Cummings v. Premier Rehab Keller

P R E L I M I N A R Y P R I N T
Volume 596 U. S. Part 1
Pages 212–241
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
April 28, 2022
REBECCA A. WOMELDORF
reporter of decisions
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212 OCTOBER
TERM, 2021
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 fth 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 (ASL) interpreter at her sessions.
Premier Rehab declined to do so, telling Cummings that the therapist
could communicate with her through other means. Cummings later
fled a lawsuit seeking damages and other relief against Premier Rehab,
alleging 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 fnancial
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 Pre-
mier Rehab were emotional in nature. It held that damages for emo-
tional harm are not recoverable in private actions brought to enforce
either statute. The District Court thus dismissed the complaint, and
the Fifth Circuit affrmed.
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. 217–230.
(a) Congress has broad power under the Spending Clause of the Con-
stitution to “fx 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 fnancial assistance from discriminating on the basis
of certain protected characteristics. This Court has held that such stat-
utes may be enforced through implied rights of action. Barnes v. Gor-
man, 536 U. S. 181, 185. Although it is “beyond dispute that 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 clarifed 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.

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as: 596 U. S. 212 (2022)
213
Syllabus
Lago Vista Independent School Dist., 524 U. S. 274, 286. Because
Spendi
ng 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
contract-law analogy to defne the scope of conduct for which funding
recipients 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 nature.”
Barnes, 536 U. S., at 187. Pp. 217–220.
(b) To decide whether emotional distress damages are available under
the Spending Clause statutes in this case, the Court therefore asks
whether a prospective funding recipient deciding whether to accept fed-
eral funds would have had “clear notice” regarding that liability. Ar-
lington 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 dam-
ages are available under the same statutes, the Court followed the con-
tract analogy and concluded that a federal funding recipient may be
considered “on notice that it is subject . . . to those remedies tradition-
ally available in suits for breach of contract.” 536 U. S., at 187. Given
that punitive damages “are generally not available for breach of con-
tract,” the Court concluded that funding recipients “have not, merely
by accepting funds, implicitly consented to liability for punitive dam-
ages.” Id., at 187–188.
Crucial here, the Court in Barnes considered punitive damages gener-
ally unavailable for breach of contract despite the fact that such dam-
ages are hardly unheard of in contract cases: Treatises cited in Barnes
described punitive damages as recoverable in contract where “the con-
duct constituting the breach is also a tort for which punitive damages
are recoverable.” Restatement (Second) of Contracts § 355, p. 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 recipients 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. 220–221.

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214 CUMMINGS
v. PREMIER REHAB KELLER
Syllabus
(c) The above framework produces a straightforward analysis in this
case
. Hornbook law states that emotional distress is generally not com-
pensable 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 traditional
contract remedies here do include damages for emotional distress, be-
cause there is an exception—put forth in some contract treatises—under
which such damages may be awarded where a contractual breach is
particularly likely to result in emotional disturbance. See, e. g., Re-
statement (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 fne-
grained,” exceptional rules that “govern[ ] in the specifc context” at
hand. Brief for Petitioner 33–35. That is inconsistent with both
Barnes and the Court's larger Spending Clause jurisprudence. Barnes
necessarily concluded that the existence of an on-point exception to the
general rule against punitive damages was insuffcient 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 acceptance, central to the
Court's Spending Clause cases, past its breaking 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 con-
tract doctrine, no matter how idiosyncratic or exceptional. Cummings
would essentially incorporate the law of contract remedies wholesale,
but Barnes constrains courts to imply only those remedies “that [are]
normally available for contract actions.” 536 U. S., at 188. In urging
the Court to disregard that restriction, Cummings would have the Court
treat statutory silence as a license to freely supply 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 requiring “clear notice regard-
ing the liability at issue,” Arlington, 548 U. S., at 296.
