Lance Anderson
EDUC 674
May 3, 2000

Heather Sue Mercer was an all-state kicker at Yorktown Heights High School in Yorktown Heights, New York. She enrolled at Duke University in the fall of 1994 and, upon enrolling, tried out for the football team as a walk-on kicker. She initially did not make the team and instead served as a manager for the football team during the 1994 season. In the spring of 1995, she participated in conditioning drills with the football team and was selected by the seniors on the team to participate in the Blue-White Game, an intrasquad scrimmage played each spring. In the game, Mercer kicked a 28-yard game-winning field goal, giving the Blue team a, 24-22, victory. Soon after the game, Duke head football coach Fred Goldsmith told the news media that Mercer was on the Duke football team. Shortly thereafter, assistant football coach Fred Chatham, Duke's kicking coach, personally told Mercer that she had made the team. Mike Cragg, Duke's sports information director, also asked Mercer to participate in a number of interviews with newspaper, radio, and television reporters.

Mercer did not play in any games during the 1995 season, but she regularly attended practices. She was officially listed as a member of the Duke football team on the roster filed with the NCAA and she was pictured in the Duke football yearbook. Despite being officially listed as a member of the team, she was not allowed to dress for games or sit on the sidelines during games. In the spring of 1996, she again participated in conditioning drills with the football team.

It was during this latter period that Mercer alleges that she was subject to discriminatory treatment by Duke. Specifically, she claims that Goldsmith did not permit her to attend summer camp, 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. She also claims that Goldsmith made a number of offensive comments to her, such as wondering why she did not prefer to participate in beauty pageants rather than football and suggesting that she sit in the stands with her boyfriend rather than on the sideline.

At the beginning of the 1996 season, Goldsmith informed Mercer that she had been dropped from the team. Mercer claims that Goldsmith's decision to drop her from the team was based on her sex since Goldsmith allowed other, less-qualified walk-on kickers to remain on the team. She attempted to participate in conditioning drills in the spring of 1997, but Goldsmith asked her to leave and informed her that the drills were only for members of the team. Goldsmith, however, told Mercer that she could try out for the team again in the fall of 1997.

These are the facts of the case as they are presented in the opinion of Heather Sue Mercer v. Duke University and Fred Goldsmith. Having had the opportunity to investigate this case further and having found some additional background information about this case, I feel it is important to go back and review some of the facts of the case.
Heather Sue Mercer was a good, not exceptional, high school kicker. As a senior she made 28 of 31 extra point attempts and 4 of 7 field goals. Her longest field goal was from 33 yards. She was actually named third-team all-state. She was accurate, but her kicks lacked oomph (Bamberger, 1997, p. 100).

Bucknell assistant football coach Greg Willig was a graduate assistant football coach at Duke from 1996-1997. He was at Duke while many of the aforementioned events involving Mercer were taking place. According to Willig, Mercer did participate in some spring conditioning drills, but she did not attend regularly and often sat on the bleachers and watched. The National Collegiate Athletic Association (NCAA) requires that a team's off-season conditioning program be open to all students so Mercer obviously had the right to participate in the conditioning drills. Mercer was the first student from the general student population that wasn't already considered a member of the football team to participate in the spring conditioning drills while Fred Goldsmith was the head coach at Duke. Members of the football team were expected to attend all of the spring conditioning workouts and participate in all drills and exercises. Duke did not have a policy in place regarding the requirements for students from the general student body who wanted to participate in the spring conditioning drills with the football team. Mercer was basically allowed to participate in the spring conditioning drills to the extent that she desired until Goldsmith asked her to leave in the spring of 1997 and refused to allow her to participate any longer.

