BARNES, in her official capacity as MEMBER OF THE BOARD OF POLICE COMMISSIONERS OF KANSAS CITY MISSOURI, et al. v. GORMAN

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181 OCTOBER TERM, 2001
Syllabus
BARNES, in her official capacity as MEMBER OF
THE BOARD OF POLICE COMMISSIONERS OF
KANSAS CITY MISSOURI, et al. v. GORMAN
certiorari to the united states court of appeals for
the eighth circuit
No. 01–682. Argued April 23, 2002—Decided June 17, 2002
Respondent, a paraplegic, suffered serious injuries that left him unable to
work full time when, after arrest, he was transported to a Kansas City
police station in a van that was not equipped to accommodate the dis-
abled. He sued petitioner police officials and officers for discriminating
against him on the basis of his disability, in violation of § 202 of the
Americans with Disabilities Act of 1990 (ADA) and § 504 of the Rehabili-
tation Act of 1973, by failing to maintain appropriate policies for the
arrest and transportation of persons with spinal cord injuries. A jury
awarded him compensatory and punitive damages, but the District
Court vacated as to punitive damages, holding that they are unavailable
in private suits brought under § 202 of the ADA and § 504 of the Rehabil-
itation Act. In reversing, the Eighth Circuit found punitive damages
available under the “general rule” of Franklin v. Gwinnett County Pub-
lic Schools, 503 U. S. 60, 70–71, that “absent clear direction to the con-
trary by Congress, the federal courts have the power to award any
appropriate relief ” for violation of a federal right.
Held: Punitive damages may not be awarded in private suits brought
under § 202 of the ADA and § 504 of the Rehabilitation Act. These sec-
tions are enforceable through private causes of action, whose remedies
are coextensive with those available in a private action under Title VI
of the Civil Rights Act of 1964. See § 203 of the ADA and § 505(a)(2) of
the Rehabilitation Act. Title VI invokes Congress’s Spending Clause
power to place conditions on the grant of federal funds. This Court has
regularly applied a contract-law analogy in defining the scope of conduct
for which funding recipients may be held liable in money damages, and
in finding a damages remedy available, in private suits under Spending
Clause legislation. The same analogy applies in determining the scope
of damages remedies. A remedy is appropriate relief only if the recip-
ient is on notice that, by accepting federal funding, it exposes itself
to such liability. A funding recipient is generally on notice that it is
subject not only to those remedies explicitly provided in the relevant
legislation but also to those traditionally available in breach of con-
tract suits. Title VI mentions no remedies; and punitive damages are

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182 BARNES v. GORMAN
Syllabus
generally not available for breach of contract. Nor could it be said that
Title VI funding recipients have, merely by accepting funds, implicitly
consented to a remedy which is not normally available for contract
actions, and the indeterminate magnitude of which could produce liabil-
ity exceeding the level of federal funding. Because punitive damages
may not be awarded in private suits under Title VI, it follows that they
may not be awarded in suits under § 202 of the ADA and § 504 of the
Rehabilitation Act. Pp. 184–190.
257 F. 3d 738, reversed.
Scalia, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and O’Connor, Kennedy, Souter, and Thomas, JJ., joined. Sou-
ter, J., filed a concurring opinion, in which O’Connor, J., joined, post,
p. 190. Stevens, J., filed an opinion concurring in the judgment, in which
Ginsburg and Breyer, JJ., joined, post, p. 191.
Lawrence S. Robbins argued the cause for petitioners.
With him on the briefs were Roy T. Englert, Jr., Alan E.
Untereiner, Arnon D. Siegel, and Dale H. Close.
Gregory G. Garre argued the cause for the United States
as amicus curiae urging reversal. With him on the brief
were Solicitor General Olson, Assistant Attorneys General
Boyd and McCallum, Deputy Solicitor General Clement,
Jessica Dunsay Silver, and Gregory B. Friel.
Scott L. Nelson argued the cause for respondent. With
him on the brief were Brian Wolfman, John M. Simpson,
and Connie Knight Sieracki.*
*Briefs of amici curiae urging reversal were filed for the State of
Hawaii et al. by Earl I. Anzai, Attorney General of Hawaii, and Dorothy
D. Sellers and Adina L. K. Cunningham, Deputy Attorneys General,
joined by Robert R. Rigsby, Corporation Counsel of the District of Colum-
bia, and the Attorneys General for their respective States as follows: Rob-
ert A. Butterworth of Florida, Steve Carter of Indiana, G. Steven Rowe of
Maine, J. Joseph Curran, Jr., of Maryland, Don Stenberg of Nebraska,
Frankie Sue Del Papa of Nevada, David Samson of New Jersey, Wayne
Stenehjem of North Dakota, Betty D. Montgomery of Ohio, W. A. Drew
Edmondson of Oklahoma, Hardy Myers of Oregon, Mark L. Shurtleff of
Utah, and Hoke MacMillan of Wyoming; for the California Municipalities
et al. by Samuel L. Jackson, Pamela Albers, Michael G. Colantuono, Ron-
ald R. Ball, Michael F. Dean, John L. Cook, Charles E. Dickerson III,

