CONTACT SPORT EXCEPTION TO TITLE IX INAPPLICABLE WHEN UNIVERSITY ALLOWS
MEMBER OF OPPOSITE SEX TO TRY OUT FOR CONTACT SPORT TEAM.
Heather Sue Mercer was an all state kicker in football at Yorktown Heights
High School in New York. Upon enrolling at Duke University in 1994, Mercer decided to
tryout for the football team as a walk-on kicker. Although she did not make the team, she
served as a team manager and participated in practices and conditioning drills in 1994.
In 1995 the team's seniors on the team selected Mercer to participate in
an intrasquad scrimmage game which ended with her kicking the game winning field goal. The
kick was shown on ESPN, and Duke's head football coach told Mercer and the media that she
had made the team. Although Mercer practiced with the team and appeared in the team
photo,she did not participate in any 1995 games.
During this time Mercer alleged that she was subjected to various forms of
discriminatory conduct. She was not allowed to attend summer football camp, or dress or
sit on the sidelines during football games, and she was subjected to a number of offensive
comments from the head coach. Soon after, before the 1996 season, Duke's head coach
removed Mercer from the team.
In September of 1997, Mercer sued Duke University and its head football
coach alleging violations of Title IX. She claimed that the decision to exclude her from
the team was based on her sex, as the head coach allowed less qualified walk-on male
kickers to remain.
After the trial court dismissed her claim for failure to state a claim
upon which relief could be granted, Mercer appealed to the 4th Circuit Court of Appeals.
The appellate court began by discussing regulations promulgated by the
Department of Health, Education, and Welfare (HEW) regarding the applicability of Title IX
to athletic programs, specifically 34 C.F.R. § 106.41 which has a specific provision
regarding separate teams. The court observed that this provision has a specific exception
to the general prohibitions against differential treatment of athletes on the basis of
sex. This regulation allows covered institutions to "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," and "permits covered
institutions to operate separate teams for men and women in many sports, including contact
sports such as football, rather than integrating those teams."
If a program offers a team "in a particular sport for members of one
sex but operates and sponsors no such team for members of the other sex, and athletic
opportunities for members of that sex have previously been limited, members of the
excluded sex must be allowed to try out for the team offered unless the sport involved is
a a contact sport." The Fourth Circuit noted that the text of this sentence is
incomplete because it does not address what requirements apply to single sex teams in
contact sports.
The court proposed two alternative answers: (1) members of the excluded
sex must be allowed to try out unless the sport is a contact sport and the
antidiscrimination regulations do not apply to contact sports; and (2) members of the
excluded sex must be allowed to try out unless the sport is a contact sport, in which case
the members of the excluded sex need not be allowed to try out, but the
antidiscrimination provisions apply if they are permitted to try out. In justifying its
decision to adopt the second alternative, the court pointed out that, if HEW
intended to allow for a blanket exception for contact sports from Title IX's
antidiscrimination provisions, it could have done so. However, the court construed the
language pertaining to contact sports to merely except them from the participation
requirement imposed on non-contact sports.
In summary, the court held that a university may choose not to permit a
member of the opposite sex to tryout for a contact sport team. Yet, "[o]nce an
institution has allowed a member of one sex to try out for a team operated. . .for the
other sex in a contact sport," the institution is subject to the general
antidiscrimination regulations imposed by Title IX. Therefore, the Fourth Circuit reversed
the trial court decision and remanded the case to the trial court for further proceedings.
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You Make the Call. . . Index
"You Make The Call..." is a newsletter published four times per year (spring,
summer, fall, winter) by the National Sports Law Institute of Marquette University Law
School, PO Box 1881, Milwaukee, Wisconsin, 53201-1881. (414) 288-5815, fax (414) 288-5818,
munsli@vms.csd.mu.edu. (www.marquette.edu/law/sports/call.html).
This publication is distributed via fax and email to individuals in the sports field upon
request.
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Editorial Staff:
Paul M. Anderson, Editor & Designer
Kirsten Hauser, Associate Editor
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Copyright © 1999 -- All rights reserved.
