Perkins, Pell and Chevron Deference

There’s a legal time bomb lurking in the Workforce Pell program.

The new regulations around Workforce Pell build on the language around Perkins grants, which have been around for quite a while. But since the Supreme Court dropped the doctrine of Chevron deference, application of existing language is harder. And applying standards developed for degree programs to short-term certificates pretty much requires revisiting those standards. I foresee confusion.

Chevron deference is the rule promulgated by the Supreme Court in the 1980s that required courts to offer considerable deference to administrative interpretations of statutory law. As long as the interpretation was “reasonable,” it had to be allowed to stand.

(That, in itself, rests on a distinction between the legislative branch and the executive branch. Agencies like the EPA are part of the executive branch; they pass regulations based on laws passed by the legislative branch. The idea is that Congress might pass a law mandating, say, safe drinking water, but it would be left to the subject-matter experts at the EPA to determine the acceptable levels of various pollutants to make enforcement possible.)

The original case involved some Reagan-era interpretations of the Clean Air Act that environmental groups considered unduly weak; the court held that as long as the EPA’s interpretations of the law were reasonable, they had to stand. In other words, the court would show deference to those interpretations. (The Chevron name comes from the case in which the issue arose.)

While Chevron deference was never absolute—executive agencies’ interpretations had to be “reasonable”—the idea behind it was that Congress couldn’t be expected to be expert in everything. Better to have the Legislature set broad goals and then let people with expertise in the topic at hand put numbers to it.

As part of the attack on the “administrative state,” the court recently rejected Chevron deference. Now, if Congress didn’t say it, it isn’t law. (Unless it’s an executive order, but that’s another column.) So now it’s not enough for Congress to mandate safe drinking water; it has to set the actual parts per million of various pollutants allowable, along with the fines and enforcement mechanisms that can be brought to bear. The argument for that is that “bureaucrats” aren’t elected, so they shouldn’t be making law. (The same could be said for the Supreme Court, but that’s another column.) The argument against is that the new rule is effectively impossible, which is the obvious motivation behind those attacking the “administrative state.” As any creator knows, perfectionism is fatal.

The federal Perkins program refers to “high-skill, high-wage, or in-demand” programs, but doesn’t define any of those terms. Workforce Pell draws on that same language. Both effectively leave interpretation to the states; as New America’s chart shows, different states interpret that language differently.

Why deference to federal executive agencies is forbidden, but deference to state administrative agencies is fine, is a bit of a logic puzzle. It doesn’t take psychic powers to foresee legal challenges on the horizon.

When I worked with the New Jersey Council of County Colleges, one part of my job was coordinating the Perkins funding for all 18 community colleges in the state. The standard we used—which I inherited—was that to be eligible for Perkins funding, a program had to hit two out of the three federal criteria. We defined high skill as requiring a postsecondary credential, which ruled out courses in, say, acting. (Acting is a skill, but it doesn’t require a degree.)

High wage was based on labor market data and high demand was based on projected openings in a given field. Nursing hit all three, so that was an easy one. Early childhood education was high skill and high demand, but not high wage. It hit two out of three, so it was eligible. Journalism was high skill, but, tragically, it was neither high demand nor high wage. One out of three wouldn’t cut it.

Data used for demand and wages was necessarily imperfect. In the context of New Jersey, for instance, many of the higher-paying jobs that students took crossed state lines into either New York City or Philadelphia. But the data set didn’t cross state lines, so those students fell off the chart. And occupations that exist largely on tips, such as cosmetology, are subject to drastic underreporting. But at least in principle, it’s possible to set empirical criteria that are mostly right.

As far as I know, the “two out of three” standard doesn’t appear in the federal statute. It was a reasonable interpretation promulgated at the state level for the purpose of making good decisions. One could argue that it was actually a more exacting standard than the federal one, since the federal language used “or” in a list, which typically means any one item in the list would suffice. But if challenged, I’d be hard-pressed to explain why state agencies should receive judicial deference that federal agencies do not.

Workforce Pell tries to apply those same standards to short-term programs. With new money at stake, we’ll need some clarity on what the rules are, which means we need some clarity on who gets to say what the rules are. In the absence of such clarity, I could imagine someone with an ideological opposition to public spending in general launching a legal challenge, citing the overthrow of Chevron as precedent. It wouldn’t take much.

To my mind, the obviously correct resolution would be for the Supreme Court to restore Chevron deference and be done with it. But I don’t see that happening any time soon. If it doesn’t, some of the ground rules on which higher ed has relied for decades will be newly vulnerable to legal challenges, with students caught in limbo. We could wind up with a well-meaning new program becoming the unintended stalking horse for something much, much worse.