Judge rules Michigan State isn’t Title IX compliant but doesn’t have to reinstate women’s swim and dive

A United States district court judge ruled Michigan State University isn’t compliant with Title IX but denied a preliminary injunction to immediately reinstate the women’s swimming and diving team.

Judge Hala Y. Jarbou on Monday ordered Michigan State to submit a Title IX compliance plan to the court within 60 days.

Title IX is a federal law that prevents sex-based discrimination and requires universities to provide equal athletics opportunities for men and women.

Jarbou’s ruling came in a lawsuit brought by former members of the Michigan State women’s swimming and diving team – a program that’s elimination was announced almost two years ago. The lawsuit alleges the university provides fewer participation opportunities in athletics for women than men. The trial for the lawsuit is scheduled for January 2023.

“If the Court were to conclude that MSU has not complied with Title IX due to a significant participation gap for women, then 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 wrote in the opinion. “It makes little sense to require MSU to use its finite resources to temporarily reinstate the women’s swimming and diving team where, even if Plaintiffs succeed on their claims, MSU could chart a different course in a few months’ time. Those resources are better spent on what is more likely to be a sustainable course of compliance over the long term.”

Michigan State, its Board of Trustees, president Samuel Stanley and former athletic director Bill Beekman are defendants in the lawsuit. Beekman stepped down in August 2021 to take a new job at the university and Alan Haller was named his successor the following month.

“We’re reviewing the judge’s decision to determine appropriate next steps,” Michigan State deputy spokesman Dan Olsen said in a message to MLive on Tuesday.

Beekman in October 2020 announced the university would eliminate the men’s and women’s swimming and diving teams after the 2020-21 season while citing financial constraints due to the pandemic and limited facilities. The university honored the scholarships of the athletes.

A group of 11 members of Michigan State’s women’s swimming and diving team filed a Title IX lawsuit in January 2021, attempting to get the program reinstated. The following month, Jarbou initially denied the injunction to have the team reinstated before the Court of Appeals for the Sixth Circuit overturned that decision and sent it back for additional proceedings.

The lawsuit alleges Michigan State overcounts participation opportunities for women in multiple sports while also having different counting methods for men and women who quit teams – a claim Jarbou on Monday wrote she didn’t agree with.

When the Court of Appeals sent the lawsuit back, it altered the Title IX metrics used and replaced them with the “viable team” test, which means a school is in violation if the participation gap – the number of athletic opportunities for men and women based on enrollment – ​​is larger than the number of athletes needed to form a team.

Michigan State is asking the United States Supreme Court to review the Court of Appeals’ decision and wanted a stay in the district court proceedings during that appeal, but that was denied Monday by Jarbou.

Numbers provided by Michigan State showed a participation gap of 36 fewer athletic opportunities for women in 2021-22 among more than 800 total athletes with the university enrollment of more than 35,000 students. The gap was 40 (2020-21), 12 (2019-20) and 27 (2018-19) in previous years while Jarbou wrote the average gap was 31 over the last eight years with women disfavored each time. However, the judge was not willing to grant the injunction to reinstate the swimming and diving team as the lawsuit proceeds and cited challenges it would require to field a team for the coming season.

“Here, Plaintiffs suffered harm by losing the ability to compete on their team,” Jarbou wrote. “But 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. If Plaintiffs ultimately demonstrate at trial that MSU has not complied with Title IX, that statute would not require MSU to maintain a varsity women’s swimming and diving team, or any other sports team.”

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