Balow v. Michigan State Univ.

Summary

**Title IX – Athletic Participation Opportunities – Substantial Proportionality – Preliminary Injunction** The Sixth Circuit vacated the denial of a preliminary injunction in a Title IX suit by female swimmers challenging Michigan State University's elimination of the women's swimming-and-diving team. The court held that the district court erred by (1) measuring the participation gap as a percentage of the athletic program rather than focusing on the numerical gap, (2) comparing the gap to the average team size instead of the size of a viable team (one with sufficient interest, ability, and competition), and (3) potentially applying a bright-line 2% safe harbor for substantial proportionality. The court also noted that at the preliminary-injunction stage, plaintiffs may rely on Equity in Athletics Disclosure Act (EADA) data to show a likelihood of success, even though Title IX counts participants differently.

Holdings

1. The district court erred by considering the participation gap as a percentage of the athletic program. The correct inquiry focuses on the number of participation opportunities, not the gap as a percentage.
2. The district court erred by comparing the participation gap to the average team size. The correct comparison is to the size of a viable team, defined as one for which there is sufficient interest, ability, and competition.
3. At the preliminary injunction stage, it may be appropriate to rely on EADA data to calculate the participation gap, given that schools have access to the underlying Title IX data.

Questions Presented

1. Whether the district court erred in analyzing the substantial proportionality test under Title IX by considering the participation gap as a percentage of the athletic program rather than as a numerical gap.
2. Whether the district court erred by comparing the participation gap to the average team size rather than to the size of a viable team.
3. Whether the student-athletes could rely on EADA data at the preliminary injunction stage to calculate the participation gap.

Disposition

vacated