Even if it were appropriate to treat funding recipients as aware that
they may be subject to “rare” contract-law rules that are “satisfed only
in particular settings,” Brief for Petitioner 34, funding recipients would
still lack the requisite notice that emotional distress damages are avail-
able under the statutes at issue. That is because the Restatement's
formulation—that such damages are available where “the contract or
the breach is of such a kind that serious emotional disturbance was a

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as: 596 U. S. 212 (2022)
215
Syllabus
particularly likely result,” § 353—does not refect 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 gener-
ally phrased Restatement exception because they award emotional dis-
tress damages only in a narrow and idiosyncratic group of cases in which
the breaching conduct would also have been a tort. These cases unsur-
prisingly mix contract, quasi-contract, and tort principles together, sug-
gesting that they do not establish or evince a rule of contract 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 stat-
utes here. Pp. 221–230.
948 F. 3d 673, affrmed.
Roberts, C. J., delivered the opinion of the Court, in which Thomas,
Alito, Gorsuch, Kavanaugh, and Barrett, JJ., joined. Kavanaugh,
J., fled a concurring opinion, in which Gorsuch, J., joined, post, p. 230.
Breyer, J., fled a dissenting opinion, in which Sotomayor and Kagan,
JJ., joined, post, p. 231.
Andrew Rozynski argued the cause for petitioner. With
him on the briefs was Edward C. DuMont.
Colleen E. Roh Sinzdak argued the cause for the United
States as amicus curiae supporting petitioner. With her on
the brief were Deputy Solicitor General Kneedler, Assistant
Attorney General Clarke, and Bonnie I. Robin-Vergeer.
Kannon K. Shanmugam argued the cause for respondent.
With him on the brief were William T. Marks and Brian
Scott Bradley.*
*Briefs of amici curiae urging reversal were fled for the American Asso-
ciation for Justice by Robert S. Peck and Jeffrey R. White; for Disability Or-
ganizations by Raff Melkonian; for Law Professors by Elizabeth B. Wydra
and Brianne J. Gorod; and for the NAACP Legal Defense and Educational
Fund, Inc., et al. by Sherrilyn A. Ifll, Janai S. Nelson, Samuel Spital,
Cara McClellan, David D. Cole, Jin Hee Lee, Mahogane D. Reed, Jennesa
Calvo-Friedman, Sandra S. Park, Emily Martin, and Andre Segura.
Briefs of amici curiae urging affrmance were fled for the State of
Texas et al. by Ken Paxton, Attorney General of Texas, Judd E. Stone II,
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216 CUMMINGS
v. PREMIER REHAB KELLER
Opinion of the Court
Chief Justice Roberts delivered the opinion of the
Cour
t.
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 prohibit-
ing recipients of federal fnancial assistance from discrimi-
nating 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.
Gorman, 536 U. S. 181, 185, 187 (2002). Punitive damages,
on the other hand, are not available. Id., at 189. The ques-
tion presented in this case is whether another special form
of damages— damages for emoti ona l distress—may be
recovered.
I
Petitioner Jane Cummings is deaf and legally blind, and
communicates primarily in American Sign Language (ASL).
In October 2016, she sought physical therapy services from
respondent Premier Rehab Keller, a small business in the
Solicitor General, Brent Webster, First Assistant Attorney General, La-
nora C. Pettit, Principal Deputy Solicitor General, and Eric J. Hamilton,
Assistant Solicitor General, and by the Attorneys General for their respec-
tive States as follows: Steve Marshall of Alabama, Leslie Rutledge of Ar-
kansas, Todd Rokita of Indiana, Jeff Landry of Louisiana, Lynn Fitch of
Mississippi, John M. O'Connor of Oklahoma, Alan Wilson of South Caro-
lina, Sean D. Reyes of Utah, and Patrick Morrisey of West Virginia; for
the Chamber of Commerce of the United States of America et al. by
Charles J. Cooper, Daryl Joseffer, Karen R. Harned, and Elizabeth Milito;
for the National Conference of State Legislatures et al. by Richard A.
