Alex D. Ivan
Education Law Attorney
Kennedy & Graven, Chartered

School districts defending against civil lawsuits will, at some point, likely hear their defense counsel refer to evaluations of liability and exposure.  A liability evaluation considers whether a reasonable jury would find that a defendant violated the law based on the facts of a particular case.  An exposure assessment evaluates the extent to which the defendant can be held accountable for the violation, be it through an award of money damages or some other relief.

Seemingly lost amid the significant press attention that surrounded the leaked draft opinion overturning Roe v. Wade was an actual decision by the U.S. Supreme Court that has the potential to seismically re-shape the future of American civil rights law, because it substantially curtails the scope of monetary exposure public school districts face in suits alleging violations of certain federal antidiscrimination statutes.  By a vote of 6-3, the Court in Cummings v. Premier Rehab Keller, P.L.L.C., 2022 WL 1243658 (Apr. 28, 2022) held that emotional distress damages are not recoverable under the Rehabilitation Act of 1973 (“Section 504”) and the Patient Protection and Affordable Care Act (“ACA”).

Jane Cummings, a deaf and legally blind individual, sued Premier Rehab (“Premier”), a recipient of federal funds, after Premier declined her request for an American Sign Language interpreter at physical therapy appointments, “telling Cummings that she could communicate with the therapist using written notes, lip reading, or gesturing.”   Cummings alleged Premier violated Section 504 and the ACA by discriminating against her on the basis of disability, violations for which she sought compensatory (i.e., money) damages.  Though compensatory damages are designed to compensate for an injury, Cummings claimed no physical injuries, no financial harm, and no other tangible loss from Premier’s alleged discriminatory action.  Rather, she pursued damages only for the emotional distress she claimed to have suffered.

The trial court dismissed Cummings’ complaint, concluding the only injury for which she could be compensated was emotional distress resulting from Premier’s denial and that damages for emotional distress were not recoverable under either Section 504 or the ACA.  The U.S. Court of Appeals for the Fifth Circuit affirmed the lower court’s decision, and the U.S. Supreme Court agreed, holding there was no basis to maintain emotional distress damages under either law.

Congress passed Section 504 and the ACA pursuant to the U.S. Constitution’s Spending Clause, under which “Congress has broad power . . . to set the terms on which it disburses federal funds.”  In fact, Congress has used the Spending Clause to pass numerous, well-known federal laws applicable to public school districts, including, the Family Educational Rights and Privacy Act (“FERPA”), Title VI of the Education Amendments (“Title VI”), Title IX of the Education Amendments of 1972 (“Title IX”), Title I of the Elementary and Secondary Education Act (“Title I”), and the Individuals with Disabilities Education Act (“IDEA”).

The Court has treated Section 504, Title VI, and Title IX as legislative contracts between federal funding recipients and the federal government, conditioning federal funds on promises by recipients not to discriminate. Therefore, a remedy is appropriate relief in a Spending Clause lawsuit “‘only if the funding recipient is on notice that, by accepting federal funding, it exposes itself to liability of that nature.’”

The Court in Cummings explained that federal funds recipients are on notice only of remedies (1) expressly set forth in the Spending Clause legislation and (2) traditionally available in breach of contract claims.  The Court in Cummings concluded emotional distress damages are not traditionally available in suits for breach of contract, meaning that funding recipients do not have clear notice they could be liable for emotional harm, and therefore could not unambiguously consent to that exposure.  To reach that conclusion, the Court relied on an earlier case, Barnes v. Gorman, 536 U.S. 181 (2002), in which it had held that punitive damages (i.e., damages designed to punish a defendant for egregious or intentional violations of law) are not available in Spending Clause cases, because they, too, are not generally available in breach of contract claims.

While the Court limited its opinion to claims asserted under Section 504 and the ACA, the analysis rests more broadly on the following principles:  (1) a statute enacted under the Spending Clause and (2) a judicially implied private right of action for alleged violations.  The Court’s opinion expressly identifies four antidiscrimination laws passed by Congress pursuant to the Spending Clause:  Title VI, Title IX, Section 504, and the ACA.  In so doing, the Court seems to suggest, without expressly deciding, that emotional distress damages are not recoverable under any one of these four laws.

The opinion in Cummings is clearly helpful to public school districts facing lawsuits under Section 504, because it minimizes their financial exposure when violations are found.  Courts may soon extend the analysis in Cummings to Title VI and Title IX and bar emotional distress awards for alleged violations of those two laws as well.  Even if emotional distress damages are unrecoverable, school districts should continue implementing policies and practices in compliance with Section 504, Title VI, and Title IX.  Compensatory damages remain available under these statutes and those types of damages could, under some circumstances, result in quite sizeable awards.

This article is intended to provide general information with commentary. It should not be relied on as legal advice. If required, legal advice regarding this topic should be obtained from district legal counsel.

Alex D. Ivan is an attorney with the law firm of Kennedy & Graven, Chartered. For more information, please contact him at (612) 337-9304 or

© Alex D. Ivan (2022). Used with permission.

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