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15 HLRe: Off Rec. 1 (2024-2025)

handle is hein.journals/hlreoffrec15 and id is 1 raw text is: ARTICLE UNDERMINING CUMMINGS Dr. Derek Warden* ABSTRACT This article is the last in a trilogy of articles I have published about damages actions under Title II of the Americans with Disabilities Act and § 504 of the Rehabilitation Act of 1973. The first two dealt with the standard plaintiffs needed to show to obtain money damages. This article was originally meant to argue that emotional distress damages are available under those laws. However, in Cummings v. Premier Rehab, Keller Texas, the United States Supreme Court applied contract law principles and ruled that emotional distress damages were not recoverable under § 504 of the Rehabilitation Act of 1973. Some have argued that this also means emotional distress damages are not available under Title II of the Americans with Disabilities Act. This article shows that Cummings was wrongly decided and that any attempt to limit ADA Title II based on Cummings is likewise mistaken. Most importantly, the Supreme Court, in Cummings, applied abstract contract law principles to § 504. However, a review of the statute shows that it incorporates emotional distress damages as one remedy for violations of § 504, though they are limited by the size of the defendant. This incorporation is found in a clause not mentioned by the Supreme Court's opinion. Therefore, lower courts may feel free to apply emotional distress damages under this second damages clause, without needing Cummings to be overruled. Part I discusses the important history of disability rights. Part II discusses the Cummings opinion. Part III explains why Cummings *J.D., G.D.C.L., LL.M., S.J.D. Career law clerk to Justice Piper D. Griffin of the Louisiana Supreme Court. The views expressed herein are my own.

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