Landmark Law to Stop Gender Discrimination on Solid Constitutional Grounds, ACS Issue Brief Author Says

December 4, 2012

by Jeremy Leaming

When the Supreme Court announced in fall 2011 that it would review the constitutionality of the landmark health care reform law, civil rights groups and constitutional experts tried to highlight the lawsuits' threat to  the expansion of Medicaid coverage -- and what it would mean if the Supreme Court adopted the states' arguements against the expansion. If the high court were to decide that Congress had overstepped its spending power by penalizing states for not joining in the expansion of Medicaid it could have a potentially profound impact on other progressive laws, such as the Title VI of the Civil Rights Act and Title IX of the Education Amendments of 1972.

Writing for Slate, Simon Lazarus and Dahlia Lithwick warned that if the high court were to side with the states’ argument against the Affordable Care Act’s expansion of Medicaid (the states argued that they were being unconstitutionally coerced into expanding Medicaid) then other programs run by the states with federal dollars could be in jeopardy. The ACA sought to expand Medicaid coverage to adults below 133 percent of the Federal Poverty Line. In a 2011 ACS Issue Brief, Lazarus, senior counsel at the Constitutional Accountability Center, described the states’ arguments against the Medicaid expansion as proposing “a radical upheaval in applicable constitutional law.”

But the National Women’s Law Center’s Emily J. Martin in an ACS Issue Brief released today argues that the majority’s spending clause analysis from the high court’s ACA opinion from late June does not pose a danger to the major federal law aimed at stopping discrimination against women – Title IX.

Title IX, in part, states, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance ….”

Martin, vice president and general counsel at NWLC, provides great detail on why the Roberts Court’s spending clause analysis would not undermine the antidiscrimination law and also notes that even if Title IX were vulnerable to a spending clause challenge based on the ACA decision, it would still survive because it is an appropriate means for Congress to enforce the Fourteenth Amendment’s equal protection clause.

Chief Justice John Roberts, Martin writes, did “not set out any precise test for determining whether a Spending Power program is unconstitutionally coercive, and a fair analysis of the holding demonstrates that because Title IX is markedly different from the challenged Medicaid expansion in key ways, Title IX is constitutional, even under the Court’s re-envisioning of Spending Power jurisprudence.”

Title IX, she notes later in the Issue Brief, is “fundamentally different in its structure from Medicaid as it existed either before or after the ACA expansion. It is not a single federally funded program, but rather a condition imposed on multiple, separate federal funding streams, each of which operates independently.”

Congress, she continues, is also on solid ground because Title IX “is also an appropriate exercise of Congress’s authority to enforce the Equal Protection Clause under Section 5 of the Fourteenth Amendment. Even if a court were somehow to conclude, despite the differences in structure and scope between the Medicaid expansion and Title IX, that Title IX exceeded Congress’s Spending Power when applied to states receiving federal funding, Title IX would nevertheless apply to states as an appropriate exercise” of enforcing the Constitution’s equal protection clause.

Beyond providing solid arguments that Title IX could withstand challenges based on the ACA’s opinion in the health care case, Martin highlights the strength of Title IX in combatting discrimination against women. The law was enacted decades ago and Martin says its “has had a revolutionary effect in opening educational opportunities to women and girls over the past forty years.”

For example, Martin notes that in 1972 a mere seven percent of high school athletes were girls, “but today girls are 41 percent of those playing in high school sports.” In the same year women “received less than 20 percent of Ph.D.’s in life sciences,” while today women receive “slightly more than half ….”

Toward the end of her brief Martin explains that there is an abundance of evidence from the legislative history surrounding Title IX that “reinforces the long pattern of sex discrimination in education, repeatedly recognized by the Supreme Court, and amply demonstrates widespread violations of the guarantee of equal protection of the law by state actors”

Citing the Roberts Court’s spending power analysis from the ACA case, right-wing or libertarian groups bent on weakening or rolling back civil rights legislation are likely itching to lodge lawsuits against Title IX, if not other landmark civil rights laws.

Martin’s reasoned analysis should give progressives hope that such legal actions will fail.