Mercer v. Duke University, 99-1014

• Citation: 190 F.3d 643
• Decision Date: 10 June 1999
• Docket Number: No. 99-1014,CA-97-959-1,99-1014
• Parties: (4th Cir. 1999) HEATHER SUE MERCER, Plaintiff-Appellant, v. DUKE UNIVERSITY; FRED GOLDSMITH, Defendants-Appellees. () Argued:
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 643

190 F.3d 643 (4th Cir. 1999)

HEATHER SUE MERCER, Plaintiff-Appellant, v. DUKE UNIVERSITY; FRED GOLDSMITH, Defendants-Appellees.

No. 99-1014 (CA-97-959-1)

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: June 10, 1999

Decided: July 12, 1999

Appeal from the United States District Court for the Middle District of North Carolina, at Durham. N. Carlton Tilley, Jr., District Judge.

COUNSEL ARGUED: Burton Craige, PATTERSON, HARKAVY & LAWRENCE, L.L.P., Raleigh, North Carolina, for Appellant. John Morgan Simpson, FULBRIGHT & JAWORSKI, L.L.P., Washington, D.C., for Appellees. ON BRIEF: Melinda Lawrence, PATTERSON, HARKAVY & LAWRENCE, L.L.P., Raleigh, North Carolina, for Appellant. Karen M. Moran, Michelle C. Ciszak, FULBRIGHT & JAWORSKI, L.L.P., Washington, D.C., for Appellees.

Before LUTTIG and KING, Circuit Judges, and BUTZNER, Senior Circuit Judge.

Reversed and remanded by published opinion. Judge Luttig wrote the opinion, in which Judge King and Senior Judge Butzner joined.

OPINION

LUTTIG, Circuit Judge:

Appellant Heather Sue Mercer challenges the federal district court's holding that Title IX provides a blanket exemption for contact sports and the court's consequent dismissal of her claim that Duke University discriminated against her during her participation in Duke's intercollegiate football program. For the reasons that follow, we hold that where a university has allowed a member of the opposite sex to try out for a single-sex team in a contact sport, the university is, contrary to the holding of the district court, subject to Title IX and therefore prohibited from discriminating against that individual on the basis of his or her sex.

I.

Appellee Duke University operates a Division I college football team. During the period relevant to this appeal (1994-98), appellee Fred Goldsmith was head coach of the Duke football team and appellant Heather Sue Mercer was a student at the school.

Before attending Duke, Mercer was an all-state kicker at Yorktown Heights High School in Yorktown Heights, New York. Upon enrolling at Duke in the fall of 1994, Mercer tried out for the Duke football team as a walk-on kicker. Mercer was the first -and to date, only -woman to try out for the team. Mercer did not initially make the team, and instead served as a manager during the 1994 season; however, she regularly attended practices in the fall of 1994 and participated in conditioning drills the following spring.

In April 1995, the seniors on the team selected Mercer to participate in the Blue-White Game, an intrasquad scrimmage played each spring. In that game, Mercer kicked the winning 28-yard field goal, giving the Blue team a 24-22 victory. The kick was subsequently shown on ESPN, the cable television sports network. Soon after the game, Goldsmith told the news media that Mercer was on the Duke football team, and Fred Chatham, the Duke kicking coach, told Mercer herself that she had made the team. Also, Mike Cragg, the Duke sports information director, asked Mercer to participate in a number of interviews with newspaper, radio, and television reporters, including one with representatives from "The Tonight Show."

Although Mercer did not play in any games during the 1995 season, she again regularly attended practices in the fall and participated in conditioning drills the following spring. Mercer was also officially listed by Duke as a member of the Duke football team on the team roster filed with the NCAA and was pictured in the Duke football yearbook.

During this latter period, Mercer alleges that she was the subject of discriminatory treatment by Duke. Specifically, she claims that Goldsmith did not permit her to attend summer camp, refused to allow her to dress for games or sit on the sidelines during games, and gave her fewer opportunities to participate in practices than other walk-on kickers. In addition, Mercer claims that Goldsmith made a number of offensive comments to her, including asking her why she was interested in football, wondering why she did not prefer to participate in beauty pageants rather than football, and suggesting that she sit in the stands with her boyfriend rather than on the sidelines.

At the beginning of the 1996 season, Goldsmith informed Mercer that he was dropping her from the team. Mercer alleges that Goldsmith's decision to exclude her from the team was on the basis of her sex because Goldsmith allowed other, less qualified walk-on kickers to remain on the team. Mercer attempted to participate in conditioning drills the following spring, but Goldsmith asked her to leave because the drills were only for members of the team. Goldsmith told Mercer, however, that she could try out for the team again in the fall.

On September 16, 1997, rather than try out for the team again, Mercer filed suit against Duke and Goldsmith, alleging sex discrimination in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1688, and negligent misrepresentation and breach of contract in violation of North Carolina law. Duke and Goldsmith filed a motion to dismiss for failure to state a claim under Title IX, and, after discovery was completed, Duke and Goldsmith filed additional motions for summary judgment and a motion to dismiss for lack of subject-matter jurisdiction. On November 9, 1998, the district court granted the motion to dismiss for failure to state a claim under Title IX, and dismissed the state-law claims without prejudice, refusing to exercise supplemental jurisdiction over those claims. The district court declined to rule on any of the other outstanding motions. The district court subsequently denied Mercer's motion to alter judgment.

From the district court's order dismissing her Title IX claim for failure to state a claim upon which relief can be granted and its order denying the motion to alter judgment, Mercer appeals.

II.

Title IX prohibits discrimination on the basis of sex by educational institutions receiving federal funding. See 20 U.S.C. § 1681(a) ("No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance . . . ."). Soon after enacting Title IX, Congress charged the Department of Health, Education, and Welfare (HEW) with responsibility for developing regulations regarding the applicability of Title IX to athletic programs. See Pub. L. No. 93-380, § 844, 88 Stat. 484 (1974). Acting upon that charge, HEW duly promulgated 34 C.F.R § 106.41, which reads in relevant part as follows: Athletics.

(a) General. 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.

(b) 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. 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(a)-(b).¹ The district court held, and appellees contend on appeal, that, under this regulation, "contact sports, such as football, are specifically excluded from Title IX coverage." We disagree.

Subsections (a) and (b) of section 106.41 stand in a symbiotic relationship to one another. Subsection (a) establishes a baseline prohibition against sex discrimination in intercollegiate athletics, tracking almost identically the language in the parallel statutory provision prohibiting discrimination by federally funded educational institutions. In addition to generally barring discrimination on the basis of sex in intercollegiate athletics, subsection (a) specifically prohibits any covered institution from "provid[ing] any such athletics separately on such basis."

Standing alone, then, subsection (a) would...