CINCINNATI (CN) — The women swimmers of the former Michigan State University Swimming and Diving Team were granted a lifeline by a federal appeals court ruling Tuesday.
In a split 2–1 ruling, the Sixth Circuit sided with the athletes and ordered the case to be sent back to the lower court for a proper determination on whether ending the swim team tilted the participation gap between men and women in MSU athletic programs so that it runs afoul of the federal Title IX law.
Title IX prohibits sex discrimination in education and school sports but gives schools discretion on how to structure its athletic programs to be compliant with the law. The plaintiffs in this case argued that MSU increased an already present participation gap when it decided to end funding for its swimming and diving team, which was made up of slightly more women than men.
U.S. Circuit Judge Karen Moore authored the majority opinion, and found that the lower court erred when it calculated the participation gap by percentages instead of the raw numbers of athletic opportunities available to women student athletes at the university.
“While the percentage gap may be relevant, substantial proportionality should be determined by looking at the gap in numerical terms, not as a percentage. A school may fail to achieve substantial proportionality even if its participation gap is only a small percentage of the size of its athletic program,” Moore, a Bill Clinton appointee, wrote.
This decision now tasks the district court with making another determination on whether MSU is compliant with Title IX and provides a clarified framework to follow for making that decision.
Should the district court find in favor of the women, it will have to also decide an appropriate remedy, which does not necessarily mean that the team would be reinstated. Instead, the court could simply allow MSU to determine what measures should be taken to comply with the law.
In a dissenting opinion, U.S. Circuit Judge Ralph Guy argued that the standards the majority laid out contain a misreading of the law.
“Practically speaking, today’s decision means that if the participation gap is greater than any team for which there is interest, ability, and available competition (i.e., a 4-person tennis team), a school must always add that team to comply with Title IX,” wrote Guy, a Ronald Reagan appointee. “That is tantamount to requiring perfection, not substantial proportionality."
Guy also took issue with the relief sought by the swimmers, who wish to have their team back, arguing that Title IX does not require a school to reinstate a particular team, only that it be compliant by increasing athletic opportunities.
The majority opinion responded to this argument by saying that such an interpretation leaves courts with little way to remedy an error of law in these situations.
“The dissent argues that an injunction cannot be appropriate because it does not maintain the status quo. Certainly, the costs of reinstating a team may impact the district court’s valuation of the second and third preliminary injunction factors. That does not, however, mean that if a district court denies a preliminary injunction based on a misreading of the law, courts are without the ability subsequently to rectify that error,” Moore wrote.
Moore was joined in the majority by U.S. Circuit Judge Julia Gibbons, who was appointed to the court by George W. Bush.
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