Title IX and Contact Sports

Article excerpt

Heather S. Mercer v. Duke University and Fred Goldsmith United States Court of Appeals, July 12, 1999 190 F.3d 643

Heather Sue Mercer was an all-state football kicker at Yorktown Heights High School in Yorktown Heights, New York. After graduation, Mercer enrolled at Duke University, where she tried out as a walk-on kicker during the 1994 football season. She was the first woman ever to try out for the team, but she did not make the cut. Instead, she served as a team manager for the 1994 season.

In the spring of 1995, she participated in team-conditioning drills and was selected by seniors on the team to participate in the Blue/White Game, an intrasquad scrimmage held each spring. In this game, Mercer kicked a 28-yard field goal to win the game for the Blue team. Her kick was shown on ESPN, and shortly after the game the Duke head football coach, Fred Goldsmith, informed the media that Mercer had made the team. Fred Chatham, the Duke kicking coach, also notified Mercer that she had made the team. Subsequently, Mercer was asked to participate in a number of newspaper, radio, and television interviews, including The Tonight Show.

During the 1995 season, Mercer was officially recognized as a member of the Duke football team by being included on the team roster filed with the National Collegiate Athletic Association, and by having her picture included in the Duke football yearbook. Despite this official recognition, Mercer alleged that she was subjected to discriminatory treatment by the football program during the 1995 season. Specifically, she alleged that Coach Goldsmith would not allow her to participate in summer football camp or dress or stand on the sidelines for games, and that he provided her with fewer opportunities to participate in practices than other walk-on kickers. In addition, Mercer claimed that he subjected her to a number of offensive comments.

At the beginning of the 1996 season, Goldsmith informed Mercer that he was dropping her from the team. He also barred her from participating in conditioning drills in the spring of 1997. However, he did tell her that she would be allowed to try out for the team in the fall of 1997.

The Complaints

Heather Mercer decided not to take advantage of Coach Goldsmith's offer to try out for the 1997 Duke football team. Instead, in the fall of 1997, she filed a lawsuit against Duke University and Coach Goldsmith citing sex discrimination in violation of Title IX, negligent representation, and breach of contract. Duke University and Coach Goldsmith filed a motion to dismiss the case for failure to state a claim under Title IX. In addition to the initial motion to dismiss, Duke and Goldsmith filed additional motions for summary judgement and a motion to dismiss based on a lack of subject matter jurisdiction.

Findings in the Case

Title IX of the Educational Amendments of 1972 addresses discrimination, on the basis of sex, in educational systems that receive federal funding. Shortly after the implementation of Title IX, Congress authorized the Department of Health, Education, and Welfare to develop specific regulations regarding the applicability of Title IX to high school, college, and university athletic programs, including intramural activities. Title IX is designed to reduce discrimination in sport by ensuring appropriate opportunities, facilities, equipment, and funding for all participants. Title IX reads in part as follows:

Section (a)--Title IX General Scope

No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, be treated differently from another person or otherwise be discriminated against in any interscholastic, intercollegiate, club, or intramural athletics offered by a recipient, and no recipient shall provide any such athletics separately on such basis.

Section (b)--Title IX Scope of Separate Teams

Notwithstanding the requirements of paragraph (a) of this section, a recipient may operate or sponsor separate teams for members of each sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport. …