Title IX of the Education Amendments of 1972 (“Title IX”) has been front and center news lately. The statute, which is still best known as the law enacted by Congress to remediate discrimination in student athletics, officially turned 50 on June 23, 2022. That same day, the U.S. Department of Education proposed major revisions to the current regulations governing Title IX. The proposed changes — the third rewrite of Title IX protections in the last ten years — would extend existing prohibitions to cover all forms of “sex-based discrimination”, including discrimination related to sexual orientation and gender identity.

Less widely reported but still highly relevant to colleges and universities subject to Title IX was the U.S. Supreme Court’s recent decision in Cummings v. Premier Rehab Keller, P.L.L.C., a 6-3 decision in which the Court concluded that emotional distress damages are not available to a prevailing party under Title IX, among other statutes passed by Congress under its Constitutional Spending Clause powers. 

Unlike ordinary legislation, which Congress imposes under its “sovereign authority” to enact binding laws, Spending Clause statutes, like Title IX, condition an offer of federal educational funding on a promise by schools not to discriminate. This, the Court found, is equivalent to a contract between the federal government and educational institutions that accept federal funding under which such schools must knowingly and voluntarily accept all terms of the deal. 

Because emotional distress damages are rarely recoverable when a contract is breached, the Court continued, such damages are not recoverable under Title IX. In essence, Congress failed to provide express notice to schools that acceptance of federal educational funding could potentially expose them to liability for emotional distress damages. Back in 2002, the Court applied the same “contract law analogy” in Barnes v. Gorman, concluding that punitive damages are not recoverable under Title IX because they had not been recoverable historically under contract law.

And so the push-and-pull of Title IX continues: The Biden administration is poised to substantially expand the scope of sex-based discrimination protections that will be applicable to all educational institutions that receive federal financial assistance, while the Supreme Court has eliminated emotional distress damages as an element of damages recoverable by victims of sex-based discrimination under Title IX. 

This blog will be updated with the details of any additional changes to Title IX, including status updates for the proposed Title IX regulations. In the interim, if you need assistance with this or any other higher education-related issues or questions for your institution, please contact Timothy Hughes, thughes@beankinney.com, or Doug Taylor, rdougtaylor@beankinney.com,  or your current Bean, Kinney & Korman attorney.

This article is for informational purposes only and does not contain or convey legal advice. Consult a lawyer. Any views or opinions expressed herein are those of the authors and are not necessarily the views of any client.