On May 26, 2021, NWLC, along with co-counsel Legal Aid At Work and Simpson Thacher & Bartlett LLP, led a group of 25 other organizations to file an amicus brief in the Sixth Circuit in Balow v. Michigan State University in support of eleven members of MSU’s women’s varsity swim and diving team. In February 2021, a federal court in Michigan denied the plaintiffs’ request to stop MSU from eliminating their team at the end of the 2020-21 season.
As background, one way for a school’s athletics program to comply with Title IX is to ensure that the total number of spots on all sports teams for each gender is proportionate to each gender’s enrollment. If these numbers are not proportionate, then the school has a “participation gap.” If the participation gap is sufficient to sustain a viable team, the school is out of compliance. MSU fails this test. By eliminating its women’s swimming and diving team, the school would exacerbate an already-unlawful participation gap and create one that is plainly large enough to sustain a viable team for women—namely, the very team seeking to stop the University from eliminating it.
In our brief, we explain that the district court made several errors when it ruled against the women’s team. First, the court incorrectly assumed that MSU is in compliance with Title IX solely because its participation gap is less than 2%, even though there is no such “magic number” under Title IX. Second, the court incorrectly compared MSU’s participation gap with the average size of all women’s sports teams at MSU, instead of with specific sports teams, like the women’s swim and diving team. Finally, the district court wrongly rejected the plaintiffs’ use of MSU’s self-reported, publicly available data and instead credited MSU’s claims about internal data that it never actually produced.
If this decision is not overturned, large schools will be able to deprive many women of athletics opportunities by invoking the 2% safe harbor, and all schools will be able to cut their smallest women’s teams to inflate their average team size, allowing them to have ever-larger participation gaps. Furthermore, when women and girls sue their schools for violating Title IX, schools will be rewarded for hiding their internal data from courts and plaintiffs.
Read our blog post to learn more.