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Education Discrimination after Cummings v. Premier Rehab Keller

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Education Discrimination after Cummings v. Premier Rehab Keller

Students and faculty alike are protected from discrimination in education under Federal Law. If an educational program receives federal funds, Title VI of the Civil Rights Act of 1964 prohibits discrimination based on race, color, or national origin, Title IX of the Education Amendments of 1972 prohibits discrimination based on sex, and Section 504 of the Rehabilitation Act of 1973 prohibits discrimination based on disability. Nonetheless, the remedies available under these laws were drastically limited by the US Supreme Court, on April 28, 2022, when its decision in Cummings v. Premier Rehab Keller cutoff victims' right to recover emotional distress damages. Learn what remedies remain under these federal laws and how the Court's narrow reasoning left emotional distress damages available under other anti-discrimination statutes. This course will break-down the Cummings Case and prepare you to litigate education discrimination under its new rubric. 

Transcript

 Welcome to our class on education discrimination after the US Supreme Court case on April 28, 2022 on Cummings v. Premier Rehabs Keller. This case is changing the landscape of education discrimination. That's what this course is really about, education discrimination throughout the US on the federal level. You see, our schools, our libraries, anyone who's receiving funding from the Department of Education, these places can't discriminate based on a variety of laws on the federal level. We have Title VI. We have Title IX. We have Section 504. These three laws blanket against discrimination whether it's race, color, national origin, sex, gender identity, sexual orientation, or disability handicap status. That is clear that you all can live in a world where you can get education free from discrimination. My name is Andrew Lieb. I'm the managing attorney of Lieb at Law, P.C., and I litigate all sorts of discrimination whether it's on the federal level, the state level, don't forget the local level because there are local laws that build upon the federal law. Remember, the federal law is a floor under which states and locals cannot fall, but your local area can always add rights. I litigate when it comes to education, when it comes to workplace discrimination employment, or when it comes to real estate discrimination. We also do compliance for major companies throughout the United States so that they don't discriminate. We do plaintiff. We do defendant. We are immersed in this field at my law firm, Lieb at Law, located in the Metro New York area. This course though is really near and dear to my heart, education discrimination after Cummings v. Premier Rehab Keller. In April 28, 2022, through a six-three decision, we learned that the federal law has been drastically changed in our understanding throughout the United States. This is the same term of the Supreme Court which brought us Dobbs in overturning Roe and Wade and Bruen and changing gun rights. We had the person, the football coach at the center praying with his family. But people forget this education discrimination case, this Cummings case, this very important case which changed the landscape of education discrimination. Fortunately, I live in a state like New York where we have heightened protections against education discrimination because no child, no child, no child should be deprived their educational opportunities or harassed or bullied based on their protected class status. But on the federal level after April 28, 2022, lots has changed. In this course, we're gonna detail the three major laws that I talked about before. We're gonna talk about Title VI, Title IX, Section 504. You're gonna get to understand how to leverage these laws as a practitioner. You're gonna understand our focus, student-on-student discriminatory harassment. That's really what we're talking about here. Yeah, it's true. These laws apply, Title VI, Title IX, Section 504. They apply when the school, the school district deprives you of equal rights in education. The most historic way of thinking about this is Title IX. We all know that we have a girls' volleyball team and a boys' volleyball team. Why is there equal funding? Because of Title IX. You might have heard it on the college level, Title IX's taking a lot, going on now with the Biden Administration going back to standards from the Obama Administration when it comes to sexual harassment investigations on campus where you see people using Section 1983 coupled with Title IX to say hey, I was discriminated against based on my equal protection status. And I was discriminated against when I was getting accused of sexual assault battery. But that's not what we're here for today. We really wanna focus on student-on-student discriminatory harassment in places like high schools, junior high schools, elementary schools, bullying. What happens at the library? What can you do about it? What can parents do about it? What should educators know about it? Where is the law today with student-on-student discriminatory harassment? What really got me motivated to get into this course today and put it out there is I live in an area where the library, they made a decision. It was on national news, Smithtown. And I live in an area where the library made a decision, the library board, that they were gonna take all references to sexual orientation and pride, during pride month mind you, they'd take them all out of the children's section of the library and disavow and cleanse of this information. And I said to myself, how is that right? How is that fair? What happens to Johnny who has two moms or Sally who has two dads? What happens when they wanna learn and understand their family? In our society, we're often confused. We seem to think that human sexuality is about intercourse, and it's just not. Yeah, that's a component of it. I was actually a college instructor on human sexuality at two different universities, well, one university, one community college. And I can tell you as someone with a master's in public health who worked in human sexuality, that the concept of family is part of human sexuality. The concept of who your parents are, who your siblings are, how you identify yourself is part of human sexuality. And to tell someone, a child, particularly a vulnerable child that they're less of a human being, that they don't matter, that they belong in a locker, that they belong to get a black eye, that they deserve to get punched, to get water guns sprayed at 'em, to have their money stolen, to be tormented online. And you do know, I hope, that the spectrum of what a school can cover is not just inside the classroom but outside the classroom, outside