Archived Information

1

1 THE SECRETARY OF EDUCATION\'S COMMISSION ON

2 OPPORTUNITY IN ATHLETICS

3 PHILADELPHIA FULL BUSINESS MEETING

4 MARRIOTT PHILADELPHIA

5 1201 MARKET STREET

6 FIFTH FLOOR - SALON C

7 PHILADELPHIA, PA 19107

8 (215) 625-2800

9

10

11 TRANSCRIPT OF PROCEEDINGS

12 DECEMBER 3, 2002

13 1:00 o\'clock p.m.

14 TUESDAY

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24 REPORTED BY: LORI ANN ASAUSKAS, CSR, RPR.

L.A. REPORTING (312) 419-9292

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1 (Before the commencement of the

2 proceedings, the draft finding

3 reports by Ted Leland, Cary Groth,

4 Gerald Reynolds, Julie Foudy and

5 Gene DeFilippo as well as an e-mail

6 from Percy Bates were tendered to

7 the Commission.)

8 MS. COOPER: Can we have our

9 commissioners make their way up to the front?

10 MR. LELAND: Good afternoon everyone

11 and welcome to Philadelphia.

12 My name is Ted Leland and I\'m

13 director of athletics and recreation at Stanford

14 University along with Cynthia Cooper, to my right,

15 your left, is \-- I\'m co-chair of the Secretary\'s

16 Commission on Opportunity in Athletics. The

17 Commission has a lot to accomplish over the next

18 two days so if we can get a quick start, I will

19 just give a quick opening statement. Cynthia will

20 provide the opening statement tomorrow.

21 The U.S. Secretary of Education,

22 Rod Paige, appointed the Commission to examine ways

23 to strengthen, enforce and expand opportunities and

24 ensure fairness for all college and interscholastic

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1 athletes.

2 President Bush and Secretary Paige

3 fully support Title IX and many of the opportunities

4 that have followed since its passage 30 years ago.

5 Over the past five months, the Commission has

6 learned how Title IX is serving our citizens. At

7 town hall meetings in Atlanta, Chicago, Colorado

8 Springs and San Diego, we have listened to dozens

9 of experts and literally hundreds of citizens.

10 This process has enabled us to

11 have a conversation with the American people about

12 Title IX. Now, the time has come for us to develop

13 a report informing Secretary Paige of what we have

14 learned.

15 As we begin our work today, I

16 want to remind us of our charge. Our charge is

17 to advise Secretary Paige on Title IX. Our advice

18 will be delivered in a report containing findings

19 and recommendations. Throughout our work over the

20 next two days, it will be very important for us to

21 remember our charge. If we fail to do so, we may

22 lead ourselves down a path where we should not go.

23 For example, we are not here to

24 make law. Obviously, we are not empowered to do

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1 that. We are not here to adjudicate past disputes.

2 We are not here to unravel conflicting sets of

3 data and statistics. We are not here to assemble

4 a lengthy research document. Those activities may

5 be worthy tasks for other individuals to pursue.

6 However, we lack the justification, time and

7 resources to do so.

8 Again, our charge is to tell the

9 secretary what we have found and what steps he can

10 take to ensure that Title IX is working for all

11 Americans.

12 Our basic agenda over the next

13 few days is this: Today and this evening, we will

14 development our findings and tomorrow, we will

15 develop our recommendations.

16 So that we can stay on this task,

17 our staff has created an hour by hour time line.

18 Cynthia and I have that. We will review that with

19 you if it\'s appropriate, but we have sat down and

20 divided up how we will spend the next couple hours

21 together and I want to walk you through the process

22 we intend to use.

23 As you can see from today\'s time

24 line, we will review one by one \-- as the time line

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1 that\'s in your chart, we intend to begin \-- review

2 findings by going down the questions one by one and

3 we will devote at least 30 to 45 minutes to each

4 question. In our own minds, Cynthia and I have

5 divided up the time knowing, for instance, that

6 question one will probably take more time than

7 some of the other questions that we have been asked

8 to answer. But we will try to devote time for each

9 one.

10 We will develop findings

11 for each of these questions. Many commissioners

12 have already submitted draft findings by e-mail

13 or fax. Others suggested findings at our meetings

14 in Colorado and the staff has inventoried all of

15 these draft findings. A master list can be found \--

16 a list can be found in what we\'ve handed you today.

17 Today, you have two \-- two

18 documents \-- two sets of documents; one is the

19 time line, the other is Secretary\'s Commission on

20 Opportunity in Athletics, it\'s called draft

21 findings.

22 MR. GRIFFITH: What is the time line?

23 MR. BATES: Yes. Ted, what time line

24 are you referring to?

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1 MR. LELAND: It says agenda. Excuse

2 me.

3 MR. BATES: Oh.

4 MR. LELAND: I\'m sorry.

5 MR. BATES: I\'ve got that.

6 MS. COOPER: The agenda called the

7 time line!

8 MR. SPANIER: All right. Thank you.

9 MR. LELAND: Thank you. Then you

10 have this sort of hefty packet of findings that we

11 have collected from the commissioners who submitted

12 them in writing before we got here today. You

13 should also have a paragraph document from \--

14 Percy, do they have this? Debbie?

15 MS. PRICE: It should be in here. It

16 should be a Xerox \-- yeah, it\'s in here.

17 MR. LELAND: Percy sent this in a list

18 of some suggested findings and recommendations and

19 we got that a little later in the day. So we put

20 that \-- it\'s in a separate format. We\'ll have to

21 deal with the difference in the format for that.

22 MS. COOPER: What about Jerry\'s?

23 MR. LELAND: And lastly, you have

24 Jerry \--

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1 MS. COOPER: Jerry Reynolds.

2 MR. LELAND: I don\'t have those.

3 MS. COOPER: I\'m special.

4 MR. LELAND: Is Jerry here? Did he \--

5 did we \-- did you guys have Jerry Reynolds\' \--

6 there\'s Jerry.

7 MR. REYNOLDS: Yes, present.

8 MR. LELAND: Okay. So there\'s lists

9 of \-- there\'s some organized lists of findings from

10 about five of the commissioners. There\'s one from

11 Jerry and one from Percy that have a slightly

12 different format. Okay?

13 In addition to that, we should

14 have left you with a charge of the Commission.

15 Open to the page that has the seven questions which

16 we are required by law to make an effort to answer.

17 All right. That should be what you have in front of

18 you.

19 At our last meeting two weeks ago,

20 we discussed the definition of the word finding. I

21 believe \-- Cynthia and I believe that a majority of

22 the Commission agreed the simple definition provided

23 by Tom Griffin last time is appropriate, quote, a

24 finding for this Commission should be something we

L.A. REPORTING (312) 419-9292

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1 have heard and learned about during the course of

2 our work. Fairly simple. I thought there was a

3 consensus last time.

4 Each commissioner who submitted

5 a draft finding to the questions will be asked to

6 present it and then we will engage in discussion

7 of the finding and see whether a consensus emerges.

8 For those findings that we amend, the staff will

9 quickly edit and rewrite the findings based on our

10 collective comments. The staff will then print out

11 a final version or near final version for us to

12 review.

13 If we run out of time for

14 questions, we move on to the next. We want \-- we

15 need to keep to our time line. If we can\'t finish

16 our findings, we will try to find some time at the

17 end of the day to revisit the question, but I can\'t

18 guarantee we will be able to do it so we need to

19 move quickly.

20 I encourage us to use our time

21 wisely. The Commission and staff around the table

22 who have worked in Congress know that the debate

23 is structured always with rules and time limits.

24 Similarly, athletes and coaches know that they play

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1 contests under specific rules and time limits. So

2 lets\' be mindful of the clock. We are in the final

3 period of time. The secretary has allowed us to do

4 our job. There is no overtime for this Commission.

5 I\'m confident that we can complete

6 our task on time, the time that we have. I\'m also

7 confident we can create a report of great value to

8 Secretary Paige and the American people.

9 A couple more comments I want to

10 make is that I think our thought was that we would

11 go no \-- we would begin this morning \-- this

12 afternoon, I guess, with question number one and

13 review findings that people have submitted related

14 to question one and try to do that in as quick a

15 time period as we can.

16 We will limit each commissioner

17 to five minutes to present their findings that

18 relate directly to number one. So if you look at

19 the first set, Cary, for instance, we took \-- the

20 staff took your findings that you submitted to us

21 and tried to group them by question so that we could

22 go \-- we can begin a period and maybe have an hour

23 and a half discussion and findings on question

24 number one.

L.A. REPORTING (312) 419-9292

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1 Our thought is, Cary, we would

2 turn to you first maybe and ask you to present yours

3 for five minutes and then we would go on to the next

4 commissioner.

5 MS. GROTH: Okay. Well \--

6 MR. LELAND: I\'m not quite ready for

7 you. Let me give a few more instructions.

8 But that\'s our \-- that\'s our idea

9 about how we are going to move forward. This is

10 going to be a very difficult process. I ask you to

11 just sort of bear with us for a while, but we\'ll ask

12 each person to talk for about five minutes.

13 We are going to avoid voting today

14 on the findings and really just letting us get a

15 compendium of the findings, get a better

16 understanding of the findings, and let staff write

17 them up so that in our January meeting is the time

18 when we will have a time to vote on the different

19 findings.

20 I think it\'s clear, though, that

21 if there\'s a consensus on a finding, it doesn\'t

22 belong, then, we can surely feel free to omit that.

23 My understanding is when people have submitted it,

24 we will talk about it, understand it better, get it

L.A. REPORTING (312) 419-9292

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1 written up by staff and in January, have a chance

2 to come back and talk with it.

3 This isn\'t going to be necessarily

4 a real elegant process today. We\'re going to have

5 to work hard, cooperate with each other to move

6 ourselves through it. We do ask you to avoid being

7 redundant. If someone else has already said what

8 you want to say, we can use the old term ditto.

9 Just say ditto, I agree. We don\'t need to have

10 everybody say everything over and over again.

11 A couple other things that we

12 have decided \-- that Cynthia and I have decided

13 is that under question number one, if you would

14 pull out your questions, we think that some of

15 the major issues that are probably up for discussion

16 today, we think three of them at least are subsumed

17 under this one and one is the appropriateness under

18 the three-prong test.

19 The second issue would be how do

20 you measure proportionality.

21 The third one is issues related to

22 the dropping of men\'s sports.

23 So as we looked at the global

24 issues we\'ve heard in testimony and heard from

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1 commissioners, we thought we had to take a step

2 as chairs to try to get some of those issues under

3 one of the questions.

4 You could argue that those three

5 issues I brought could fit under another question,

6 but I think we would like to start off today at

7 least thinking that those three questions \-- and

8 let me repeat them, the appropriateness of the

9 three-prong test, how to measure proportionality,

10 and the dropping of men\'s sports \-- would be

11 subsumed under question number one.

12 Question number two, we thought

13 that enforcement issues and interest survey issues

14 would be under number two.

15 Then we thought under number five

16 would be issues regarding capping of men\'s rosters

17 and walk-on issues and the second issue under number

18 five \-- we thought fit under number five was the

19 arm\'s race issues.

20 Again, the questions that we

21 were given, we were given. We did not develop

22 those questions. It\'s our obligation to answer

23 them as best we can. So we have a structure sort

24 of thought through today.

L.A. REPORTING (312) 419-9292

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1 Let me open up. Before we ask

2 Cary to start on question number one, let me open

3 up \-- yes, Graham?

4 MR. SPANIER: Is a finding \-- how

5 is a finding different than a conclusion or a

6 recommendation? Frankly, I\'m not very interested

7 in findings so much as I am having a discussion

8 that would lead to a conclusion or a recommendation

9 or is a finding what \-- is that what a finding is?

10 MR. LELAND: Well, we had a long talk

11 about this last meeting.

12 MR. SPANIER: I missed that.

13 MR. LELAND: And we decided that a

14 finding for this Commission, because we talked

15 about academic definitions and legal definitions

16 of findings, and we came up with the idea and that

17 would be a finding for this Commission should be

18 something we have heard or learned about during

19 the course of our work. It could be \-- my

20 understanding \-- Tom, do you want to elaborate

21 on that? We\'ll sort of put you on the spot.

22 MR. GRIFFITH: I think you stated it

23 very well. Ditto!

24 MR. SPANIER: But isn\'t there some

L.A. REPORTING (312) 419-9292

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1 point at which we say and here\'s what we think about

2 that?

3 MR. GRIFFITH: Yes. It\'s definitely

4 different than recommendations. Recommendations

5 gets us into the area of policy. We think we ought

6 to do something.

7 MR. SPANIER: Do we get to do that at

8 some point?

9 MR. GRIFFITH: Finding is sort of

10 describing the way the terrain is right now.

11 MS. COOPER: Tomorrow.

12 MR. SPANIER: That\'s tomorrow.

13 MR. LELAND: That way we have the

14 limit in the first place, divided the time of

15 thinking that we would take today and work through

16 all of the findings and then tomorrow work through

17 all of the recommendations. Now, I think the

18 recommendations are going to be a lot more fun

19 and the free association arguments \-- talks we\'ve

20 had \-- not arguments, but discussions we\'ve had

21 are a lot of fun. So I think we\'re incentived,

22 all of us are, to move through these findings as

23 quickly as we can so we can get to the

24 recommendations.

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1 I think we have read the charter,

2 Cynthia and I, and we\'re convinced that this is our

3 first job, to get these findings done. Then, we

4 move into what else is on our mind, which might be

5 recommendations and other issues. Are we clear?

6 MR. GRIFFITH: Yes. I just have a

7 question. Do we know whether Bob and Debbie and

8 Rita will be here and \-- they will be here?

9 MS. COOPER: Bob is going to be here.

10 He is on a conference call.

11 MR. GRIFFITH: Okay.

12 MS. COOPER: And Debbie, I\'m not sure.

13 MS. PRICE: They are just arriving a

14 little later.

15 MR. GRIFFITH: Gotcha.

16 MS. PRICE: They are just arriving a

17 little later. Their flights \-- Debbie and Rita will

18 be late.

19 MR. GRIFFITH: But it looks like

20 Muffet will not be here.

21 MS. COOPER: Not today.

22 MS. PRICE: She is stuck at the

23 airport.

24 MS. COOPER: I think she\'s going to be

L.A. REPORTING (312) 419-9292

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1 here tomorrow.

2 MS. PRICE: I don\'t think she\'s going

3 to be here at all. She was only going to be able to

4 come today and the flight difference would only give

5 her, like, 20 minutes to be here before she had to

6 leave.

7 MR. DeFILIPPIO: And I spoke with Mike

8 Slive this morning and he felt very badly that he

9 would not be able to be here today. He\'s got the

10 SEC championship on Saturday.

11 MR. LELAND: Okay. And we will \-- if

12 I could read my watch correctly, we will take a

13 break at 3:30.

14 Any other questions on the

15 process? We are going to \-- again, this is an

16 inelegant process. We\'re just trying this and let\'s

17 make sure that we all go into it with sort of the

18 best attitude we can, as quickly and succinctly as

19 we can.

20 So, I think we are on question

21 number one.

22 MS. COOPER: We\'re already five

23 minutes late.

24 MR. LELAND: Cynthia tells me we are

L.A. REPORTING (312) 419-9292

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1 already five minutes late. So I\'ve taken five

2 minutes too long.

3 MS. COOPER: We are on a time line.

4 MR. LELAND: So, Cary, could you \-- do

5 you want to talk through some of your

6 recommendations?

7 MS. GROTH: Sure. When I was putting

8 together the findings for question number one, I

9 think the one \-- one point that kept coming up over

10 and over again is that there seems that there was so

11 much misunderstanding with the three-prong test and

12 over and over in our hearings we kept hearing that

13 the only safe harbor is prong number one. So I

14 tried to look at question number one and how can we

15 strengthen the other two prongs so the institutions

16 have a choice.

17 I mean, in the 1996 clarification

18 from OCR and Norma Cantu, it clearly indicates

19 there are three prongs to meet Title IX to be in

20 compliance, yet we keep hearing again over and over

21 there is only one that\'s being enforced.

22 So how would you like for me to do

23 this; read through them and just summarize?

24 MR. LELAND: No, I think go through

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1 the ones you think are most important and we\'ll try

2 to \--

3 MS. GROTH: Okay. After 30 years of

4 Title IX, progress has been made, but there\'s more

5 that needs to be done to create opportunities for

6 women and girls as well as retain opportunities for

7 men and boys. I feel that\'s very important because

8 I think one of the reasons we\'re here is because we

9 see the demise of many of our men\'s non-revenue

10 Olympic sports, which has been a tragedy.

11 If you look at prongs two and

12 three, we are able to retain those sports if we

13 strengthen prongs two and three instead of just

14 looking at proportionality.

15 Again, going on that same thing,

16 Title IX does not require institutions to drop

17 men\'s sports attempting to meet proportionality.

18 It appears that it comes down to finances, always

19 money. Those darn dollar signs.

20 Institutions choosing to comply

21 again with prong three allow for the potential

22 impact of non-traditional students in the campus

23 population. I thought that was a very good point

24 that was brought up, I believe, in Chicago, the

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1 non-traditional students.

2 I think if we look at prong

3 three, that allows us that opportunity to count

4 non-traditional students in a different manner as

5 well as addressed the issue that Debbie has brought

6 up on several occasions that that is the walk-ons.

7 We\'re able to count walk-ons again as long as

8 there\'s a prong two and prong three that OCR and

9 Title IX enforces.

10 MR. GRIFFITH: How come what she\'s

11 saying doesn\'t bear too close a resemblance

12 to the draft we have?

13 MS. COOPER: Because the printer

14 wasn\'t working.

15 MS. GROTH: They didn\'t print all of

16 mine, Tom.

17 MS. COOPER: So she is working off of

18 a list that she \--

19 MS. PRICE: Which they are printing it

20 now.

21 MR. GRIFFITH: Gotcha.

22 MS. GROTH: I thought mine was pretty

23 thin.

24 MR. LELAND: I apologize.

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1 MS. GROTH: That\'s okay. That\'s okay.

2 It\'s hard to be the first one when you really don\'t

3 know what exactly you are looking for.

4 But I think if you look at prong

5 one, I mean, if you look at question number one,

6 over and over in all of our hearings, it\'s come

7 down to the concern is proportionality and I think

8 one of the ways that we can address that concern

9 particularly with our non-revenue men\'s programs,

10 in my opinion, is to strengthen prongs two and

11 three and make those viable options for

12 institutions.

13 At Northern Illinois University,

14 we do meet prong three and I\'d like to feel that

15 we were safe or are safe with Title IX in meeting

16 prong three because at our institution,

17 proportionality just won\'t work depending on

18 the finances that are available.

19 Were you going to say something?

20 MS. COOPER: I was going to say \--

21 I just want to make sure you stick with findings

22 because \--

23 MR. GROTH: Do you want me to read all

24 of these?

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1 MS. COOPER: We\'re on record now.

2 MS. GROTH: Okay.

3 MS. COOPER: So just any findings that

4 you want on record.

5 MS. GROTH: Okay. Well, let \--

6 MR. LELAND: Here\'s the confusion.

7 We were told earlier by staff that all of your

8 recommendations would be put in this format.

9 MS. GROTH: Uh-huh.

10 MR. LELAND: So we received a packet.

11 I told you that they were all in this format.

12 Apparently, that did not happen.

13 MS. PRICE: They\'re there, but they

14 didn\'t get printed correctly.

15 MS. COOPER: Yes. There was a problem

16 printing and that sort of \--

17 MR. LELAND: There was a problem

18 printing so now you\'re reading off of something

19 that \-- I think what we\'re trying to do now is

20 get a copy of this.

21 MS. GROTH: Would you like to start

22 with someone else?

23 MR. LELAND: Are we going to get a

24 copy of this?

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1 MS. GROTH: That might be a lot

2 easier.

3 MR. LELAND: How long will that take?

4 MS. COOPER: Yes. Let\'s start \--

5 let\'s just start with someone else.

6 MS. GROTH: Let\'s do that since

7 mine \-- and there is only four of \--

8 MR. LELAND: I\'m sorry. I apologize.

9 MS. GROTH: Let\'s go with Julie or

10 Ted.

11 MR. LELAND: Why don\'t we start with

12 Gene next.

13 MS. GROTH: Gene? There we go.

14 MR. LELAND: Professor DeFilippo?

15 MR. DeFILIPPO: Okay. We were asked

16 to submit five or six findings. Let me start by

17 changing the order just a little bit.

18 The first finding is that both men

19 and women gain substantial and important benefits

20 from participation in intercollegiate athletics.

21 There\'s no question that the same things that it

22 takes to be successful in life are the same things

23 it takes to be successful in sports. I think there

24 is a great correlation there and that women have \--

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1 have benefited so much from athletics as have the

2 men.

