Passed 50 years ago in June, Title IX has had a profound and widely-recognized impact on girls’ and women’s sports. But Title IX did not only offer parity in sports. It has been instrumental in compensating victims of discrimination and harassment by teachers, coaches, professors and other students. Until now. The Supreme Court quietly eviscerated this right just before Title IX’s anniversary, with little fanfare or public outrage. In a decision superficially limited to the Rehabilitation Act and the Affordable Care Act, the Court eliminated damages under Title IX – and Title VI — for emotional distress.
Victims of sex and gender-based discrimination and harassment have successfully used Title IX to obtain relief when recipients of federal funds have failed to enforce the law. In Hawaii, for example, a jury awarded $810,000 after a ninth-grade girl with the intellectual ability of a second grader was raped by an older boy from her class. The girl’s mother previously had expressed concerns to the school about this student. In California, a male student was alleged to have pressured a middle school girl into sending nude pictures and used those pictures to blackmail her into performing oral sex; students then posted pictures on social media of the female student performing oral sex. She obtained a $2 million dollar settlement. In Florida, a jury awarded a single plaintiff $6 million dollars after a teacher sexually abused her during her junior and senior years in school. The abuse included child pornography and forcible kissing and touching. The school had previously received reports of sexual abuse but failed to investigate. In Colorado, a school district settled a claim for $5 million dollars. A teacher was alleged to have sexually abused a student when she was nine years old. The school knew the teacher had a history of inappropriate conduct but failed to act to prevent the abuse. Based on the Supreme Court’s recent ruling in Cummings v. Keller Premier Rehab, were claims like those brought today under Title IX, there could be no award for their depression, their suicide attempts, their eating disorders, their missed classes, their trauma.
In 1972, Congress enacted Title IX so that federal funds would not support discriminatory practices. The law bars educational programs or activities that accept federal funds from engaging in discrimination on the basis of sex. In other words, schools must take action to prevent and address sexual harassment and discrimination. Failing to do so could lead to the loss of important federal dollars (although in reality, that rarely if ever happens). Title IX was patterned after Title VI of the Civil Rights Act of 1964, which prohibits discrimination by funding recipients with respect to race, color and national origin. Although neither statute expressly provides victims of discrimination with the right to sue in court, in 1979, after a female student alleged she was denied admission to medical school because of her sex, the Supreme Court held in Cannon v. University of Chicago, that Title IX (and Title VI) allowed her to sue in court. Over a decade later, in 1992, when a high school student sued alleging her teacher had sexually harassed and abused her, the Court confirmed that the right to bring suit included the ability to obtain money damages. This apparent expansion of rights may have peaked in the mid-90s: soon after, in its 1998 decision Gebser v. Lago Vista Independent School District,, the Court restricted when schools could be held liable for harassment.
Gebser sued, alleging that a teacher sexually harassed and abused her, beginning when she was eighth grade. The Court reiterated that federal funding recipients would be liable for money damages, but only if the school was “deliberately indifferent” to harassment or discrimination of which it was actually aware. Schools would only be held liable for misconduct when a person in authority was made aware of the discrimination, and where the school did almost nothing in response. The next year, while the Court confirmed that Title IX permitted a private lawsuit for peer harassment (in that case, where a fifth grader allegedly attempted to touch the plaintiff’s breasts and genital area, made vulgar statements, rubbed his body against hers, and engaged in a pattern of sexually harassing conduct), it held such harassment can only be compensated when the school was “deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.” And in 2002, the Court in Barnes v. Gorman reaffirmed the right to recover monetary damages, but refused to permit punitive damages awards under a similar law.
Despite the expansion and retraction of remedies allowed under Title IX, for decades now private plaintiffs have successfully litigated against and settled with school districts and universities where such institutions were deliberately indifferent to harassment or discrimination (including retaliation). The Supreme Court has made it difficult to win these claims but it has repeatedly reiterated that “monetary damages” are available. Students who are sexually assaulted, harassed, discriminated or retaliated against, experience a constellation of emotional (and often physical) harm, such as PTSD, anxiety, depression, and humiliation, with their attendant manifestations. They often miss class, see their grades drop, are unable to participate in extra-curriculars, and move schools. By the time most lawsuits seeking to address harassment or discrimination at school conclude, the victim has been out of the district for years. For the most part, her (or his) only remedy has been money for the emotional distress resulting from the illegal conduct. The slowly turning wheels of justice means that it is usually too late to “fix” or stop the underlying harassment or discrimination, and money is often the only remedy. For years, courts have relied on Supreme Court holdings allowing for “monetary damages” to address the trauma and harm arising from the discrimination or harassment.
But no longer.
Cummings v. Keller Premier Rehab, announced by the Supreme Court on April 28, 2022, did not garner explosive headlines in the media. There was no mass mobilization of protests. But the decision will nevertheless change the landscape for students at every grade level, from kindergarten through Ph.D. programs, although that impact may not be obvious at first blush. The Cummings case was brought under the Rehabilitation Act – not Title IX – after a blind and deaf woman was denied an ASL interpreter at physical therapy appointments. The Supreme Court had to decide whether Cummings’ injuries – humiliation, frustration, and emotional distress – could be compensated. The statutes Cummings sued under incorporated the remedies of Title VI. In its decision, the Supreme Court announced that only “traditional” “breach of contract” damages are available under Title VI and Title IX, and therefore under parts of the Rehabilitation Act and the Affordable Care Act. That is to say, although juries have awarded “emotional distress” or reputational damages to victims for decades, absent Congressional action the remedies available in lawsuits brought to enforce Title IX will be limited to largely unidentifiable “breach of contract” damages. While there are plenty of reasons to argue that the Supreme Court in Cummings was wrong in its reasoning and in its holding, the outcome – for now – is clear.
It remains to be seen what the effect will be on schools’ enforcement of Title IX or Title VI when it comes to their anti-harassment and anti-bullying policies. With less of a threat of answering for their failures, schools at every level may devote fewer resources than they already do to addressing complaints of discrimination and harassment, whether on the basis of sex (under Title IX) or, equally important, on the basis of race or national origin (under Title VI). What will the impact be on victims of teachers’ grooming and sexual misconduct, or on trans students who are relentlessly bullied, or on Black students who are repeatedly verbally assaulted with racial slurs, on students who are forced to move schools, drop out, or even attempt suicide? Under Title IX and Title VI, they might be entitled to reimbursement for medical bills or private school, but without another statutory or tort remedy, such as an Equal Protection Clause claim under the Constitution, their emotional damages will now go unremedied. Will Congress fix this further assault on civil rights, and legislatively overrule the Court’s intellectually dishonest decision? If recent trends are indicative, the answer is no.