The Supreme Court closed out its current term this week, issuing decisions in two cases with important implications for public schools. In Kisor v. Wilkie, issued yesterday, a surprising majority of the Court (the liberal justices plus Chief Justice John G. Roberts, Jr.) refused to overturn prior precedent requiring deference to federal agencies’ interpretations of their regulations. This so-called Auer deference is important to schools because it allows federal agencies, such as the Department of Education (ED), to continue to issue informal guidance documents with the knowledge that courts will likely defer to them in interpreting the laws that discuss. In Department of Commerce v. New York, issued today, the Court upheld a lower court’s decision to enjoin the Department of Commerce from including a question about citizenship in the 2020 census. The case means its less likely—though not impossible—that the 2020 census will contain the citizenship question, which many schools and school organizations see as a victory as the census is used to determine the granting of certain federal funds to schools.
Kisor v. Wilkie
Kisor v. Wilkie involved a challenge by a military veteran of the Department of Veterans Affairs interpretation of regulations regarding benefits. In Kisor, the Supreme Court grappled with whether to overrule a line of cases requiring courts to defer to an agency’s interpretation of its own regulations. This doctrine is often called the “Auer deference” and is based on a 1997 Supreme Court decision, Auer v. Robbins.
Supporters of the Auer doctrine claimed that deference to an agency’s interpretation makes it easier for courts to review potential challenges because they are only required to determine whether the agency’s interpretation is reasonable. Furthermore, because courts are likely to uphold the agency’s interpretation, proponents argue that it ensures consistency in interpretation and implementation.
Challengers of the deference doctrine, including the National School Boards Association (NSBA), argued that Auer deference allows federal agencies such as ED to use informal guidance to make new law, rather than going through the notice-and-comment process required for issuance of regulations. According to the NSBA, these informal interpretations, which are issued without public input or collaboration and can be easily changed, have the potential to cause significant confusion for schools. They also impose significant burdens on state and local entities that attempt to implement the regulations. The brief argues that agency interpretations of regulations have far-reaching effects on state and local governments, including school districts, and failing to consult with those entities through the notice-and-comment process is “not how cooperative federalism is supposed to work.”
An example of the potentially confusing impact of Auer deference for schools relates to transgender rights. In the high-profile case involving Gavin Grimm, a transgender student in Virginia who sought access to the restroom of his choice at school, a federal appeals court deferred to informal ED guidance interpreting Title IX of the Education Amendments of 1972 to cover discrimination and harassment based on gender identity. The Trump administration has since reversed course on that very issue, which, under Auer, could receive the same level of deference in a future case, leading to the opposite result. This flip-flopping of interpretations by federal agencies is one of the most significant concerns for schools resulting from the Auer doctrine.
As a result of the Supreme Court’s decision, schools will need to continue to keep up to date on federal agency interpretations and nimbly changes policies and procedures when interpretations change.
Department of Commerce v. New York
Department of Commerce v. New York concerned a challenge to the Trump administration’s decision to include a question regarding citizenship in the 2020 census. The Trump administration justified the addition of the question by saying that data on the issue of citizenship would assist the U.S. Department of Justice in enforcing voting rights. Opponents claimed that households with undocumented residents would be less likely to respond to the census, leading to an inaccurate count.
The concern of an inaccurate census count is particularly important for schools. As the NSBA explained in a friend-of-the-court brief, inaccurate census data could have substantial effects on public education funding. Specifically, census counts impact billions of dollars allocated to public programs for students, particularly those that serve the most vulnerable populations such as the National School Lunch Program, Title I grants, special education grants, and Head Start funds. Funds for such grants and programs are apportioned based on population statistics obtained through census data. Therefore, inaccurate counts mean that the children who are most dependent on federal funds would not receive appropriate dollars for supporting educational programs. Additionally, census data heavily influences local education policies, such as attendance zones, board election zones, and capital budget needs, as well as guides local education decisions.
The Supreme Court held that the Secretary of Commerce’s addition of the citizenship question violated the Administrative Procedure Act (APA) because the only justification given for the decision was found to be “contrived.” It did not outright reject the inclusion of the citizenship question, however; rather, it agreed with the lower court that the case should be remanded to allow the government to provide a better explanation for why the question is needed. Because the government’s self-imposed printing deadline for the 2020 census is June 2019, however, the decision makes it less likely that there will be a citizenship question on the 2020 census.