3 Number two in a court of law,

4 the only safe harbor for institutions appears

5 to be prong one. I know that a lot of \-- a lot

6 of institutions out there, and we have heard

7 from them, have used prong two and prong three

8 with OCR.

9 It appeared that the attorneys

10 that we spoke with, a lot of the other experts

11 that we spoke with that sit in a court of law,

12 if an institution is ever taken to court, the

13 only safe prong is proportionality.

14 The number three, at institutions

15 which have dropped men\'s sports programs, I think,

16 that it was a fact that we heard the two most common

17 reasons are financial and compliance with Title IX.

18 OCR has not provided enough

19 clarity to help institutions in using prong two

20 and prong three. We have talked about this

21 before in the history of adding women\'s programs.

22 Is it a program a year? Is it a program every two

23 years? Is it a program every three years? The

24 interpretation certainly needs to be clearer

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1 for us.

2 As for prong three, the

3 meeting of the needs of the under-represented

4 sex, we institutions need a lot more clarity

5 with regard to that.

6 There has been inconsistent

7 interpretation of Title IX at different regional

8 OCR offices and that seems to have been something

9 that we heard in Atlanta to Chicago to different

10 areas of the country.

11 Then we have heard that another

12 finding was that men tend to walk-on at a higher

13 rate than women. Now, we have heard that there \--

14 that that\'s not the case, but I think it\'s one

15 of our findings that more people and more of the

16 facts tended to tell us that men tend to walk-on

17 to programs more than do women.

18 That doesn\'t mean that women

19 don\'t want to play or aren\'t as interested

20 or as serious as athletics, but that men will

21 tend to walk-on and be the last person on the

22 bench, you know, more than women would.

23 Those are my findings. If there

24 are any questions or comments, I am happy to answer

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1 them.

2 MR. LELAND: I think since we \--

3 since a couple of those last two findings, Gene

4 went through his quickly, but the issue regarding

5 OCR not providing clarity, that\'s really under

6 prong two. It\'s an enforcement issue and I didn\'t

7 explain this correctly. I again apologize.

8 There has been inconsistent

9 interpretation of Title IX at different OCR offices.

10 That\'s really under question two and the last one

11 he had, the walk-on issue, is under question five.

12 Okay. So let\'s talk about the

13 ones that are under question one first, which is

14 only safe harbor in the court of law, the

15 institutions that dropped men, the two most common

16 reasons they drop men\'s sports are financial

17 compliance, both men\'s and women\'s have

18 substantially benefited.

19 Does anybody have any questions

20 on this? So there\'s really three that Gene has

21 submitted for question number one. I feel at least

22 we are a little organized this time.

23 MS. COOPER: Could you reread the

24 group?

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1 MR. LELAND: I can reread them. The

2 three off the front is in a court of law, the only

3 real safe harbor for institutions is prong one of

4 the three-prong test. At institutions that were

5 dropping men\'s sports, the two most common reasons

6 are financial and compliance with Title IX and both

7 men and women have gained substantial and important

8 benefits for participating in competitive athletics.

9 MR. BATES: Ted, I take it based upon

10 that, your interpretation is that those fall under

11 question one?

12 MR. LELAND: Yes, sir, so far.

13 Do you have a different \--

14 MR. BATES: Well, I\'m just trying to

15 look at the issue of assessing and to see how those

16 fall under assessment. That\'s all. That is what I

17 was trying to \--

18 MR. LELAND: Well, we sort of said

19 that the three-prong test and proportionality would

20 be under question one.

21 MR. BATES: Okay.

22 MR. LELAND: I think that\'s how we

23 subsumed that.

24 MR. BATES: Okay.

L.A. REPORTING (312) 419-9292

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1 MR. LELAND: The one question I would

2 have, Gene, is that I would feel a little more

3 comfortable with this one if it said that many

4 practitioners feel that in a court of law, the only

5 safe harbor for institutions because \--

6 MR. DeFILIPPO: I would agree with

7 that.

8 MR. LELAND: Okay.

9 MS. de VARONA: Say that again, Ted,

10 because I had this issue.

11 MR. LELAND: I said many

12 practitioners \-- I think we heard some evidence

13 that \-- especially in the LSU case and a couple of

14 others that said in the court \-- the courts have

15 upheld the other prongs at different times. The

16 problem is is that a lot of practitioners, the

17 Ted Lelands, and others of the world, many people

18 in the press, many people making decisions regarding

19 the allegation of resources, et cetera, feel that

20 prong one is the only of the three prongs that

21 provides a safe harbor. That was sort of a friendly

22 amendment.

23 MR. JONES: Ted, I have one thing.

24 MR. LELAND: Yes.

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1 MR. JONES: I do think, though, just

2 a clarification is important. I think what Gene\'s

3 finding says is that, you know, that prong one is

4 the only safe harbor, which is not the same thing

5 as saying that\'s the only way to show compliance. I

6 think \-- I do think that that is what the courts do

7 tend to say, that in terms of it being a safe

8 harbor, that is you meet proportionality and that\'s

9 basically the end of the game. You are then

10 presumed, you know, in compliance.

11 You don\'t have to worry about an

12 OCR investigation into facts or anything like that

13 other than just the numbers. So that \-- that, I

14 think \-- I think that\'s the distinction that Gene is

15 making. If not, it\'s the same as saying that it\'s

16 the only test for compliance. It\'s just that it\'s

17 the only one that\'s a safe harbor that doesn\'t

18 require, you know, an OCR investigation and that

19 sort of thing.

20 Gene, is that \-- is my

21 understanding of what you\'re saying there correct?

22 MR. DeFILIPPO: That is correct, but I

23 must say we also learned that findings \-- we could

24 have heard different sides of findings, am I

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1 correct?

2 MS. COOPER: There could be

3 conflicting findings.

4 MR. DeFILIPPO: And there have been

5 people that talked about the LSU case. I believe it

6 was in Atlanta. So you are exactly right in what I

7 was saying, but there is another side that have said

8 something else. So, Ted, you are also right in your

9 interpretation.

10 MR. GRIFFITH: Ted, is your point

11 that when university administrators are going

12 to get legal counsel, the overwhelming majority

13 of the counsel that they are getting \-- sort of

14 the point Debbie made throughout, is that the

15 university lawyers, I being one of them, is

16 saying if you want surety here, the safest way

17 to go is prong one? It\'s not the only way.

18 You can go down two or three,

19 but if what you are looking for is to get the

20 OCR off your back or be in full compliance, is

21 that what you are saying?

22 MR. DeFILIPPO: It\'s the only real

23 safe harbor.

24 MS. FOUDY: But the reason it\'s the

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30

1 only real safe harbor is because they failed the

2 other two tests is the reason they are in court, the

3 other two prongs, the interest in \--

4 MS. COOPER: No. They are not in court

5 yet.

6 MR. DeFILIPPO: See, I thought Ted was

7 making a different point.

8 MS. FOUDY: You\'re saying there\'s not

9 enough education on prongs two and three to make

10 them believe that those are valuable as well?

11 MR. LELAND: Right. That\'s what I

12 was saying.

13 MS. FOUDY: Right.

14 MR. LELAND: And I think Brian might

15 have been saying \-- he took a little bit different

16 tact on sort of the same point.

17 Yes, Donna?

18 MS. de VARONA: Well, I do feel that\'s

19 an opinion more than it is a fact, although there

20 are instances where prong one has been what the

21 court has used to evaluate compliance. So I

22 think \-- I think that when you said many

23 practitioners feel the only real safe harbor for

24 institutions is prong one of the three-part test,

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1 although other Title IX compliance issues have

2 been resolved under prongs two and three.

3 I mean, you think you have to

4 add that, don\'t you? Then you are working yourself

5 into a situation where you are \-- you are into an

6 opinion rather than fact. I think there are some

7 schools that have considered this, in the course

8 of law, a safe harbor, but there are many other

9 cases that have been resolved under prongs two and

10 three.

11 MR. SPANIER: I think we may be

12 spending a lot of time on something we don\'t need

13 to here.

14 MS. de VARONA: Well, it\'s important.

15 MR. SPANIER: We all know that there

16 are \-- that there is a three-part test and

17 presumably you can show compliance in any of those

18 ways, but it is also a fact that the courts have

19 said prong one is the safe harbor. Those words

20 have been used. They are on paper. That\'s the

21 fact.

22 MS. COOPER: Right.

23 MR. SPANIER: Now, that is not to say

24 that this group is prevented from recommending that

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1 that all be changed or some part of it be changed,

2 but is it not a finding that you can have compliance

3 in at least three different ways, but

4 that prong \-- the proportionality prong is the

5 safe harbor. It\'s two different things, but they

6 are both findings.

7 MR. JONES: I mean, that\'s my sense

8 of it too. I just think we have a misunderstanding

9 of what the term safe harbor means. Safe harbor is

10 not the same thing as meaning that it\'s a route to

11 compliance. It just means that the courts recognize

12 it as the one part of the test that if you get

13 there, you know, you don\'t need an OCR investigation

14 or anything further. That\'s just \-- it\'s just a,

15 you know, you hit proportionality and boom, you are

16 in compliance. There is no fact-finding needed and

17 that\'s the distinction.

18 MR. LELAND: Yes. I\'m comfortable

19 with what you just said, but I\'m also comfortable

20 with what Donna said because I think the issue

21 for me, as I read this, was not so much the legal

22 ramifications, it was more the day-to-day

23 ramifications on decisions that people make

24 regarding the allocation of resources and it

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1 seems to me this misunderstanding is part of it.

2 MS. de VARONA: Right.

3 MR. LELAND: So, you know, the

4 ferreting out of \-- is there a way that \-- I\'m

5 looking at the guys who may have to write this up or

6 are going to have to write this up, but is there a

7 way that we could extrapolate what Gene said, keep

8 the gist of it and also talk about sort of the legal

9 issues surrounding it and then also the decision

10 perception issues surrounding it?

11 (Whereupon, Mr. Bowlsby

12 entered the proceedings.)

13 MR. GRIFFITH: Let me see if I \--

14 maybe I misunderstood Donna.

15 I thought the point was, and

16 really, this may be my misunderstanding, isn\'t the

17 point that when a university administrator is making

18 a decision right now, that he or she will be told by

19 their legal counsel you have three ways to comply

20 under the 1979 policy interpretation.

21 Now, you can go down prong one,

22 prong two, or prong three. Now, when you go down \--

23 if you go down prong one, the courts have said safe

24 harbor, you win, no further scrutiny.

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1 If you go down two and three,

2 there\'s going to be a lot more intensive looking

3 at what the interests are, what you did to find

4 out what the interests are, what the history is

5 of progress.

6 I think all \-- I think a point

7 needs to be made that a university administrator

8 is going to have three options, but they are going

9 to be told that one of the options is \-- is a get

10 out of jail card! I don\'t mean that. That\'s not

11 the right word, but one of them is going to be

12 preferred. The way it exits right now, any

13 good university counsel is going to tell the

14 university president you\'ve got three choices,

15 but one is the one \-- prong one is the one where

16 you are absolutely safe.

17 MS. de VARONA: We don\'t \-- we don\'t

18 want the lawyers to tell that to the athletic

19 directors.

20 MR. GRIFFITH: But I think the finding

21 is that that\'s what is happening.

22 MS. de VARONA: Well, that\'s wrong.

23 MR. GRIFFITH: I think that\'s what\'s

24 happening. Now, we may get to a recommendation

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35

1 about how we can fix that if that\'s the problem,

2 but that\'s what I understand Gene to be saying.

3 That describes the way university administrators

4 are \-- the options they are faced with right now.

5 That doesn\'t mean we are comfortable with that.

6 Again, we may get to the point \-- I think Cary

7 is probably going to get us there in making the

8 recommendations that we need to do more with two

9 and three so that they understand.

10 MR. REYNOLDS: Well, another way

11 to phrase this or at least to conceptualize it is

12 while there are three choices, there are not three

13 equal choices. There are certain risks associated

14 with each of the choices and as a risk lawyer, I

15 will tell you having a series of circuit courts

16 talk about prong one as the safe harbor, having

17 OCR refer to it as the safe harbor, it seems to

18 me that you are entertaining a malpractice lawsuit

19 as an attorney if you were to advise your client

20 to select a prong that is not the safest one.

21 If there are three choices and

22 one of the three is safer than the other two, as

23 a lawyer, I think that you have a responsibility

24 to point out the fact that you have a higher risk

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1 of trouble with the other two.

2 MR. GRIFFITH: And if she questions

3 that, just tell her to go talk to the president of

4 Brown University. I mean, that\'s the practical

5 decision.

6 MS. GROTH: And, Jerry, I couldn\'t

7 agree with you more, but maybe what we are trying

8 to get to is in making that not the case, you know,

9 down \-- I think you are right on. I think people

10 have that mentality where it\'s number one. It\'s up

11 to us, perhaps, to look at numbers two and three as

12 equal prongs.

13 MR. LELAND: I still \-- I still \--

14 besides playing out the athletic director,

15 president, university attorney scenario, I still

16 think there\'s the bigger issue that Donna sort

17 of said more articulately than I could that it\'s

18 sort of the public perception out there and the

19 perception of a lot of day-to-day decision-makers

20 is that there is only proportionality and the rest

21 of it, it\'s all about quotas. I think we ought

22 to \-- I mean, that\'s what I heard. I\'ve heard a lot

23 of people come in and say this is about

24 proportionality.

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1 MS. COOPER: Could you repeat it?

2 MR. LELAND: It\'s about quotas.

3 That\'s where we are. I think over and above sort

4 of the procedural and legal issues you guys are

5 talking about, there\'s the other issue, which is

6 sort of the public education issue.

7 MR. REYNOLDS: Well, I don\'t think

8 that there\'s a disagreement, but we\'re sort of

9 collapsing concepts. We\'re completing \-- we\'re

10 starting to discuss prongs one, two and three

11 and the way that Gene\'s finding is laid out, he has

12 limited his decision at least on the first page to

13 the first prong, but that\'s not to say that there

14 aren\'t problems with the second and third prongs.

15 MS. de VARONA: I think it\'s dangerous

16 if you limit your focus to only prong one when the

17 law is clear about three prongs being the test. If

18 we limit that, then, we just focus on \--

19 MR. REYNOLDS: But we\'re not going to

20 limit it. I mean, just because we\'re dealing with

21 this issue right now doesn\'t mean that we\'re not

22 going to discuss the problems with prongs two and

23 three. It\'s just this is how Gene wrote it up.

24 MS. de VARONA: Right.

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1 MR. REYNOLDS: And I am sure that

2 there are other documents around here talking about

3 the deficiencies in the second and third prongs that

4 we\'ll get to.

5 MR. BATES: Ted?

6 MR. LELAND: Yes.

7 MR. BATES: I guess I\'m still

8 struggling with hearing people sort of report

9 essentially what we heard. Now, then, you have

10 to get to the notion of after what we have heard,

11 what\'s the finding that comes from that and I\'m

12 still struggling with that because clearly, we

13 are now talking about some of the things that

14 we heard and we have to move from that to pool

15 all of that together to say based upon that,

16 then, this is a finding for us and I\'m \-- I

17 guess I\'m still struggling with that aspect of

18 it to move from what we heard to what we think

19 it means to then put it into the form of a

20 finding for this Commission.

21 MR. REYNOLDS: But, Percy, on this

22 issue, this is not a matter of what we heard.

23 The fact that prong one is a safe harbor, that\'s

24 in just about every circuit decision that\'s in

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39

1 OCR documents. That\'s not debatable.

2 Prong one is the safe harbor.

3 Prong one is the only safe harbor. That\'s not

4 a matter of opinion.

5 MS. de VARONA: I think the only

6 safe harbor is what I object to. I think it\'s

7 expressed as a safe harbor, but an only safe

8 harbor presumes that two and three will bring

9 you into compliance and we\'re back around in a

10 circle.

11 MR. REYNOLDS: Oh, no, no, no.

12 MR. LELAND: Safe harbor just means

13 something different.

14 MS. de VARONA: But only safe harbor,

15 I would be \-- I would rather, if we\'re going to go

16 that route, we say safe harbor, not only safe

17 harbor.

18 MR. REYNOLDS: I know, but that\'s the

19 case, though. It\'s the only safe harbor. If you

20 look at Norma Cantu\'s 1996 clarification, when she

21 discusses safe harbor \--

22 MS. de VARONA: I don\'t agree with

23 you. I have real \-- I\'m reluctant to say only.

24 I\'ll give you say, but I won\'t give you only.

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1 MR. REYNOLDS: I have the

2 clarification right here and in her discussion of

3 safe harbor, it is only in relation with prong one.

4 In the court decisions, the discussion of safe

5 harbor is only in connection with the first prong.

6 There is no document in existence that talks about

7 the second and third prongs as a safe harbor.

8 MR. LELAND: How about if we eliminate

9 the term safe harbor and say, you know, legally

10 defensible program or something because if that\'s

11 the issue, if it\'s just safe harbor \-- I mean, the

12 issues are we\'ve had dozens of people testify for us

13 saying that Title IX is the only safe harbor and

14 then we\'ve had dozens of people testify for us

15 saying that they complied with Title IX in other

16 ways.

17 MR. REYNOLDS: Those are different

18 concepts.

19 MR. LELAND: Well, that\'s what I\'m

20 trying to \--

21 MR. GRIFFITH: It may be the

22 understanding of safe harbor and maybe my

23 understanding of safe harbor is it means that if

24 this is a course that you follow, your judgment

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1 won\'t be second guessed.

2 On prongs two or three, if that\'s

3 the course you follow, the courts are going to look

4 at it pretty carefully. The safe harbor notion

5 isn\'t whether it\'s compliance or not. You can

6 comply in all three ways, but if you comply through

7 prong one, the courts sort of step back and don\'t

8 look at it as carefully as if you say I\'m going to

9 comply in two or three. That concept of stepping

10 back and not really getting involved is what some of

11 them have called the safe harbor.

12 MR. BATES: Could I suggest \-- it

13 seems to me that everybody has to go through this

14 and we seem to be trying to zero in now. We\'re

15 going to hear a lot more on this and maybe we need

16 to go through a lot of them and then come back to

17 kind of see where we are as we zero in on the

18 findings. It seems to me there is a lot more on

19 this that we ought to be hearing before we start

20 zeroing in on what Gene has indicated.

21 MR. LELAND: What are you suggesting,

22 Percy?

23 MR. BATES: That somebody else now has

24 a turn \--

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1 MR. LELAND: That we go through

2 everybody else\'s findings?

3 MR. BATES: Right. And, then, it

4 seems to me that\'s where we\'re going to make sense

5 out of it or to zero in on where we are going to

6 try to arrive rather than taking each person and

7 going over and over it. That\'s my sense.

8 MR. LELAND: I don\'t \-- that\'s sort

9 of a left hand turn I wasn\'t anticipating.

10 MS. COOPER: So we are just going to

11 have everyone go through their findings.

12 MR. LELAND: Well, let me just do one

13 other thing then because I thought that was just

14 clarifying one of these findings. Is there anybody

15 that wants to clarify or ask questions of Gene on

16 the other findings that relate to question number

17 one? There are three of them.

18 MR. GRIFFITH: I have a question about

19 the second one. At institutions which have dropped

20 men\'s sports programs, the two most common reasons,

21 would it be more accurate to say the two most

22 commonly stated reasons? Does that make a

23 difference?

24 DR. YOW: Yes.

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1 MR. BATES: Gene, was that\--

2 MR. DeFILIPPO: That\'s a friendly

3 amendment, the two most commonly stated reasons.

4 MR. GRIFFITH: Fine. Is that

5 accurate? Donna, is that \--

6 MS. de VARONA: Yes, I think it is.

7 MR. LELAND: Anything other on Gene\'s?

8 Okay. Let\'s \-- I\'m just taking

9 these in order. Julie, are you ready to go with

10 yours?

11 MS. FOUDY: Sure.

12 Mr. LELAND: Now, Julie presented

13 quite an extensive document so I think there\'s about

14 five of them.

15 Julie, Q1-F1 refers to question

16 one, finding one?

17 MS. FOUDY: Right. I\'m finally

18 figuring that out.

19 MR. LELAND: Okay.

20 MS. FOUDY: Okay. Can I go over

21 question one again?

22 Are Title IX standards for

23 accessing equal opportunity in athletics working

24 to promote opportunities for male and female

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1 athletes?

2 The first finding I put

3 down there, it is not the purpose of Title IX

4 or any civil rights law to promote opportunities.

5 Title IX requires equal access to athletic

6 participation opportunities and equal treatment.

7 Do you want me to read them all

8 before we discuss?

9 MR. LELAND: I think people can read

10 them.