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183 Cite as: 536 U. S. 181 (2002)
Opinion of the Court
Justice Scalia delivered the opinion of the Court.
We must decide whether punitive damages may be
awarded in a private cause of action brought under § 202 of
the Americans with Disabilities Act of 1990 (ADA), 104 Stat.
337, 42 U. S. C. § 12132 (1994 ed.), and § 504 of the Rehabilita-
tion Act of 1973, 87 Stat. 394, 29 U. S. C. § 794(a).
I
Respondent Jeffrey Gorman, a paraplegic, is confined to
a wheelchair and lacks voluntary control over his lower
torso, including his bladder, forcing him to wear a catheter
attached to a urine bag around his waist. In May 1992, he
was arrested for trespass after fighting with a bouncer at a
Kansas City, Missouri, nightclub. While waiting for a police
van to transport him to the station, he was denied permis-
sion to use a restroom to empty his urine bag. When the
van arrived, it was not equipped to receive respondent’s
wheelchair. Over respondent’s objection, the officers re-
moved him from his wheelchair and used a seatbelt and
his own belt to strap him to a narrow bench in the rear of
the van. During the ride to the police station, respondent
released his seatbelt, fearing it placed excessive pressure on
his urine bag. Eventually, the other belt came loose and
respondent fell to the floor, rupturing his urine bag and in-
juring his shoulder and back. The driver, the only officer
in the van, finding it impossible to lift respondent, fastened
him to a support for the remainder of the trip. Upon arriv-
Joel D. Kuperberg, Philip D. Kohn, John Sanford Todd, Robert E. Shan-
non, Joseph A. Soldani, William B. Conners, Gregory P. Priamos, Had-
den Roth, James F. Penman, George Rios, Brien J. Farrell, Valerie J.
Armento, Debra E. Corbett, J. Wallace Wortham, Jr., A. Scott Chinn, Karl
F. Dean, Michael Cardozo, Nelson A. Diaz, Jeffrey L. Rogers, John C.
Wolfe, and Harry Morrison, Jr.; and for the International City/County
Management Association et al. by Richard Ruda and James I. Crowley.
Jeffrey Robert White filed a brief for the Association of Trial Lawyers
of America et al. as amici curiae urging affirmance.

