Mercer v. Duke University
| Decision Date | 09 November 1998 |
| Docket Number | No. 1:97CV00959.,1:97CV00959. |
| Citation | 32 F.Supp.2d 836 |
| Court | U.S. District Court — Middle District of North Carolina |
| Parties | Heather Sue MERCER, Plaintiff, v. DUKE UNIVERSITY and Fred Goldsmith, Defendants. |
Martha Melinda Lawrence, Burton, Craige, Patterson, Harkavy & Lawrence, Raleigh, NC, for Plaintiff.
John M. Simpson, Fulbright & Jaworski, L.L.P., Washington, DC, for Defendants.
For the reasons set forth in the Memorandum Opinion filed contemporaneously with this Judgment, it is ORDERED that Plaintiff Heather Sue Mercer have and recover nothing from Defendants Duke University and Fred Goldsmith on her claim pursuant to Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. Mercer's claim under Title IX is DISMISSED WITH PREJUDICE pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim. Given that Mercer's sole federal claim has been dismissed, this Court declines supplemental jurisdiction over Mercer's state law claims for negligent misrepresentation and breach of contract. See 28 U.S.C. § 1367(c)(3). Therefore, these state law claims are DISMISSED WITHOUT PREJUDICE. As no further claims remain, it is ORDERED that this case be and the same hereby is DISMISSED.
MEMORANDUM OPINIONPlaintiff Heather Sue Mercer brought this action against Defendants Duke University and Fred Goldsmith, the head coach of Duke's football team. Mercer alleged that her exclusion from Duke's football team was based upon her gender, amounting to sex discrimination in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. ("Title IX"). Moreover, she asserted claims under state law for negligent misrepresentation and breach of contract.1 Defendants have brought a joint Motion to Dismiss the action under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted.2 (Def.'s Mot. Dismiss [Doc. # 6].) For the reasons stated below, this Motion is GRANTED as to Mercer's claim under Title IX and that claim will be DISMISSED WITH PREJUDICE. This Court's jurisdiction over Mercer's remaining claims was alleged to be based upon the doctrine of supplemental jurisdiction. (Complaint [Doc. # 1] ¶ 5.) Given that Mercer's sole federal claim has been dismissed, this Court declines supplemental jurisdiction over them. See 28 U.S.C. § 1367(c)(3). Therefore, Mercer's state law claims for negligent misrepresentation and breach of contract are DISMISSED WITHOUT PREJUDICE. As no further claims remain, this case will be DISMISSED.3
"[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir.1992) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)) (internal quotation marks omitted). The allegations in the complaint are assumed to be true, and "the facts and reasonable inferences derived therefrom" are construed in the light most favorable to the plaintiff. Ibarra v. United States, 120 F.3d 472, 474 (4th Cir.1997). In the instant case, no facts can be proved in support of Mercer's claim that would entitle her to relief under Title IX. See Schatz v. Rosenberg, 943 F.2d 485, 489 (4th Cir.1991).
For the purposes of this Motion, the following facts, alleged in Mercer's Complaint, are assumed to be true.
Plaintiff Heather Sue Mercer was a high school All-State place kicker in New York prior to enrolling at Defendant Duke University, in Durham, North Carolina in August, 1994. For two and one-half years, Mercer attempted to join the football team at Duke, but ultimately Duke's head football coach, Defendant Fred Goldsmith, did not allow her to participate as a full member of the team.
From Fall 1994 until early Spring 1997, Mercer regularly attended team practices, practiced kicking with other members of the team, underwent endurance training with the team, and played in a spring, intrasquad scrimmage. However, she was not given a uniform or allowed to participate fully in practice or to play in any intercollegiate games. Moreover, in the Summers of 1995 and 1996, Goldsmith did not allow her to attend Duke's summer football camp, although he did allow male kickers of lesser ability than Mercer to attend.
At times during this period, Mercer was informed by Goldsmith and others that she was "on the team." However, in the Fall 1996, Goldsmith told her finally that there was "no place for her on the team." Despite this statement, Mercer participated in spring endurance training in the early Spring 1997. Finally, in early February 1997, Goldsmith told Mercer that she had "no right" to be there and he told her to leave, which Mercer did.
