Civil Rights Remedies in Cummings and Implications for Title VI and Title IX
Legal Sidebari
Civil Rights Remedies in Cummings and
Implications for Title VI and Title IX
June 29, 2022
Section 504 of the Rehabilitation Act and Section 1557 of the Affordable Care Act (ACA) prohibit
various types of discrimination in federally funded programs and other covered entities. The Supreme
Court recently held in Cummings v. Premier Rehab Keller that a plaintiff bringing suit to enforce Section
504 and Section 1557 cannot recover emotional distress damages. Emotional distress damages are a form
of relief aimed at compensating individuals for emotional harm or injury caused by the unlawful conduct
at issue. As neither Section 504 nor Section 1557 contains statutory text specifying whether emotional
distress damages are available in a private suit, the Court interpreted the statutes in light of common law
contract doctrine to conclude that neither statute permits such a remedy. 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 those statutes.
This Sidebar discusses the Court’s analysis in Cummings, including its reliance on common law contract
principles to interpret statutes like Section 504, which the Court reads as legislation enacted based on
Congress’s Spending Clause power. The Spending Clause basis and operation of several civil rights
statutes are more fully explored in other CRS reports. This Sidebar reviews the likely impact of the
Court’s decision on the availability of emotional distress damages under other statutes, such as Title VI of
the Civil Rights Act of 1964 (Title VI) and Title IX of the Education Amendments of 1972 (Title IX), and
potential considerations for Congress.
Legal Background: Private Suits and Remedies
The Supreme Court’s reasoning in Cummings builds on judicial precedent and legislative action linking
together the remedial schemes of Title VI, Title IX, Section 504, and the Age Discrimination Act. Section
504 prohibits federally funded programs from discriminating against individuals based on disability.
Section 1557 prohibits covered entities from discriminating on the grounds prohibited under Section 504,
Title VI (race, color, or national origin), Title IX (sex in federally funded education programs), and the
Age Discrimination Act (age). Section 1557 also states that the “enforcement mechanisms provided for
and available under” Title VI, Title IX, Section 504, and the Age Discrimination Act apply to Section
1557 violations. In light of such legislative action and earlier judicial decisions, courts have generally
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treated remedies under these four statutes in a largely parallel manner: if a remedy is permitted or
foreclosed under one, courts have permitted or foreclosed them under another.
When Title VI was enacted in 1964, followed by Title IX several years later, neither statute expressly
addressed whether an individual harmed by unlawful discrimination could bring a private suit seeking
relief for these statutory violations. The Supreme Court has long interpreted Title VI and Title IX to
permit private suits to enforce their provisions and has separately addressed the remedies available in
such private rights of action. For example, in 1979, the Court interpreted Title IX in Cannon v. University
of Chicago to permit a private suit in light of several considerations relating to Title VI. The Court pointed
out that lower courts had consistently interpreted Title VI to permit a private suit and presumed that
Congress was aware of these interpretations. Stating that Congress modeled Title IX after Title VI, and
Title IX’s drafters explicitly assumed it would be interpreted as Title VI had been, the Court concluded
that Congress intended Title IX to likewise permit individual enforcement. In 1992, the Court reached the
question in Franklin v. Gwinnett County Public Schools of available relief in a Title IX suit to hold that a
plaintiff could recover monetary damages.
While the Court has interpreted Title IX’s remedial scheme in relation to Title VI, Congress has also
legislatively linked the remedies of another statute to Title VI. Section 504, enacted nearly a decade after
Title VI, provides that the “remedies, procedures, and rights set forth in Title VI” shall apply to aggrieved
individuals under Section 504. Section 504 does not otherwise specify types of relief available in a private
suit for statutory violations. In addition, implicitly endorsing Cannon, Congress enacted legislation in
1986 (the Civil Rights Remedies Equalization provision) to permit private suits in federal court against
state entities under Title VI, Title IX, Section 504, and the Age Discrimination Act, but without specifying
particular remedies.