Simpson, Lisa E. Soronen, and F. Andrew Hessick; and for the Washing-
ton Legal Foundation by John M. Masslon II and Cory L. Andrews.
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217
Opinion of the Court
Dallas-Fort Worth area. Cummings requested that Premier
Rehab
provide an ASL interpreter at her appointments.
Premier Rehab declined to do so, telling Cummings that she
could communicate with the therapist using written notes,
lip reading, or gesturing. Cummings then sought and ob-
tained care from another provider.
Cummings later fled this lawsuit against Premier Rehab,
alleging that its failure to provide an ASL interpreter con-
stituted discrimination on the basis of disability in violation
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 fnancial 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 in juncti on, and
damages.
The District Court dismissed the complaint. It observed
that “the only compensable injuries that Cummings alleged
Premier caused were `humiliation, frustration, and emotional
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 private actions
brought to enforce the Rehabilitation Act or the Affordable
Care Act. Ibid. The Court of Appeals for the Fifth Cir-
cuit affrmed, adopting the same conclusion. 948 F. 3d 673
(2020).
We granted certiorari. 594 U. S. ––– (2021).
II
A
Pursuant to its authority to “fx the terms on which it shall
disburse federal money,” Pennhurst, 451 U. S., at 17, Con-
gress has enacted four statutes prohibiting recipients of fed-
eral fnancial assistance from discriminating based on certain
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218 CUMMINGS
v. PREMIER REHAB KELLER
Opinion of the Court
protected grounds. Title VI of the Civil Rights Act of 1964
f
orbids race, color, and national orig in discrimination in
federally funded programs or activities. 78 Stat. 252, 42
U. S. C. § 2000d. Title IX of the Education Amendments 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 disability.
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 recip-
ient 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 “ratifed Cannon's holding ” that “private individ-
uals may sue to enforce” both statutes. Alexander v. San-
doval, 532 U. S. 275, 280 (2001); see also Franklin v. Gwin-
nett County Public Schools, 503 U. S. 60, 72–73 (1992). As
to the Rehabilitation Act and the Affordable Care Act—the
two statutes directly at issue in this litigation—each ex-
pressly incorporates the rights and remedies 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
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 `appro-
priate relief.' ” Barnes, 536 U. S., at 185.
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219
Opinion of the Court
Our later cases have flled in that gap, clarifying that our
considerati
on of whether a remedy qualifes 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 op-
erates 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] voluntar-
ily 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 defning the scope of conduct for which funding recipi-
ents 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 un-
derstand . . . 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 “en-
suring that the receiving entity of federal funds [had] notice
that it will be liable.” Gebser, 524 U. S., at 287 (inter-
nal quotation marks omitted). “Accordingly, if Congress in-
tends to impose a condition on the grant of federal moneys,
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
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220 CUMMINGS
v. PREMIER REHAB KELLER
Opinion of the Court
enforce Spending Clause statutes, Gebser, 524 U. S., at 287.
Af
ter 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 confdent that the recipient “exercise[d its] choice
knowingly, cognizant of the consequences of [its] participa-
tion” 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 consider
here, we therefore ask a simple question: Would a prospec-
tive 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? Arlington, 548
U. S., at 296. If yes, then emotional distress damages are
available; if no, they are not.
Because the statutes at issue are silent as to available rem-
edies, it is not obvious how to decide whether funding recipi-
ents would have had the requisite “clear notice regarding the
liability at issue in this case.” Ibid. We confronted that
same dynamic in Barnes. There, we considered whether a
federal funding recipient would have known, when taking
the money, that it was agreeing to face punitive damages in
suits brought under those laws. We noted that the statu-
tory 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
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as: 596 U. S. 212 (2022)
221
Opinion of the Court
breach of contract.” Ibid. We identifed two such reme-
dies:
compensatory damages and injunctions. By contrast,
we explained, punitive damages “are generally not available
for breach of contract.” Ibid. We thus concluded that
funding recipients covered by the statutes at issue “have not,
merely by accepting funds, implicitly 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 unheard
of in contract cases. Indeed, according to the treatises 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 recip-
ient is aware that, for breaching its Spending Clause “con-
tract” with the Federal Government, it will be subject to the
usual contract remedies in private suits. That is apparent
from the adverbs Barnes repeatedly used, requiring that a
remedy be “traditionally available,” “generally . . . avail-
able,” or “normally available for contract actions.” 536
U. S., at 187–188. And it is confrmed by the Court's hold-
ing: that punitive damages are unavailable in private actions
brought under these statutes even though such damages 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. Lay-
cock & R. Hasen, Modern American Remedies 216 (5th ed.
