More on the Butler Resolution

I just wanted to write again about OCR's recent resolution with Butler University to draw additional focus on the agreement's provisions regarding scholarships.  As we noted in our earlier post,  women at Butler receive disproportionately fewer athletic opportunities than men, and OCR has required Butler to either justify that under prong three, or else come up with a plan to add more opportunities for women.  At the same time, those women who do enjoy athletic opportunity at Butler receive proportionately more scholarship dollars than men.  This violates the Title IX regulation regarding financial aid, which requires the scholarship dollars to be distributed proportionate to athletes of each sex.  OCR's resolution agreement is asking for remediation on that issue, which means raising (or redistributing) scholarship dollars for men. 

I've heard some concern that this requirement seems to suggest that OCR expects universities who short-change women in the number of athletic opportunities to short-change them with scholarship dollars as well.  Notably,  OCR itself has in the past presented a flexible interpretation of the scholarship requirement that accepts disparities between the percentage of scholarship dollars for each sex and the percentage of athletes of each sex, as long as those disparities are for "nondiscriminatory reasons."  In a 1998 Dear Colleague letter, OCR writes that such "disparities might also be explained, for example, by legitimate efforts undertaken to comply with Title IX requirements, such as participation requirements."  I think this interpretation should provide schools like Butler some flexibility to award female athletes proportionately more scholarship dollars as a way of building women's participation.  It will be interesting to see whether OCR takes this flexibility into account when monitoring Butler's ongoing effort to comply with both the participation and scholarship aspects of Title IX.