Cummings v. Premier Rehab Keller ( 2022 )

(Slip Opinion) OCTOBER TERM, 2021 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
CUMMINGS v. PREMIER REHAB KELLER, P.L.L.C.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 20–219. Argued November 30, 2021—Decided April 28, 2022
Jane Cummings, who is deaf and legally blind, sought physical therapy
services from Premier Rehab Keller and asked Premier Rehab to pro-
vide an American Sign Language interpreter at her sessions. Premier
Rehab declined to do so, telling Cummings that the therapist could
communicate with her through other means. Cummings later filed a
lawsuit seeking damages and other relief against Premier Rehab, al-
leging that its failure to provide an ASL interpreter constituted dis-
crimination on the basis of disability in violation of the Rehabilitation
Act of 1973 and the Affordable Care Act. Premier Rehab is subject to
these statutes, which apply to entities that receive federal financial
assistance, because it receives reimbursement through Medicare and
Medicaid for the provision of some of its services. The District Court
determined that the only compensable injuries allegedly caused by
Premier Rehab were emotional in nature. It held that damages for
emotional harm are not recoverable in private actions brought to en-
force either statute. The District Court thus dismissed the complaint,
and the Fifth Circuit affirmed.
Held: Emotional distress damages are not recoverable in a private action
to enforce either the Rehabilitation Act of 1973 or the Affordable Care
Act. Pp. 3–15.
(a) Congress has broad power under the Spending Clause of the Con-
stitution to “fix the terms on which it shall disburse federal money.”
Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 17.
Pursuant to that authority, Congress has enacted statutes prohibiting
recipients of federal financial assistance from discriminating on the
basis of certain protected characteristics. This Court has held that
such statutes may be enforced through implied rights of action. Barnes
v. Gorman, 536 U. S. 181, 185. Although it is “beyond dispute that
2 CUMMINGS v. PREMIER REHAB KELLER
Syllabus
private individuals may sue” to enforce the antidiscrimination statutes
at issue here, “it is less clear what remedies are available in such a
suit.” Ibid.The Court’s cases have clarified that whether a particular remedy is
recoverable must be informed by the way Spending Clause “statutes
operate”: by “conditioning an offer of federal funding on a promise by
the recipient not to discriminate, in what amounts essentially to a con-
tract between the Government and the recipient of funds.” Gebser v.
Lago Vista Independent School Dist., 524 U. S. 274, 286. Because
Spending Clause legislation operates based on consent, the “legitimacy
of Congress’ power” to enact such laws rests not on its sovereign au-
thority, but on “whether the [recipient] voluntarily and knowingly ac-
cepts the terms of th[at] ‘contract.’ ” Barnes, 536 U. S., at 186 (quoting
Pennhurst, 451 U. S., at 17). The Court has regularly applied this con-
tract-law analogy to define the scope of conduct for which funding re-
cipients may be held liable, with an eye toward ensuring that recipi-
ents had notice of their obligations. “The same analogy,” Barnes, 536
U. S., at 187, similarly limits “the scope of available remedies.” Gebser,
524 U. S., at 287. Thus, a particular remedy is available in a private
Spending Clause action “only if the funding recipient is on notice that,
by accepting federal funding, it exposes itself to liability of that na-
ture.” Barnes, 536 U. S., at 187. Pp. 3–5.
(b) To decide whether emotional distress damages are available un-
der the Spending Clause statutes in this case, the Court therefore asks
whether a prospective funding recipient deciding whether to accept
federal funds would have had “clear notice” regarding that liability.
Arlington Central School Dist. Bd. of Ed. v. Murphy, 548 U. S. 291,
296. Because the statutes at issue are silent as to available remedies,
it is not obvious how to decide that question. Confronted with the same
dynamic in Barnes, which involved the question whether punitive
damages are available under the same statutes, the Court followed the
contract analogy and concluded that a federal funding recipient may
be considered “on notice that it is subject . . . to those remedies tradi-
tionally available in suits for breach of contract.” 536 U. S., at 187.
Given that punitive damages “are generally not available for breach of
contract,” the Court concluded that funding recipients “have not,
merely by accepting funds, implicitly consented to liability for punitive
damages.” Id., at 187–188.
Crucial here, the Court in Barnes considered punitive damages gen-
erally unavailable for breach of contract despite the fact that such
damages are hardly unheard of in contract cases: Treatises cited in
Barnes described punitive damages as recoverable in contract where
“the conduct constituting the breach is also a tort for which punitive
damages are recoverable.” Restatement (Second) of Contracts §355, p.
Cite as: 596 U. S. ____ (2022) 3
Syllabus
154. That recognized exception to the general rule, however, was not
enough to give funding recipients the requisite notice that they could
face such damages. Under Barnes, the Court thus presumes that re-
cipients are aware that they may face the usual contract remedies in
private suits brought to enforce their Spending Clause “contract” with
the Federal Government. Pp. 5–7.
(c) The above framework produces a straightforward analysis in this
case. Hornbook law states that emotional distress is generally not
compensable in contract. Under Barnes, the Court cannot treat federal
funding recipients as having consented to be subject to damages for
emotional distress, and such damages are accordingly not recoverable.
Cummings argues for a different result, maintaining that tradi-
tional contract remedies here do include damages for emotional dis-
tress, because there is an exception—put forth in some contract trea-
tises—under which such damages may be awarded where a
contractual breach is particularly likely to result in emotional disturb-
ance. See, e.g., Restatement (Second) of Contracts §353. That special
rule is met here, Cummings contends, because discrimination is very
likely to engender mental anguish. This approach would treat funding
recipients as on notice that they will face not only the general rules,
but also “more fine-grained,” exceptional rules that “govern[ ] in the
specific context” at hand. Brief for Petitioner 33–35. That is incon-
sistent with both Barnes and the Court’s larger Spending Clause juris-
prudence. Barnes necessarily concluded that the existence of an on-
point exception to the general rule against punitive damages was in-
sufficient to put funding recipients on notice of their exposure to that
particular remedy. No adequate explanation has been offered for why
the Court—bound by Barnes—should reach a different result here.
The approach offered by Cummings pushes the notion of offer and ac-
ceptance, central to the Court’s Spending Clause cases, past its break-
ing point. It is one thing to say that funding recipients will know the
basic, general rules. It is quite another to assume that they will know
the contours of every contract doctrine, no matter how idiosyncratic or
exceptional. Cummings would essentially incorporate the law of con-
tract remedies wholesale, but Barnes constrains courts to imply only
those remedies “that [are] normally available for contract actions.” Id.,
at 188. In urging the Court to disregard that restriction, Cummings
would have the Court treat statutory silence as a license to freely sup-
ply remedies the Court cannot be sure Congress would have chosen.
Such an approach “risks arrogating legislative power,” Hernández v.
