The Supreme Court decided Dec. 12 to allow a lawsuit to continue against Michigan State University that claims the school violated the Title IX anti-discrimination law by mothballing its swim teams.
By refusing to take up the university’s appeal, some observers say the Supreme Court missed an opportunity to reassess how to measure compliance with the federal law that forbids sexual discrimination in education. But the lower court’s judgment is not final so the matter could come before the Supreme Court again in the future.
The high court’s decision to deny the petition in Michigan State University v. Balow, court file 22-93, came in an unsigned order. No justices dissented and no reasons were given for the ruling.
The decision came after East Lansing-based Michigan State University (MSU) decided in the fall of 2020 to get rid of its men’s and women’s swimming and diving teams because of budgetary difficulties created by the pandemic.
A group of 11 members of the women’s team sued in January 2021, demanding their team be restored. They argued that the university’s action would deprive both women and men of opportunities to engage in sports at the school, which they said was guaranteed by Title IX.
Title IX refers to Public Law 92-318, or the federal Education Amendments of 1972, which amended four federal education-related statutes. Title IX enforcement is aimed in part at equalizing the participation of the sexes in high school and college sports.
“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance,” the legislation begins.
Courts evaluate schools’ compliance with Title IX by comparing how many female students are involved in athletics with how many females are present in the student body. Shortfalls are known as the “female participation gap.”
U.S. District Judge Hala Jarbou, a Trump appointee, found that getting rid of the men’s and women’s swimming and diving teams did not create a significant gap—MSU was still left with percentages of male and female athletes that sufficiently approximated male and female enrollments. After the U.S. Department of Justice got involved in the case, a divided U.S. Court of Appeals for the 6th Circuit sent the case back to Jarbou, instructing her to assess compliance using a different method.
The circuit court said the male-female gap in athlete populations occasioned by the gutting of the women’s team needed to be compared to the size of a “viable” team. MSU appealed to the Supreme Court while the litigation continued.
Hypothetical Viable Team
In August, Judge Jarbou attempted to comply with the 6th Circuit ruling. She determined that the gap between male and female athletic populations would support a hypothetical viable team but declined to immediately resurrect the women’s swimming and diving team. Instead, she directed MSU to develop a Title IX compliance plan in two months. A trial on the merits of the case is scheduled to begin Jan. 23.
Lori A. Bullock, attorney for the female athletes, welcomed the high court’s decision not to take the case at this time.
“We believe the facts clearly show that Michigan State violated Title IX by eliminating its women’s swimming and diving team,” Bullock told The Epoch Times by email.
“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,” the lawyer said.
The Epoch Times reached out to Michigan State University for comment but had not received a reply as of press time.
MSU said in court papers (pdf) that greater flexibility in enforcing the law was needed.
Title IX is a successful program that “has unquestionably transformed college athletics for the better,” the school said.
When it was enacted “50 years ago, women and men participated in college athletics at starkly different rates relative to student enrollment,” but nowadays, “women and men participate in college athletics at more equitable rates than ever before, and that trend is especially pronounced in Division I athletics.”
“But Title IX’s continued success depends on maintaining an achievable and workable standard that schools can meet without judicial micromanagement and never-ending litigation,” the brief stated.