The women’s swim and dive Title IX lawsuit against MSU had a hearing on the preliminary injunction in the U.S. District Court on July 21. After initial denial of a preliminary injunction was vacated and remanded by the Sixth Circuit Court in February, the proceedings were allowed to continue.
The hearing consisted of back and forth oral arguments from both parties’ lawyers. Attorney Lori Bullock represented the plaintiff Sophia Balow and other female swimmers and attorney Scott Eldridge represented the university.
Judge Hala Jarbou asked for clarification on a few aspects of the Title IX lawsuit: the participation gap and whether or not there is a viable team.
In order to claim a Title IX violation, Bullock argued there is a significant enough participation gap that the addition of a team could rectify that gap. She said following the decision to cut the swim and dive team in the 2020-21 academic year, the participation gap grew from 40 to 45, which would mean the university was in violation of Title IX for removing women’s opportunities in athletics.
Eldridge said that, at the time of the team’s removal, the participation gap was only 12, as the available record stated in the 2019-20 academic year. Bullock said they should be looking at the numbers from the 2020-21 academic year, not the 2019-20 academic year.
Jarbou looked at both years to decide whether or not the participation gap was significant. She examined the squad lists from the 2019-20 academic year, including women’s rowing, volleyball and soccer.
The lawyers disagreed on which numbers counted for women’s sports participants.
Eldridge cited a declaration from Title IX which states that participants need to be counted with bookends of the first and final date of intercollegiate competition. For example, if the women’s rowing team loses team members before the first date of the competition, they will not be counted on the roster.
Bullock analyzed the numbers for the rowing team and argued that, since novice women were not allowed to compete in the first scrimmage on Sept. 21, 2019, the squad list should be counted at the date of their first NCAA competition on Oct. 5, 2019. More women quit before the first NCAA competition than before the first scrimmage.
Eldridge claimed this was a misunderstanding of the Title IX rule and that the roster should still be counted at the date of the first scrimmage regardless of size because it is still considered an intercollegiate competition.
Other women’s sports like soccer have “countable” intercollegiate events in the spring. A mid-year addition to their roster would be counted by Title IX rules. Bullock said because of this, she thinks that men’s football mid-year additions should be counted by Title IX rules as well because they were given a “genuine participation opportunity.”
However, because men’s football does not have any mid-year events that compete with other colleges, Eldridge said that they should not include mid-year additions in the Title IX count.
In the 2020-21 academic year, Jarbou said the higher participation gap was allowed due to a “natural fluctuation in enrollment” and that the Office of Civil Rights said it would be “unreasonable to fine-tune” teams to rectify that higher gap every year with enrollment fluctuation.
However, there is a trend of more women enrolling at MSU. Eldridge said that although the trend is increasing, sports participation numbers remain the same. Bullock said that because the percentage of women enrolling is increasing, the Title IX violation is ongoing and will need to be rectified. She said reinstating the team will fill the current participation gap.
Eldridge suggested the university manage Title IX compliance on its own and that it is not up to the courts to be “ad hoc athletic directors.”
If the women’s team is to be reinstated, under Title IX, there has to be a sufficient amount of interested, able and available swimmers. There also has to be a significant opportunity for competition.
Bullock tried to prove these points. She cited a case in Iowa where the team was reinstated with eight swimmers and four divers. At MSU, 10 women have provided declarations stating their interest in competing. She also said the club swim and dive team would make strong recruiting grounds, as the team won the national championship in April.
Sophia Balow, a former varsity swimmer herself, said there are significant resources to make a team by this fall.
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“IM West is still there, the water is in the pool, it’s still operating as a facility,” Balow said. “Our equipment room at IM West is still full of flippers, our pool buoys and kickboards. Everything is there for the team, so I think the argument that Michigan State cannot fuel the swim team right now is just absolutely false.”
However, Eldridge said 10 women is not enough to make a team. He also said that the estimated cost of reinstatement due to coaching salaries, necessary equipment and facilities would be $1 million or higher.
Bullock said the current coaching staff is ready and willing to step back into their roles, even though the head coach is retiring in August. The assistant coach, she said, is still hired by MSU Athletics and that this would not be an additional cost for the program.
Bullock suggested a potential timeline: immediate reinstatement, about four weeks to hire women, let the current ten women start practice while the facility is still there and begin recruitment up to the numbers the coach wants on the roster. She said that the Big Ten swim schedule had not been finalized yet and this is not an impossible standard for reinstatement.
Eldridge said this is still not enough time to make a team. He said that having an “if you build it, they will come” mentality is purely speculative and unrealistic. His idea of a compliance plan to rectify the participation gap would be to add to existing women’s teams, eliminate some men’s sports opportunities or add another women’s sport.
Swim parent and trustee candidate Mike Balow also attended the hearing. He is heading an initiative called Battle for MSU Swim and Dive. Earlier this summer, he organized a reinstatement proposal to present to President Samuel L. Stanley Jr., the trustees and Athletic Director Alan Haller.
After his daughter and other swimmers met with Stanley in June, directors from University Advancement and the Spartan Fund met with Mike Balow’s team to hear more specifics about funds for reinstatement. They told the battle group they would get back to them after presenting the detailed information to Stanley.
“It’s just a shame that we’re still doing this,” Mike Balow said. “It’s hard on the women. They want to get back in the pool. The battle group has offered MSU multiple changes to figure this out and bring money in to reinstate the teams.”
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