Mesa, 589 U. S. ___, ___, and is particularly untenable in a context re-
quiring “clear notice regarding the liability at issue,” Arlington, 548
U. S., at 296.
Even if it were appropriate to treat funding recipients as aware that
4 CUMMINGS v. PREMIER REHAB KELLER
Syllabus
they may be subject to “rare” contract-law rules that are “satisfied only
in particular settings,” Brief for Petitioner 34, funding recipients
would still lack the requisite notice that emotional distress damages
are available under the statutes at issue. That is because the Restate-
ment’s formulation—that such damages are available where “the con-
tract or the breach is of such a kind that serious emotional disturbance
was a particularly likely result,” §353—does not reflect the consensus
rule among American jurisdictions. There is in fact no majority rule
on what circumstances, if any, may trigger the exceptional allowance
of such damages. For instance, many states reject the broad and gen-
erally phrased Restatement exception because they award emotional
distress damages only in a narrow and idiosyncratic group of cases in
which the breaching conduct would also have been a tort. These cases
unsurprisingly mix contract, quasi-contract, and tort principles to-
gether, suggesting that they do not establish or evince a rule of con-
tract law.
Emotional distress damages are not “traditionally available in suits
for breach of contract.” Barnes, 536 U. S., at 187. There is correspond-
ingly no ground, under the Court’s cases, to conclude that federal fund-
ing recipients have “clear notice,” Arlington, 548 U. S., at 296, that
they would face such a remedy in private actions brought to enforce
the statutes here. Pp. 7–15.
948 F. 3d 673, affirmed.
ROBERTS, C. J., delivered the opinion of the Court, in which THOMAS,
ALITO, GORSUCH, KAVANAUGH, and BARRETT, JJ., joined. KAVANAUGH, J.,
filed a concurring opinion, in which GORSUCH, J., joined. BREYER, J., filed
a dissenting opinion, in which SOTOMAYOR and KAGAN, JJ., joined.
Cite as: 596 U. S. ____ (2022) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 20–219
_________________
JANE CUMMINGS, PETITIONER v. PREMIER
REHAB KELLER, P.L.L.C.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[April 28, 2022]
CHIEF JUSTICE ROBERTS delivered the opinion of the
Court.
Congress has broad power under the Spending Clause of
the Constitution to set the terms on which it disburses fed-
eral funds. “[L]egislation enacted pursuant to the spending
power is much in the nature of a contract: in return for fed-
eral funds, the [recipients] agree to comply with federally
imposed conditions.” Pennhurst State School and Hospital
v. Halderman, 451 U. S. 1, 17 (1981). Exercising this au-
thority, Congress has passed a number of statutes prohib-
iting recipients of federal financial assistance from discrim-
inating based on certain protected characteristics. We have
held that these statutes may be enforced through implied
rights of action, and that private plaintiffs may secure in-
junctive or monetary relief in such suits. See Barnes v. Gor-
man, 536 U. S. 181, 185, 187 (2002). Punitive damages, on
the other hand, are not available. Id., at 189. The question
presented in this case is whether another special form of
damages—damages for emotional distress—may be recov-
ered.
2 CUMMINGS v. PREMIER REHAB KELLER
Opinion of the Court
I
Petitioner Jane Cummings is deaf and legally blind, and
communicates primarily in American Sign Language
(ASL). In October 2016, she sought physical therapy ser-
vices from respondent Premier Rehab Keller, a small busi-
ness in the Dallas-Fort Worth area. Cummings requested
that Premier Rehab provide an ASL interpreter at her ap-
pointments. Premier Rehab declined to do so, telling Cum-
mings that she could communicate with the therapist using
written notes, lip reading, or gesturing. Cummings then
sought and obtained care from another provider.
Cummings later filed this lawsuit against Premier Re-
hab, alleging that its failure to provide an ASL interpreter
constituted discrimination on the basis of disability in vio-
lation of the Rehabilitation Act of 1973, §504, 87 Stat. 394,
as amended, 29 U. S. C. §794(a), and the Patient Protection
and Affordable Care Act, §1557, 124 Stat. 260, 42 U. S. C.
§18116. Premier Rehab is subject to these statutes, which
apply to entities that receive federal financial assistance,
because it receives reimbursement through Medicare and
Medicaid for the provision of some of its services. In her
complaint, Cummings sought declaratory relief, an injunc-
tion, and damages.
The District Court dismissed the complaint. It observed
that “the only compensable injuries that Cummings alleged
Premier caused were ‘humiliation, frustration, and emo-
tional distress.’ ” No. 4:18–CV–649–A (ND Tex., Jan. 16,
2019), 2019 WL 227411, *4. In the District Court’s view,
“damages for emotional harm” are not recoverable in pri-
vate actions brought to enforce the Rehabilitation Act or the
Affordable Care Act. Ibid. The Court of Appeals for the
Fifth Circuit affirmed, adopting the same conclusion. 948
F. 3d 673 (2020).
We granted certiorari. 594 U. S. ___ (2021).
Cite as: 596 U. S. ____ (2022) 3
Opinion of the Court
II
A
Pursuant to its authority to “fix the terms on which it
shall disburse federal money,” Pennhurst, 451 U. S., at 17,
Congress has enacted four statutes prohibiting recipients of
federal financial assistance from discriminating based on
certain protected grounds. Title VI of the Civil Rights Act
of 1964 forbids race, color, and national origin discrimina-
tion in federally funded programs or activities. 78 Stat.
252, 42 U. S. C. §2000d. Title IX of the Education Amend-
ments of 1972 similarly prohibits sex-based discrimination,
86 Stat. 373, 20 U. S. C. §1681, while the Rehabilitation Act
bars funding recipients from discriminating because of dis-
ability. 29 U. S. C. §794. Finally, the Affordable Care Act
outlaws discrimination on any of the preceding grounds, in
addition to age, by healthcare entities receiving federal
funds. 42 U. S. C. §18116.
None of these statutes expressly provides victims of dis-
crimination a private right of action to sue the funding re-
cipient in federal court. But as to both Title VI and Title
IX, our decision in Cannon v. University of Chicago, 441
U. S. 677, 703 (1979), “found an implied right of action.”
Barnes, 536 U. S., at 185. Congress later “acknowledged
this right in amendments” to both statutes, ibid., leading
us to conclude that it had “ratified Cannon’s holding” that
“private individuals may sue to enforce” both statutes. Al-
exander v. Sandoval, 532 U. S. 275, 280 (2001); see also
Franklin v. Gwinnett County Public Schools, 503 U. S. 60,
72–73 (1992). As to the Rehabilitation Act and the Afford-
able Care Act—the two statutes directly at issue in this lit-
igation—each expressly incorporates the rights and reme-
dies provided under Title VI. 29 U. S. C. §794a(a)(2); 42
U. S. C. §18116(a).
Although it is “beyond dispute that private individuals
may sue to enforce” the antidiscrimination statutes we con-
sider here, “it is less clear what remedies are available in
4 CUMMINGS v. PREMIER REHAB KELLER
Opinion of the Court
such a suit.” Barnes, 536 U. S., at 185. In Franklin, we
considered whether monetary damages are available as a
remedy for intentional violations of Title IX (and, by exten-
sion, the other statutes we discussed). 503 U. S., at 76. We
answered yes, ibid., but “did not describe the scope of ‘ap-
propriate relief.’ ” Barnes, 536 U. S., at 185.