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184 BARNES v. GORMAN
Opinion of the Court
ing at the station, respondent was booked, processed, and
released; later he was convicted of misdemeanor trespass.
After these events, respondent suffered serious medical
problems—including a bladder infection, serious lower back
pain, and uncontrollable spasms in his paralyzed areas—that
left him unable to work full time.
Respondent brought suit against petitioners—members of
the Kansas City Board of Police Commissioners, the chief of
police, and the officer who drove the van—in the United
States District Court for the Western District of Missouri.
The suit claimed petitioners had discriminated against re-
spondent on the basis of his disability, in violation of § 202 of
the ADA and § 504 of the Rehabilitation Act, by failing to
maintain appropriate policies for the arrest and transporta-
tion of persons with spinal cord injuries.
A jury found petitioners liable and awarded over $1 million
in compensatory damages and $1.2 million in punitive dam-
ages. The District Court vacated the punitive damages
award, holding that punitive damages are unavailable in suits
under § 202 of the ADA and § 504 of the Rehabilitation Act.
The Court of Appeals for the Eighth Circuit reversed, rely-
ing on this Court’s decision in Franklin v. Gwinnett County
Public Schools, 503 U. S. 60, 70–71 (1992), which stated the
“general rule” that “absent clear direction to the contrary by
Congress, the federal courts have the power to award any
appropriate relief in a cognizable cause of action brought
pursuant to a federal statute.” Punitive damages are ap-
propriate relief, the Eighth Circuit held, because they are
“an integral part of the common law tradition and the judi-
cial arsenal,” 257 F. 3d 738, 745 (2001), and Congress did
nothing to disturb this tradition in enacting or amending the
relevant statutes, id., at 747. We granted certiorari. 534
U. S. 1103 (2002).
II
Section 202 of the ADA prohibits discrimination against
the disabled by public entities; § 504 of the Rehabilitation Act

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185 Cite as: 536 U. S. 181 (2002)
Opinion of the Court
prohibits discrimination against the disabled by recipients of
federal funding, including private organizations, 29 U. S. C.
§ 794(b)(3). Both provisions are enforceable through private
causes of action. Section 203 of the ADA declares that the
“remedies, procedures, and rights set forth in [§ 505(a)(2) of
the Rehabilitation Act] shall be the remedies, procedures,
and rights this subchapter provides” for violations of § 202.
42 U. S. C. § 12133. Section 505(a)(2) of the Rehabilitation
Act, in turn, declares that the “remedies, procedures, and
rights set forth in title VI of the Civil Rights Act of 1964 . . .
shall be available” for violations of § 504, as added, 92 Stat.
2983, 29 U. S. C. § 794a(a)(2). Thus, the remedies for viola-
tions of § 202 of the ADA and § 504 of the Rehabilitation Act
are coextensive with the remedies available in a private
cause of action brought under Title VI of the Civil Rights
Act of 1964, 42 U. S. C. § 2000d et seq., which prohibits racial
discrimination in federally funded programs and activities.
Although Title VI does not mention a private right of
action, our prior decisions have found an implied right of
action, e. g., Cannon v. University of Chicago, 441 U. S. 677,
703 (1979), and Congress has acknowledged this right in
amendments to the statute, leaving it “beyond dispute that
private individuals may sue to enforce” Title VI, Alexander
v. Sandoval, 532 U. S. 275, 280 (2001). It is less clear what
remedies are available in such a suit. In Franklin, supra,
at 73, we recognized “the traditional presumption in favor of
any appropriate relief for violation of a federal right,” and
held that since this presumption applies to suits under Title
IX of the Education Amendments of 1972, 20 U. S. C. §§ 1681–
1688, monetary damages were available. (Emphasis added.)
And the Court has interpreted Title IX consistently with
Title VI, see Cannon, supra, at 694–698. Franklin, how-
ever, did not describe the scope of “appropriate relief.” We
take up this question today.
Title VI invokes Congress’s power under the Spending
Clause, U. S. Const., Art. I, § 8, cl. 1, to place conditions on

