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Mercer Me! Responses To The Mercer Case

We got a number of responses from readers about the Heather Sue Mercer comments
we posted. One of the things we really like about doing this site is that we
often hear smart, well-reasoned disagreements.  That's certainly the case
this time, and here are a number of letters we received about the Mercer case
and our take on it.  Thanks to everyone for taking the time!  The
first two letters are actually in support; the rest have varying objections.



Your comments regarding the Mercer lawsuit were, as always, excellent and
insightful. An additional point to be considered, in my opinion, is the
fairness of a $2 million punitive damages award. Exactly who is being
punished by this award? Fred Goldsmith? Perhaps, indirectly, his
reputation, but certainly (I assume, with confidence) not his pocketbook.
The Duke administrators who allegedly ignored Mercer's complaints concerning
this behavior? Not likely. Essentially this award punishes the students,
professors and other employees, both current and future, of the school, who
are being deprived of $2 million that could be used for improving the
educational quality of Duke University. Of course it's possible that Duke
is covered by insurance for this award, but even if that's the case, there
will certainly be some kind of financial cost to Duke (if nothing else,
Duke's policy would likely contain some form of deductible). Whatever that
cost is, it's money diverted from an indisputably outstanding educational
purpose (even Heather Sue Mercer, who landed a job with Charles Schwab,
would probably not argue that one). When one considers that the whole
purpose of punitive damages is to deter future behavior, you have to wonder
how appropriate such damages are in the context of a non-profit

Of course, on the bright side, Mercer has pledged to establish a scholarship
fund for aspiring female place-kickers. Now there's a good cause.

Keep up the great work!



Good comments on the Mercer case. Tricky issue, but you guys laid it out
well. I wish that the mainstream media would tackle the issue harder instead
of just reporting the outcome.




Dear Boswell,Julio, & James,

I am a long time DBR fan.

I find your comments in:
Some Thoughts On Mercer vs. Duke 10/13/2000 The Heather Sue Mercer case to be out of line and demeaning to Duke.

We all have thoughts about this case. In my case I have mixed feelings and don't know all the answers. But as someone who lived through the segregation struggle, I found the arguments in defense of the status quo to be reminiscent of arguments I heard 40-50 years ago on the racial issue.

I want to say that in general I very much like and appreciate the work you do on DBR. It serves well all alumni and friends of Duke.


Al Gumb, '56



On your discussion of the Mercer case, you are missing one very important point: there is a difference between illegally discriminating against someone because she is a woman, and treating someone differently because she is a woman. I am no expert on the Mercer case, but my guess is that she argued that her right to participate in a school program was being denied because she was a woman, claiming her rights under Title IX, and probably more than a few other statutes that prohibit sexual discrimination. The key point is that this is a question of RIGHTS, rights that have been clearly established in American law. Separate bathrooms, listing weights, reporters in locker rooms -- these are not questions of rights. There is no parallel. However, a parallel can be made between Mercer's case and the case of a woman denied employment, the right to vote, the right to use publicly funded facilities, or the right enroll in a school she was qualified to attend because of her gender. This is the context her case should be viewed in as well as the context of the sports world. You need to remember that equality as defined by law is limited to a sphere of activities that the government has the power to regulate. Mercer's case is grounded in this definition of equality.

By the way, the corporate lawyer you asked about the definition of sexual harassment should probably go do a little homework... While the courts haven't put out a list of specific prohibited behaviors, which would be both impossible and unwise, they have offered some pretty clear guidelines. Don't make a person's pay, job or promotion be contingent on a quid pro quo of sexual favors, don't single people out for negative treatment based solely on their gender, don't create a workplace that is a hostile environment for people of one gender and refuse requests to improve the situation... and so on.

But otherwise, thanks for your coverage of Duke basketball -- it is the best I've seen! (Even if your grasp on the law as it pertains to women is not so strong, but I don't check your site every day for the legal commentary....) And thanks for adding a section on the women's team!

Renee Hurtig




Actually, I think you guys are great, but since I'm writing to disagree with
you on your latest "Our Call," I thought this would be the appropriate
subject to choose.

You guys really dropped the ball on your 10/13 "Our Call" about the Heather
Sue Mercer case. If Mercer was a good enough kicker to make the team, she
should have made the team.

Yes, Mercer would have had a separate changing area. Women who play on men's
teams generally change in an equipment room or similar area and use the
showers before or after the men. I've never heard a women complain about
this. She's there to compete. Essentially, male and female athletes get the
same consideration for changing and showering areas: they both have the
right to be in an area free of the opposite sex which is required by
societal norms.

Your arguments about what would happen if Mercer were involved in physical
play make me wonder how much football you watch. Male place kickers are
almost always the scrawniest players on the field and I would certainly
"wince if four or five guys piled on top" of one to get the ball. Place
kickers have always been adept at "attempting" to make a tackle without
actually getting hit. The best ones will try to lure the ball carrier to the
sideline then try to shove him out as he runs by. Others will just try to
get in his way long enough for a teammate to make the tackle. Most of them
will make a lame attempt to dive at the runner after he's already gone by.
An athletic woman can easily meet the same standards as the average place
kicker. If Duke's opponents didn't want to hit her that would just be an
added advantage for Duke. Football players usually won't bother to throw a
block at a kicker anyway because it's not usually necessary and it's likely
to get your kicker hit next time he's on the field. When a woman has played
on a men's team in the past her opponents have quickly figured out that she
is there to beat them and have given up on the idea that they should take it
easy on her.

