By Ellen J. Staurowsky, Ed.D., Senior Contributor and Professor, Sports Media, Roy H. Park School of Communications, Ithaca College, firstname.lastname@example.org
On July 29, 2022, Michigan State University (MSU) requested that the U.S. Supreme Court consider an issue pertaining to the application of Title IX of the Education Amendments Act of 1972 to athletic departments. The central question MSU seeks to have resolved is when there is a gap in the athletic participation opportunities a school offers that favors one gender over another, what standard should be used to determine if the existing gap violates Title IX?
Background – Michigan State’s Decision to Cut Men’s and Women’s Swim and Dive
In October of 2020, then MSU athletic director Bill Beekman met with the coaching staff and athletes who competed on the Spartan men’s and women’s swim and dive teams to deliver the news that their teams were being eliminated. Describing the experience of being at the meeting, one athlete said he felt paralyzed, another observed that there was a wave of anger, and another expressed how strange it was to continue to compete knowing that at the end of the season her team would be gone (Gattoni, 2020).
In an interview with reporters following the meeting, Beekman described it as his most emotional moment as an athletic director, explaining that the decision was made because of financial shortfalls triggered by the COVID-19 pandemic (Charboneau, 2020). In an immediate sense, the decision impacted 59 athletes in total across both sports and four coaches. While MSU indicated that athletes on scholarship who wished to remain at the institution would continue to be funded and support provided to those affected, the administration’s claims that all avenues to retain the teams had been explored raised numerous questions.
The $30 million budget shortfall was largely attributed to lost revenues associated with cancellation of the NCAA Division I men’s basketball tournament the previous year, uncertainty regarding the Big Ten’s football season in the fall of 2020, and the decline in ticket sales as a result of the pandemic. At a practical level, the elimination of the men’s and women’s swim and dive teams was not going to affect the budget shortfall in 2020-2021 because the money was already effectively expended and existing commitments regarding athletic scholarships would carry forward into future budget years.
The broader budgetary context in which the decision to eliminate men’s and women’s swimming at MSU included a contract that paid former Spartan football head coach, Mark Dantonio, $4.3 million despite the fact that he had announced his retirement. The payout occurred because he remained with the program through January 15, 2020, thus allowing him to benefit from a provision that recognized his 13 years of service at Michigan State (Straka, 2020). The Dantonio vacancy led to the hiring of Mel Turner, initially hired at $5.3 million per year, who received a 10-year $95 million guaranteed contract in November of 2021, a year after financial challenges were identified as the reason for the MSU men’s and women’s swim and dive team cuts (Peterson, 2021).
Beyond the $2 million operational costs that were saved by cutting the men’s and women’s swim and dive team, Beekman also commented in interviews about facilities issues that would have required a financial investment that the MSU athletic department did not have. He cited the fact that both the indoor and outdoor pools at MSU fell under the umbrella of the recreation department and not the athletic department, that the outdoor pool had ceased operation, and the indoor pool was inadequate to draw top recruits because it was a 25 yard rather than 50-meter pool. Although the athletic department had contributed to repairs in 2007 and 2017, Beekman indicated at the time of the cuts that the investment necessary to run a top NCAA Division I swim and dive program was simply out of reach of the athletic department and not anticipated from MSU recreation department.
In point of fact, in May of 2021, seven months after the decision was announced, Beekman offered further clarification regarding the criteria used in assessing the future of the swim and dive teams. Those criteria included the potential for the sport to be successful; the investment it would take to make the sport more competitive; the potential cost savings realized from cutting the teams; the impact on diversity and inclusion; and the affect the cuts would have on all athletes at MSU (Steinbach, 2022).
MSU Women Swimmers File A Title IX Lawsuit in January, 2021
In response to the decision to cut their team, women swimmers attempted to engage in a productive dialogue with Beekman in November of 2020. When MSU’s administration responded by reiterating that the decision was final, MSU swimmers sought preliminary and permanent injunctive relief from the sex discrimination they were subjected to as a result of MSU failing to provide proportional athletic opportunities to women athletes and depriving women athletes of the full measure of athletic scholarship assistance to which they were entitled under Title IX of the Education Amendments of 1972 (Balow et al. v Michigan State University et al., 2021). The women swimmers further sought to stop the harms they were experiencing as they faced the prospect of having their athletic careers terminated early if they were not in a position to transfer or suffering the hardships associated with transferring to another institution and dealing with the academic, athletic, social, and economic implications of such forced decisions. The plaintiffs alleged, based on EADA data and publicly available online roster information, that MSU was not providing athletic opportunities to women athletes proportional to enrollment while MSU was inflating the number of women participants in the sports of rowing, track and field, and cross country to present a more favorable picture of their efforts on behalf of women athletes.
