24 F.4th 1051
6th Cir.2022Background
- Michigan State University announced elimination of its men’s and women’s swimming-and-diving teams after the 2020–21 season; the women’s team had 33 members (men’s 29).
- Eleven women student‑athletes sought a preliminary injunction under Title IX, alleging MSU failed to provide women substantially proportionate athletic participation opportunities.
- MSU and the plaintiffs agreed enrollment was roughly 49% male / 51% female; they disputed the count of female athletes: MSU’s internal Title IX counts produced a participation gap of 12 (pre-cut) and 15 (post-cut), while plaintiffs’ EADA/web‑roster data produced larger gaps (25 and 35).
- The district court denied the preliminary injunction, finding plaintiffs unlikely to succeed on the merits; plaintiffs appealed.
- The Sixth Circuit vacated and remanded, holding the district court misapplied Title IX guidance in three respects—(1) it improperly analyzed the gap as a percentage of the athletic program size; (2) it compared the gap to the average team size rather than whether the numerical gap could sustain a "viable team" (interest, ability, competition); and (3) it too narrowly rejected reliance on EADA/web‑roster data at the preliminary‑injunction stage.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MSU inflated female participant counts / whether certain athletes lacked "genuine" participation opportunities | MSU overstated female participants by counting novices or non‑competing rostered athletes (EADA/web rosters show larger gap) | MSU counted athletes consistent with Title IX definitions (novice rowers, practice‑only track athletes meet regulatory participant definition) | Court: District court did not clearly err—MSU’s practices meet Title IX participant definition; counts not shown to be inflated. |
| Proper metric to measure the participation gap: number vs. percentage | Use percentages (compare female % enrollment to female % of athletes) and numerical gap where helpful | Numerical calculation of how many roster spots are missing is central; but percentages are relevant to proportionality | Court: The regulatory guidance focuses on the number of participation opportunities; percentages are relevant but the ultimate inquiry is the numerical participation gap (especially when assessing whether those slots would sustain a team). |
| Whether a participation gap is acceptable if smaller than the average team size for the underrepresented sex | A gap smaller than average team size can still be significant; focus should be on whether the numerical gap could support a viable team (interest, ability, competition) | A gap smaller than the institution’s average team size shows it cannot support a new viable team; the 1996 OCR letter permits use of average team size as a frame of reference | Court: Comparing the gap to average team size is improper as a dispositive test; the correct inquiry is whether the numerical gap would be sufficient to sustain a "viable team" (qualitative factors required). |
| Availability of relief at preliminary‑injunction stage (reinstatement remedy; data reliance) | Plaintiffs may rely on EADA/web rosters at PI stage because schools control Title IX raw data; reinstatement of the women’s team is an appropriate PI remedy if Title IX likely violated | MSU: Title IX participant counts are the controlling metric; EADA differs and overcounts; plaintiffs failed to show likelihood of success, and courts should not order reinstatement when school has broad compliance options | Court: At PI stage, courts may consider EADA/web‑roster data given limited discovery, but the ultimate merits rely on Title IX counts; remedy questions (including reinstatement) should be decided by the district court after applying correct legal standards. |
Key Cases Cited
- Biediger v. Quinnipiac Univ., 691 F.3d 85 (2d Cir. 2012) (rejecting a fixed percentage safe harbor and discussing participant counting).
- Equity in Athletics, Inc. v. Dep’t of Educ., 639 F.3d 91 (4th Cir. 2011) (addressing percentage disparities and no bright‑line 2% rule).
- Cohen v. Brown Univ., 991 F.2d 888 (1st Cir. 1993) (preliminary injunction/remedial relief in athletics Title IX cases).
- Univ. of Texas v. Camenisch, 451 U.S. 390 (1981) (standard that preliminary injunctions may rest on less complete evidence).
- Horner ex rel. Horner v. Ky. High Sch. Athletic Ass’n, 206 F.3d 685 (6th Cir. 2000) (plaintiff burden to show statistical disparity under Title IX).
- Benisek v. Lamone, 138 S. Ct. 1942 (2018) (preliminary injunctions preserve the status quo pending trial).
- Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008) (injunction standard requiring likelihood of success and balance of harms).