Legal Updates


December 18, 2018

The United States Supreme Court may soon redefine the balance of power between Congress, the President, and the courts to interpret federal law.  

The Supreme Court has agreed to hear Kisor v. Wilkie (Case No. 18-15), a case involving a military veteran’s appeal from a U.S. Department of Veterans Affairs (“VA”) decision.  The VA’s decision in that case is based on the VA’s interpretation of its own administrative rules concerning veterans’ eligibility for certain federal benefits.  That alone is not why Kisor matters, however.

The Supreme Court’s decision to review Kisor presents an important question that transcends Kisor itself: should the Supreme Court overrule or at least modify Auer v. Robbins, 519 U.S. 452 (1997) and Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945)?  Those cases generally hold that an administrative agency has the authority to decide how to resolve ambiguities in its own regulations and that an administrative agency’s interpretation of its own rules should be given controlling weight unless it is “plainly erroneous or inconsistent with the regulation.”  The Supreme Court’s decision to review the case is widely viewed as reflecting a number of Supreme Court Justices’ belief that the courts have yielded too much authority to interpret the law to administrative agencies, and that a retreat from Auer and Seminole Rock is in order.

At first blush, this would seem to be a debate that only a lawyer can love.  After all, how much could this fine point of law possibly matter to school and higher education officials? 


School officials know just how influential an administrative agency’s rules and interpretations of law can be.  During President Barack Obama’s second term, the U.S. Department of Justice and the U.S. Department of Education – Office of Civil Rights (“OCR”) jointly issued informal guidance announcing that Title IX’s prohibition against sex discrimination also protected transgender students.  Indeed, in a case that went all the way to the Supreme Court, the 4th Circuit Court of Appeals’ deferred to OCR’s informal guidance and, on that basis, ruled that a student had the right to use the restroom that was consistent with his gender identity.  Gloucester County School Bd. v. G.G. ex rel. Grimm, 822 F.3d 709 (2016). 

President Donald Trump’s administration was not prepared to accept the Obama administration’s interpretation of Title IX or to have OCR enforce it, however.  On February 22, 2017, the U.S. Department of Education and U.S. Department of Justice issued a joint letter stating that both Departments had decided to withdraw and rescind their previous informal guidance.  As a result, the Supreme Court sent the case back to the 4th Circuit Court of Appeals, where the case is still being litigated.

At least some Supreme Court Justices are on record as questioning the validity of Auer and Seminole Rock.  Justice Clarence Thomas wrote that “Seminole Rock deference is constitutionally suspect” in a recent dissenting opinion, in which he was joined by Justice Neil Gorsuch.  Garco Construction v. Robert Speer, Acting Secretary of the Army, (No. 17-225).  Indeed, the author of the Auer decision, the late Justice Antonin Scalia, increasingly questioned federal agencies’ authority to refine acts of Congress through interpretations of their own rules.  See, e.g., Decker v. Northwest Environmental Defense Center, 133 S. Ct. 1326, 1338 (2013). 

Public schools and higher education institutions must comply with and account for countless state and federal laws.  Unquestionably, however, the manner in which those laws apply to those institutions is often a function of how administrative agencies interpret and enforce the law. 

It is too early to tell how much the Supreme Court will modify Auer and Seminole Rock, if at all, and it seems safe to say that administrative agencies will continue to have considerable authority in the day to day application of the law to public education institutions.  Further, public education institutions in Wisconsin would generally only experience any changes adopted by the Supreme Court in circumstances where federal law applies, since Wisconsin has its own, independent legal history of deferring to state administrative agencies on matters that fall within their jurisdiction. 

Whatever the case may be, Kisor implicates fundamental issues in the relationship between the executive, legislative, and judicial branches of our government.  As a result, this case could dramatically affect the relationship between public education institutions and the governmental agencies that regulate them.  However doctrinaire and legalistic all of this may seem on the surface, this case is one worth watching. 

For questions regarding this article, please contact the author, Attorney Kirk D. Strang (email; telephone: 844.626.0906 toll free), or your Strang, Patteson, Renning, Lewis & Lacy, s.c., attorney.

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