Heather Sue Mercer v. Duke University Fred Goldsmith
Docket: 99-1014
Court: Court of Appeals for the Fourth Circuit; July 12, 1999; Federal Appellate Court
Heather Sue Mercer appealed the dismissal of her Title IX discrimination claim against Duke University and head football coach Fred Goldsmith, challenging the district court's assertion that Title IX exempts contact sports from gender discrimination provisions. The Fourth Circuit Court found that a university is subject to Title IX when it allows a member of the opposite sex to try out for a single-sex team in a contact sport. Mercer, an accomplished high school kicker, was the first woman to try out for the Duke football team in 1994 but initially did not make the roster, serving instead as a team manager. In April 1995, she successfully kicked a field goal in a significant scrimmage, leading to media recognition and claims from the coaching staff that she was part of the team. Despite being listed on the team roster and participating in practices, Mercer experienced discriminatory treatment, including exclusion from summer camp, game-day activities, and derogatory comments from Goldsmith. The Fourth Circuit reversed the district court's ruling, holding that Mercer’s claims warranted reconsideration under Title IX.
At the start of the 1996 season, Goldsmith notified Mercer of her removal from the team, which Mercer claims was due to her sex, as less qualified male walk-on kickers were retained. Mercer attempted to join conditioning drills the following spring but was asked to leave since they were for team members only; however, Goldsmith encouraged her to try out again in the fall. Instead of trying out, Mercer filed a lawsuit on September 16, 1997, against Duke University and Goldsmith, alleging sex discrimination under Title IX and state law claims of negligent misrepresentation and breach of contract. Duke and Goldsmith moved to dismiss the Title IX claim for failure to state a claim, and after discovery, they filed further motions for summary judgment and to dismiss for lack of subject-matter jurisdiction. On November 9, 1998, the district court granted the motion to dismiss the Title IX claim and dismissed the state-law claims without prejudice, declining to exercise supplemental jurisdiction. The court did not address other pending motions and later denied Mercer's motion to alter the judgment. Mercer is appealing the dismissal of her Title IX claim and the subsequent denial of her motion to alter judgment. Title IX prohibits sex discrimination in educational programs receiving federal funding, and the regulations developed under it specify that no person should be excluded from athletic participation on the basis of sex. While separate teams may be created based on competitive skill or for contact sports, any team offered must allow members of the excluded sex to try out if opportunities have been previously limited. The district court concluded that contact sports like football are excluded from Title IX coverage, a position with which the appellant disagrees.
Subsections (a) and (b) of section 106.41 are interdependent, with subsection (a) establishing a general prohibition against sex discrimination in intercollegiate athletics, mirroring federal education anti-discrimination laws. It mandates that covered institutions cannot provide athletic opportunities separately based on sex, effectively requiring team integration. To prevent this integration from drastically changing intercollegiate athletics, subsection (b) introduces an exception, permitting separate teams for each sex in certain circumstances, specifically where selection is based on competitive skill or the sport is a contact sport.
However, subsection (b) raises questions regarding teams where an institution has a team for one sex but none for the other. For this provision to apply, two conditions must be met: the institution must operate a team for one sex without a corresponding team for the other, and there must be a history of limited athletic opportunities for the excluded sex. In the context of the case at hand, it is acknowledged that Duke has previously limited athletic opportunities for women and that it operates a football team solely for men without a corresponding women's team.
If both conditions are satisfied, the second sentence of subsection (b) mandates that members of the excluded sex must be allowed to try out for the offered team, with an exception for contact sports. The text leaves ambiguity regarding the treatment of contact sports: it could either imply that the anti-discrimination provision does not apply at all in such cases, or it could suggest that members of the excluded sex are not required to be allowed to try out for contact sports teams.
Appellees argue that the Department of Health, Education, and Welfare (HEW) intended to exempt contact sports from Title IX coverage. However, the interpretation adopted asserts that the second sentence of subsection (b) does not create any exemptions but rather mandates that institutions allow members of an excluded sex to try out for single-sex teams in non-contact sports. The phrase “unless” at the end of this sentence logically excludes contact sports from the tryout requirement, aligning with congressional intent not to mandate sexual integration in intercollegiate contact sports. If a university permits one sex to try out for a contact sport team, the general anti-discrimination rule in subsection (a) applies. The interpretation also respects a university's choice to limit tryouts for single-sex contact sports while upholding the prohibition against unreasonable discrimination in cases where teams are open to both sexes.
The court rejects a contrary interpretation from the Third Circuit in Williams v. School Dist. of Bethlehem, asserting that simply categorizing a sport as a contact sport should not automatically dismiss Title IX claims. Since appellant claims Duke allowed her to try out and then discriminated against her based on sex, the court concludes she has a valid claim under Title IX. The court emphasizes that this interpretation is legally permissible, particularly as Duke's football team was open to women during the relevant time. The district court's dismissal is reversed, and the case is remanded for further proceedings, although it remains unclear whether Duke operated its football team solely for men or for both genders, which could affect the applicability of subsection (b).
