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MSU Swimmers Lose Bid to Revive Women’s Team in Title IX Suit

Aug. 9, 2022, 4:04 PM

Michigan State University won’t be required to reinstate its women’s swimming and diving team while a suit challenging their elimination goes forward, but the school must submit a compliance plan to reduce or eliminate the participation gap for women in its sports programs, a federal court ruled.

The athletes partially succeeded in their motion for a preliminary injunction because they are likely to win on the merits of their Title IX claims, Judge Hala Y. Jarbou of the US District Court for the Western District of Michigan ruled Monday.

The plaintiffs carried their burden of showing that a participation gap—between the percentage of female students at MSU and the percentage of athletic participation opportunities available to female students—is large enough to sustain a viable team, Jarbou said.

Jarbou issued the ruling on remand from the US Court of Appeals for the Sixth Circuit. The appeals court found Jarbou erred in ruling that the participation gap between men and women was substantially proportional because the disparity was smaller than the average size of a women’s team at MSU.

The Sixth Circuit said the participation gap must be compared to the size of a viable team, not an average team.

The athletes “have shown a substantial likelihood that the participation gap at MSU is higher than a viable varsity women’s swimming and diving team,” which would include at least 21 members, Jarbou said.

But their requested relief—the reinstatement of the women’s swimming and diving team—isn’t warranted because Title IX doesn’t require MSU to maintain a women’s swimming and diving team, she said.

“The specific harm that Title IX intended to prevent, and that plaintiffs’ injunction seeks to alleviate, is the harm caused by a disproportionate allocation of athletic opportunities to men,” Jarbou wrote.

Even if the plaintiffs ultimately succeed in showing MSU hasn’t complied with Title IX, Jarbou said, “the court would likely give MSU the freedom to decide whether to reinstate the women’s swimming and diving team or to eliminate the gap in some other manner.”

Jarbou ordered MSU to submit a compliance plan within 60 days.

The school announced in October 2020 that it would discontinue the programs at the end of the 2020-2021 school year.

The court on Sept. 22 denied the university’s motion to dismiss.

Newkirk Zwagerman PLC, Bailey & Glasser LLP, and Bogas & Koncius PC represent the plaintiffs.

Miller, Canfield, Paddock & Stone PLC represents Michigan State.

The case is Balow v. Mich. State Univ., W.D. Mich., No. 21-cv-00044, 8/8/22.

To contact the reporter on this story: Peter Hayes in Washington at PHayes@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Brian Flood at bflood@bloomberglaw.com