News & Insight


The Supreme Court’s decision to grant review in Kisor v. Wilkie may have major implications for the Department of Education’s implementation and enforcement of its civil rights regulations. Kisor v. Wilkie seeks to challenge the Court’s long-standing precedent of granting deference to agencies’ reasonable interpretations of their own regulations, commonly referred to as Auer deference or Seminole Rock deference.

The named plaintiff in Kisor v. Wilkie is veteran James L. Kisor. Mr. Kisor’s appeal to the Supreme Court follows unfavorable decisions by the Board of Veterans’ Appeals, the United States Court of Appeals for Veterans Claims (“Veterans Court”) and the United States Court of Appeals for the Federal Circuit (“Federal Circuit”), which all denied his request for additional disability benefits. In the Federal Circuit, Mr. Kisor argued that the Veterans Court misinterpreted the term “relevant” for purposes of 38 C.F.R. § 3.156(c)(1), thereby unlawfully denying him additional benefits.

In deciding the case, the Federal Circuit stated that a regulation is only misinterpreted if its interpretation is: (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or in violation of a statutory right; or (D) without observance of procedure required by law. 38 U.S.C. § 7292(d)(1)(A)–(D); Sursely v. Peake, 551 F.3d 1351, 1354 (Fed. Cir. 2009). The Federal Circuit, relying on Supreme Court precedent, quoted Auer v. Robbins by stating, “[A]n agency’s interpretation of its own regulations is controlling unless plainly erroneous or inconsistent with the regulations being interpreted.”

In Auer v. Robbins, the Supreme Court upheld the Secretary of Labor’s (“Secretary”) informal interpretation of the Fair Labor Standards Act of 1938 (“FLSA”) in an amicus brief after finding that Congress had not directly spoken on who should be categorized as a “bona fide executive, administrative, or professional” for purposes of the back pay exemption. The Court determined that deference was due to the Secretary’s interpretation so long as it is “based on a permissible construction of the statute.” Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-843 (1984). Declining to limit the Secretary’s power to resolve ambiguities, the holding directed courts across the county to defer to an agency’s reasonable interpretation of its own regulation.

Under this directive, agencies have been free to interpret and reinterpret regulations largely without judicial intervention. For example, the Obama Administration re-interpreted sex discrimination protections under Title IX to include transgender students. This understanding of Title IX allowed for the Department of Education to instruct public schools to allow transgender students to use bathrooms that aligned with their gender identity. More recently, the Trump Administration employed the same Auer deference to revoke these protections.

Currently, the interpretation of Title IX’s applicability and protections are based on the reasonable interpretation of the Department of Education, but Kisor v. Wilkie could empower courts to decide the meaning of ambiguous administrative regulations. If the Court decides to limit Auer deference, the Department of Education may have less leeway to define sex and gender under Title IX in alternative ways.

The Supreme Court will hear oral arguments on March 27, 2019.

While the true effect of this case is not yet known, it will certainly be a case to watch for as its potential impact on administrative law and education regulatory compliance. Should you have any questions or concerns about the possible implications of this ruling, please feel free to contact HMBR’s Higher Education Group at 312-946-1800.

  Feb 7, 2019  |  By    |   On Education