After eight years and four court rulings, a former Duke football kicker's gender discrimination lawsuit is likely nearing an end.
In a ruling released Friday, the U.S. Court of Appeals for the Fourth District voided a $2 million award to the former kicker, Heather Sue Mercer, Trinity '98. By siding with the University, the appeals court reversed the awarding of damages-but not the verdict--handed down by a federal district court jury in October 2000.
Marking the latest decision in the landmark case that began when Mercer tried out for the football team in 1994, the appeals court ruled that punitive damages are not allowed in private actions brought to enforce Title IX, the federal statute meant to ensure equality in collegiate athletics.
Mercer had argued that restrictions on her team activities, after her placement on the inactive roster in fall 1995, constituted violations of Title IX.
In its six-page ruling, the panel cited a 2002 U.S. Supreme Court decision, Barnes v. Gorman, that ruled against the allowance of punitive damages in several other non-discrimination laws, including the Americans with Disabilities Act and Title VI of the Civil Rights Act of 1964. The judges wrote that they were waiting for the Barnes v. Gorman decision before ruling in the Mercer case, which they heard over one year ago.
The appeals court ruling reversed an initial decision that drew national attention to questions of Title IX enforcement.
"We are pleased by the unanimous decision of the three-judge panel of the U.S. Fourth Circuit to throw out the $2 million in punitive damages," John Burness, Duke's senior vice president for public affairs and government relations, said in a statement released Friday afternoon. "Duke University remains committed to aggressively advancing our support for women's athletics through implementation of our Title IX plan."
Also Friday, the court rejected Duke's appeal of the $1 in compensatory damages that the jury awarded to Mercer in October 2000; although the jury felt Mercer deserved some compensation, it decided it could not quantify an exact amount.
Although the University's attorneys had argued the amount was too small to support an award of attorney fees, the appellate judges disagreed, ruling that in light of their new decision against punitive damages, the lower court should reconsider the compensatory award.
Burton Craige, Mercer's attorney, said he would not appeal Friday's decision and that the ruling was unsurprising because of the Supreme Court's decision in Barnes v. Gorman, after which both he and Duke's attorneys filed supplementary briefs. He added that, because Duke did not appeal the October 2000 decision based on its liability, the case remains a victory for Mercer.
"This decision in no way diminishes Heather Sue's victory at trial," Craige said. "This jury heard all the evidence and ruled that Duke discriminated against her based on her sex and that senior Duke administrators knew of the discrimination and responded with deliberate indifference."
After trying out for the football team in fall 1994, Mercer, an All-State kicker in high school, kicked the winning field goal in the 1995 Blue-White Scrimmage. Former head coach Fred Goldsmith announced she had made the team, but in August Goldsmith put Mercer on the inactive roster and forbade her from dressing out for games, among other restrictions. Goldsmith was accused of making several inappropriate comments, including a suggestion that Mercer "sit in the stands with her boyfriend."
Goldsmith praised Friday's ruling and expressed relief that the case may be reaching a conclusion.
"I just feel good for Duke because I feel like $2 million could be better spent for children in the hospital and things like that. I'm just happy that they don't have to pay out that kind of money," Goldsmith said.
"It's just been a lot of emotion," he added, "and so of course you reflect back on what you would handle differently, but the fact is I handled it the way I probably should have, and if anything I was too nice. You have to go on with life, and I think things turned out well for me, and I hope for her, too."
Mercer declined an immediate comment on Friday's ruling. She has said she intended to use the $2 million to support female place-kickers in high school.
"It was obvious from day one that this wasn't about the money," Craige said. "She said all along she didn't care about the money."
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