Clear the Way: Removing Sources of Notice from Spending Clause Jurisprudence

In 2022, in Cummings v. Premier Rehab Keller, P.L.L.C., the Supreme Court held that individuals cannot recover emotional distress damages in private actions brought under the antidiscrimination sections of the Rehabilitation Act of 1973 (RA) and the Affordable Care Act (ACA). Since the decision, many district courts have expanded the ruling to other Spending Clause legislation, such as Title IX of the Education Amendments of 1972 and Title VI of the Civil Rights Act of 1964. Now, many individuals facing sex-based, race-based, and other forms of discrimination do not have remedies for the emotional damages done to them. In Cummings, the Court relied upon the clear notice requirement and the contract law analogy, two tools increasingly employed by the Court in deciding Spending Clause decisions. This Note argues that the clear notice requirement and the Court’s heightened reliance on contract law distort the meaning and purpose of many antidiscrimination provisions of Spending Clause legislation. This Note further argues that the Court should look to the statutes’ legislative history and purpose—as it does when interpreting other pieces of legislation—rather than relying on contract law principles. This Note contends that other aspects of antidiscrimination Spending Clause legislation are likely to be narrowed and that individuals may be unable to receive appropriate remedies unless Congress intervenes or the Court changes course.