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Cummings v. Premier Rehab

A Summary of the Courts

Written by Dan Fotoples, J.D., Senior Content Developer, TNG

A recent Supreme Court decision, although not directly about Title IX, will nonetheless have a significant impact on Title IX litigation. In Cummings v. Premier Rehab, the Supreme Court held that plaintiffs may not recover emotional distress damages, in a private action, to enforce the discrimination provisions of either the Rehabilitation Act of 1973 or the Affordable Care Act. The Supreme Court’s holding will have significant impact on the future of Title IX litigation by eliminating the availability of damages due to emotional distress, a category of damages which has made up the bulk of damages in such claims since the Supreme Court ruled out the possibility of punitive damages in 2002 (Barnes v. Gorman, 536 U. S. 181, 189 (2002)).

Like the Rehabilitation Act and the Affordable Care Act, Title IX’s funding stems from Congress’s power under the Spending Clause of the U.S. Constitution. Citing Gebser v. Lago Vista Indep. School District, which is familiar to most ATIXA members as a foundational Title IX case, the Court described the general relationship between the federal government and a funding recipient in contractual terms. Put differently, the statutes in question operate as a contract, conditioning receipt of funds on a promise by the recipient to agree, within the context of each statute, to not discriminate.

As a general legal premise, the Court explored which types of damages are traditionally available for breach of contract, concluding that emotional distress damages are not commonly available in breach of contract disputes. Therefore, the Court reasoned that they are not available in private actions under the Rehabilitation Act or Affordable Care Act.

Given how Title IX funding operates under the Spending Clause, and how the Court structured its reasoning, it is logical to conclude that other courts will extend the Cummings decision to conclude that emotional distress damages are not available in Title IX actions. Such a drastic change may result in significantly fewer private actions in Title IX. Why? Currently, some plaintiff’s attorneys commonly accept Title IX cases on a contingency fee basis, knowing that if the litigation is successful, a payout based upon emotional distress would allow the attorney to recoup much of the litigation costs. We might expect that fewer attorneys will be interested in taking on Title IX cases in the future, though Title IX still provides the possibility of awarding attorney fees and costs to the prevailing party. We can also anticipate that the possibility of reduced damages may be a disincentive for plaintiffs to initiate Title IX litigation, regardless of contingency fee arrangements.

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