The U.S. Supreme Court on Tuesday appeared wary about eliminating emotional distress as a form of damages in lawsuits accusing recipients of federal funds of violating major civil rights laws, including those covering race and sex discrimination in public schools.
The case before the high court in Keller v. Premier Rehab Keller PLLC (No. 20-219) involves a Texas woman, Jane Cummings, with vision and hearing impairments who sued a federally funded physical therapy provider for alleged discrimination under the Rehabilitation Act of 1973 after she was denied the provision of a sign-language interpreter.
But the justices’ ruling in the case will likely affect the availability of emotional distress damages in multiple civil rights statutes that often cover schools.
Cummings’s suit includes a claim for compensatory damages for emotional distress. Two lower courts ruled that such emotional distress damages are not available under the Rehabilitation Act, or by extension under Title VI of the Civil Rights Act, which bars discrimination based on race and other factors in federally funded programs.
The U.S. Court of Appeals for the 5th Circuit, in New Orleans, held that under high court precedent, the remedies available for a violation of a federal law enacted pursuant to the “spending clause” in Article I of the U.S. Constitution are limited to those for which the federal-funding recipient is “on notice” and those “traditionally available in suits for breach of contract.”
The logic of the appeals court’s decision would also apply to Title IX of the Education Amendments of 1972, which bars sex discrimination in federally funded schools. Cummings appealed to the Supreme Court.
“Emotional distress damages are the most common and often the only form of compensatory damage remedy for victims of intentional discrimination,” said Andrew Rozynski, the lawyer representing Cummings.
Arguments touched on federal laws prohibiting race and sex discrimination in schools
The question of emotional-distress damages “of course … applies to the cluster of statutes including, say, Title IX,” Justice Amy Coney Barrett observed during the arguments.
Colleen R. Sinzdak, an assistant to the U.S. solicitor general arguing in support of allowing emotional-distress damages, quickly agreed with Barrett.
She said that if the opposite were correct, then a high school student who won a major 1992 Supreme Court decision in Franklin v. Gwinnett County Public Schools that she could sue under Title IX for compensatory damages over her sexual harassment and abuse by a teacher, would be hollow because those damages could not include the emotional distress she suffered.
“If respondent were correct, then the [student] in Franklin won only a pyrrhic victory because, while this court held that she was entitled to seek damages for the severe sexual harassment and abuse she suffered at the hands of a teacher in violation of Title IX, she was not entitled to compensation for the only injuries she described in her briefing, the profound psychological and emotional harms caused by the discrimination,” Sinzdak said. “That is not the law, and this court should not make it so.”
Emotional-distress damages have also been recognized in school cases alleging racial discrimination in violation of Title VI of the 1964 Civil Rights Act.
A friend-of-the-court brief in support of Cummings by the NAACP Legal Defense and Educational Fund cites several cases in which K-12 students have won damages for emotional distress under Title VI. One case involved a student who said he was retaliated against for complaining about the exclusion of minority students from a gifted and talented program and was awarded $50,000 in emotional distress damages.
“Courts have been particularly cognizant of the emotional harm suffered by students who experience racial discrimination in educational settings,” the NAACP LDF brief says.
Sinzdak noted during the arguments that in the context of Title VI, “Often, we’re dealing with children who are being subject to discrimination within a school system. So we don’t have the sort of traditional pecuniary harms. So it makes sense that the compensation there is available for emotional distress.”
Federal funding recipients argue against the availability of emotional-distress damages
Kannon K. Shanmugam, representing the small rehabilitation center sued by Cummings, said “the court should be cautious about recognizing the availability of emotional distress damages here. … Emotional distress damages are notoriously difficult to quantify.”
In his merits brief, Shanmugam observed that federal agencies often hold the threat of withdrawal of federal funds over recipients of aid under spending clause legislation “as a sword of Damocles.”
Spending clause statutes such as Title IX are less about compensating individuals for discrimination and “really about providing equal access and ensuring the parties that receive federal funds provide equal access to federal programs,” he said during the arguments.
The rehab provider is supported by friend-of-the-court briefs by business groups such as the U.S. Chamber of Commerce and state and local government groups, although, notably, the National School Boards Association, which often signs on to such government association briefs, did not join the one in this case.
Shanmugam appeared to drew some support from a few members of the court, with Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. asking whether the rehab provider had received fair notice of its antidiscrimination obligations under federal law.
But several other justices seemed to support the arguments on behalf of Cummings or at least think there has not been much of a problem with exorbitant awards for emotional distress under the federal civil rights laws.
“I think the most important point is the nature of the contract here is an agreement by your client to treat people with disabilities equally to others and to provide accommodations and let them enjoy the benefit of their services if it’s reasonable to do so,” Justice Sonia Sotomayor said to Shanmugam.
Barrett said she was taken aback that there was a question of adequate notice to federal funding recipients over emotional-distress damages.
“I find it very surprising that this case is here so many years, I mean, you know, 40-plus years into recognizing the causes of action under this family of statutes,” she said. “Everybody seemed to be on notice these cases were being decided and [emotional distress] damages being awarded. No one complained.”
Justice Elena Kagan said the high court has “long recognized that discriminatory harms are often stigmatic in nature, that they can be very deep and very wounding even if there is no economic harm.”
She suggested that if the court were to recognize emotional-distress damages but was not inclined to take it upon itself to set dollar caps for each case, it could still set rules meant to “keep them in check.”
“We don’t have to set a number in order to convey a sense that these [damages] should be kept in control,” Kagan said.
Shanmugam pushed back, noting that “there are plenty of examples of emotional distress damages running into the seven figures” and that the idea of the court setting or conveying some limits on such damages “just points up the quintessentially legislative nature of this whole undertaking” by a judicial body.
A decision in the case is expected by next June.
