The Department of Education announced this week that it has entered into a resolution agreement with Butler University, which had been the subject of a compliance review by the Office for Civil Rights. A compliance review is different in than the typical investigation that we usually write about here, in that it is initiated by the agency rather than triggered by a complaint. According to its website, OCR initiates compliance reviews in order to "target resources on compliance problems that appear particularly acute." I'm guessing that Butler's extreme disparity in proportionality -- a 23 percentage point difference between the percentage of female undergrads (59.5) and the percentage of athletic opportunities for women (36.5) -- is what appeared "particularly acute." While proportionality is not the only way to measure compliance, such a low percentage of female athletic opportunities certainly raises suspicion about whether sufficient progress is being made to satisfy prong 2, and the likelihood of unmet interest in violation of prong 3.
The resolution agreement requires Butler to demonstrate by Sept. 1 that it is accommodating effectively the interests and
abilities of female students. Or, if they are unable to demonstrate
that, they must submit a detailed plan to increase athletic
participation opportunities for women over the next three academic years.
How often does OCR initiate compliance reviews like this on its own? According to its 2009 Annual Report to Congress, OCR initiated 1 compliance review related to Title IX athletics issues in FY 2007 and 16 in FY 2008. This is a pretty small percentage of OCR's Title IX enforcement work, given that it receives hundreds of Title IX complaints every year. As far as I'm concerned, OCR shouldn't have to do this; universities are already on notice of what Title IX requires, and that includes being able to demonstrate that interests and abilities are being satisfied (unless of course, they satisfy proportionality, as few do). But until schools like Butler get the message that monitoring Title IX compliance is an active and ongoing endeavor, OCR should be doing more compliance reviews, not less.