Our later cases have filled in that gap, clarifying that our
consideration of whether a remedy qualifies as appropriate
relief must be informed by the way Spending Clause “stat-
utes operate”: by “conditioning an offer of federal funding
on a promise by the recipient not to discriminate, in what
amounts essentially to a contract between the Government
and the recipient of funds.” Gebser v. Lago Vista Independ-
ent School Dist., 524 U. S. 274, 286 (1998). Unlike ordinary
legislation, which “imposes congressional policy” on regu-
lated parties “involuntarily,” Spending Clause legislation
operates based on consent: “in return for federal funds, the
[recipients] agree to comply with federally imposed condi-
tions.” Pennhurst, 451 U. S., at 16, 17. For that reason, the
“legitimacy of Congress’ power” to enact Spending Clause
legislation rests not on its sovereign authority to enact
binding laws, but on “whether the [recipient] voluntarily
and knowingly accepts the terms of th[at] ‘contract.’ ”
Barnes, 536 U. S., at 186 (quoting Pennhurst, 451 U. S., at
17).
“We have regularly applied th[is] contract-law analogy in
cases defining the scope of conduct for which funding recip-
ients may be held liable for money damages.” Barnes, 536
U. S., at 186. Recipients cannot “knowingly accept” the deal
with the Federal Government unless they “would clearly
understand . . . the obligations” that would come along with
doing so. Arlington Central School Dist. Bd. of Ed. v. Mur-
phy, 548 U. S. 291, 296 (2006). We therefore construe the
reach of Spending Clause conditions with an eye toward
“ensuring that the receiving entity of federal funds [had]
Cite as: 596 U. S. ____ (2022) 5
Opinion of the Court
notice that it will be liable.” Gebser, 524 U. S., at 287 (in-
ternal quotation marks omitted). “Accordingly, if Congress
intends to impose a condition on the grant of federal mon-
eys, it must do so unambiguously.” Pennhurst, 451 U. S.,
at 17.
“The same analogy,” Barnes, 536 U. S., at 187, similarly
limits “the scope of available remedies” in actions brought
to enforce Spending Clause statutes, Gebser, 524 U. S., at
287. After all, when considering whether to accept federal
funds, a prospective recipient would surely wonder not only
what rules it must follow, but also what sort of penalties
might be on the table. See Barnes, 536 U. S., at 188. A
particular remedy is thus “appropriate relief ” in a private
Spending Clause action “only if the funding recipient is on
notice that, by accepting federal funding, it exposes itself to
liability of that nature.” Id., at 187 (emphasis in original).
Only then can we be confident that the recipient “exercise[d
its] choice knowingly, cognizant of the consequences of [its]
participation” in the federal program. Pennhurst, 451 U. S.,
at 17.
B
In order to decide whether emotional distress damages
are available under the Spending Clause statutes we con-
sider here, we therefore ask a simple question: Would a pro-
spective funding recipient, at the time it “engaged in the
process of deciding whether [to] accept” federal dollars,
have been aware that it would face such liability? Arling-
ton, 548 U. S., at 296. If yes, then emotional distress dam-
ages are available; if no, they are not.
Because the statutes at issue are silent as to available
remedies, it is not obvious how to decide whether funding
recipients would have had the requisite “clear notice re-
garding the liability at issue in this case.” Ibid. We con-
fronted that same dynamic in Barnes. There, we considered
whether a federal funding recipient would have known,
6 CUMMINGS v. PREMIER REHAB KELLER
Opinion of the Court
when taking the money, that it was agreeing to face puni-
tive damages in suits brought under those laws. We noted
that the statutory text “contains no express remedies.” 536
U. S., at 187. But we explained that, following the contract
analogy set out in our Spending Clause cases, a federal
funding recipient may be considered “on notice that it is
subject not only to those remedies explicitly provided in the
relevant legislation, but also to those remedies traditionally
available in suits for breach of contract.” Ibid. We identi-
fied two such remedies: compensatory damages and injunc-
tions. By contrast, we explained, punitive damages “are
generally not available for breach of contract.” Ibid. We
thus concluded that funding recipients covered by the stat-
utes at issue “have not, merely by accepting funds, implic-
itly consented to liability for punitive damages.” Id., at 188.
Crucial for this case, we considered punitive damages to
be “generally not available for breach of contract,” see id.,
at 187, despite the fact that such damages are hardly un-
heard of in contract cases. Indeed, according to the trea-
tises we cited, punitive damages are recoverable in contract
where “the conduct constituting the breach is also a tort for
which punitive damages are recoverable.” Restatement
(Second) of Contracts §355, p. 154 (1979); see also 3 E.
Farnsworth, Contracts §12.8, pp. 192–201 (2d ed. 1998).
That recognized exception to the general rule, however, was
not enough to give funding recipients the requisite notice
that they could face such damages.
Under Barnes, then, we may presume that a funding re-
cipient is aware that, for breaching its Spending Clause
“contract” with the Federal Government, it will be subject
to the usual contract remedies in private suits. That is ap-
parent from the adverbs Barnes repeatedly used, requiring
that a remedy be “traditionally available,” “generally . . .
available,” or “normally available for contract actions.” 536
U. S., at 187–188. And it is confirmed by the Court’s hold-
Cite as: 596 U. S. ____ (2022) 7
Opinion of the Court
ing: that punitive damages are unavailable in private ac-
tions brought under these statutes even though such dam-
ages are a familiar feature of contract law.
C
Under the framework just set out, the analysis here is
straightforward. It is hornbook law that “emotional dis-
tress is generally not compensable in contract,” D. Laycock
& R. Hasen, Modern American Remedies 216 (5th ed. 2019),
just as “punitive damages . . . are generally not available for
breach of contract,” Barnes, 536 U. S., at 187. See 11 W.
Jaeger, Williston on Contracts §1341, p. 214 (3d ed. 1968)
(“Mental suffering caused by breach of contract, although it
may be a real injury, is not generally allowed as a basis for
compensation in contractual actions.” (footnote omitted));
E. Farnsworth, Contracts §12.17, p. 894 (1982) (describing
rule of “generally denying recovery for emotional disturb-
ance, or ‘mental distress,’ resulting from breach of contract”
as “firmly rooted in tradition”); J. Perillo, Calamari & Per-
illo on Contracts §14.5, p. 495 (6th ed. 2009) (Calamari &
Perillo) (“As a general rule, no damages will be awarded for
the mental distress or emotional trauma that may be
caused by a breach of contract.”); C. McCormick, Law of
Damages §145, p. 592 (1935) (McCormick) (“It is often
stated as the ‘general rule’ that, in actions for breach of con-
tract, damages for mental suffering are not allowable.”).
Under Barnes, we therefore cannot treat federal funding re-
cipients as having consented to be subject to damages for
emotional distress. It follows that such damages are not
recoverable under the Spending Clause statutes we con-
sider here.
In arguing for a different result, Cummings recognizes
that “contract law dictates ‘the scope of damages reme-
dies.’ ” Brief for Petitioner 30. And she quotes the test set
out in Barnes: whether a certain remedy is “traditionally
8 CUMMINGS v. PREMIER REHAB KELLER
Opinion of the Court
available in suits for breach of contract.” Brief for Peti-
tioner 31. But Cummings then argues that, notwithstand-
ing the above authorities, “traditional contract remedies” in
fact do “include damages for emotional distress.” Ibid.; see
Brief for United States as Amicus Curiae 14–20 (making
the same argument); post, at 7–9 (BREYER, J., dissenting)
(same).