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186 BARNES v. GORMAN
Opinion of the Court
the grant of federal funds. See Davis v. Monroe County
Bd. of Ed., 526 U. S. 629, 640 (1999) (Title IX). We have
repeatedly characterized this statute and other Spending
Clause legislation as “much in the nature of a contract: in
return for federal funds, the [recipients] agree to comply with
federally imposed conditions.” Pennhurst State School and
Hospital v. Halderman, 451 U. S. 1, 17 (1981) (emphasis
added); 1 see also Davis, supra, at 640; Gebser v. Lago Vista
Independent School Dist., 524 U. S. 274, 286 (1998); Guard-
ians Assn. v. Civil Serv. Comm’n of New York City, 463
U. S. 582, 599 (1983) (opinion of White, J.); id., at 632–633
(Marshall, J., dissenting); Lau v. Nichols, 414 U. S. 563, 568–
569 (1974). Just as a valid contract requires offer and ac-
ceptance of its terms, “[t]he legitimacy of Congress’ power
to legislate under the spending power . . . rests on whether
the [recipient] voluntarily and knowingly accepts the terms
of the ‘contract.’ . . . Accordingly, if Congress intends to im-
pose a condition on the grant of federal moneys, it must do
so unambiguously.” Pennhurst, supra, at 17; see also Davis,
supra, at 640; Gebser, supra, at 287; Franklin, 503 U. S.,
at 74. Although we have been careful not to imply that all
contract-law rules apply to Spending Clause legislation, see,
e. g., Bennett v. Kentucky Dept. of Ed., 470 U. S. 656, 669
(1985) (Title I), we have regularly applied the contract-law
analogy in cases defining the scope of conduct for which fund-
ing recipients may be held liable for money damages. Thus,
1 Justice Stevens believes that our reliance on Pennhurst is “inap-
propriate” because that case addressed legislation imposing affirmative
obligations on recipients whereas Title VI “simply prohibit[s] certain dis-
criminatory conduct.” Post, at 192 (opinion concurring in judgment). He
does not explain why he thinks this distinction—which played no role in
the Court’s application of contract-law principles in Pennhurst, 451 U. S.,
at 24–25—ought to make a difference. Whatever his reason, we have
regularly applied Pennhurst’s contract analogy to legislation that “simply
prohibit[s] certain discriminatory conduct.” See, e. g., Davis v. Monroe
County Bd. of Ed., 526 U. S. 629, 640 (1999) (Title IX); Gebser v. Lago
Vista Independent School Dist., 524 U. S. 274, 287 (1998) (same).

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187 Cite as: 536 U. S. 181 (2002)
Opinion of the Court
a recipient may be held liable to third-party beneficiaries for
intentional conduct that violates the clear terms of the rele-
vant statute, Davis, supra, at 642, but not for its failure to
comply with vague language describing the objectives of the
statute, Pennhurst, supra, at 24–25; and, if the statute im-
plies that only violations brought to the attention of an offi-
cial with power to correct them are actionable, not for con-
duct unknown to any such official, see Gebser, supra, at 290.
We have also applied the contract-law analogy in finding a
damages remedy available in private suits under Spending
Clause legislation. Franklin, supra, at 74–75.
The same analogy applies, we think, in determining the
scope of damages remedies. We said as much in Gebser:
“Title IX’s contractual nature has implications for our con-
struction of the scope of available remedies.” 524 U. S., at
287. One of these implications, we believe, is that a remedy
is “appropriate relief,” Franklin, 503 U. S., at 73, only if the
funding recipient is on notice that, by accepting federal fund-
ing, it exposes itself to liability of that nature. A funding
recipient is generally 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. Thus we have held that under Title IX,
which contains no express remedies, a recipient of federal
funds is nevertheless subject to suit for compensatory dam-
ages, id., at 76, and injunction, Cannon, supra, at 711–712,
forms of relief traditionally available in suits for breach of
contract. See, e. g., Restatement (Second) of Contracts § 357
(1981); 3 S. Williston, Law of Contracts §§ 1445–1450 (1920);
J. Pomeroy, A Treatise on the Specific Performance of Con-
tracts 1–5 (1879). Like Title IX, Title VI mentions no reme-
dies—indeed, it fails to mention even a private right of action
(hence this Court’s decision finding an implied right of action
in Cannon). But punitive damages, unlike compensatory
damages and injunction, are generally not available for
breach of contract, see 3 E. Farnsworth, Contracts § 12.8,