Heather Sue Mercer's 28-yard game-winning field goal in the spring of 1995 could probably more accurately be described as a "wobbly floater" that barely cleared the uprights (Bamberger, 1997, p. 100). Duke head football coach Fred Goldsmith has been described as being very emotional and easily excited. When Mercer made the game-winning field goal, it has been reported that Goldsmith became very excited and shouted out that she had made the team. All this excitement also prompted Goldsmith to announce to the media that Mercer was on the team. Duke assistant football coach Fred Chatham said, "Fred got carried away after that spring game, he got excited. He should have never said she was on the team. I said, 'Coach, she's not very good.' And Fred said, 'Oh, no. She'll work hard. She'll come around.' He sympathized with her cause. He saw his own two daughters through her. The fact is, she just didn't have the talent to kick at this level, as Fred came to see" (Bamberger, 1997, p.100).

Mercer claims that she was the subject of discriminatory treatment and lists three specific areas of discrimination. First, she claims that Goldsmith did not allow her to attend summer camp. The NCAA allows a Division I-A football team, such as Duke, to bring 90 players to camp. Once school has started or once a team has played their first game, they are allowed to permit as many players as they desire to practice. Just because Mercer was considered a member of the team, doesn't guarantee her a spot in summer camp. It is not uncommon at many schools for some members of the football team to not be allowed to practice until after school starts or until the team plays their first game, whichever comes first. Most schools will also not bring more than two kickers to camp.

Second, she claims that Goldsmith refused to allow her to dress for games or sit on the sidelines during games. It is clear that Mercer was considered to be a member of the football team since she was included on the official roster submitted to the NCAA. While Greg Willig was a Duke during the 1996 and 1997 seasons, all members of the team were allowed to dress for games and sit on the sidelines if they desired. The policy regarding how many players and which players are allowed to dress varies among schools, but it seems reasonable to assume that Duke would have had the same policy during the 1995 season as they had during the 1996 and 1997 seasons. Since Mercer was considered a member of the team, she probably should have been allowed to dress and sit on the sidelines.

Third, she claims that Goldsmith gave her fewer opportunities to participate in practices than other walk-on kickers. During the season, the NCAA allows a football team to practice for 20 hours each week. This 20 hours includes meeting time and weight-lifting. Teams are very limited on the amount of practice time that they have so they don't have a lot of time to devote to the kicking game. The first-team kicker will usually get most of the repetitions in practice with the back-up kicker usually only getting a few opportunities. There just isn't enough time to allow walk-on kickers very many opportunities to participate in practice. Most of a kicker's time in practice is spent working individually or with the other kickers.

Mercer also claims that Goldsmith made a number of offensive comments to her. On one occasion, she alleges that Goldsmith asked her during a phone conversation why she was interested in football and why she didn't participate in beauty pageants instead. Mercer claims that Duke's sports information director Mike Cragg was on the line during part of the conversation and later acknowledged to her that Goldsmith made the remarks. Cragg now denies ever hearing such remarks and calls Mercer's claim a "total lie" (Bamberger, 1997, p. 100). No one can substantiate whether or not any offensive comments were ever made, so it comes down to Mercer's word against Goldsmith's.

Mercer believes she was dropped from the team in the fall of 1996 because of her sex since other, less-qualified walk-on kickers were allowed to remain on the team. At Duke, once it was evident that a walk-on kicker didn't have the talent to kick at that level, they were usually given the option of moving to a different position if they wanted to remain on the team. They would play on the scout team and serve as "human tackling dummies" during practice (Bamberger, 1997, p. 100). Goldsmith didn't want Mercer at 5' 9" and 145 pounds to be a tackling dummy so she was never given the opportunity to move to different position. Attorneys for Mercer feel that it is obvious that she was dropped from the team because of her sex. They claim that Goldsmith didn't want to deal with the tremendous media attention generated by having a woman on the team. The media attention was much more than what Goldsmith anticipated when he allowed Mercer onto the football team. Burton Craige, a Raleigh-based attorney for Mercer, said, "This was more attention than the Duke football program had gotten in a decade" (Bostian, 1999, paragraph 12).

