Michigan State asks Supreme Court to take Title IX case caused by cut of swimming teams
to eliminate its men’s and women’s swimming teams at the end of the 2020-21 season. Eleven members of the women’s team filed suit in January 2021 seeking reinstatement of the women’s team. They alleged that Michigan State’s decision would result in the university violating the law’s requirement that schools provide equitable sports-participation opportunities for men and women.
At issue is how to determine whether a school has met the most commonly used benchmark of whether it is providing equitable participation opportunities: Men and women being afforded athletic opportunities in a manner that is substantially proportionate to the school’s male and female enrollments.
The stakes are high enough that the U.S. Justice Department joined the case on the swimmers’ behalf at the initial appellate level. More recently, Michigan State has hired lawyers led by former U.S. solicitor general Gregory Garre to make its case to the Supreme Court. Lawyers for the swimmers were served with Friday’s filing and provided it to USA TODAY Sports.
If the Supreme Court chooses to hear the case, “it would send Title IX advocates into a panic,” said Barbara Osborne, a sports administration professor at the University of North Carolina who holds secondary appointment at the university’s law school.
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sent the case back to the district court, saying that it needed to base its decision about Michigan State’s compliance with the proportionality standard in a different way than the percentages.
The panel said the decision needs to be based on the numerical gap in the school’s men’s and women’s athlete populations that was caused by the women’s team’s elimination and how that number compares to the size of a “viable” team.
Last week, at a district-court hearing concerning the swimmers’ bid for an injunction that would reinstate the team, Michigan State provided data showing that it had a female athlete-participation gap of 40 during the 2020-21 school year, the last year in which the swimming teams existed. The data also showed that the women’s swimming team had more participants that year than the men’s team did.
The question of whether “the athletic participation gap between male and female students must be assessed in raw numerical terms, or, instead, may be assessed as a percentage figure … goes to the heart of the manner in which Title IX is implemented at university athletic departments around the country,” lawyers for Michigan State wrote in Friday’s filing.
And the university’s lawyers argued that under the 6th Circuit’s ruling, “small numerical participation gaps — which can pop up at any time, due to factors outside the university’s control — can trigger a Title IX violation. … That rule is wholly impractical.”