What if the court system substantially weakens Title IX?

Good morning, and thanks for spending part of your day with Extra Points.

At this point, I don't think there are many bedrock principles in college sports that anybody can assume will remain constant and unchanging. Historical rivalries? Those get canned all the time. Geographic proximity and institutional fit? We now have schools in LA scheduled to play conference games against those in New Jersey and Maryland. Amateurism? Constantly redefined and could get stamped out entirely by the court system over the next decade. Bowl games? The NCAA Basketball tournament? Would you bet on those systems remaining the same over the next decade?

Another log you could add to that pile? Potentially Title IX. Per USA TODAY, Michigan State has petitioned the court to reconsider a District Court order over the school's decision to cut Men's and Women's Swimming.

Via the story:

The case stems from the university’s decision in October 2020 to eliminate its men’s and women’s swimming teams at the end of the 2020-21 season. Eleven members of the women’s team filed suit in January 2021 seeking reinstatement of the women's team. They alleged that Michigan State’s decision would result in the university violating the law’s requirement that schools provide equitable sports-participation opportunities for men and women.

At issue is how to determine whether a school has met the most commonly used benchmark of whether it is providing equitable participation opportunities: Men and women being afforded athletic opportunities in a manner that is substantially proportionate to the school’s male and female enrollments.

Here is the Docket, if anybody is interested.

As best as I can understand this, the legal question is not "is Title IX constitutional", but a relatively narrow question of how compliance with Title IX is calculated.

USA TODAY reports that the earliest the court could decide on hearing the case would be October.

Now, it's important to remember that just because somebody petitions the Supreme Court doesn't mean the court will hear the case.

According to the American Bar, the court gets between 7,000-8,000 petitions a year, but only actually hears oral arguments for about 80. Even without knowing anything else, just by the numbers, it's pretty unlikely that any particular petition gets taken up.

The facts of this case, according to a few experts I talked to, don't scream "the court will absolutely take this up" either. Sam Ehrlich, a law professor at Boise State and former Extra Points freelance contributor, told me that he doesn't think the court would be especially interested in this case. "The Circuit Split here is so narrow that I can't imagine the court would be particularly interested." The facts and scope of this particular legal question appear to be much more narrow than say, Alston.

Robert Boland, a law professor at Seton Hall, also agreed it's less likely this particular case is taken up, but raised an important point:

I don't believe there is any possible way that the court could decide to hear this case and then decide that Title IX is completely unconstitutional. But if they did choose to hear the case, they could theoretically throw out some of the tools the government uses to enforce it. As Anita Moorman, a law professor at Louisville explained here:

Anita Moorman @ammoorman @MattBrownEP The court's cannot throw out Title IX, but they can throw out some or all of the formulas for calculating substantial proportionality. But it would require reversing quite a bit of Title IX precedent. 5:44 PM • Jul 31, 2022 0 likes • 0 retweets

For what it's worth, I do think it's fair to say that this current court has shown they're willing to rule against legislation, policies or even traditions that have been in effect for decades. I also think it's fair to say that this current court has not been overly sympathetic to enhancing the State's ability to enforce regulatory policy. In the event that a Title IX case was considered by this current court, be that this case, or potentially a future one, I don't think anybody can feel comfortable assuming that the college sports status quo of the last several decades is guaranteed to survive unscathed.

I can certainly understand why any Title IX advocate would be very uneasy about the prospect of any Title IX athletic case going in front of this Supreme Court.  

Why, exactly, is Michigan State doing this?

I am trying to be charitable here, but I'm struggling to come up with good reasons for why the university would decide to petition the Supreme Court over this.

Let's take a step back for a second. Michigan State first announced that they were going to cut Men's and Women's Swimming and Diving back in 2020. The school claimed, essentially, that COVID-19 forced the school to "evaluate their prospects for the future", and concluded the program doesn't have the proper athletic facilities to support swim programs, and that the school reached an"understanding that there is not a reasonable expectation of a better situation in the future. The program also pled poverty in the short term, thanks to COVID.

Building a new, Big Ten-caliber swim facility is not a small undertaking, especially given inflation, labor shortages, and supply chain disruptions. But just this year, the school approved over $4 million in spending for Spartan Stadium improvements (including stuff that has absolutely nothing to do with recruiting, like an upgraded sound system), to say nothing of the new football support building that cost tens of millions of dollars. In 2019-2020, the last non-COVID impacted budget, Michigan State athletics reported over $130 million in revenue, including $44 million in broadcast revenue. In a few weeks, the league will sign a new TV contract that will easily more than double that $44 million mark.

According to FRS reports I've inspected in our FOIA Directory, the combined operating costs for a Big Ten Men's and Women's Swim program, including scholarships, runs between $4-7 million.

I'm sure that building a new pool would be expensive, onerous, and would take donor resources away from other projects the school would rather do right now. But you know what? Michigan State could afford to build a pool and run swim programs. To claim poverty, especially after the USC/UCLA additions, and after Mel Tucker's new contract, is...well, there's no nice way to say it. It's simply bullshit.

So it's already surprising to see the school push so hard to avoid spending a relatively modest amount of money. But surely Michigan State knows the risks to Title IX and Women's Sports, generally, if the government's ability to push for equal opportunities was reduced or eliminated. Via the USA TODAY story,

If the Supreme Court chooses to hear the case, “it would send Title IX advocates into a panic,” said Barbara Osborne, a sports administration professor at the University of North Carolina who holds secondary appointment at the university’s law school.

Given that Michigan State University, I assume, believes in diversity and equality as institutional values, why would they risk the reputational damages and potential damages to women's athletic opportunities, generally,  to save a few million dollars? Especially given Michigan State's already well-publicized athletic department scandals?

That feels like a genuinely outrageous risk to take for a public university...and for what?

So what happens next?

For this specific case? We wait to see if the Supreme Court actually decides to take up this issue. Math and precedent would tell us that's quite unlikely, but hey, you never know.

One of the especially challenging things about trying to write about this particular moment in college sports history is that essentially, everything is happening at once all of the time. We have breakneck changes in NIL law, policies, and market evolution, while D-I is considering rewriting how they determine membership guidelines and revenue sharing, the federal courts examine amateurism-related issues, AND while conferences are constantly realigning. This is why I needed that mini-vacation.

So many of those decisions are based, in part, on Title IX compliance, and assumptions on what that means over a one, five, or ten-year period. Every court challenge, be that from a university, or perhaps activist group, not only nudges the Overton Window of college sports reform a bit, but potentially upends every other assumption needed to make decisions about, well, everything else.

It'd be one thing if all of this was just some grand academic exercise. But it isn't. The decisions that happen over the next several months, at the school, conference, state, and federal levels, will shape the lives of countless athletes, potential athletes, and professionals. These decisions will impact how people pay for college, where they attend college, what their short-term careers look like, and more. The stakes are significant.

Maybe this particular case doesn't end up going anywhere. In fact, the odds would probably dictate that would be the most likely outcome. But I do think it's fair to say that it's just one more thing to monitor...and eventually, one of those things is going to turn into something much, much bigger.

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