Mercer v. Duke University

Heather Sue Mercer (plaintiff) was a student at Duke University (Duke) (defendant). In the fall of 1994, Mercer tried out for Duke’s all-male football team as a walk-on kicker. Mercer (who was the first woman to try out for Duke’s football team) did not make the team, but she served as a team manager, regularly attended practices, and participated in conditioning drills with the team. In the spring of 1995, the team’s seniors chose Mercer to play in the team’s annual spring intrasquad game. Mercer kicked the game-winning field goal in that game, garnering her national media attention. Duke’s head coach, Fred Goldsmith (defendant), told the news media that Mercer was a member of Duke’s team; Duke’s kicking coach told Mercer the same thing. Mercer did not play in the 1995 season but continued to practice with the team and participate in conditioning drills, and Duke listed Mercer on its official roster. However, Mercer claimed that Goldsmith discriminated against her by, for example, not letting her attend summer camp or dress for games. Goldsmith also allegedly asked Mercer why she preferred playing football to participating in beauty pageants and suggested she watch games in the stands with her boyfriend rather than on the sidelines with the team. At the start of the 1996 season, Goldsmith cut Mercer from the team despite allegedly permitting less qualified walk-on kickers to remain on the team. Goldman also refused to allow Mercer to participate in conditioning drills because they were only for team members. Mercer sued Duke and Goldsmith, alleging that they, among other things, committed sex discrimination in violation of Title IX of the Education Amendments of 1972 (Title IX). Duke and Goldsmith moved to dismiss the complaint, arguing that contact sports like football were not subject to Title IX. The district court dismissed Mercer’s complaint. Mercer appealed.