Emotionally Distressed – Cummings v. Premier Rehab Keller, P.L.L.C. and Its Implications on Title IX Damages

By Steven C. Johnson, Law Clerk

Thirty years have passed since the United States Supreme Court held that plaintiffs claiming intentional violations of the Civil Rights Act of 1964, Title VI, 42 U.S.C. § 2000d; the Education Amendments Act of 1972, Title IX, 20 U.S.C. § 1681; the Rehabilitation Act of 1973 (“Rehabilitation Act”), § 504, 29 U.S.C. § 794; and the Patient Protection and Affordable Care Act (“ACA”), § 1557, 42 U.S.C. § 18116 may bring private lawsuits to recover compensatory damages in Franklin v. Gwinnett County Public Schools.[i]

Recently, the United States Supreme Court limited the Franklin holding in Cummings v. Premier Rehab Keller, P.L.L.C. by finding that emotional distress damages are not recoverable in private actions to enforce the antidiscrimination provisions of the Rehabilitation Act or the ACA. Although Cummings does not directly address Title IX, the Court’s reasoning could easily be extended to apply to Title IX.

When Congress enacts specific legislation such as the Rehabilitation Act, the ACA, Title VI, or Title IX, they are not allowed to commandeer or directly compel states or institutions to comply with the enacted statutes which serves to preserve states’ legislative authority. Therefore, to ensure states’ compliance Congress will often look to their powers enumerated directly from the United States Constitution–specifically their Spending Clause authority. The Spending Clause gives Congress the power to expend federal funds and to raise taxes to provide for the common defense and general welfare of the United States. In South Dakota v. Dole, the Supreme Court held that the Spending Clause also gives Congress the authority to withhold federal funds from states to ensure compliance with federal legislation.[ii]

States may refuse to comply with Congressionally enacted legislation, however, it will be at the expense of federal funding. In Cummings, the Court noted that the Rehabilitation Act, the ACA, Title VI, and Title IX were all statutes that Congress enacted pursuant to their Spending Clause authority. Given that states have the choice to comply with these Congressionally enacted statutes, the Court in Cummings reasoned that states’ compliance was contractual in nature and based on consent. In essence, this means that states agree to follow these statutes in return for receiving federal funds. Relying on its 2002 decision in Barnes v. Gorman, the Court in Cummings reasoned that relief under a statute enacted pursuant to the Spending Clause is only appropriate if the funding recipient is on notice that, by accepting federal funding, it exposes itself to liability of that nature.

Ultimately, the Court held that since emotional distress damages are not available in suits for breach of contract, it was impossible that recipients of federal funds knew that they were potentially exposing themselves to emotional distress damages when they contracted to comply with Congressionally enacted statutes.[iii] Although the Court was only ruling on claims under the Rehabilitation Act and the ACA, the Cummings framework will likely apply to future Title IX claims given that Title IX is similarly a Spending Clause statute. Barring emotional distress damages from Title IX claims leaves plaintiffs with only the ability to recover through injunctive relief and reasonable costs and attorney’s fees.

Despite the precedent set by the Cummings decision, plaintiffs may still be able to recover for emotional distress damages for educational discrimination under state law. New York State Law possesses a private right of action against educational institutions for a hostile educational environment under N.Y. Exec. L. § 296(4). In 2019, the definitions section of the statute, N.Y. Exec. L. § 292(39), was amended to include any public school, including any school district, board of cooperative educational services, public college, or public university under the definition of educational institution. This includes claims of sexual harassment between a teacher and a student, a coach and a student, or a coach and a student.[iv]

Similarly, Massachusetts possesses its own private right of action for a hostile educational environment against public schools and school districts under M.G.L. c. 151C § 2(g) which allows for the recovery of emotional distress damages. Civil rights attorneys may be able to achieve better results for their clients under state law and should be mindful to include these claims in their complaints.

[i] 503 U.S. 60, 76 (1992).

[ii] 483 U.S. 203, 210-11 (1987).

[iii] Cummings, 142 S.Ct. 1562, 1576 (2022); Contra Cummings, 142 S.Ct. 1562, 1577 (2022) (Breyer, Sotomayor, and Kagan J.J.J, Dissenting) (noting that in their opinion, contracts analogous to Spending Clause statutes do allow for recovery of emotional distress damages because emotional distress damages were traditionally available when the contract or the breach was of such a kind that serious emotional disturbance would likely result).

[iv] See Tesoriero v. Syosset Central School Dist., 382 F.Supp.2d 387, 400 (E.D.N.Y. 2005) (noting that sexual harassment by a teacher against a student became a violation of N.Y. Exec. L. § 296(4) after it was amended in 2003); See JD1 v. Canisius College, 2022 WL 2308902 at *16 (W.D.N.Y. 2022) (noting that an educational institution can be liable for a school employee’s sexual harassment of a student under N.Y. Exec. L. § 296(4)).