The leak of a draft opinion in a major abortion case, Dobbs v. Jackson Women’s Health Organization, has swallowed much of the news cycle on the Supreme Court lately. That’s probably why the court’s 6-3 decision on the plain text of civil rights law may have gone largely unnoticed.
In an opinion authored by Chief Justice John Roberts, the court held in Cummings v. Premier Rehab Keller that damages for emotional distress are not recoverable in private actions to enforce the Rehabilitation Act of 1973 or Section 1557 of the Affordable Care Act.
Both provisions prohibit discrimination based on disability in any program that receives federal funding.
Joining Roberts in the April 28 ruling were Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.
Petitioner Jane Cummings, who is deaf and legally blind, had attempted to make a physical therapy appointment at Premier Rehab in Keller, Texas, for chronic back pain. Premier Rehab, a small business and a top rehabilitation clinic, is a recipient of federal funds.
Due to her disability, Cummings requested that Premier provide her with a sign language interpreter. Premier declined, instead offering to refer Cummings to a different clinic or provide alternative accommodations.
The alternative accommodations it offered—to communicate with Cummings through written notes, lip reading, and gesturing—were, she believed, insufficient to meet her needs.
Cummings first asked Premier Rehab for an interpreter in October 2016, returning a few days later and again in February 2017. Each time, Premier denied her request.
Cummings ultimately chose another provider that offered the accommodations she sought, but received treatment she believed to be “unsatisfactory.”
In August 2018, Cummings sued Premier Rehab, but sought damages only for her “emotional distress.” Both the trial court and the U.S. Court of Appeals for the 5th Circuit held that damages for emotional harm are not recoverable in private actions brought to enforce either of the two disability laws. The Supreme Court agreed.
Federal anti-discrimination law works like a contract with the federal government. Businesses that receive federal funding agree to comply with these laws, and in doing so, accept that they may be held liable for violating the laws.
That federal funding is issued pursuant to the spending clause of the Constitution, which gives Congress the power to “lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common Defence and the general Welfare of the United States.”
Congress may attach conditions to receiving federal funds issued to the states or other entities pursuant to the spending clause, including the condition that the entities must comply with anti-discrimination law. These laws include not just the Rehabilitation Act and Affordable Care Act, but also Title IX of the Education Amendments Act of 1972 (prohibiting sex discrimination in federally funded education institutions) and Title VI of the Civil Rights Act of 1964 (prohibiting race discrimination at educational institutions).
And although these anti-discrimination statutes may be enforced by private suits and allow successful plaintiffs to recover monetary relief, that monetary relief must be in the form of “compensatory” damages—i.e., what the plaintiff actually lost in terms of physical harm or out-of-pocket expenses because of the discrimination.
By contrast, the Supreme Court has explained that punitive damages are not generally available for breach of contract because they can’t be foreseen at the time of contracting.
In the Cummings case, because both statutes were silent on the issue of emotional damages, and neither statute offered an indication of available damages for emotional distress, Premier Rehab did not have “clear notice” that it might be liable for such damages.
The court reasoned that the kind of anti-discrimination law relied upon by Cummings—laws that act as a kind of contract between the government and the entity receiving government funding—does not permit recovery of damages for emotional distress because emotional injury is not generally recoverable for breach of contract.
As Roberts wrote: “[W]hen considering whether to accept federal funds, a prospective recipient would surely wonder not only what rules it must follow, but also what sort of penalties might be on the table.”
The receipt of federal funds is often contingent on compliance with civil rights laws. So providers, companies, or schools that receive such funds could have been bankrupted had Cummings come out differently. That’s because some aggrieved plaintiff could claim to have suffered an emotional injury, but no physical or economic injury, as a result of an unforeseen violation of one of the two statutes.
Although Roberts described intentional discrimination as “wanton [and] reprehensible,” the chief justice clarified that Cummings wanted the court to treat statutory silence as a license to “freely supply remedies we cannot be sure Congress would have chosen to make available.”
This, he wrote, the court would not do.
Kavanaugh, joined by Gorsuch, wrote a concurring opinion to say that “with respect to existing implied causes of action, Congress, not this Court, should extend those implied causes of action and expand available remedies.”
Justice Stephen Breyer, joined by Justices Sonia Sotomayor and Elena Kagan, dissented, arguing that the contracts most analogous to these statutes permit damages for emotional distress, and so the court ought to have permitted such relief.
The Supreme Court’s ruling in Cummings has been criticized by some civil rights advocates who say that the court “eviscerated” remedies for violations of Title IX, among other laws.
But as the Biden administration mulls a new Title IX regulation that would eliminate due process protections for those subject to sexual harassment and assault investigations on school campuses (among other significant changes), the high court’s ruling limits remedies for opportunistic plaintiffs who will—if the Biden rule is formalized—already have the benefit of the accused’s presumption of guilt.
The attachment of liability for strictly dignitary injuries (emotional, mental, or reputational harm) also could have let loose a torrent of frivolous claims for alleged violations of federal anti-discrimination law, likely extending beyond disability law.
After all, there is no shortage of precedent on the pretextual use of anti-discrimination law by plaintiffs claiming to have suffered emotional distress at the hands of business owners who hold traditional-but-unfashionable religious beliefs.
The ruling in Cummings also reminds court watchers that the justices are bound by what the law says, not what they might wish it said.
As Kavanaugh noted in his concurrence, Congress could choose to amend civil rights laws to allow damage awards for emotional distress, but in the absence of such action, the court will rightly demur.
This won’t be the Supreme Court’s final word on available causes of action under federal civil rights law.
Next term, the court will hear Health and Hospital Corp. of Marion County, Indiana v. Talevski. In that case, the court potentially will reexamine its prior precedent—that individuals may enforce a condition that Congress imposed on the states via the spending clause by asserting a private right of action for damages under 42 U.S.C. § 1983.
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