USCA11 Case: 18-13592 Date Filed: 07/14/2021 Page: 76 of 80
obvious that it seems absurd to recite it. The judge should not presume that every statute answers every question … . Nor should the judge elaborate unprovided-for exceptions to a text … .”); EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2033 (2015) (“We construe [a statute’s] silence as exactly that: silence.”).
Indeed, the previous opinion turned Title IX on its head by requiring a clear statement from Congress that the safe harbor protects the Board. Because Congress enacted Title IX under its Spending Clause power, U.S. Const. art. I, § 8, cl. 1, the Board’s violation must be unambiguous to trigger liability. Although the Spending Clause allows Congress to “attach conditions on the receipt of federal funds,” South Dakota v. Dole, 483 U.S. 203, 206 (1987), “[t]he legitimacy of Congress’ power to legislate under the spending power … rests on whether the State voluntarily and knowingly accepts the terms of the ‘contract.’” Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981). In other words, “if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously.” Id. This requirement unquestionably applies when courts interpret Title IX. See Davis ex rel. D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 649–50 (1999). It also applies when the appellant fails to press the issue in the district court. See Jefferson v. Sewon Am., Inc., 891 F.3d 911, 923 (11th Cir. 2018) (“[P]arties cannot waive the application of the correct law.”). So even if “sex” were ambiguous, Title IX still would not prohibit the Board’s actions. Instead, the Board
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