at *5 (E.D. Wis. July 27, 2023) (after considering Pennington, deciding to “join the greater number of courts that have concluded that the mental health treatment costs sought to be recovered are mere proxies for emotional distress damages and therefore unrecoverable” in Title VII actions “[i]n the absence of clear guidance from the Seventh Circuit”); Doe v. Fairfax Cnty. Sch. Bd., No. 18-cv-00614, 2023 WL 424265, at *6 (E.D. Va. Jan. 25, 2023) (excluding evidence of “expenses for counseling and medical treatment for stomach-related issues” as “proxies for impermissible emotional distress damages” under Title IX).
And because “[l]ost educational opportunities lie at the heart of Title IX private right of action cases,” other courts have allowed Title IX plaintiffs to seek those damages post-Cummings. Doe v. Fairfax Cnty. Sch. Bd., No. 1:18-CV-614, 2023 WL 424265, at *5 (E.D. Va. Jan. 25, 2023) (citing Davis, 526 U.S. at 650)
In Cummings, the Supreme Court held that emotional distress damages are not recoverable for claims brought under antidiscrimination statutes enacted under the Spending Clause such as Title IX. See Cummings, 142 S.Ct. at 1569-76; Doe v. Fairfax Cnty. Sch. Bd., No. 1:18-cv-00614, 2023 WL 424265, *3-4 (E.D. Va. Jan. 25, 2023). The Court in Cummings specifically held that recovery in private actions brought in accordance with legislative acts passed under the Spending Clause should be limited to those remedies available in actions for breach of contract-which have not traditionally allowed damages for mental anguish.
Numerous district courts, including district court judges within this District, have held that Cummings precludes emotional distress damages in Title IX actions. See, e.g., Doe v. Fairfax Cnty. Sch. Bd., 2023 WL 424265, at *3 & n.1 (E.D. Va. Jan. 25, 2023) (Nachmanoff, J.) (collecting cases and holding that "Plaintiff is precluded from seeking emotional distress damages" under Cummings). B.R. concedes that every district court having considered this issue has held that Cummings applies to Title IX cases, Dkt. 555 at 22-23 & n.15; nonetheless, B.R. argues that Title IX was not passed only
Courts have routinely applied the CummingsCourt's reasoning to cases involving Spending Clause statutes, including Title IX. See e.g., Loera v. Kingsville Indep. Sch. Dist., 2023 WL 6130548 at *5 (S.D. Tex. 2023); Doe v. Fairfax Cnty. Sch. Bd., 2023 WL 424265 at *4 (E.D. Va. 2023); Bonnewitz v. Baylor Univ., 2022 WL 2688399, at *3-4 (W.D. Tex. 2022).
Several courts have found that medical expenses for psychological or mental harms are, in sum and substance, emotional distress damages. See Doe v. Fairfax Cnty. Sch. Bd., No. 1:18-cv-00614, 2023 WL 424265, at *6 (E.D. Va. Jan. 25, 2023) (excluding evidence of “expenses for counseling and medical treatment for stomach-related issues” as “proxies for impermissible emotional distress damages”)
(“[Plaintiffs] appear to contend that they have a right to compensatory damages unrelated to emotional distress, but [they] provide no evidence of injuries except ‘anxiety, depression, diet, anger, fear, obsessive thoughts,' and ‘stress,' which are emotional distress injuries .... [C]ompensatory damages are inappropriate in this case because the only injuries that the plaintiffs have arguably alleged, if at all, are emotional in nature.”); see also Doe v. Fairfax Cnty. Sch. Bd., No. 1:18-cv-00614-MSN-IDD, 2023 U.S. Dist. LEXIS 13886, at *15-16 (“While Plaintiff asserts that she produced invoices relating to expenses for counseling and medical treatment for stomach-related issues, . . . the Court finds these damages ‘resemble varying forms or descriptions of emotional distress' and are therefore unavailable under Cummings .... [T]he medical expenses Plaintiff seeks to recover are proxies for impermissible emotional distress damages ”)
Moreover, the cases that permit compensatory damages post-Cummings do not allow recovery for dignitary harm, but only for the harm that comes from lost opportunities. See, e.g., Montgomery v. D.C., No. cv-18-1928 (JDB), 2022 WL 1618741, at *25 (D.D.C. May 23, 2022) (concluding that the plaintiff “may be able to recover some small amount of damages to compensate him for the opportunity he lost when he was denied the ability to meaningfully access and participate in his interrogations”); Doe v. Fairfax Cnty. Sch. Bd., No. 18-cv-00614 (MSN) (IDD), 2023 WL 424265, at *4 (E.D. Va. Jan. 25, 2023) (“Several post-Cummings district courts have allowed plaintiffs to seek recovery for lost opportunities they suffered as a result of discrimination in violation of Spending Clause statutes.”).