11 Any discussion on this?

12 MR. REYNOLDS: Well, I guess I was

13 thinking back to some of the comments that were

14 made at other town hall meetings where some of

15 the presenters viewed \-- well, took the opposite

16 approach that Title IX, one of the purposes, was

17 to equalize opportunities and recognize the fact

18 that women have been discriminated against for a

19 long time so \-- but in any event, that\'s just my

20 comment.

21 MR. LELAND: Other comments?

22 MR. JONES: I guess my comment does

23 sort of touch on Jerry\'s thought. I guess it\'s

24 just the question of us trying to work out exactly

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1 what we mean. I think Julie\'s point here

2 fundamentally is a pretty good one, but it does

3 beg the question for me here what is meant by

4 the term equal access.

5 I think that sort of a more

6 precise way to think about in the underlying

7 Title IX statute is that what it requires is

8 nondiscrimination on the basis of sex. So to

9 the extent that there are some, you know, we

10 did hear some testimony that the suggestion is

11 Title IX is about \-- is about sort of equalizing,

12 you know, the provision of opportunity in terms

13 of just raw numbers.

14 Again, I\'m not sure that

15 that\'s, you know, a correct statement of what

16 the fundamental purpose of the law is. I think,

17 you know, again, what the Congress intended for

18 us to look at is, are institutions providing

19 athletic opportunities on a nondiscriminatory

20 basis. So this three-part test was just sort

21 of a way of trying to get at whether institutions

22 were, in fact, doing that and I would just hate

23 for us to sort of set up a, you know, a suggestion

24 that, you know, even if \-- you know, for example,

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46

1 if we are hearing testimony about, you know, the

2 differing level of interests for men and women,

3 and that may be attributable to all sorts of

4 things. It may be attributable to past

5 discrimination.

6 Again, the fact of the matter

7 is, I think, fundamentally we need to be thinking

8 about whether an institution is actually engaged

9 in discrimination. I think that Title IX \-- again,

10 we heard some testimony, too, where there is one

11 suggestion that the Title IX was really a social

12 engineering instrument.

13 So, again, sort of embedded in

14 this finding, I think, is that begged question

15 whether that is fundamentally the purpose of

16 Title IX. I do think this finding does bear

17 some discussion. I do see what Julie is getting

18 at. I mean, I agree that Title IX is not about

19 promoting opportunity, but I think it\'s about

20 nondiscrimination and I\'m not sure that

21 nondiscrimination is the same thing as equal

22 access. So I\'ll leave it at that.

23 MR. SPANIER: I\'d agree that this

24 statement may be technically correct, but one

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1 of the reasons we had these four hearings was

2 to listen to 200 or 300 people and what they

3 had to say and I heard a very clear message

4 from clearly the majority \-- probably the

5 overwhelming majority of the people speaking

6 for what Title IX has done for girls and women

7 in this country and they talked about their

8 view of Title IX being to promote women\'s

9 opportunities.

10 I\'m just a little concerned

11 that to make a statement like this ignores all

12 of the very strong statements we have heard

13 from scores of people.

14 MS. FOUDY: Well, the reason,

15 Graham, if I could just interrupt real quick, the

16 word promote, I bring into this is because if you

17 look at the question, it\'s phrased as are Title IX

18 standards for assessing equal opportunity in

19 athletics for working to promote opportunities for

20 male and female athletes. So that\'s where the

21 promote comes in.

22 When I talk about equal access

23 and equal treatment, that\'s the two parts of

24 Title IX, the first equal access being the

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1 three-prong test and equal treatment, then, being a

2 second tier of that, being that laundry list of

3 equal training facilities, equal equipment, equal \--

4 all of that laundry list of standards that come

5 under that.

6 What I think we need to refer

7 to when we are talking about this is the purpose

8 of Title IX is to \-- when you talk about

9 discrimination \-- when Brian talks about

10 discrimination, you\'re talking about discrimination,

11 as I understand it, as the under-represented

12 gender. The purpose is to provide equal access.

13 MR. SPANIER: Then, I think, in that

14 context you\'ve just described, it comes across more

15 as a strident statement. It almost reads as if

16 don\'t ask me if Title IX is promoting opportunities

17 for women in athletics, that\'s not what Title IX is.

18 It\'s sort of like saying don\'t even ask that

19 question. I want to talk about something else.

20 The question is is it promoting opportunities for

21 male and female athletes and \--

22 MS. FOUDY: But like you said

23 originally, maybe it is technical, but it\'s a

24 finding. It\'s not a recommendation. This is

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1 what Title IX\'s purpose is.

2 MR. SPANIER: Well, as I said, it\'s

3 probably technically correct. It just seems to

4 ignore what we heard from a lot of witnesses,

5 particularly women who were saying this is what

6 we saw Title IX being all about. Yes, it has

7 promoted opportunities, not enough, still in

8 transition.

9 MS. FOUDY: Right. I think I address

10 that in the next finding, which we can move on to

11 because I talked about it in the next one.

12 MR. LELAND: And we\'ll have an

13 opportunity to, I guess, yea or nay on this one

14 when I get back in January.

15 The next one, Julie?

16 MS. FOUDY: Current Title IX policies

17 are working to move toward equal opportunities for

18 the under-represented gender female athletes in

19 athletics. However, while women\'s and girls\'

20 athletics opportunities have steadily increased

21 since 1972, female student athletes continue to lag

22 behind their male counterparts in participation

23 opportunities. Discrepancies are also apparent in

24 the share of scholarships and budgets and the equal

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1 treatment of female athletes.

2 MR. LELAND: Okay. Questions? I was

3 a little \-- as I looked at this one, I really liked

4 the last sentence as opposed to what we call for up

5 above. I think that, just for me, for my comfort

6 level, I was never completely convinced that I

7 understood all of the statistics that were being

8 given to us even in the GAO record or from the NCAA

9 or from any other group.

10 So I\'m very comfortable saying

11 there is still a significant gap. I\'m not sure I\'m

12 going to, you know, be real comfortable voting for

13 the GAO report statistics as they are out as a true

14 representation of what\'s happening out there. I\'m

15 just not in that position yet. Other people might

16 be, but that\'s sort of where I am.

17 Any other comments or thoughts on

18 this?

19 MR. GRIFFITH: I understand the 1972

20 reference. That\'s Title IX, but, I mean, didn\'t we

21 hear statistics that opportunities for women in

22 athletics had been increasing since before 1972?

23 MR. LELAND: I don\'t remember that.

24 MS. de VARONA: I don\'t \--

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1 MR. GRIFFITH: It\'s in some of the

2 stuff that I\'ve \--

3 MS. de VARONA: There was one in 1972

4 and I don\'t recall statistics before that.

5 MR. GRIFFITH: I thought we saw some

6 that \-- anyway\...

7 DR. YOW: You did. There was a person

8 and I can\'t remember who it was.

9 MS. de VARONA: There were cultural

10 shifts and things were changing.

11 MR. GRIFFITH: That\'s the point, yeah.

12 MS. de VARONA: But I don\'t think

13 those statistics were really significant in relation

14 to what happened after 1972. That\'s a personal

15 opinion.

16 MR. REYNOLDS: I guess after reading

17 this, I think that an important question is if

18 female athletes are lagging behind their male

19 counterparts and if there disparities, the question

20 becomes are they related to discriminatory conduct

21 or nondiscriminatory actions.

22 If it\'s discriminatory, then,

23 that implicates the whole panoply of civil rights

24 protection. If not, then, those disparities don\'t

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1 implicate civil rights. I think that that was

2 recognized in the statute.

3 There is a provision in the

4 statute that deals with statistical imbalances

5 and Congress, in enacting Title IX, you know,

6 I\'ll read some of the language, nothing contained

7 in Subsection A of this section shall be interpreted

8 to require any educational institution to grant

9 preferential or despaired treatment to members of

10 one sex on account of an imbalance, which may

11 exist with respect to the total number or percentage

12 of persons of that sex participating in or receiving

13 the benefit of any federally supported program or

14 activity.

15 When I read that, what I get

16 from that is that statistical disparity, a

17 discrepancy, in and of itself doesn\'t tell us

18 whether a discrimination has occurred. So I

19 think that it\'s important that we get underneath

20 the numbers if there is a disparity. If there

21 is a discrepancy, we need to find out whether

22 it\'s due to discrimination or other factors.

23 MR. LELAND: That\'s a new challenge.

24 MS. de VARONA: Jerry, let\'s not open

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1 up Pandora\'s box.

2 MR. LELAND: Yes.

3 MS. de VARONA: When we get into this

4 interest versus opportunities, it\'s opening

5 Pandora\'s box.

6 MR. LELAND: When you say \"we,\" if

7 you mean the government, I agree. If you say \"we,\"

8 and you mean this Commission, I\'m going to have

9 trouble with that because I\'m not sure we\'re in

10 any way prepared to answer that question. I don\'t

11 think we\'ve heard any testimony regarding that

12 question. I just don\'t know how \--

13 MR. REYNOLDS: Well, I guess it

14 goes \-- as a fundamental question, the

15 protections \-- the main thrust, at least according

16 to some folks, is to prevent discrimination based

17 on sex.

18 Now, if there is a disparity that

19 flows from discrimination based on sex, then, we

20 have a problem and we have a statute to deal with

21 it. But if this disparity or discrepancy occurs

22 because of other reasons, then, we don\'t have a

23 problem.

24 The only point that I\'m trying

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1 to make is that it\'s important that we find out

2 whether the disparity is caused by discriminatory

3 conduct or for nondiscriminatory reasons.

4 MS. FOUDY: And that\'s the beauty of

5 the three-prong test. That\'s the purpose of it, is

6 to figure out. If it\'s not caused by discriminatory

7 practices, you\'re going to be able to find that out

8 in prongs two and three and that\'s why we need

9 to \--

10 MS. de VARONA: On a case-by-case

11 basis.

12 MR. LELAND: And I just \-- again, it

13 depends on how we define \"we.\" \"We,\" in terms of

14 this Commission, we need to answer question number

15 one, which is does Title IX standards assess and

16 promote. So I don\'t think we can get into

17 answering \-- and Julie has suggested that she

18 has a finding here. So I think we ought \--

19 MS. COOPER: Keep going.

20 MR. LELAND: \-- to stick with that.

21 Donna?

22 MS. de VARONA: I\'m going to be quiet.

23 I\'m fine.

24 MR. LELAND: Anybody else?

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1 Yes, Debbie?

2 DR. YOW: You knew I was coming. I

3 think whether you use this as a caveat or something

4 to what Julie is saying is accurate, but what Jerry

5 is saying is accurate at least in some institutions

6 in some ways. We have to acknowledge that.

7 As an example, we have a men\'s

8 Lacrosse team and a women\'s Lacrosse team. The

9 cost for equipment varies because of the nature

10 of the sport and what\'s required. To just ignore

11 that as a possibility and as a factor in looking

12 at the disparities between equipment costs, one

13 of the three \-- one of the 11 programmatic areas

14 to be considered, I mean, we know that that exists.

15 Somehow, if you can take Julie\'s

16 statement and somehow acknowledge the other as a

17 possibility and you kind of get the full picture

18 or possible full picture.

19 MR. LELAND: Do you take that as a

20 friendly \--

21 MS. FOUDY: Always.

22 MR. LELAND: Any other thoughts or

23 concerns about Julie\'s second one?

24 Third one now?

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1 MS. FOUDY: We\'re still with question

2 one. Current Title IX athletic policies do not

3 require the cutting or capping of men\'s teams.

4 MR. LELAND: We sort of said we\'d keep

5 that under number five. So I put this in here out

6 of order. I apologize.

7 MS. FOUDY: Okay.

8 MR. LELAND: So let\'s remember to go

9 back to number five.

10 MS. FOUDY: We\'ll move that to five?

11 MR. LELAND: Number five, we said we\'d

12 keep walk-ons there.

13 MS. FOUDY: All right. The three-part

14 test adopted by the Department of Education is

15 flexible and gives schools three independent ways

16 to comply with Title IX\'s requirements for equal

17 participation opportunities. All three prongs of

18 the test have been used successfully by schools

19 to comply with Title IX and each is necessary to

20 give schools flexibility and structure in their

21 athletic programs while guarding against freezing

22 discrimination into place.

23 MR. LELAND: Now, this is a

24 validation, I guess, of the appropriateness of

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1 the three-prong test. Let\'s spend a little bit

2 of time talking about it now.

3 DR. YOW: Ted?

4 MR. LELAND: Yes.

5 DR. YOW: I think, Julie, the

6 effect \-- if that read just slightly differently,

7 the three-prong test adopted by the Department of

8 Education \-- I don\'t know how to say this exactly,

9 but was intended to be or was designed to be because

10 it ain\'t in several institutions as we have

11 discussed. So, I mean, maybe that was the original

12 intent, I \-- you know, I don\'t know, but I know it

13 is flexible in loads of \-- you know, numbers of

14 institutions across the country. You don\'t regard

15 it as being flexible?

16 MS. FOUDY: Right.

17 DR. YOW: You\'re just saying it is?

18 MS. FOUDY: Yeah, but I think my point

19 is that the finding, as it is \-- the question is is

20 it not flexible because we haven\'t educated schools

21 enough on how to use prongs two and three?

22 DR. YOW: Well, I think our attorneys

23 would take exception to that given they \-- with

24 their legal degrees. Maybe it\'s just \-- I know

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1 it\'s a difference, but the nuance, I think, is

2 important, the difference between is flexible

3 versus was designed or was intended.

4 MR. GRIFFITH: How about it could be?

5 DR. YOW: Could be. Thank you.

6 Going to an attorney here, Julie,

7 to your left, we need \--

8 MR. GRIFFITH: Could be if it was very

9 different! No, I\'m just kidding! That was a joke!

10 That was a joke!

11 MS. FOUDY: Tom, don\'t make me give

12 you \--

13 MR. GRIFFITH: I was only kidding!

14 MS. GROTH: Just to follow up with

15 what Debbie was saying, I think it is flexible,

16 but I think the education has not allowed for

17 it to be flexible and I think that\'s what you

18 are trying to say or at least that\'s how I read it.

19 MS. FOUDY: Uh-huh.

20 MS. GROTH: That the laws in the

21 three-prong test are flexible. It\'s just that

22 they\'re not being enforced as flexible as they were,

23 as Debbie said, intended to be.

24 MS. FOUDY: And again, these are

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1 findings. These aren\'t recommendations and I

2 think we need to distinguish between the two.

3 MR. GRIFFITH: I just want to \--

4 actually, now, I\'m not kidding. I\'m not certain

5 that I know enough about the intent of the \'79

6 policy interpretation to know if they intended

7 it to be flexible. I don\'t know. Maybe they did.

8 I think there is some disputed evidence about that.

9 My point is actually couldn\'t

10 you make the argument that the existing three-prong

11 test could be more flexible than it has been applied

12 in some cases or something like that.

13 MS. FOUDY: I mean, but isn\'t it a

14 case you\'ve heard from people talking especially

15 in San Diego that the problem arises because it\'s

16 almost too flexible, in some situations it gives

17 too much leeway. They didn\'t want to put

18 necessarily requirements in that were numbers and

19 you had to get to this, but we heard Val and I\'ve

20 read Val\'s briefing book talk about it. She\'s a

21 civil rights expert and she talked about, you know,

22 part of the flexibility designed for this

23 three-prong test is what causes some confusion.

24 MR. SPANIER: I just think you have

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1 to be careful characterizing the flexibility. I

2 think if you\'ve got the two uses of the word

3 flexibility out there, I think it would be all

4 right, but many of our witnesses described were

5 having discussions with OCR and they were pulling

6 back on flexibility saying no, no that\'s \-- we\'re

7 not going to go that way with you and we have court

8 precedence we have been briefed on where there were

9 attempts \-- the schools have attempted to use prongs

10 two and three in a more flexible way and the court

11 said no.

12 So I think to characterize it as

13 being flexible, maybe it was \-- I like the intent

14 thing except it\'s also true we can\'t judge what was

15 intended. So I think you almost, in light of that,

16 have to when we get to the recommendations, that\'s

17 where we have to talk about flexibility, but I don\'t

18 think it\'s a finding, per se.

19 The finding is that there is a

20 three-part test that it gives schools three ways

21 to comply. All three prongs have been used at one

22 time or another. I mean, those aspects of what

23 we are seeing are findings, I would say.

24 MS. FOUDY: I think also we have to

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1 look at the bigger picture. We\'re talking about

2 Division I-A schools a lot of the times that the

3 court cases are happening because prong two is \--

4 there is not a history of continued expansion and

5 prong three is there is interest.

6 I think if you look at the

7 greater picture when we look at the OCR cases,

8 you will see almost 70 percent have complied

9 with two and three and a lot of those aren\'t

10 maybe happening at Division 1-A schools, but

11 it\'s still showing others flexibility. I think

12 if we look at the big picture, we can\'t forget

13 that \-- that the purpose of it was to create

14 some flexibility.

15 MR. LELAND: You know what, this

16 gets a little bit to what I was talking about

17 on the first question because I am more comfortable

18 with the three-part test adopted by the Department

19 of Education, could be flexible and give school \--

20 but I just think on an operational basis on a

21 day-to-day basis schools \-- schools don\'t feel

22 there is flexibility.

23 There may be in the minds of

24 civil rights advocates who you can hire to come in

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1 after you\'ve been sued and they can figure out a

2 way to solve this for you, but in terms of reducing

3 acrimony on your campus and explaining things to

4 students, I think could have flexibility is

5 more \-- I think the three-prong \-- my opinion is

6 the three-prong test is sort of elegant. The

7 problem is it\'s not operational. It doesn\'t

8 work. People don\'t understand it and they can\'t

9 use it.

10 MR. DeFILIPPO: And it needs more

11 clarity.

12 MR. LELAND: It needs more clarity.

13 MS. de VARONA: That\'s right. No

14 question.

15 MR. LELAND: That\'s the thing we\'re

16 looking for, more clarity for now.

17 MS. FOUDY: No question about it. But

18 that\'s not in the findings. So, I mean, that\'s a

19 different point we have to make.

20 MR. DeFILIPPO: If I asked you to

21 define proportionality for me, you could do that

22 very easily. If I asked you to define what\'s a

23 history of supporting and adding to women\'s

24 athletics, I\'m not sure that anybody could define

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1 what that is.

2 MS. FOUDY: Right, but that\'s

3 something I think we need to address in the

4 recommendations, not \-- I mean, we\'re still

5 in the findings.

6 MR. LELAND: Right, but I think

7 a finding could be that it is flexible and another

8 finding could be that it could be flexible. I

9 mean, there\'s \-- I still think we\'re in the

10 findings. We\'re not making recommendations of

11 any change. I think we\'re just pointing that

12 out.

13 Are we \-- I mean, this is going

14 to go to \-- there is no change in what \-- right

15 now in what Julie\'s suggested. Does anyone offer

16 sort of a friendly amendment?

17 MR. BATES: The only question I have,

18 Julie, is if you took flexible out at the top, we

19 still have it at the bottom. I think it makes it

20 a more straightforward statement that we do have

21 three prongs, that it gives the schools three

22 independent ways to do it.

23 Then, at the bottom, we talk about

24 it\'s necessary to give flexibility in structuring

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1 the athletic programs. I mean, that \-- I don\'t know

2 that we lose much in that unless you feel that it

3 changes what you are trying to say.

4 MS. FOUDY: I\'m fine with that.

5 MS. de VARONA: Yes.

6 MR. LELAND: Okay. Could we put that

7 in, our two recorders there?

8 Good. Any other thoughts on

9 this one?

10 MS. FOUDY: Way to go, Percy.

11 MR. BATES: Thank you.

12 MR. LELAND: The next one, which is

13 Q1-F5, question one, finding five.

14 MS. FOUDY: There\'s no evidence that

15 given equal opportunities to play, women are less

16 interested in sports than men. In fact, the history

17 of Title IX demonstrates just the opposite.

18 Moreover, while the Department of Education permits

19 the use of surveys to help determine which sports an

20 institution should add, survey results alone cannot

21 be accepted as evidence of insufficient interest in

22 participation in sports.

23 MR. REYNOLDS: Well, it seems that

24 whether men and women have equal interest in

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1 participating intercollegiate athletics, that

2 that\'s an empirical question. It will probably

3 vary from campus to campus and from region to

4 region.

5 I agree with the fact that we

6 had no evidence on this point and that\'s why I

7 think that it would be useful to try to gather

8 some information and one way to do it is to use

9 a survey. I also agree that the decision \-- the

10 ultimate decision should not turn on \-- solely

11 on a survey.

12 There would have to be additional

13 analysis and information, but I just find it \-- I

14 think that this is important especially for the

15 first prong. Right now, it\'s tied to enrollment.

16 Proportionality is tied to enrollment and if the

17 presumption that the interest between men and women

18 is equal, if that presumption is accurate, then,

19 we don\'t have a problem and the first prong is

20 a \-- it\'s good. It\'s a good proxy for interest.

