On January 10, 2017 Cause of Action Institute (CoA Institute) joined an amicus brief filed by the Cato Institute (Cato) in the Supreme Court case Gloucester County School Board v. G.G. to comment on an important aspect of administrative law: the scope of the Auer doctrine (taken from the Supreme Court case Auer v. Robbins (1997)), which holds that courts should generally defer to agency interpretations of their own regulations.  The case involves a challenge to a school board’s decision preventing GG, a transgender student, from using the school bathroom corresponding to his preferred gender identity.

After the board made its decision, the U.S. Department of Education weighed in, issuing an interpretive letter.  James Ferg-Cadima, the Acting Deputy Assistant Secretary for Policy for the Department of Education’s Office of Civil Rights, stated that “Title IX . . . prohibits recipients of Federal financial assistance from discriminating on the basis of sex, including gender identity, …When a school elects to separate or treat students differently on the basis of sex in those situations, a school generally must treat transgender students consistent with their gender identity.”  Thus, according to the letter, Title IX and its regulations would mandate that the school board allow GG to use his preferred bathroom.

GG sued in federal district court, alleging violations of Title IX and the Constitutions’ Equal Protection Clause.  The district court dismissed GG’s claims but on appeal the 4th Circuit overturned this decision and, applying the Auer doctrine, held that the district court should have deferred to the interpretation contained in the Ferg-Cadima letter, as the letter was not plainly erroneous or inconsistent with the statute or agency regulation.  The 4th Circuit so held even though the letter was not subject to any public consideration and was contrary to the prior understanding of Title IX’s requirements.  The case then proceeded to the Supreme Court.

CoA Institute joined with Cato and four law professors to file an amicus brief supporting the school board in order to address the issues related to Auer deference.  The brief calls the Auer doctrine into question and argues in favor of stricter limits on the latitude currently given to agencies interpreting their own regulations.  Among the problems noted by the brief are that this type of deference (1) provides incentives for agencies to issue vague regulations, which they can interpret at will without going through any public notice or comment procedures and (2) undermines the separation of powers by giving agencies the authority to both write regulations, a legislative function delegated by Congress, and to definitively determine their meaning, a judicial function.

You can read the brief here.

Josh Schopf is counsel at Cause of Action Institute