the premises between students, to tell that student that they're less valuable than another student must be stopped. Whether you're on the defense or the plaintiff's side, that is our goal, to create equal, fair places for all students to learn. So we talk about these topics we have today. We have Title VI of the Civil Rights Act of 1964. That's our first topic. We're gonna teach you about the protections under Title VI. We're gonna go into Title IX of the Education Amendments of 1972. As I'm sure you can deduce, that's the most famous of them because that's about sports, and we all know that sports money, people talk about it. And particularly these days, people are talking about it with transgender athletes. We're gonna get into Section 504 of the Rehabilitation Act of 1973 as topic three. These three topics are three of the four topics, three of the four topics, that are anti-discrimination statutes under the Spending Clause of our Constitution. They were granted on the Spending Clause. You know, our federal government, our Congress, the Senate, the House, they can pass legislation only to the powers that exist for the federal government. They have to find a clause in the Constitution. And the Spending Clause is just one of the ways they do it. We might have all heard of Title VII, education discrimination, the Fair Housing Act, clearly, housing discrimination, the Americans with Disabilities Act. Those aren't Spending Clause types of cases, statutes. Title VI, Title IX, Section 504, they're Spending Clause. And on April 28, 2022, the US Supreme Court heard Cummings v. Premier Rehab Keller. They didn't hear it. They decided it. And they said we're gonna change how we understand Spending Clause in anti-discrimination statutes. So topic four is we're gonna go over the impact of Cummings v. Premier Rehab Keller. And I'm gonna tell you its impact on Spending Clause anti-discrimination statutes and what you need to know as a practitioner, a litigator, or a general counsel, house counsel, someone who does compliance training, DEI, diversity, equity, and inclusion, for these places, schools, libraries. Into the future, what should you know? So our set five is what's next? Where do we go from here? Where is the litigation? Where are the rights? Where are the responsibilities? Again, there are four statutes that prohibit recipients of federal funds from discriminating. These are Spending Clause anti-discrimination statutes, and I have to keep making an emphasis on that because you might have heard, for illustrative purposes, that in Dobbs, they overturned Roe v. Wade, and now abortions aren't a constitutional right in the United States. But if you read the Dobbs case, that's not what it says. What it says and said is the Fifth and 14th Amendment, substantive due process, doesn't give rise to a right to be able to make a decision for your personal, personal, personal liberty decisions. It doesn't give you a substantive due process. And Thomas goes into it in great detail. My point that I'm trying to make over here is the political reality of the result of a decision from the Supreme Court and the words they use are very different. Us, as lawyers, need to be able to parse the difference. When we talk about this cases, they're not saying all anti-discrimination cases are changed. We're not making a painting with a wide brush. Just like with the Dobbs case, they didn't say hey, you know what? The Establishment Clause or the Free Exercise Clause don't give a right to abortion or otherwise. They just address the topic before them. And so this case, this case that we're dealing with now, is only about Spending Clause anti-discrimination. And there are four statutes. I mentioned Title VI. I mentioned Title IX. I mentioned Section 504. Those are the ones I wanna talk about today. There's one other that's relevant but not relevant to our CLE. It's the Patient Protection and Affordable Care Act, you know, like Obamacare, and the Patient Protection and Affordable Care Act. And that also has Spending Clause anti-discrimination in it, but it's not about education. And I wanna do this CLE on education, because, again, what made me motivated is student-on-student harassment and libraries and schools, schools, schools creating a policy, a procedure, creating a landing place to permit, to allow this type of egregious harassment. And practitioners like you and I are gonna be immersed with cases moving forward because when you see a policy like we're reading in the news on a daily, people are gonna get hurt, and they're gonna sue. So we're gonna break down these three federal funding anti-discrimination statutes as they're relevant to education discrimination. We should start with the first one, Title VI of the Civil Rights Act of 1964. You can find that at 42 United States Code section 2000d, 42 U.S.C. 2000d. This statute protects protected classes. What is a protected class? You don't have a right to sue for being bullied. Your student, your child, someone that you have a guardianship over, they can't sue for being bullied. Bullying, just so we're clear, in the United States, is not illegal. It's wrong. It's just not illegal. If you harass, if you bully, if you're a meany, that's not actionable in the United States. Instead, bullying only becomes actionable if the bullying is because of someone's protected class status. A protected class is the same concept we have in education discrimination as to employment discrimination as to real estate discrimination. The concept is that the government has come across these groups, these marginalized groups, these groups that are victims often and said hey, you can't, for lack of a better term, use hate to motivate your actions towards these people. And when I say hate, it's not oh, just overt or express hate. It could be implicit bias too. We know that there's both disparate treatment, which is an overt, intentional discrimination, and disparate impact, which is a subtle, unintentional discrimination. But they're both discrimination. The key is is this protected class, this protected group of people, are they getting treated substandardly to someone else? And here's why. When it comes to Title VI, when it comes to Title VI, they've named three different protected classes. Three protected classes are relevant under Title VI. We have race. We have color, and we have national origin. And they sound the same, but they're very different. They sound the same, but they're very different. I'd recommend if you're going to go forward with this, you go to the CFR, Code of Federal Regulations, and even if you can't find it in the applicable statute, Title VI for example, the regulations that accompany it, you want to go on the CFR and you wanna look in, a lot of the definitions are in Title VII. And what we find is that the courts use definitions from one to another, but I'm gonna