Alert 06.28.22
Department of Education Proposes New Regulations Under Title IX
The Department of Education has proposed new regulations overhauling Trump-era rules governing how schools must respond to sex-based discrimination.
Alert
Alert
07.05.22
The Supreme Court recently held that emotional distress damages are not recoverable under antidiscrimination statutes enacted pursuant to the Spending Clause, including Title VI of the Civil Rights Act of 1964 (prohibiting race, color, and national origin discrimination); Title IX of the Education Amendments of 1972 (prohibiting sex-based discrimination) and the Rehabilitation Act (prohibiting discriminating because of disability) (Antidiscrimination Statutes). See Cummings v. Premier Rehab Keller, P.L.L.C., 142 S.Ct. 1562, 1576 (2022). This decision could have a significant impact on complaints brought under these statutes against institutions of higher education, which often include sizable claims for emotional distress damages.
Although none of the Antidiscrimination Statutes expressly provides victims of discrimination a private right of action, the Court has recognized an implied right of action which Congress has acknowledged and ratified. Id. (citing inter alia Cannon v. Univ. of Chicago, 441 U.S. 677, 703 (1979)). However, while “it is beyond dispute that private individuals may sue to enforce the [Antidiscrimination Statutes] it is less clear what remedies are available in such a suit.” Cummings, 142 S. Ct. at 1570 (internal quotation marks and citations omitted). For example, while plaintiffs may seek monetary damages to enforce Title IX, see Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 76 (1992), punitive damages are not an available remedy, see Barnes v. Gorman, 536 U.S. 181 (2002).
In Cummings, the Court considered whether plaintiffs could seek emotional distress damages under the Antidiscrimination Statutes and held they could not. In an opinion authored by Chief Justice Roberts, the Court explained that “Spending Clause legislation operates based on consent: In return for federal funds, the recipients agree to comply with federally imposed conditions.” Cummings, 142 S.Ct. at 1570. As a result, the Court analogized these kinds of claims to contract claims: Defendants violate the terms of their contracts with the federal government where they receive funds but do not comply with those federally imposed conditions. Accordingly, damages for violations of the Antidiscrimination Statutes are limited to those damages that would be available in a contract claim. Id. Because “it is hornbook law that emotional distress is generally not compensable in contract,” the Court concluded that a prospective funding recipient, relying on that precedent, would not have been aware it would face such liability. Id. at 1571 (citations and quotation marks omitted).
Given the significant limitation that Barnes and Cummings place on the damages available under the federal Antidiscrimination Statutes, it seems likely that plaintiffs alleging discrimination will increasingly focus on similar state and local provisions. For example, the New York City Human Rights Law (NYCHRL) was amended in 2005 because the City Council believed the NYCHRL was being “construed too narrowly” and should be “construed independently from similar or identical provisions of New York state or federal statutes.” See Local Civil Rights Restoration Act of 2005, N.Y.C. Local L. No. 85, § 1. Colleges and universities facing discrimination claims should be mindful of this when making tactical decisions, such as whether to seek removal to federal court or whether to challenge a federal court’s exercise of supplemental jurisdiction.
For more information, please contact Jeffrey P. Metzler or Max A. Winograd.