Can You Waive A Substantive Canon? |
Justice Gorsuch suggested that the West Virginia did not raise the clear statement rule, Justice Sotomayor countered that a substantive canon cannot be waived.
Josh Blackman | 1.15.2026 12:19 PM
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........