give you the really basic definition today just so you can understand the difference between the three. Race basically means your ancestry, you know, like 23andMe, your ancestry. Color means your skin pigmentation. National origin means where you're from. You could be a race that's European, but you could be African from South Africa as your national origin, but your skin pigmentation can be light, and you could be a white person. You see how these things go together. They could be different, but it protects all of them. We have race, color, national origin. They're all protected under Title VI. Now, if there's going to be a lawsuit under these cases, what did I tell you? What did I tell you that differentiates these cases? Remember when I was giving you the analogy to Dobbs and substantive due process, and we're going into that, I told you something interesting. I said, what did I say? I said that these are based on the Spending Clause. That's what I was trying to focus on there. These are Spending Clause anti-discrimination cases. Why? These statutes are anti-discrimination statutes. Why? That's the basis under which the federal government, Congress, the Senate, the House had the authority to pass them in the first instance. And why is that relevant? Because when you sue on a Spending Clause anti-discrimination statute, assuming you're doing a lawsuit based on student-on-student harassment which is really the focal point of what I'm saying, the first element in the lawsuit is you have to show that the defendant received federal funds. If they didn't receive federal funds, it's not Spending Clause. A lotta times what happens is instead of doing a direct statute, the government, the federal government says we'll give you money, but we'll only give you money if you do these things. That's what we're talking about here. We'll give you money. Schools, you want federal buckaroonies? We'll give you money, but you gotta do these things. Now the question becomes what are the elements if there's gonna be a lawsuit? The elements go like this. The defendant received federal funds. An appropriate person had actual knowledge of discrimination and harassment. Why is that so important? An appropriate person is so important because we're not talking about someone that is the school district harassing or discriminating. We're not saying that it's a vicarious liability. We're saying that's two students. The other student's not under the auspices or the control of the school. They're not acting as if they're the entity. They're another student. But if a teacher, an administrator, or a guidance counselor, someone of authority has knowledge of this, actual knowledge, they see it going on, that's the key. Do they have, not constructive knowledge, not that they believe, they know, they see. The parents come in. I have these lawsuits, the parents come in. They go meet with the assistant principal. They go meet with the principal. They say here's the problem guy. Here's the problem girl. They give 'em evidence. They say here's what's going on in the social media. Here's the bullying. Here's the harassment. Here's the bruises. That's what they do. And then the third element is that the school, the district, the board, the defendant, they acted with deliberate indifference to known acts of harassment, and here's the key, in its programs or activities. But programs and activities are a very broad term because isn't it a program or activity when the kids are walking through the hall? Isn't it a program or activity when they're in gym class? So what'd they do? It's in English. They turned a blind eye. They didn't look. They don't care. They go, go do. And then the fourth element is the discrimination was so severe, pervasive, and objectively offensive that it effectively bars plaintiff access to an educational opportunity or benefit. Severe and pervasive, those are the words we know under federal law when it comes to a hostile work environment, a hostile housing environment, et cetera, severe and pervasive. And we know that a petty slight or trivial inconvenience isn't really enough. But severe and pervasive, that's objectively offensive. I love when I talk to non-lawyers and we're talking to them, the client let's say, on a plaintiff's case, and they go well, you're the lawyer. Is this good enough? And I go actually, when we're talking about the standard of severe or pervasive, objectively offensive, I don't wanna know what I think. I wanna know what your friends think. Meaning, I am tainted. I know the law. I know the cases. When you go out to dinner and you're at a dinner table, this is what I say to them, and there's 10 people there, and you tell 'em the story, even if you didn't tell 'em the story, but if you were to tell 'em the story, would all their jaws drop and go what! If they do that, then it's severe and pervasive. It's kinda like pornography, you know it if you see it. I don't know how to explain it to you because the cases really say one time generally isn't enough unless it's so outrageous that it's enough. So we need to know is it enough? And the only way to know is would everyone go what! I call it the what standard. That's how we look at these things. So there's four elements if someone wants to bring a case under Title VI. Now Title IX, I told you we're gonna go real quick through these three different types of cases. I tell you the elements because you need to be able to vet if you have a case in the first place. Someone comes in and they complain. What'd you learn so far? They go, I'm bullied. You go, why are you bullied? I'm bullied because, I don't know, because I was making fun of someone. My kid's a loud mouth. That's why they got bullied. Well, no case because if it's not race, color, or national origin, Title VI is out. You see how that works? Then we go over and we say here's the elements. Defendant received federal funds. There's an appropriate person had actual knowledge of the discrimination or harassment, deliberate indifference, in programs or activities. And this is the key one, the what, severe, pervasive, and objectively offensive, that it effectively bars plaintiff access to an educational opportunity. Let's move to Title IX, Title IX of the Educational Amendments of 1972. You're gonna find this one at 20 US Code 1681, Title IX. Now, under Title IX, it only says sex. But you see Lieb and Title IX, we disagree. I added in gender identity and sexual orientation. I know it doesn't say gender identity or sexual orientation. I know how to read. And it doesn't use those words whatsoever. But again, why did I start this course? Well, it got me interested. This library in town, they voted to get rid of all the stuff about sexual orientation and gender identity, not intercourse. I get you don't want to have intercourse books in the children's section, but it might be a good idea to explain why