On Chevron deference: nothing is guaranteed and chaos is a ladder
The Supreme Court of the United States and its super-conservative majority are at it again. There was a slurry of decisions that ‘came down’ last week that had everyone in a tizzy. One particular decision, which we can call Loper Bright for short, overturned something called Chevron deference. I saw a lot of lawyers freaking out about this, and rightly so, but I wanted to give it a second thought as a socialist that thinks about education policy. What to make of the situation? Here’s a few notes.
Nothing is guaranteed
First, I think antitrust bro Matt Stoller has a solid, readable, but also detailed analysis of the decision. Read that for background.
A couple interesting things to note. First of all, Chevron deference means “judges have to defer to an administrative agency on any reasonable interpretation of the law.” This decision, made in 1984, was articulated by none other than Clarence Thomas. It was a rightwing thing to begin with:
In the early 1980s, the Reagan Environmental Protection Agency, run by Neil Gorsuch’s mother Anne Gorsuch, sought to relax air quality standards, despite the Clean Air Act being ambiguous on whether the EPA could in fact do that on its own authority. Lower courts, stacked with liberals, said Reagan couldn’t just deregulate without Congress rewriting rules. The Supreme Court, however, disagreed, and laid down the administrative principle…[where] administrations who wanted to get around populist laws and a liberal judiciary [could] just decree that the laws were no longer in force. But eventually progressive regulators used Chevron as well, much to the irritation of the corporate world.
Stoller gives a pretty concise summary of this dialectical situation, giving credence to the idea that Chevron deference was a terrain of struggle where different ideological tendencies battled it out for their conflicting interests:
At first, big business liked Chevron because it let them deregulate without having to go to Congress or the judiciary and ask them to weaken the Clean Air Act or other popular laws. Then, as they got more and more allies in the judiciary they didn’t like it because Democrats started to use it for the same reason the Republicans had, to get around Congress and a conservative judiciary.
This is my first note on the case. We shouldn’t essentialize the Supreme Court. Of course, it’s very powerful. But that doesn’t mean its decisions, made by justices with certain ideological tendencies, are guaranteed to always and forever serve conservative/capitalist purposes. Stoller notes that there are two big takeaways from the decision.
First, power is shifting over to the courts from executive agencies, which favors the ruling class because they have more money to lawyers. But also, he notes, not all regulations are good, so that’s mixed. Second, he says this decisions throws things into chaos since a lot of practices and policies are based on regulations determined by guidance from agencies.
Like Stuart Hall said, nothing is guaranteed. The same is true for the overturning of Chevron deference: who knows what’ll happen! Remember when Littlefinger said “chaos is a ladder”? Teacher unions, communities, and education organizers of all stripes should think about this decision from that struggle perspective and plan. The rightwingers certainly have been, at least in education policy.
Whiplash
When I searched for hits on twitter that included education and Chevron deference, I found conservatives more or less salivating at its being overturned. In particular, Joshua Dunn wrote an essay back in April looking ahead to see what federal education law would look like without Chevron deference.
It’s instructive to note that Dunn, and the Fordham Institute hacks who promoted his work on the rightwing Education Gadfly podcast, were so excited about Loper because it would curtail inclusive gender/sexuality policies put in place by Obama, removed by Trump, and then put back in place by Biden.
The Obama Administration’s 2011 DCL on sexual misconduct, which Harvard Law School’s Jacob Gersen and Jeanie Suk Gersen criticized for stripping students of due process rights and creating a “sex bureaucracy,” was rescinded by the Trump Administration in 2017. Now the Biden Administration is in the process of reimposing it. This kind of regulatory whiplash is hardly consistent with the rule of law. At a minimum, reining in the hyper-deference that courts have accorded OCR would reduce the uncertainty generated by the agency’s promiscuous use of DCLs and force it to go back to Congress if it wants to extend policies beyond the scope of existing statutes.
There’s two things going on here. First, there’s the repulsive attempt to make it harder to protect students against violent cisheteropatriarchy. Conservatives want that oppressive structure in place. But second, there’s the point about ‘whiplash’ of governing by Dear Colleague Letters (DCLs) issued by the Department of Education’s Office of Civil Rights (OCR). While they don’t like OCR because they’re structurally racist, they’re attacking its policies and power by undermining the governing-by-DCL practice. (They’ve had a hard-on for “getting rid of the Department of Education” since Reagan made that a weird talking point in his race against Jimmy Carter.)
The thing is, that practice itself, like Stoller notes above, was also a rightwing decision when they put it in place in the 1980s. They liked being able to issue decrees from federal agencies when they could control them in Reagan’s administration. So yeah, things will go back to the courts and congress. But those are terrains where we can fight too.
I saw a few other mentions of places where the Loper decision might have educational implications. Someone talked about how this is going to impact local school funding decisions in New Jersey, since “School districts' abilities to request tax increases may be challenged more, potentially limiting flexibility and leading to more legal battles over property taxes.”
But another person gives a reality check here:
Killing Chevron deference doesn’t dismantle the Department of Education or erase student protections overnight. Major changes like scrapping national standards or redirecting funding need Congress. States still control their own school funding decisions, ensuring local standards and protections remain. Legal and constitutional safeguards for student rights aren’t vanishing because of this ruling
So what does this actually mean in the dialectic? Let’s ask this question and think about it in terms of class struggle rather than essentialism.
My last note is that labor is more powerful than it’s been in a long time. It’s nowhere near where it could or should be, but people are unionizing and working with their unions more and more, while social movements have taken to the halls of representative and parliamentary politics for awhile. Let’s get serious. We should figure out what laws certain agencies have interpreted in ways that hurt schools, then sue them and get judges to interpret these in ways that help schools.
Like, what federal agencies’ interpretations most impact state departments of education and school districts? How can those interpretations be challenged or protected to make public education more public?
Unions could and should take these things to court.
Two buckets of laws come to mind: (a) all the Titles (Title I, Title IX, etc) that are federal education laws passed by congress and interpreted by the DOE, which then sends guidance to states and districts (like Dun et al say), & (b) all the federal regulations that influence state and local education law. I’m thinking of how the Bureau of Labor Statistics and Department of Commerce decide the poverty level, eg, which impacts Title 1A funding.
Overall, let’s not get bogged down in essentialism. Let’s ask these questions, draw up some possibilities, and take advantage of the situation. The right is definitely going to do that, but we have resources on the left that should go towards this project too. Nothing is guaranteed, and chaos is a ladder.