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SCOTUS erodes progress as Title IX turns 50

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SCOTUS erodes progress as Title IX turns 50

June marks the 50th anniversary of Title IX, civil rights legislation that prohibits educational institutions receiving federal funding from discriminating on the basis of gender.

We should celebrate how Title IX has helped women and other marginalized genders succeed in sports and education. Since its adoption, the number of places available for female athletes in high schools has increased from less than 300,000 to 3.5 million, and the percentage of NCAA athletes who are women has increased from 15% to 44. %. With this record of success, we should devise ways to further improve Title IX.

Instead, women and civil rights activists mourn. In April, the court issued a ruling removing Title IX protections.

Non-recoverable damages in private action

On April 28, the Supreme Court ruled in Cummings v Premier Rehab Keller PLLC that damage caused by emotional distress is not recoverable in private action to enforce the Rehabilitation Act 1973 or the Affordable Care Act.

The majority argued that emotional damages should not be available under these laws because health care facilities would not have anticipated facing such liability when they agreed to accept the federal funds that awarded to them on the basis of the expenses clause of the Constitution, only the most allegedly foreseeable damages such as those resulting from a breach of contract.

Since schools’ obligations under Title IX are also based on their receipt of federal funds through the Expenses Clause, this reasoning should also reduce the emotional damages schools pay to those who win Title IX lawsuits. They might still be able to recover lost tuition or lost income, but the court named emotional damage as not a foreseeable consequence of the discrimination.

Lawyers and advocates who work with survivors know, Nevertheless, that emotional distress resulting from discrimination or sexual abuse is not only predictable, it is the most common harm suffered and, in many cases, the only harm.

I worked on Title IX cases (and equivalent cases against universities in England) for eight years. My firm’s founding partner, Dr. Ann Olivarius, who filed the first case to establish that sexual harassment was a form of sex discrimination and therefore prohibited by Title IX, has worked in this area for more than four decades.

Emotional harm from bullying is common

Each of our clients has experienced emotional abuse such as depression, anxiety, panic disorder and/or suicidal ideation. Many of them had to change their degree program, transfer to another university, give up a beloved extracurricular activity or drop out of higher education altogether to escape their stalker and the oppressive environment that the abuser created.

And beyond that, clients often tell me that the most hurtful part of their experience wasn’t the discrimination itself, but being let down by their school that didn’t do anything right. effective in protecting them despite complaints.

This shouldn’t be surprising. For many of us, college is a time of transformation. This is where we open up 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 it is malleable and evolving, it can upset their sense of fairness and safety in the world. , even if he graduates and finds a job. And meanwhile, their suffering is real, the definition of emotional distress that the courts have long recognized as deserving of redress.

For many of my clients, suing their universities isn’t primarily about money, it’s about getting school decision-makers to understand what their action or inaction has cost them, and it’s is about regaining control by asserting their rights. It is a question of responsibility.

Other Ways to Hold Institutions Accountable

The Supreme Court’s decision in Cummings, by now making it impossible for many students to sue, robs them of that power. Of course, there are other ways to hold institutions accountable beyond seeking damages for emotional distress in a private lawsuit.

The Ministry of Education’s Office for Civil Rights issues regulations and investigates schools allegedly in violation. But it can take years for the OCR to fully investigate a complaint, and for a student who’s only been in college for four years, it might help prospective students, but probably not her. Case. The approach to OCR also vacillates from one administration to another, creating uncertainty not only for students but also for the administrators tasked with applying them.

Survivors can still bring other claims alongside Title IX claims allowing damages for emotional distress, depending on the specific condition and facts. They may be able to prove that their university acted negligently, resulting in a psychiatric injury. They may be able to rely on state law equivalent to Title IX like New York and California, which the cumming decision does not affect.

Nevertheless, while plaintiffs’ attorneys will seek alternative avenues of justice for their clients, the cumming decision erodes the moral progress we have made over the past 50 years. Title IX said something about us as a nation, that we recognize the real harms that a climate of sexual harassment and discrimination can inflict on students and the education they receive.

For all its flaws, Title IX has given us a common starting point and framework for mitigating and preventing these evils. He said that while we disagree on specific procedures, we agree that people should be safe on campus and that sexual harassment is important because it causes real harm, including emotional harm to individual students.

Universities have been accepting federal money under the spending clause for decades no doubt about it. 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 long and the protection it offers has largely been left to the courts to interpret, creating significant differences – and loopholes – between jurisdictions. Proponents have long called on Congress and state legislatures to pass laws with clearer, codified rules. It’s more important than ever.

This article does not necessarily reflect the views of the Bureau of National Affairs, Inc., publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Author Information

Kelsey Murrel is a senior partner and the firm’s Higher Education Practice Leader, works on a wide range of cases for the firm, including UK and US employment matters, civil litigation and Title IX. She is particularly experienced in discrimination, harassment and sexual assault cases.