Johnny has two moms in the children's section for Johnny who has two moms that's getting bullied, so he wants to find out what's going on in life and to realize that his home is normal and everything's okay. I'm just saying. You could go on one side and be a bigot. You could be on the other side and be woke, or you can just be in reality, like I am, that there's just people there, and we gotta deal with people. So we have sex, gender identity, and sexual orientation. So why did Lieb go beyond the statute? Well, if you go back to 2020, SCOTUS, Supreme Court, they had a decision called Bostock v. Clayton County. And I wanna point out this decision was not on Title IX. It was Title VII, which is education discrimination. But I'm gonna read you the quote from the case and you tell me, you tell me, do you think it applies to education discrimination too? I do. Here's what it says. "An employer who fires an individual for being homosexual or transgender," by the way, transgender is gender identity. Homosexual is sexual orientation. "An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and indistinguishable role in the decision, exactly what Title VII forbids." So just like Title IX, Title VII doesn't say sexual orientation or gender identity. However, the US Supreme Court, SCOTUS, in 2020 in Bostock said hey, the word sex includes sexual orientation or gender identity. So I'm going to extrapolate out and say the same thing applies to Title IX. So if we have someone that wants to sue student-on-student harassment, they go to the library, they're shunned, they're pushed out and because of that library action, they get bullied. What's their case? Well, again, what did I tell you? What's the big thing? What's the big thing we start off with? The big thing we start off with is is this a Spending Clause case? So the first element you have to do is is the defendant a Title IX funding recipient? That's what we need to know. Are they a funding recipient? Because if they're not getting government money, it's not appropriate for this case. The second one sounds familiar. An appropriate person had actual knowledge of the discrimination or harassment, did that, you get it. The third one, defendant acted with deliberate indifference to known acts of harassment in its program's or activities. The fourth one, the discrimination was so, what, severe, pervasive, and objectively offensive that it effectively bars plaintiff access to an educational opportunity benefit. If you notice, it's really the same thing, Title IX, Title VI. If Lieb was in charge of the world, we would've combined them into title, I don't know, 15 and had all four elements together because why have two different laws? But we do, and they are. And anyway, we've said race, color, national origin, sex, sexual orientation, gender identity. Let's go to the last one. Section 504 of the Rehabilitation Act of 1973. You can find this one at 29 U.S.C. 794. This one is just disability. That's it. Sometimes we use the word handicapped. Sometimes we use the word disability. I like to say differently abled not disabled, but you get the drift. But this element is slightly different. What's different about it? What's different is we need to have in the elements that plaintiff is disabled. And I'll have you know that disability under federal law, this Section 504 stuff, makes it harder to qualify than most states or localities that also protect against disability or handicap discrimination in education. So if you are going under the CFR or you're going into the actual statute and you're defining and you're looking at case law and you're determining whether someone is disabled because it has to be disabled under the act, don't quit if they're not disabled. Instead, go to your state's laws, your county's laws, your cities, towns, villages because there might be a broader definition, which we often find. Number two, plaintiff was harassed based on his disability or her disability. Harassment was so severe or pervasive that it altered the condition of his education and created an abusive educational environment. The school district knew about the harassment. The school district was deliberately indifferent. Basically, it's exactly the same thing except we also have to prove that they were disabled under the act. We've now went through the way the world worked before April 28, 2022. We have these cases, these statutes, these laws, these elements, these ways that victims can get themselves heard and speak up and protect themselves. But on April 28, 2022, we have Cummings v. Premiere Rehab Keller, and this is the impact on all Spending Clause anti-discrimination statutes. We get this decision by Chief Justice Roberts. He's joined by Alito, Gorsuch, Kavanaugh, and Barrett. Notice that this is the six-three conservative majority. And here's what he is faced with. Here's the question. He lays out the question at the beginning, but before we get to the question, I want to ask you a question. I want to ask you a question. If you are a victim, what are your damages? If you're a victim on student-on-student harassment, what are your damages? I want you to think about that. Let's slow it down. Let's be a victim. I like to be extraspective. When I'm dealing with these cases, I like to say if I was the victim, how would I feel? I wanna be them. I'm walking to class. The kids are teasing. They're laughing. They're making jokes. I'm going into the locker. Someone pushes me into a locker. People are saying things. I go to eat lunch, no one's sitting with me. People throw stuff at me. I just feel terrible all day. I feel terrible all day. People make me feel terrible all day. Do you know that that's why a lot of people that are in a protected class have heightened risks of suicide because they feel terrible all day. Other kids are mean, really, really, really mean. But here's the question. Did I experience from this, did I experience any lost money? That's a starting place. We just need to start off by saying to that. It's a question I wanna understand because when we do these cases, the question becomes, it's a good question, and we need to get to this question. The question is that did I lose any money? Did I lose any money? It's an important question. Do I have any out of pocket? You know they call it pecuniary losses. Do I have any pecuniary losses? Probably not. Maybe I had consequential damages in that I moved to a new school, but maybe I saw a therapist, maybe, but where are the damages? I'll tell you where the damages are. I'm emotionally messed up. It's affecting my grades. It's affecting my college applications. It's affecting my today. It's affecting my relationships with my family. I'm not sleeping. I'm not doing well. I'm not good. Isn't that what's happening? Isn't a victim of discrimination losing their dignity? Isn't that what's really going on? Here's what Chief Justice