Timothy Konsowski
Mercer v. Duke University
The case of Mercer v. Duke University deals with the issue of women being allowed to
play on contact sports teams. This case also raises issues of discrimination and whether or not
federally funded institutions are prohibited from discrimination under Title IX. This is a very
good case because it deals with a high-profile university and whether or not discrimination was
an issue with one of the university’s college athletics.
The Mercer v. Duke University case was about a student named Heather Mercer who
attended Duke University and tried out for the Duke Football team as a walk-on placekicker in
the fall of 1994. Mercer was an all-state kicker at her former high school Yorktown Heights and
she was the only woman to try out for the Duke Football team at the time. Mercer failed to make
the team, but she served as a manager of the football team during the 1994 season. The activities
Mercer did other than manage were attending the practices during the 1994 fall and participate in
conditioning drills in the spring of 2005. The highlight of Mercers college career was when she
was nominated to play in an intrasquad scrimmage game, where she ended up kicking the game
winning field goal. A little time after the game, Goldsmith who was the Duke Football coach
told the media that Mercer had made the Duke Football team. The kicking coach of Duke also
told Mercer herself that she had made the team. The following year during the 1995 season,
Mercer did not participate in any games and again just participated in practice and conditioning
drills in the spring; however she was listed on the football teams’ roster. During the spring and
summer time, Mercer alleged that she was subject to discriminatory treatment by Duke
University. Mercer stated how Coach Goldsmith, “did not permit her to attend summer camps,
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.” (Mercer v. Duke University
). Mercer also claimed that Goldsmith made offensive comments towards her such as why she
was interested in football and why she didn’t want to “participate in beauty pageants rather than
football and sit in the stands with her boyfriend rather than the sidelines. (Mercer v. Duke
University ). At the start of the 1996 season, Mercer was informed by Goldsmith that she was no
longer going to be on the football team and that she could try out for the team in the fall of the
following year. When the 1997 season came around, instead of trying out for the team, Mercer
filed a suit against Duke and Goldsmith.
The suit alleged sex discrimination in violation of Title IX of the Education Amendment
of 1972, (20 U.S.C. Sec. 1681-1688), and negligent misrepresentation and breach of contract in
violation of North Carolina law. Title IX states, “No person in the United States 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 Federal financial
assistance….” (Breaux, Breaux and Brooks). Congress also gave the Department of Health,
Education, and Welfare (HEW) with responsibility for developing regulations in regards to how
Title IX should be applied to athletic programs. Both Duke and Goldsmith filed a motion to
dismiss for failure to state a claim under Title IX. The district court granted the motion to
dismiss for failure to state a claim under Title IX on November 9, 1998. The district court also
denied Mercer’s motion to alter judgment and Mercer went on the appeal the district court’s
ruling.
The appeal was sent to the U.S. Fourth Circuit Court of Appeals. Mercer was the
appellant and Duke and Goldsmith were the appellees. Duke and Goldsmith argued that because
football was a contact sport, it was therefore excluded from Title IX coverage. Duke and
Goldsmith said that under 34 CFR Sec. 106.41. Athletics, subsection (b) stated that:
Where a recipient operates or sponsors a team in a particular sport for members of
one sex but operates or sponsors no such team for members of the other sex, and
athletic opportunities for members of that sex have previously been limited,
members of the excluded sex must be allowed to try out for the team offered
unless the sport involved is a contact sport (Breaux, Breaux and Brooks).
Football was a listed as a contact sport, but the appeals court disagreed with Goldsmith’s and
Duke’s attempt to appeal under the 34 CFR Sec. 106.41 (b) regulation. The reason why the court
disagreed was because the appellees acknowledged that the athletic opportunities for women at
Duke have been limited. The court also found that subsection (a) was met as well. Subsection (a)
under the 34 CFR Sec. 106.41 regulation stated that:
No person shall, on the basis of sex, be excluded from participation in, be denied
the benefits of, be treated differently from another person, or otherwise be
discriminated against in any interscholastic, intercollegiate, club or intramural
athletics offered by a recipient, and no recipient shall provide any such athletics
separately on such basis (Breaux, Breaux and Brooks).
