Wednesday, August 17, 2022

MSU women's swim and dive lawsuit secures legal victory in its battle to reinstate program

February 2, 2022
<p>One year after MSU decided to cut the varsity swimming and diving teams, relics still fill the IM West indoor pool, where they used to practice and compete. Oct. 22, 2021.</p>

One year after MSU decided to cut the varsity swimming and diving teams, relics still fill the IM West indoor pool, where they used to practice and compete. Oct. 22, 2021.

Photo by Chloe Trofatter | The State News

Roughly one year ago, 11 members of the Michigan State women's swimming and diving team filed a Title IX lawsuit in federal court, attempting to stop the university from eliminating their program at the end of the 2020-2021 season.

Today might've finally brought them some good news.

The case was examined by the U.S. Sixth Circuit of Appeals after the district court denied a a request for preliminary injuction to prevent MSU from cutting the program. But after a 2-1 appellate decision, the district court's Feb. 19, 2021 denial of the preliminary injunction that the athletes had originally requested against MSU on Jan. 15, 2021 has officially been vacated and remanded.

"We look forward to that opportunity, now with the remand, to be able to present the evidence that we have learned," attorney Lori Bullock, the lawyer representing the members of the team, said.

According to new court documents, the preliminary injunction was first sought up because it was argued that MSU had failed to provide the women with substantially proportionate athletic opportunities as required by Title IX and it was denied because the court ruled it did not believe there was a strong likelihood of success based on the merits. The case was ordered to be returned and reviewed by the lower court.

The district court is expected to announce a hearing date in the next week to reconsider the preliminary injunction.

While the student-athletes and MSU agree on the gender breakdown of the undergraduate student body as a whole, they disagree on the total number of male and female athletes. The district court allegedly did not consider measuring the participation gap between the men's team and women's team and used percentages given to them. The court now has to go back through and redefine the data using raw numbers rather than percentage values.

An amicus brief filed by the U.S. Department of Justice's Office for Civil Rights', or OCR, and the Department of Education in May 2021 stated that the district court incorrectly relied on percentage size rather than raw (or absolute) numbers to determine the disparities between men and women and that a school would not be liable for any Title IX violations with a disparity of 2% or less. The brief also claims the court was incorrect in using average women's team size to determine the disparity.

The district court failed prong one of the Three-Part Test that determines if a public university is violating Title IX laws based on substantial proportionality.

According to Shubin Law, prong one, "looks to see if the school’s athletics programs have a number of male and female students enrolled that is proportional to their overall representation in the student body. This means that if a school is 50% male students and 50% female students, and the athletics are also split 50/50 – or close to it – the school is generally complying with Title IX. If the student body at large is 50/50, but the athletics programs are 30% female and 70% male, for example, the school is not in compliance.

A spokesperson for Michigan State said via text the University is "reviewing the court's decision to determine appropriate next steps."

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