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222 CUMMINGS
v. PREMIER REHAB KELLER
Opinion of the Court
2019), just as “punitive damages . . . are generally not avail-
able
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, al-
though 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) (de-
scribing rule of “generally denying recovery for emotional
disturbance, or `mental distress,' resulting from breach of
contract” as “frmly rooted in tradition”); J. Perillo, Cala-
mari & Perillo on Contracts § 14.5, p. 495 (6th ed. 2009) (Cala-
mari & 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 re-
coverable under the Spending Clause statutes we consider
here.
In arguing for a different result, Cummings recognizes
that “contract law dictates `the scope of damages remedies.' ”
Brief for Petitioner 30. And she quotes the test set out in
Barnes: whether a certain remedy is “traditionally available
in suits for breach of contract.” Brief for Petitioner 31.
But Cummings then argues that, notwithstanding the above
authorities, “traditional contract remedies” in fact do “in-
clude damages for emotional distress.” Ibid.; see Brief for
United States as Amicus Curiae 14–20 (making the same
argument); post, at 237–239 (Breyer, J., dissenting) (same).
That is because, Cummings explains, several contract trea-
tises put forth the special rule that “recovery for emotional
disturbance” is allowed in a particular circumstance: where
“the contract or the breach is of such a kind that serious
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as: 596 U. S. 212 (2022)
223
Opinion of the Court
emotional disturbance was a particularly likely resu lt. ”
Br
ief for Petitioner 31 (quoting Restatement (Second) of
Contracts § 353). And, she contends, such a rule “aptly de-
scribe[s the] intentional breach of [a] promise to refrain from
discrimination, ” because discrimination frequently engen-
ders mental anguish. Brief for Petitioner 31. This argu-
ment suffers from two independently fatal faws.
First, Cummings subtly but crucially transforms the
contract-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 fne-grained” or “more directly ap-
plicable” rule of contract remedies that, although not gener-
ally or normally applicable, “govern[s] in the specifc context”
or “particular setting[ ]” of the pertinent Spending Clause
provision. Brief for Petitioner 33–35; see also post, at 239.
In other words, Cummings would treat funding recipients as
on notice that they will face not only the usual remedies
available in contract actions, but also other unusual, even
“rare” remedies, Brief for Petitioner 34, if those remedies
would be recoverable “in suits for breaches of the type of
contractual commitments at issue,” id., at 35.
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 ana-
lyzed 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 dam-
ages are recoverable.” Restatement (Second) of Contracts
§ 355. Such conduct would presumably include “breaches of
the type of contractual commitments at issue here,” Brief for
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224 CUMMINGS
v. PREMIER REHAB KELLER
Opinion of the Court
Petitioner 35–namely, the commitment not to discriminate.
Af
ter all, intentional discrimination is frequently a wanton,
reprehensible tort. Barnes itself involved “tortious con-
duct,” 536 U. S., at 192 (Stevens, J., concurring 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 concluded that the existence of this
on-point exception to the general rule against punitive dam-
ages was insuffcient 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.”
