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U.S. Supreme Court rejects Michigan State“s appeal in Title IX swimming case


The sun sets on the U.S. Supreme Court building after a stormy day in Washington, U.S., November 11, 2022. REUTERS/Leah Millis

The U.S. Supreme Court on Monday declined to consider how strictly to interpret the landmark Title IX civil rights law’s protections for gender equality in college sports in a lawsuit challenging Michigan State University’s elimination of its women’s swimming and diving team.

The high court rejected the university’s appeal of a lower-court ruling in favor of former members of the team who say MSU violated Title IX by not providing enough opportunities for women athletes to participate in sports.

At issue is how to determine whether a school has met a key benchmark in assessing if it provides equal opportunities to participate under Title IX, the 50-year-old law credited with expanding access to sports for female student-athletes.

The lawsuit centers on MSU’s announcement in October 2020 that it planned to cease sponsoring the men’s and women’s swimming-and-diving teams when the school year ended, citing budgetary challenges in the wake of the COVID-19 pandemic.

Those teams in the 2019-2020 school year had 29 men and 33 women. Females comprised 50.9% of its overall undergraduate class that year and 51.2% the year before.

Eleven women student-athletes sued to force MSU to reinstate the women’s team, but a judge rejected that request, saying the gap in participation rates between genders created by cutting the team was too small to violate Title IX. He said no court had ever held a gap of less than 2% violated the law.

But on a 2-1 vote, the Cincinnati-based 6th U.S. Circuit Court of Appeals in February ruled the judge erred in gauging the participation gap in percentage terms and said it must be assessed in numerical terms.

Under that approach, a school could fail to meet Title Ix’s proportionality requirements even if the gap in participation between male and female student athletes was just a small size of its athletics program.

The 6th Circuit sent the case back to U.S. District Judge Hala Jarbou, who in August on remand partially sided with the students by ordering MSU to submit a plan to come into compliance with Title IX while declining to force it to reinstate the team.

In a petition to the Supreme Court, MSU argued the 6th Circuit’s approach was “unworkable” and conflicted with how every other federal appeals court that had examined the issued had approached Title IX.

Fifteen Republican state attorneys general led by Ohio’s backed MSU’s appeal, saying the 6th Circuit wrongly was requiring “exact, per-capita, sex-based parity between the student population and athletic opportunities.”

They said under the 6th Circuit’s approach, if 52% of a school’s students are women, then 52% of positions on its teams must also go to women, and a school could only deviate from that strict formula if it was impossible to field a viable team.