Given this legislative coupling of Section 504 remedies to Title VI, when the Court considered in Barnes
v. Gorman whether punitive damages were available in a Section 504 suit, it also had to address whether
Title VI permitted the award of punitive damages. In the absence of text in Title VI expressly addressing
punitive damages, however, the Court turned to common law contract doctrine as an interpretive tool. In
the Court’s view, Spending Clause-based statutes operate much like a contract in which the federal
government offers federal financial assistance in exchange for recipients’ agreement to comply with
certain requirements. Extending that contract analogy, the Court has explained that recipients must have
clear notice of those requirements. In the context of remedies, the Court reasoned in Barnes that—in the
absence of express statutory text—a federal funding recipient would lack the requisite notice that it was
liable for damages for which common law doctrine did not traditionally provide a damages remedy for a
breach of contract. The Court concluded that because common law contract doctrine treats punitive
damages as a special remedy, and not as ordinarily available for a contract breach, funding recipients did
not have adequate notice that they were subject to punitive damages. The Court in Barnes held that it
would read Title VI—and by extension, Section 504—to foreclose the recovery of punitive damages.
Although Barnes addressed the relationship between Section 504 and Title VI, Section 504 is not the only
civil rights statute that links its remedies to Title VI. In 2010, Congress enacted Section 1557 and linked
that statute’s enforcement to the “enforcement mechanisms provided for and available under” Title VI,
Title IX, Section 504, and the Age Discrimination Act. Section 1557 does not otherwise address or specify
available remedies.
The Supreme Court’s Analysis in Cummings
The Cummings plaintiff, who is deaf and legally blind, alleged that a federally funded health care
provider’s refusal to provide a sign language interpreter violated Section 504 and Section 1557. A federal
district court dismissed the complaint, reasoning that relief for emotional harm was unavailable under
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these statutes in light of the Supreme Court’s decision in Barnes. On appeal, the U.S. Court of Appeals
for the Fifth Circuit affirmed.
In an opinion authored by Chief Justice Roberts, the Supreme Court held that compensatory relief for
emotional harm is unavailable in suits brought under Section 504 and Section 1557. In reaching this
conclusion, the Court once again drew upon common law contract doctrine. Observing that “the statutes
at issue are silent as to available remedies,” the Court stated that it was “not obvious how to decide
whether funding recipients would have had the requisite ‘clear notice’” regarding liability in a private
right of action for emotional distress damages. Looking to its analysis in Barnes, the Court explained that
it had held that punitive damages were not available there because punitive damages under common law
contract doctrine were an “exception to the general rule,” and therefore “not enough to give funding
recipients the requisite notice that they could face such damages.”
Extending that analysis to Cummings, the Court reasoned that because emotional distress damages are
generally unavailable as a remedy for a breach of contract under common law, under Barnes, it could not
treat federal funding recipients as having the requisite notice that they could be subject to emotional
distress damages. When judicially implying a remedy in these Spending Clause civil rights statutes, the
Court explained, it will imply only those remedies “‘normally available for contract actions.’” While the
Court acknowledged that the Restatement of Contracts, a legal treatise, discusses “the special rule that
‘recovery for emotional disturbance’ is allowed” when the contract or breach at issue is “‘of such a kind
that serious emotional disturbance was a particularly likely result,’” the Court described that relief as an
exception and an unusual or narrowly applied remedy. The Court also stated that the Restatement “does
not reflect the consensus rule,” pointing to legal commentaries discussing the absence of a majority rule
for emotional harm in contract breach actions.
The Court’s opinion drew a dissent by Justice Breyer, joined by Justices Sotomayor and Kagan. While the
dissenting Justices agreed that its precedent instructed the Court to apply contract law, they disagreed with
the majority’s application of the relevant doctrine. Traditional contract law, the dissent stated, made
emotional distress damages available where a contract breach was “‘particularly likely to result in serious
emotional disturbance.’” In such contracts—like a contract for marriage, or the delivery of a sensitive
telegram—emotional distress damages were traditionally available to address the non-economic nature of
a breach in those circumstances. Civil rights statutes addressing “intentional invidious discrimination”—
such as a teacher’s sexual assault of a student—also have “clearly nonpecuniary” purposes, the dissent
stated, and are analogous to those contracts whose breach is likely to result in emotional suffering. Given
that emotional distress damages were traditionally available for such types of breach, the dissent
contended that contract law supported the conclusion that “victims of intentional violations of these
antidiscrimination statutes can recover compensatory damages for emotional suffering.” Under the
majority’s decision, the dissent stated, victims of discrimination must now provide proof of economic
harm to recover compensatory damages, “even though the primary harm inflicted by discrimination is
rarely economic.” The dissent further asserted that the Court’s interpretation departed from the remedial
schemes of other civil rights statutes for which Congress expressly allowed recovery for emotional harm,
such as Title VII of the Civil Rights Act of 1964.
