Heather Sue Mercer-Duke Football case

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Court upholds legal fees in female Duke kicker case AP ^ | March 1, 2005

Posted on 3/3/2005, 10:39:03 PM by ConservativeStatement

RICHMOND, Va. - A federal appeals court on Tuesday awarded $350,000 in attorney's fees to a former Duke University woman football kicker who had won a $2 million judgment from the school and then lost it on appeal.

Heather Sue Mercer in 2000 won $2 million in a sex-discrimination case against the school, claiming she was cut from Duke's football team because she was a woman. Duke argued on appeal that sex discrimination law does not include punitive damages, and in 2002 the 4th U.S. Circuit Court of Appeals agreed, leaving Mercer with just $1 in compensatory damages.

The 4th Circuit sent the case back to district court to determine if Mercer deserved to have her attorney's fees paid. The court granted Mercer the $350,000, and Duke appealed.

On Tuesday, a three-judge panel of the 4th U.S. Circuit Court of Appeals agreed that while Mercer was awarded only $1 in compensatory damages, she was entitled to higher attorney's fees "given the nature of this litigation."

"Mercer's claim was a novel one that established a new rule of law with regard to liability under Title IX," the appeals court wrote. The court said because Duke allowed Mercer on the team, it could not use the single-sex contact-sports exemption, which doesn't require schools to allow men and women to compete together.

"Mercer's case was the first to so hold, and it will serve as guidance for other schools facing the issue," the court wrote.

After former Blue Devil football coach Fred Goldsmith allowed Mercer, a 1998 graduate, to join the football team, she said he would not allow her to dress out for games or practice on a scrimmage team against Duke's first-team players. She also said he once suggested she should be more interested in beauty pageants than football.

Case Name: Mercer v. Duke University

Case Cite: 190 F.3d 643, 138 Ed. Law Rep. 113 (4th Cir. 1999)

In 1997, Heather Sue Mercer sued Duke University for discrimination after her dismissal from Duke's intercollegiate football program. Mercer had been an all-state placekicker at Yorktown Heights High School in Yorktown Heights, New York. From 1994 though 1995, she participated in Duke's football program as a manager. Mercer challenged the federal district court's earlier decision holding that Title IX provides a blanket exemption for contact sports and the court's consequent dismissal of her claim that Duke University discriminated against her.


In the fall of 1994 Mercer tried out for the Duke Football team as a walk-on placekicker. Mercer was the first female to try out for Duke’s football team. Mercer didn’t make the team, but instead took a manager position on the team. While she was on the team she did many of the conditioning drills routinely performed by football kickers.[1]

Mercer claims that the coach Fred Goldsmith made offensive remarks about her gender. She was cut from the team in 1996, and claimed that the reason she was cut was because of her sex. This is against Duke's rules of athletics, which state: "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."

Court's decision[edit]

The Court found that the regulations of athletics do not apply to contact sports. The Court stated that Duke University prohibited females from trying out for contact sports and that it rested upon the coach’s discretion to allow it. It stated that federally funded institutions have separate teams for men and women in many sports which included the contact sport of football. Mercer lost the case against Duke University.[2][3][4][5] However, she won on appeal.[6][7]


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