Title IX case not taken up by justices
Stems from move in ’20 to cut MSU swim teams
The Supreme Court announced Monday that it will not hear an appeal from Michigan State University that could have impacted how Title IX, the federal law that bans sexual discrimination in education, is applied to college athletics programs.
The decision means that, for now, the case is back in the hands of the 6th U.S. Circuit Court of Appeals and U.S. District Judge Hala Jarbou in Michigan. According to a statement to USA TODAY Sports from Michigan State spokesman Dan Olsen after Monday’s announcement, that will include the university’s upcoming submission to Jarbou of a Title IX compliance plan that she previously had ordered but delayed pending the Supreme Court’s decision.
The case stems from Michigan State’s decision in October 2020 to eliminate its men’s and women’s swimming and diving 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 was 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 university has argued — and Jarbou initially agreed — that the elimination of the swimming teams left it with percentages of men’s and women’s athletes that were close enough to its male and female enrollments to satisfy the law.
A three-judge panel of the 6th U.S. Circuit
Court of Appeals disagreed following consideration that included written and oral arguments from the Justice Department. By a 2-1 margin, the panel 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.
Michigan State made its bid for appeal of that ruling to the Supreme Court in late July, but in the meantime, the case continued moving forward in the lower courts.
In early August, Jarbou — acting within the parameters of 6th Circuit panel’s decision — issued a ruling in which she found that the gap between Michigan State’s men’s and women’s athlete populations was sufficient to support a viable team. She also issued a preliminary injunction against Michigan State. She refused to immediately reinstate the women’s swimming and diving team, but she ordered the university to submit a Title IX compliance plan within 60 days.
According to the publicly available court record, she has left intact the scheduled start date for a trial on the full merits of the case. It is set to begin Jan. 23.
Michigan State appealed Jarbou’s new ruling and the preliminary injunction to the 6th Circuit, although it has said in a filing with the appellate court that it planned to withdraw that appeal if the Supreme Court did not agree to take the case. However, everything was stayed by the 6th Circuit and Jarbou, pending the high court’s decision.
Olsen, the Michigan State spokesman, said in the statement: “While disappointed, we accept the U.S. Supreme Court’s decision. Over the coming days and weeks, MSU will focus on the trial court proceedings, including the submission of a compliance plan.”
That plan could involve restoring the women’s swimming and diving team, which was discussed recently by the university’s board of trustees. It also could involve capping men’s team roster sizes, or it could be a combination of actions.
Lori Bullock, the lead attorney for the swimmers, said via text message: “We believe the facts clearly show that Michigan State violated Title IX by eliminating its women’s swimming and diving team. We look forward to holding the school accountable. We are pleased but not surprised that MSU’s effort to get the Supreme Court to change the law has failed.”
In written arguments concerning whether the Supreme Court should hear the case, Michigan State — with backing from separate briefs offered by 15 state attorneys general and three rival universities — argued that the appellate court’s decision created a new standard that would inflict “havoc” on schools, especially those with very large enrollments that can fluctuate annually.
Lawyers for the swimmers wrote that the appellate ruling conformed with guidance from the U.S. Education Department’s Office of Civil Rights and “decades of case law interpreting and applying it.”