THE MOST IMPORTANT DECISION NO ONE IS TALKING ABOUT: WHAT CUMMINGS MEANS FOR THE FUTURE OF CIVIL RIGHTS
By: Amy Cohen, Volume 107 Staff Member
In what seems like a never-ending string of catastrophic rulings implicating our nation’s future and individual rights,[1] about ten months ago the Supreme Court laid down a major decision altering the availability of remedies for civil rights claimants that has largely gone unnoticed by the public. When petitioner Jane Cummings, who is legally deaf and blind, requested Premier Rehab Keller provide her with an American Sign Language interpreter at her physical therapy appointments, she was denied.[2] Her experience prompted the suit against Premier Rehab, in which Cummings claimed its failure to provide the interpreter violated the Rehabilitation Act and the Patient Protection and Affordable Care Act (ACA), causing her “humiliation, frustration, and emotional distress.”[3] The Supreme Court held in her case that “emotional distress damages are not recoverable under the Spending Clause antidiscrimination statutes.”[4] When considering remedies for violations of Spending Clause statutes, the Court posited that the relevant question is whether “a prospective funding recipient, at the time it ‘engaged in the process of deciding whether [to] accept’ federal dollars, have been aware that it would face such liability.”[5] Consequently, only those “remedies traditionally available in suits for breach of contract” are actionable,[6] effectively limiting recovery to economic harm caused by discrimination.[7]
Cummings is a major loss for those seeking to safeguard civil rights. The decision means that if the only type of legal harm suffered by a victim of discrimination is the emotional burden of the discrimination itself, they will not be able to bring suit against the perpetrator.[8] The Court justified its holding by reasoning that a recipient of federal funds has entered into a contract with the federal government and thus the rules of contract law control.[9] However, as Justice Breyer points out in his dissent, “Congress’ antidiscrimination laws seek ‘the vindication of human dignity and not mere economics.’”[10]
Moreover, it is not uncommon that victims of discrimination suffer only emotional harm.[11] In an amicus brief filed by the NAACP Legal Defense Fund, the ACLU, and the National Woman’s Law Center, the organizations point out decisions involving heinous episodes of discrimination that would not be actionable if the Court made the decision it ultimately adopted.[12] While the majority concludes that a suit for breach of contract would not ordinarily allow for recovery of emotional distress damages,[13] as Justice Breyer points out, “[e]motional distress damages [are] traditionally available when ‘the contract or the breach’ was ‘of such a kind that serious emotional disturbance was a particularly likely result.’”[14] Is a contract prohibiting discrimination based on one’s immutable characteristic not one that is particularly likely to cause a result like emotional distress if breached?
Further, Cummings does not limit its reach to the statutes under which the plaintiff brought suit. The decision states it is applicable to “antidiscrimination statutes [the Court] consider[s] here,”[15] possibly referring only to the Rehabilitation Act and ACA, the two statutes under which Cummings brought suit.[16] However, the opinion itself mentions more than just those two pieces of legislation, referencing Title VI[17] and Title IX[18] as related statutes “prohibiting recipients of federal assistance from discriminating based on certain protected grounds.”[19] Lower courts have found almost unanimously that the Court’s references to Title VI and Title IX are controlling rather than merely dicta,[20] with a rare exception made only for presenting evidence of emotional distress rather than pursuing a claim.[21] Some courts have taken Cummings further and applied it to statutes not mentioned in the case at all, mostly notably Title II of the ADA.[22] Plaintiffs seeking emotional distress damages post-Cummings dispute the decision’s impact on their claims, arguing legislation like Title IX is based on more than just the Spending Clause[23] or flatly stating Cummings was “wrongly decided,”[24] but without much success.
Federal civil rights litigators are contemplating what the future may hold for their clients. Alexandra Brodsky, an attorney with Public Justice’s Students’ Civil Rights Project, frequently represents Title IX plaintiffs. She had the following to say about the decision:
Many, though not all, courts have started to apply Cummings to Title IX and Title VI lawsuits brought by students. So, lawyers are rethinking how we plead and establish damages in these cases. In the last few months, we’ve seen courts recognize that plaintiffs may still be entitled to damages for, among other things, lost educational opportunities, lost future wages, and medical expenses. Cummings was a huge blow to students, but creative lawyering can ensure these lawsuits continue, and continue to make change. I am also guessing that we see a turn toward more section 1983 claims brought along Title IX and Title VI suits against public schools, though litigants will then have to contend with qualified immunity.[25]
Brodsky has already been affected by Cummings in one of her own cases.[26] The roadblocks for plaintiffs’-side attorneys to obtain relief for their clients will likely continue to grow as more lower courts issue opinions applying Cummings.