Roberts says in this case, and I'll tell you what the case is about in a second, but it's coming, so I wanna tell you what he says the question is, "whether another special form of damages, damages for emotional distress, may be recovered," under Spending Clause anti-discrimination statutes. He makes it seem very blase. We just wanna know, these damages, are they recoverable? And I have to tell you when you read the decision as a scholar, a lawyer, as someone that understands decisions, it's a very smart decision. It makes sense. I'm not saying I agree. I don't know if I would rule that way. But I'm telling you the analysis has logic. And we often face in the world the difference between determining whether the Supreme Court's right or wrong and whether policy's right or wrong. So take off your lawyer hat for a second. You be a politician. You be a senator. You be a member of the House. Do you think it makes sense to have an anti-discrimination statute in education that protects protected classes like race, color, national origin, that protects sex, sexual orientation, gender identity, that protects disability, where the main damage, the non-pecuniary damage, the emotional distress damage, that the loss of dignity, the main thing you're suffering can't be recovered from. And Chief Justice Roberts asks to start off with, since this is Spending Clause, since it's Spending Clause, can you recover emotional distress damages? That's the question before the Supreme Court. Let me tell you about the case. This person that's both deaf and blind, can't hear, can't see. I represent deaf people. I represent blind people. It's not easy, not for me, for them. And they're tough, and they figure it out. This person that's deaf and blind, so at physical therapy services, okay, so they gotta get physical therapy. Lots of people gotta get physical therapy. They gotta go get, they go to the physical therapist. But do you know what they wanted? American Sign Language, ASL. They needed an interpreter because you know what? They can't, I don't know, what's the word, hear. So they said I need a ASL interpreter when I'm getting this physical therapy otherwise, how am I supposed to get physical therapy? The physical therapy provider which, by the way, was a federal recipient of funds. You know those, I don't know what this one was. I don't remember offhand but Medicaid, Medicare, stuff like that. When you get federal funds, you gotta follow the rules, remember Spending Clause. This provider denied the request, requiring communication with therapists by written notes, lip reading, or gesturing. So this victim, this deaf, blind person, this vulnerable person who's getting physical therapy 'cause they're hurt says hey, I wanna come here. I wanna get my physical therapy. I just need someone to help me understand what's going on when you tell me what to do. And the provider goes you know what? In the middle of physical therapy, you gotta write some notes, pass 'em back and forth. You gotta figure out how to lip read or just gesture, shrug a little. Imagine I did this whole CLE from gesturing. Here's my shrug. Here's my wink. Here's my nod. That's our whole communication. That's gonna be the new way we do Quimbee CLE is we just gesture at you the whole time. The petitioner said that's crazy talk. And they went and got services somewhere else because clearly deaf, blind, and said I need a ASL interpreter, and I'd like to know what it is the physical therapist is telling me so I don't get hurt more. But do you know what? This victim said I had enough, and they sued. The petitioner sued. And the complaint in this lawsuit was the failure to provide a ASL interpreter constituted discrimination on the basis of disability in the violation of the Rehabilitation Act of 1973. This is a section of 504. That's the disability one. And then they also sued on Patient Protection Affordable Care Act, which we talked about before. See, this wasn't even a education discrimination case, but it changed the face of education discrimination. They sued, and they said hey, I'm being discriminated based on my disability, Rehabilitation Act, Patient Protection and Affordability Care Act. They sued. And here's what they argued. I was right, it was Medicare and Medicaid. They said hey, respondent is subject to these statutes which apply to entities that receive federal financial assistance. What'd I tell you the first element is? The defendant had to get federal financial assistance. And here, they said this respondent defendant receives reimbursement through Medicare and Medicaid for the provision of some of its services. You might be saying hey, I work in healthcare. I just thought this was a interesting CLE. Turns out it's relevant to you too because it's Spending Clauses we're talking about right here. The petitioner sought the following relief. They said hey, I want declaratory relief that I'm right. I want that. I wanna be able to say I'm right. These types of places, these physical therapy places need to provide ASL interpreters. I want an injunction. I want the judge to say provide this. And I want damages because you know what? Being a plaintiff, being a petitioner, isn't easy. It takes a lotta time, takes a lotta effort, takes a lotta work particularly when you're deaf and blind, and it's stressful, and it's overwhelming. And if I'm gonna go forward with this case, I wanna be made whole. I wanna be given my day in court, and I want the defendant to pay up for what I experienced. But can a private individual even sue? Is there a private right of action? Can we sue under these statutes, under these Spending Clause statutes? This is the two statutes we have is the Patient Protection Affordable Care Act and Rehabilitation Act, but same question applies. Title VI, Title IX, is there a private right of action? Well, that's easy. In 1992, the US Supreme Court, SCOTUS, in Franklin v. Gwinnett County Public Schools said there was. They said private individuals may sue, and private individuals can recover monetary damages as a remedy for intentional violations of Spending Clause anti-discrimination statutes. So since 1992, we've been knowing these four, there's four Spending Clause statutes, the remedy could include monetary damages. So plaintiffs like this plaintiff in this case right here are saying to themselves, they're saying you know what? Here's the thing, I'm Cummings. I want to get a remedy, and I want to get monetary damages. I'm suing. Before the, or right now is what monetary damages are available in a suits premised on Spending Clause anti-discrimination statutes. Are there only pecuniary damages, measurable damages, numbers that we actually lost? In Cummings, what did Cummings lose? Cummings went to another provider. There was no out-of-pocket costs. Maybe their copay was more at one of the, I don't know. What'd they really lose? They