21 If we are wrong, then, this \--

22 then, the first prong makes absolutely no sense.

23 So I think that this is an empirical question

24 that should be answered.

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1 MR. LELAND: As opposed to including

2 it in the finding?

3 Donna?

4 MS. de VARONA: But it\'s an empirical

5 question that you ask when; in grammar schools, high

6 schools, colleges, universities? When do you ask

7 the question? I think that\'s when we get back to

8 the interest versus opportunity debate.

9 MR. REYNOLDS: Oh, no. I think

10 that there is \-- this whole thing is problematic.

11 I think any approach that we take is going to

12 have some shortcomings and I think that the answer

13 to your question probably will vary depending on

14 if you are talking about grammar school, junior

15 high, high school or college.

16 If we talk about interest and

17 abilities, if that phrase is throughout our

18 documents, policy interpretation, the court

19 decisions, the \'96 clarification, if we talk

20 about interest and ability, then, I think that

21 we have some responsibility to accurately

22 measure interest and ability to try to quantify

23 these concepts as opposed to just picking

24 something out of a hat that may or may not

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1 be a close proxy.

2 MS. GROTH: Jerry, I remember \-- I

3 recall in Chicago, I believe it was the executive

4 director of the Illinois high school state

5 association, and he made the comment or stated

6 the fact that they offered girls high school

7 volleyball for the first time, and I think it

8 was back in the early \'80s or \-- excuse me \--

9 the late \'80s. At that point in time, very few

10 high schools offered girls\' volleyball, but once

11 they announced that it was going to become a

12 state championship sport, 400 and some schools

13 added that sport.

14 I thought that comment that was

15 made, that fact, was very stark to the discussion

16 that we are having right now. I\'m not sure that

17 if you had surveyed those young girls prior to

18 that championship being offered that they would

19 have said they would have had an interest in

20 playing volleyball.

21 MR. LELAND: Let me do this.

22 Let me let Jerry respond and then we will \--

23 this is again a change we made this morning in

24 a meeting between Cynthia and myself. I would

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1 like to push this finding off to question number

2 two because it\'s more appropriate there.

3 MS. GROTH: Okay.

4 MR. LELAND: Because we said we

5 would do interest surveys in number two and

6 this really has to do with interest surveys.

7 Okay. But go ahead and

8 respond while it\'s on your mind and then we\'ll \--

9 MR. REYNOLDS: I\'ll make it quick.

10 I share your concern. If a survey instrument

11 was going to be used to capture the interest

12 at a particular point in time and that was it,

13 then, I don\'t think it would \-- I don\'t think

14 that\'s a good way to go because we \-- as you

15 demonstrated with your example, the interest

16 level of women, and the same is true for men,

17 it changes over time.

18 So the idea of having a single

19 survey to quantify at one time and not going back,

20 for me, it makes no sense because it doesn\'t

21 capture the changes that occur over time. That\'s

22 not to say that it couldn\'t be done on an every

23 three-year basis. You pick the appropriate amount

24 of time.

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1 Anyway, I guess we\'ll just reserve

2 the rest of this conversation for the appropriate

3 time.

4 MR. LELAND: Thank you.

5 Bob?

6 MR. BOWLSBY: Ted, I do have one

7 comment that I don\'t think goes to the issue of

8 interest surveys and that is simply the repeated

9 anecdotal information that we have received, that

10 we all see it on our campuses and I think that \--

11 I would suggest to you that it\'s present throughout

12 college athletics and perhaps high school as well,

13 if you\'re not talking about the addition of sports,

14 I think any one of us involved in this profession

15 see repeatedly on existing teams, you have more

16 scholarships for women in track and field than you

17 do for men, but the men\'s school is half again as

18 large.

19 The same is true in golf. The

20 same is true in softball and baseball. The same

21 is true in tennis. There is something going on

22 there. I think the essence of this question is

23 that we need to try and get to the bottom of that.

24 It isn\'t a lack of scholarship support. It isn\'t

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1 a lack of opportunity.

2 It\'s a phenomenon I\'ve seen in

3 my own children. I have two boys and two girls

4 and the boys hung out until the very end when

5 they weren\'t making a contribution and the girls,

6 when it became apparent they weren\'t going to

7 get a chance to participate and actually play

8 got out. There is something going on there

9 that\'s nondiscriminatory that we need to talk

10 about at some point during this meeting. I

11 think it goes to the heart of this question.

12 MR. LELAND: I agree. Bob, when

13 you were on your phone call, we made the

14 arbitrative decision to try to cover the walk-on

15 capping of men\'s sports issue on number \-- in

16 number five.

17 MR. BOWLSBY: Okay. I\'m sorry.

18 MR. LELAND: No, that\'s fine.

19 MR. BATES: Ted, could I just, I

20 guess, make one comment on this?

21 MR. LELAND: Yes, sir.

22 MR. BATES: I know we\'re putting it

23 in another place, but if we rely upon the data and

24 the testimony that we have heard, I guess I don\'t

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1 see anything wrong with this \-- with this as a

2 finding.

3 MR. LELAND: Which one?

4 MR. BATES: Q1-F5. There is no

5 evidence that gives equal opportunities to play

6 that women are less interested in sports than

7 men.

8 I mean, I think we heard lots

9 of stuff on lots of sides, but as I tried to

10 weigh the evidence, it seems to me I haven\'t

11 heard anything that convinced me that there

12 was anything wrong with this statement as indicated

13 as a finding.

14 I mean, there is a lot of

15 evidence and, Bob, I don\'t know that we\'re ever

16 going to be able to go back and do something

17 that may be outside the purview of this Commission,

18 but I think if we try to look at just on the

19 data that was presented, it seems to me that

20 at least I didn\'t hear anything that would

21 convince me that there was that difference in

22 interest.

23 MR. BOWLSBY: Well, I don\'t think

24 if you characterize it as interest or not, but

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1 there is a difference in demonstrated participation

2 in each of our programs.

3 MR. BATES: Right, but I\'m just

4 going on this one.

5 MR. BOWLSBY: Maybe it\'s attributable

6 to interest and maybe it\'s attributable to something

7 else. I would suggest that it\'s not necessarily

8 attributable to discrimination.

9 MR. BATES: Right.

10 MR. BOWLSBY: So, you know, that first

11 five words of this, I think there is some evidence

12 that exists and it\'s present on all campuses. We

13 see it every day going back to Debbie\'s example at

14 the last meeting.

15 MR. LELAND: Okay. One more thought

16 on this and then we\'ll postpone this \-- the rest of

17 this conversation until it\'s framed correctly.

18 DR. YOW: Okay. Ditto to what Bob

19 said.

20 Julie, a question for you in

21 that last part. I\'m just not sure why that\'s in

22 there. I know there must be some strategy behind

23 this. When you say the survey results alone cannot

24 be accepted as evidence of insufficient interest

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1 in participation of sports, now, dear, why is that

2 in there?

3 MS. FOUDY: Well, you heard

4 Mr. Reynolds next to me talk about having your

5 surveys. Every court has rejected their use to

6 decide if a person is interested in sports. You can

7 only use surveys in the court of law if they decide

8 what they are interested in.

9 MR. REYNOLDS: Well \--

10 MS. COOPER: And once you\'ve

11 determined what they are interested in, then what?

12 MS. FOUDY: But Jerry is suggesting

13 that we use surveys to determine if the person

14 is interested and every court is saying you are

15 freezing discrimination into place by doing that.

16 MR. REYNOLDS: Well, first of all,

17 the court decisions \-- we\'ve heard a lot about

18 the circuit court cases. Those courts in those

19 cases applied what\'s called Chevron deference.

20 Basically, a court will defer to a reasonable

21 interpretation of an agency. It doesn\'t lock

22 us into any policy position. We can change.

23 Subsequent courts, if what we

24 do is reasonable, will defer to that new policy.

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1 So I just want to make sure that we understand

2 that those court decisions don\'t lock us in if

3 we come up with a reasonable survey instrument,

4 then, I think that a Court would bless it.

5 I do agree with Julie. If the

6 instrument is limited, if it\'s used once and for

7 the rest of eternity, those numbers are the numbers

8 that guide us, then, I think that it is fatally

9 flawed. That\'s why I think that if we go down

10 that road, the document has to \-- the survey

11 would have to be done on a regular basis.

12 MR. SPANIER: I think there is an

13 important general point here that we have to be

14 careful about in all of these findings. The

15 1979 policy interpretation and the 1996 letter

16 of clarification that have become the basis for

17 many of the court decisions. That is not the

18 Title IX law.

19 Those are clarifications and

20 interpretations and those are changeable and

21 so we have to be careful in making a finding that

22 we\'re saying this is the way it is. This is the

23 way it is only in relation to things we have yet

24 to talk about that are on the table for tomorrow.

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1 So I think we have to be very sensitive to that

2 interplay in what some of these words mean.

3 Something cannot be so or can\'t be done or should

4 be done while the answer is it depends.

5 MR. LELAND: I really saw that

6 second sentence is a little bit of a suggestion

7 or a recommendation, since I got the last word,

8 let\'s put that off to question number two as we

9 said we would do.

10 Julie, as we are going to the

11 next one, I thought your next one, which was

12 Q5-F6, was better off in number five because it

13 talks about the arm\'s race.

14 MS. FOUDY: Right.

15 MR. LELAND: Okay. So that \-- and

16 thank you for doing all of that work, Julie. That

17 exhausts Julie\'s question number one findings.

18 We\'ve got Gene\'s done. Let\'s go to \-- Cary, are

19 you ready?

20 MS. GROTH: Sure.

21 MR. LELAND: Now, with Cary, do we

22 need to use \-- let me ask the staff, do we need to

23 use this handout we\'ve been given?

24 Okay. Well, I\'m going to read\--

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1 Cary, why don\'t you go ahead.

2 MS. GROTH: Sure.

3 MR. LELAND: Does everybody have

4 this?

5 MS. GROTH: It\'s titled Commission

6 findings.

7 MR. LELAND: This is just because of

8 a clerical faux pas.

9 Go ahead, Cary.

10 MS. GROTH: And there are many that

11 are ditto. So I\'m going to start with number two,

12 the second bullet. After 30 years of Title IX,

13 progress has been made, but there is much more that

14 needs to be done to create opportunities for women

15 and girls and I would like to add and retain men\'s

16 Olympic sports, if I may give myself a friendly

17 amendment.

18 MR. LELAND: Okay. Any comments or

19 questions on that one?

20 Okay. Next one?

21 MS. GROTH: That would be number

22 three of the third bullet. There are three tests

23 that institutions can select from to determine

24 compliance with Title IX. According to the most

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1 recent GAO reporter, OCR has found over 66 percent

2 of institutions they reviewed to be in compliance

3 with Title IX based on prongs two or three.

4 MR. LELAND: Comments on that?

5 MS. GROTH: Julie, I\'m two for two.

6 No comments!

7 MR. LELAND: Jerry?

8 MR. REYNOLDS: I would just only \--

9 just make the comment that again, you can draw

10 that inference only if they use the cross section

11 and it\'s not clear to me that that was done.

12 MR. BATES: Which inference are you

13 referring to, Jerry?

14 MR. REYNOLDS: The GAO report. I

15 looked at a \-- I believe it was 70 some odd cases

16 and in 66 percent of those cases, the institutions

17 came into compliance by using prongs two and three.

18 You can draw an inference that this is the case

19 nationwide if there is \-- if those 70 some odd

20 cases constitute a cross section. If that\'s not

21 the case, then, you can draw no inference.

22 MS. GROTH: I guess what I was

23 getting at is, you know, over and over again,

24 like I indicated earlier when we first started

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1 this morning, it seems like there\'s so much

2 confusion or not good enough education on the

3 three prongs.

4 It came back to this fact that

5 was stated to us and it\'s also in the GAO report

6 that clearly some institutions are using prongs

7 two and three, but I would agree with you.

8 MR. REYNOLDS: That\'s not a dispute.

9 That is true.

10 MR. SPANIER: It does say that.

11 MR. JONES: That\'s a friendly

12 amendment. Then, why don\'t you just make that

13 a friendly amendment to say that OCR has found

14 many institutions comply with Title IX based on

15 prongs two or three.

16 So I think Jerry\'s point

17 is just that that\'s \-- just that that 66 percent

18 statistic is simply not accurate because it\'s simply

19 based on a small sample that we don\'t know to be

20 a representative sample of the universe cases of

21 OCR \--

22 MS. GROTH: Those were only the

23 institutions they reviewed?

24 MR. JONES: Well, that\'s right.

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1 That\'s what I\'m tying. I\'m not saying they reviewed

2 all of the cases. Sixty-six percent of the sample

3 that GAO uses is not representative of a full

4 sample. So it\'s misleading.

5 MS. GROTH: That\'s okay. I\'m

6 comfortable with that.

7 All right. Go down to bullet

8 number five. If I would have known we were going

9 to go like this, I would have numbered them. I\'m

10 sorry, Ted and Cynthia.

11 Title IX does not require

12 institutions to achieve proportionality in order

13 to be in compliance with the law.

14 MR. REYNOLDS: Did you skip one?

15 MS. GROTH: I skipped some that

16 were dittos or that I\'ve taken \-- I\'ve removed.

17 MR. LELAND: Well, I \-- okay.

18 Let\'s do \-- we\'ll do five and then I would like

19 to go back to four for a second.

20 MS. GROTH: Well, I didn\'t say four

21 because I thought you wanted to hold dropping of

22 men\'s sports to another question.

23 MR. LELAND: No. That\'s in question

24 one.

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1 MS. GROTH: Okay.

2 MR. LELAND: I apologize. I was not

3 being clear.

4 MS. GROTH: Do you want me to go back

5 to number four?

6 MR. LELAND: Yes.

7 MS. GROTH: Title IX does not require

8 institutions to drop men\'s sports if attempting to

9 meet proportionality.

10 MR. LELAND: Okay. Let\'s have a

11 discussion on that. It seems to me that\'s one

12 of the \-- this is one of the hot button issues.

13 We\'ve heard a lot of testimony from people who

14 told us that their opportunities were eliminated

15 or dropped simply because of proportionality,

16 Title IX.

17 MR. SPANIER: Nobody ever said it

18 was a requirement. This is quite accurate.

19 MS. GROTH: It\'s a finding.

20 MR. JONES: Yes. I would just make a

21 point of clarification here that, you know, for

22 example the first bullet says Title IX policy should

23 not be changed and that, I think, for the sake of

24 accuracy for these two bullets, this one and the

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1 next one, we just need to clarify what we are

2 talking about is \-- is, you know, the enforcement

3 policies. We\'re not talking about Title IX or

4 we\'re not talking about the underlying statute.

5 MS. de VARONA: Well, maybe if we

6 added Title IX does not require institutions to

7 drop men\'s sports attempting to meet

8 proportionality, but many institutions have chosen

9 this path.

10 MR. JONES: Right. But I think for

11 the sake of accuracy, Title IX doesn\'t require you

12 to meet proportionality. The policy interpretation

13 does.

14 MS. GROTH: I see.

15 MS. de VARONA: Right.

16 MR. JONES: That\'s what I am

17 suggesting is that we need to be clear that we\'re

18 not talking about statute here, that we\'re talking

19 about policy.

20 MS. de VARONA: Right.

21 MR. LELAND: I think that\'s a friendly

22 amendment, right?

23 MS. de VARONA: Right.

24 Debbie?

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1 DR. YOW: I\'m not sure how to get at

2 this. I just, I mean, I want to think \-- these are

3 very well done, by the way. I\'m very impressed. It

4 took a lot of time.

5 MS. FOUDY: Where\'s yours, Debbie?

6 DR. YOW: In my head.

7 I just \-- I\'m concerned as an

8 AD when I read these, that Title IX does not

9 require institutions to drop men\'s sports if

10 attempting to meet proportionality. It\'s just \--

11 it just feels so much like half a story. It\'s

12 an interesting dynamic. It\'s, like, no, you\'re

13 not required to do that. You know, what else

14 could we do? You know, rename the institution?

15 I mean, there \-- there is a

16 limit to what can be done from a commercial

17 perspective and from a sales perspective and

18 for those institutions that are \-- those athletic

19 programs that are self supporting, it may very well

20 and has, in fact, come down to in order to meet

21 Title IX guidelines, as described \-- as described

22 by their own university attorneys, they would

23 have to drop a sport because they could no longer

24 afford to continue to add additional women\'s

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1 sports.

2 That\'s part of the rub in all

3 of this and why it feels so horrific to everybody

4 is because there is some truth in what most people

5 say about it. I think to just ignore that, Cary,

6 I mean, and I think you\'re addressing that somewhere

7 else on here, too, about generating revenue

8 resources, I mean, at the same time the Commission

9 is publishing reports saying that intercollegiate

10 athletics is over commercialized.

11 I mean, we\'re back to that damned

12 if you do and damned if you don\'t kind of scenario.

13 I just wish somehow as you try to make your best

14 case, and I appreciate that and respect it, that

15 you could at least somewhere, somehow acknowledge

16 the issues related to finance for programs that

17 are self supportive.

18 MR. REYNOLDS: Well, and just to

19 piggyback, I think that the statement for bullet

20 four is somewhat deceptive because it doesn\'t

21 fully flesh out the issue. No, Title IX does

22 not require institutions to drop men\'s sports

23 in order to meet a proportionality prong, but

24 another way to look at it is to say what are

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1 the incentives that are attached to each of

2 the prongs?

3 It\'s sort of like saying you

4 can walk through any door that you want to walk

5 through. Pick door number one, two or three,

6 but somebody tells you that doors two and

7 three, there\'s a guy with a gun on the other

8 side of the door. You decide to go through

9 door one. You did it freewill. No one required

10 you to do it. You looked at the consequences

11 or the potential consequences associated with

12 each action and you chose.

13 So to say that the law didn\'t

14 require you to do this, while on the surface,

15 that\'s true, but there are consequences associated

16 with picking \-- with your decision-making process.

17 MS. FOUDY: But the law itself does

18 not require you to cut men\'s teams. That\'s all

19 we\'re saying in the finding, right, Cary? That\'s

20 all you\'re saying?

21 MS. GROTH: Yes. I think, you

22 know, when putting these together, I think for

23 all of us, maybe we approach them a little

24 differently. I think we\'re finding that out.

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1 I took what you had said, Ted and Cynthia, that

2 we take what emerged through the public findings

3 that we thought were relevant for today\'s meeting.

4 Going along with what Debbie

5 had said, I agree. I think there\'s much more

6 that needs to be added to some of these, but

7 at what point do we add that? I just didn\'t

8 know if it was appropriate for me to add my own

9 comments as a Division I athletic director

10 regarding the finances.

11 So what I tried to do, maybe

12 it would be helpful, the way I approached this

13 was I took significant comments or comments that

14 I believed to be true or factual or important

15 for the discussion today from our open hearings.

16 There may be some that I may not agree with in

17 totality, however, I thought they were important

18 for us to have on the discussion table today

19 regarding these questions.

20 MR. LELAND: I mean, I thought

21 you did a great job with these, by the way, and

22 I have taken numbering, but four, six, nine, ten

23 and 11 of yours all deal with the same issue of

24 the dropping of men\'s sports as it relates to

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1 decisions institutions make, but I see a consensus.

2 I mean, I hear a consensus that says sort of

3 in a strict sense that, you know, blaming the

4 women for the dropping of men\'s sports is

5 inappropriate, yet at the same time, it is part

6 of the mix that institutions have to \-- mix of

7 decisions institutions have to make.

8 I don\'t know what more you can

9 say than that. You know, it\'s part of what \--

10 I mean, our friend from San Diego State, Rick Bay,

11 basically said, no, Title IX had nothing to do

12 with it, but I had to half out of the men\'s side

13 and half out of the women\'s side. Well, it didn\'t,

14 but it did. Yes?

15 MR. BOWLSBY: Excuse me. I think

16 there is perhaps one \-- well, I\'ll call it a

17 clarification. It may not be a friendly amendment,

18 but I think while it \-- the law and the policy

19 and enactments do not specifically mandate that

20 sports be dropped in order to comply, I think

21 at a practical level, and this goes to Debbie\'s

22 point, at a practical level, it has not \-- it

23 has not mandated that sports be discontinued to

24 comply, but if a decision that sports needed to

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1 be discontinued for financial reasons, it

2 definitely dictated what sports \-- what gender

3 those sports were going to come from because

4 athletics administrators and university

5 administrators didn\'t have the flexibility

6 to say, okay, we\'ve got a lousy tennis facility.

7 What we really ought to do with, you know,

8 bitter cold weather and a lousy tennis facility

9 is really ought to discontinue men\'s and women\'s

10 tennis.

