Balow v. Mich. State Univ.

SOPHIA BALOW, et al., Plaintiffs, v. MICHIGAN STATE UNIVERSITY, et al., Defendants.

No. 1:21-cv-44

United States District Court, W.D. Michigan, Southern Division

September 22, 2021

OPINION

HALA Y. JARBOU, UNITED STATES DISTRICT JUDGE

Michigan State University (MSU) decided to end support for its men's and women's varsity swimming and diving programs after the end of the 2020-2021 season. Plaintiffs were members of MSU's varsity women's swimming and diving team^[1] when MSU made that decision. They claim that MSU discriminates against women, in violation of Title IX, 20 U.S.C. §§ 1681 et seq. Specifically, in Count I of their complaint, Plaintiffs claim that MSU provides “fewer and poorer athletic participation opportunities” for women than it does for men. (See Compl., ECF No. 1, PageID.45.) In Count II Plaintiffs claim that MSU has not allocated financial assistance to male and female athletes on an equal basis. In Count III, Plaintiffs claim that MSU has not allocated other benefits to male and female athletes on an equal basis. In Count IV, Plaintiffs claim that Defendants discriminated against them in violation of Michigan's Elliott-Larsen Civil Rights Act (ELCRA), Mich. Comp. Laws § 37.2101, et seq.

Plaintiffs believe that the elimination of their team would exacerbate some of these problems. They brought this action against MSU MSU's Board of Trustees, MSU President Samuel L. Stanley Jr., and MSU's Director of Athletics, Bill Beekman. Among other forms of relief, Plaintiffs asked the Court for a preliminary injunction requiring MSU to maintain its varsity women's swimming and diving team for the duration of this lawsuit. The Court denied that request. (See 2/19/2021 Op., ECF No. 16.)

Before the Court are Defendants' motion to dismiss the complaint for failure to state a claim (ECF No. 21) and Plaintiffs' motion for leave to file an amended complaint (ECF No. 30). The Court will grant the motion to dismiss in part and deny leave to file the amended complaint.

I. Allegations

According to the complaint, MSU is a member of the NCAA Big Ten Conference, and its sports teams participate in Division I, the highest level of intercollegiate competition. For the 2020-2021 academic year, MSU sponsored multiple men's and women's sports teams, including:

baseball, men's and women's basketball, men's and women's cross country, football, men's and women's golf, gymnastics, men's ice hockey, rowing, softball, men's and women's soccer, men's and women's swimming and diving, men's and women's tennis, men's and women's track and field, volleyball, and wrestling.

(Compl. ¶ 124.) In October 2020, the school announced that it would not sponsor the men's and women's diving teams after the 2020-2021 season. Plaintiffs do not mention the elimination of the men's team in their complaint, but they acknowledged it in their preliminary injunction briefing. (See Pls.' Reply Br. in Supp. of Mot. for Prelim. Inj. 6, ECF No. 13.)

Plaintiffs allege that there were 38 members of the women's team as of January 2021. (Compl. ¶ 2.) Plaintiffs do not allege any details about the men's team, but Defendants' evidence presented in opposition to the preliminary injunction indicated that there were 33 members on the women's team and 29 members on the men's team in the 2019-2020 season (see Breske Decl. ¶¶ 19, 21, ECF No. 8-2); thus, if the numbers remained consistent for the 2020-2021 season, eliminating both teams would result in a net loss of approximately four opportunities for women.

II. Dismissal Standard

A complaint may be dismissed for failure to state a claim if it fails “‘to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While a complaint need not contain detailed factual allegations, a plaintiff's allegations must include more than labels and conclusions. Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”). The court must determine whether the complaint contains “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 679. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-that the pleader is entitled to relief.” Id. (quoting Fed.R.Civ.P. 8(a)(2)).

