A student note in the University of Pittsburgh Law Review argues that Title IX punitive damages should be available to plaintiffs seeking relief from school districts that have discriminated on the basis of sex in their allocation of athletic opportunities and resources. Author Katina Pohlman explains that school districts -- for example, those in her native Western Pennsylvania -- have gross disparities in athletic opportunities for boys and girls, suggesting that private enforcement efforts must be strengthened to motivate schools toward gender equity.
Moreover, she argues, the courts have erred in construing punitive damages to be unavailable. In Franklin v. Gwinnett County Public School System, the Supreme Court acknowledged that Congress, in passing Title IX, made "all appropriate remedies" available to plaintiffs since it did not specify otherwise -- a statement of ostensible support for punitive damages as well. However, a subsequent Supreme Court decision, Barnes v. Gorman, cast doubt on that inference when it ruled that punitive damages were not available under various other civil rights statutes that were passed pursuant to Congress's Spending Clause authority. The Barnes Court refused to assume that entities that accept federal funding subject to Congress's conditions (such as a nondiscrimination mandate) has expressly bargained for possible punitive liability. Other courts, most notably the 4th Circuit in Mercer v. Duke University, have applied the reasoning in Barnes to Title IX cases because it too is a Spending Clause statute. However, Pohlman argues, there is good reasons to treat Title IX cases differently, particularly in the athletics context. A bar on punitive damages should not be inferred because punitive damages are integral to enforcement. Participating in athletics does not have economic value (except for athletes with scholarships) so courts are unlikely to assign high compensatory damages to remedy disparities in opportunity. Injunctive relief is also particularly ineffective in the Title IX context, because plaintiffs are likely to be students, whose cases become moot when they graduate. Finally, administrative remedies available under Title IX, i.e., withdrawal of federal funding, is not an effective deterrent against discrimination because this remedy is only threatened, never invoked. Pohlman argues that these enforcement challenges are unique to Title IX, the only civil rights statute that is particularly focused on education, so courts should be leery about applying Barnes's foreclosure of punitive damages under other civil rights statute to foreclose punitive damages under Title IX.
Citation: Katrina Pohlman, Have We Forgotten K-12? The Need for Punitive Damages to Improve Title IX Enforcement, 71 U. Pitt. L. Rev. 167 (2009).