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188 BARNES v. GORMAN
Opinion of the Court
pp. 192–201 (2d ed. 1998); Restatement (Second) of Contracts
§ 355; 1 T. Sedgwick, Measure of Damages § 370 (8th ed.
1891).
Nor (if such an interpretive technique were available)
could an implied punitive damages provision reasonably be
found in Title VI. Some authorities say that reasonably im-
plied contractual terms are those that the parties would have
agreed to if they had adverted to the matters in question.
See 2 Farnsworth, supra, § 7.16, at 335, and authorities cited.
More recent commentary suggests that reasonably implied
contractual terms are simply those that “compor[t] with
community standards of fairness,” Restatement (Second) of
Contracts, supra, § 204, Comment d; see also 2 Farnsworth,
supra, § 7.16, at 334–336. Neither approach would support
the implication here of a remedy that is not normally avail-
able for contract actions and that is of indeterminate magni-
tude. We have acknowledged that compensatory damages
alone “might well exceed a recipient’s level of federal fund-
ing,” Gebser, supra, at 290; punitive damages on top of that
could well be disastrous. Not only is it doubtful that fund-
ing recipients would have agreed to exposure to such unor-
thodox and indeterminate liability; it is doubtful whether
they would even have accepted the funding if punitive dam-
ages liability was a required condition. “Without doubt, the
scope of potential damages liability is one of the most sig-
nificant factors a school would consider in deciding whether
to receive federal funds.” Davis, supra, at 656 (Kennedy,
J., dissenting). And for the same reason of unusual and dis-
proportionate exposure, it can hardly be said that community
standards of fairness support such an implication. In sum,
it must be concluded that Title VI funding recipients have
not, merely by accepting funds, implicitly consented to liabil-
ity for punitive damages.2
2 We cannot understand Justice Stevens’ Chicken-Little statement
that today’s decision “has potentially far-reaching consequences that go
well beyond the issues briefed and argued in this case.” Post, at 192–193.
Our decision merely applies a principle expressed and applied many times

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189 Cite as: 536 U. S. 181 (2002)
Opinion of the Court
Our conclusion is consistent with the “well settled” rule
that “where legal rights have been invaded, and a federal
statute provides for a general right to sue for such invasion,
federal courts may use any available remedy to make good
the wrong done.” Bell v. Hood, 327 U. S. 678, 684 (1946); see
also Franklin, supra, at 66. When a federal-funds recipient
violates conditions of Spending Clause legislation, the wrong
done is the failure to provide what the contractual obligation
requires; and that wrong is “made good” when the recipient
compensates the Federal Government or a third-party bene-
ficiary (as in this case) for the loss caused by that failure.
See Guardians, 463 U. S., at 633 (Marshall, J., dissenting)
(“When a court concludes that a recipient has breached its
contract, it should enforce the broken promise by protect-
ing the expectation that the recipient would not discrimi-
nate. . . . The obvious way to do this is to put private parties
in as good a position as they would have been had the con-
tract been performed”). Punitive damages are not compen-
satory, and are therefore not embraced within the rule de-
scribed in Bell.
* * *
Because punitive damages may not be awarded in private
suits brought under Title VI of the 1964 Civil Rights Act, it
follows that they may not be awarded in suits brought under
§ 202 of the ADA and § 504 of the Rehabilitation Act.3 This
before: that the “contractual nature” of Spending Clause legislation “has
implications for our construction of the scope of available remedies.”
Gebser, 524 U. S., at 287 (emphasis added). We do not imply, for example,
that suits under Spending Clause legislation are suits in contract, or that
contract-law principles apply to all issues that they raise. Since Justice
Stevens is unable to identify any “far-reaching consequenc[e]” that might
reasonably follow from our decision today, and since we are merely occupy-
ing ground that the Court has long held, we surely do not deserve his
praise that we are “fearless crusaders,” post, at 193, n. 2.
3 Justice Stevens believes that our analysis of Title VI does not carry
over to the ADA because the latter is not Spending Clause legislation, and
identifies “tortious conduct.” Post, at 192, 193, n. 2. Perhaps he thinks
that it should not carry over, but that is a question for Congress, and

