The Scholar: St. Mary's Law Review on Race and Social Justice


This comment exposes the far-reaching consequences of Cummings v. Premier Rehab Keller and scrutinizes the Supreme Court’s reliance on contract law principles to deny victims of discrimination recovery of non-economic damages.

For almost 50 years, courts have awarded emotional distress damages to victims of discrimination. Consequently, the Court’s lack of notice argument within Cummings falls flat through a cursory analysis of precedent. In the context of Title IX discrimination, school districts are undeniably aware of the possibility of sexual harassment liability at the time they accept federal funding. Mandated Codes of Conduct explicitly prohibit sexual harassment and outline ramifications for such conduct. While it is necessary to protect schools against unlimited liability for the torts of third parties, schools must be held accountable when taxpayer money is used to commit intentional discrimination.

Without the threat of punitive damages, the deterrent effect of Title IX is minimal. Further, denying recovery of emotional distress damages prevents relief for the most significant harm caused by discrimination. Because Cummings is likely to place limitations on Title IX causes of action, advocates must prepare to distinguish Title IX from other Spending Clause statutes, or lobby for the enactment of state law equivalents to Title IX.

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March 11, 2024

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The Scholar: St. Mary's Law Review on Race and Social Justice

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St. Mary's University School of Law


Caitlyn A. Collins