The reason why subsection (a) was met was because the football team operated as a team for
only one sex and not as a separate team for members of another sex. The court was leaning more
towards the appellants’ side, but then thought of subsection (a) would require Duke to integrate
all of their sports teams. The courts found that the HEW provided an exception to the rule of
subsection (a) by allowing federally funded institutions to operate separate teams for men and
women rather than integrating the two. This would make sense because if all sports were to be
integrated, then the universities athletics would have been drastically altered.
The main break in the case was when the court analyzed subsection (b) more. The court
acknowledged that if a university chose not to allow members of the opposite sex to try out for a
single-sex contact-sports team, then the court respected the universities decision to do so;
however, subsection (b) was found not to be applicable once a member of the opposite sex was
allowed to try out for a team. Also, once a member of the opposite sex makes the team, they
must be treated equally. In the case of Mercer v. Duke University, Mercer was discriminated
once she was on the football team on the basis of her sex. Mercer therefore stated a claim which
in the end was under Title IX. The appeals court ruled in favor of the appellee and reversed the
district court’s ruling for failure to state a claim. The case ended up being remanded for further
proceedings on July 12, 1999.
Once the case was remanded and sent back to the trial courts, it was decided in October
of 2000. Mercer ended up being awarded a $2 million suit in punitive damages (Mock). The jury
at the trial court found that Mercer was discriminated because of her sex. This violated Title IX,
which prohibited gender discrimination. The biggest factor in this case was subsection (b) under
34 CFR Sec. 106.41 Athletics. With subsection (b) no longer being applied once Mercer was
allowed to try out for the football team, Duke did not have the evidence to prove that she did not
try out for the team. Mercer played in the intrasquad scrimmage and made the team after that
game. Mercer was also asked to participate in interviews with the newspaper, radio, and
television after making the team. These actions by Duke and the listing of Mercer on the team’s
roster also verified that she was on the football team. Once she was on the team she was
discriminated because of her sex and that was a key violation of Title IX. If Duke did not allow
her to try out for the football team, the courts would have found that to be alright because the
sport being tried out for was a contact-sport, but the key factor was that Mercer was
discriminated after she was on the football team. At this point, Mercer had to be treated the same
as every other person on that team whether or not they were a man or woman. Mercer was given
fewer opportunities than other walk-on kickers who were men. This is led the court to believe
that Mercer was discriminated because she was a woman. Subsection (b) was still the leading
factor in the case because it stated that, “athletic opportunities for members of that sex have
previously been limited,” and Duke acknowledge that they limited the opportunities of female
athletes. While Duke claimed to have operated the football team for both men and women, they
failed to provide another team and it was determined that Duke was operating its team for only
men.
The whole case was a fight for equal rights of women athletes everywhere. It was a great
victory for Mercer and women’s athletes because the $2 million suit went to establish a
scholarship for female placekickers (Mock). Women athletes are not usually seen as a frontrunner for contact sports, but they should at least be given an opportunity to try out for a contactsport team. What happened to Mercer at Duke was not fair and was discrimination. If what
Goldsmith said was true about how she should be participating in beauty pageants, then I’m sure
the courts would have easily found out that Mercer was discriminated without having to look
into subsections (a)-(b). If a player does not have the skills to be on a contact-sports team, then
that is fine, but they should be given the same equal opportunity as everyone else.
Works Cited
Breaux, Phil, Paul Breaux and Aaron Brooks. Introduction to Sports Law & Business. Reno: Bent Tree
Press, 2009.
Mercer v. Duke University . No. No. 99-1014. U.S. 4th Circuit Court of Appeals. 10 June 1999.
Mock, Geoffrey. Duke Today. 20 October 2000. 1 November 2011
<http://today.duke.edu/2000/10/heathersueo20.html>.