§ 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 discrimina-
tion.” 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-
fected 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
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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 fne-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 239. But our cases do not treat suits under
Spending Clause legislation as literal “suits in contract,” Sos-
samon v. Texas, 563 U. S. 277, 290 (2011), subjecting funding
recipients to whatever “governing rules” some general fed-
eral 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 con-
sequences will be. Nonetheless, consistent with Barnes, it
is fair to consider recipients aware that, if they violate their
promise to the Government, they will be subject to either
damages or a court order to perform. Those are the usual
forms of relief for breaching a legally enforceable commit-
ment. 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
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necessarily suggests funding recipients would have regard-
i
ng the availability of emotional distress damages when “en-
gaged in the process of deciding whether” to accept federal
funds. Arlington, 548 U. S., at 296. Such a diluted con-
ception 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 anal-
ogy “risks arrogating legislative power.” Hernández v.
Mesa, 589 U. S. –––, ––– (2020). Recall that Barnes author-
ized the recovery of “remedies traditionally available in suits
for breach of contract” under Spending Clause statutes, like
those we consider here, that “mention[ ] no remedies.” 536
U. S., at 187. Barnes thus permitted federal courts to do
something we are usually loath to do: “fnd[ ] that a [certain]
remedy is implied by a provision that makes no reference to
that remedy,” Hernández, 589 U. S., at –––. 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 dis-
regard that restriction, Cummings would have us treat stat-
utory silence as a license to freely supply remedies we cannot
be 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
liability at issue,” Arlington, 548 U. S., at 296.
Second, even if it were appropriate to treat funding recipi-
ents as aware that they may be subject to “rare” contract-
law rules that are “satisfed 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 available
where “the contract or the breach is of such a kind that seri-
ous emotional disturbance was a particularly likely result,”
see Restatement (Second) of Contracts § 353—does not
refect the consensus rule among American jurisdictions.
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Far from it. As one commentator concluded after “[s]ur-
vey
ing all of the cases dealing with emotional distress recov-
ery 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, Damages—
Recovery for Mental Suffering From Breach of Contract, 32
Notre Dame Law. 482 (1957) (noting “little uniformity in the
decided cases”); Corbin § 59.1, at 538, 540 (“Claims for dam-
ages for mental pain and suffering have caused much confict
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 rela-
tively undefned 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 235–237, is more aspirational than descriptive.
To be sure, a number of States follow the Restatement
rule and award emotional distress damages “where the in-
jury entails more than a pecuniary loss, and the duty violated
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, Cor-
bin § 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 altogether forbid re-
covery of emotional distress damages even where the con-
tract 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, rather
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than making them available in general wherever a breach
wou
ld have been likely to infict emotional harm. Cala-
mari & Perillo § 14.5, at 495–496. A good example is New
York, which refused to apply the Restatement rule, and de-
nied emotional distress damages, where the defendant hospi-
tal breached its contractual duty to return a newborn 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 confne recovery for mental anguish
where nonpecuniary contracts are at issue in two main ways.
First, a number permit recovery only if the breach also quali-
fes as “unusually evil,” with the precise terminology varying
from “reckless” and “willful” to “wanton” and “reprehen-
sible. ” D. Hoffman & A. Radus, Instr uc ti ng Jur ies on
Noneconomic Contract Damages, 81 Fordham 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., Giam-
papa 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, telegraph com-
panies, 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 disposi-
tion 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 negli-
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229
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gently 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. Beard-
sley, 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. Chandler,
5 F. Cas. 413, 414 (No. 2,575) (CC Mass. 1823) (opinion of
Story, J.) (ship captain violated the carriage contract's “im-
plied stipulation against general obscenity”).* As such, it
makes little sense to treat such cases as establishing or evin-
cing 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 i nstr uc tive” for pur poses of the contrac t-law
analogy).
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
*The dissent cites McCormick for the proposition that courts did not
“always” rely on “accompanying tortious conduct” when allowing recovery
of emotional distress damages in the innkeeper, telegraph, and burial
cases. Post, at 238–239 (quoting McCormick § 145, at 593–594). That
misses the point. As McCormick's next sentence explains, the award of
emotional distress damages in such cases was “made easier because usu-
ally the action could have been brought as for a tort, in which event the
tradition against allowing damages for mental distress would be plainly
inapplicable.” 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.