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190 BARNES v. GORMAN
Souter, J., concurring
makes it unnecessary to reach petitioners’ alternative argu-
ment—neither raised nor passed on below 4 —invoking the
traditional presumption against imposition of punitive dam-
ages on government entities. Vermont Agency of Natural
Resources v. United States ex rel. Stevens, 529 U. S. 765,
784–785 (2000); Newport v. Fact Concerts, Inc., 453 U. S. 247,
262–263 (1981). The judgment of the Court of Appeals is
reversed.
It is so ordered.
Justice Souter, with whom Justice O’Connor joins,
concurring.
I join the Court’s opinion because I agree that analogy to
the common law of contract is appropriate in this instance,
with the conclusion that punitive damages are not available
under the statute. Punitive damages, as the Court points
out, may range in orders of “indeterminate magnitude,”
Congress has unequivocally said otherwise. The ADA could not be
clearer that the “remedies, procedures, and rights . . . this subchapter
provides” for violations of § 202 are the same as the “remedies, procedures,
and rights set forth in” § 505(a)(2) of the Rehabilitation Act, which is
Spending Clause legislation. 42 U. S. C. § 12133. Section 505(a)(2), in
turn, explains that the “remedies, procedures, and rights set forth in title
VI . . . shall be available” for violations of § 504 of the Rehabilitation Act.
29 U. S. C. § 794a(a)(2). These explicit provisions make discussion of the
ADA’s status as a “non Spending Clause” tort statute quite irrelevant.
4 Justice Stevens suggests that our decision likewise rests on a theory
neither presented nor passed on below. Post, at 191–192. But the par-
ties raised, and the courts below passed on, the applicability of Franklin
v. Gwinnett County Public Schools, 503 U. S. 60 (1992), to the question
presented. That case addressed Spending Clause legislation (Title IX)
and cited the contract-analogy discussion in Pennhurst as the basis for its
acknowledgment of a notice requirement. See 503 U. S., at 74–75. Re-
spondent did argue (quite correctly) that petitioners had failed to rely on
the Newport ground that Justice Stevens uses, Newport v. Fact Con-
certs, Inc., 453 U. S. 247, 262–263 (1981), see Brief for Respondent 41–43,
but not that they had failed to rely on the contract analogy initiated in
Pennhurst, Brief for Respondent 35–41.

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191 Cite as: 536 U. S. 181 (2002)
Stevens, J., concurring in judgment
ante, at 188, untethered to compensable harm, and would
thus pose a concern that recipients of federal funding could
not reasonably have anticipated. I realize, however, and
read the Court’s opinion as acknowledging, that the
contract-law analogy may fail to give such helpfully clear
answers to other questions that may be raised by actions for
private recovery under Spending Clause legislation, such as
the proper measure of compensatory damages.
Justice Stevens, with whom Justice Ginsburg and
Justice Breyer join, concurring in the judgment.
The judgment of the Court of Appeals might be reversed
on any of three different theories: (1) as the Court held in
Newport v. Fact Concerts, Inc., 453 U. S. 247 (1981), absent
clear congressional intent to the contrary, municipalities are
not subject to punitive damages; (2) an analysis of the text
and legislative history of § 504 of Rehabilitation Act of 1973
and Title II of the Americans with Disabilities Act of 1990
(ADA) indicates that Congress did not intend to authorize a
punitive damages remedy for violations of either statute;1 or
(3) applying reasoning akin to that used in Pennhurst State
School and Hospital v. Halderman, 451 U. S. 1 (1981), that
the remedies for violations of federal statutes enacted pursu-
ant to Congress’ spending power should be defined by the
common law of contracts, third-party beneficiaries are not
allowed to recover punitive damages.
Petitioners did not rely on either the first or the third
of those theories in either the District Court or the Court
of Appeals. Nevertheless, because it presents the narrow-
est basis for resolving the case, I am convinced that it is an
appropriate exercise of judicial restraint to decide the case
1 This was the theory that was adopted by the Court of Appeals for the
Sixth Circuit in Moreno v. Consolidated Rail Corp., 99 F. 3d 782, 788–792
(1996). It was also the only theory discussed and rejected by the Court
of Appeals below.

