Jury Awards Mercer $2 Million in Discrimination Suit

Female place kicker wins Title IX case against Duke, saying gender was a factor in her treatment

A federal jury last week ruled that Duke discriminated against female place kicker Heather Sue Mercer and awarded her $2 million in punitive damages.

A jury of five women and three men deliberated just more than two hours before finding in favor of Mercer, who graduated from Duke in 1998.

Immediately following the trial, Duke said it would appeal the decision. After consulting with university attorneys, John F. Burness, senior vice president for public affairs and government relations, issued a statement last Friday, "We're obviously disappointed with the jury's findings and are confident the judgment will be rectified on appeal."

Mercer filed suit against Duke in 1997, claiming Duke football coaches cut her from the football team because she is a woman and treated her differently from male players; thus, the university violated Title IX of the Education Amendments Act of 1972 prohibiting gender discrimination.

Under Title IX, Duke was not required to permit her to try out for a contact sport like football, but if she was permitted to try by the football coach, she needed to be treated the same as any other student athlete who tried out.

Duke argued that Mercer was cut from the team based on her abilities. Former head coach Fred Goldsmith testified that Mercer's lack of speed, size and leg strength kept her from being considered for play.

Before the jury began its deliberations, U.S. District Judge James A. Beaty Jr. instructed the jurors that they would be answering two key questions: whether Duke had violated Title IX and, if so, whether Duke officials had actual knowledge of the violations and acted with deliberate indifference to that.

In determining discrimination, jurors were told to consider whether gender was a motivating factor in decisions about Mercer's treatment, and whether Duke football coaches would have made the same decisions if gender had not been taken into account.

Once the jury announced its decision, attorneys for both sides presented arguments about whether to award compensatory and punitive damages in the case.

To award compensatory damages, jurors had to find that Mercer suffered actual financial losses because of Duke's actions. For punitive damages, they had to find the defendants acted with malice or reckless indifference.

Plaintiff's attorney Burton Craige said for compensatory damages, "Duke took $120,000 from Heather Sue for her college experience (for tuition). They need to give that money back, a full refund."

The jury rejected that claim and returned a $1 award for compensatory damages.

As for punitive damages, Craige argued, Duke should be punished for its actions toward Mercer and asked that the award be "enough to get Duke's attention."

Duke attorney John Simpson countered: "Rather than focus on emotion, I would ask that you look at the evidence."

Simpson also noted that Mercer graduated with a good grade point average and now has a good job with a good salary.

Simpson said that there is a big difference between deliberate indifference, which was the criteria used in judging whether or not Duke violated Title IX, and malice, the standard used in awarding damages.

Mercer said in a statement e-mailed from her attorney to the news media that she plans to use the award to establish a college scholarship fund for female place kickers.

"Seven years ago, fewer than 50 women were playing high school football," she said. "Today, there are more than 800. These women have never had the opportunity to pursue the sport at the next level. It is my hope that this scholarship fund will encourage talented and dedicated young women to achieve their goals. ..."

"After years of divisive litigation, we now have the opportunity to do something positive. I invite Duke University to join me in opening doors for female athletes."

The two-week trial was held in U.S. District Court in Greensboro.