Judge denies MSU swimmers' request to keep program on 'temporary life support'

Michigan State swimmers and divers' hopes of saving the program are sinking.

A federal judge Friday night denied a preliminary injunction that would've temporarily halted the university's decision to eliminate the women's program, saying the school is "best positioned to steward its financial resources for the benefit of the institution and its students."

Judge Hala Y. Jarbou, of the U.S. District Court Western District of Michigan Southern Division, issued the 23-page ruling in response to a lawsuit brought one month ago by 11 members of the women's swimming and diving program.

Attorneys for the swimmers filed an appeal Friday night, while attorneys for Michigan State declined comment because of pending litigation. In other words, the battle isn't over, but it just got a lot tougher.

"We are very disappointed in the Court’s ruling and believe it to be wrong," said Jill Zwagerman, attorney for the Michigan State swimmers.

Michigan State announced in October that it was eliminating men's and women's swimming, for financial and infrastructure reasons, amid a budget shortfall brought on by the COVID-19 pandemic. The two swimming and diving programs combine for budgets of less than $2 million a year, but have outdated pool facilities, the school has claimed. Athletic director Bill Beekman has repeatedly stood by the decision, even after receiving a pledge from former basketball player Mat Ishbia for $32 million. Ishbia targeted that money mostly for football, some for basketball, and some for an overall fund for Michigan State athletics.

The court heard arguments in the swimmers' case Feb. 10, and the swimmers' lawyers used Ishbia's gift as an argument the judge didn't buy.

Jarbou wrote a temporary injunction is an "extraordinary and drastic remedy" and that allowing one would force Michigan State to commit "significant" funds to keep the program afloat. Jarbout wrote there wasn't enough evidence of blatant disregard for Title IX to keep the women's program on "temporary life support."

"The public interest would be served by preventing discrimination in the provision of athletic opportunities for women," Jarbou wrote. "However, Plaintiffs have not shown that they are likely to succeed on that claim."

Pending the appeal, the case can new head toward a trial, though this women's swimming and diving season will be the last barring a successful outcome at trial.

There is no lawsuit involving the men's team.

Michigan State swimming advocates had hope recently, when a federal judge in Iowa issued a temporary injunction from that women's program being eliminated. Iowa then reinstated the program, before a trial. Locally, in February 2019, a federal judge forced Eastern Michigan to reinstate women's tennis.

"We are disappointed in the court's decision and the selective application of the law as it relates to the evidence that MSU introduced," said Tom Munley, a former Michigan State swimmer and de facto leader of the advocacy group, Fight for Spartan Swim and Dive. "The court's finding that MSU would be forced to dedicate 'significant' resources to the program is flat-out wrong."

Munley contends that with the tuition revenue from non-scholarship swimmers, the university profits about $600,000 on the women's program.

"MSU should not benefit from their continued misrepresentations to the public or the court," Munley said. "We will continue our battle."

In the Michigan State case, the swimmers — Sophia Barlow, Ava Boutrous, Julia Coffman, Kyle Goit, Emma Inch, Sheridan Phalen, Madeline Reilly, Olivia Starzomski, Sarah Zofchak, Taylor Arnold and Elise Turke — said they felt like "second-class citizens" at the school, and brought forth a witness who alleged Michigan State's opportunities for women athletes vs. men are out of proportion with the university's student-body makeup, which would be a Title IX legislation violation. Michigan State disputed that, with its own expert witness. The judge is allowing the swimmers' witness to be admissible, should the case move to trial.

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The outcry to save the program has been strong among advocates for the program, with passionate speeches at Board of Trustees meetings since October, and even support from an unlikely ally, the Michigan swimming and diving program. During recent men's and women's meets — possibly the last ever between the rival programs — Michigan swimmers and coaches wore green-and-white face masks.

Michigan State is one of two Division I schools to eliminate a program since the pandemic brought on major financial challenges for university athletic departments a year ago, with Central Michigan cutting men's indoor and outdoor track and field program. An advocacy group has been working to save those programs, too, holding virtual townhall rallies.

tpaul@detroitnews.com

Twitter: @tonypaul1984