Fifth Circuit Upholds Title IX's State Sovereign Immunity Waiver Condition

Steven D. Schwinn, UIC John Marshall Law School

The Fifth Circuit yesterday upheld the state sovereign immunity waiver for state recipients of Title IX funding. The ruling means that state recipients of Title IX can be sued for monetary damages in federal court for violations of Title IX.

That's the same result that's long been on the books in the Fifth Circuit and all others to have considered the question.

But this case is notable because it rejects a novel claim by Louisiana (LSU was the defendant) that the Supreme Court's Medicaid ruling in NFIB v. Sebelius changed the landscape as to Title IX waiver. In particular, the state claimed that under NFIB the Title IX waiver was unduly coercive.

Not so, said the court. The court said that NFIB "does not unequivocally alter Dole's conditional-spending analysis," under which the Court previously upheld the Title IX waiver. Moreover, "[t]he threat of LSU losing what amounts to just under 10% of its funding is more like the 'relatively mild encouragement' of a state losing 5% of its highway funding . . . than the 'gun to the head' of a state losing all of its Medicaid funding [in NFIB]."