That is because, Cummings explains, several contract
treatises put forth the special rule that “recovery for emo-
tional disturbance” is allowed in a particular circumstance:
where “the contract or the breach is of such a kind that se-
rious emotional disturbance was a particularly likely re-
sult.” Brief for Petitioner 31 (quoting Restatement (Second)
of Contracts §353). And, she contends, such a rule “aptly
describe[s the] intentional breach of [a] promise to refrain
from discrimination,” because discrimination frequently en-
genders mental anguish. Brief for Petitioner 31. This ar-
gument suffers from two independently fatal flaws.
First, Cummings subtly but crucially transforms the con-
tract-law analogy into a test that is inconsistent with both
Barnes and our larger Spending Clause jurisprudence.
Barnes, recall, instructs us to inquire whether a remedy is
“traditionally,” “generally,” or “normally available for con-
tract actions.” 536 U. S., at 187–188. Cummings, however,
would look not only to those general rules, but also to
whether there is a “more fine-grained” or “more directly ap-
plicable” rule of contract remedies that, although not gen-
erally or normally applicable, “govern[s] in the specific con-
text” or “particular setting[ ]” of the pertinent Spending
Clause provision. Brief for Petitioner 33–35; see also post,
at 9. In other words, Cummings would treat funding recip-
ients as on notice that they will face not only the usual rem-
edies available in contract actions, but also other unusual,
even “rare” remedies, Brief for Petitioner 34, if those reme-
dies would be recoverable “in suits for breaches of the type
of contractual commitments at issue,” id., at 35.
Cite as: 596 U. S. ____ (2022) 9
Opinion of the Court
Neither petitioner nor the United States attempts to
ground this approach in Barnes, which, as discussed above,
undertook nothing of the sort. Indeed, had Barnes analyzed
the question as petitioner frames it, the decision would
have come out the opposite way. As noted, although the
general rule is that punitive damages are not available in
contract, they are undoubtedly recoverable in cases where
the breaching conduct is also “a tort for which punitive
damages are recoverable.” Restatement (Second) of Con-
tracts §355. Such conduct would presumably include
“breaches of the type of contractual commitments at issue
here,” Brief for Petitioner 35–namely, the commitment not
to discriminate. After all, intentional discrimination is fre-
quently a wanton, reprehensible tort. Barnes itself in-
volved “tortious conduct,” 536 U. S., at 192 (Stevens, J., con-
curring in judgment), that the jury had found deplorable
enough to warrant $1.2 million in punitive damages, id., at
184 (opinion of the Court). Yet Barnes necessarily con-
cluded that the existence of this on-point exception to the
general rule against punitive damages was insufficient to
put funding recipients on notice of their exposure to that
particular remedy.
Compare in this regard the Restatement’s discussion of
emotional distress damages with its discussion of punitive
damages:
“Loss Due to Emotional Disturbance
“Recovery for emotional disturbance will be excluded
unless . . . the contract or the breach is of such a kind
that serious emotional disturbance was a particularly
likely result.” §353 (emphasis added).
“Punitive Damages
“Punitive damages are not recoverable for a breach of
contract unless the conduct constituting the breach is
also a tort for which punitive damages are recoverable.”
10 CUMMINGS v. PREMIER REHAB KELLER
Opinion of the Court
§355 (emphasis added).
It did not matter to the Court in Barnes that the second
clause of section 355 “aptly describe[s] a funding recipient’s
intentional breach of its promise to refrain from discrimi-
nation.” Brief for Petitioner 31. Barnes did not even engage
in such an inquiry; it simply stopped at the word “unless.”
See 536 U. S., at 187–188. Neither Cummings nor the
United States adequately explains why we—bound by
Barnes—should do anything different here. Indeed, re-
flected in the Restatement’s similar treatment of emotional
distress and punitive damages is the fact that “the line be-
tween these two kinds of damages is indistinct and hard to
draw.” 11 J. Perillo, Corbin on Contracts §59.1, p. 546 (rev.
11th ed. 2005) (Corbin); see also D. Dobbs, Law of Remedies
§12.4, p. 819 (1973) (Dobbs).
Beyond Barnes itself, petitioner’s “more fine-grained” ap-
proach, Brief for Petitioner 33, cannot be squared with our
contract analogy case law in general. As Cummings sees
things, “it makes no difference whether the governing con-
tract rule here is an ‘exception,’ ” id., at 34, because “the
governing rule is just that: the governing rule,” id., at 35;
see also post, at 9. But our cases do not treat suits under
Spending Clause legislation as literal “suits in contract,”
Sossamon v. Texas, 563 U. S. 277, 290 (2011), subjecting
funding recipients to whatever “governing rules” some gen-
eral federal law of contracts would supply.
Rather, as set out above, we employ the contract analogy
“only as a potential limitation on liability” compared to that
which “would exist under nonspending statutes.” Ibid. We
do so to ensure that funding recipients “exercise[d] their
choice” to take federal dollars “knowingly, cognizant of the
consequences of ” doing so. Pennhurst, 451 U. S., at 17.
Here, the statutes at issue say nothing about what those
consequences will be. Nonetheless, consistent with Barnes,
it is fair to consider recipients aware that, if they violate
Cite as: 596 U. S. ____ (2022) 11
Opinion of the Court
their promise to the Government, they will be subject to ei-
ther damages or a court order to perform. Those are the
usual forms of relief for breaching a legally enforceable com-
mitment. No dive through the treatises, 50-state survey, or
speculative drawing of analogies is required to anticipate
their availability.
The approach offered by Cummings, by contrast, pushes
the notion of “offer and acceptance,” Barnes, 536 U. S., at
186, past its breaking point. It is one thing to say that fund-
ing recipients will know the basic, general rules. It is quite
another to assume that they will know the contours of every
contract doctrine, no matter how idiosyncratic or excep-
tional. Yet that is the sort of “clear notice” that Cummings
necessarily suggests funding recipients would have regard-
ing the availability of emotional distress damages when
“engaged in the process of deciding whether” to accept fed-
eral funds. Arlington, 548 U. S., at 296. Such a diluted
conception of knowledge has no place in our Spending
Clause jurisprudence.
What is more, by essentially incorporating the law of con-
tract remedies wholesale, Cummings’s rendition of the
analogy “risks arrogating legislative power.” Hernández v.
Mesa, 589 U. S. ___, ___ (2020) (slip op., at 5). Recall that
Barnes authorized the recovery of “remedies traditionally
available in suits for breach of contract” under Spending
Clause statutes, like those we consider here, that “men-
tion[ ] no remedies.” 536 U. S., at 187. Barnes thus permit-
ted federal courts to do something we are usually loath to
do: “find[ ] that a [certain] remedy is implied by a provision
that makes no reference to that remedy,” Hernández, 589
U. S., at ___ (slip op., at 5). But Barnes also placed a clear
limit on that authority, constraining courts to imply only
those remedies “that [are] normally available for contract
actions.” 536 U. S., at 188. In urging us to disregard that
restriction, Cummings would have us treat statutory si-
lence as a license to freely supply remedies we cannot be
12 CUMMINGS v. PREMIER REHAB KELLER
Opinion of the Court
sure Congress would have chosen to make available. That
would be an untenable result in any context, let alone one
in which our cases require “clear notice regarding the lia-
bility at issue,” Arlington, 548 U. S., at 296.
