Title IX Down but Not Out for the Count

By: Adria Lynn Silva on April 30, 2022

 

Two days ago, on April 28, 2022, the Supreme Court issued a decision in Cummings v. Premier Rehab Keller PLLC. , ___U.S.___(2022). This was a case brought on behalf of Cummings, a patient, who claimed she was not provided an ASL interpreter at a medical rehabilitation provider. Because the provider accepted federal Medicare funds, Cummings asserted that the failure to provide the interpreter was in violation of Section 504 of the Rehabilitation Act of 1973 and Section 1557 of the Affordable Care Act, which prohibit disability discrimination by federal funding recipients. Cummings sought emotional distress damages under Section 504 and Section 1557. The Supreme Court held that emotional distress damages were not available under either statute because federal funding recipients did not have clear notice that they would face emotional distress damages by accepting federal funds. Id. at 4 (citations omitted).

Since Title IX takes its implied causes of actions and remedies from Section 504, it appears that emotional distress damages may not be available under Title IX as well. However, Title IX allows for monetary damages including backpay, front pay, and future damages. These economic damages are still available under Title IX and, in the employment context, damages for back and front pay are where the largest verdicts and settlements have come down.

In terms of other types of damages, the Supreme Court has provided new parameters. Damages are available to the extent that damages are “traditionally available in suits for breach of contract”. Cummings at 15 (citations omitted). It is within these boundaries that attorneys will have to become more creative when bringing Title IX damages claims (unless and until there is a Congressional fix).

The immediate effect of the Supreme Court’s decision in Cummings will be more motion and appellate practice. As lawyers race to the courthouse to assert damage claims within the guidelines set forth by the Supreme Court, previously resolvable cases will likely become appealable as cases on damages work their way through the courts.