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U. of New Mexico Weighs a Title IX Alternative -- April 22, 2000

By Welch Suggs
Chronicle of Higher Education

THE U.S. Department of Education and its Office for Civil Rights have heard a cacophony of criticism over the past few years over their enforcement of Title IX in college sports.
As colleges have gotten rid of men's teams in the name of gender equity, supporters of sports like wrestling and men's gymnastics have castigated the department and even the Clinton administration. Title IX,an amendment to the Higher Education Act that was passed in 1972, prohibits gender discrimination at institutions that receive federal funds, but critics of the system have long described it as a quota system
for college sports.
O.C.R. officials have always maintained that they are not interested in quotas, and that colleges have other means of maintaining gender equity in college sports. Last month, the office demonstrated its support for those other means in an agreement it reached with the University of New Mexico over a
Title IX complaint filed last year.
Under the terms of the agreement, New Mexico has until next February to choose one of two methods through which to come into compliance: It can make the percentage of female athletes proportional to the number of female undergraduates at the university -- the method that critics see as a quota system -- or it can demonstrate that it is meeting the athletic interests and abilities of women on the campus.
But the agreement is written in such a way that the latter option is much more palatable than the former, and New Mexico officials say they are inclined to support it.
A professor and an alumnus filed the complaint after New Mexico announced in May 1999 that it was eliminating its men's teams in swimming, wrestling, and gymnastics. The complainants charged that New Mexico had dropped the teams arbitrarily. Even after those actions, they argued, the university was still discriminating against women because there were so few
of them on New Mexico's teams.
According to research by The Chronicle, women represented nearly 57 percent of undergraduates at New Mexico in 1998-99,but only 33 percent of athletes. (See a searchable set of tables from The Chronicle, April 7.) After the sports were dropped, that number crept up to 35 percent, said Frederick Hashimoto, a professor of medicine at New Mexico who filed the
complaint.
Very little in the complaint or in the settlement with the Office for Civil Rights actually concerns the dropped men's teams. Instead, Dr. Hashimoto said that even after eliminating the programs, New Mexico was still out of compliance with Title IX and had no plans to deal with the problem.
Title IX guidelines used by the O.C.R. offer three tests, or "prongs," for a college to make sure that its sports programs for the "underrepresented gender" -- almost always women in American sports -- are large enough to comply with the law.
The first test, known as "substantial roportionality," requires the proportion of female athletes to be substantially the same as the proportion of female undergraduates. From the
statistics, it appears that New Mexico is far from meeting this requirement.
The second test is to have a "history and continuing practice" of expanding opportunities for women, usually by adding teams and roster spots. New Mexico had added only one women's team since 1993 -- soccer -- but did so after eliminating women's
gymnastics the year before, and so did not meet this
criterion.
The third test is to establish that the university is "fully and effectively accommodating the athletic interests and abilities" of women on campus. New Mexico had not taken steps to ascertain if it was doing so, according to the complaint.
On March 23, New Mexico entered into an agreement with the Office for Civil Rights without admitting wrongdoing. The document requires the university to conduct a detailed survey of its student body to determine men's and women's interests and the abilities of its current and prospective students.
Club sports and intramural programs at New Mexico also must be evaluated for potential elevation to the varsity level.
The university must then decide, by next February, whether it is going to try to meet the first prong, or the third one. It will be expected to come into compliance by July 1, 2003.
Dr. Hashimoto says the agreement pushes New Mexico toward compliance with the third option and not the first, eliminating the danger of cuts in more men's sports.
"U.N.M. can go with the proportionality prong if they want, but they would have to cut 210 or 220 men" or add the same number of women, he said. "O.C.R. said, you know, it makes no sense to ask a school to totally gut its men's athletics program -- there should be another way, and there is: Prong 3."
C. Nick Estes, New Mexico's university counsel, said he didn't think the agreement necessarily pushed the university away from taking the substantial-proportionality option, but that it was definitely leaning toward the third criterion.
"I think they would be perfectly happy with proportionality, but they'd also be happy with Prong 3," he said. "Which will work out, because we'll be perfectly happy to do the survey and add a women's sport. We offer all the ones in the high schools here. We may not find another one, but we're willing to go this route as realistic."
The national significance of the decision, Dr. Hashimoto said, was that the Office for Civil Rights was willing to go to lengths to avoid requiring the university to reduce the number of male athletes. Mary Frances O'Shea, the O.C.R.'s national coordinator of Title IX issues in athletics, agreed with that assessment, although she said that the office was not trying to eliminate substantial proportionality as an option.
"We don't push schools in any particular direction," she said. "Schools legitimately have a choice of how they want to come into compliance, but O.C.R. works with schools to help them find ways to come into compliance without cutting sports
opportunities for men."
Critics of the Education Department say they're still unconvinced. Leo Kocher, the wrestling coach at the University of Chicago, said that athletics directors are still subject to the wishes of any woman who wanted to start a new team.
"If five women come in and want to start a golf team, then he has no choice, or else he gets sued," Mr. Kocher said. "And you can have a thousand men who want to wrestle, and their interest means nothing, because they're the overrepresented gender."
But the New Mexico agreement was written in a way that answers the criticisms of those who say the office requires colleges to adhere to a quota system in gender equity, Ms. O'Shea said. And it even opens the door to a way in which a college could add a men's team without violating Title IX: If the interests and abilities of women on campus are being accommodated, then there's no reason the university can't restore its men's swimming team.
But Dr. Hashimoto, who himself swam during his college days at Yale University, doesn't expect that to happen. "Swimming, wrestling, and gymnastics are gone here, and they're certainly not going to come back for some time," he said. "The best we could do was make this an example nationally."