A Chicago federal judge has become the first to rule that trial lawyers and their plaintiffs can use an Illinois state law to work around a U.S. Supreme Court ruling that had significantly reduced the amount of money they could demand under civil rights lawsuits, specifically when suing schools for alleged violations of Title IX.
On April 11, U.S. District Judge Marvin E. Aspen, delivered a key win to plaintiff Erika Pogorzelska in her lawsuit against the VanderCook College of Music, a small school in Chicago that specializes in training music teachers, for allegedly mishandling an investigation into her claims of sexual assault at the hands of a male classmate.
In the ruling, Aspen specifically declared that the new Illinois law, known as the Civil Rights Remedies Restoration Act (CRRRA), should allow Pogorzelska and other similar plaintiffs to demand schools and other institutions which receive federal funding under Title IX pay damages for emotional distress. And the judge said those demands can be applied retroactively, to lawsuits filed before the law took effect, even though the law doesn't specifically say they should.
Jeffrey R. Kulwin
| kmklawllp.com
The ruling stands as a potentially major turning point for such lawsuits since the U.S. Supreme Court in 2022 declared Title IX and similar federal laws, which lash federal funding to anti-discrimination rules, don't actually allow plaintiffs to demand such emotional distress damages.
In the decision known as Cummings v Premier Rehab Keller, the high court ruled that anti-discrimination laws enacted under the so-called "Spending Clause" of the Constitution behave more like contracts. Under contract law, parties suing for breach of contract typically can't sue for non-economic damages, like emotional distress, which they may claim were caused by violations of the contract.
The Cummings decision dealt directly with violations of different federal laws, related to funding provided to health care providers. But the Cummings decision has since been held to apply to Title IX claims, as well.
The decision notably served to greatly reduce the pot of money available to plaintiffs and their lawyers in cases accusing schools and health care providers, particularly, of discrimination and other civil rights violations under Title IX and similar laws. Prior to the Cummings decision, such emotional distress damages claims were almost perfunctory additions to any such civil rights claims. And damages awarded for emotional distress typically for decades accounted for a significant portion of the total amount paid to plaintiffs for Title IX violations and similar claims.
In the wake of that decision, the Democratic supermajority in the Illinois General Assembly, at the urging of trial lawyers, moved rapidly to restore the ability of trial lawyers and their plaintiffs to demand such lucrative damages. In Illinois, trial lawyers regularly serve as some of the most generous and loyal campaign donors to the state's Democratic Party and Democratic legislative leaders, who control significant campaign war chests used to benefit Democratic allies.
In January 2024, the CRRRA took effect. Supporters of the law - and the text of the law itself - indicated it was passed specifically to respond to the Cummings decision. The law notes such damages had been available for decades to plaintiffs, but that those "rights" to demand such damages had been "unjustly limited" by the U.S. Supreme Court.
The law, however, does not specifically state that the law should apply retroactively to lawsuits, like Pogorzelska's, which were filed before the CRRRA took effect.
Pogorzelska had filed suit in 2019, claiming the VanderCook school had rushed and botched its investigation into her claims of sexual assault against a male student.
According to the complaint, she had attended a party in August 2017, when she was a sophomore at the school of about 100 students. According to the complaint, at the party she allegedly became intoxicated and fell asleep. While she was unconscious, she claims a male student sexually assaulted her.
She reported the sexual assault to Chicago Police four days later and received medical attention, according to the complaint. The complaint does not state if the male student was ever criminally charged in connection with the alleged assault.
According to the complaint, she then reported the alleged rape to VanderCook administrators a day later, allegedly at the guidance of a sexual violence counseling agency.
However, according to the complaint, VanderCook opened and closed the investigation in two days, concluding "for unknown and unstated reasons, that 'there was not a preponderance of the evidence against" the male student. The plaintiff said the conclusion amounted to a finding of "guilty but not guilty," purportedly centered on questions surrounding consent for the sexual contact at the party. Administrators did impose "some educational and disciplinary sanctions" against the male student.
According to the complaint, VanderCook did not hold a formal Title IX hearing.
According to the complaint, Pogorzelska allegedly "suffered tremendous mental anguish while still at the school and attended therapy to help her cope with the stress, anxiety and panic attacks," as well as "incapacitating circumstances consisting of depression, anxiety, stress, difficulty sleeping, panic attacks, flashbacks (of the sexual assault), difficulty focusing and PTSD," particularly from the school's alleged failure to prevent her from coming into contact with her alleged attacked on the small school campus.
According to the complaint, she ultimately transferred to a different school in December 2017, but in the process lost a $7,500 grant and many credits did not transfer, allegedly causing her to attend school for an additional year.
She filed suit about two years later, accusing VanderCook of violating her rights under Title IX, among other allegations.
Following passage of the CRRRA, her complaint was amended to included a count under the CRRRA, to allow her to seek damages for emotional distress.
VanderCook moved to dismiss that count, claiming the law should not be read to apply to this lawsuit and others filed before the CRRRA took effect. VanderCook noted the law doesn't specifically say it should be applied in such a way.
Pogorzelska's attorney, Jeffrey Kulwin, however, said that was obviously the intent of Illinois state lawmakers, given their inclusion of language noting the longstanding ability of plaintiffs to demand such emotional distress damages under the pre-Cummings understanding of Title IX lawsuits.
While saying he didn't share Kulwin's assertion that the retroactive intent of lawmakers is self-evident, Judge Aspen said he believed the CRRRA still should apply retroactively.
In his ruling, Aspen said he believed the law amounted to a "procedural" change in law, not a "substantive" one.
VanderCook claimed the law "substantively .... restor[es] a right to emotional distress damages going forward while conceding it is a right that, after Cummings, was not available."
But Aspen said the law merely addressed the question of damages, and did not create an additional right around which plaintiffs could build lawsuits. Under Illinois law, Aspen said, such changes to damages are considered "procedural," because they only expand the ability of plaintiffs to collect money from defendants for violations they claim already occurred under the law.
While substantive changes to law cannot be applied retroactively, unless lawmakers specifically say so, Aspen noted that "procedural" changes can.
"The secition of the CRRRA in which the Illinois legislature set out its findings indicates that the legislature intended to reestablish 'the full range of remedies once available' for violations of Spending Clause antidiscrimination statutes," Aspen wrote.
"As Plaintiff points out, liability under the CRRRA is derivative of liability under Title IX and similar statutes, and the CRRRA merely expands available remedies without affecting the accrual of a claim under those statutes."
In an emailed statement, Kulwin said the decision should serve as a legal landmark.
"Today, the significance of Illinois Civil Rights Remedies Restoration Act was confirmed," Kulwin said. "The court ruled that the law applies retroactively to the student's claim. This not only revives her right to seek emotional distress damages at trial but also sets a precedent for pending and future cases in Illinois.
"It sends a clear message: Illinois state law protects and restores the civil rights that were undermined by the Cummings decision."
An attorney for VanderCook did not reply to a request from The Cook County Record for reaction to the ruling.
It is not known if VanderCook may appeal the ruling.
The plaintiff is represented by attorneys Jeffrey R. Kulwin and Rachel A. Katz, of the firm of Kulwin Masciopinto & Kulwin, of Chicago.
VanderCook has been represented by attorneys Caleb J. Halberg and Harry N. Arger, of the firm of Dykema Gossett, of Chicago.