Rejecting Punitive Damages in Title IX Cases, Appeals Court Overturns $2-Million Award to Female Kicker

By LINDSAY BOSSLETT

A federal appeals court on Friday overturned a $2-million award given two years ago to a female kicker who sued Duke University after she was cut from its football team. The U.S. Court of Appeals for the Fourth Circuit ruled that punitive damages cannot be awarded under a federal law barring sex discrimination.

Heather Sue Mercer, who graduated from Duke in 1998, joined the Blue Devils' football team in 1995 as a walk-on kicker, but never saw any playing time. She was cut from the team before the 1996 season.

Ms. Mercer sued the university and the head football coach at the time, Fred Goldsmith, under Title IX of the Education Amendments of 1972, saying that she had been discriminated against because she was a woman. Ms. Mercer said that she had not been allowed to dress and sit on the bench with the other players and had not been allowed to play in some scrimmages.

A federal jury that originally heard the case in 2000 awarded Ms. Mercer $1 in compensatory damages and $2-million in punitive damages, plus legal costs and fees.

In reconsidering the federal court's ruling, a three-judge panel of the Fourth Circuit appeals court not only vacated the award of punitive damages, but also the payment for legal costs, which it asked the original court to review again.

The appellate court vacated the awards based on a ruling by the U.S. Supreme Court last year in a case known as Barnes v. Gorman. In that case, the court ruled that punitive damages cannot be recovered under the Americans With Disabilities Act or under Title VI of the Civil Rights Act of 1964. Duke argued, and the appeals court agreed, that since Title IX and Title VI operate similarly, the jury was wrong to award punitive damages to Ms. Mercer.

Lawyers for Ms. Mercer had argued to the Fourth Circuit that, given the Supreme Court's ruling in the Barnes case, she deserved a new trial on the availability of compensatory damages. But the Fourth Circuit declared that Ms. Mercer could only have raised those issues by filing her own appeal of the lower court's ruling, and that she had failed to do so.

John F. Burness, senior vice president for public affairs and government relations at Duke, said the university was pleased by the Fourth Circuit's ruling. He said the university "remains committed to aggressively advancing our support for women's athletics through implementation of our Title IX plan."

Burton Craige, Ms. Mercer's lawyer, was not available for comment.

* * *

_________________________________________________________________ Copyright 2002 by The Chronicle of Higher Education