Sixth Circuit urged to save Michigan State swim team

CINCINNATI (CN) — The Sixth Circuit heard arguments Tuesday in a case that will decide the fate of the Michigan State University’s eliminated swimming and diving team.

The case arose after MSU announced in October 2020 that it would no long provide funding for its co-ed swimming and diving program, effectively eliminating the team after the 2020-2021 academic year.

The decision prompted a federal class action brought by a group of women student-athletes, who claim that the elimination of the swimming and dive team violates the federal law known as Title IX, which prohibits sex discrimination in education and by extension school sports.

The lawsuit sought an injunction to halt the elimination of the women’s swimming and diving team, which was denied by the district court. The student-athletes then appealed to the Cincinnati-based Sixth Circuit.

During a 30-minute hearing before a three-judge panel Tuesday, attorney Lori Bullock argued her clients were entitled to the injunction that they sought. She said the elimination of the team, which was made up of slightly more women than men, increased an already sizeable gap in overall athlete participation between women and men at the university in East Lansing.

“The participation gap created by the elimination of the women’s swimming and diving team is large enough to field a viable team,” Bullock said.

Justice Department attorney Brant Levine also joined in arguing for the student-athletes and said the lower court’s denial of the injunction was improper.

“The district court here erred in two key ways when it evaluated whether Michigan State denied equal athletic opportunity to its female athletes,” Levine said. “First, the court improperly relied on percentages and averages to excuse Michigan State’s participation gap. Second, the court failed to consider whether the participation gap, the actual numbers, could form a viable team.”

MSU's eliminated swimming and diving team contained men and women, but both Bullock and Levine argued that fact was not relevant because the overall participation gap between men and women’s sports is what is considered when weighing a school's Title IX compliance.

The judges asked a series of questions that centered on compliance, and what the university could do to fix the issue if they were to grant the students' injunction.

This seemed to be a key point during the hearing because while Title IX prohibits discrimination, the federal law grants a school great leeway in determining how to comply with the law.

“Can the university approach this problem by further reducing the number of men athletes?” asked U.S. Circuit Judge Ralph Guy, a Ronald Reagan appointee.

“The university can choose to do that, if that is what they choose to do after a trial on the merits,” Bullock replied. “That would not be something that the women are advocating for. Title IX encourages athletic participation by all genders and the spirit of the law and regulations encourage adding women rather than subtracting men.”

Bullock expanded on that point by saying that the women in this case have suffered a very specific injury in being unable to continue their athletic careers, and that the injunction is to address those injuries. She said the university would have the ability to come up with its own solution to the issue after trial.

Attorney Brian Schwartz argued on behalf of MSU. He said that because the team does not currently exist, the student-athletes are actually requesting that the university create a new team, a solely women’s swimming and diving team.

“Since the district court denied the appellants' motion, that team no longer exists, student-athletes have graduated or are not enrolled, coaches have moved on elsewhere,” he said. “Essentially what appellants are asking the court to do now is to require MSU to start from scratch and create a team that didn’t exist, a single women’s team.”  

Schwartz went on to say that the student-athletes had not shown that they are entitled to an injunction, and even if they were, the relief they request is not appropriate because it does not give the university the decision-making power in determining what women’s team should be created to bring them into compliance with Title IX.

“MSU doesn’t have to prove it's Title IX compliant,” Schwartz added. “Plaintiffs have to prove that there is a violation of Title IX.”

Regardless of the fate of the injunction, the class action continues and is currently in the discovery phase of pretrial proceedings.

Guy was joined on the panel by U.S. Circuit Judges Karen Moore and Julia Gibbons, appointed by Bill Clinton and George W. Bush, respectively.

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