You say that women have won the right to enter men's locker rooms when the
men are naked. They certainly have not won any legal right to do this. The
courts have said that female journalists need to have the same access to
athletes and facilities that male journalists do. Teams can bar all
reporters from locker rooms at all times or while the players are naked.
This seems like the most reasonable thing to do even if women aren't allowed
in the locker room. Do you want six fat guys with cigars shoving microphones
and tape recorders in your face when you're buck naked and dripping wet from
the shower? Women's teams are treated the same under the law. They can't
give female reporters more access than male reporters.

The same is true for releasing players' weights. No men's team is under
legal obligation to release weights and no women's team is legally
prohibited from doing so. If Mercer had made the team her weight probably
would have been listed. And if she was embarrassed about her weight she
could have just lied about it just like so many male athletes lie about
their weights, heights, and even ages in media guides.

Late in the article you make several arguments about the way men and women
are treated differently in divorce, custody, and domestic violence cases.
This is certainly true in many states. However, you seem to be arguing that
this is wrong. Is your argument that because men are discriminated against
in these cases that women should be discriminated against on the football
field? You seem to be saying the gender inequality is the way things are not
the way things should be.

Your argument about the crew team does hold some water (no pun intended).
There is a significant difference, though. If a male student wants to row he
can choose from dozens of excellent colleges to attend that have men's crew.
This is no different from a male student who wants to walk on in football
choosing a college with a football team. Women who want to play college
football have no option other than to try out for a men's team.

I wasn't at the tryouts so I don't know whether Heather Sue Mercer should
have made the Duke football team. But if she performed well enough on the
field to make the team, I can't think of any reason she shouldn't be there.

Keep up all your great work on Duke Basketball coverage. I really respect
the way you support Duke without tearing down their opponents and the way
you put values like decency and academics above winning at all costs. This
year's team looks like another great bunch of kids and I'm sure we'll all
have fun watching them no matter where they finish.

Joshua Weiss



Hi Guys:

First let me say that you guys and your site are simply the best. I have been reading your site from its inception (being a Duke graduate 87) and also sponsored you. As I have said to you in the past, you have managed to combine a passionate support for Duke basketball with an amazing objectiveness. Very rare. Love the team and the site.

It is strange where all the Duke grads end up. In my case, I have been an associate at Milbank Tweed in NY for seven years, in the mergers and acquisitions department. I also, however, have been passionately involved in animal rights for many years, and was the President for the Students for Ethical Treatment of Animals at Duke, as well as the co-founder of a group called the Student Activist Cooperative, which pushed for more diversity in the faculty in 1987. At this time, I currently represent a number of animal rights groups, have published several animal law review articles, have spoken at numerous law schools and will be teaching an animal law course as adjunct professor at Cardozo Law School in the Spring.

So I guess it is obvious that this brings me to your recent comment about animal rights in the your recent discussion of the Mercer case. While I
don't want to be boring, and whether or not I agreed with your general analysis, your analogy was, unfortunately, not quite correct. Animal rights, and more specifically, animal legal rights is very complicated. As you may know, the concept for legal rights for animals has made significant inroads in recent years. Animal law courses are taught at Harvard, Duke (Professor Reppy), Georgetown and many others; Yale has an accredited animal law reading class. Professor Sunstein (Chicago), Professor Tribe (Harvard) and Professor John Hart Ely (Former Dean of Stanford) have all recently stated that they believe animals should have legal rights. And none of them would argue that in the analogy you mention, the iguana should be saved ahead of the human. Similarly, the founder of the modern movement, Peter Singer (who is not a rightist, but a utilitarian) would also say the human should be saved, as would Professor Regan (NC State) who is the key player in the animal rights philosophy movement. Indeed in Professor Francione's new book "Your Child or Your Dog" he recognizes this fact -- it is a red herring type of question.

Legal rights for animals (or "animal rights") tends to be focused on recognizing that animals are sentient beings, that they possess attributes that intimates that in many situations their interests should be taken into account, and that in many situations animals are not treated or classified (e.g as property) in an appropriate manner. Recently Steven Wise, who teaches at Harvard, and whose recent book is about to be reviewed separately by Judge Posner and Martha Nussbaum, has argued that animals should not be seen solely as property and that they can be granted basic legal rights. Ultimately, however, all animal rights people, I believe, would recognize that in a situation where the choice is directly and without doubt a choice between saving a humans life and saving an animals life, it is appropriate to save the human life. Obviously, the battle lies in deciding when that situation is or is not occuring(e.g., medical experimentation). But most of us focus on areas where there is less dispute about human lives being saved as opposed to burdened i.e., hunting, fur, farm animals, cosmetic testing, cats and dogs abuse, etc.

Anyway, sorry to bother you with all this. Just wanted you to know how diverse a membership the duke basketball community is.

Continue doing a great job.... I will be at the NIT opener in the Garden in November and would be happy to say hi.

David J. Wolfson