Balow v. Mich. State Univ.

• Decision Date: 01 February 2022
• Docket Number: No. 21-1183,21-1183
• Citation: Balow v. Mich. State Univ., 24 F.4th 1051 (6th Cir. 2022)
• Parties: Sophia BALOW; Ava Boutrous; Julia Coffman; Kylie Goit; Emma Inch; Sheridan Phalen; Madeline Reilly; Olivia Starzomski; Sarah Zofchak; Taylor Arnold; Elise Turke, individually and on behalf of all those similarly situated, Plaintiffs-Appellants, v. MICHIGAN STATE UNIVERSITY ; Michigan State University Board of Trustees; Samuel L. Stanley, Jr.; Bill Beekman, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

24 F.4th 1051

Sophia BALOW; Ava Boutrous; Julia Coffman; Kylie Goit; Emma Inch; Sheridan Phalen; Madeline Reilly; Olivia Starzomski; Sarah Zofchak; Taylor Arnold; Elise Turke, individually and on behalf of all those similarly situated, Plaintiffs-Appellants,

v.MICHIGAN STATE UNIVERSITY ; Michigan State University Board of Trustees; Samuel L. Stanley, Jr.; Bill Beekman, Defendants-Appellees.

No. 21-1183

United States Court of Appeals, Sixth Circuit.

Argued: October 26, 2021

Decided and Filed: February 1, 2022

ARGUED: Lori Bullock, NEWKIRK ZWAGERMAN, PLC, Des Moines, Iowa, for Appellants.Brian M. Schwartz, MILLER CANFIELD, PADDOCK AND STONE, P.L.C., Lansing, Michigan, for Appellees.Brant Levine, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Amicus Curiae.ON BRIEF: Lori Bullock, Jill Zwagerman, Danya Keller, NEWKIRK ZWAGERMAN, PLC, Des Moines, Iowa, Brian E. Koncius, BOGAS & KONCIUS, PC, Bingham Farms, Michigan, for Appellants.Brian M. Schwartz, Scott R. Eldridge, Erika L. Giroux, MILLER CANFIELD, PADDOCK AND STONE, P.L.C., Lansing, Michigan, for Appellees.Erin H. Flynn, Yael Bortnick, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Harrison J. Frahn IV, SIMPSON THACHER & BARTLETT LLP, Palo Alto, California for Amici Curiae.

Before: GUY, MOORE, and GIBBONS, Circuit Judges.

MOORE, J., delivered the opinion of the court in which GIBBONS, J., joined.GUY, J.(pp. 1062–69), delivered a separate dissenting opinion.

OPINION

KAREN NELSON MOORE, Circuit Judge.

Michigan State University(MSU) eliminated both its men's and women's swimming-and-diving teams.Members of the women's swimming-and-diving team ("student-athletes") sued, arguing that MSU fails to provide women athletes with equal participation opportunities as required by Title IX.The district court denied the student-athletes’ request for a preliminary injunction.WeVACATEthe district court's order and REMAND for further proceedings consistent with this opinion.

I.BACKGROUND

A. MSU's Elimination of Its Swimming-and-Diving Teams

Before the end of the 2019–20 academic year, MSU had the following Division I sports teams: men's baseball, basketball, cross country, football, golf, ice hockey, soccer, swimming and diving, tennis, track and field, and wrestling; and women's basketball, cross country, field hockey, golf, gymnastics, rowing, soccer, softball, swimming and diving, tennis, track and field, and volleyball.R. 8-2(Breske Decl.at 14)(Page ID #362).On October 22, 2020, MSU announced it would no longer sponsor the men's and women's swimming-and-diving teams after the 2020–21 school year.R. 1(Compl. ¶ 130)(Page ID #39).During the 2019–20 school year, the teams had 29 men and 33 women.R. 8-2(Breske Decl.at 14)(Page ID #362).

Eleven women student-athletes sought a preliminary injunction to prevent MSU from eliminating the women's swimming-and-diving team.R. 1(Compl.)(Page ID #1–55).They argued that MSU failed to provide women with substantially proportionate athletic opportunities, as required by Title IX.The student-athletes and MSU agree on the gender breakdown of the undergraduate student body as a whole: in the 2018–19 school year, 48.8% of undergraduate students were male and 51.2% were female; and, in the 2019–20 school year, 49.1% were male and 50.9% were female.R. 2-14(Lopiano Rep.at 20)(Page ID #217);R. 8-2(Breske Decl.at 10, 14)(Page ID #358, 362).The parties disagree, however, about the number of male and female athletes at MSU.

