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The court construes the second sentence of 34 C.F.R. § 106.41(b) as providing that in non-contact sports, but not in contact sports, covered institutions must allow members of an excluded sex to try out for single-sex teams. Once an institution has allowed a member of one sex to try out for a team operated by the institution for the other sex in a contact sport, subsection (b) is simply no longer applicable, and the institution is subject to the general anti-discrimination provision of 34 C.F.R. § 106.41(a). To the extent that United States Court of Appeals for the Third Circuit intended to hold otherwise, with its lone unexplained statement that, if it is determined that a particular sport is a contact sport, no other inquiry is necessary because that will be dispositive of the claim under Title IX, 20 U.S.C.S. §§ 1681-1688, the court rejects such a conclusion as inconsistent with the language of the regulation.
Appellant Heather Sue Mercer tried out for appellee Duke University’s football team as a walk-on kicker. Initially, she did not make the team. However, after she kicked a game-winning field goal in an intrasquad scrimmage, appellee coach told the media that she was on the football team. During the next season, appellee university officially listed her as a member of its football team. During the time that she was a member of the team, appellant alleged that she was the subject of discriminatory treatment. Specifically, appellant claimed that appellee coach 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. At the beginning of the 1996 season, appellee coach informed appellant that he was dropping her from the team. Appellant alleged that appellee coach’s decision to exclude her from the team was on the basis of her sex because appellee coach allowed other, less qualified walk-on kickers to remain on the team. Subsequently, appellant filed suit against appellee university and appellee coach, 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. Appellees filed a motion to dismiss for failure to state a claim under Title IX, and, after discovery was completed, appellees filed additional motions for summary judgment and a motion to dismiss for lack of subject-matter jurisdiction. The district court granted the motion to dismiss for failure to state a claim under Title IX, holding that contact sports, such as football, were specifically excluded from Title IX coverage. Appellant challenged the decision.
Was appellant’s suit properly dismissed for failure to state a claim?
The court noted that subsection (a) of 34 C.F.R. § 106.41 established a baseline prohibition against sex discrimination in intercollegiate athletics while subsection (b) of the same rule allowed covered institutions to operate separate teams for men and women in many sports, including contact sports such as football, rather than integrating those teams. The court construed subsection (b) as providing that non-contact sports, but not in contact sports, covered institutions must allow members of an excluded sex to try out for single-sex teams. However, once an institution has allowed a member of one sex to try out for a team operated by the institution for the other sex in a contact sport, subsection (b) was simply no longer applicable, and the institution was subject to the general anti-discrimination provision of subsection (a). Applying this analysis in the present case, the court held that because appellant has alleged that appellee university allowed her to try out for its football team (and actually made her a member of the team), then discriminated against her and ultimately excluded her from participation in the sport on the basis of her sex, appellant has stated a claim under the applicable regulation, and therefore under Title IX. Accordingly, the court reversed the district court’s decision.