Making Sense of the Supreme Court’s Terrible Civil Rights Decision in Cummings v. Premier Rehab

On April 28, 2022, the U.S. Supreme Court handed down one of its worst civil rights decisions in recent memory—no small feat, in an era that has seen the Court cripple free speech and voting rights; preempt police, prosecutorial, and campaign finance reform; and strip workers and criminal defendants of what few rights they still have.

The decision, Cummings v. Premier Rehab Keller, holds that civil rights plaintiffs may not sue the people and institutions that abuse them for “emotional distress” damages (as opposed to merely economic or “pecuniary” damages) under a number of major federal civil rights statutes. Because the primary harm many victims of discrimination suffer is emotional, Cummings will have disastrous and far-reaching consequences for victims pursuing compensation and accountability for discrimination they have suffered—consequences that have been overlooked, in part, because the Court now appears poised to overturn abortion access, but also because the Cummings decision appears relatively innocuous at first glance.

It is anything but.

The case arose when Jane Cummings’s doctors referred her to Premier Rehab, a physical therapy provider, for treatment for chronic back pain. Because Ms. Cummings is deaf and blind, she asked Premier Rehab to provide her with an American Sign Language interpreter. Premier Rehab refused, and Ms. Cummings sued, alleging the organization violated the Rehabilitation Act and the Affordable Care Act—two federal statutes that prohibit entities that receive federal funds from discriminating based on disability.

By the time the case was argued at the Supreme Court, Premier Rehab did not dispute that it was covered by these two statutes (the organization receives federal funds), or that its refusal to provide Ms. Cummings with an ASL interpreter constituted disability discrimination. Instead, the only question was whether Premier Rehab owed Ms. Cummings compensation for the suffering its actions had caused her—what the law calls “emotional distress” damages. 50 years of law maintained that it did. However, in a 6-3 decision authored by Chief Justice John Roberts the Court held that Premier Rehab did not need to compensate Ms. Cummings for her emotional distress.

It is worth exploring how truly flawed the Court’s decision is. The Chief Justice’s reasoning, such as it was, begins from a simple precept of Constitutional law: When Congress passes a law, it needs to have some constitutional authority for doing so; if it doesn’t have appropriate authority, it needs to leave laws about that topic to the states to decide themselves. When Congress passed the Rehabilitation Act (in 1973) and the Affordable Care Act (in 2010), it relied on authority coming from a clause of the Constitution called the Spending Clause, which says (among other things) that Congress has the power to legislate in the interest of the “general welfare” of the United States. Courts have interpreted this to mean that Congress only has the authority (under the Spending Clause) to make rules for private organizations (like Premier Rehab) when it offers those organizations federal funds (like grants or tax breaks) and the organization accepts them.

That all looks a little bit like a contract: When Congress uses its Spending Clause power, it essentially offers a private organization money if the organization agrees to abide by certain rules that Congress sets. If the organization does not accept the funds, Congress cannot tell it what to do; but if it does, then Congress can. Because of this, Courts like to draw analogies to contract law when they analyze statutes that Congress passed using the Spending Clause.

One of the big principles of contract law is that the parties to a contract must know what they are agreeing to for the contract to be enforceable. Courts refer to this as “notice”: after agreeing to a contract, one party should not be surprised by some sort of hidden term, so the other party has to tell them (give them “notice”) of what they are agreeing to up front.

What does all of this have to do with emotional distress damages? Well, in Cummings, the Supreme Court said that when Congress passed the Rehabilitation Act and the Affordable Care Act, it clearly told private organizations (like Premier Rehab) that they would have to obey federal anti-discrimination laws in exchange for federal funds. And, the Supreme Court says, Congress also clearly told these organizations that the people they discriminated against would be able to sue them. But—according to the Supreme Court—Congress did not really tell the organizations that the people that sued them would be able to sue them for emotional distress damages specifically.

Why not? Writing for the conservative majority, Chief Justice Roberts reasoned that emotional distress damages are not usually available when a party breaches a contract, such that courts could infer that private organizations knew they would be exposing themselves to liability for emotional distress damages (when they accepted federal funds) simply because emotional distress damages would obviously be available because they always are. Thus—the reasoning goes—Congress did not clearly tell private organizations they would be liable for emotional distress damages, and so plaintiffs cannot sue for them.

This is nonsense.

It is true that emotional distress damages are not generally available in contract law: If Bob gives Sally ten widgets on the promise that Sally will give him ten dollars, and then Sally does not pay him, Bob can sue Sally for the ten dollars she owes, but he cannot sue her for the emotional distress she caused by not paying him (on top of that ten dollars). The main reason this rules exists is because it would be silly for Sally to have expected, when she agreed to give Bob ten dollars, that not paying Bob would cause him significant emotional suffering—i.e., Sally did not have “notice” that she would have to pay Bob for his emotional distress if she breached the contract because it is a little weird and unexpected that Bob would be so torn up about just ten dollars.

However, as Ms. Cummings’s lawyer and many civil rights organizations argued, when breaching a contract is likely to lead to emotional distress, contract law does permit for the recovery of emotional distress damages. For example, contract law has long permitted emotional distress damages related to marriage contracts, or concerning funeral arrangements, precisely because these spheres are emotionally fraught.

As Justice Breyer argued in dissent, there is scarcely any question that it is contracts like these that are the proper analogy for civil rights violations: It is easily foreseeable that denying our fellow Americans equal treatment because they are disabled, or because of their age or race or sex, is eminently likely to make them feel like unwanted outsiders—that is, to suffer emotional distress. Our civil rights laws are nothing if not a recognition of the suffering that such discrimination necessarily engenders.

The Supreme Court’s decision is Cummings wholly overlooks this, insisting instead that being treated unequally because of the fundamental characteristics that make up one’s very identity is akin to a commercial trade of widgets. But it is more than mere oversight: the Cummings decision is simply the latest in a long line of conservative decisions that use procedural rules to quietly—ever so quietly—slam the courthouse doors on civil rights plaintiffs.

Two factors make the Cummings decision particularly devastating.

First, emotional injury is the primary—and often the only—harm caused by discrimination. Justice Breyer gives examples—coming from previous Supreme Court cases—where students were sexually assaulted by their professors, where disabled folk were forced to crawl up flights of stairs because buildings lacked wheelchair accessibility, or where Black people were forced to use separate fountains and facilities. In most (if not all) cases like this, the victims did not suffer any economic injury—while these indignities were profoundly humiliating and degrading, they did not cost the victims a dollar.

After Cummings, all these victims—who make up the vast majority of civil rights plaintiffs—can no longer sue for damages to make themselves whole. (They may still sue for injunctive relief by asking a court to restrain a defendant from engaging in future acts.) Further, even those victims that can sue for damages—because the discrimination they experienced did cost them some money—may only sue to recover that money, and not for the suffering they experienced. The enormous stresses that accompany civil rights litigation will mean that, for many plaintiffs, bringing a lawsuit for damages may not be worth it.

Second, it is critical to note that the Court’s decision implicates more than only the two statutes at issue in Cummings (the Affordable Care Act and Rehabilitation Act). Congress has passed other major civil rights laws using its Spending Clause authority, including Titles VI and IX of the Civil Rights Act, which prohibit race, sex, and gender discrimination in programs receiving federal funds. And still other major civil rights laws, like Title II of the Americans with Disabilities Act, which prohibits disability discrimination in services run by public entities, incorporate the remedies set forth in statutes that Congress passed using its spending clause power, meaning that emotional distress damages will not be available under them either.