lost their dignity. They lost their time. They lost emotional distress. They lost being treated like less of a human being. Here's what the court goes on to analyze. The court analyzes this. The court wants to know, the court, Roberts' court, Roberts wants to know. He wants to know even though we have this case, this SCOTUS case from 1992, Franklin, that says you could get monetary damage, can you get emotional distress damages? What type of monetary damages? Here's what Roberts tells us. "Unlike ordinary legislation, which imposes congressional policy on regulated parties, involuntary Spending Clause legislation operates based on consent. In return for federal funds, the recipients agree to comply with federally imposed conditions." Let me do that one more time. I don't know why he calls it ordinary litigation, but he probably should have called it non-Spending Clause litigation. But say it's a Commerce Clause legislation, and Congress says in commerce, this is what you gotta do. That's just a policy decision. There's congressional policy and Congress can do it. But in Spending Clause, Roberts is saying, in Spending Clause, he's saying there's this trade. You want our money, you do our conditions. Roberts goes on to say, "A particular remedy is thus appropriate relief in a private Spending Clause action only if the funding recipient is on notice," stop there, on notice, "on notice that by accepting federal funding it exposes itself to liability of that nature." So Roberts is saying that we need to find notice. Did this defendant, did this defendant, whether it be the rehab center or a school or a hospital or a library, remember how we explained how they apply differently depending on where you are. Did they get the money and were they on notice that if you take the money, here's the rules. The question then is if these statutes are silent, they don't notice. They don't notice. They don't say hey, we could get emotional distress damages. What remedies are left? But I have a first question. Why are these statutes silent Congress? Wouldn't it be very easy for Congress, wouldn't it be very easy for Congress to go in and amend, I'm talking to you speaker of the House. I'm talking to you Senate majority leader or minority leader or whatever else. Wouldn't it be smart, wouldn't it be bipartisan to say a victim of discrimination could get emotional distress damages? Because they left a vacuum, because they were silent, what's left? What's left? Is it possible that a provider, an education place, is it possible that a hospital, a rehabilitation, is it possible that a library would be on notice on a silent statute as to emotional distress damages? That's the question that Justice Roberts needs to deal with. And again, intellectually, logically, as a lawyer, it's like watching someone play concert violin reading SCOTUS decisions if you agree or disagree with them. They're brilliant. And the problem we have in society is we don't, as lawyers, as officers of the court, go out to our people and say to them there's a difference between what we believe in in policy for Congress to do and how the Supreme Court rules. A lot of people say it's a conservative court. And I say it's actually an originalist court. We have to differentiate the two. I'm on media a lot, a lotta different TV channels all the time. I do countless, you can look me up, Andrew Lieb, just Google it. And my whole shtick is going on and saying you can't ascribe the same role on the courts as you ascribe in policy. I do politics and law when I'm on TV as a media analyst, and you have to be clear that there's different jobs for these places. So Roberts is telling us that these statutes are silent on the remedies. But from a politics question, why are they silent? Wouldn't it be easy for them to write one way or the other? If they put in the statute providers, you are on notice that you cannot be sued for emotional distress damages. That's a policy decision that people could get behind, not me but people. Providers, you're on notice that you can be liable for emotional distress damages. See, it would be easy for Congress to do that, but they didn't do it. So now we're at the courts right now, and Roberts is saying as a intellectual, as a attorney, as a judge, as a justice of the Supreme Court, he's saying logically, when I go through these Spending Clause statutes, if it's silent, can we get to emotional distress damages? It's a very interesting conversation. Here's what he says. "You can only recover a certain remedy that is traditionally available in suits for breach of contract if they're silent." He's saying you know, the Spending Clause is kinda like a contract. So if we're having a contract, what would a ordinary, what would be the ordinary exposure if someone breached it? Let me do it another way. "Congress's authority is to," quotes from Roberts, "fix the terms in which it shall disperse federal money." We said that. But they didn't fix the terms. That's the problem here, policy. "Recipients cannot knowingly accept the deal with the federal government unless they would clearly understand the obligations that would come along with doing so. Here, the legislation is silent on damages issue." So here's the question. "As the legislation is silent on damages, recipients are only on notice on statute that is silent if damage is limited to those remedies traditionally available in suits for breach of contract." So what are traditionally available in a breach of contract lawsuit? We all know, practitioners, litigators throughout the country, we all know that the problem with taking a breach of contract lawsuit is that the theory is all you could get is compensatory damages or injunctions to be made whole. That's why when they pay our fees as well on the American approach to legal service fees, attorney's fees, the client is always negative because the cost of the lawsuit when you can only be made whole, when there's no fee shifting, means they're negative. And the compensatory damages on breach of contract aren't consequential damages unless it's expressly set forth in the contract as reasonably foreseeable. So the test that Roberts puts out goes like this. Whether a certain remedy is traditionally available in suits for breach of contract, that's the question. And I will tell you that the dissent disagrees of what's traditionally available. The dissent goes like this. They say, "It's not what's traditionally available in suits for breach of contract. It's traditionally available in suits for breach of contract that involve this type of topic." You see, you can't just do all contracts. You gotta do contracts that are relevant. And so the defense goes much more narrow in their test, but the Roberts course and the majority says just all contracts, majority contracts. And what we know, again, is in most breach of contract cases, not in your individual