University of New Mexico's Athletic Department Scrutinized for Title IX Compliance

Last week the University of New Mexico released a report prepared by a consultant that it hired to evaluate the Title IX compliance of its athletic offerings.  The report determined that UNM was in compliance with the three-prong test, specifically the third prong, but nevertheless recommended that the university strive for compliance with the proportionality prong through a combination of roster management and elimination of some large-roster teams.

The third prong requires a university to show that for whichever sex is underrepresented in athletics, the university is fully satisfying their interests and abilities to play. At UNM, women are the underrepresented sex, making up 55.4% of the student body, while only receiving 43.8% of athletic opportunities -- a disparity that disqualifies UNM from complying with the first prong of the three-prong test, i.e., proportionality. The consultant evaluated women's interest in sports that the university does not currently offer, and found indicators of interest in such sports as rugby and water polo. Additionally, the consultant correctly considered sports that the NCAA recognizes as championship or emerging sports, but which UNM doesn't offer, like Acrobatics and Tumbling, gymnastics and field hockey. For all of these sports, however, the consultant concluded that either recruiting or competition opportunities were sufficiently limited for UNM such that it could justify a decision not to add these teams. The consultant even says, "If UNM chose to argue (to OCR) that it meets the requirements for Test 3, they could do so," adding that this requirement option is challenging in that it requires continued monitoring of the interest levels and popularity of these sports, and possibly the eventual adding of teams at some point.

Nevertheless, the consultant has recommended a strategy for compliance with prong one that the university seems eager to embrace. This is is not surprising, as the university faces a multi-million dollar accumulated and projected deficit. My guess is that the athletic department hired the consultant in the first place to set itself up to make a Title IX argument down the road in defense of what will surely be an unpopular decision to cut some men's team. When the time comes, it will handily hold up the consultant's report and say, "we had to cut teams, Title IX says so!" The university's decision to publicize the consultant's recommendation and make the report easily accessible on its web site is consistent with this strategy.

If that happens, that will be an oversimplification and distortion of what is really going on. If OCR were ever called to investigate athletic offerings at UNM, it would be unlikely to find the university noncompliant. At most, it would require them to conduct interest surveys (which the consultant notes the university hasn't done) and continue to monitor the interest and popularity of sports it doesn't offer. It's possible at some point in the future the university would be compelled by prong three to add a new team for women or else cut an existing men's team for proportionality compliance, but that's not the moment the university seems to be in now. It is unfair to blame Title IX for the elimination of teams when that's not what the law is requiring UNM to do right now. Instead, the university should own this decision.

 (As as side note, I disagree with the consultant's conclusion that the university complies with prong two, for now, as a result of adding a women's team in 2015. Prong two requires a history and continuing practice of adding opportunities for the underrepresented sex -- not a history and recent practice.  Prior to 2015, the last time a women's team was added in 1993, and this gap of 22 years is much larger than any gap I've ever seen the OCR bless as evidence of a continuing practice.)