11 Because we\'ve got to drop two

12 sports, it ends up being men\'s tennis and men\'s

13 swimming. It doesn\'t necessitate that sports be

14 dropped. It dictates what gender those sports

15 are going to come from if they\'re dropped. Granted,

16 it\'s for financial reasons. Those things are taking

17 place for financial reasons, but the law, as it\'s

18 structured, dictates that those cuts come only out

19 of the men\'s side where it involves discontinuation

20 of programs.

21 MR. SPANIER: It seems to me we may

22 be \-- you know, I don\'t have any problems with

23 anything you have here, but I think we may be

24 overly sensitive to some of these points because

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1 nobody was assigned to go out and collectively

2 capture all of the findings.

3 So, you know, none of us

4 prepared a finding saying so many \-- that 160

5 people testified before us that they were in

6 a sport that was cut or that so many athletic

7 directors showed up and said I cut that sport

8 for this reason.

9 I think what you were saying

10 is that with some of the points, we\'re only

11 telling part of the story that\'s out there and

12 so it feels a little uncomfortable to accept

13 one finding when it seems like there are some

14 words missing.

15 I mean, nobody has given a

16 finding that says something like many university

17 presidents require their athletic directors to

18 run their intercollegiate athletics program on

19 a self supporting basis.

20 So many intercollegiate

21 athletics programs have these constraints around

22 them financially and, therefore, the athletic

23 directors have been asked to do X, Y and Z

24 while complying with the mandates surrounding

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1 Title IX. We don\'t have any findings like that.

2 So when we have some others

3 that state very clearly nobody is forcing you

4 to cut a sport, nobody is forcing you do that,

5 blah, blah. It doesn\'t say that. We don\'t

6 have another finding that says, but there is

7 another part to the story.

8 Again, it\'s a comment I made

9 earlier. It\'s a little bit disingenuous of us

10 as a Commission to ignore the testimony of scores

11 of people who have told us their stories. We

12 may think they are wrong, but we did hear it

13 and something of what we heard from everybody

14 has an element of truth to it.

15 So I think that\'s \-- that\'s

16 a little bit of the problem here is, you know,

17 we\'re spending a lot of time on the findings

18 that each of us thought to come up with, but

19 it\'s not the whole set of findings probably.

20 MR. GRIFFITH: Right. I don\'t

21 know what we do about it.

22 MR. LELAND: We have to finish

23 with question one soon. So are we comfortable

24 with \-- are you guys that are writing this thing

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1 up comfortable? Do you have enough of the

2 gist of the conversation and the points that

3 Cary has?

4 MR. GRIFFITH: Just to make this

5 clear, when you say are we comfortable with,

6 you\'re not asking whether we agree with everything

7 that\'s said in here, but that we understand \--

8 MR. LELAND: No. Eventually, we\'re

9 going to come back and wordsmith this thing and

10 vote. What we\'re trying to do is get it in a \--

11 MR. GRIFFITH: So that we understand

12 it?

13 MR. LELAND: So that we understand

14 what we\'re voting on and then also, just to remind

15 you guys, we have a committee that\'s going to help

16 these guys wordsmith this thing so when we meet in

17 January, we\'ll be able to go down at \-- you\'ll have

18 it in advance. You can down it line by line and

19 we\'ll have a way to make sure everybody\'s thoughts

20 are taken and we will take votes on it.

21 I\'m just trying to get it all \--

22 we\'ve got about eight or ten different documents

23 and some of it is in our heads. We\'re trying to

24 get it all in one spot. It seems to me there\'s a

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1 little bit of a consensus here about the dropping

2 of men\'s sports as it relates to Title IX.

3 Maybe I\'m wrong, but I see one.

4 MR. DUNCAN: For my sake, could you

5 express the consensus?

6 MR. LELAND: Title IX does not

7 require institutions to drop men\'s sports. Some

8 institutions have chosen to eliminate men\'s sports,

9 but that\'s an institutional decision. Certainly,

10 you know, issues surrounding equal opportunity

11 played a role. You know, each institution \-- to

12 me, schools are all so different that you can\'t \--

13 MR. DeFILIPPO: Facilities and

14 finances have also had an impact at different

15 institutions.

16 MR. LELAND: Yes.

17 MR. GRIFFITH: But don\'t you have to

18 acknowledge that some institutions have felt that

19 Title IX \-- that to comply with Title IX, they have

20 had to cut men\'s sports? I mean, some have felt

21 that way. Maybe they felt that way \-- maybe they

22 were wrong to feel that way, but we heard plenty

23 of people who said, yeah, Title IX made us do it.

24 There may be other reasons, but maybe that could

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1 be one of the roles the Commission is to point out.

2 MS. de VARONA: That goes to the heart

3 of the whole \--

4 MS. GROTH: Yeah. How \-- Tom, maybe

5 what we can do on that \-- on that statement is

6 Title IX does not require \-- excuse me \-- Title IX

7 does not require institutions to drop men\'s sports.

8 However, many institutions have felt they have had

9 to drop men\'s programs in order to comply with

10 proportionality. I mean, that states the law, but

11 it does not \--

12 MR. GRIFFITH: The language in Title

13 IX is not required.

14 MS. de VARONA: I think they have made

15 the choice.

16 MS. GROTH: Made the choice.

17 MS. de VARONA: You said not felt.

18 MS. GROTH: Okay.

19 MS. de VARONA: Had made the choice.

20 MS. GROTH: Better use of words. Made

21 the choice.

22 MS. de VARONA: Because that\'s true.

23 MR. GROTH: And quite frankly, we

24 could wordsmith all of these.

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1 MR. LELAND: Yes. This is critically

2 important, though, this little nuance we\'re talking

3 about.

4 MS. de VARONA: Yes, it is.

5 MR. LELAND: I don\'t think we could

6 settle it today, but we\'ve got to get it in.

7 MR. GRIFFITH: I just want to allow

8 that there may be some and you may think they were

9 wrong, but there may be some who thought that they

10 were doing it because Title IX required them to do

11 it.

12 MS. de VARONA: Right. I think they

13 did.

14 MS. FOUDY: I mean, if you look at \--

15 MR. JONES: It does seem \-- it does

16 seem slightly disingenuous, I guess, is the word

17 I would use, to use the word choice in this case

18 because I do think you can\'t ignore what Bob is

19 saying. There seems to be this tendency to want

20 to create this distinction between the elimination

21 of teams either because of budgetary reasons or

22 because of Title IX.

23 I think what Bob is suggesting

24 is, yeah, there are very real financial and

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1 budgetary issues that face athletic directors,

2 but when they have to look at the where to make

3 the cuts in the budget, you know, because of many

4 of the views that have been expressed to us about,

5 you know, what Title IX \-- what the policy

6 interpretation requires, you know, in terms of

7 deciding what goes on the chopping block, that\'s

8 how men\'s sports end up on the chopping block.

9 So, you know, they are so tied

10 in together, Title IX and the budgetary reasons,

11 so, I think, to say that they have made the choice,

12 I think that Cary\'s language was actually better,

13 that many institutions have felt that Title IX has

14 played a part. So to sort of characterize it as

15 simply a choice that institutions have made, I

16 think ignores the pressure that Bob has felt.

17 MS. de VARONA: Then we\'re ignoring

18 the elephant in the room because they don\'t choose

19 to cut football players. They don\'t make that

20 choice. They could make that choice, but they

21 don\'t make that choice. So I think it\'s a choice.

22 I think that\'s fair unless you

23 want to say that you could put the football language

24 in there because they choose to cut men\'s minor

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1 sports instead of choosing to cut \-- I\'m talking

2 Division I-A football players and that\'s a choice.

3 They make that choice and we are in a box. You

4 know, there is a box. There is a resource box

5 and there is a numbers game and that\'s what we

6 are looking at.

7 MR. BOWLSBY: Well, but that denies

8 the management realities that all of us deal with

9 on a day to day basis. We make just as many cuts.

10 In fact, the dollars may be larger in the reductions

11 we make in football and men\'s basketball than \--

12 we sometimes cut enough from those budgets to wipe

13 out entire sports programs.

14 That isn\'t \-- just because an

15 institution discontinues sports, it is always the

16 last resort for any institution regardless what

17 the reason is, whether it\'s purely financial,

18 whether it\'s part financial and part compliance

19 or whether it\'s all tied to compliance or what

20 their opinions may be on why they are actually

21 doing it.

22 I can tell you, and I know I

23 spoke for every athletics administrator in the

24 country when I say that dropping sports is the

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1 last resort and there are broad reductions in

2 every part of the program before that is ever

3 considered and, you know, to have football

4 repeatedly characterized as this pig at the

5 trough is offensive to me and it\'s offensive

6 to others in the room.

7 MS. de VARONA: I\'m not saying that.

8 I\'m saying it\'s a choice.

9 MR. BOWLSBY: You know, we don\'t \--

10 this Commission doesn\'t have the purview or the

11 time to deal with all of the cost reductions

12 issues that are present in college athletics.

13 MS. de VARONA: I think they are

14 important.

15 MR. BOWLSBY: There is a need to do

16 that and \--

17 MS. de VARONA: There is.

18 MR. BOWLSBY: \-- I think all of us

19 are about that task every day. The discontinuation

20 of sports doesn\'t come with no reductions in any

21 other part of the program. It comes after those

22 reductions are implemented and when reductions

23 of sport offerings are a last resort. I am quite

24 comfortable in saying that that\'s the way it\'s done

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1 on every campus.

2 MR. JONES: And in further response

3 to Donna\'s point, too, I think it\'s worth noting,

4 though, that even if you were to include football,

5 you know, Bob\'s point still, I think, has some,

6 you know, some credibility here because still,

7 your cuts would still be on sort of \-- for the

8 Title IX analysis purposes. All of your cuts

9 would still be on the male side of the ledger,

10 which I think again bears, you know, some

11 recognition.

12 MS. de VARONA: Oh, I agree with

13 you, but I still think it\'s important, but I \--

14 MR. LELAND: Okay. Let\'s do this.

15 Let\'s have one more \-- Julie, did you want to

16 make a comment?

17 MS. FOUDY: Go ahead.

18 MR. LELAND: Let\'s \-- we have to,

19 I\'m afraid, for times sake, forego the rest of

20 the conversation regarding question number one.

21 Are you guys keeping up with

22 us? Are we doing what we need to do for you

23 guys?

24 So let\'s go on to \-- and we\'ll

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1 try, if we have time, we\'ll go back to get the

2 other findings that people submitted and findings

3 that people didn\'t submit, but have on their

4 minds. In order to keep our time frame, let\'s

5 try to go onto question two.

6 Is there accurate Title IX

7 guidance that enables colleges and school districts

8 to know what is expected of them and to plan for an

9 athletic program that effectively meets the meets

10 the needs and interests of their students?

11 I don\'t know. I hate to do Julie

12 again.

13 MR. SPANIER: There is a one word

14 answer to that. No.

15 MR. LELAND: Let me see if there\'s any

16 answers to \--

17 MR. SPANIER: I think we\'ve all \-- I

18 think we\'ve all dealt with that one.

19 MR. DeFILIPPO: That\'s right.

20 MR. BATES: We could probably agree on

21 that.

22 MR. DeFILIPPO: We agree on that.

23 MR. LELAND: Gene, do you want to do

24 yours first? Gene has got two for this one.

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1 MR. DeFILIPPO: I didn\'t understand

2 what Ted wanted me to do. His instructions were,

3 I\'m sure, clear, but I didn\'t understand them.

4 But now I do, Ted.

5 MR. LELAND: Thank you, Gene.

6 MR. DeFILIPPO: Okay. Question two,

7 finding one, OCR has not provided enough clarity

8 to help institutions to use prong two and prong

9 three.

10 MS. de VARONA: We agree.

11 MR. REYNOLDS: As the head of OCR,

12 I concur.

13 MR. DeFILIPPO: Do we all agree on

14 something?

15 MS. COOPER: Yes.

16 MS. GROTH: Yes.

17 MS. de VARONA: Yes.

18 MR. LELAND: Okay. Anybody else have

19 a comment on the \-- good. They even used Roman

20 numerals. Okay. You have the next one.

21 MR. DeFILIPPO: I don\'t mean to pick

22 on OCR, but it is a finding that there has been

23 inconsistent interpretations of Title IX at

24 different regional OCR offices.

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1 DR. YOW: Ditto.

2 MR. LELAND: Okay. Any other \-- any

3 disagreement? I hear no waive of support. I\'ll

4 do mine since I have a couple and I\'m searching

5 for others. If you\'ll turn to Q2-R2, clarify prong

6 one, clarify and institutionalize prong three.

7 I did like the specific LSU model because when

8 they tried \-- I thought the compelling part about

9 that was working with the court on the front end

10 and also the use of \-- if they did use interest

11 surveys, they used interest surveys that dealt

12 specifically with the sport as opposed to

13 generically are you interested in playing

14 sports.

15 MS. FOUDY: Where are you, Ted?

16 Sorry.

17 MR. LELAND: I\'m on Q2-R2.

18 MS. FOUDY: Oh, you\'re on

19 recommendations?

20 MR. LELAND: I already went through

21 R1 because it was a ditto.

22 MR. DeFILIPPO: You\'re talking about

23 F, aren\'t you?

24 MS. COOPER: Q2-F1.

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1 MR. LELAND: Oh, yeah. I\'m sorry.

2 No wonder I screwed this thing up. This is the

3 most confusing thing I\'ve ever done in my life.

4 Prong three, as a concept, is

5 great. Prongs two and three are not clear.

6 Prongs two and three are only used in an OCR

7 complaint as filed. I think that\'s when \-- a

8 little bit of what Jerry was talking about with

9 the numbers from the OCR report. The problem

10 you have with those only when you can only

11 comply under prongs two and three and you can

12 only convince your president you comply under

13 prong two and prong three if you get a complaint

14 by the OCR and you go through all of that problem

15 and you hire all of the consultants and lawyers

16 and everything.

17 I do think there is some issue

18 of the quota systems if prongs two and three aren\'t

19 usable, aren\'t what I\'d call operational. I don\'t

20 know if that needs to be in the findings. That\'s

21 probably \-- let me withdraw that. That\'s probably

22 too strong.

23 But I do think that it is \--

24 when I hear people say it\'s not a quota system,

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1 they are always saying, well, that\'s because

2 you use prong two and prong three and, well,

3 if you can\'t use prong two and prong three,

4 then, you know, maybe it is. So that\'s just

5 my simple way of looking at it. I think I

6 did that finally right, didn\'t I, Gene?

7 MR. DeFILIPPO: Yes.

8 MS. FOUDY: Was the prong two and

9 three only used after the OCR complaint has been

10 filed?

11 MR. LELAND: Well, I guess my

12 understanding from what we\'ve talked to everybody

13 is is that almost no one \-- we heard no testimony

14 from anyone who used prong two and prong three to

15 meet Title IX who hadn\'t \-- and felt that they

16 were in a safe place, a safe harbor, unless they

17 had been adjudicated, their compliance with two

18 and three had been adjudicated by the OCR.

19 MS. FOUDY: Are you talking about

20 Division I again or what are we talking about

21 because I remember the \--

22 MR. LELAND: I\'m talking about the

23 testimony that I heard.

24 MS. FOUDY: Because I remember the

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1 panelist from the junior college, and I can\'t

2 remember where it was, talking about, you know,

3 his junior college having \-- it was the one on

4 the far right. I just remember visually, the

5 man. He was talking about his having so many

6 non-traditional students that were single mothers

7 coming back who weren\'t participating in sports.

8 He was going off the interest issue \-- the interest

9 prong to be in compliance.

10 That is what he talked about

11 because of \-- he would never have been able to

12 meet the proportionality prong based on the number

13 of women that were coming to school. I wish I

14 knew his name. I don\'t have that in front of me.

15 I remember the \--

16 MR. LELAND: I thought it was a she,

17 but I remember the discussion. I don\'t know whether

18 that had been adjudicated by OCR or not. What I\'m

19 saying is, and I think we had some testimony about

20 the EADA report, basically the EADA report you had

21 is about proportionality. That\'s what it talks

22 about. It doesn\'t talk about prong two and prong

23 three.

24 I\'d like to see a way to

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1 operationalize prong two and prong three so that

2 people could say, you know, I meet prong two and

3 I didn\'t get sued and I don\'t have to deal with

4 the OCR. I just feel I\'ve done this internal

5 study and we feel like we\'ve added enough

6 opportunities in the last five years that we

7 meet it.

8 The problem is is that\'s not \--

9 that\'s not a viable option for most of us to say

10 that because if you get sued you don\'t have a

11 safe harbor.

12 MR. JONES: You just stumbled back

13 into the safe harbor discussion.

14 MR. LELAND: Yes. I apologize.

15 MR. JONES: That\'s what it means.

16 That\'s why the safe harbor discussion we had

17 before is significant because what it means to

18 be a safe harbor is that that\'s the way that

19 you get into compliance without having to go

20 through all the fact-finding and the OCR

21 investigation and all that sort of thing.

22 So the reason why, you know,

23 operationally they are different is because

24 to show compliance with prongs two and three,

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1 there is a great deal of more fact-finding.

2 You know, there is \-- the investigatory approach

3 that\'s taken in prong two because they are not,

4 in fact, safe harbors. That\'s the distinction.

5 That\'s why that earlier discussion that we had

6 is a significant one.

7 MR. LELAND: All right. Now, I

8 had another one. It seems like I have another

9 one.

10 MS. FOUDY: I guess I\'m just saying

11 that I don\'t know if it\'s necessarily that prongs

12 two and three were only used after the complaint

13 has been filed. I think more people are using it

14 and we\'re just not hearing from them.

15 MR. LELAND: Okay. The next one

16 is \-- I said it\'s Q1-F3, in the past 20 to 30

17 years, there has been a small drop off in men\'s

18 opportunities; a drop in the number of teams,

19 squad caps elimination of walk-ons. It is not

20 accurate to blame Title IX for the dropped

21 teams and squad caps, although it was probably

22 a contributing factor in some cases.

23 MS. COOPER: Sounds good.

24 MR. REYNOLDS: Does that take

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1 into account roster management \-- the missed

2 opportunities associated with roster management?

3 MR. LELAND: I took roster management

4 to be squad caps and walk-ons.

5 MR. JONES: The question about the

6 facts on this, didn\'t the \-- again, I\'m not clear

7 on this. This is just a genuine question, but

8 didn\'t the NCAA numbers, haven\'t they shown

9 something like 1,800 men\'s teams eliminated

10 between, what, 1973 or 1972 and today?

11 Isn\'t that the number?

12 Is that what we\'re calling insignificant? I

13 mean, I think here it would be helpful rather

14 than characterizing the number of eliminated teams

15 as insignificant. I think it might be better

16 to just put the number out there if there is

17 one everybody agrees on.

18 MS. FOUDY: But isn\'t it more

19 that it wasn\'t necessarily the teams, it was

20 the participation slots and didn\'t that same

21 study show that the actual number \-- and I know

22 that there was debate about this, the actual

23 number of participation slots for men, although

24 it has not grown much, it has increased.

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1 MR. JONES: Yeah. Maybe I didn\'t

2 know what he was talking about either.

3 MS. FOUDY: That\'s what I remember.

4 MR. REYNOLDS: No.

5 MS. FOUDY: And that we\'ve dropped

6 teams, but we\'ve added participation slots because

7 they\'ve made football teams bigger and they\'ve

8 made other teams bigger so it\'s not that \-- I think

9 that\'s an important distinction.

10 MR. JONES: Yes. I just thought I

11 would just be interested in making sure that we

12 clarified it. I wasn\'t clear what you were talking

13 about here.

14 MR. BOWLSBY: Yes. That was really

15 my point too. I think there has been a substantial

16 migration from other organizations into the NCAA.

17 I think there has been a substantial transition

18 from some sports to other sports and I think that

19 we would be less than responsible if we went by

20 this \-- went past this issue without identifying

21 that literally hundreds of wrestling programs,

22 gymnastics programs, swimming programs and others

23 have fallen by the wayside during the time this

24 was all taking place. I don\'t think we have any

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1 intention to hanging that all on the shoulders of

2 Title IX. I don\'t think it resides there, but I

3 think we\'re less than frank if we don\'t identify

4 that that has occurred and I think as we prepared to

5 make recommendations, we need to be mindful of it

6 and it needs to be included in what we are doing

7 because it\'s a fact and it\'s a lot more than

8 comparing participation opportunities. It\'s the

9 real extinction of some very significant sports

10 opportunities.

11 MR. SPANIER: Can I ask a question?

12 I wasn\'t there in San Diego because I got all of

13 the materials in the mail and looked through them.

14 There is a presentation and a set of data by an

15 independent statistician that the Department of

16 Education engaged that analyzed all of these data,

17 took the NCAA data and the other data and reanalyzed

18 them, was that actually presented before the

19 commission or was it included in the packet of

20 materials?