The district court denied the student-athletes’ motion for a preliminary injunction, finding that they were not likely to succeed on the merits of their Title IX claim.The student-athletes timely appealed.R. 18(Notice of Appeal)(Page ID #757).

B.Statutory and Regulatory Background

Title IX provides that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance."20 U.S.C. § 1681(a).Agencies are "authorized and directed to effectuate the provisions of section 1681 ... by issuing rules, regulations, or orders of general applicability."Id.§ 1682.

Regulations promulgated pursuant to Title IX extend its protections to athletics, 34 C.F.R. § 106.41(a);see also45 C.F.R. § 86.41(a), and require that recipients "shall provide equal athletic opportunity for members of both sexes,"34 C.F.R. § 106.41(c).The factors that determine whether equal opportunities are available include "[w]hether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes."34 C.F.R. § 106.41(c)(1).

In 1979, the Secretary of the Department of Health, Education, and Welfare(HEW)¹ issued, after notice and comment, a Policy Interpretation that "clarifie[d] the meaning of ‘equal opportunity’ in intercollegiate athletics."44 Fed. Reg. 71,413, 71,414(Dec. 11, 1979).This document established a three-part test to assess compliance:

(1) Whether intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments; or

(2) Where the members of one sex have been and are underrepresented among intercollegiate athletes, whether the institution can show a history and continuing practice of program expansion which is demonstrably responsive to the developing interest and abilities of the members of that sex; or

(3) Where the members of one sex are underrepresented among intercollegiate athletes, and the institution cannot show a continuing practice of program expansion such as that cited above, whether it can be demonstrated that the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program.

Id. at 71,418.

Only the first prong of this test is at issue.It defines participants as athletes:

a. Who are receiving the institutionally-sponsored support normally provided to athletes competing at the institution involved, e.g., coaching, equipment, medical and training room services, on a regular basis during a sport's season; and

b. Who are participating in organized practice sessions and other team meetings and activities on a regular basis during a sport's season; and c. Who are listed on the eligibility or squad lists maintained for each sport, or

d. Who, because of injury, cannot meet a, b, or c above but continue to receive financial aid on the basis of athletic ability.

Id. at 71,415.

In 1996, the Department of Education issued a "Dear College" letter to clarify this three-part test.In addition to "confirm[ing] that institutions need to comply only with any one part of the three-part test in order to provide nondiscriminatory participation opportunities," this letter clarified each of the test's three prongs.Office for Civil Rights, U.S. Dep't of Educ., Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test(Jan. 16, 1996), https://www2.ed.gov/about/offices/list/ocr/docs/clarific.html ("1996 Letter").It explained that substantial, not exact, proportionality is required "because 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."Id.Substantial proportionality is determined "on a case-by-case basis, rather than through use of a statistical test."Id.

The 1996 Letter further clarified:

OCR would also consider opportunities to be substantially proportionate when the number of opportunities that would be required to achieve proportionality would not be sufficient to sustain a viable team, i.e., a team for which there is a sufficient number of interested and able students and enough available competition to sustain an intercollegiate team.As a frame of reference in assessing this situation, OCR may consider the average size of teams offered for the underrepresented sex, a number which would vary by institution.

For instance, Institution A is a university with a total of 600 athletes.While women make up 52 percent of the university's enrollment, they only represent 47 percent of its athletes.If the university provided women with 52 percent of athletic opportunities, approximately 62 additional women would be able to participate.Because this is a significant number of unaccommodated women, it is likely that a viable sport could be added.If so, Institution A has not met part one.

As another example, at Institution B women also make up 52 percent of the university's enrollment and represent 47 percent of Institution B's athletes.Institution B's athletic program consists of only 60 participants.If the University provided women with 52 percent of athletic opportunities, approximately 6 additional women would be able to participate.Since 6 participants are unlikely to support a viable team, Institution B would meet part one.

Id.

II.DISCUSSION

"In reviewing a district court's decision to deny a preliminary injunction, we evaluate the same four factors that the district court does: ‘(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of the injunction.’ "Kentucky v. U.S. ex rel. Hagel , 759 F.3d 588, 600(6th Cir.2014)(quotingCity of Pontiac Retired Emps. Ass'n v. Schimmel , 751 F.3d 427, 430(6th Cir.2014)(en banc)(per curiam))."These factors are to be balanced against one another and should not be considered prerequisites to the grant of a...