While Cummings is a devastating decision for civil rights claimants, as Brodsky notes, attorneys can still, and will have to, make arguments justifying recovery of monetary damages. Without a fresh look from the Supreme Court or a Congress willing to pass overriding legislation, Cummings will likely undermine victims of discrimination for decades to come.
[1] See, e.g., Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2285 (2022) (holding that there is no constitutional right to an abortion); West Virginia v. EPA, 142 S. Ct. 2587, 2616 (2022) (holding that the EPA does not have authority to regulate carbon emissions in a way “that will force a nationwide transition away from the use of goal to generate electricity”); NY St. Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2156 (2022) (invalidating a New York law regulating the possession of firearms in and outside the home); see also Nina Totenberg, Can Race Play a Role in College Admissions? The Supreme Court Hears the Arguments, NPR (Oct. 31, 2022), https://www.npr.org/2022/10/31/1131789230/supreme-court-affirmative-action-harvard-unc [https://perma.cc/RF9V-Y27Q] (considering the likelihood that Supreme Court precedent on affirmative action will be overturned and potential fallout).
[2] Cummings v. Premier Rehab Keller, P.L.L.C., 142 S. Ct. 1562, 1568–69 (2022).
[3] Id. at 1569.
[4] Id. at 1576.
[5] Id. at 1570–71 (quoting Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296 (2006)).
[6] Id. at 1571 (listing, for example, compensatory damages and injunctions).
[7] Civil Rights Remedies in Cummings and Implications for Title VI and Title IX, Congressional Rsch. Serv. (June 29, 2022), https://crsreports.congress.gov/product/pdf/LSB/LSB10775 [https://perma.cc/3DL6-GKUR] (“Under Cummings, it appears that compensatory relief in a private suit will now be limited to recovery for economic harm caused by unlawful discrimination under [Spending Clause] statutes.”).
[8] Cummings, 142 S. Ct. at 1576 (affirming the Fifth Circuit’s dismissal of Cummings’ complaint that alleged only emotional harm).
[9] Id. at 1570 (“[T]he ‘legitimacy of Congress’ power’ to enact Spending Clause legislation rests not on its sovereign authority to enact binding laws, but on ‘whether the [recipient] voluntarily and knowingly accepts the terms of th[at] ‘contract.’”) (quoting Barnes v. Gorman, 536 U.S. 181, 186 (2002)). The Cummings Court analyzes Barnes at length, which held that punitive damages are not recoverable under Spending Clause legislation. Id. at 1569–74.
[10] Id. at 1579 (Breyer, J., dissenting) (quoting Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 291 (1964) (Goldberg, J., concurring)).
[11] See Making Sense of the Supreme Court’s Terrible Civil Rights Decision in Cummings v. Premier Rehab, Kaufman, Lieb, Lebowitz & Frick (May 19, 2022), https://www.kllflaw.com/news-articles/making-sense-of-the-supreme-courts-terrible-civil-rights-decision-in-cummings-v-premier-rehab [https://perma.cc/A9F8-NMUM] (“[E]motional injury is the primary—and often the only—harm caused by discrimination.”); Raymond Sterling, A Blow to Civil Rights: The Supreme Court’s Decision to Uphold Discrimination, Colum. Undergraduate L. Rev. (Dec. 27, 2022), https://www.culawreview.org/journal/a-blow-to-civil-rights-the-supreme-courts-decision-to-uphold-discrimination [https://perma.cc/ELJ4-5JU9] (“Because the Court has now allowed funding recipients to discriminate against minorities—as long as it does not graduate to the level of pecuniary loss—minority groups are once again subjugated at the behest of majority groups.”).
[12] Brief of Amici Curiae the NAACP Legal Defense & Educational Fund, Inc. et al. in Support of Petitioner at 14, 21, Cummings v. Premier Rehab Keller, P.L.L.C., 142 S. Ct. 1562 (2022) (No. 20-219) (noting the cases of Zeno v. Pine Plains Central School District, where a Black high school student in a predominantly white school was repeatedly called the n-word and other racial slurs and assaulted for years, and Franklin v. Gwinnet County Public Schools, where a high school student was sexually abused by her teacher).