21 MS. GROTH: He presented.

22 MR. LELAND: He did the best he could

23 to present it.

24 MR. SPANIER: There you have numbers

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1 corrected, so to speak, for new schools coming into

2 the NCAA, reductions in opportunities, increase in

3 opportunities as well as some estimates of how many

4 years it would take for certain things to happen.

5 MS. GROTH: He did present, Graham,

6 but then the NCAA representative corrected him

7 so it went back to two different opinions or

8 facts.

9 MR. SPANIER: Uh-huh.

10 MR. LELAND: And I apologize again.

11 I don\'t know where my brain is today. Maybe I

12 never had one and I just thought I did.

13 This is back on question one.

14 I don\'t know why I brought this thing up so,

15 Sally, could you just kick me under the table?

16 Come over here and hit me on the head when I

17 do something wrong.

18 So if you could turn the page,

19 I apologize. We will try to come back to that

20 later. Question two, finding two, there is great

21 misunderstanding about the law among practitioners.

22 This is a lack of education from OCR, a lack of

23 clarity on prong two and prong three and EADA

24 reports only proportionality. Those were my

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1 concerns and I think I\'ve got the right question

2 this time.

3 Then if you turn it to question

4 two, finding three, I do think there needs to be

5 a stronger enforcement program, more open. The

6 process shouldn\'t always require a complaint to

7 be kicked in and enforcement should be forceful,

8 which I thought sort of captured what the people

9 said the last time.

10 MS. GROTH: Ted?

11 MR. LELAND: Yes.

12 MS. GROTH: I know you went by

13 question two, finding two rather quickly, but

14 I think C. is worthy of some discussion at

15 some point, EADA report, so that it accurately

16 reflects the institution\'s compliance with

17 Title IX and I think that needs some work.

18 MR. LELAND: That\'s more on the

19 recommendation end, I think, but, yeah, I think

20 that\'s a \-- are we all done with my little

21 faux pas here? Thank you for liking me and looking

22 the other way. As a matter of fact, I was surprised

23 somebody didn\'t say ooh!

24 DR. YOW: Just don\'t let it happen

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1 again.

2 MR. LELAND: I\'ll try. Julie, have we

3 gone through yours for question two yet, your

4 findings?

5 MS. FOUDY: No.

6 MR. LELAND: Do you want to see if

7 you have any? I know we got put over there, didn\'t

8 we?

9 MS. FOUDY: Yes. We \--

10 MR. LELAND: The one that you \-- it

11 was originally question one, finding five.

12 MR. FOUDY: Right.

13 MR. LELAND: Now, it\'s question two.

14 MS. FOUDY: The interest one.

15 MR. LELAND: Yes.

16 MS. FOUDY: Do you want me to read

17 it again?

18 MR. LELAND: Yes. Why don\'t you go

19 ahead?

20 MS. FOUDY: There is no evidence

21 that, given equal opportunities to play, women are

22 less interested in sports than men. In fact, the

23 history of Title IX demonstrates just the opposite.

24 Moreover, while the Department of Education permits

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1 the use of surveys to help determine which sport

2 an institution should add, survey results alone

3 cannot be accepted as evidence of insufficient

4 interest in participation in sports.

5 MR. LELAND: Okay. Discussion?

6 We\'ve had a pretty good discussion so far today.

7 DR. YOW: Julie, are you addressing \--

8 are you including the walk-on concern in this \-- in

9 your finding here?

10 MS. FOUDY: No.

11 DR. YOW: Are you suggesting that

12 there is \-- this is not part of the walk-on issue?

13 MS. FOUDY: No. We talk about that

14 later.

15 DR. YOW: Okay.

16 MS. FOUDY: I was trying to stick

17 to the first question, which is not the second

18 question.

19 MR. SPANIER: Is this a prescriptive

20 statement? Do you mean by cannot, will not, should

21 not, must be not, must not or\...

22 MS. FOUDY: Where are you?

23 MS. GROTH: Survey.

24 MS. STROUP: Survey.

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1 DR. YOW: Survey.

2 MR. SPANIER: Survey results alone

3 can\'t be accepted meaning we should not allow them

4 to be accepted.

5 MS. FOUDY: I just have a really

6 hard time with trying to \-- trying to look at a

7 population of people. First of all, what population

8 are you looking at? Would you survey the entire

9 world because that\'s where you recruit from? I

10 mean, I would look at \-- who would you recruit?

11 Who would you look at in determining interest?

12 Maybe someone meets Cynthia Cooper

13 tomorrow, a young girl meets her the next day and

14 her interest changes the day after she\'s done the

15 survey. I just think there are too many factors

16 involved and cultural bias that come into play

17 that surveys freeze into place and that to try

18 and attempt to even bring that into play with

19 this Commission is way beyond anything I think we

20 have been asked to do and I think it opens a huge

21 Pandora\'s box.

22 MR. SPANIER: So you\'re really

23 saying, I think, survey results may not always

24 tell us the whole story, that while surveys

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1 present certain evidence, there may also be

2 other evidence that reflects women\'s interests

3 in sports?

4 MS. FOUDY: Uh-huh.

5 MR. SPANIER: I don\'t think we

6 should \-- I mean, I\'m a survey researcher. I

7 hate to be party to a statement that kind of

8 sounds like it doesn\'t believe in survey research,

9 it doesn\'t tell us anything, it can\'t be used

10 and shouldn\'t be used.

11 It is probably a single

12 best indicator that we would have in our

13 society for gauging interest among broad

14 groups of folks, but I would be the first

15 to say that survey research is based on

16 probabilistic models, not Stochastic models.

17 They tell you sort of what\'s out there in

18 the general population.

19 You make inferences, you

20 can give probability levels, but you find

21 a particular individual for which the survey

22 doesn\'t tell you what\'s going on. I\'m just

23 concerned we don\'t throw the baby out of

24 the bath water on this and denounce surveys.

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1 MS. FOUDY: What if we said

2 something like surveys can be subject to tell

3 you what sport rather than if?

4 MR. REYNOLDS: Why limit it

5 if there is some value to be had from using

6 a survey instrument to determine levels of

7 interest?

8 DR. YOW: Julie, I \-- I\'m sorry,

9 Jerry.

10 MR. REYNOLDS: It\'s just that there

11 seems to be a visceral fundamental opposition to the

12 use of surveys and I\'m just trying to get at why.

13 If it can be constructed in a fair manner,

14 we use surveys all the time. We use, you know,

15 polling data to predict presidential races. We

16 use polling data for a whole host of items. Why

17 is this issue special?

18 MR. SPANIER: I could speculate

19 that, you know, a survey, if it\'s done well is a

20 snapshot of what is. It doesn\'t tell you what

21 could be. If you believe that \--

22 MR. REYNOLDS: And that\'s why you

23 don\'t \--

24 MR. SPANIER: There could be more.

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1 There could be better. There could be a different

2 direction. You don\'t want a survey to lock you

3 in place and say this is \--

4 MR. REYNOLDS: That\'s right.

5 That\'s exactly right. That\'s why that picture

6 of Dewey defeating Truman, they didn\'t continue

7 to count the noses. It\'s a moving target.

8 That\'s why it\'s important that it has to be

9 done on a regular basis.

10 MR. SPANIER: I think this can just

11 be dealt with some wordsmithing. I think there

12 is a point behind this that has some merit, but

13 it\'s kind of written in a way as if surveys are

14 bad, don\'t ever use them. We just need the right

15 words in there.

16 MR. LELAND: Go ahead, Gene.

17 MR. DeFILIPPO: I just want to say

18 that we have an excerpt here on surveys and I

19 think this tells us about the lack of clarity

20 in prong three measuring the interest that even

21 an expert on surveys says that we can\'t predict

22 in the future. I think what we are adding to is

23 the lack of clarity in prong two and prong three.

24 I think it\'s coming at it from a different way.

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1 DR. YOW: I agree with what Gene

2 is saying. In fact, that\'s similar to what I

3 was going to suggest is we have an expert here.

4 We can say on the one hand, we have flexibility

5 prongs one, two and three. Then, the moment we

6 start talking about one of the prongs, we can\'t

7 even agree on its value.

8 That kind of points out what

9 it feels like, Julie, day-to-day, in the office,

10 when we are trying to decide how to best ensure

11 that we are in compliance. It\'s a real interesting

12 dilemma.

13 MS. FOUDY: And, you know, I don\'t

14 doubt that at all, but one of the things, you know,

15 that I constantly come back to is you look at \--

16 I mean, Graham, I\'ll read to you in court cases

17 that I found was really interesting in the U.S.

18 Court of Appeals for the First Circuit in regards

19 to surveys about interests.

20 It says, the premise that women

21 are less interested in sports than men ignores the

22 fact that Title IX was enacted in order to remedy

23 discrimination that results from stereotype notions

24 of women\'s interests and abilities. Interest and

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1 ability rarely develop in a vacuum. They evolve

2 as a function of opportunity and experience.

3 I just think that we\'re \--

4 by doing surveys, we\'re freezing into place this

5 discrimination.

6 MR. SPANIER: Only if you misuse

7 the survey.

8 MR. REYNOLDS: Yes.

9 MR. SPANIER: Only if you misuse

10 the survey by assuming that because right now,

11 it\'s 60/40 or 70/30 or the interest level is

12 whatever number you find that it means we believe

13 that\'s right or we shouldn\'t try to change it.

14 I think you know we have to face up to the question

15 of if \-- for example, we\'ve all said in the

16 discussion of an earlier finding there is not

17 clarity in the three prongs. There isn\'t sufficient

18 guidance.

19 We have one prong that\'s been

20 identified as a safe harbor. We should be asking

21 questions should there be more than three prongs?

22 Should any one prong be a safe harbor? If there

23 is to be three or more prongs, what kind of meat

24 do we put behind the other prongs and if one of

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1 them is surveying interest and abilities, we

2 really have to ask questions and maybe make some

3 recommendations about what the population is.

4 The only population that we

5 look at now is undergraduate students and the

6 question is should your pool be enrolling

7 undergraduate students, should it be those

8 who apply to your institution, should it be

9 a local, regional or national pool of

10 perspective students?

11 I mean, there are a whole

12 bunch of questions to be asked about what the

13 relevant group is to survey to determine interests

14 and abilities. It\'s not that there was anything

15 wrong with surveys. It\'s about the population.

16 It\'s about your sampling technique. It\'s about

17 the questions you are asking. I think all of

18 that has got to be clarified along the way so

19 when we get to that part of the discussion, I

20 think it\'s important that we not have categorically

21 said something about a finding that almost makes

22 it impossible for us to have that discussion.

23 I think it just needs a little

24 wordsmithing to suggest that surveys alone may

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1 not tell us the whole story, that there may be

2 other evidence out there, other things to look

3 at beyond surveys. We just have to \-- have to

4 get the right words. I really don\'t think it\'s

5 a big problem.

6 MR. JONES: Yes. I think, too,

7 what the courts are talking about there, as you

8 know, Graham, is about the idea \-- the recognition

9 that a survey is fundamentally a snapshot in time

10 and you don\'t want to allow an institution to

11 allow a particular survey from a particular

12 point in time to continue over the course of

13 time to be a defense against an allegation of

14 discrimination.

15 Again, at the bottom, I go

16 back to what I said sort of at the very beginning

17 of this, we have to keep in mind, you know,

18 that ultimately what this whole effort is

19 about \-- what the whole three-part test effort

20 is about is trying to discern whether a covered

21 institution, a recipient of federal funds is

22 engaged in discrimination on the basis of sex.

23 So, you know, again, I think

24 we have to recognize that in some sense an

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1 institution \-- you\'ve got to acknowledge that

2 institutions in some sense operate in, you know,

3 in the world as they \-- as it is.

4 Obviously, there is a delicate \--

5 a very delicate balance that has to be struck,

6 but I think that the balance is struck by doing

7 what Graham talks about and just making sure

8 that surveys are never the beginning and the

9 end of the question and that we always make

10 sure that we are looking for the best possible

11 survey instruments, to get the best possible

12 measurement, and that we also acknowledge that,

13 you know, as the courts have said that interest

14 is not static.

15 It\'s not in a vacuum. It\'s

16 constantly evolving and that we ought to have

17 a burden on institutions to continue to measure

18 that interest, but fundamentally, we\'ve got to

19 remember what the role of this whole three-part

20 test enterprise is and that is to find out whether

21 an institution receiving federal funds is engaged

22 in discrimination.

23 MR. BATES: Ted, I have a question

24 for clarification.

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1 MR. LELAND: Yes, sir.

2 MR. BATES: Are we \-- I mean, is this

3 something we can handle by words? Julie, do you \--

4 I didn\'t read this in that \-- I meant that surveys

5 should never be used alone. Is that \-- I mean, to

6 me, that\'s a different concept than trying to

7 clarify it with words.

8 Is that what you had in mind,

9 that it should be surveyed and something or do

10 you think there are situations, as Graham is

11 pointing out, when, if done properly, survey

12 data could be used? Because if we\'re going to

13 wordsmith this, we have to understand what

14 our intent is here.

15 MS. FOUDY: Well, I know that the

16 Department of Education allows surveys for prong

17 three to be done. You know, I think \-- what I

18 talk about in this finding is the use of it overall

19 in trying to say that women aren\'t as interested in

20 men in sports as a general principal, I have

21 problems with.

22 MR. BATES: Okay. Okay. I think we

23 can do it with words then. Okay. I just wanted

24 you \-- it needed to be clarified.

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1 MR. LELAND: It seems to me, Julie,

2 the first sentence might be wordsmithed into some

3 way as a finding, but the second sentence, moreover,

4 while the department permits use of surveys, surveys

5 alone cannot be accepted.

6 Isn\'t that sort of a

7 recommendation? I mean, I don\'t know if that\'s

8 a finding, is it? I mean, I don\'t know.

9 MS. FOUDY: I put it as a finding

10 simply because of the court cases and what

11 everything has \--

12 MR. LELAND: Okay. So you\'re

13 comfortable calling it a finding?

14 MS. FOUDY: \-- been said about it.

15 Every court has said you cannot use surveys alone.

16 We\'ve talked about that in some of the testimony.

17 That\'s why I put it in there.

18 MR. LELAND: Okay. Let me ask

19 you one question. Wasn\'t there \-- wasn\'t

20 Brown\'s attempt to use survey instruments \--

21 their sort of general survey instruments

22 taken before the student enrolled or during

23 while they, you know, the first week of

24 enrollment?

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1 Those were sort of general

2 interest surveys and weren\'t \-- they tried

3 to tie that with proportionality? Isn\'t that

4 what they tried to do or correct me? I thought

5 they tried to say \-- not that this is meeting

6 prong three, this is really we\'re meeting

7 prong one, is that correct? Okay.

8 MS. FOUDY: I lumped questions two

9 and three kind of together, the guidance questions.

10 So I don\'t know if you want me to go over the \--

11 I think they go more towards two.

12 MR. LELAND: I agree. Do you

13 mean Q? What\'s labeled as Q3, item one?

14 MS. FOUDY: Yes. It\'s labeled as Q3,

15 but I put them under Q2, I think.

16 MR. LELAND: Okay.

17 MR. FOUDY: I don\'t know if you want

18 me to do it now.

19 MR. LELAND: Please go ahead. Thanks,

20 Julie.

21 MS. FOUDY: The question was is

22 further guidance \-- is there adequate Title IX

23 guidance that enables colleges and school

24 districts to know what is expected of them in

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1 planning for an athletic program that effectively

2 meets the needs and interests of their students

3 and I put ample written guidance already exists.

4 However, some schools need

5 additional technical assistance in understanding

6 the flexibility of the three-part test, the

7 independence of each prong of the test and the

8 practical examples of the ways in which they

9 comply. Then I list, you know, what the written

10 guidance that exists already.

11 MR. LELAND: Are there questions

12 for Julie on this?

13 Debbie?

14 DR. YOW: Not a question.

15 Julie, I appreciate everything

16 about this except that first sentence, ample

17 written guidance already exists. We\'re just not \--

18 we\'re not \-- the problem is we\'re living this,

19 some of us, for me, 26 years, so literally every

20 day. So we\'re going to have a different perspective

21 because we actually do this for a living.

22 MS. FOUDY: Right.

23 DR. YOW: Ample written guidance

24 does not already exist. That\'s why we are all

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1 here.

2 MS. FOUDY: Uh-huh.

3 MR. DeFILIPPO: Ditto to what Debbie

4 said.

5 MR. REYNOLDS: Well, I would go

6 one step further. I\'m looking at the 1990 Athletic

7 Investigators Manual. That document preceded the

8 clarification issued in 1996, which substantially

9 altered portions of the manual. For instance, the

10 manual contains the Z test with respect to financial

11 assistance.

12 Brian just asked, well, what

13 is that? It\'s a statistical method of determining

14 when nondiscriminatory factors explain a disparity

15 as opposed to discrimination. That methodology

16 was used and it\'s laid out in the 1990 manual,

17 but that has been superseded in the 1996 letter.

18 Actually, it\'s not the 1996 letter. It\'s the \'98

19 Bowling Green letter.

20 In any event, someone relying

21 on that document is going to be bushwhacked because

22 at least that portion is not up to date. Also,

23 conceptually, a history of continuing program

24 expansion, what does that mean? If you have a

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1 gap, does that disqualify you from using prong

2 two?

3 Substantial proportionality,

4 what does that mean? What variance is okay?

5 Is three percent variance okay? Is five percent

6 variance okay? There is no written policy document

7 that clarifies these issues.

8 MR. SPANIER: Well, everything

9 cited here predates the 1996 letter, which so

10 substantially changed things, in fact, it doesn\'t

11 matter about all these other things. So in

12 affect no guidance currently exists other than

13 a lot of still some guessing going on about

14 the 1996 letter.

15 MR. REYNOLDS: Well, and a part

16 of the problem is you have a statute and then

17 you have gloss upon gloss upon gloss. You have

18 a statute and then you have the regulation and

19 then you have policy interpretation and then

20 you have the \'96 letter and then you add the

21 Bowling Green letter onto that and then you have

22 multiple letters of findings that are floating

23 out there. You have manuals and it\'s a tough

24 job trying to find out what the standard is

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1 sometimes.

2 MR. LELAND: Well, how should we

3 handle that? I mean, there\'s not \-- it doesn\'t

4 sound to me \--

5 MS. FOUDY: I think \-- I think I

6 probably didn\'t write this that well. I totally

7 agree that we need more examples of compliance

8 and ways to comply.

9 I think my reservation is

10 that we don\'t tamper too much with the guidance

11 out there in terms of changing civil rights

12 laws, which we are not experts on and that we

13 maybe figure out some way of clarifying those

14 rules that can provide more guidance.

15 MR. LELAND: So we\'re in effect

16 changing at least your first sentence?

17 MS. FOUDY: Yes. How we change

18 that, I don\'t know. Can you put all of that

19 in there? Just kidding!

20 MR. LELAND: Gene?

21 MR. DeFLIPPIO: Go ahead, Graham.

22 MR. SPANIER: I think you need to

23 eliminate the first sentence and you add a new

24 last sentence, which says all of these things

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1 have been done. Nevertheless, in 2003, which

2 is the date that will be on this, clearly, new \--

3 a new clarification is needed and further

4 guidance is needed for educational institutions.

5 I mean, that \-- that\'s what needs to happen, I

6 think. You know, this \--

7 MS. FOUDY: How about we just

8 leave the first sentence with however out

9 and just put in some schools need or even many

10 schools need.

11 MR. DeFILIPPO: Many would be

12 closer.

13 MS. de VARONA: Yes, educational

14 institutions.

15 MS. FOUDY: What\'s that? Many

16 educational institutions?

17 MS. de VARONA: Educational

18 institutions.

19 MS. FOUDY: Yeah, that\'s fine.

20 MR. LELAND: Okay. Julie, do any

21 of your others, do you think, fit in that question

22 number two? Maybe the next one does.

23 MS. FOUDY: Where did we talk about

24 the EADA? Was that in this one?

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1 MS. COOPER: It\'s Q3-F3.

2 MS. FOUDY: That was kind of two

3 of Cary\'s issues. It\'s similar to that because

4 it does not request information about a school\'s

5 history of expanding opportunities for women

6 or its accommodation of women\'s interests and

7 abilities, the Equity in Athletics Disclosure

8 Act report may contribute to the misleading

9 impression that prong one is the only viable

10 Title IX compliance option.

11 MR. LELAND: Good. That sort of

12 agrees with one.

13 MS. FOUDY: Uh-huh. And the same

14 thing for the next one, The Equity in Athletics

15 Disclosure Act does not apply to secondary schools,

16 which limits the Department of Education\'s ability

17 to systematically monitor compliance with Title IX

18 at this educational level.

19 MR. LELAND: That is more for three,

20 though. Let\'s leave that for question three.

