Heather Sue Mercer v. Duke University Fred Goldsmith
190 F.3d 643, 1999 U.S. App. LEXIS 15502 (1999)
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Rule of Law:
If a university that receives federal funding voluntarily permits a student of the opposite sex to try out for a single-sex contact sport team, the university is subject to Title IX's general prohibition on sex discrimination and cannot discriminate against that student on the basis of sex.
Facts:
- Heather Sue Mercer, an all-state high school kicker, enrolled at Duke University in 1994 and tried out for the university's Division I football team as a walk-on.
- After serving as a team manager for a season, Mercer was selected to play in the 1995 spring intrasquad game, where she kicked the game-winning field goal.
- Following the game, Head Coach Fred Goldsmith and the kicking coach informed Mercer that she had made the team.
- Mercer was officially listed on the team roster filed with the NCAA for the 1995 season and was featured in the team's yearbook.
- Mercer alleged that during her time on the team, Coach Goldsmith made discriminatory comments, such as asking why she preferred football to beauty pageants.
- Mercer also alleged she was denied opportunities given to other walk-on kickers, including attending summer camp, dressing for games, or sitting on the sidelines.
- At the start of the 1996 season, Goldsmith cut Mercer from the team, while allegedly allowing less-qualified male walk-on kickers to remain.
Procedural Posture:
- Heather Sue Mercer filed suit against Duke University and Coach Fred Goldsmith in the United States District Court.
- Mercer's complaint alleged sex discrimination in violation of Title IX and state-law claims for negligent misrepresentation and breach of contract.
- The defendants filed a motion to dismiss the Title IX claim for failure to state a claim upon which relief can be granted.
- The district court granted the defendants' motion to dismiss the Title IX claim.
- The district court then dismissed the remaining state-law claims without prejudice, declining to exercise supplemental jurisdiction.
- The district court denied Mercer's subsequent motion to alter the judgment.
- Mercer (appellant) appealed the dismissal of her Title IX claim to the United States Court of Appeals for the Fourth Circuit, against Duke and Goldsmith (appellees).
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Issue:
Does the Title IX regulation that permits educational institutions to sponsor separate teams for contact sports, without requiring them to allow members of the opposite sex to try out, also provide a blanket exemption from Title IX's anti-discrimination provisions once an institution voluntarily allows a member of the opposite sex to join such a team?
Opinions:
Majority - Luttig, J.
No. While Title IX regulations permit universities to maintain single-sex teams for contact sports, this exception does not shield them from liability for sex discrimination if they voluntarily allow a member of the opposite sex to participate. The regulation at issue, 34 C.F.R. § 106.41, establishes a general rule against sex discrimination in athletics in subsection (a). Subsection (b) creates an exception, allowing for separate-sex teams and stating that institutions are not required to hold co-ed tryouts for contact sports. The court reasoned that the 'unless' clause regarding contact sports only exempts universities from the requirement to hold co-ed tryouts; it does not create a blanket immunity from Title IX's anti-discrimination mandate. Once Duke University voluntarily permitted Mercer to try out for and join its football team, the exception in subsection (b) became inapplicable, and the university subjected itself to the general anti-discrimination provisions of subsection (a). Therefore, Mercer's claim that Duke discriminated against her on the basis of her sex after she joined the team is a valid cause of action under Title IX.
Analysis:
This decision significantly clarifies the scope of Title IX's 'contact sport exception.' It establishes that the exception is permissive, not absolute; it allows schools to maintain sex-segregated teams but does not license them to discriminate against athletes they voluntarily admit to those teams. The ruling prevents universities from using the exception as a shield for discriminatory conduct after they have waived it by their actions. This precedent strengthens protections for athletes who cross gender lines in contact sports, ensuring that once the door to participation is opened, it must be accompanied by the same legal protections against discrimination afforded to all other athletes.
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