Mercer alleges that, during her attempts to join the Duke football team, she was treated differently than male players of lesser ability. Furthermore, Mercer alleges that she was not given full and fair consideration for membership on the team because of her gender. In short, according to Mercer, "the defendants have unjustifiably refused, on the basis of [Mercer's] sex, to allow [her] to be a member of the team." (Compl. [Doc. # 1] ¶ 11.) This allegation is assumed to be true for the purposes of this Motion.
Title IX prohibits sex discrimination in educational programs that receive federal funding. 20 U.S.C. § 1681(a).4 Section 844 of the Education Amendments of 1974 provided that the Department of Health, Education, and Welfare (HEW) would promulgate regulations implementing Title IX generally, "which shall include with respect to intercollegiate athletic activities reasonable provisions considering the nature of particular sports." Education Amendments of 1974, Pub.L. No. 93-380, § 844, 88 Stat. 484 (1974). These regulations interpreting Title IX are set forth in 34 C.F.R. § 106.41,5 and are accorded "appreciable deference." Cohen v. Brown Univ., 991 F.2d 888, 895 (1st Cir.1993); see Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The degree of deference to regulations is "particularly high in Title IX cases because Congress explicitly delegated to the agency the task of prescribing standards for athletic programs under Title IX." Cohen, 991 F.2d at 895.
Subsection 106.41(a) of the implementing regulations sets forth the general principle that:
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.
34 C.F.R. § 106.41(a) (1998). Accepting as true that Mercer was discriminated against on the basis of her sex, as they must under this Motion, the Defendants assert that prohibiting a female from being a member of a male football team falls within the exceptions set forth in subsection (b) of Section 106.41.
Subsection (b) provides that, notwithstanding the general requirements of subsection (a),
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. However, where a recipient operates or sponsors a team in a particular sport for members of one sex but operates or 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 contact sport. For the purposes of this part, contact sports include boxing, wrestling, rugby, ice hockey, football, basketball and other sports the purpose or major activity of which involves bodily contact.
34 C.F.R. § 106.41(b) (1998) (emphasis added). This "contact sport exception" is "the broadest exception recognized to the overarching goal of equal athletic opportunity." Williams v. School Dist. of Bethlehem, 998 F.2d 168, 172 (3d Cir.1993).
As football is clearly a "contact sport," a straightforward reading of this regulation demands the holding that, as a matter of law, Duke University had no obligation to allow Mercer, or any female, onto its football team. Cf. id. (); Cohen, 991 F.2d at 896 (). This interpretation is confirmed by HEW's final Policy Interpretation of the regulation applicable to athletics: "In the selection of sports, the regulation does not require institutions to integrate their teams nor to provide exactly the same choice of sports to men and women." Title IX of the Education Amendments of 1972; a Policy Interpretation; Title IX and Intercollegiate Athletics, 44 Fed.Reg. 71,413, 71,417-18 (Dec. 11, 1979).6
Mercer attempts to avoid this plain reading of the Regulation through two arguments. First, Mercer argues that this "separate teams" regulation does not apply because Duke did not operate a football team only for members of one sex. (Pl. Memo. Opp. Defs.' Mot. Dismiss [Doc. # 13], at 9.) As evidence, Mercer asserts that Duke had no stated policy that only males could participate on the football team. Moreover, by permitting her to try-out, practice, and scrimmage with the team, Mercer contends, Duke chose to permit co-educational participation in a contact sport. Therefore, according to Mercer, "[h]aving made that choice, Duke was bound by Title IX not to discriminate against Mercer on the basis of sex." (Id. at...
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Mercer v. Duke University
...that Title IX did not prohibit Duke from changing its mind once it made Mercer a member of the team. See Mercer v. Duke Univ., 32 F.Supp.2d 836, 839-40 (M.D.N.C.1998). Mercer appealed that decision, and this court reversed and remanded for trial. We concluded that while the contact-sport ex......