June marks the 50th anniversary of Title IX, the civil rights legislation that prohibits educational institutions receiving federal funding from discriminating on the basis of sex.
We should be celebrating the ways Title IX has helped women and other marginalized genders succeed in sports and education. Since its passage, the number of slots available to female athletes at high schools increased from under 300,000 to 3.5 million, and the percentage of NCAA athletes who are women increased from 15% to 44%. With this record of success, we should be devising ways to improve Title IX further.
Instead, women and civil rights advocates are mourning. In April, the court issued a decision gutting Title IX protections.
Damages Not Recoverable in Private Action
On April 28, the Supreme Court decided in Cummings v. Premier Rehab Keller P.L.L.C that emotional distress damages are not recoverable in a private action to enforce either the Rehabilitation Act of 1973 or the Affordable Care Act.
The majority argued that emotional damages should not be available under these statutes because health-care institutions would not have anticipated facing such a liability when agreeing to accept federal funds given to them based on the Spending Clause of the Constitution, only the more allegedly predictable damages such as those arising from a contract breach.
Because schools’ obligations under Title IX are also based on their receipt of federal funds via the Spending Clause, this reasoning is also expected to cut off emotional damages schools pay to those who win Title IX suits. They still might be able to recover lost tuition or lost earnings, but the court has singled out emotional damages as not being a foreseeable consequence of discrimination.
Lawyers and advocates who work with survivors know, however, that emotional distress resulting from discrimination or sexual abuse is not only foreseeable, it is the most common harm suffered, and in many cases, the only harm.
I have worked on Title IX cases (and equivalent cases against universities in England) for eight years. My firm’s founding partner, Dr. Ann Olivarius, who brought the first case to establish that sexual harassment was a form of sex discrimination and so prohibited by Title IX, has worked in this area for more than four decades.
Emotional Harms from Harassment Are Common
Every single of one of our clients has suffered emotional harm such as depression, anxiety, panic disorders, and/or suicidal ideation. Many of them have had to change their course of study, transfer to another university, abandon a beloved extracurricular activity, or give up higher education altogether to escape their harasser and the oppressive environment that the perpetrator has created.
And beyond that, clients often tell me that the most hurtful part of their experience was not the discrimination itself but being let down by their school which did nothing effective to protect them despite complaints.
This should not be surprising. For many of us, university is a time of transformation. It is where we open ourselves to possibilities and decide who we want to be in the world.
When a university undermines a student’s trust in institutions at this point in the student’s life, when they are malleable and evolving, it can upend their sense of fairness and safety in the world, even if they go on to graduate and get a job. And meanwhile, their suffering is real, the definition of emotional distress that courts have long recognized as deserving compensation.
For many of my clients, bringing claims against their universities is not primarily about money—it is about making the decision-makers at the school understand what their action or inaction has cost them, and it is about taking control back by asserting their rights. It is about accountability.
Other Ways to Hold Institutions Accountable
The Supreme Court decision in Cummings, by now making it impossible for many students to sue, strips them of that power. Of course, there are other ways to hold institutions accountable beyond claiming emotional distress damages in a private lawsuit.
The Department of Education’s Office for Civil Rights issues regulations and investigates schools that are alleged to be in violation. But it can take the OCR years to complete an investigation into a complaint and for a student who is only at university for four years, this might help future students, but probably not her case. The OCR’s approach also vacillates from administration to administration, creating uncertainty not only for students but for administrators tasked with applying them.
Survivors can still bring other claims alongside Title IX claims permitting emotional distress damages, depending on the state and the specific facts. They may be able to show their university acted negligently resulting in a psychiatric injury. They may be able to rely on a state law equivalent of Title IX like New York and California have, which the Cummings decision does not affect.
Nevertheless, even though plaintiffs’ lawyers will be seeking alternative routes to justice for their clients, the Cummings decision erodes the moral progress we have made in the last 50 years. Title IX said something about us as a nation, that we recognized the real evils that a climate of sexual harassment and discrimination can inflict on individual students and the education they receive.
For all its faults, Title IX has given us a shared starting point and framework to mitigate and prevent those evils. It said that even if we disagree about the specific procedures, we agree that people should be safe on campus, and that sexual harassment does matter because it does cause real harm, including emotional harm to individual students.
Universities have accepted federal money under the Spending Clause for decades in no doubt of this. It is obtuse for the Supreme Court to deny this reality.
Even before this decision, Title IX was far from perfect. It is only 37 words and the protection it provides has been largely left up to the courts to interpret, creating important differences—and gaps—across jurisdictions. Advocates have long called for Congress and state legislatures to pass laws with clearer, codified rules. This is more important now than ever.
This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
Kelsey Murrell is a senior associate and the firm’s Higher Education Practice lead, works on a broad range of cases for the firm including UK and US employment matters, civil litigation, and Title IX. She is particularly experienced in cases involving discrimination, harassment, and sexual assault.