In September of 2021, U.S. District Court Judge Hala Jabour denied the Plaintiff’s motion for a preliminary injunction, concluding that they had not demonstrated a substantial likelihood of success. In February of 2022, the Court of Appeals for the Sixth Circuit, in a 2-1 decision, overturned the Court’s decision by noting errors in the calculation of substantial proportionality in terms of athletic participation opportunities (where a comparison in the participation gap had been made to the size of the average women’s team at MSU instead of to the size of a viable team) and a misinterpretation of the 1979 Title IX Policy Interpretation and Dear Colleague Letter issued by the U.S. Department of Education Office for Civil Rights in 1996 that considers the number of participation opportunities rather than the gap as a percentage of the athletic program. The district court’s order was vacated and the case was remanded for reconsideration.
Upon reconsideration, Judge Jabour granted the Plaintiiff’s request for a preliminary injunction but only in part. Rather than halting the elimination of the MSU swim and dive team until after the court had made a determination regarding the Plaintiff’s Title IX claims at trial scheduled for January of 2023, the Court found “the appropriate relief is to require MSU to submit a compliance plan to reduce or eliminate the existing participation gap for women” (p 24). In rationalizing this course of action, the Court noted
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. It makes little sense to require MSU 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 (p. 24).
Michigan State Submits Petition for Writ of Certiorari With the U.S. Supreme Court in July, 2022
Judge Jabour’s decision to partially grant a preliminary injunction on behalf of the Plaintiffs has left both parties wonting. The Court declined to stay the proceedings while MSU contested the Court of Appeals’ decision as it seeks a writ of certiorari with the U.S. Supreme Court. MSU argued that the appeals court had imposed a rigid numerical standard in the analysis of substantial proportionality in offering athletic participation opportunities, something it says is “tantamount to an ‘exact proportionality standard’” (Application Directed to the Honorable Brett M. Kavanaugh for Extension of Time to File A Petition for Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit, 2022, p, 9). The implication, MSU suggested, is that fluctuations that arise in the course of a given year due to non-gender specific factors could trigger Title IX violations. MSU argued that gaps in participation should be viewed in terms of overall percentages, allowing for “minimal” percentage gaps to be tolerated.
Some will argue that the question raised by Michigan State is one that has already been answered by established precedent. The scenario described in MSU’s application is one that is covered in the 1996 Dear Colleague Letter offering a Clarification of Intercollegiate Athletics Policy: Three-Part Test (Cantu, 1996). In that clarification
…in some circumstances it may be unreasonable to expect an institution to achieve exact proportionality–for instance, because of natural fluctuations in enrollment and participation rates or because it would be unreasonable to expect an institution to add athletic opportunities in light of the small number of students that would have to be accommodated to achieve exact proportionality–the Policy Interpretation examines whether participation opportunities are “substantially” proportionate to enrollment rates.
As a consequence, rather than insisting on “an exact proportionality standard”, decisions regarding whether a school is in compliance with Title IX in athletics are made on a case-by-case basis that takes into account an institution’s specific circumstances and the size of its athletic program. In circumstances where the participation gap is not large enough to sustain a viable team, a school would be found to be offering athletic participation opportunities that are substantially proportional.
In analyzing the participation gap that existed at Michigan State, the district court found that “over the last eight years, the participation gap has ranged from 12 to approximately 50, within an average of 31. In all these years, the gap disfavored women. Intuitively, one would expect natural fluctuations at a school complying with Title IX to result in some years where the gap disfavors men. This is not the case here…” (Balow et al. v. Michigan State University et al., August, 2022, p. 17).
What this case leaves us with are several unanswered questions for the Plaintiffs as well as MSU. For the Plaintiffs, these questions linger. First, as the MSU women’s swimmers case proceeds to trial scheduled for January of 2023, will MSU be found to have violated Title IX by offering fewer athletic opportunities to women athletes and depriving them of the benefits of equal treatment in other areas of the program? Second, will the Plaintiffs allegations that MSU manipulated its report of athletic participation opportunities to suppress the number of athletic opportunities available to men while inflating the number of athletic participation opportunities available to women to give the appearance that the participation gap was not as great as it actually was be born out? Third, how will MSU’s claims that the decision to eliminate men’s and women’s swim and dive was due to financial issues prompted by COVID when the athletic department was investing heavily in its top tier football program, with an $11 million renovation approved by the Board of Trustees in April of 2022, scheduled for completion by October of 2023? Fourth, how will MSU’s claims of financial hardship be viewed in light of a new Big Ten television contract that is, at the moment, the most lucrative in college sport, that could yield more than $25 million in additional revenue per year? Fifth, how will MSU’s claims that it had explored every option to address funding issues for the program when an organization called Battle for MSU Swim and Dive (2022), a group of current athletes, alumni, Olympic supporters, and friends of the program, raised $10.85 million in pledges in a few short months?
For MSU and its challenge before the U.S. Supreme Court, did the Sixth Circuit Court of Appeals depart from other courts by finding that athletic participation opportunities are substantially proportionate when the number of athletes needed to close a gap is so small that it cannot sustain a viable team? Or is MSU taking an issue that has established precedent and putting it before the U.S. Supreme Court at a time when the Court has evidenced some willingness to entertain issues to overturn precedent impacting women’s rights, as reflected in its controversial decision in Dobbs v. Jackson Women’s Health Organization (2022)?
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