Second, even if it were appropriate to treat funding recip-
ients as aware that they may be subject to “rare” contract-
law rules that are “satisfied only in particular settings,”
Brief for Petitioner 34, funding recipients would still lack
the requisite notice that emotional distress damages are
available under the statutes at issue. That is because the
Restatement’s formulation—that such damages are availa-
ble where “the contract or the breach is of such a kind that
serious emotional disturbance was a particularly likely re-
sult,” see Restatement (Second) of Contracts §353—does
not reflect the consensus rule among American jurisdic-
tions.
Far from it. As one commentator concluded after “[s]ur-
veying all of the cases dealing with emotional distress re-
covery in contract actions” over a decade after the Restate-
ment’s publication, “a majority rule does not exist” on the
question. D. Whaley, Paying for the Agony: The Recovery
of Emotional Distress Damages in Contract Actions, 26 Suf-
folk U. L. Rev. 935, 946 (1992); see also J. Chmiel, Dam-
ages—Recovery for Mental Suffering From Breach of Con-
tract, 32 Notre Dame Law. 482 (1957) (noting “little
uniformity in the decided cases”); Corbin §59.1, at 538, 540
(“Claims for damages for mental pain and suffering have
caused much conflict and difference of opinion,” and “the
law cannot be said to be entirely settled”); Dobbs §12.4, at
819–820 (although a “group of cases have tried to formulate
a broader doctrine” akin to the Restatement view, “th[e]
principle is a broad and relatively undefined one,” and “it is
not clear how far [it] is or will be accepted by the courts”).
The contrary view of the dissent, see post, at 4–7, is more
aspirational than descriptive.
To be sure, a number of States follow the Restatement
Cite as: 596 U. S. ____ (2022) 13
Opinion of the Court
rule and award emotional distress damages “where the in-
jury entails more than a pecuniary loss, and the duty vio-
lated is closely associated with the feelings and emotions of
the injured party.” Chmiel, 32 Notre Dame Law., at 482.
That represents “the most liberal approach,” Whaley, 26
Suffolk L. Rev., at 943, taken by a “strong minority” of
courts, Corbin §59.1, at 541; see also McCormick §145, at
594–595. On the opposite end of the spectrum, however,
several States squarely reject the Restatement, and alto-
gether forbid recovery of emotional distress damages even
where the contract relates to nonpecuniary matters. See,
e.g., Tompkins v. Eckerd, Civ. No. 09–2369, 2012 WL
1110069, *4 (D SC, Apr. 3, 2012); Contreraz v. Michelotti-
Sawyers, 271 Mont. 300, 309, 896 P. 2d 1118, 1123 (1995);
Keltner v. Washington County, 310 Ore. 499, 504–510, 800
P. 2d 752, 754–758 (1990).
Most States reject the Restatement exception in a more
nuanced way: by limiting the award of emotional distress
damages to a narrow and idiosyncratic group of cases, ra-
ther than making them available in general wherever a
breach would have been likely to inflict emotional harm.
Calamari & Perillo §14.5, at 495–496. A good example is
New York, which refused to apply the Restatement rule,
and denied emotional distress damages, where the defend-
ant hospital breached its contractual duty to return a new-
born child to his parents by failing to prevent his abduction.
Johnson v. Jamaica Hospital, 62 N. Y. 2d 523, 528–529, 467
N. E. 2d 502, 504 (1984); see also id., at 536–537, 467 N. E.
2d, at 509 (Meyer, J., dissenting).
These jurisdictions confine recovery for mental anguish
where nonpecuniary contracts are at issue in two main
ways. First, a number permit recovery only if the breach
also qualifies as “unusually evil,” with the precise terminol-
ogy varying from “reckless” and “willful” to “wanton” and
“reprehensible.” D. Hoffman & A. Radus, Instructing Ju-
ries on Noneconomic Contract Damages, 81 Fordham
14 CUMMINGS v. PREMIER REHAB KELLER
Opinion of the Court
L. Rev. 1221, 1227 (2012) (emphasis deleted); see Corbin
§59.1, at 546–547; Chmiel, 32 Notre Dame Law., at 484–
485; see, e.g., Giampapa v. American Family Mut. Ins. Co.,
64 P. 3d 230, 238–239 (Colo. 2003).
Second, many States limit recovery for mental anguish to
only a narrow “class of contracts upon breach of which the
injured party may, if he so elect, bring an action sounding
in tort.” Smith v. Sanborn State Bank, 147 Iowa 640, 643,
126 N. W. 779, 780 (1910); Corbin §59.1, at 538; see, e.g.,
Johnson, 62 N. Y. 2d, at 528, 467 N. E. 2d, at 504. Such
cases most prominently include those “against carriers, tel-
egraph companies, and innkeepers—all of whom are bound
by certain duties that are independent of contract, but who
usually also have made a contract for the performance of
the duty.” Corbin §59.1, at 538; Chmiel, 32 Notre Dame
Law., at 488. Others involve “contracts for the carriage or
proper disposition of dead bodies,” Restatement (Second) of
Contracts §353, Comment a, which similarly might be seen
“as tort cases quite apart from the contract, since one who
negligently mishandles a body could be liable in tort . . .
even if there were no contract at all.” Dobbs §12.4, at 819;
see also McCormick §145, at 594–595, 597; see, e.g., Wright
v. Beardsley, 46 Wash. 16, 16–20, 89 P. 172, 172–174 (1907).
Many of these cases unsurprisingly mix contract, quasi-
contract, and tort principles together. Dobbs, §12.4, at 818,
n. 10 (“The carrier who insults his passenger is liable to him
in tort . . . but cases often speak of an implied term in the
contract as governing this point.”); Knoxville Traction Co.
v. Lane, 103 Tenn. 376, 386, 53 S. W. 557, 560 (1899) (“The
gravamen of this action is the defendant’s breach of its con-
tract of carriage, which includes . . . the duty to protect the
passenger from insult or injury.”); Chamberlain v. Chan-
dler, 5 F. Cas. 413, 414 (No. 2,575) (CC Mass. 1823) (opinion
of Story, J.) (ship captain violated the carriage contract’s
Cite as: 596 U. S. ____ (2022) 15
Opinion of the Court
“implied stipulation against general obscenity”).* As such,
it makes little sense to treat such cases as establishing or
evincing a rule of contract law—a principle with which the
United States agrees, Brief for United States as Amicus Cu-
riae 31, n. 5 (arguing that cases “based on tort principles”
are “not instructive” for purposes of the contract-law anal-
ogy).
In the end, it is apparent that the closest our legal system
comes to a universal rule—or even a widely followed one—
regarding the availability of emotional distress damages in
contract actions is “the conventional wisdom . . . that [such]
damages are for highly unusual contracts, which do not fit
into the core of contract law.” Hoffman, 81 Fordham L.
Rev., at 1230. As to which “highly unusual contracts” trig-
ger the exceptional allowance of such damages, the only
area of agreement is that there is no agreement. There is
thus no basis in contract law to maintain that emotional
distress damages are “traditionally available in suits for
breach of contract,” Barnes, 536 U. S., at 187, and corre-
spondingly no ground, under our cases, to conclude that fed-
eral funding recipients have “clear notice,” Arlington, 548
U. S., at 296, that they would face such a remedy in private
actions brought to enforce the statutes at issue.
