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Supreme Court ruling and Congress gridlock are shifting higher-education policy toward courts and states, SHEO says
Summary
Tom Harnish told MEC attendees the Supreme Court’s recent narrowing of Chevron deference (Loperbreit Enterprises v. Bramato) moves policy decisions from agencies to courts and increases the chance that states will fill policy gaps; he cautioned this could create a patchwork of state rules and complicate regulatory consistency.
Tom Harnish, vice president for government relations at the State Higher Education Executive Officers Association, told Midwestern Higher Education Compact attendees that a major Supreme Court decision this year has limited courts’ deference to federal agencies and will change how federal higher-education policy is made.
"The Supreme Court ruled this summer that, we're actually not going to defer to federal agencies ... the courts are going to decide on the questions of law," Harnish said, describing the Loperbreit Enterprises v. Bramato decision and its effect on the traditional Chevron framework for administrative deference.
Harnish said the ruling reduces the scope for regulatory policymaking by the executive branch and increases the role of the judicial branch in resolving ambiguous statutes. Because Congress has been unable to pass major higher-education updates (the Higher Education Act has not been reauthorized since 2008, he observed), Harnish warned policymakers and institutions should expect more activity at the state level to fill policy gaps. "So we could have more of a patchwork of 50 states going in 50 different directions," he said.
He tied the court decision to the incoming administration’s likely regulatory priorities: rules that had not completed the full rulemaking process are vulnerable to discontinuation, and some areas—Title IX, student loan forgiveness, gainful-employment rules and others—may be reversed or reworked. Harnish advised higher-education officials to watch judicial developments and to prepare for increased state-level policy action on issues such as online program management and accreditation.
What happens next: Harnish suggested institutions, state higher-education agencies and trustees track court decisions and pending rulemaking closely and prepare for policy variation across states as federal regulatory tools become less reliable.
