Michigan State Asks Supreme Court to Take Title IX Case

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. 

As reported by Swim Swam, the Spartans cut their swimming and diving program in October 2020, but 11 swimmers sued in January 2021 seeking to revive the program in light of an inspiring legal victory at Iowa.

Related: AP: Iowa Swimmers Wondered if Title IX Suit Would Work

At the heart of the lawsuit is what metrics should determine whether universities are providing equitable participation opportunities required by law, according to Swim Swam's Riley Overend.

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 percent 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.”

Related: Appeals Court Reinstates Title IX Suit at Michigan State

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 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.