Title IX and the Spending Clause

What does Title IX have to do with Obamacare?  The answer is in the Constitution.  Congress can only pass legislation pursuant to one of its constitutionally enumerated powers, and for both Title IX and one provision in the Affordable Care Act (a/k/a/ Obamacare) Congress relied on the same provision -- the Spending Clause.  This provision of the Constitution gives Congress broad power to spend money, and pursuant to this power, Congress can conditional spending on the recipients agreement to comply with certain conditions.  In the case of Title IX, recipients of federal education funding agree not to discriminate on the basis of sex.  In the case of the Affordable Care Act, one of its provision asked states who agree to take federal funding for Medicaid to expand its coverage to include individuals with a higher income level than the current eligibility level.  While the Supreme Court upheld most of the Affordable Care Act under a different constitutional provision (i.e., the Taxing Clause) the Court struck down the Medicare expansion as a violation of the Spending Clause.   Given that Title IX is also Spending Clause legislation, does the Supreme Court decision about Obamacare jeopardize Title IX as well?

In a recently published issue brief, the American Constitution Society and author Emily Martin explain that, notwithstanding the Court's new Spending Clause jurisprudence, Title IX remains safe from attack.  Martin argues that Title IX is sufficiently different from the Medicaid provision of the Affordable Care Act to be affected by the Supreme Court's recent decision striking it down.  First, the Medicaid provision in the ACA made conditional requirements on the states themselves, impinging on state sovereignty in ways that Title IX -- which binds mostly private entities, along with state institutions but not the states themselves -- does not.  Next, the amount of federal money subject to conditions in each of these laws differs by degree.  In the case of the Medicaid provision, enough federal money was at stake for the conditions to be deemed coercive -- states wouldn't have been able to say no to them with so much federal money on the line.  But in the education context, schools can (and a few even do) opt out of federal money in order not to have to comply with Title IX. The amount of money at stake is not enough to constitute coercion.  This distinction is further illustrated by the fact that Title IX contains a provision limiting the federal funds that are conditioned on compliance to only those funds that may be demonstrated to be supporting the discrimination at issue. 

Finally, unlike the Medicaid provision of the ACA, Title IX is justified not only by the power vested in Congress by the Spending Clause, but also by the power vested in Congress by the Fourteenth Amendment as well.  Title IX overlaps with the Fourteenth Amendment when it comes to prohibiting sex discrimination by state educational institutions, and the extent to which Title IX's prohibition on discrimination extends to private institutions as well, is still within the outer boundary of Congress's enforcement power as defined by the Supreme Court.  

Kudos to the American Constitution Society and Emily Martin for proactively addressing this issue and providing the response to any potential challenges to Title IX under the Court's new Spending Clause jurisprudence.