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Plaintiffs suing educational institutions under Title IX can be students who have been sexually harassed or assaulted, professors denied tenure based on gender discrimination, coaches retaliated against for advocating for equal opportunity for female athletes, or students wrongfully expelled for alleged sexual misconduct. Title IX, which forbids gender discrimination in education, is an important tool for a variety of people who believe that they have been harmed by discrimination at educational institutions. Unfortunately for these diverse plaintiffs, going forward it seems very unlikely that they will be able to recover emotional distress damages on their Title IX claims.
On May 16, 2023, Judge Talwani in the Massachusetts federal district court held in Doe v. Town of North Andover that emotional distress damages can no longer be awarded to plaintiffs in Title IX cases following the Supreme Court’s decision in Cummings v. Premier Rehab Keller, P.L.L.C. In Cummings, the Supreme Court held that plaintiffs cannot recover emotional distress damages in claims under the Rehabilitation Act of 1972 and the Affordable Care Act. Both the Rehab Act and the ACA are statutes that Congress enacted using its authority under the Constitution’s Spending Clause. Congress can require entities that receive federal funds to follow specific rules, including rules against discrimination, and has used that power to enact four major civil rights statutes: the Rehab Act, the ACA, Title IX, and Title VI (forbidding racial discrimination in education). But, the Supreme Court said in Cummings, the validity of Spending Clause legislation depends on whether recipients of federal funds are on notice of the obligations that they take on by accepting the funds, and recipients would only be on notice that they would be subject to remedies typically available in contract cases. Because damages for breach of contract would not typically include damages for emotional distress, the court held that such damages are unavailable in Rehab Act and ACA cases.
The two plaintiffs in Town of North Andover case allege that the North Andover schools failed to protect them, as high school students, from sexual assaults, and failed to respond adequately when the rapes were reported. They allege that the school violated Title IX because it was deliberately indifferent to the attacks on them, and because it subjected them to a hostile environment. North Andover moved for summary judgment on one plaintiff’s claims under Title IX. Judge Talwani found that the plaintiff had presented sufficient evidence that the school violated Title IX to permit the case to proceed to trial. North Andover additionally argued, however, that summary judgment should be granted because the plaintiffs had no “cognizable damages” because emotional distress damages were no longer available following Cummings. Judge Talwani agreed that following Cummings, emotional distress damages were not available. She did permit the case to move forward, noting that the plaintiff could seek other damages, for “tuition, school expenses, and expenses incurred as a consequence of the assaults.”
Judge Talwani’s decision does not bind other judges, but the majority of district courts to consider whether emotional distress damages remain recoverable in Title IX cases following Cummings have agreed with Judge Talwani that they are not. That conclusion seems nearly inescapable in view of the holding in Cummings, and I expect that more courts will follow the same lead. It is hard to see a principled way to distinguish between Title IX and the statutes at issue in Cummings, and in fact the Supreme Court discussed all four of the Spending Clause anti-discrimination statutes in the same breath. I would expect courts to use the same reasoning in Title VI cases.
This is very bad news for plaintiffs in Title IX (and Title VI) cases. For the specific Plaintiffs in the North Andover case, the damages still available are likely to be small and almost certainly are less than the costs of litigating the case. Title IX does have a fee-shifting provision, which lets plaintiffs recoup their legal fees from the defendant if they win—but this limitation on damages is still likely to dissuade many plaintiffs and many plaintiff-side attorneys from filing suit in cases where the bulk of the damages result from emotional injury. That is not to say that plaintiffs have no options; for some, other common law or statutory causes of action may offer the possibility of recovering additional damages. And plaintiffs who are seeking primarily injunctive relief under Title IX—such as accused students seeking reinstatement or to clear their records—would still be able to pursue that relief. But the primary way that the law is capable of meaningfully addressing harm is by awarding money damages, and people who are subjected to discrimination are usually genuinely severely emotionally harmed by their experiences. This change in the law makes it harder for courts to truly make people whole.