——————
*The dissent cites McCormick for the proposition that courts did not
“always” rely on “accompanying tortious conduct” when allowing recov-
ery of emotional distress damages in the innkeeper, telegraph, and burial
cases. Post, at 9 (quoting McCormick §145, at 593–594). That misses
the point. As McCormick’s next sentence explains, the award of emo-
tional distress damages in such cases was “made easier because usually
the action could have been brought as for a tort, in which event the tra-
dition against allowing damages for mental distress would be plainly in-
applicable.” Id., §145, at 594. Put differently, the usual rule barring
recovery was not applicable in this idiosyncratic set of cases because, like
cases in which punitive damages were awarded, they were “based on con-
tract in name only,” Dobbs §12.4, at 818.
16 CUMMINGS v. PREMIER REHAB KELLER
Opinion of the Court
* * *
For the foregoing reasons, we hold that emotional dis-
tress damages are not recoverable under the Spending
Clause antidiscrimination statutes we consider here. The
judgment of the Court of Appeals is affirmed.
It is so ordered.
Cite as: 596 U. S. ____ (2022) 1
KAVANAUGH, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 20–219
_________________
JANE CUMMINGS, PETITIONER v. PREMIER
REHAB KELLER, P.L.L.C.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[April 28, 2022]
JUSTICE KAVANAUGH, with whom JUSTICE GORSUCH
joins, concurring.
In analyzing whether compensatory damages for emo-
tional distress are available under the implied Title VI
cause of action, both the Court and the dissent ably employ
the contract-law analogy set forth by this Court’s prece-
dents. See, e.g., Barnes v. Gorman, 536 U. S. 181, 186
(2002). The dueling and persuasive opinions illustrate,
however, that the contract-law analogy is an imperfect way
to determine the remedies for this implied cause of action.
Instead of continuing to rely on that imperfect analogy, I
would reorient the inquiry to focus on a background inter-
pretive principle rooted in the Constitution’s separation of
powers. Congress, not this Court, creates new causes of ac-
tion. See Alexander v. Sandoval, 532 U. S. 275, 286–287
(2001). And with respect to existing implied causes of ac-
tion, Congress, not this Court, should extend those implied
causes of action and expand available remedies. Cf. Her-
nández v. Mesa, 589 U. S. ___, ___ (2020) (slip op., at 5); see
also Franklin v. Gwinnett County Public Schools, 503 U. S.
60, 77–78 (1992) (Scalia, J., concurring in judgment). In my
view, that background interpretive principle—more than
contract-law analysis—counsels against judicially author-
izing compensatory damages for emotional distress in suits
under the implied Title VI cause of action.
Cite as: 596 U. S. ____ (2022) 1
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 20–219
_________________
JANE CUMMINGS, PETITIONER v. PREMIER
REHAB KELLER, P.L.L.C.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[April 28, 2022]
JUSTICE BREYER, with whom JUSTICE SOTOMAYOR and
JUSTICE KAGAN join, dissenting.
Using its Spending Clause authority, Congress has en-
acted four statutes that prohibit recipients of federal funds
from discriminating on the basis of certain protected char-
acteristics, including (depending upon the statute) race,
color, national origin, sex, disability, or age. See Civil
Rights Act of 1964, Title VI, 42 U. S. C. §2000d; Education
Amendments Act of 1972, Title IX, 20 U. S. C. §1681; Reha-
bilitation Act of 1973, §504, 29 U. S. C. §794; Patient Pro-
tection and Affordable Care Act (ACA), §1557, 42 U. S. C.
§18116. We have held that victims of intentional violations
of these statutes may bring lawsuits seeking to recover,
among other relief, compensatory damages. Franklin v.
Gwinnett County Public Schools, 503 U. S. 60, 76 (1992).
Today, the Court holds that the compensatory damages
available under these statutes cannot include compensa-
tion for emotional suffering.
The Court has asked the right question: “[W]ould a pro-
spective funding recipient, at the time it engaged in the pro-
cess of deciding whether to accept federal dollars, have been
aware that it would face such liability?” Ante, at 5 (internal
quotation marks and alterations omitted). And it has cor-
rectly observed that our precedents instruct us to answer
this question by drawing an analogy to contract law. But I
2 CUMMINGS v. PREMIER REHAB KELLER
BREYER, J., dissenting
disagree with how the Court has applied that analogy.
The Court looks broadly at all contracts. It says that,
most of the time, damages for breach of contract did not in-
clude compensation for emotional distress. Ante, at 7. And
it then holds that emotional distress damages are not avail-
able under the Spending Clause statutes at issue here.
Ibid. But, in my view, contracts analogous to these statutes
did allow for recovery of emotional distress damages. Emo-
tional distress damages were traditionally available when
“the contract or the breach” was “of such a kind that serious
emotional disturbance was a particularly likely result.”
Restatement (Second) of Contracts §353, p. 149 (1979).
The Spending Clause statutes before us prohibit inten-
tional invidious discrimination. That kind of discrimina-
tion is particularly likely to cause serious emotional dis-
turbance. Thus, applying our precedents’ contract analogy,
I would hold that victims of intentional violations of these
antidiscrimination statutes can recover compensatory dam-
ages for emotional suffering. I respectfully dissent.
I
I begin with agreement. First, like the Court, I recognize
that “it is ‘beyond dispute that private individuals may sue
to enforce’ the [four] antidiscrimination statutes we con-
sider here.” Ante, at 3 (quoting Barnes v. Gorman, 536 U. S.
181, 185 (2002)). Title VI (prohibiting race discrimination)
and Title IX (prohibiting sex discrimination) contain im-
plied rights of action that have been ratified by Congress.
Alexander v. Sandoval, 532 U. S. 275, 280 (2001). The Re-
habilitation Act (prohibiting disability discrimination) and
the ACA (prohibiting race, sex, disability, and age discrim-
ination) expressly incorporate the rights and remedies
available under Title VI. 29 U. S. C. §794a(a)(2); 42 U. S. C.
§18116(a). We have treated these statutes as providing “co-
extensive” remedies. Barnes, 536 U. S., at 185. Thus, the
Cite as: 596 U. S. ____ (2022) 3
BREYER, J., dissenting
Court’s decision today will affect the remedies available un-
der all four of these statutes, impacting victims of race, sex,
disability, and age discrimination alike.
Second, like the Court, I also recognize that recipients of
federal funding are subject to a particular form of liability
only if they are “on notice” that, by accepting the funds, they
expose themselves to that form of liability. Id., at 187. And
a funding recipient is “generally on notice that it is subject
. . . to those remedies traditionally available in suits for
breach of contract.” Ibid. Thus, the basic question here is
whether damages for emotional suffering were “tradition-
ally available” as remedies “in suits for breach of contract.”
Ibid.II
Unlike the Court, though, I believe the answer to that
basic question is yes. Damages for emotional suffering have
long been available as remedies for suits in breach of con-
tract—at least where the breach was particularly likely to
cause suffering of that kind.