230 CUMMINGS
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Kavanaugh, J., concurring
contract actions is “the conventional wisdom . . . that [such]
damages
are for highly unusual contracts, which do not ft
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 correspondingly no
ground, under our cases, to conclude that federal funding re-
cipients 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.
***
For the foregoing reasons, we hold that emotional distress
damages are not recoverable under the Spending Clause
antidiscrimination statutes we consider here. The judg-
ment of the Court of Appeals is affrmed.
It is so ordered.
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 precedents.
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
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Breyer, J., dissenting
action, Congress, not this Court, should extend those im-
pl
ied causes of action and expand available remedies. Cf.
Hernández v. Mesa, 589 U. S. –––, ––– (2020); see also Frank-
lin 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 authorizing compensa-
tory damages for emotional distress in suits under the im-
plied Title VI cause of action.
Justice Breyer, with whom Justice Sotomayor and
Justice Kagan join, dissenting.
Using its Spending Clause authority, Congress has enacted
four statutes that prohibit recipients of federal funds from
discriminating on the basis of certain protected characteris-
tics, including (depending upon the statute) race, color, na-
tional origin, sex, disability, or age. See Civil Rights Act of
1964, Title VI, 42 U. S. C. § 2000d; Education Amendments of
1972, Title IX, 20 U. S. C. § 1681; Rehabilitation Act of 1973,
§ 504, 29 U. S. C. § 794; Patient Protection 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. Frankl in v. G w inne tt Co un ty
Public Schools, 503 U. S. 60, 76 (1992). Today, the Court
holds that the compensatory damages available under these
st atutes cannot i nclude compensati on for emoti ona l
suffering.
The Court has asked the right question: “[W]ould a pro-
spective funding recipient, at the time it engaged in the proc-
ess of deciding whether to accept federal dollars, have been
aware that it would face such liability?” Ante, at 220 (inter-
nal quotation marks and alterations omitted). And it has
correctly observed that our precedents instruct us to answer
this question by drawing an analogy to contract law. But I
disagree with how the Court has applied that analogy.
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The Court looks broadly at all contracts. It says that,
most
of the time, damages for breach of contract did not
include compensation for emotional distress. Ante, at 221–
222. And it then holds that emotional distress damages are
not available 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 dam-
ages. Emotional distress damages were traditionally avail-
able 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 discrimination
is particularly likely to cause serious emotional disturbance.
Thus, applying our precedents' contract analogy, I would
hold that victims of intentional violations of these antidis-
crimination statutes can recover compensatory damages 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 consider
here.” Ante, at 218 (quoting Barnes v. Gorman, 536 U. S.
181, 185 (2002)). Title VI (prohibiting race discrimination)
and Title IX (prohibiting sex discrimination) contain implied
rights of action that have been ratifed by Congress. Alex-
ander v. Sandoval, 532 U. S. 275, 280 (2001). The Rehabili-
tation Act (prohibiting disability discrimination) and the
ACA (prohibiting race, sex, disability, and age discrimi-
nation) expressly incorporate the rights and remedies avail-
able 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
Court's decision today will affect the remedies available
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Breyer, J., dissenting
under 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 sub-
ject . . . to those remedies traditionally available in suits for
breach of contract.” Ibid. Thus, the basic question here is
whether damages for emotional suffering were “traditionally
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 beneft
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, Com-
ment a, at 112; see also 3 E. Farnsworth, Contracts § 12.8,
p. 188 (2d ed. 1998) (Farnsworth) (“The basic principle for
the measurement of those damages is that of compensation
based on the injured party's expectation”); 3 S. Williston,
Law of Contracts § 1338, p. 2392 (1920) (Williston) (“[T]he
general purpose of the law is, and should be, to give compen-
sation:—that is, to put the plaintiff in as good a position as
he would have been in had the defendant kept his contract”).
