No compensatory damages under Title II of the Americans with Disabilities Act

The Court of Appeals in this case considers whether a former college student may recover damages for an Americans with Disabilities Act violation against a public college that issued no-contact orders against him following a situation that happened during freshman orientation. Plaintiff is not entitled to damages.

The case is Doherty v. Bice, issued on May 10. During freshman orientation at SUNY Purchase, plaintiff got into a dispute with someone else in the dormitory, which led to a no-contact order: plaintiff was to stay away from three students in particular. Plaintiff claims the no-contact orders constituted discrimination because of his disability. Plaintiff loses the case.

First, his challenge to the no-contact order is moot. He wanted a declaratory judgment and injunction against the order, but now that plaintiff has graduated, there is nothing to litigate on this issue. An injunction would be pointless. The college said the order is no longer in effect, and that is enough for the Court of Appeals (Sullivan, Lee and Carney) to find that this issue is moot. I guess one way around this might have been to seek an injunction at the outset of the case, when plaintiff was still a student. The Second Circuit ruling is silent as to this and my guess is there was no such application.

What about compensatory damages flowing from the no-contact order? Plaintiff says the campus found out about the order, causing him mental anguish. Here is where things get tricky. Normally, you might recover damages for this if the court determines the order violated the ADA. But not all civil rights violations will get you damages. In Cummings v. Premier Rehab Keller, 596 U.S. 212 (2022), the Supreme Court said that certain civil rights statutes, like Title IX, do not provide for compensatory damages because they were enacted pursuant to the Constitution's Spending Clause. Certain statutes, like Title VI, Title XI, the Rehabilitation Act, and the Affordable Care Act, the Supreme Court said, are silent as to such damages, and the only way we can infer that they provide for such damages is if the funding recipient is on notice that it may be on the hook for compensatory damages if it accepts federal funding and it exposes itself to liability. There is no such notice under these statutes, the Cummings Court said. This is a complex area of constitutional law, to be sure.

The reasoning in Cummings, the Court of Appeals holds, applies to this action under the ADA. While the ADA is not Spending Clause legislation, Title II of the ADA, under which plaintiff brings this action, expressly links the remedies, procedures, and rights provided by Title II to the remedies under the Rehabilitation Act. Under the ADA, then, damages are similar to those available under the Rehabilitation Act, which also prohibits disability discrimination in certain contexts. Since the Rehabilitation Act is Spending Clause legislation, no damages are available under that law. That limitation on damages applies to cases brought under Title II of the ADA. What it means for plaintiff -- and other ADA plaintiffs who are suing under Title II, which prohibits discrimination in the provision of public services and governmental activities. 

When plaintiff brought this action in 2018, no one had the benefit of the Supreme Court's ruling in Cummings, so no one anticipated this holding. On appeal, plaintiff tries to get around Cummings by arguing that he is really suing for breach of contract. But that is not asserted in the complaint. He further argues that he is entitled to nominal damages, but the complaint does not expressly seek such relief. While plaintiff argues in his reply brief that he is not required to assert nominal damages in the complaint, since that argument was raised for the first time in the reply brief, the Court of Appeals deems that argument forfeited.