The U.S. Supreme Court declined Michigan State University's appeal to hear the Title IX lawsuit from members of the women's swim and dive team.
Former female swimmers sued the university in response to cutting both the men's and women's teams in October 2020. Their argument: removing the women's team increased the participation gap between male and female opportunities at MSU, therefore creating a Title IX violation.
The district court judge ruled that MSU was out of compliance with Title IX at an Aug. 9 hearing, giving the university time to submit a compliance plan. This ruling came a week after MSU asked the U.S. Supreme Court to hear the case. MSU asked for more time to submit its plan, hoping to delay until the U.S. Supreme Court made a decision whether to hear the case. That decision came today.
Attorney Lori Bullock, who is representing Balow, said this is just momentum for her and her clients moving to trial in January.
“We're preparing for trial, getting everything that we need to do to be able to go in and improve our case,” Bullock said. “We remain open to settlement as we have all throughout the case.”
MSU is disappointed by the Court's decision not to take up the case.
“The court’s decision leaves in place a regressive and unworkable standard for gauging Title IX compliance in athletics,” university spokesperson Emily Guerrant said in a statement. “However, over the coming days and weeks, the university will be focused on submitting a compliance plan and cooperating with court requests.”
The Battle for Spartan Swim and Dive, a group advocating for the team's reinstatement, called for MSU to stop the legal battle and bring back the swim and dive teams.
“Proceeding to trial will expose Michigan State to further scrutiny of its participation numbers and the inequity of resources for its female student-athletes,” the group said in a statement. “With little chance of success and more potentially embarrassing revelations, we ask that the university end this legal pursuit and come within compliance by reinstating both MSU swimming and diving teams.”
Former trustee candidate and swim dad Mike Balow said he's considering re-running in 2024 and that he's committed to working with MSU in good faith.
“Michigan State is really not treating its student-athletes properly,” Balow said. “They're claiming that it's some undue hardship to offer opportunities to women and follow the federal law, and they have ample resources to do so, but they've chosen to fight it.”
What the U.S. Supreme Court decision means
After the initial district court hearing of the lawsuit in 2021 which denied the request, the U.S. Sixth Circuit Court of Appeals reversed the ruling in support of the female swimmers, allowing the district court to reconsider.
MSU asked this case to be heard by the U.S. Supreme Court in August. Ohio State University, University of Michigan, Vanderbilt University and 15 state attorney generals have also since signed on for support.
In its request, MSU argued the Sixth Circuit's interpretation of Title IX is wrong, specifically with its measurement of the participation gap — instead of looking at individual numbers of men versus women participating in sports, MSU and its supporting universities said it should be looking at percentages.
The brief listed two reasons this is a concern: fluctuation in the number and gender distribution of students participating in athletics, and in students enrolled at the university.
“Universities across the country have long relied on the well-established percentage-based framework to assess and ensure compliance with Title IX’s requirements,” the brief said. “If allowed to stand, the Sixth Circuit’s strict numerical rule would put universities in an impossible bind — and threatens to undermine the very interests Title IX was intended to serve.”
Bullock said interpreting Title IX this way is just “what the law requires.” and hopes the universities affected by this ruling see it as a positive for athletes.
“I'm always hopeful that universities will assess their programs and assure that they are doing everything they can to provide equitable opportunities for their male and female student athletes,” Bullock said. “Anything that causes schools to take an internal look at what they need to do to provide equity is a great thing.”
Without the U.S. Supreme Court's support for MSU's request, the hearing will continue with the Sixth Circuit's ruling.
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Moving forward
MSU has 14 days to submit its compliance plan to the district court. This plan may or may not include reinstatement of the women's team, but Bullock said that's not what the lawsuit is about.
“My clients are swim and dive team members, but our goal is Title IX compliance,” Bullock said. “Obviously these women really want to swim and there has been a very proud tradition at MSU for a swim and dive team, but our goal has always been Title IX compliance.”
The final trial will take place in January and the judge will make a final decision based on the plan received.
“I continue to be really proud to be able to advocate on behalf of these women,” Bullock said. “They are strong and we're almost two years into this case – and they're still there fighting for equity. They should be incredibly proud of themselves.”
