OCR and Kansas Reach Agreement Over Title IX Complaint

According to news reports, the University of Kansas and the Office of Civil Right have agreed that KU will document its Title IX compliance, in resolution to a complaint that KU violates Title IX by discriminating against men in the distribution of athletic opportunities. As we have mentioned, KU is one of the rare schools where the percentage of female athletic opportunities is greater than the percentage of women in the student body. (How much of a disparity is not entirely clear to me. The article cited here says there is a 5 percentage point disparity, while my calculations today based on 2008-2009 EADA reports shows a disparity of less than 2 percentage points, and my earlier blog post, presumably based on earlier EADA data, suggested that the disparity was 4 percentage points. As we have recently noted, EADA data is not always accurate.)

While the agreement between KU and OCR will resolve the complaint, the agreement does not suggest that KU currently is not in compliance with the proportionality prong, KU's chosen method of compliance. Rather, it requires KU to demonstrate compliance by taking the following steps: assess its participation rates and enrollment rates for men and women (by March 2011), submit a plan to demonstrate it is in compliance with the proportionality prong (by April 2011), and follow up with documentation it is in full compliance (by December 2011).

The men's swim club, on whose behalf the complaint was filed, hopes that KU's compliance plan includes adding men's varsity swimming back. But because KU is so close to proportionality already, it seems like it could demonstrate compliance by making minor adjustments to men's and women's athletic rosters, without adding a team. Depending on the numbers KU uses as the basis for its compliance plan, it could be that adding an entire men's team would swing the balance too far the other way.

News of this agreement also raises the question of what exactly it means that KU pledges to demonstrate compliance with the proportionality prong? Is exact proportionality required? Clearly, OCR thinks the existing disparity (whether it be 2, 4, or 5 percentage points) is not an example of substantial proportionality, otherwise this agreement would not have been necessarily. In fact, OCR has indicated in earlier policy documents (the 1996 Clarification) that proportionality compliance requires either an exact match in the percentage of students of each sex and the percentage of athletic opportunities for each sex, or minor (1 or 2 percentage point) disparities caused by fluctuation in enrollment. Perhaps OCR is using KU's case as an example to dispel the common misunderstanding that schools can demonstrate compliance with the proportionality prong as long as they are within 5 percentage points. I hope this is the case, though it is interesting to me that the mythical 5 percentage point rule is usually used to justify athletic imbalances that negatively affect women. Now that men are underrepresented, a stricter proportionality rule comes into play.