The United States Supreme Court will not weigh in on Michigan State University’s decision to end its swimming and diving program.
The court turned down an opportunity to rule on how Title IX compliance is measured, relying on lower courts to determine if the school violated female athletes’ equal opportunity rights.
MSU announced in October of 2020 that it would end the men's and women’s swimming and diving teams after the 2021 season because of the program’s cost. The school said the facilities needed millions of dollars worth of renovations. A group of 11 female swimmers sued the university’s athletic department and Board of Trustees to keep an all-female team in place. The athletes argued the decision violated Title IX of the Education Amendments Act of 1972, which requires any educational institution that receives funding from the federal government to provide equal opportunity to men and women in all education and athletic programs.
The swimming and diving program reportedly cost approximately $2 million of the athletic department’s $140 million budget.
The lawsuit claimed MSU was “passing its Title IX reporting numbers by offering large rosters in certain sports that do not ultimately provide the opportunities for performance the rule intends for,” per USA Today. This included overreporting how many women’s rowing and track program members actually participated in the sports.
“We are saddened and disheartened that MSU continues to discriminate against women when it comes to intercollegiate athletics,” said one of the attorneys representing the group, Jill Zwagerman of Newkirk Zwagerman. “The university is out of compliance with respect to participation, scholarships and other program conditions for these female athletes."
“While MSU claims it cut swimming and diving because of budgetary issues, that is not a valid defense to Title IX requirements, nor is it true,” she added.
Judge Hala Jarbou of the Western District Court of Michigan sided with the university in February of 2021. Jarbou found that MSU was "best positioned to steward its financial resources for the benefit of the institution and its students." She declined to issue a temporary injunction against the school, which she said would have to commit “significant” funding to the program.
“Plaintiffs now ask the Court to keep their team on temporary life support until the outcome of the case, which is uncertain in both timing and result,” Jarbou wrote in her 23-page decision. “MSU will likely have difficulty retaining and recruiting staff and team members in these circumstances, to the detriment of the remaining team members and their ability to compete.”
“The public interest would be served by preventing discrimination in the provision of athletic opportunities for women," stated the judge. "However, Plaintiffs have not shown that they are likely to succeed on that claim."
Subsequently, a panel of judges in the 6th U.S. Circuit Court of Appeals disagreed with Jarbou’s ruling and returned the case to the district court. The three-judge panel said the decision must be made in regard to the potential gap in the school’s male and female athlete populations caused by eliminating the team.
Jarbou found in August that the gap was sufficient to support a viable team and issued a preliminary injunction against MSU. The school was given 60 days to submit a Title IX compliance plan.
The university appealed to the Supreme Court to intervene, triggering a stay of any rulings by Jarbou or the Circuit Court. MSU had called the Circuit Court’s ruling “unworkable" and they are reaching out to impacted student-athletes to discuss a possible resolution.
