Can You Waive A Substantive Canon?

I have written a few posts on Hecox, which I will come back to later. Here, I want to talk about the companion case, West Virginia v. B. P. J., which turned on Title IX.

Title IX is, at bottom, conditional spending legislation. Educational institutions that accept federal money have to comply with a host of requirements. Often, Title IX cases arise when a University fails to comply with some requirement, and the Federal government files suit. The remedy in such a case would be the withholding of federal funds, or some other injunctive relief to require compliance with the regulations. We have seen similar litigation by the Trump Administration against universities under Title VI. In such cases, the universities will often raise the defense that the statute failed to clearly spell out the requirement. This argument is basically an application of the clear statement rule: Pennhurst State Sch. & Hosp. v. Halderman (1981) requires that conditional spending requirements must be clearly stated.

Individual plaintiffs can also bring Title IX suits. They usually allege that the University failed to comply with some federal rule. For example, the University did not prohibit some form of sex discrimination or the University failed to afford the accused with adequate due process. But in these plaintiff-initiated suits, it is less likely that the University would challenge whether the regulation itself was invalid.

Justice Jackson pointed out that the Court has not had occasion to apply the clear statement rule outside the context of damages cases.

JUSTICE JACKSON: But, counsel, can I just ask you about this, though? Have we ever applied the Spending Clause’s notice requirement outside of the damages context? Because, here, we’re not talking about a situation in which B.P.G. is seeking damages, and I thought that was sort of a crux of the Spending Clause analysis.

MR. WILLIAMS: I will concede, Your Honor, that many of the cases that talk about this arise in the context of –or maybe even all of –

JUSTICE JACKSON: All of them.

MR. WILLIAMS: All of the cases arise in the context –

JUSTICE JACKSON: Yes. Thank you.

MR. WILLIAMS: I’ll concede as much, yes, Your Honor. But I don’t think the Court has ever suggested that a specific request for damages is the reason for its analysis. And I think that actually would be inconsistent –

JUSTICE JACKSON: But we would be having to address that, I guess, and extend it in the –in this context if we were to take a Spending Clause tack.

Assuming such a claim outside of the damages context is valid, was the issue waived in this case? This question arose during oral argument in West Virginia v. B. P. J.

West Virginia argues that Title IX should not be read to require universities to allow biologically male athletes to participate in female athletics. They invoke the clear statement rule, and contend that there was no clear indication when Title IX was adopted that this requirement was present.

This argument could provide the Court a way to rule for West Virginia, perhaps without having to address the meaning of “because of.” But Justice Gorsuch suggested that West Virginia waived the argument based on the clear statement rule:

JUSTICE GORSUCH: Counsel, I –I would have thought that’s an interesting argument, that this is Spending Clause legislation in Title IX, and Congress has to speak with a particularly clear voice, and whatever it said here isn’t clear enough. You didn’t raise that argument. And there’s an argument from your friend on the other side that you waived the argument or forfeited it at least. And it sure isn’t the lead argument in your brief. Help me out. Why?

Michael Williams, the Solicitor General of West Virginia, replied that the issue was not waived, but was not highlighted due to adverse Fourth Circuit precedent:

MR. WILLIAMS: So I think, if you’re looking at the way that West Virginia has characterized it, certainly, we have made that argument and presented that argument to this Court. I’d refer you to the topside brief. It’s clear and centered under a clear heading. As –I think what their suggestion is from the other side is that we didn’t clearly enough raise that argument below. We would take issue with that characterization. There was obviously binding contrary authority in the Fourth Circuit. And so I think, strategically, we decided not to make that the front-and-center argument because we understood that was dead on arrival in that particular court.

Williams continued that this substantive canon cannot be waived:

MR. WILLIAMS: But that’s not to say that we waived the issue by any means. It’s a canon of construction that continues to assist this Court in its application of the text of the statute. … So I think there’s really no concern in this case that you have an absent actor problem when it comes to the Spending Clause analysis. And, ultimately, of course, if it’s just a canon of construction, if you’re looking for a clear statement, then I think it would apply regardless of the particular party who might be in front of you because the statute applies across the board. You know, the regulated party is going to be affected regardless of whether they happen to be in front of you in the given case.

Justice Sotomayor stated what I think has to be correct: this canon cannot be waived:

JUSTICE SOTOMAYOR: I’m sorry. I presume that if it’s statutory construction, a canon of statutory construction, it’s hard to say you can waive that.

MR. WILLIAMS: It –it’s very hard to say you can waive that, Your Honor, yes.

Justice Gorsuch returned to this theme during his colloquy with Principal Deputy SG Hashim Moopan. The government, perhaps unsurprisingly, does not want the Court to touch the Spending Clause with a ten-foot pole.

JUSTICE GORSUCH: Mr. Mooppan, do you think that the Spending Clause should inform our analysis here?

MR. MOOPPAN: I don’t think this Court should invoke the Spending Clause analysis.

JUSTICE GORSUCH: Why not?

This exchange gets a little testy. Mooppan repeats several times that the analysis is “tricky” but Justice Gorsuch is not satisfied with that answer.

MR. MOOPPAN: For two reasons. One, we think that the statute and the regs clearly do not permit the claim.

JUSTICE GORSUCH: I understand that.

MR. MOOPPAN: And then the second is how the Spending Clause applies in the context of Title IX is, I think, a little more complicated than my friend suggested. It’s not a clear statement requirement. I think if you look at some of these clear notice cases, cases like Jackson and Geyser, I don’t think you would say that those statutes had a clear statement.

JUSTICE GORSUCH: It’s a clear notice requirement.

MR. MOOPPAN: Right. But how that applies is a little tricky. And I think in the case -JUSTICE GORSUCH: Why? I mean, your argument is then in 1974 and 1960 –sex meant biology, and that –it’s not clearly -there’s not clear notices otherwise. Why isn’t that the end of it?

MR. MOOPPAN: So I think the end of it is the statute clearly doesn’t permit this claim. I’m just saying that I would be cautious about speaking about how the clear notice requirement applies because it is not a clear statement requirement and it’s –

JUSTICE GORSUCH: I understand that. You’re –you’re –you’re not answering my question, which is –

MR. MOOPPAN: How would –so –so –

JUSTICE GORSUCH: If it’s a clear notice requirement, at minimum, and a voluntary agreement, and sex at the time of the statute meant, as Bostock said, you know, there’s good argument it’s biology. And why wouldn’t –why wouldn’t West Virginia be within its rights to say we didn’t have clear notice otherwise?

MR. MOOPPAN: The scope of the clear notice requirement is a tricky question. If you look at this Court’s cases, I suspect –

JUSTICE GORSUCH: What’s tricky about that?

MR. MOOPPAN: I suspect Your Honor would think a lot of the cases where this Court has found Title IX to apply, you would think there’s not clear notice.

JUSTICE GORSUCH: All right.

MR. MOOPPAN: And so I think it’s a tricky issue.

JUSTICE GORSUCH: All right.

MR. MOOPPAN: And I think it’s a case that should be briefed. And I don’t think it’s an issue you need to resolve in this case.

It’s tricky.