Supreme Court scales back the scope of four civil rights statutes

The Supreme Court yesterday said that four federal civil rights statutes do not allow damages for pain and suffering. The rationale is that these statutes do not explicitly authorize such damages, and that a complex series of constitutional rulings from the Court compels the 6-3 majority to find that certain governmental defendants are not on notice they will be on the hook for pain and suffering if they practice discrimination.

The case is Cummings v. Premier Rehab Keller, LLC, issued on April 28. Plaintiff is hearing-impaired and legally blind. She sued under the Rehabilitation Act of 1973 and the Affordable Care Act after she was denied an ASL interpreter. Can she get damages for pain and suffering?

The Supreme Court resolves this case under the Spending Clause of the Constitution, which authorizes Congress to pass civil rights laws that public and private entities must comply with if they want to continue receiving federal money. These statutes affect numerous entitles, including school districts and health care practitioners. The Rehabilitation Act and the ACA are among those laws. Other laws that fall within this equation are Title VI and Title IX of the Civil Rights Act. Title VI prohibits racial discrimination in education. Title IX prohibits sex discrimination in education. Title VI and IX are the statutes people invoke for racial and gender bullying in public schools. 

What it all means is this case is not just about the Rehabilitation Act and the ACA. Chief Justice Roberts brings Titles VI and IX into the analysis. He opens the discussion with this:

Congress has enacted four statutes prohibiting recipients of federal financial assistance from discriminating based on certain protected grounds. Title VI of the Civil Rights Act of 1964 forbids race, color, and national origin discrimination in federally funded programs or activities. Title IX of the Education Amendments of 1972 similarly prohibits sex-based discrimination, while the Rehabilitation Act bars funding recipients from discriminating because of dis- ability. Finally, the Affordable Care Act outlaws discrimination on any of the preceding grounds, in addition to age, by healthcare entities receiving federal funds. 

Spending Clause cases are analyzed under traditional contract law principles: would a recipient of federal money know as a condition of their receipt of this money that they might be liable for certain damages, such as pain and suffering, if they discriminate against someone? Since these statutes do not explicitly cite pain and suffering as possible damages, this is not an easy issue. But in Barnes v. Gorman, 536 U.S. 181 (2002), the Court said punitive damages are not available under these statutes because the statutes say nothing about them and traditional contract law principles generally do not allow pain and suffering damages for contractual disputes. That analysis guides this case, as well. "In order to decide whether emotional distress damages are available under the Spending Clause statutes we consider here, we therefore ask a simple question: Would a prospective funding recipient, at the time it “engaged in the process of deciding whether [to] accept” federal dollars, have been aware that it would face such liability? If yes, then emotional distress dam- ages are available; if no, they are not."

They are not. While pain and suffering are sometimes awarded in contractual cases, they generally are not. That means no such damages are available under these federal statutes. Roberts: "We therefore cannot treat federal funding recipients as having consented to be subject to damages for emotional distress. It follows that such damages are not recoverable under the Spending Clause statutes we consider here."

The three liberals on the Court dissent, joining Justice Breyer's opinion stating that, from his vantage point, pain and suffering can be available in contracts cases because contract litigation aims to make the victim of any contract breach whole, which may include compensation for pain and suffering. Like Roberts, Breyer cites contract law treatises for this proposition. Breyer says, "It is difficult to believe that prospective funding recipients would be unaware that intentional discrimination based on race, sex, age, or disability is particularly likely to cause emotional suffering."

Justices Kavanaugh and Gorsuch concur with Roberts' reasoning, but they would abandon the contract law analysis and focus on separation-of-power principles to determine what Congress intended in enacting the statute. That would make the analysis much easier, and you only have to look at the statutory language to determine what damages are available.