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192 BARNES v. GORMAN
Stevens, J., concurring in judgment
on the theory that petitioners are immune from punitive
damages under Newport. There is, however, no justification
for the Court’s decision to reach out and decide the case on
a broader ground that was not argued below. The Court’s
reliance on, and extension of, Pennhurst—a case that was
not even cited in petitioners’ briefs in the Court of Appeals—
is particularly inappropriate.
In Pennhurst we were faced with the question whether
the Developmentally Disabled Assistance and Bill of Rights
Act, 42 U. S. C. § 6010, had imposed affirmative obligations
on participating States. Relying in part on the important
distinction between statutory provisions that “simply
prohibited certain kinds of state conduct” and those that
“impose affirmative obligations on the States to fund cer-
tain services,” 451 U. S., at 16–17, we first held that § 6010
was enacted pursuant to the Spending Clause. We then
concluded that the “affirmative obligations” that the Court
of Appeals had found in § 6010 could “hardly be considered
a ‘condition’ of the grant of federal funds.” Id., at 23.
“When Congress does impose affirmative obligations on the
States, it usually makes a far more substantial contribution
to defray costs. . . . It defies common sense, in short, to sup-
pose that Congress implicitly imposed this massive obliga-
tion on participating States.” Id., at 24.
The case before us today involves a municipality’s breach
of a condition that simply prohibits certain discriminatory
conduct. The prohibition is set forth in two statutes, one of
which, Title II of the ADA, was not enacted pursuant to the
Spending Clause. Our opinion in Pennhurst says nothing
about the remedy that might be appropriate for such a
breach. Nor do I believe that the rules of contract law
on which the Court relies are necessarily relevant to the
tortious conduct described in this record. Moreover, the
Court’s novel reliance on what has been, at most, a useful
analogy to contract law has potentially far-reaching conse-
quences that go well beyond the issues briefed and argued

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193 Cite as: 536 U. S. 181 (2002)
Stevens, J., concurring in judgment
in this case.2 In light of the fact that the petitioners—in
addition to most defendants sued for violations of Title II of
the ADA and § 504 of the Rehabilitation Act of 1973—are
clearly not subject to punitive damages pursuant to our hold-
ing in Newport, I see no reason to decide the case on the
expansive basis asserted by the Court.
Accordingly, I do not join the Court’s opinion, although I
do concur in its judgment in this case.
2 Although rejected by the Sixth Circuit, see Westside Mothers v. Have-
man, 289 F. 3d 852 (2002), one District Court applied the Pennhurst
contract analogy in order to support its conclusion that Spending Clause
legislation is not the “supreme law of the land.” Westside Mothers v.
Haveman, 133 F. Supp. 2d 549, 561 (ED Mich. 2001). The Court fortu-
nately does cabin the potential reach of today’s decision by stating that
“[w]e do not imply, for example, that suits under Spending Clause legisla-
tion are suits in contract, or that contract-law principles apply to all issues
that they raise,” ante, at 189, n. 2, but whenever the Court reaches out to
adopt a broad theory that was not discussed in the early stages of the
litigation, and that implicates statutes that are not at issue, its opinion is
sure to have unforeseen consequences. When it does so unnecessarily, it
tends to assume a legislative, rather than a judicial, role. Reliance on a
narrower theory that was not argued below does not create that risk. I
am not persuaded that “Chicken-Little,” ante, at 188, n. 2, is an appro-
priate characterization of judicial restraint; it is, however, a rhetorical de-
vice appropriately used by fearless crusaders.