The Uncertain Future of the Indian Child Welfare Act
Strict Scrutiny
The Federal Government's Third Theory of Civil Rights
The federal government argued that most nursing homes were private, though maybe that's not true in Indiana where this case arose. The thinking seems to be that if most schools that accept funds under Title IX are private, that would mean you couldn't actually sue state schools for violating the statute. So there's also this sense that as Justice Kagan pointed out, this theory isn't asking about the tech structure or history of a law but what Congress knew about the market participation.
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