Michigan State University on Friday asked the Supreme Court to hear a case that could impact how Title IX, the federal law that bans sexual discrimination in education, is applied to college athletics programs.
The case stems from the university’s decision in October 2020 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.
The concern would be the case potentially becoming a platform for a broader challenge of various aspects of Title IX, the 50th anniversary of which was marked in June.
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The Supreme Court has recessed for the summer and its decision on whether to take the case won’t come until at least early October.
Michigan State’s student enrollment is about 51% female, and it has more than 800 athletes.
The university has argued – and a district judge 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.
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.”