When Heather Mercer won a $2 million judgment from Duke University, it was hailed as an important victory for women’s athletics. Instead it will likely shut the door for women who want to follow in Mercer’s footsteps.
Mercer wanted to be a kicker for Duke’s football team. She was given a tryout by the coach, but since her range was about 35-yards in practice, while a Division I school needs someone who can kick 45-yard field goals during a game, her coach cut her.
Mercer sued and a jury agreed that she had been discriminated against based on her sex. So why isn’t this a clear victory for women?
Because of the provisions of Title IX as they apply to sports. Under Title IX, if a school doesn’t have a women’s team in a given sport it must allow women to try out for the men’s team, with one important exception — contact sports are exempt from this rule.
That’s right, the current law is that if you allow a woman to try out to be a kicker on the football team and then cut her, she could potentially sue the university for sex discrimination as Mercer did. If you just tell the woman point blank, sorry football is a contact sport and the university doesn’t allow women to try out for such teams, the student has no recourse whatsoever.
The federal appeals court that allowed Mercer’s case to go to trial explicitly upheld the contact sports exemption writing, “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.”
The obvious reaction from universities seeing what happened in the Duke case will be to institute policies, either written or informal, to refuse try outs to women who want to participate on a men’s contact sport team.
In the end, Mercer’s legal victory will end up diminishing rather than enhancing women’s sports opportunities.
Source:
Sidelined! Kimberly Schuld, The Women’s Quraterly, Winter 2001.
Mercer v. Duke University. United States Court Of Appeals For The Fourth Circuit, No. 99-1014, Decided: July 12, 1999.