Michigan State Asks Supreme Court to Hear Title IX Case Caused by Swimming Cuts

by Riley Overend 10

July 30th, 2022 Big Ten, College, News

A lawsuit seeking to reinstate swimming and diving at Michigan State could have major ramifications for how Title IX is applied to college athletics after the university asked the Supreme Court to hear the case on Friday. 

The Spartans cut their swimming and diving program in October of 2020, but 11 swimmers sued in January of 2021 seeking to revive the program in light of an inspiring legal victory at Iowa. At the heart of the lawsuit is what metrics should determine whether universities are providing equitable participation opportunities required by law. 

Michigan State wants to use percentages as the standard to prove that their available athletic opportunities are proportionate — or at least close enough — to its student population that’s 51% female. First a district judge agreed, but then a three-judge panel of the 6th U.S. Circuit Court of Appeals reached a different decision. By a 2-1 margin, they ruled that the district court cannot base its decision on percentages. Instead, it must consider the numerical gap in the 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, the group of MSU swimmers requested an injunction that would reinstate the team while the courts determine the program’s ultimate fate. Lawyers for the university presented data at that district-court hearing detailing a female athlete participation gap of 40 during the 2020-21 school year, the last season before swimming was cut. Their data also revealed that the women’s swimming team had more members than the men’s team that year. 

The issue 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 obtained by USA Today Sports. They also 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.”

After the U.S. Justice Department took the swimmers’ side of the case at the appellate level, Michigan State hired Gregory Garre to craft its case to the Supreme Court. Garre served as U.S. solicitor general from 2008-09 under President George Bush. The Supreme Court is currently on summer recess, but if the Republican-majority decides this fall to hear the case, there could potentially be sweeping consequences for women’s sports. 

Barbara Osborne, a sports administration professor at North Carolina who holds secondary appointment at the university’s law school, told USA Today Sports that if the Supreme Court chooses to hear the case, “it would send Title IX advocates into a panic.” 

Earlier this month, a group from Battle for Spartan Swim and Dive submitted a budget proposal to MSU leaders outlining $10 million in prospective funds that could support the program for around five years.

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4 months ago

I think its more likely that the school would just drop more men from existing sports than add back 11 women swimmers. This won’t help anyone.

4 months ago

Well since half the Supreme Court thinks women should be barefoot, naked, pregnant and chained to the stove, I give Title IX a rat’s chance in hell of surviving any logical and positive outcome for girls and women.

4 months ago

MSU hoping the SC helps them shed the burden of women’s sports. How nice.

Awsi Dooger
4 months ago

It was just a matter of time before the white male side of the aisle decided to use their five despicable human beings to get rid of Title IX. I was thinking about that recently when the 50th anniversary was being celebrated

Reply to  Awsi Dooger
4 months ago

This has everything to due with the University getting around Title IX and not being held accountable. The fact you brought in race is despicable.

Coach Tom
4 months ago

I’d like to hear an actual lawyer delve into how SCOTUS could “throw Title IX out the window” if they decided to hear this case. This court has obviously shown a willingness to overturn previous SCOTUS rulings but they seem to have a dimmer view of completely throwing out actual federal legislation like Title IX.

If these athletes have a legitimate complaint under Title IX then I think they are correct to go forward with asking the Supreme Court to look into their case. Suggesting that it could backfire and result in this court completely throwing out Title IX comes off as fear-mongering.

Reply to  Coach Tom
4 months ago

Fear-mongering or a distinct possibility?

Coach Tom
Reply to  DLSwim
4 months ago

I’d at least like to hear an argument as to how it’s a distinct possibility. I could see SCOTUS agreeing with MSU’s argument about proportionality over raw numbers but it seems extremely unlikely that they would throw Title IX out the window altogether.

Reply to  Coach Tom
4 months ago

The university is requesting a Supreme Court opinion, not the athletes.

Coach Tom
Reply to  Gail
4 months ago

Yeah I misread that in the initial article, thank you for the correction. Still, I am curious how this could result in SCOTUS potentially throwing out Title IX altogether, which seems unlikely unless they find that Title IX was unconstitutional in and of itself (which I don’t see happening).

About Riley Overend

Riley is an associate editor interested in the stories taking place outside of the pool just as much as the drama between the lane lines. A 2019 graduate of Boston College, he arrived at SwimSwam in April of 2022 after three years as a sports reporter and sports editor at newspapers …

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