The Los Angeles Community College District (LACCD) failed to provide blind students equal educational opportunities by relying on technology, in and out of the classroom, that blind students could not access. Two blind students and two organizations of blind individuals sued the LACCD under Title II of the Americans with Disabilities Act, which prohibits discrimination against disabled people by state and local entities. A jury found in favor of the plaintiffs and awarded them damages, but the LACCD argued that the jury’s damage award should be reduced. According to the LACCD, the Supreme Court’s decision in Cummings v. Premier Rehab Keller, P.L.L.C., which held that emotional distress damages are not available under Section 504 of the Rehabilitation Act or Section 1557 of the Affordable Care Act, also precludes general damages in claims under Title II of the ADA. The district court remitted the jury’s award of damages and declined to grant a new trial. Plaintiffs are arguing in the Ninth Circuit that “lost educational opportunities” are compensable in Title II cases, even if Cummings applies. Our brief in support of Plaintiffs explains why these lost educational opportunities are indeed compensable. 

First, while the Court held in Cummings that emotional distress damages were unavailable in claims arising under the Spending Clause statutes it considered, it did not in any way limit plaintiffs’ ability to seek other types of damages. To the contrary, it made clear that victims of discrimination can claim “those remedies traditionally available in suits for breach of contract.”  

Second, all foreseeable damages caused by the defendant’s breach, including consequential damages, are traditionally available in breach-of-contract actions. Contract law authorities place consequential damages on a completely different footing than the emotional distress damages that the Supreme Court concluded were unavailable in Cummings. Unlike emotional distress damages, which are not available in contractual actions unless certain circumstances apply, compensation for all consequential harm—including lost opportunities—is typically available, so long as those harms could have reasonably been contemplated by the parties when the contract was formed. 

Finally, for centuries, courts have awarded damages for lost opportunities caused by a defendant’s breach of contract. Today, treatises continue to make clear that there is no rule of contract law prohibiting recovery for lost profits. Similarly, contracts law authorities explain that individual plaintiffs can be compensated for the loss of “identifiable professional opportunities” or even a chance to participate in a contest if those losses foreseeably resulted from the defendant’s breach. These fundamental contract law principles apply to contracts for education just as they do to any other type of contract.