Heather Sue Mercer's score might lead to future losses for women.

The courts have encountered various arguments and defenses regarding the interpretation and application of Title IX legislation. Few, though, are as unique as the ones at the center of Mercer v. Duke University [No. 99-1014, 4th Cir., 1999].

The court's decision in this case is certain to have an effect on the collegiate and interscholastic athletic landscape. But strangely enough for a case in which a female athlete successfully convinced a court and a jury that she had been discriminated against on the basis of her gender, Mercer may well have the effect of limiting participation opportunities for female athletes in the near future.

Heather Sue Mercer was an allstate kicker on the football team at Yorktown Heights (N.Y.) High School prior to enrolling at Duke University in the fall of 1994. Mercer tried out, as a walk-on, for the Duke football team during the fall 1994 semester, but did not make the team. She instead served as a manager during the 1994 season, regularly attending practices.

During the spring 1995 semester, Mercer participated in conditioning drills with the football team and was selected by the team's seniors to play in the Blue-White Game, an intrasquad scrimmage played each April. In that game, Mercer kicked the winning 28-yard field goal for the Blue team. After the game, Fred Goldsmith, the Duke University head football coach, 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.

By the fall 1995 season, Mercer was officially listed by the university on the team roster filed with the National Collegiate Athletic Association, and she appeared in the Duke football yearbook. Mercer regularly attended football team practices that fall but did not play in any games. During the spring 1996 semester, Mercer participated in conditioning drills with the football team. It was during this period (the 1995-96 school year) that Mercer alleges she was the subject of discriminatory treatment by the university and by Goldsmith.

Mercer claims that Goldsmith did not permit her to attend Duke's summer football camp, did not allow her to dress for games or sit on the sidelines during games, and gave her fewer opportunities to participate in practices than other walkon kickers. Mercer also claims that Goldsmith made a number of offensive comments to her-including wondering aloud 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 football season, Goldsmith informed Mercer that there was "no place for her on the team." Mercer alleges that other, less-qualified walk-on kickers remained on the team. During the spring 1997 off-season football practices, Mercer attempted to participate in conditioning drills but was asked to leave by Goldsmith because the drills were only for members of the team. On Sept. 16, 1997, Mercer filed suit against Duke and Goldsmith, alleging sex discrimination in violation of Title IX and seeking compensatory and punitive damages.

Goldsmith claimed that he "got carried away" when he said, after the intrasquad scrimmage in April 1995, that Mercer had made the team. He had changed his mind, he said, during preseason practices later that summer.

John Burness, senior vice president for public affairs at Duke, said that Goldsmith "bases his assessment of who does or doesn't play on his team on a player's performance and ability."

The university and Goldsmith argued that they were under no obligation to allow Mercer, or any female, to be a member of the men's football team. In doing so, the defendants cited Subsection 106.41(b) of Title IX: ". . . 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."

Mercer's response to this defense was that the "separate teams" regulation does not apply, because Duke did not operate a football team only for members of one sex, and Duke had no stated policy that only males could participate on the football team. By permitting Mercer to try out, practice and scrimmage with the team, Duke chose to permit coeducational participation in this contact sport.

Moreover, Mercer argued, even though football is a contact sport, her position of placekicker does not require physical contact and therefore female placekickers should not be denied Title IX's protection.

On Nov. 9, 1998, the district court granted the defendants' motion to dismiss. District Court Judge Carlton Tilley Jr. stated that Title IX regulations recognize "that an athletic program may consist of gender-segregated teams as long as one of two conditions is met: either the sport in which the team competes is a contact sport or the institution offers comparable teams in the sport to both genders (Cohen v. Brown University, 991 F.2d at 896)."

The judge also stated that even if Duke never officially declared its football team to be all-male-or even if Duke could be seen as operating an undeclared coed football team-Title IX did not prohibit Duke from subsequently declaring that only males would be allowed to play. In addition, Tilley ruled that it would be inappropriate for the court to read a placekicker's exception into the regulation regarding participation in a contact sport.

In July 1999, the Fourth Circuit Court of Appeals held that the district court erred, and found instead that Mercer had stated a valid claim under Title IX regulations. In reviewing this case, the three-judge panel relied on an analysis and interpretation of Subsection 106.41(b). If members of the excluded sex are allowed to try out and the university itself has voluntarily opened the team in question to members of both sexes, the court found, then Title IX and regulations regarding discrimination based on gender apply.

The case was remanded for further proceedings, and on Oct. 12, 2000, a federal jury found that Duke University violated Title IX by cutting Mercer from its football team because she was a woman. Duke, ordered to pay a $2 million damage award, is appealing this ruling.

Title IX regulations do allow schools to prohibit players of the "other" gender from trying out for and competing in a contact sport in cases where only a one-gendered team is offered. Once an institution allows members of the other gender to try out, however, these persons cannot be discriminated against based on their gender. An unfortunate repercussion of the Mercer case might be high schools and colleges choosing the safe route of preventing Title IX discrimination regulations from applying to contact sports by simply prohibiting women from trying out for these teams. It should be noted that an equally safe and much more beneficial option would be for schools to simply ensure during the tryout process not to discriminate against athletes on the basis of their gender.

Another implication of Mercer that requires further monitoring is the Fourth Circuit's direct rejection of an opinion by the Third Circuit.

Williams v. School District of Bethlehem [998 F.2d 168, 174, 3rd Cir., 1993] involved a male plaintiff who attended tryouts for a girls' field hockey team and was given a uniform before the school decided that boys would not be allowed to play on a girls' field hockey team. The Third Circuit in that case interpreted Title IX regulations to hold that if a sport is determined to be a contact sport, then no other inquiry regarding Title IX need take place. (The Fourth Circuit in Mercer made note of this but relied on its own interpretation. A final ruling on this matter could be delivered by the U.S. Supreme Court, should it decide to hear an appeal by Duke in this case.)

Finally, the $2 million jury award reinforces the enforcement power of Title IX whereby non-compliance-implying discrimination based on sex-will not be tolerated.

Scholastic and collegiate athletic departments need to be very cautious regarding their interpretation of Title IX, in case another court chooses a similar interpretation.