state but across the United States, in most breach of contract cases, what do we know? We know in most breach of contract cases that only compensatory damages and injunctions are available. So moving forward, based on the Cummings decision on April 28, 2022, there's no punitive damages. We knew that from a prior decision. But I don't think that most people are seeking or gonna get punitive damages. They're very hard to get even in context when they're available. But there's no more emotional distress damages on federal cases, particularly these bullying victims. I'm thinking about student-on-student bullying based on protected class status, they can't get that emotional distress damages. Maybe they'll get an injunction. Don't do it. What else are they gonna get besides a declaratory judgment? You're right. Don't do it. How do you punish them? How do you make them pay? How do you make them pay for the wrong? It's true. You can get compensatory damages like bills or lost wages maybe if you're a teacher because sometimes teachers sue under these statutes beyond Title VII. But a student, what do they lose? What do, you could get ajunctive relief, injunctive relief. The good news is you can still get attorney's fees, and that's because Congress did speak about that. You see, Congress can speak in the policy realm when they want to. If you go to 42 US Code 1988b, it makes attorney's fees safe from the Cummings decision. Although, I wanna tell you that there's a case called Buckhannon Board and Care Home v. West Virginia Department of Health and Human Services. And, eh, that case makes it not so easy even though this statute 42 C 1988b, which is Civil Rights Attorney's Fees Award Act of 1976, even though it seems like it's good. Why? Because this case right here, this Buckhannon case, says you need a judicial decree on the merits to get attorney's fees, which means you can't get attorney's fees unless you go to the end, which means you can't settle, which means, you get the problem there? So attorney's fees aren't so readily available. And secondarily, the fact that a victim's attorney's getting paid doesn't exactly help the victim. Without emotional distress for student-on-student discriminatory harassment, what are the damages? What's the point? Someone comes to you, you're a plaintiff's attorney. And if you need help, just call me. I'll try and help you if I can. We take referrals too. You just give me a call. My information's 646-216-8009. We're happy to help. I want to help you out because I don't want you to get stuck taking a case that's gonna make you and your client unhappy, like no good. Someone comes to you, and they say my kid's been bullied. And I want you to know parents are very slow to pull the trigger. Everyone's very afraid about if you do it, being further ostracized, being further marginalized. And they go, so what are we gonna get out of it? How is this gonna improve our life? How is speaking up gonna change? And now all you can say is well, we can get the judge to say they can't do it anymore. And I'll get paid, like come on. Because at the end of the day, there's not, what should we do? We gotta become creative. We gotta become thinking about other causes of action. We have to become outside-the-box thinkers. You see, there's three federal laws that apply to education. There's others too, but apply to education anti-discrimination, which is the forefront of where we're going. We have the Section 504. We have the Title IX. We have Title VI. But I said there's other causes of action too. If you're dealing with a disabled person, you're dealing with a disabled person, isn't there also the Americans with Disabilities Act? I mentioned that before. So there's not just Section 504. There's the ADA. Attorneys sometimes stop at the easiest route in front of them, and we always tell everyone, when you plead, plead in the alternative, give as many COAs, causes of action, as you can. The ADA has no similar caps. There are no caps because why? The ADA is not a Spending Clause. As Roberts would probably put it, it's just ordinary legislation. So it's not Spending Clause, and defendant respondents don't need to receive federal funds. The ADA allows you to go and get this stuff. But the ADA, again, and Section 504 is only about disability. Is there a catchall? Is there something better? Is there something we can use for all victims moving forward because at the end of the day, at the end of the day, there's gonna be lots of victims that are without rights. There's gonna be lots of victims that say I need it to stop but getting the judge to say stop and getting my attorney money doesn't actually get me a better life. It doesn't give me the money to go get help, therapy, counseling. I just told a client on one of these consults please just go on a vacation with your family and love life. Start with that. Let's start, instead of spiraling down, let's stop the spiral and improve our life. Don't you wanna give hope? Isn't hope the solution? So isn't there something else out there? When we start off, these are civil rights laws. So why don't we start off with a traditional civil rights case? What about section 1983? Isn't discrimination a civil action for the deprivation of rights? A deprivation of rights, what rights do we have? Well, don't we have the Equal Protection Clause? Isn't that one of 'em rights? And isn't a 1983 claim not just on constitutional rights but statutory rights? And isn't a 1983 claim, say, as long as the defendant is a state actor, we can go after them? Maybe we can go through a 1983 case, maybe 42 US Code 1983 is our answer. The elements of such a case are that the conduct is committed under color of state law. And we know that a education provider is operating a public school, is operating under color of state law. Now Cummings, in the case, that was a rehab center that was getting Medicare and Medicaid. That wouldn't work. Why? Because it was a private company that was doing the rehab. But if you go into the education space, isn't the school under state law? It seems that way. Isn't the conduct deprived a person of rights, privileges, or immunities secured by the Constitution? What'd I say? Equal protection clause or the laws of the United States. Title VI is a law of the United States. Title IX is a law of the United States. Section 504 is a law of the United States. It doesn't say except for Spending Clause laws of the United States. And you all do know that in 1986, Memphis Community School District v. Stachura said emotional distress damages are available in 1983 cases. In fact, punitive damages are available from Smith v. Wade in 1983. They have that same attorney's fees. So you can get punitive damages, attorney's fees, and back to emotional distress damages. It seems like a 1983 case can solve our problem. It seems like we can get creative and piggyback a 1983 case