Duke wins appeal in Mercer case

Two years after a federal court jury awarded Heather Sue Mercer $2 million in punitive damages for gender discrimination on Duke's football team, the U.S. Court of Appeals for the Fourth Circuit reversed the ruling Friday and sided with the University.

In the landmark case that began in 1995 when Mercer joined the team as a kicker, the appeals court said that punitive damages are not available in private actions brought to enforce Title IX. Mercer has argued that restrictions on her team activities, after her placement on the inactive roster in fall 1995, constituted Title IX violations.

In its six-page brief, the court cites a 2002 U.S. Supreme Court decision, Barnes v. Gorman, that ruled against the allowance of punitive damages in several other non-discrimination laws, including the Americans with Disabilities Act and the Civil Rights Act of 1964. The judges wrote that they were waiting for the Barnes v. Gorman decision before ruling in their own case, which they heard in October 2001.

Also Friday, the appeals court rejected Duke's appeal of the $1 in compensation that the jury also awarded to Mercer, Trinity '98, in October 2000. Duke attorneys had argued the amount was too small to support an award of attorney's fees, but the judges ruled that, considering their ruling against punitive damages, the lower court should reconsider the compensatory award.

The appeals court ruling reverses a decision that drew national attention two years ago to questions of the enforcement of Title IX, created in part to ensure equality in collegiate athletics.

"We are pleased by the unanimous decision of the three-judge panel of the U.S. Fourth Circuit to throw out the $2 million in punitive damages awarded in the Mercer case," John Burness, Duke's senior vice president for public affairs and government relations, said in a statement released Friday afternoon. "Duke University remains committed to aggressively advancing our support for women's athletics through implementation of our Title IX plan."

Burton Craige, Mercer's attorney, said he was not surprised by the ruling because of the Supreme Court's decision in Barnes v. Gorman, after which both he and Duke's attorneys filed supplementary briefs. He added that, because Duke did not appeal the October 2000 decision based on its liability, the case remains a victory for Mercer.

"This decision in no way diminishes Heather Sue's victory at trial," Craige said. "This jury heard all the evidence and ruled that Duke discriminated against her based on her sex, and that senior Duke administrators knew of the discrimination and responded with deliberate indifference."