[13] Cummings, 142 S. Ct. at 1572–73.
[14] Id. at 1577 (Breyer, J., dissenting) (quoting Restatement (Second) of Contracts § 353 (Am. L. Inst. 1979)).
[15] Id. at 1576.
[16] See id. at 1568.
[17] Title VI prohibits “any program or activity receiving Federal financial assistance” from discriminating based on “race, color, or national origin.” 42 U.S.C. § 2000d.
[18] Title IX prohibits “any education program or activity receiving Federal financial assistance” from discriminating “on the basis of sex.” 20 U.S.C. §1681(a).
[19] See Cummings, 142 S. Ct. at 1569.
[20] See, e.g., Party v. Ariz. Bd. of Regents, No. CV-18-01623-PHX-DWL, 2022 WL 17459745, at *4 (D. Ariz. Dec. 6, 2022) (“[A]lthough it is true that the plaintiff in Cummings only asserted claims under the Rehabilitation Act and the ACA (and not under Title IX), the opinion makes clear that the Court’s logic would apply in all ‘actions brought to enforce Spending Clause statutes’ and specifically identifies Title IX as one such statute. Thus, Cummings applies with full force here.” (citation omitted)); K.G. v. Woodford Cnty. Bd. of Educ., No. 5: 18-555-DCR, 2022 WL 17993127, at *2 (E.D. Ky. Dec. 29, 2022) (“The same logic [in Cummings] applies to private actions brought under Title IX.”); Doe v. Duerfahrd, No. 4:18-CV-72-JVB-JEM, 2022 U.S. Dist. LEXIS 213403, at *2 (N.D. Ind. Nov. 28, 2022) (granting summary judgment in favor of the defendant on the issue of emotional distress damages for Title IX action under Cummings); see also A.T. v. Oley Valley Sch. Dist., No. 17-4983, 2023 U.S. Dist. LEXIS 16619, at *6–7 (Pa. E.D. Feb. 1, 2023) (noting that “nearly every [c]ourt from other [c]ircuits that have considered the issue have concluded that the Cummings decision applies to Title IX as well” and citing nearly a dozen cases).
[21] See, e.g., Doe v. Purdue Univ., No. 4-18-CV-89-JEM, 2022 WL 2828238, at *4 (N.D. Ind. July 20, 2022) (holding that “because Cummings was not a Title IX action, it does not make evidence of emotional distress or harm inadmissible”).
[22] See, e.g., Montgomery v. D.C., No. 18-1928, 2022 WL 1618741, at *23 (extending the holding of Cummings to Title II of the ADA because it “incorporates the ‘remedies, procedures, and rights set forth in” the Rehabilitation Act); Pennington v. Flora Cmty. Unit Sch. Dist. No. 35, No. 3:20-CV-11-MAB, 2023 WL348320, at *2 (S.D. Ill. Jan. 20, 2023) (“Because Title II of the ADA incorporates the remedies set forth in the Rehab Act (which, in turn, incorporates the remedies set forth in Title VI of the Civil Rights Act), it therefore follows that emotional distress damages are also not available in suits brought under the ADA [under Cummings.])” (footnote omitted)).
[23] See Doe 1 v. Curators of Univ. of Mo., No. 19-CV-04229-NKL, 2022 WL3366765, at *2 (W.D. Mo. Aug. 15, 2022) (“[Plaintiffs] contend that Congress also relied on the Fourteenth Amendment when it passed Title IX so Cummings, Barnes, and other cases about the Spending Clause do not apply. The Court disagrees.”).
[24] See Hejmej v. Peconic Bay Med. Ctr., No. 17-CV-782, 2022 WL5429675, at *6 (E.D. N.Y. July 5, 2022) (“[T]he Court rejects Plaintiffs’ arguments that Cummings should not be followed because it: (1) was wrongly decided; and (2) does not apply retroactively.”).
[25] Interview with Alexandra Brodsky, Staff Attorney, Public Justice (Feb. 6, 2023).
[26] See Doe v. Fairfax Cnty. Sch. Bd., No. 1:18-CV-00614-MSN-IDD, 2023 U.S. Dist. LEXIS 13886, at *10 (Jan. 25, 2023) (“Having reviewed Cummings and its progeny, the Court finds that its holding cannot be distinguished and applies to claims brought under Title IX . . . . Accordingly, Plaintiff is precluded from seeking emotional distress damages in this case.”).