This simple principle helps explain why compensatory
damages are generally available as remedies and punitive
damages are not. By definition, compensatory damages
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serve contract law's “general purpose,” namely, to “give com-
pensati
on.” Ibid. But punitive damages go beyond “com-
pensat[ing] the injured party for lost expectation” and in-
stead “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 avail-
able. Most contracts are commercial contracts entered for
pecuniary gain. Pecuniary remedies are therefore typically
suffcient 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 be-
fore the courts are commercial contracts. The pecuniary in-
terest is dominant”); 1 J. Sutherland, Law of Damages 156
(1883) (Sutherland) (“In actions upon contract, the losses sus-
tained do not, by reason of the nature of the transactions
which they involve, embrace, ordinarily, any other than pecu-
niary elements”); Farnsworth § 12.17, at 894–895 (1982)
(“[T]he real basis of this rule is that [recovery for emotional
distress] is likely to result in disproportionate compensa-
tion”); 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. Contract
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 distress
“where other than pecuniary benefts [were] contracted for”
or where the breach “was particularly likely to result in seri-
ous emotional disturbance.” 3 Williston § 1340, at 2396; Far-
nsworth § 12.17, at 895; see also, e. g., Restatement (Second)
of Contracts § 353, at 149 (“Recovery for emotional disturb-
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Breyer, J., dissenting
ance” was allowed where “the contract or the breach is of
such
a kind that serious emotional disturbance was a particu-
larly likely result”); 1 Sutherland 157–158 (damages should
be “appropriate to the objects of the contract”); 1 T. Sedg-
wick, Measure of Damages § 45, p. 61 (8th ed. 1891) (Sedg-
wick) (“ `Where other than pecuniary benefts are contracted
for, other than pecuniary standards will be applied to the
ascertainment of damages fowing 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; con-
tracts by common carriers, innkeepers, or places of public
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 deliv-
ery of a sensitive telegram message, see, e. g., id., at 62, and
n. b; and more. In these cases, emotional distress damages
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, national origin, sex, age, or disability is particularly
likely to cause serious emotional harm. Often, emotional in-
jury is the primary (sometimes the only) harm caused by
discrimination, with pecuniary injury at most secondary.
Consider, for example, the plaintiff in Franklin—a high
school student who was repeatedly sexually assaulted by her
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 fights of stairs. Id., at 513–514. Or the

236 CUMMINGS
v. PREMIER REHAB KELLER
Breyer, J., dissenting
many historical examples of racial segregation in which
Black
patrons were made to use separate facilities or serv-
ices. Regardless of whether fnancial injuries were present
in these cases, the major (and foreseeable) harm was the
emotional distress caused by the indignity and humiliation
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 continues.' ”
Id., at 292 (quoting S. Rep. No. 872, 88th Cong., 2d Sess.,
16 (1964)).
It is diffcult to believe that prospective funding recipients
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 un-
aware that, were an analogous contractual breach at issue,
they could be held legally liable for causing suffering of that
kind. The contract rule allowing emotional distress dam-
ages under such circumstances is neither obscure nor unset-
tled, as the Court claims. Ante, at 222–223, 225–227. To
the contrary, it is clearly laid out in the Restatement (Sec-
ond) of Contracts: “Recovery for emotional disturbance will
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Breyer, J., dissenting
be excluded unless the breach also caused bodily harm or the
co
ntract 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., Farnsworth § 12.17, at 895; 1 Sedgwick
§ 45, at 62; 16 J. Murray & T. Murrary, Corbin on Contracts
§ AG–59.01, p. 855 (2017) (“Emotional damages arising from
racial or other forms of discrimination are clearly foresee-
able. 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 suffciently clear to
put prospective funding recipients on notice that intentional
discrimination can expose them to potential liability for emo-
tional suffering.