A general, overarching principle of contract remedies is
set forth in the Restatement (Second) of Contracts: “Con-
tract damages are ordinarily based on the injured party’s
expectation interest and are intended to give him the bene-
fit of his bargain by awarding him a sum of money that will,
to the extent possible, put him in as good a position as he
would have been in had the contract been performed.” §347,
Comment a, at 112; see also 3 E. Farnsworth, Contracts
§12.8, p. 188 (2d ed. 1998) (Farnsworth) (“The basic princi-
ple for the measurement of those damages is that of com-
pensation based on the injured party’s expectation”); 3 S.
Williston, Law of Contracts §1338, p. 2392 (1920) (Willis-
ton) (“[T]he general purpose of the law is, and should be, to
give compensation:—that is, to put the plaintiff in as good
a position as he would have been in had the defendant kept
his contract”).
4 CUMMINGS v. PREMIER REHAB KELLER
BREYER, J., dissenting
This simple principle helps explain why compensatory
damages are generally available as remedies and punitive
damages are not. By definition, compensatory damages
serve contract law’s “general purpose,” namely, to “give
compensation.” Ibid. But punitive damages go beyond
“compensat[ing] the injured party for lost expectation” and
instead “put [him] in a better position than had the contract
been performed.” 3 Farnsworth §12.8, at 193.
The same general principle also helps to explain the
many cases in which damages for emotional suffering are
not available. Most contracts are commercial contracts en-
tered for pecuniary gain. Pecuniary remedies are therefore
typically sufficient to compensate the injured party for their
expected losses. See, e.g., C. McCormick, Law of Damages
§145, p. 592 (1935) (McCormick) (“Most contracts which
come before the courts are commercial contracts. The pecu-
niary interest is dominant”); 1 J. Sutherland, Law of Dam-
ages 156 (1883) (Sutherland) (“In actions upon contract, the
losses sustained do not, by reason of the nature of the trans-
actions which they involve, embrace, ordinarily, any other
than pecuniary elements”); 3 Farnsworth §12.17, at 894–
895 (“[T]he real basis of this rule is that [recovery for emo-
tional distress] is likely to result in disproportionate com-
pensation”); cf. Restatement (Second) of Contracts §351(1),
at 135 (“Damages are not recoverable for loss that the party
in breach did not have reason to foresee as a probable result
of the breach when the contract was made”).
Finally, and most importantly here, the same general
rule also helps to explain the cases in which contract law
did make available damages for emotional suffering. Con-
tract law treatises make clear that expected losses from the
breach of a contract entered for nonpecuniary purposes
might reasonably include nonpecuniary harms. So contract
law traditionally does award damages for emotional dis-
tress “where other than pecuniary benefits [were] con-
tracted for” or where the breach “was particularly likely to
Cite as: 596 U. S. ____ (2022) 5
BREYER, J., dissenting
result in serious emotional disturbance.” 3 Williston §1340,
at 2396; 3 Farnsworth §12.17, at 895; see also, e.g., Restate-
ment (Second) of Contracts §353, at 149 (“Recovery for emo-
tional disturbance” was allowed where “the contract or the
breach is of such a kind that serious emotional disturbance
was a particularly likely result”); 1 Sutherland 157–158
(damages should be “appropriate to the objects of the con-
tract”); 1 T. Sedgwick, Measure of Damages §45, p. 61 (8th
ed. 1891) (Sedgwick) (“ ‘Where other than pecuniary bene-
fits are contracted for, other than pecuniary standards will
be applied to the ascertainment of damages flowing from
the breach’ ”).
Examples of contracts that gave rise to emotional distress
damages under this rule have included, among others, con-
tracts for marriage, see, e.g., 1 Sutherland 156, and n. 4;
contracts by common carriers, innkeepers, or places of pub-
lic resort or entertainment, see, e.g., McCormick §145, at
593, and nn. 48–50; contracts related to the handling of a
body, see, e.g., 1 Sedgwick §45, at 62, and n. a; contracts for
delivery of a sensitive telegram message, see, e.g., id., at 62,
and n. b; and more. In these cases, emotional distress dam-
ages are compensatory because they “ ‘make good the wrong
done.’ ” Franklin, 503 U. S., at 66; see also Memphis Com-
munity School Dist. v. Stachura, 477 U. S. 299, 307 (1986).
III
Does breach of a promise not to discriminate fall into this
category? I should think so. The statutes before us seek to
eradicate invidious discrimination. That purpose is clearly
nonpecuniary. And discrimination based on race, color, na-
tional origin, sex, age, or disability is particularly likely to
cause serious emotional harm. Often, emotional injury is
the primary (sometimes the only) harm caused by discrim-
ination, with pecuniary injury at most secondary. Con-
sider, for example, the plaintiff in Franklin—a high school
student who was repeatedly sexually assaulted by her
6 CUMMINGS v. PREMIER REHAB KELLER
BREYER, J., dissenting
teacher. 503 U. S., at 63–64. Or the plaintiff in Tennessee
v. Lane, 541 U. S. 509 (2004), who used a wheelchair and,
because a building lacked wheelchair accessibility, was
forced to crawl up two flights of stairs. Id., at 513–514. Or
the many historical examples of racial segregation in which
Black patrons were made to use separate facilities or ser-
vices. Regardless of whether financial injuries were pre-
sent in these cases, the major (and foreseeable) harm was
the emotional distress caused by the indignity and humili-
ation of discrimination itself.
As a Member of this Court noted in respect to the Civil
Rights Act of 1964, Congress’ antidiscrimination laws seek
“the vindication of human dignity and not mere economics.”
Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241,
291 (1964) (Goldberg, J., concurring). Quoting the Senate
Commerce Committee, Justice Goldberg observed:
“ ‘Discrimination is not simply dollars and cents, ham-
burgers and movies; it is the humiliation, frustration,
and embarrassment that a person must surely feel
when he is told that he is unacceptable as a member of
the public because of his race or color. It is equally the
inability to explain to a child that regardless of educa-
tion, civility, courtesy, and morality he will be denied
the right to enjoy equal treatment, even though he be a
citizen of the United States and may well be called
upon to lay down his life to assure this Nation contin-
ues.’ ” Id., at 292 (quoting S. Rep. No. 872, 88th Cong.,
2d Sess., 16 (1964)).
It is difficult to believe that prospective funding recipi-
ents would be unaware that intentional discrimination
based on race, sex, age, or disability is particularly likely to
cause emotional suffering. Nor do I believe they would be
unaware that, were an analogous contractual breach at is-
sue, they could be held legally liable for causing suffering of
that kind. The contract rule allowing emotional distress
Cite as: 596 U. S. ____ (2022) 7
BREYER, J., dissenting
damages under such circumstances is neither obscure nor
unsettled, as the Court claims. Ante, at 8, 11–12. To the
contrary, it is clearly laid out in the Restatement (Second)
of Contracts: “Recovery for emotional disturbance will be
excluded unless the breach also caused bodily harm or the
contract or the breach is of such a kind that serious emo-
tional disturbance was a particularly likely result.” §353,
at 149 (emphasis added). And the Restatement’s rule is
well supported by treatise writers, who have described the
law similarly. See, e.g., 3 Farnsworth §12.17, at 895; 1
Sedgwick §45, at 62; 16 J. Murray, Corbin on Contracts
§AG–59.01, p. 855 (2017) (“Emotional damages arising
from racial or other forms of discrimination are clearly fore-
seeable. There should be no question about their recovery
in a contract action where such conduct is proven”). I would
therefore conclude that contract law is sufficiently clear to
put prospective funding recipients on notice that inten-
tional discrimination can expose them to potential liability
for emotional suffering.