Instead of trying out for the team again in the fall of 1997, Mercer filed suit against Duke and Fred Goldsmith, alleging sex discrimination in violation of Title IX of the Education Amendments of 1972. 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. Judge Carlton Tilley, Jr. ruled that Duke and Mr. Goldsmith had "no obligation to allow Mercer, or any female, onto its football team. Contact sports like football are exempted from Title IX" (Monaghan, 1998, p. A39). The district court also denied Mercer's motion to alter judgement, so she appealed.

The central or main issue in this case is Title IX. Title IX prohibits discrimination on the basis of sex by educational institutions receiving federal funding. Soon after enacting Title IX, Congress charged the Department of Health, Education, and Welfare (HEW) with responsibility for developing regulations regarding the applicability of Title IX to athletic programs. The relevant portions of the regulations developed by the HEW include the following two paragraphs.

(a) General. 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.

(b) Separate teams. Notwithstanding the requirements of paragraph (a)
of this section, a recipient may operate or sponsor separate teams for
members of each sex where selection for such teams is based upon
competitive skill or the activity involved is a contact sport. However,
where a recipient operates or sponsors a team in a particular sport for
members of one 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. For the purposes of this part, contact sports include
boxing, wrestling, rugby, ice hockey, football, basketball and other
sports the purpose or major activity of which involves bodily contact.

Paragraph (a) establishes a baseline prohibition against sex discrimination in intercollegiate athletics. The first sentence of paragraph (b) allows institutions "to operate or sponsor separate teams for members of each sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport." An important key to this case is the interpretation of the second sentence of paragraph (b), especially the last phrase that reads "members of the excluded sex must be allowed to try out for the team offered unless the sport involved is a contact sport." The appellate court states that the text of this clause, on its face, is incomplete. It affirmatively specifies that members of the excluded sex must be allowed to try out for single-sex teams where no team is provided for their sex, except in the case of contact sports. So for non-contact sports, it is clear that members of the excluded sex must be allowed to try out for single-sex teams. However, the phrase does not mention any requirements that apply to single-sex teams in contact sports.

The last phrase of the second sentence of paragraph (b) can be susceptible to two different interpretations. First, it could be read to mean, "members of the excluded sex must be allowed to try out for the team offered unless the sport is a contact sport," in which case the anti-discrimination provision of subsection (a) does not apply at all. Second, it could be interpreted to mean that "members of the excluded sex must be allowed to try out for the team offered unless the sport involved is a contact sport," in which case members of the excluded sex need not be allowed to try out.

Duke and Goldsmith advocate the former interpretation, arguing that the HEW intended through this clause to exempt contact sports entirely from the coverage of Title IX. The appellate court, however, disagrees and feels that the latter interpretation is the more natural and intended meaning. The court went on to say that once an institution has allowed a member of one sex to try out for a team operated by the institution for the other sex in a contact sport, subsection (b) is simply no longer applicable, and the institution is subject to the general anti-discrimination provision of subsection (a). Since Mercer has alleged that Duke allowed her to try out for its football team and actually made her a member of the team, then discriminated against her and ultimately excluded her from participation in the sport on the basis of her sex, the court concluded that she has stated a claim under Title IX. The appellate court ruled that the district court's order granting the appellees' motion to dismiss for failure to state a claim is hereby reversed, and the case remanded for further proceedings.

Athletics play an important role in the education process. This is a major Title IX case and its ultimate outcome will have an effect on both athletics and education. A recent survey by the National Federation of State High School Associations shows that the number of women participating in traditional male sports is increasing every year (Bostian, 1999, paragraph 27). With this current trend, this is an issue that educators, coaches, and athletic representatives will continue to face in the future.

REFERENCES

Bamberger, M. (1997, September 29). No place for this kicker. Sports Illustrated, 87
(13), 100.

Bostian, T. (1999, October 8). Making the cut [29 paragraphs]. SportsJones Magazine
[On-line]. Available: http://www.sportsjones.com/mercer.htm

Monaghan, P. (1998, November 27). Female kicker loses bid to play football at Duke.
The Chronicle of Higher Education, A39.