21 MS. FOUDY: Oh, yeah, right. Sorry.

22 MR. LELAND: That\'s more high school.

23 Any other findings and thoughts

24 on question number two? Is there adequate Title IX

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1 guidance that enables colleges and school districts

2 to know what is expected of them and to plan for the

3 athletic program that effectively meets the needs

4 and interests of other students?

5 We talked about enforcement

6 interest issues and interest surveys. Anything

7 about the non-traditional students? Is this the

8 right place to talk about them?

9 MR. SPANIER: Can I just back up one

10 second?

11 MR. LELAND: Yes.

12 MR. SPANIER: On the Equity in

13 Athletics Disclosure Act, maybe somebody in the

14 department could tell us, but my understanding

15 is that the principal use of that act is not

16 actually for the Department of Education. It\'s

17 to make public to perspective student athletes

18 what the data showed so they could presumably

19 make informed decisions about various things.

20 It\'s put up on a web site

21 and we\'re required to tell perspective student

22 athletes go check our data out, make sure what

23 we are telling you is so. Does the department

24 actually systematically review these tens of

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1 thousands of pages of data and check us out in

2 some way?

3 I\'m just not aware that

4 there was any systematic \-- I mean, it seems

5 to me like it\'s most \-- like most every other

6 fund-fund-funded mandate, we have from the

7 federal government \-- we send in a big report.

8 I\'m signing them every day and people bring

9 them in to me because a lot of them say the

10 president must personally sign this. It\'s,

11 like, 50 pages long and I have people standing

12 on either side saying, believe us, it\'s true,

13 it\'s true, you don\'t have to recalculate the

14 numbers. Graham, just put your signature on

15 there because it\'s due at 5:00 o\'clock today.

16 I know there can\'t be \--

17 you don\'t have the staffing for people to be

18 reading all of this stuff. If my impression

19 is correct, it leads me to wonder about whether

20 we should be party to imposing on the whole

21 K through 12 system in this country another

22 unfunded mandate that suggests you ought to

23 be doing it, too, because for us, it does at

24 least serve the purpose, at least presumably

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1 perspective student athletes looking at our

2 data decide where to go to college.

3 The kids in the schools

4 don\'t really \-- they\'re not, we hope, choosing

5 up schools based on an act like that. I\'m just

6 curious. What\'s it like from your end with

7 all of this stuff?

8 MR. REYNOLDS: Well, I missed

9 the first part of your question. I was being

10 distracted by Mr. Jones here.

11 If I piece this together,

12 are we talking about the \--

13 MR. SPANIER: The Equity in Athletics

14 Disclosure Act, the data that we provide, put upon

15 the web site, and so on, do you really

16 systematically review these things?

17 MR. REYNOLDS: Well, first off,

18 that\'s not in my shop.

19 Sally, is that your shop?

20 MS. STROUP: No, but you would be

21 the one who uses it.

22 MR. REYNOLDS: Yes.

23 MS. STROUP: We collect it in my

24 office. We post it on the web. We ensure that

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1 everyone reports in order to meet the compliance

2 requirements of the Higher Education Act. That\'s

3 literally what our office does with it.

4 We do not sit there and check

5 all the numbers and see how the numbers look or

6 what they say. It was designed as a consumer

7 disclosure process much like all the other

8 consumer disclosure processes. That\'s what it

9 was for.

10 Now, whether or not the Office

11 of Civil Rights actually looks at it and uses it,

12 I actually don\'t have the answer to that question.

13 MR. REYNOLDS: The problem is the

14 data is incomplete. There are three methods of

15 coming into compliance. If any institution whose

16 numbers don\'t match up, that doesn\'t necessarily

17 mean that they are not in compliance because there

18 are two other avenues.

19 As for trying to somehow get

20 prong two \-- to put data falling from prongs two

21 and three on the web, that\'s problematic. Problem

22 one works because it\'s a number. The other two

23 prongs, that\'s a narrative. We investigate, we

24 collect data, interviews, I don\'t see any viable

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1 way of putting the information connected with

2 prongs two and three out for public consumption

3 on the thousands \-- tens of thousands of colleges

4 and universities that are out there let alone K

5 through 12.

6 MS. GROTH: But see, the EADA report

7 then encourages the public to view Title IX as only

8 having one viable prong.

9 MR. REYNOLDS: That\'s right.

10 MS. GROTH: Because the Chronicle,

11 Higher Education, USA Today and various local

12 media pick it and twist and turn those numbers

13 and use the proportionality numbers and, hence,

14 is the only way to comply with Title IX and I

15 think that\'s yet another reason why the public

16 is misinformed about Title IX is the publication

17 of that report. So perhaps there is a way

18 that we can modify that.

19 MS. FOUDY: Even if they just

20 had to indicate which of the three prongs they

21 are using. They didn\'t \-- I mean, I know two

22 and three are more of a narrative, like you

23 said, but they could still indicate that it\'s

24 not just prong one that\'s the issue.

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1 MR. REYNOLDS: But a school for

2 two and three \-- a school doesn\'t know if it\'s

3 truly in compliance until \-- as the test is

4 performed. That means we roll in and we do an

5 investigation.

6 MR. LELAND: Jerry, I think people

7 are saying they would like that to change.

8 MS. COOPER: Jerry \--

9 MR. BOLSBY: We agree with you.

10 Right now, the only way you guys roll in and

11 investigate us and we hire lawyers and away

12 we go and six months later or 18 months later

13 or two years later or three years later, a

14 report comes out and says we complied, but I

15 think a lot of us are saying, well, to make

16 prong two and prong three viable, you put on

17 the EADA report in some fashion you have an

18 operational definition of what compliance to

19 two and three means and then have some way to

20 respond on the AD and then you can say, gosh,

21 the institutions are trying to comply with

22 number two. That\'s what they think they \--

23 MR. GRIFFITH: You know what, you

24 could end up with surveys. Right. I mean,

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1 that\'s what you\'re going to show for one of

2 those. You\'re going to require institutions

3 to take surveys and what the results are and

4 I don\'t think you want that, do you? I just

5 wanted to state maybe the obvious.

6 MS. FOUDY: I just don\'t want a

7 survey to tell me that I\'m not interested in playing

8 sports.

9 MR. GRIFFITH: I know that. I mean,

10 I think \-- but I think if you expand the EADA,

11 as, I think, the suggestion here is that it be

12 done, I think that\'s how it\'s likely to expand

13 because the narrative isn\'t going to be \-- we

14 create a narrative for poor old President Spanier,

15 that\'s going to be difficult to do, right? I

16 mean, you\'re going to have to certify that this

17 long, written history is accurate and all the

18 incentives will be is to not to do that, instead

19 to go to something simpler and it\'s going to be

20 interests.

21 MS. FOUDY: Why couldn\'t you just

22 say indicate which prong? Why do you have to give

23 the story? Why couldn\'t you just say prong two?

24 MR. GRIFFITH: Because it is for OCR.

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1 MR. REYNOLDS: OCR may disagree.

2 MR. GRIFFITH: Students are supposed

3 to know.

4 MS. FOUDY: But it\'s just for the

5 EADA report. It\'s not for OCR. It\'s for the

6 students to look at, right? So couldn\'t you just

7 say it\'s for \-- we\'re trying to comply right now

8 with prong two or with prong three? Does it have

9 to be that detailed?

10 MR. LELAND: I don\'t think so, but

11 I would prefer it being a little more detailed,

12 but I don\'t think it has to be 35 pages long.

13 Let me add one other thing.

14 We certainly \-- if you added a prong \-- having

15 filled out those EADA forms, I\'d add prong two

16 and prong three, if you could take away all of

17 the financial data you have to put in there,

18 which is totally ludicrous because that financial

19 data, you can\'t use. It\'s useless because it\'s

20 different from year-to-year and people compute

21 it differently.

22 So we go to our staff and

23 say let\'s take the EADA reports and look at our

24 salaries for the last eight years to see how the

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1 trends have gone and I said we can\'t use those

2 numbers because those numbers are all funny and

3 they are all different. I said, well, let\'s

4 compare ours to another school. Well, we can\'t

5 do that because they do theirs different. It\'s \--

6 I mean, it\'s \-- the thing is 30 something pages

7 long. It\'s a huge amount of work.

8 The proportionality numbers

9 you get in there, they are reasonable numbers.

10 The other numbers and why we collect those

11 numbers, I mean, why it\'s a consumer issue how

12 much we pay an assistant tennis coach really

13 is hard for me to understand.

14 MR. REYNOLDS: Ted, I would like

15 to address one of your points. Two and three,

16 in order to list it, we need a metric. I think

17 that we should be mindful of the fact that while

18 we need something that\'s practical and it would

19 be nice to have a metric for two and three that

20 we put on the internet, trying to simplify

21 two and three to that point, it may be problematic

22 because we could lose nuances if it\'s totally

23 number driven.

24 We already have that with prong

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1 one. One concern I have about that is that over

2 reliance on numbers can \-- on metrics can actually

3 hide discrimination. Just because you hit a number

4 does not mean that you\'re not discriminating.

5 As a matter of fact, it doesn\'t

6 mean that you\'re not systematically discriminating.

7 So I just throw that out there as an item that we

8 should be mindful of as we think about trying to

9 come up with a metric for two and three.

10 MR. LELAND: I understand. It may

11 not need to be a metric. I mean, I just think

12 there is some way to sort of, you know, post hoc,

13 before it happens, be able to \-- or pre hoc, I

14 guess that is \-- do it \-- do it before you get

15 sued to be able to say that I\'m complying under

16 prong two and prong three. Right now, that\'s

17 very, very difficult to do.

18 MR. SPANIER: But certifying that

19 you are in compliance doesn\'t have anything to

20 do with being sued and it\'s not a defense to a

21 lawsuit.

22 In fact, the only thing that

23 can happen by certifying that you are using prongs

24 two, three, four or whatever you end up is someone

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1 says, well, now, wait a minute, you said you

2 complied there and you didn\'t so now I\'m really

3 going to get you.

4 I mean, you know, the intent

5 of all of this is very debatable, but in reality

6 I\'m not sure we \-- we get very far with it. I

7 mean, we\'re spending a lot of time \-- I mean,

8 if you totaled up the bill of what we are all

9 spending on these reports that go to the Department

10 of Education, it\'s probably a couple hundred

11 thousand dollars per institution.

12 If we did away with all of the

13 reports, we could add another woman\'s sport. I\'m

14 dead serious about that. I mean, think of the

15 staff time we put into sending in those reports

16 and I know you\'ve just got \-- you\'ve got a small

17 staff. They\'re not even looking at it. You\'ve

18 got some technical person who is quick getting

19 it up on the web and that is the end of it.

20 Meanwhile, we have spent

21 hundreds of hours of staff time trying to figure

22 out which box to put in the medical expenses of

23 our student athletes, what our cost center is

24 on that, how we do it and it\'s different for

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1 every institution. So I don\'t want to belabor

2 it.

3 MR. LELAND: Okay. We\'ve got about

4 three more or four more minutes on question number

5 two.

6 Are there any other findings

7 or comments people have? We\'ve talked about

8 enforcement issues. We\'ve talked about interest

9 surveys. Is this the place to take on

10 non-traditional students? Yes?

11 MR. REYNOLDS: Well, I have two \--

12 what I have are quick points to make.

13 First, I think that it\'s

14 imperative that OCR provides clear and consistent

15 policy guidance in written form. One big problem

16 that we have is that there is no central repository

17 where someone can go and look up what the policy

18 is on a given issue. That project is underway at

19 OCR now. That way, at the end of the day, it\'s

20 going to be on the web site. That\'s one issue.

21 Another is \-- okay. I\'ll stop

22 there.

23 MS. COOPER: Nine, ten?

24 MR. LELAND: Yeah, but I think they\'re

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1 already through going over those.

2 MS. COOPER: We already did those?

3 MR. LELAND: I think so.

4 Okay. Any other thoughts on

5 question two? Well, why don\'t we go ahead and \--

6 we said we\'d break at 3:30. My clock is three

7 hours off, but it\'s \-- it says 12:30 so that means

8 3:30. So let\'s \-- I think we said we would get

9 back in 15 minutes. Thank you.

10 (Whereupon, after a short

11 break was had, the

12 following proceedings

13 were held accordingly.)

14 MS. COOPER: Would the Commission

15 begin making their way back to their seats?

16 MR. LELAND: Okay. Members plus

17 ex officio, I should say that \-- you guys, I

18 was slightly harkened by the news that our staff

19 is telling us they got a lot out of the conversation

20 that we had and they think they can work towards

21 taking that somewhat muddled conversation and

22 making it into elegant pros. We do appreciate

23 that and \--

24 MR. BATES: So there is hope?

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1 MR. LELAND: Yes. There is hope,

2 there is hope despite our efforts to dampen it.

3 Let\'s go on. We have three

4 questions, questions three, four and five, which

5 we are committed, according to Cynthia\'s and my

6 time line, to get done by 6:00 o\'clock. If we

7 have any time \-- if we can get them done more

8 quickly than that, we need to go back and review

9 a couple of issues with question number one.

10 Okay. I thought we got through

11 most of the issues with question number two and

12 we certainly got through the recommendations or

13 the findings that people gave us.

14 So let\'s go on to three. Is

15 there further or other steps needed at the

16 junior and senior high school levels where the

17 availability or absence of opportunities will

18 critically affect the prospective interests and

19 abilities of student athletes when they reach

20 college age?

21 Okay. We just have one suggestion

22 here and that\'s from Julie and that\'s the Equity in

23 Athletics Disclosure Act does not apply to secondary

24 schools, which limits the Department of Education\'s

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1 ability to systematically monitor compliance with

2 Title IX at this educational level. That\'s the only

3 one that we \-- that I can see has direct relevance

4 to this question. Okay.

5 MS. GROTH: You know, Ted, in

6 Chicago, we talked about some of the school

7 systems dropping their physical education and

8 dropping athletics and paid for sport. I don\'t

9 know where that belongs and I don\'t really know

10 what needs to be said, but perhaps it\'s worthy

11 of mentioning because that affects all of the

12 levels particularly in the Chicago Public

13 League or Chicago Public Schools that was

14 brought up.

15 MR. LELAND: Yeah. I remember a

16 conversation that we had at the Chicago meeting

17 in effect talking about the funding issues

18 across the country in the junior high schools

19 and secondary schools as it relates to women\'s

20 opportunities.

21 I think there were a number

22 of commissioners who wanted to make some kind

23 of a statement. I\'m not sure that directly \--

24 but I thought \-- let me just jump in here and

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1 we\'ll deal with Julie\'s in a second, but I

2 thought the testimony that we heard in Chicago

3 went like this.

4 It seemed to me we meet the

5 needs \-- we\'re so in tuned with our community

6 that we tend to meet the needs and interests

7 of our students without government interference.

8 I mean, am I wrong on that?

9 MS. GROTH: I think we need to be

10 careful geographically though. That may be what

11 we heard in Illinois, but that may not be true

12 in some different, you know, parts of the country,

13 maybe such as the southern states or whatever the

14 case may be because we only heard it from a select

15 few representing only Illinois, didn\'t we? We

16 heard from the Illinois high school state

17 association. We heard from the national federation.

18 MS. de VARONA: I think Georgia.

19 MS. GROTH: We heard from Georgia

20 down in Atlanta.

21 MS. de VARONA: Because they had their

22 own Title IX.

23 MS. FOUDY: I recall the issue being

24 that the only means of collecting information was

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1 through the National Federation of High Schools

2 and that data is only about numbers \-- participation

3 numbers and it\'s by state. It\'s not even by school.

4 So just another means of

5 collecting information for these kids to be able

6 to look to you and to point to and say, you know,

7 this is happening here and this is happening here

8 because right now, there is no system in place

9 for collection of that information.

10 MR. LELAND: Right.

11 MR. BATES: Ted, I guess what I heard

12 by way of finding, it seems to me that there was \--

13 there is a clear disconnect between the K-12 system

14 and higher education. I see that as a finding and

15 at some point we may need to think about \-- how to

16 think about bringing that a little closer together.

17 That\'s a feeder system and

18 we\'re talking about issues of interest, et cetera.

19 We\'ve got to have these two systems much closer

20 together and I clearly heard that they are not

21 collected.

22 MS. de VARONA: Well, in that regard,

23 if sports are being dropped and physical education

24 has clearly been dropped in almost every state, a

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1 mandate for that, can we come up with some language

2 as to how to promote these opportunities?

3 MR. BATES: That would be my \--

4 that would be my guess because we need to do

5 something. If that\'s where we\'re going to get \--

6 I mean, that\'s our feeder system. So we\'ve got

7 to connect them and hook them up in some way

8 and maybe we should save it when we get to talking

9 about issues of recommendations, we need to think

10 along that line, but I guess as a finding, it

11 just seems to me that I heard very clearly that

12 these are two separate systems operating.

13 MS. de VARONA: Right.

14 MR. BATES: With no real connection

15 between them.

16 MR. LELAND: That\'s one finding.

17 I think what Donna said might be another one as

18 it relates to the lack of opportunities sort of

19 generally at that level as it relates to us. I

20 think in terms of the guidance or other steps

21 needed in the junior and senior high schools,

22 I\'m assuming this means to comply with Title IX.

23 Do we have a finding related

24 to that? I mean, I didn\'t \-- I mean, I heard

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1 there is the issue of the collection of data

2 and that certainly might be \-- go ahead.

3 MS. de VARONA: Also, there was

4 a mention \-- a finding that some sports still

5 are club sports and if we\'re looking for numbers,

6 they are not going to be included if we only get

7 those numbers from the educational institutions

8 if we\'re looking at interest and participation.

9 So that falls outside the purview, but

10 still, if we are looking at interests and

11 opportunity, there are those that are created

12 through the club systems such as soccer and

13 gymnastics and track and field and other

14 sports.

15 MR. LELAND: Julie?

16 MS. FOUDY: I haven\'t put it in as

17 a finding, but I just know that the issue of just

18 educating schools at the high school and junior

19 high school level on the requirements of Title IX

20 and just simply the policies as a whole seems to

21 be lacking. I don\'t think we have put that

22 anywhere, have we?

23 MR. LELAND: No.

24 MS. FOUDY: When we talk about the

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1 three-prong test, but that doesn\'t apply to them.

2 So I \-- I mean, maybe we add as a finding also

3 that there needs to be more clarification at the

4 high school level as well or education.

5 MR. LELAND: I got the feeling, Jerry,

6 and you can tell me if I\'m wrong, but I got the

7 feeling that there is no guidance to the junior

8 highs and high schools. If they get a complaint,

9 it\'s taken to the OCR and it\'s put through the

10 adjudication process and there is some kind of

11 result.

12 Is that what happens?

13 MR. REYNOLDS: Oh, there is some

14 guidance. The three-part test was developed with

15 colleges in mind, although many of the principles

16 that are contained in the three-part test are used

17 in high schools, but it\'s an interesting question

18 whether that is the most appropriate vehicle.

19 I mean, it\'s something designed

20 for the dynamics of a college. I\'m sure that would

21 be applied to high schools. I don\'t know the answer

22 yet.

23 MS. FOUDY: Wasn\'t it that they had

24 different states kind of instituted different

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1 programs, like, Florida had a program, Georgia?

2 I remember the people from Georgia came and spoke.

3 So it was kind of state by state, but there was

4 no national guidance on educational \-- an

5 educational process for Title IX.

6 MR. REYNOLDS: At the high school

7 level, a lot of the controversy centers on things

8 like the quality of the athletic field and seasons.

9 There is a different focus.

10 MR. LELAND: Yeah. I mean, I got

11 the impression at least \-- and I don\'t know why

12 this sticks in my mind \-- that the high school

13 field test by force uses a laundry list of

14 support services, the facilities, you know,

15 uniforms, travel, coaching, that laundry list,

16 but they felt they were in close enough touch

17 with their community that the interest issue

18 wasn\'t a problem because there was interest

19 to create a team. As a matter of fact, I can

20 remember one guy saying that we don\'t want

21 you to get involved in our business because

22 we\'re doing okay. \"We\" meaning the federal

23 government.

24 MS. FOUDY: Should this fall

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1 under findings or recommendations? I think

2 I listed \-- I\'m trying to find my recommendation

3 about it because I think it is a real problem

4 that we need to address somewhere.

5 MR. LELAND: I put it under findings.

6 Yours is the Equity in Athletics Disclosure Act does

7 not apply to secondary schools, which limits the

8 Department of Education\'s ability to systematically

9 monitor compliance with Title IX at this educational

10 level. We put that under a finding, Julie. We had

11 that \--

12 MR. FOUDY: Right.

13 MR. LELAND: Any other \-- you know,

14 we don\'t need to prolong this if we\'re \-- I feel

15 a little hesitant to get overly involved in this

16 one because of our lack of knowledge. I mean,

17 I want to make sure we don\'t create a problem

18 where there is none, you know.

