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Some Thoughts On Mercer vs. Duke

The Heather Sue Mercer case has been decided, and of course Duke
lost. That's as is, but it brings up a number of interesting
potential issues. We don't claim to know a lot about discrimination law, other
than a corporate lawyer once telling us that she couldn't explain what sexual
harassment was but that we should be very careful not to do it. How the
heck would we know anything if the pros don't?

But we can see a number of potential conflicts and problems with the
assumptions the case appears to have left.

As far as football goes, our guess is that coaches all across America will
reconsider walk-on policies and many may just not take any. That may go
for other sports as well though likely not basketball, since most schools now
offer men's and women's basketball, and if we understand the intellectual point
here, the idea is that Duke could offer women's football and then women would
have a team of their own rather than having only the men's team. No one we
know of offers women's football, but they could. Duke could offer it and
then no one could have a grievance for not making the men's team since there is
a team specifically for them.

The primary argument, as best we can understand it, is that Mercer was
discriminated against because she was a woman, that in other words, that she
didn't get an equal opportunity to compete on the football field, that she was
treated differently than the rest of the team.

But in reality, had she made the team, she wouldn't have been treated the
same. Certainly she wouldn't have been expected to shower with her
teammates, and would have been the only member of the team to receive her own
locker/dressing room, and if there were a fumble and Julius Peppers picked the ball up, would she seriously be expected to try to tackle him? And if there were a fumble, would you wince if four or five guys piled on top of her to get the ball? Should Julius Peppers be any less aggressive in tackling her? Is that iself an act of discrimination? There's a physical reality there which is much firmer than legal theory.

This is only one aspect of the trickiness of equality and gender. There
are other fairly obvious ways men and women are treated quite differently. For
instance, women long ago won the right to enter men's locker rooms when they are
naked, much to the dismay of male athletes. We don't know if reporters are
allowed into women's locker rooms or not; we suspect not. But we do know that
male reporters are not allowed in any women's locker rooms, and we suspect
female athletes would protest loudly if this happened. When you apply the
same broad standard of discrimination as applies to the Mercer case, there is no
particularly compelling legal reason to treat the privacy of male and female
athletes differently, but we do. Moreover, relatively few people would
argue that they should be allowed in the women's locker room, even though the
equality gained would validate the abstract principle of equality.

Along the same lines, every men's basketball team in America lists the the
height and weight of their players. We have yet to see a women's team to
list any woman's weight. We realize that there are various issues associated
with how women see themselves, and eating disorders, and all that stuff, but
again, applying a simple standard of equality, there is no particular reason why
women athletes shouldn't publish their weight. The reason is because women
don't want to say how much they weigh, but that doesn't change the fact that men
and women are treated differently in this regard, and that we as a society not
only accept the difference but approve of it as well. There's certainly no
move to make Summer Erb publish her weight.

The way men and women are treated differently goes all through society, of
course. Just as an example, we know a man in Richmond whose wife left him.
Before she did, she accused him of sexually molesting her children as a
pre-emptive strike for custody. Under Virginia state law, he is presumed
guilty, the charges stay on his record until his children are grown, and he has
absolutely no way to get around this. It's grossly unfair, but he can't do
a thing about it.

As another example, we know a guy who dated a woman with a violent temper. He
was twice attacked in public, and twice the police came. Both times he was
treated as the aggressor. No evidence, no particular reason to suspect him, but
he was automatically deemed the guilty one.

And any man who has been divorced knows how difficult it is to gain custody,
even if his wife is (forgive us) a moron. The courts still reflexively give
custody to the mother. Now to be clear, we generally support that,
particularly with younger children, but does it meet this standard of equality?

Finally, we have a theoretical question: Duke recently started offering crew
as a woman's sport. They do not offer men's crew. If male students decided
they'd like to participate in crew and walked on, under the Mercer precedent,
we'd assume they'd have to be allowed. The scholarships are reserved for women
athletes, but since Duke provides no male crew, it's their only outlet, just as
the football team was Mercer's only outlet. Assume for arguments sake that
there are six scholarships on the team and six men try out. Assume
further that all six men eventually surpass all six women. Under the
prevailing doctrines of equality and discrimination, if they weren't allow
to row, wouldn't they have a suit?

Don't get us wrong, we're not advocating that anyone do that. But
that's a very plausible outcome of this sort of law, and if the law applies
equally to men and women, then ultimately the better athlete should compete,
even if women keep the scholarships.

Does it sound crazy? We hope so. We have nothing against Heather Sue
Mercer, and her emotion after the trial was obviously sincere so we're sure this
was very important to her, but sometimes we try so hard to be accommodating that
the law becomes ridiculous. Her individual case is relatively
trivial. But the schism between how are laws ask us to behave and the very
real social impulses which often are at odds with the law is not. Often we
seem to be trying to legislate against human nature. That refers less to
her specific example than the other contradictions mentioned above. We
often wonder how advocates of change would behave when folly becomes apparent.
Imagine an Animal Rights advocate trapped in a terrible fire - with an iguana. If the fireman acts on those beliefs, the big lizard has a 50-50 chance of survival.
The laws of discrimination, would, one imagines, apply to a lifeboat as well: if
a captain called for women and children first, would a widow have a right to sue
for discrimination if her husband didn't make it on a boat?

We're not saying that discrimination doesn't exist, or that it doesn't need
to be dealt with. But sometimes the solutions we find just exacerbate