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Michigan State loses bid for high court audience with spurned swimmers

The Title IX case will continue in the lower courts without intervention from the justices. 

WASHINGTON (CN) — The Supreme Court turned down an opportunity on Monday to intervene in a battle between Michigan State University and female swimmers fighting to revive their team. 

Pinched financially after the Covid-19 pandemic, MSU announced it would cut the men's and women’s swimming and diving programs. Because the program had more women than men, several members of the women’s team said ending it will create gender inequity in sports at the university, violating discrimination laws.

Eleven members of the women’s team brought a suit against MSU under Title IX, the federal law prohibiting sex discrimination in education. Title IX does schools discretion on compliance enforcement, however, and a federal judge declined to issue an injunction that would override MSU’s decision to cancel the team.

The Sixth Circuit then vacated the ruling to determine if MSU provided equal athletic opportunities to male and female athletes. While the district court compared the percentage of male and female athletes, the appeals court said it also needed to assess the numerical difference. The Sixth Circuit remanded the case to the district court. 

MSU appealed to the Supreme Court, asking the justices to review the method of comparison standard for applying Title IX. According to the university, the Sixth Circuit created an “unworkable compliance standard” that would “wreak havoc” on college athletics. 

“Title IX’s continued success depends on maintaining an achievable and workable standard that schools can meet without judicial micromanagement and never-ending litigation,” Gregory Garre, an attorney with Latham & Watkins representing Michigan State University, wrote in the school’s petition. 

The swimmers urged the court to turn down the procedural case, reminding the justices that the Sixth Circuit ordered MSU only to create a Title IX compliance plan. The appeals court did not order the university to reinstate the team. 

“In contending otherwise, Michigan State University (“MSU”) misrepresents the decision below and other relevant case law, relies on outdated Title IX data and fails to alert the Court to the changed facts in this case, misleads the Court by suggesting that women are underrepresented in varsity athletics at MSU because of ‘natural’ fluctuations in enrollment instead of MSU’s conscious decision to eliminate a thriving women’s team, and labels as ‘unworkable’ a standard that has been applied by courts since 1996 and has proven workable ever since,” Lori Bullock with Bailey Glasser wrote in a brief for the swimmers. 

New data, the swimmers claim, prove that female participation gaps at the school were large enough to sustain the eliminated team. 

“Because events on the ground have changed since the Sixth Circuit issued the decision below, MSU is asking this Court to issue an advisory opinion as to circumstances that no longer exist,” Bullock wrote. 

The court did not provide any comment when declining to hear the case. 

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