Institutions Not Subject to Punitive Damages Under Title IX
April 8, 2003
Educational institutions are not subject to liability for
punitive damages for private actions brought to enforce Title IX, the U.S. Court
of Appeals for the Fourth Circuit has held in vacating a $2 million punitive
damages award to former Duke University place kicker Heather Sue Mercer.
Mercer
v. Duke University, 50 Fed. Appx. 643, 171 Ed. Law Rep. 45 (4th Cir. 2002), is a
significant decision that serves to substantially limit the damages liability of
institutions for Title IX violations.
Background
Mercer was an all-state kicker at a New York high school.
She enrolled at Duke in the fall of 1994 and subsequently tried out for the
football team. She didn’t make the team at first, but regularly attended
practice that fall and the following spring participated in conditioning
drills.
In April 1995, the seniors on the team selected Mercer to
participate in the Blue-White Game, an intrasquad scrimmage played each spring.
In that game, Mercer kicked the winning 28-yard field goal for the Blue team.
The kick was subsequently shown on ESPN, and soon after the game, Head Coach
Fred Goldsmith told the news media that Mercer was on the Duke football team,
and the Duke kicking coach told Mercer herself that she had made the team. As a
result of the attention, Mercer participated in many interviews with various
media reporters at the request of the university’s sports information director.
Although Mercer did not play in any games during the 1995
season, she again regularly attended practices in the fall and participated in
conditioning drills the following spring. Mercer was also officially listed by
Duke as a member of the Duke football team on the team roster filed with the
NCAA and was pictured in the Duke football yearbook.
During this latter period, Mercer alleged that she was the
subject of discriminatory treatment by Duke. Specifically, she claimed that
Goldsmith did not permit her to attend summer camp, refused to allow her to
dress for games or sit on the sidelines during games, and gave her fewer
opportunities to participate in practices than other walk-on kickers. In
addition, Mercer claimed that Goldsmith made a number of offensive comments to
her, including asking her why she was interested in football, wondering why she
did not prefer to participate in beauty pageants rather than football, and
suggesting that she sit in the stands with her boyfriend rather than on the
sidelines.
At the beginning of the 1996 season, Goldsmith informed
Mercer that he was dropping her from the team. Mercer alleged that Goldsmith’s
decision to exclude her from the team was on the basis of her sex because
Goldsmith allowed other, less-qualified, male, walk-on kickers to remain on the
team. Mercer attempted to participate in conditioning drills the following
spring, but Goldsmith asked her to leave because the drills were only for
members of the team. Goldsmith told Mercer, however, that she could try out for
the team again in the fall. Rather than try our for the team again, Mercer
filed suit against Duke and Goldsmith, alleging sex discrimination in violation
of Title IX and other claims.
Title IX provides that no person “shall, on the basis of
sex, be excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any education program or activity receiving
[f]ederal financial assistance ….” Regulations permit institutions to bar women
from trying out for men’s teams, however, where the sport involved is a “contact
sport,” such as boxing, wrestling, ice hockey, football and basketball. Relying
on the foregoing regulation, the trial court dismissed Mercer’s Title IX claim,
holding that “contact sports, such as football, are specifically excluded from
Title IX coverage.” The Fourth Circuit reversed the dismissal and remanded
Mercer’s case for trial, concluding that while Title IX does not require
institutions to allow members of one sex to try out for a team operated by the
institution for the other sex in a contact sport, once the institution has
allowed a member of the other sex to try out for a contact sport, Title IX’s
antidiscrimination provisions apply.
The Verdict and Appeal
In the fall of 2000 a federal court jury concluded that
Duke violated Title IX and awarded Mercer $1 in compensatory damages and $2
million in punitive damages. Duke also was required to pay Mercer’s attorney
fees and costs. Duke appealed to the Fourth Circuit, arguing that the punitive
damages award should be reversed, contending that such damages are not available
as relief in a private lawsuit alleging violations of Title IX.
After the Circuit Court heard the parties’ arguments on
appeal, it decided to postpone making a decision until the U.S. Supreme Court
decided Barnes v. Gorman, 122 S.Ct. 2097 (2002), a case involving whether
punitive damages are available to private parties who bring a lawsuit against a
public entity under the Americans with Disabilities Act and the Rehabilitation
Act, two federal antidiscrimination laws. Once the Supreme Court concluded that
punitive damages were not available in such situations, the Fourth Circuit
decided the Mercer case.
The Fourth Circuit’s Decision
Applying the reasoning used by the Supreme Court in Barnes,
the Fourth Circuit concluded that Mercer was not entitled to punitive damages
under Title IX. In Barnes, the conclusion that punitive damages are not
available in private ADA and Rehabilitation Act suits was based on the fact that
those statutes have similar remedies to those available under Title VI of the
Civil Rights Act of 1964. Because Title IX is similar to Title VI, the Fourth
Circuit concluded that punitive damages were also barred in private suits
brought under Title IX. As a result, the court vacated the jury’s award of $2
million in punitive damages to Mercer. The court also remanded the issue of
attorney’s fees and costs to the district court for reconsideration in light of
its decision.
Significance of Mercer Decision
The Mercer decision could serve to limit substantially the
liability for money damages faced by institutions that violate Title IX. Prior
to Mercer courts had generally recognized that punitive damages were available
to private litigants bringing suit to enforce Title IX’s antidiscrimination
provisions. It remains to be seen, however, whether juries will resort to
rendering larger compensatory damage awards as a substitute for punitive
damages.
Indeed, Mercer had argued on appeal that she should be
allowed a new trial on compensatory damages in light of the appellate court’s
decision to vacate the punitive damage award. She contended that the jury could
have improperly intermingled the awards in reaching its verdict of $1 in
compensatory and $2 million in punitive damages. The Fourth Circuit held that
Mercer had waived her argument by failing to file a cross-appeal and, therefore,
rejected her bid for a new trial on compensatory damages.
For more information, call Cynthia Brennan Ryan, toll free, at
1-888-688-8500.
Related Practices