Assessment of the complaint under Rule 12(b)(6) must ordinarily be undertaken without resort to matters outside the pleadings; otherwise, the motion must be treated as one for summary judgment under Rule 56. Wysocki v. Int'l Bus. Mach. Corp., 607 F.3d 1102, 1104 (6th Cir. 2010). “However, a court may consider exhibits attached to the complaint, public records, items appearing in the record of the case, and exhibits attached to defendant's motion to dismiss, so long as they are referred to in the complaint and are central to the claims contained therein, without converting the motion to one for summary judgment.” Gavitt v. Born, 835 F.3d 623, 640 (6th Cir. 2016).

III. Amendment of the Complaint

When considering a motion for leave to amend the complaint, the Court should “freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2). However, the Court can deny leave when amendment would be “futile” because the amended complaint would not survive a motion to dismiss. See Rose v. Hartford Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000).

IV. Title IX

Title IX prohibits sex discrimination in the provision of college sports programs, providing 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, ” including intercollegiate athletics. 20 U.S.C. § 1681(a); 34 C.F.R. § 106.41(a). Under Title IX, schools must “provide ‘gender-blind equality of athletic opportunity to . . . students.'” Clemons ex rel. T.W. v. Shelby Cnty. Bd. of Educ., 818 Fed.Appx. 453, 461 (6th Cir. 2020) (quoting Horner v. Ky. High Sch. Athletic Ass'n, 43 F.3d 265, 273 (6th Cir. 1994) (“Horner I”)). “However, [Title IX] does not require ‘perfect parity' between sports programs.” Id. (quoting Horner v. Ky. High Sch. Athletic Ass'n, 206 F.3d 685, 697 (6th Cir. 2000) (“Horner II”)). “Instead, whether a school provides equal athletic opportunities to members of both sexes depends on a consideration of many factors[.]” Id. Those factors include the following:

(1) Whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes;

(2) The provision of equipment and supplies;

(3) Scheduling of games and practice time;

(4) Travel and per diem allowance;

(5) Opportunity to receive coaching and academic tutoring;

(6) Assignment and compensation of coaches and tutors;

(7) Provision of locker rooms, practice and competitive facilities;

(8) Provision of medical and training facilities and services;

(9) Provision of housing and dining facilities and services;

(10) Publicity.

34 C.F.R. § 106.41(c). A school's “failure to provide necessary funds for teams for one sex” also may be indicative of sex discrimination. Id.

The Department of Education's Office for Civil Rights (OCR) clarified the meaning of “equal opportunity” in a 1979 policy interpretation. See Title IX of the Education Amendments of 1972; a Policy Interpretation, 44 Fed. Reg. 71, 413 (Dec. 11, 1979). “The policy interpretation is divided into three sections: (1) compliance in financial assistance (scholarships) based on athletic ability; (2) equivalence in other athletic benefits and opportunities (equal treatment claims); and (3) effective accommodation of student interest and abilities (accommodation claims).” Parker v. Franklin Cnty. Cmty. Sch. Corp., 667 F.3d 910, 918 (7th Cir. 2012).

1. Equivalence in Financial Assistance

Title IX's regulations prohibit institutions from doing the following with financial assistance:

(1) On the basis of sex, provide different amount or types of such assistance, limit eligibility for such assistance which is of any particular type or source, apply different criteria, or otherwise discriminate;

(2) Through solicitation, listing, approval, provision of facilities or other services, assist any foundation, trust, agency, organization, or person which provides assistance to any of such recipient's students in a manner which discriminates on the basis of sex; or

(3) Apply any rule or assist in application of any rule concerning eligibility for such assistance which treats persons of one sex differently from persons of the other sex with regard to marital or parental status.

34 C.F.R. § 106.37(a).

As to athletic scholarships in particular, the regulations require the following of institutions:

(1) To the extent that a recipient awards athletic scholarships or grants-in-aid, it must provide reasonable opportunities for such awards for members of each sex in proportion to the number of students of each sex participating in interscholastic or intercollegiate athletics.

(2) Separate athletic scholarships or grants-in-aid for members of each sex may be provided as part of separate athletic teams for members of each sex to the extent consistent with this paragraph and § 106.41.

34 C.F.R. § 106.37(c).

A university complies with these regulations if it provides...