Implications for Other Civil Rights Statutes
While the Supreme Court in Cummings addressed emotional distress damages in the context of a suit
brought under Section 504 and Section 1557, its reasoning in that case could be read to foreclose
emotional distress damages for claims under Title VI, Title IX, and the Age Discrimination Act.
The Court’s analysis in Cummings arguably has the most immediate effect on Title VI, as the Court held
that emotional distress damages are not recoverable under Section 504, which defines its remedies as
those available under Title VI. In addition, and more broadly, the Court’s reasoning in Cummings also
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appears to implicate emotional distress damages under Title IX and the Age Discrimination Act. Under
the rationale of Cummings, entities subject to Section 504 and Section 1557 lack adequate notice that they
could be liable for emotional distress damages in a private suit because common law contract doctrine
does not typically award such damages for a contract breach. Because the Court interprets Title IX to
require clear notice to covered entities, and the text of Title IX also does not address emotional distress
damages, some litigants might argue that the rationale of Cummings likewise forecloses emotional
distress damages in Title IX suits because covered entities lack the requisite notice that they could be
liable for emotional distress damages in a private suit under that statute. To the extent lower courts
construe the Age Discrimination Act as Spending Clause legislation modeled after Title VI and Title IX,
litigants might raise such arguments under the Age Discrimination Act as well.
The Court’s Cummings decision, however, does not change the availability of injunctive relief in such
cases, nor attorney’s fees authorized under other statutory provisions expressly permitting that recovery in
suits brought under Title VI and Title IX (see 42 U.S.C. § 1988(b)), Section 504 (see 29 U.S.C.
§ 794a(b)), and the Age Discrimination Act (see 42 U.S.C. § 6104(e)).
Considerations for Congress
Congress has broad authority to determine the remedies available for violations of federal statutes. At
present, the statutory text in Section 504, Section 1557, Title VI, and Title IX does not specify the
availability of compensatory relief for emotional harm, punitive damages, or any other relief apart from
attorney’s fees, nor does the text explicitly foreclose certain types of relief. (As noted above, attorney’s
fees are expressly made available in provisions addressing the recovery of those fees in private suits under
Title VI, Title IX, Section 504, and the Age Discrimination Act.) Apart from attorney’s fees and injunctive
relief, the Age Discrimination Act also lacks text addressing relief in a private suit.
Congress could amend some or all of these statutes to explicitly provide for or foreclose specific forms of
relief. Title VII of the Civil Rights Act, for example, contains statutory text specifically providing for
court-ordered equitable relief such as back pay awards, injunctive relief, punitive damages, and
compensatory damages for “future pecuniary losses, emotional pain, suffering, inconvenience, mental
anguish, loss of enjoyment of life, and other nonpecuniary losses.” Should there be legislative interest in
amending civil rights statutes enacted based on Congress’s power, Supreme Court precedent applicable to
such legislation requires that the remedies available for liability are set out in clear and unambiguous
terms. In an earlier decision, for example, the Court held that “expert fees” were not recoverable in a
private suit brought under another Spending Clause statute because its statutory text did not expressly
refer to expert fees or otherwise plainly indicate that such fees were recoverable.
More generally, while the Supreme Court has previously construed the remedies under Title VI, Title IX,
Section 504, and the Age Discrimination Act in a parallel manner, and Congress has previously cross-
referenced certain remedies to those available under one of those statutes, Congress could choose to
differentiate among these statutes in terms of the remedies available. Congress could also provide specific
remedies depending on the type of discriminatory conduct or nature of the claim at issue.
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Author Information
Christine J. Back
Legislative Attorney
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