Michigan State University has been through excruciating turmoil in the last several years. First, the scandal involving former team doctor Larry Nasser assaulting young female gymnasts drew international outrage and derision. Then, there was the campus wide tumult in October 2022 involving the faculty’s vote of no confidence in (and the resignation of) former president Samuel Stanley, Jr. for his handling of a Title IX case. Now comes word that MSU has settled a two plus year old lawsuit filed by the women’s swimming team, with longer term consequences and nationwide implications.
It has been a rough few years in East Lansing.
When the news broke that both the women’s and men’s swimming programs would be cut in October 2020, there was shock and sadness. Amid declining department revenue resources available in the early days of the pandemic, as well as an outdated pool, former athletics director Bill Beekman and president Stanley shared a news release, which said, in part, “We understand that the news is devastating to our outstanding student-athletes in these sports, as well as to their coaches, but with every thoughtful analysis it became increasingly clear that we were not positioned to offer the best experience to our student-athletes, either now or in the future.”
Enter the Attorneys
Plaintiff’s attorneys Lori Bullock and Joshua Hammack of BaileyGlasser were contacted by the athletes on the women’s team almost immediately after the news broke. In an interview for my podcast “Trustees and Presidents-Managing Intercollegiate Athletics”, they spoke with me about the strategy that led to the landmark settlement in the case, and will benefit current and future MSU women athletes.
A varsity sport since 1970, women’s swimming has had great success over the decades, producing Olympians, All-Americans and numerous Big Ten Champions. Even in their final year, the team sent multiple individual swimmers on to win NCAA championships and five athletes to the Olympic trials in 2021, Bullock told me. According to Hammack, the team achieved the highest grade point average in the entire athletics department in their final year of existence.
Why was swimming dropped?
Originally, it sounded like the decision was driven by the pandemic. Closure of the NCAA regulation outdoor pool became the next, default excuse. The University continued to argue that, despite dropping both sports, they were in compliance with Title IX.
Michigan State pushed back. After a lawsuit was filed by the swimmers, MSU filed numerous motions and appeals to try to get the case dismissed, going as far as appealing to the U.S. Supreme Court. The high court turned them down on December 12, 2022, sending the case back to the lower courts for trial. At all levels, they argued the department was compliant with the law.
At a public meeting four days later, MSU trustees delivered a message telling the campus declaring the poor condition of the swimming facilities was the real issue. Trustee Melanie Foster, chair of the Budget and Finance Committee, told the audience “We do not see a viable path to establish a swim and dive program. Most prohibitively, without sufficient existing fundraising, there is not a path to build a new competition pool without assessing a fee to the entire student body.”
There was a problem with that argument. Michigan State had already announced a brand new health and wellness center which could potentially include an NCAA regulation pool in the future. With the current pool reaching the end of its life expectancy in 2025, it seemed the new facility (if approved) could meet most of the team’s training needs (except for a team locker room). Swim parent Mike Balow, father of the lead plaintiff in the case Sophia Balow, told the trustees the alumni would welcome the opportunity to fundraise for the additional program needs, including the locker room.
The swimmers along with attorneys Bullock and Hammack, gathered data to find out how equitable the opportunities were for all female athletes at MSU, not just the swimmers. Were they, in fact, actually in compliance as a department?
Diving further into the 11 remaining women’s programs roster sizes, they discovered glaring inconsistencies between what Michigan State claimed as compliance with the law and what the numbers actually showed. There were discrepancies in travel, recruiting and other “treatments and benefits”.
Like many universities, MSU believed they were in compliance if the percentage of their female athletes came within 2% of the total campus female full-time undergraduate enrollment after women’s swimming was dropped, said Bullock. That proved to be an incorrect interpretation of the law, upheld all the way to the Supreme Court. After both sports were dropped, the plaintiffs demonstrated the gap between male and female athletes grew wider- at least 28 “roster slots”, enough for a full varsity team (including swimming).
Michigan State’s argument began to fall apart.
Digging deeper, Bullock told me, they found multiple instances of inequities in travel and lodging, noting that, for example, more men’s teams took charter air flights, while women’s teams took vans and busses. The amount of time away from campus was substantially inequitable. They also discovered that administrators were “inflating” the roster numbers for women’s rowing, counting athletes as participants for the entire fall and spring seasons when they only participated for a couple of weeks at the beginning of the academic year. Particularly problematic was the creating of a “novice” designation in the rowing program. While the numbers of novice rowers did count towards Title IX compliance, their experiences were nowhere near similar to the varsity rowers.
More Hope for Current and Future Women Athletes
The settlement achieved a number of guarantees and benchmarks not seen before in any other Big Ten Title IX case. While the settlement announced January 13, 2023 does not guarantee the return of the women’s swimming team, it does hold the University accountable to do some of the following things through 2030:
- Appointing a neutral party to deliver an annual Gender Equity Compliance Report, including review of the treatment, benefits and athletic financial aid provided to all female athletes that year;
- MSU will no longer be able to pad their women’s rowing roster, and must cap it at 85 participants annually;
- At the end of the academic year, if the gap between male and female athletes exceeds 28 in favor of male athletes for two consecutive years, or is higher than 16 athletes for one year, the University will immediately a) add a women’s team, or b) implement a roster management process across men’s and women’s teams;
- Michigan State cannot drop a women’s team during this time period.
Deputy university spokesperson Dan Olsen told the State News, “MSU remains committed to providing equal opportunities for all student-athletes. While the university is in compliance with Title IX, these measures will help ensure public trust in our compliance enforcement through an ongoing independent, third-party review.”
Women’s swimming may one day return to campus, perhaps competing in a brand new health and wellness facility in a few years. The swimmers, past and present, who fought hard against the team’s demise ultimately delivered hope and opportunity to hundreds of future Spartan athletes moving forward. They may have lost the battle, but a significant victory was won. That is an outcome worth noting.