IV
In concluding otherwise, the Court invokes our decision in
Barnes. In Barnes, we reaffrmed that funding recipients
could be held liable for compensatory damages because com-
pensatory damages are a “for[m] of relief traditionally avail-
able in suits for breach of contract.” 536 U. S., at 187. But,
we held, they are not liable for punitive damages because
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 gov-
ern specifc circumstances. Ante, at 225. How does the
Court derive that restrictive approach from Barnes, which
did not purport to announce such a limitation? Because, the
Court says, punitive damages were sometimes available in
suits for breach of contract where the breach was “ `also a
tort for which punitive damages are recoverable.' ” Ante, at
224 (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
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Breyer, J., dissenting
on this exception to hold that punitive damages were avail-
able
. Ante, at 223–224. 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 “ `fne-grained' ” to put federal funding
recipients on notice of their potential exposure to liability.
Ante, at 223 (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 prin-
ciples at all, but rather, on tort law. The Restatement clari-
fies that, when contrac t and tor t clai ms may over lap,
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 Il-
lustrations in which the “right to recover punitive damages
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
distress damages to tort rather than contract law. See Re-
statement (Second) of Contracts § 353, at 149; see also Mc-
Cormick § 145, at 593–594 (“Sometimes reliance is placed
upon accompanying tortious conduct such as assault or defa-
mation . . . but not always, nor do these elements seem essen-

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as: 596 U. S. 212 (2022)
239
Breyer, J., dissenting
tial” (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 expulsion”).
That makes sense because, unlike punitive damages, emo-
tional distress damages can, and do, serve contract law's cen-
tral purpose of compensating the injured party for their ex-
pected losses, at least where the contract secured primarily
nonpecuniary benefts and contemplated primarily nonpecu-
niary injuries. As I said above, in such cases, emotional dis-
tress damages are a form of compensatory 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 fund-
ing recipients would be aware that intentional invidious dis-
crimination is particularly likely to cause emotional suffer-
ing. 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 benefts [were] con-
tracted for” or where the breach “was particularly likely to
result in serious emotional disturbance.” 3 Williston § 1340,
at 2396; Far nswor th § 12.17, at 895; supra, at 234 – 235.
Nothing in our opinion in Barnes requires us to ignore these
“ `directly applicable' ” contract rules in favor of the less ap-
plicable, “general” rule on which the Court relies. Ante, at
223 (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
can be available for violations of statutes that prohibit inten-
tional discrimination.
V
Finally, we might recall why we look to contract rules at
all. The contract-law analogy is a tool for answering the
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240 CUMMINGS
v. PREMIER REHAB KELLER
Breyer, J., dissenting
ultimate question whether federal funding recipients can
appropr
iately 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 provided
an express cause of action, permit recovery of compensatory
damages for emotional distress. See 42 U. S. C. § 1981a(b)(3)
(expressly providing for compensatory damages, including
damages for “emotional pain, suffering,” and “mental an-
guish” under Title VII of the Civil Rights Act); Memphis
Community School Dist., 477 U. S., at 307 (allowing recov-
ery under Rev. Stat. § 1979, 42 U. S. C. § 1983, of compensa-
tory damages for “ `personal humiliation, and mental anguish
and suffering ' ”). Employees who suffer discrimination at
the hands of their employers can recover damages for emo-
tional suffering, as can individuals who suffer discrimination
at the hands of state offcials. But, until Congress acts to
fx this inequity, the Court's decision today means that those
same remedies will be denied to students who suffer discrim-
ination at the hands of their teachers, patients who suffer
discrimination at the hands of their doctors, and others.
It is diffcult to square the Court's holding with the basic
purposes that antidiscrimination laws seek to serve. One
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
today allows victims of discrimination to recover damages
only if they can prove that they have suffered economic
harm, even though the primary harm inficted by discrimina-
tion is rarely economic. Indeed, victims of intentional dis-
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as: 596 U. S. 212 (2022)
241
Breyer, J., dissenting
crimination may sometimes suffer profound emotional injury
w
ithout any attendant pecuniary harms. See, e. g., Frank-
lin, 503 U. S., at 63–64, 76. The Court's decision today will
leave those victims with no remedy at all.
***
For all of these reasons, I respectfully dissent.
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Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
None