[4] Cohen v. Brown Univ., 991 F.2d 888, 895 (1st Cir. 1993).
[5] https://ublawsportsforum.com/2024/10/04/recent-developments-in-the-legal-morass-of-title-ix/
Christopher Atwood (Class of 2025) is pursuing his J.D. at the University at Buffalo School of Law, with a concentration in Intellectual Property.
Congress could always enact a law that requires deference to agency interpretation of its rules.