Article Makes Case for Punitive Damages under Title IX

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).

California Court Says Title IX Standards Apply to State Law Claims for Peer Harassment (but the Plaintiffs Win Anyway)

Section 220 of California's Education Code provides that students shall not be discriminated against on the basis of a number of protected categories, including disability, gender, nationality, race or ethnicity, religion, and sexual orientation. However, it is not clear on the face of this broadly worded statute when a school district violates this provision by failing to protect a student from harassment by his or her peers. That issue was the subject of a recent decision by the California Appeals Court, in a case stemming from the harassment two students were subjected to by their peers at Poway High School on the basis of their sexual orientation.

The plaintiffs argued that they should be able to recover money damages under Section 220 on a theory of respondeat superior, that is, that the school district is vicariously liable for the misconduct of its employees. In this case, that misconduct is various teachers' failures to address numerous reports by the plaintiffs that they were subjected to, among other things, "death threats; being spit on; physical violence and threats of physical violence; vandalism to personal property; and being subject to anti-gay epithets." However, the court disagreed that the respondeat superior standard should apply to claims under Section 220. It cited evidence that the California Legislature intended instead to incorporate the standards of liability for peer harassment that apply to Title IX cases, namely, that the district had actual knowledge of severe and pervasive harassment, and in the face of that knowledge, acted with deliberate indifference. This is a tougher standard for plaintiffs to satisfy.

Therefore, the court concluded, the trial court technically erred when it instructed the jury to decide the case using the respondeat superior standard. But it deemed that error harmless, because the jury also made specific findings to support a conclusion that the district was liable even under the tougher Title IX standard -- namely, that appropriate school officials had actual knowledge of the harassment that was going on and failed to respond. The jury also characterized the harassment as "severe and pervasive." Moreover, deemed the court, these findings were supported by substantial evidence presented at the trial.

The court thus sustained the jury award of $175,000 and $125,000 to the two plaintiffs, as well as attorneys fees of over $400,000.

Decision is: Donovan v. Poway Unified School Dist.,2008 WL 4531580 (Cal. App. 4 Dist. October 10, 2008).

District Court Upholds Damages Award in Sexual Harassment Trial

Last August we blogged about a Title IX case against the Hilldale Independent School District in Oklahoma arising from the sexual abuse of the 14-year-old plaintiff by the band director. At that time, we noted that the case had survived the school district's motion for summary judgment and appeared to be headed for trial.

Since that post, the case did go trial. A jury agreed with the plaintiff that the school district did not respond reasonably to information it received that called the band director's conduct into question. It then awarded the plaintiff $150,000 in damages on her Title IX claim. The jury also awarded $150,000 on the plaintiff's claim that the school district subjected her to danger in violation of her constitutionally rights, another $150,000 on her claim that the school district's inaction impaired her constitutional right to bodily integrity (derivative of the right to liberty), and yet another $150,000 on a theory of negligent supervision under state law.

The school district then moved to dismiss or reduce the jury awards, arguing that the plaintiff received "duplicative recoveries by pleading alternative theories for the same relief." The court disagreed, reasoning that while each of the plaintiff's legal theories stems from the same set of fact, the harm alleged under each claim is distinct, and the jury was instructed to devise its award accordingly. Specifically, the court emphasized the the damages covered in the Title IX award is the lost educational benefits, which is different from the harm to plaintiff's personal security and bodily integrity that are protected by the Constitution.

The decision upholding the jury award is: J.M. v. Hilldale Indep. Sch. Dist., 2008 WL 4511872 (E.D. Okla. Oct. 3, 2008).