USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 46 of 150
discussed, it does not. The dissent implicitly acknowledges this point. Jill Pryor Dis. Op. at 57 n.25 (“I … have no reason to address the majority opinion’s Spending Clause argument. The Spending Clause cannon of construction only comes into play if we find ourselves dealing with an ambiguous statute.”). Moreover, schools across the country separate bathrooms based on biological sex and colleges and universities across the country separate living facilities based on biological sex. The notion that the School Board could or should have been on notice that its policy of separating male and female bathrooms violates Title IX and its precepts is untenable.[1]
Title IX’s statutory structure and corresponding regulatory scheme illustrate why a clear statement from Congress equating
- ↑ Adams contends that the School Board made this argument—that Congress must condition funds under its Spending Clause authority in an unambiguous way—for the first time on appeal. Thus, Adams argues that this Court should not consider the School Board’s argument. Adams is incorrect. We are duty bound to apply the correct law; “parties cannot waive the application of the correct law or stipulate to an incorrect legal test.” Jefferson v. Sewon Am., Inc., 891 F.3d 911, 923 (11th Cir. 2018); accord United States v. Lee, 29 F.4th 665, 669 n.2 (11th Cir. 2022) (finding that a defendant could not waive the application of the Blockburger test in connection with asserting a violation of the Double Jeopardy Clause). And we are required to apply the clear-statement rule to legislation passed under Congress’s Spending Clause authority. See, e.g., Davis, 526 U.S. at 640 (“In interpreting language in spending legislation, we thus ‘insis[t] that Congress speak with a clear voice,’ recognizing that ‘[t]here can, of course, be no knowing acceptance [of the terms of the putative contract] if a State is unaware of the conditions [imposed by the legislation] or is unable to ascertain what is expected of it.’” (alternations in original)
