Cummings: How the Supreme Court Said Goodbye to Emotional Distress Damages in Title IX Cases…

Published: June 22nd, 2023

By: Andy Goldwasser


Last year, the Supreme Court issued a decision in a disability discrimination case that has made it harder for young sexual abuse and harassment victims to recover damages.  In the matter of Cummings v. Premier Rehab Keller, P.L.L.C, 142 S.Ct. 1562 (2022), the plaintiff, a deaf and legally blind woman, sought physical therapy services from the defendant to treat her back pain.  Because of her physical limitations, the plaintiff primarily communicated using American Sign Language and requested that the defendant provide her with an interpreter during her session.  The defendant refused, but offered to provide her therapy using written notes, lipreading or gesturing or allowing the plaintiff to provide her own interpreter.  The plaintiff stated that she could not communicate using these methods and sought therapy at another physical therapy provider.  The plaintiff then asserted claims against the defendant for disability discrimination pursuant to the Rehabilitation Act of 1973 and the Patient Protection and Affordable Care Act of 2010.  The defendant was subject to a private action under these Acts as it accepted federally funded Medicare and Medicaid payments for services.   The only damages the plaintiff asserted were damages due to humiliation, frustration and emotional distress.

After the district court dismissed her claims and the Fifth Circuit Court of Appeal affirmed the dismissal, the plaintiff appealed to the U.S. Supreme Court, who accepted the appeal to determine whether emotional distress damages are available under § 504 of the Rehabilitation Act.  Justice John Roberts, writing for the majority, noted that the Rehabilitation Act was enacted in accordance with the Spending Clause wherein Congress can condition an offer of federal funding on certain terms, including a promise not to discriminate.  The Spending Clause essentially creates a contract between the federal government and the recipient of federal funds.  As such, the power of Congress to enact legislation in accordance with the Spending Clause is limited to the recipient’s acceptance of the terms of the contract.  Based on the prior holding in Barnes v. Gorman, 536 U.S 181 (2002), Justice Roberts concluded that only those damages that are “traditionally available” for a breach of contract claim are available to an individual asserting a claim under Spending Clause legislation such as the Rehabilitation Act.

To determine whether emotional distress damages were “traditionally available” for a breach of contract claim, Justice Roberts considered treatises and state court decisions.  The briefs submitted by the appellant and the United States as amicus curie argued that damages for emotional distress are “traditional contract remedies” because they are allowed when the breach is of such kind that emotional disturbance was a likely result and discrimination often results emotional distress.  Justice Stephen Breyer agreed with this analysis in his dissenting opinion.  While Justice Roberts recognized this argument, he ultimately rejected it and concluded that the possibility that emotional distress would result from a violation of Spending Clause legislation is not likely enough to put recipients of federal funding on notice of the potential consequences of the acceptance of those funds.  Damages are to be limited to those that are “traditionally,” “generally,” or “normally” damages for contract actions.  Emotional distress damages are only available for “highly unusual contracts” that create an exception to the traditional damages available pursuant to a contract.  Therefore, the Court held that emotional distress damages are not recoverable under “Spending Clause antidiscrimination statutes we consider here.”

While the majority limited the holding to the “antidiscrimination statutes” at issue in the case, the implications of the Court’s analysis has already been extended to the other Spending Clause statutes mentioned in the case, mainly Title IX of the Education Amendment of 1972.  Title IX’s core directive is “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 received Federal financial assistance.”  20 U.S.C. § 1681(a).  Although the statute does not explicitly contain a private right of action, the Supreme Court has held that an individual could recover monetary damages for a violation of Title IX.  Over the years, Title IX has become the favored cause of action against schools that deliberately ignore sexual abuse or sexual discrimination claims.

These sexual abuse and/or harassment claims often include extreme emotional and psychological injuries to the victims, but no other damages as the victims are often minors who do not work or qualify for lost wages.  For example, in the case of A.T. v. Oley Valley Sch. Dist., 2023 WL 1453143 (E.D. Pa. Feb. 1, 2023), the plaintiff was the guardian of a student at Oley Valley High School who was raped by a classmate.  After the rape, the victim was subjected to repeated harassment and bullying at school for almost a year.  As a result of the harassment, the victim attempted suicide multiple times, had to be hospitalized in a psychiatric unit multiple times, had to enroll in a special placement facility, and had to transfer to another school district.  According to the complaint, the school officials were informed of the harassment and bullying and failed to take any action to stop it.  The complaint sought damages  resulting from the victim’s severe emotional distress, embarrassment, humiliation, and mental distress.  The complaint also noted that the minor would require future psychiatric and psychological care as a result of the harassment and bullying.

In resolving a motion for summary judgment filed by the school district on the Plaintiff’s claims for compensatory damages, the court in Oley Valley held that the Supreme Court’s decision in Cummings applies to Title IX.  Thus, the court granted the school district summary judgment on the Plaintiff’s claims for emotional distress damages under Title IX, including medical expenses resulting from that emotional distress.  The Plaintiff was limited to claims for lost income, lost opportunity, attorneys’ fees, and other non-emotional distress compensatory damages.  In reaching this decision, the court noted that, while a few courts have declined to apply Cummings to these types of claims, an overwhelming majority of other federal district courts have determined that Cummings bars a plaintiff from recovering emotional damages under Title IX.

Although only decided on April 28, 2022, the Cummings decision’s effect on recovery for emotional distress for school-aged victims of sexual abuse and harassment has already been felt.   Considering the current make-up of the Supreme Court and the alignment of the majority in Cummings, it is unlikely that emotional distress damages will be available in the future under Title IX unless Congress decides to amend the law to explicitly provide for such a remedy.  These victims may have other sources of recovery, including 42 U.S.C. § 1983 or Section 5 of the Equal Protection Clause if a public school or state university is involved.  Other state statutes and causes of action may also provide some recovery.  Nevertheless, the Cummings decision and its broad analysis has reduced the protections available to these victims despite the severe emotional distress they clearly suffer.