IV
In concluding otherwise, the Court invokes our decision
in Barnes. In Barnes, we reaffirmed that funding recipients
could be held liable for compensatory damages because
compensatory damages are a “for[m] of relief traditionally
available in suits for breach of contract.” 536 U. S., at 187.
But, we held, they are not liable for punitive damages be-
cause punitive damages were “generally not available for
breach of contract.” Ibid.The Court today reads Barnes to imply that prospective
funding recipients can only be expected to be aware of
“basic, general rules,” not exceptions or subsidiary rules
that govern specific circumstances. Ante, at 11. How does
the Court derive that restrictive approach from Barnes,
which did not purport to announce such a limitation? Be-
cause, the Court says, punitive damages were sometimes
8 CUMMINGS v. PREMIER REHAB KELLER
BREYER, J., dissenting
available in suits for breach of contract where the breach
was “ ‘also a tort for which punitive damages are recovera-
ble.’ ” Ante, at 9 (quoting Restatement (Second) of Contracts
§355). The Court assumes that Barnes must have refused
to consider any exceptions at all because otherwise it would
have relied on this exception to hold that punitive damages
were available. Ante, at 9. The Court believes that damages
for emotional suffering are similar: It says they, too, are
available only under an exception to the general rule, and
that exception is too “ ‘fine-grained’ ” to put federal funding
recipients on notice of their potential exposure to liability.
Ante, at 8 (quoting Brief for Petitioner 33).
The Court’s comparison to punitive damages is, in my
view, unpersuasive. Punitive damages are not embraced by
Barnes’ contract-law analogy because they do not serve con-
tract law’s central purpose of “compensat[ing] the injured
party”; instead, they “punish the party in breach.” Restate-
ment (Second) of Contracts §355, Comment a, at 154; see
also Barnes, 536 U. S., at 189 (distinguishing punitive dam-
ages, which are unavailable, from compensatory damages,
which are available, because the former do not “ ‘make good
the wrong done’ ”). Accordingly, the punitive damages ex-
ception cited by the Court does not rely on contract-law
principles at all, but rather, on tort law. The Restatement
clarifies that, when contract and tort claims may overlap,
contract law “does not preclude an award of punitive dam-
ages . . . if such an award would be proper under the law of
torts.” Restatement (Second) of Contracts §355, Comment
b, at 155 (emphasis added); see also id., at 156 (including
Illustrations in which the “right to recover punitive dam-
ages is governed by Restatement, Second, Torts §908”).
This special feature makes the punitive damages exception
an inapt comparator for Barnes’ contract-law analogy.
The same is not true of emotional distress damages. The
Restatement does not attribute the availability of emotional
Cite as: 596 U. S. ____ (2022) 9
BREYER, J., dissenting
distress damages to tort rather than contract law. See Re-
statement (Second) of Contracts §353, at 149; see also
McCormick §145, at 593–594 (“Sometimes reliance is
placed upon accompanying tortious conduct such as assault
or defamation . . . but not always, nor do these elements
seem essential” (emphasis added)); e.g., Aaron v. Ward, 203
N. Y. 351, 354, 96 N. E. 736, 737 (1911) (“The action is for a
breach of the defendant’s contract and not for a tortious ex-
pulsion”). That makes sense because, unlike punitive dam-
ages, emotional distress damages can, and do, serve con-
tract law’s central purpose of compensating the injured
party for their expected losses, at least where the contract
secured primarily nonpecuniary benefits and contemplated
primarily nonpecuniary injuries. As I said above, in such
cases, emotional distress damages are a form of compensa-
tory damages that “ ‘make good the wrong done.’ ” Franklin,
503 U. S., at 66; see also Memphis Community School Dist.,
477 U. S., at 306–307, and n. 9.
I have already explained above why I believe federal
funding recipients would be aware that intentional invidi-
ous discrimination is particularly likely to cause emotional
suffering. And I have also explained why, aware of general
principles of contract law, they would also be aware that
damages for emotional suffering are available for breaches
of contract “where other than pecuniary benefits [were] con-
tracted for” or where the breach “was particularly likely to
result in serious emotional disturbance.” 3 Williston §1340,
at 2396; 3 Farnsworth §12.17, at 895; supra, at 4–5. Noth-
ing in our opinion in Barnes requires us to ignore these “ ‘di-
rectly applicable’ ” contract rules in favor of the less appli-
cable, “general” rule on which the Court relies. Ante, at 8
(quoting Brief for Petitioner 35). Indeed, reliance on an
analogy only works when we compare things that are actu-
ally analogous. Here, the rules that govern analogous
breaches of contract tell us that emotional distress damages
10 CUMMINGS v. PREMIER REHAB KELLER
BREYER, J., dissenting
can be available for violations of statutes that prohibit in-
tentional discrimination.
V
Finally, we might recall why we look to contract rules at
all. The contract-law analogy is a tool for answering the
ultimate question whether federal funding recipients can
appropriately be held liable for emotional suffering. Cf.
Barnes, 536 U. S., at 191 (Souter, J., concurring) (warning
about the limitations of the contract-law analogy). In an-
swering that question, we must remain mindful of the need
to ensure a “sensible remedial scheme that best comports
with the statute.” Gebser v. Lago Vista Independent School
Dist., 524 U. S. 274, 284 (1998). The Court’s holding today
will not help to achieve that result.
Instead, the Court’s decision creates an anomaly. Other
antidiscrimination statutes, for which Congress has pro-
vided an express cause of action, permit recovery of com-
pensatory damages for emotional distress. See 42 U. S. C.
§1981a(b)(3) (expressly providing for compensatory dam-
ages, including damages for “emotional pain, suffering,”
and “mental anguish” under Title VII of the Civil Rights
Act); Memphis Community School Dist., 477 U. S., at 307(allowing recovery under Rev. Stat. §1979, 42 U. S. C.
§1983, of compensatory damages for “ ‘personal humilia-
tion, and mental anguish and suffering’ ”). Employees who
suffer discrimination at the hands of their employers can
recover damages for emotional suffering, as can individuals
who suffer discrimination at the hands of state officials.
But, until Congress acts to fix this inequity, the Court’s de-
cision today means that those same remedies will be denied
to students who suffer discrimination at the hands of their
teachers, patients who suffer discrimination at the hands of
their doctors, and others.
It is difficult to square the Court’s holding with the basic
purposes that antidiscrimination laws seek to serve. One
Cite as: 596 U. S. ____ (2022) 11
BREYER, J., dissenting
such purpose, as I have said, is to vindicate “human dignity
and not mere economics.” Heart of Atlanta, 379 U. S., at
291 (Goldberg, J., concurring). But the Court’s decision to-
day allows victims of discrimination to recover damages
only if they can prove that they have suffered economic
harm, even though the primary harm inflicted by discrimi-
nation is rarely economic. Indeed, victims of intentional
discrimination may sometimes suffer profound emotional
injury without any attendant pecuniary harms. See, e.g.,
Franklin, 503 U. S., at 63–64, 76. The Court’s decision to-
day will leave those victims with no remedy at all.
* * *
For all of these reasons, I respectfully dissent.