## Facts

- Heather Sue Mercer enrolled at Duke University in 1994 and sought to play as a kicker on Duke’s Division I-A men’s football team.
- Mercer tried out as a walk-on, did not initially make the team, and served as a team manager while attending practices and participating in conditioning.
- In April 1995, Mercer played in the team’s Blue-White intrasquad game and kicked a game-winning field goal that received media coverage.
- After the game, Duke personnel publicly stated Mercer was on the team; Duke listed her on the NCAA roster and included her in team publications.
- Mercer alleged that the head coach treated her differently because of her sex through offensive comments and disparate treatment, and ultimately removed her from the team because she was a woman.
- Mercer sued Duke University and the head coach under Title IX, alleging sex discrimination in an education program receiving federal funds.

## Issues

1. Whether Title IX’s athletics regulation for “contact sports” creates a categorical exemption that bars any Title IX liability for sex discrimination involving a single-sex contact-sport team.
2. Whether a university that voluntarily allows an opposite-sex student to try out for, or participate on, a single-sex contact-sport team is subject to Title IX’s prohibition on sex discrimination in its treatment of that individual.

## Decision

- The Fourth Circuit reversed the dismissal and remanded for further proceedings.
- The court held that the contact-sports provision does not exempt contact sports from Title IX’s general prohibition on sex discrimination.
- The court held that when a university permits an opposite-sex individual to try out for a single-sex contact-sport team, the university is subject to Title IX regarding that individual and may not discriminate on the basis of sex.
- The court did not decide the merits of Mercer’s discrimination allegations; it addressed only whether her Title IX claim was legally barred.

## Legal Principles

- Title IX generally prohibits sex-based exclusion, unequal treatment, or discrimination in intercollegiate athletics offered by a federally funded recipient.
- Under 34 C.F.R. § 106.41, institutions may sponsor separate teams by sex when selection is based on competitive skill or the sport is a contact sport.
- The regulation’s contact-sports language functions as an exception to any obligation to provide opposite-sex tryout opportunities for a single-sex contact-sport team.
- Once an institution voluntarily allows an opposite-sex athlete to try out for or join a single-sex contact-sport team, Title IX applies to the institution’s treatment of that athlete, and sex-based discrimination is prohibited.

## Conclusion

The Fourth Circuit held that Title IX does not provide a blanket contact-sports exemption from liability; although a school need not open a single-sex contact-sport team to the opposite sex, it must comply with Title IX’s anti-discrimination mandate once it chooses to allow an opposite-sex student to try out or participate.


Mercer v. Duke Univ., 190 F.3d 643 (4th Cir. 1999)