and be able to get these damages that... I told you I started this love of this course, I wanted to teach this course. I said can I teach this course because this library near me did this. And they reversed. I want you to know they reversed their decision. I was working with the local LGBT organization, the executive director and I were about to file a suit, and they reversed their decision prior to us bringing in the suit. We were gonna argue that their action actually impacted the LGBT organization, which will remain unknown, because they were gonna have to establish their own library for children and change their actual costs, et cetera, et cetera. But they reversed. They reversed because lobbying does work, and politics does work. But in a 1983 case that we're dealing with, don't you have problems on a normal student-on-student harassment? Problem number one goes to what I'm talking about. You can only do a 1983 case if plaintiff, their deprivation of rights occurred because of a school policy customer usage. Meaning if two students are bullies, deliberate indifference isn't enough. You need to also show that the school policy customer usage did it. Maybe the library's decision, their custom, their policy, their usage caused the discrimination on student-on-student harassment or library-on-library victim and maybe, and DeSantis, I don't know about Florida, but maybe the policy of this whole, and I know it's not called don't say gay, but maybe these types of policies of customs and usages when you do it across the board, opens up the avenue to bring a 1983 case. I don't know. Problem number two, there needs to be an express policy. It can't just be implicit like we're talking about. It has to be a decision by the final policy-making authority. And the deliberate indifference needs to be so widespread and persistent. It's not just severe or pervasive, widespread and persistent. The third problem is that a lot of these actors have qualified or municipal immunity. So it turns out that a 1983 case, while may work well to add as a cause of action with respect to leveraging a settlement, isn't really the be all and end all that it seems to be cracked up to be. We're going to have issues if we rely on 1983 to solve the problem. That's why Congress needs to expressly act if they wanna allow emotional distress damages with respect to Spending Clause Title VI, Title IX, or 504. Where are we now? The best option, which I've been doing and I'm gonna recommend you to do. I've said it a few times in this course. I've said it a few times. The federal law is a floor under which states and locales may not fall. It's imperative that we go read our state's human rights laws. That's another name for anti-discrimination laws. It's important that we familiarize ourselves beyond the states with the counties, the towns, the villages, the cities. If you don't know the site eCode, eCode360, if you go on their site, you can find all municipal codes, and you can read them yourself. It's very important to find these things. We have state laws. I'm gonna give you an illustration. Where I practice primarily, I'm licensed in Connecticut, Colorado, and New York. I do federal anywhere. We could go anywhere. My partner is licensed in New Jersey's, one of my partners. We mostly do Tri-State, but if it's snowboard season, Colorado too. Anyway, in New York though, where we primarily practice, our office, we're located, we have executive law. That's part of the human rights law. Notice executive law, human rights law isn't the same name. We have executive law 2964. And what this does is this provides for anti-discrimination in education based on race, color, religion, disability, national origin, sexual orientation, gender identity, or expression, adds military status. We have sex, age, marital status, or status as a victim of domestic violence. And this law provides for emotional distress damages. You can get attorney's fees, punitive damages. You gotta check the state laws and not quit because we read Cummings and we say there's no damages left for our client. We need to be clear that you can bring a federal claim and a state claim together. And sometimes we only go with the county claim because that's even better. Law is constantly changing. The Supreme Court is ruling because we've shifted from a liberal majority to a conservative majority. Better said, we shifted from living constitutional, living constitutional scholars to originalist textualist scholars because we need to speak not just in terms of policy and politics but in terms of law to be able to make people understand that this third co-equal branch of government matters and they're talking from a lens that is not just political. But we also need to remember politics. And we need to call upon people. When they say they're having problems, we need to say the Spending Clause right now, this legislation isn't all it's cracked up to be because now that we have Cummings, now the Cummings decision's come out, you can only get damages. You're deaf. You're blind. You go to get physical therapy. You ask for an interpreter so you can understand what the physical therapist is saying. That's not a big ask. They tell you to use gestures, write it down. Gestures, imagine a CLE through gestures. And this isn't just listening and learning. This is moving your body and hurting yourself. They tell you you're less of a person by saying no, and you sue. And now we learn that loss of dignity is not recoverable under federal law when it comes to our forced Spending Clause statutes. So we need to be creative. We should look to 1983. We need to be creative. We should look to things like the ADA. We need to be creative. We should look to state law. We need to be reassuring and supportive and tell our clients that an injunction does matter. We need to tell our clients that no matter what, they still don't have to pay our legal fees, albeit, we do need to win. We need to win. We need that final decree, which is kind of problematic because a lotta these cases settle, so how do you settle with the attorney's fees? And the whole point of the attorney's fees is to motivate action so they can't delay, delay, delay, at least from a plaintiff's perspective. We need to understand how the law is changing, and we need to be smart enough and resourceful enough and compassionate enough. We need to be understanding that these are real people with real lives that just want an equal opportunity to learn and not get harassed, bullied, or disadvantaged. If you need any help, my name's Andrew Lieb. My contact information is 646-216-8009. You can reach me at [email protected] Visit our website, liebatlaw.com. I hope you learned something, and I hope you're motivated to help your clients. Thank you.

Presenter(s)

Andrew Lieb
Managing Partner
Lieb at Law, P.C.

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