19 MR. BOWLSBY: Knowledge and

20 representation.

21 MR. LELAND: In knowledge and

22 representation. Yeah.

23 THE COURT REPORTER: Bob, could you

24 speak into your microphone? I couldn\'t hear what

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1 you said.

2 MR. BOWLSBY: I said and

3 representation.

4 THE COURT REPORTER: Thank you.

5 MR. LELAND: Okay. Any other \--

6 we can conclude this one quickly and efficiently.

7 Are you okay? Can we go onto the

8 next one?

9 MS. FOUDY: So do we agree that

10 we\'re going to put a finding in there that

11 educational assistance is needed on a national

12 level for high schools and junior high?

13 MR. LELAND: Yes. I think we\'ll ask

14 the staff to write something up and then we can all

15 vote on it \--

16 MS. FOUDY: Okay.

17 MS. LELAND: \-- sort of when we get

18 back.

19 MS. FOUDY: Okay. Gotcha.

20 MS. GROTH: And I think the

21 information is there and it\'s available to all the

22 junior high schools and the high schools. It goes

23 back to what the recommendation or the finding was

24 for higher education and that is to send out

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1 clarification again \-- another clarification and

2 provide educational opportunities to those Title IX

3 coordinators and whoever are working within those

4 high school districts or state agencies. So I

5 think it can coincide with what we already have

6 recommended.

7 MR. BATES: Ted, let me just say,

8 to go back to what I was saying earlier, I hope

9 that we will say something fairly strong about

10 the high schools.

11 While I agree with Bob that

12 we don\'t have the people around the table, but

13 again I go back to what I said before. That\'s

14 where we are looking for students to come back

15 from and if we don\'t pay attention, it seems

16 to me, to that system, they\'re not coming from

17 anyplace and so I just think we\'ve got to be

18 fairly strong in talking about what might be

19 done there in order to assist us because it

20 doesn\'t start at higher ed.

21 It has to start someplace else.

22 I think we need to \-- I\'m hoping that at least

23 when we talk about recommendations that we can

24 be fairly strong about trying to get something

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1 in place that will bring these systems, I think,

2 a little closer together.

3 MR. BOWLSBY: Percy, I was really

4 referring to applicability EADA \--

5 MR. BATES: Okay.

6 MR. BOWLSBY: \-- rather than anything

7 else that would be in the way of advice.

8 MR. LELAND: Okay. Any other

9 thoughts or concerns about question number three?

10 All right. Let\'s go on to number

11 four. How should activities such as cheerleading

12 or bowling factor into the analysis of equitable

13 opportunities?

14 Again, we can \-- I think I have

15 one suggestion here. Julie, do you want to do \--

16 I\'ve got yours down as Q4-F1.

17 MS. FOUDY: Sure. The OCR does not

18 rely on a specific definition of a sport. It

19 instead makes case-by-case determinations based

20 on criteria, which effectively assess whether the

21 activity should be considered a sport. If the

22 purpose of the activity is primarily to support

23 and promote other athletes, then the team would

24 not be considered to be engaged in a sport for

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1 the purpose of compliance under Title IX. This

2 guidance and process has received the support

3 of the Universal Cheerleaders Association and

4 the American Association of Cheerleading Coaches

5 and Advisors. Similarly, bowling is following

6 the same guidance and has met the requirements

7 for the establishment of an NCAA championship.

8 MR. LELAND: Questions or comments

9 on that? Yes?

10 DR. YOW: I have a comment. I

11 have a comment/question.

12 Jerry, cheerleading could

13 possibly already be considered a sport, correct?

14 MR. REYNOLDS: Yes. There are, I

15 believe, about five factors that we look at. If

16 you satisfied most of those factors, there is a

17 presumption that it is a sport.

18 DR. YOW: Okay. Well, if that\'s

19 accurate, and I presume that it is, in relationship

20 to this \-- to this question how we should factor

21 in, I wish we could somehow suggest that there

22 needs to be some education done. We can\'t factor

23 them in because we don\'t know what \-- I don\'t

24 understand the facts about how \-- what that is,

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1 what those five questions are.

2 MR. REYNOLDS: Uh-huh.

3 DR. YOW: I have a feeling that

4 if we \-- if those of us in higher education know

5 about the form and that there were five questions,

6 we\'ll be asking that, especially those of who

7 have won national cheerleading championships.

8 MR. REYNOLDS: Well, I think you

9 are right. This is a part of the problem that

10 I have discussed earlier, the fact that we need

11 written policy statements that are accessible

12 to the public.

13 I know of the existence of

14 the criteria, but if you have worked at OCR or

15 if you are involved in this issue, you\'ll know

16 what that criteria is, but it would be nice

17 if you could go to OCR\'s web site and just look

18 it up. Today, we don\'t have that capability.

19 DR. YOW: Right.

20 MS. FOUDY: That was my recommendation

21 following it. It was to disseminate \-- I said to

22 disseminate the existing OCR support determination

23 methodology as administrative guidance.

24 MR. SPANIER: This particular finding

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1 says if the purpose of the activity is primarily

2 to support and promote other athletes, then, the

3 team would not be considered engaged in the sport,

4 now, I would just like some thinking on that

5 primarily engaged phrase because I was at one

6 of our \-- at a luncheon event. We had the head

7 cheerleader there and they were \-- what she was

8 talking about is they were getting ready to go

9 to the national championships and they, you know,

10 thought they would be in contention for something

11 there and this is what they had been focused on

12 all year in practicing and getting ready for their

13 routine.

14 So, I mean, that sounds

15 sport-like, but I don\'t think that would meet

16 the criteria of what they are primarily in

17 existence for because they probably \-- the

18 reason they exist is because we have this

19 cheerleading program where they support other

20 athletes, but they are on a separate track

21 that I never even knew about until recently

22 when I heard they are, you know, on the side

23 and all season long, they are getting ready

24 for this other thing.

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1 How intentional is it that

2 somebody wrote this? I don\'t know if you wrote

3 it or if someone wrote it for you. Is this

4 primarily to support and promote?

5 MS. FOUDY: That\'s taken from

6 definitions provided by, like, the OCR and

7 OCR and other NCAA guidelines.

8 MR. SPANIER: Uh-huh. And so how

9 do we operationalize that?

10 MR. REYNOLDS: It seems to me that \--

11 well, there are some cases that are easy. If

12 cheerleading is primarily \-- well, if it\'s solely

13 a \-- if it\'s just sideline cheerleading where they

14 are engaged in providing support to a team, then,

15 the answer is no, it\'s not a sport, but you\'ve

16 got me to think about those situations where a

17 team may do sideline cheerleading and also engage

18 in competitive cheerleading and I think in those

19 cases, we wouldn\'t have a right line rule. We would

20 have to look at the percentage of time that the team

21 was engaged in competitive cheerleading

22 as opposed to sideline cheerleading and also look

23 at the remaining factors.

24 MR. SPANIER: I also suspect what

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1 we have happening here is we may have \-- I know

2 we have a couple \-- you know, the A squad and

3 the B squad. We may have a pool of 30 or 40 male

4 and female cheerleaders who do sideline

5 cheerleading, but from that group, whatever the

6 number is, ten or something, go to the national

7 competition. Isn\'t it about ten?

8 DR. YOW: Yes, the best you have.

9 MR. SPANIER: You take the best

10 out of a larger group and so I don\'t know how \--

11 maybe there is no clear definition of it.

12 MR. REYNOLDS: Well, I think that

13 the sideline cheerleaders that don\'t go and compete,

14 they are not \-- they would not be considered \-- it

15 would not be considered a sport, that portion.

16 This also comes into play in terms of counting

17 the number of athletes you have. You could

18 desegregate those students that compete

19 competitively versus the students that merely engage

20 in sideline cheerleading.

21 MR. LELAND: Well, let me get back to

22 this. How should activities such as cheerleading

23 and bowling factor into the analysis of equitable

24 opportunities?

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1 There is already a mechanism to

2 do this, is there not?

3 MR. REYNOLDS: That\'s correct.

4 MR. LELAND: You know, and so I

5 think our finding just needs to say there is

6 already a mechanism \-- I mean, there are a lot

7 of misunderstandings. A lot of people think

8 that there is no way to do this. There is a

9 way to do this. People don\'t know about it,

10 but \--

11 DR. YOW: It\'s educational. It\'s

12 the educational part of this needs \-- no one \--

13 that people don\'t know.

14 MS. FOUDY: Right.

15 DR. YOW: They don\'t know the

16 difference between the ones that are sideline

17 only and the ones that are sideline plus

18 competitive.

19 MR. SPANIER: But okay, you\'ve

20 got a competitive cheerleading team. Do you

21 count them in your numbers?

22 DR. YOW: Right now, I do not.

23 In fact, I was unaware until recently that they

24 could be counted if they meet certain criteria.

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1 Of course, let me say this, you know, those

2 squads, a lot of times, have men so you\'re going

3 to have to count male participants if you decide

4 to count them.

5 MR. SPANIER: Oh, yeah.

6 DR. YOW: In our case, we have a

7 male and female squad and an all female squad.

8 So some of us have more than one cheerleading group.

9 MR. LELAND: Okay. Any other thoughts

10 on question number four?

11 MR. BOWLSBY: Ted, is the first line

12 of the statement correct then? If we have the

13 five questions that are applied relative to the

14 definition of a sport, doesn\'t that render that

15 first line incorrect?

16 MR. LELAND: You might say instead

17 OCR has a set of guidelines.

18 MS. FOUDY: Yeah. It\'s not a specific

19 definition. It\'s criteria, correct, Jerry?

20 MR. REYNOLDS: Well, I was chastised

21 about this the last time I spoke about this so I

22 want to take this opportunity to clear this up.

23 The NCAA, whatever sport that organization \--

24 whatever activity the NCAA says is a sport, then,

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1 by God, it\'s a sport.

2 If the NCAA concludes that a

3 certain activity is an emerging sport, then, we

4 presume that it\'s a sport.

5 Any activity that the NCAA has

6 not addressed, those \-- it falls within this gray

7 zone. Then OCR will come in and apply the \-- apply

8 it\'s criteria to determine if it\'s a sport. In

9 some cases we do have a specific definition of a

10 sport and that\'s whatever the NCAA says it is.

11 MR. BATES: They don\'t say so now.

12 MR. LELAND: Can we write this in

13 a way that takes care \-- I mean, sort of takes

14 what Julie has down here and adds what Jerry just

15 said to make this thing sensible?

16 MS. GROTH: And, Ted, the information

17 we received, I think, in San Diego \-- Debbie, I

18 don\'t know if you put this together, but it lists

19 what the NCAA, NJCAA, AIA, FHS, USOC and OCR

20 determine is what is a sport. I mean, it\'s very

21 clear. OCR refers back to interscholastic or

22 intercollegiate participation.

23 There is one criteria that

24 says whether primarily the purpose of the activity

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1 is athletic competition and not the support or

2 promotion of other athletes. I know that our

3 cheerleading programs compete as well in the

4 national championship, but that\'s a one-time

5 activity for competition.

6 It\'s not as if we compete

7 against other schools. I think a whole lot

8 needs to change with cheerleading for it to

9 be considered a sport at least from my perception

10 based on all the definitions by these associations

11 that we received, which is very important

12 information.

13 DR. YOW: I have a question to Jerry.

14 Your guidelines used by OCR

15 can change, can they not, if you determine that\'s

16 appropriate? Cary, I admit, I mean, it doesn\'t

17 sound like on the surface that competing once per

18 year in a national championship is \-- I mean, that

19 sounds odd because we\'re all raised in athletics

20 and we compete and compete and compete, but I do

21 know they train toward that goal of that

22 competition.

23 In fact, I know they do that \--

24 I know that so well that we have people who

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1 complain about the way they cheer because they

2 say what happened to cheerleading? These people are

3 gymnasts. They are performers. They don\'t

4 do for the crowd what we want them to do. The

5 reason that comment continuously comes up is

6 because they consider the use of the event as

7 a training opportunity for the national

8 championship. So I know somewhere it is a

9 gray area, I think.

10 Do the guidelines \-- I mean,

11 Cary just read that right off the sheet.

12 MR. REYNOLDS: The answer to your

13 question is yes, we can change any policy.

14 MR. LELAND: Let\'s just get back

15 to answering this question. Are we okay on

16 answering this question at least as to the first

17 set of findings?

18 MR. DISKEY: Ted, I think we have

19 it.

20 MR. LELAND: At least as to the first

21 set of findings.

22 MR. BATES: Ted, I have a question

23 for clarification now. It would seem to me that

24 we don\'t have any other sport that has a once a

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1 year activity. It seems to me if we\'re going to

2 have cheerleading as a sport, the issue of

3 competition somehow intercollegiately would have

4 to be included rather than just saying it ought

5 to be a sport and that you have this thing once

6 a year because that puts it in a different kind

7 of category. I don\'t know how many contests you

8 would need, but it would seem to me that you need to

9 do it more than getting ready for ESPN, which is

10 where I see it every year.

11 MR. REYNOLDS: Interesting issues.

12 I mean, basketball has X-number of games and

13 football has fewer. Should one be considered \--

14 should we consider one of them not a sport because

15 the number of games are different?

16 MR. BATES: Oh, no, no, no, no, no,

17 but at least they are set in a number \--

18 MS. COOPER: They have seasons.

19 MR. BATES: \-- of competition.

20 MS. COOPER: They have seasons.

21 MR. BATES: That\'s different than

22 saying we\'re just getting ready for the final four.

23 I mean, you do a lot more before that. Sorry.

24 MR. LELAND: No, I\'m \-- I think the

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1 OCR has criteria. So there is already a mechanism

2 to handle this problem.

3 MS. GROTH: Right.

4 MS. FOUDY: It\'s not our job to mess

5 with that.

6 MR. LELAND: Let\'s not get into a

7 discussion about how many cheerleading competitions

8 are required to be a sport. I mean, we will have \--

9 you can make your own determination on your campus

10 or the OCR can make it, but I think there is \-- to

11 answer the question, there is a mechanism in place.

12 Maybe it needs to be better publicized so people

13 understand it better.

14 MR. BATES: Okay.

15 MR. SPANIER: The question we have

16 been presented with is really not about cheerleading

17 and bowling, per se. It\'s really a larger question.

18 We got stuck on those two because it says, for

19 example \-- I forgot the exact wording.

20 MR. JONES: It\'s for example.

21 MR. SPANIER: We could be talking

22 about 10 or 20 sports.

23 MR. LELAND: Right. But there is

24 a mechanism in place for all of those. The

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1 mechanism is not just for \-- the OCR has a way

2 of determining how should activities such as

3 bowling or cheerleading, such as, factor into

4 the analysis of equitable opportunities. The

5 OCR as a system, a way or a criteria of declaring

6 a sport a sport. So there is already a system

7 to handle this.

8 MR. SPANIER: But I think also this

9 gets a little muddled because of club sports. I

10 don\'t know if we all have club sports, but we have

11 right now 51, 52, something like that, men and

12 women. They all compete against other universities.

13 So what \-- at what point, you know \-- and bowling

14 is a club support. We could now say, okay, we\'re

15 calling it a different type of sport, but then are

16 we talking about scholarships or what? I think it\'s

17 not as simple \--

18 MR. LELAND: One of the criteria is

19 they have to declare it a varsity sport. Isn\'t that

20 the case? It used to be.

21 MR. REYNOLDS: Don\'t press me on the

22 details.

23 MR. LELAND: It was at one time.

24 You had to declare it varsity. Club sports do not

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1 count.

2 MR. SPANIER: I\'m saying we could

3 declare club sport a varsity sport, but what

4 does that mean? If we took a half a dozen of our

5 women\'s club sports and say we now clarify them

6 to be varsity sports, what does that mean?

7 MR. REYNOLDS: Well, if the club sport

8 is basketball \--

9 MR. SPANIER: We already have

10 basketball, but some club sports duplicate others

11 and many of our club sports are not \-- we don\'t

12 have them declared \-- there is nothing that\'s

13 a varsity sport.

14 MR. DeFILIPPO: There is one thing

15 about that though. On our campus, once you are

16 declared a sport, then, you have use of the training

17 room, you have use of the weight room, you have \--

18 you know, there\'s a lot of benefits that go with

19 being a varsity athlete that don\'t go with the club

20 sports and the intramural sports. That\'s \-- that

21 would be one differentiation.

22 I see where you are getting to

23 though. One competition, I mean, our intramural

24 champion might play venues in women\'s basketball

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1 and men\'s basketball. Is that a sport? I think

2 it goes back to the declaration that we\'re not

3 ready to give them the other benefits that go

4 with it.

5 MR. REYNOLDS: Well, this raises

6 another interesting issue. Our universe right

7 now is limited to varsity sports for assessing

8 interests and abilities. In terms of compliance,

9 we just look at varsity. One question that\'s

10 always \-- one issue that\'s always puzzling me

11 is why such a limited universe when you have

12 this other universe out there of male and female

13 athletes participating at the club and intramural

14 level?

15 MS. de VARONA: That\'s a good point.

16 MR. LELAND: Do you want to make part

17 of our answer to question four? I almost ran

18 through a door. I almost had question four slammed

19 shut. Now, we\'re worried how many times the

20 cheerleaders compete.

21 MS. FOUDY: What was the part that you

22 wanted to add? Say that again.

23 MR. LELAND: The whole issue of club

24 sports and what\'s defined \-- I mean, you know, right

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1 now you look at the AD report, fairly clear what\'s a

2 varsity, what\'s not a varsity. There are guidelines

3 that are pretty easy to figure out. We\'re calling

4 that into question. Do we want to call that into

5 the question?

6 MS. FOUDY: Is that our purpose?

7 MR. LELAND: I\'m asking the question.

8 MS. FOUDY: I\'m asking it back,

9 though. Is that our purpose to do that here?

10 MR. LELAND: I thought our purpose

11 was to answer this question.

12 MS. FOUDY: I mean, I think that goes

13 into an arena that \--

14 MR. LELAND: If club sports is part

15 of this question, then, let\'s expand it. We didn\'t

16 take any testimony regarding club sports. I was a

17 little uncomfortable seeing that\'s the direction

18 we\'re headed here.

19 MS. FOUDY: Yeah. I don\'t think

20 it\'s \--

21 MR. REYNOLDS: How about this, I\'ll

22 withdraw the statement. It\'s an aside.

23 MR. LELAND: I mean, people are

24 concerned about it. We just didn\'t get into that

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1 very much. We didn\'t have any club sport people

2 come and talk to us. We didn\'t have anybody discuss

3 the parameters of club sports. It may be one way to

4 get out of the log jam to get through the door that

5 I thought we had run through is to ask, Jerry, if

6 maybe you could get the five criteria in writing and

7 print for us something like that.

8 MS. FOUDY: We have them. We already

9 have that.

10 MR. REYNOLDS: We handed them out once

11 before.

12 MR. LELAND: Why don\'t everybody

13 look at those and if they don\'t like those or don\'t

14 understand them, we can \--

15 MS. FOUDY: Why don\'t we suggest that

16 we work on recommending educational materials to

17 people and educating them more on what the criteria

18 are rather than changing them?

19 MR. LELAND: That\'s a recommendation.

20 What I want is a finding on, you know, how should

21 such activities such as bowling fit into the

22 analysis of equitable opportunities. We sort of

23 had a finding for a minute.

24 MS. FOUDY: Did we change mine?

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1 MR. LELAND: I think we only changed

2 does OCR rely on a definition. It has their

3 definition of sport. It\'s not specific. It doesn\'t

4 say this is a sport, that\'s \-- bowling is a sport

5 and cheerleading isn\'t, but it has had a set of

6 criteria, which we are in possession of.

7 MS. FOUDY: Right.

8 MR. LELAND: So I think that\'s

9 where we are. Now, there\'s a whole other question

10 of how many times cheerleaders compete and then

11 there\'s the question of club sports. Do we want

12 to expand our findings to this question into those

13 two areas because that\'s where the conversation

14 has taken us?

15 MS. GROTH: I think we answered

16 the cheerleading issue when we went back with

17 the five criteria, that OCR has defined that

18 for us unless we want to go in and redefine

19 those five criteria and in my own personal

20 opinion about the club sports is I think we

21 keep that out of the answer to this question.

22 Again, we have not heard testimony regarding

23 club sports and I just don\'t think we are in

24 a position to \-- to go down that road.

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1 MR. LELAND: Okay. Other \-- I\'m

2 not trying to cut off debate. I just thought we\'d

3 get a little bit \--

4 MS. FOUDY: I second Jerry.

5 MR. LELAND: Okay. Any other thoughts

6 on number four?

7 Let\'s go to number five. How

8 do revenue-producing and large-roster teams affect

9 the provision of equal athletic opportunities?

10 The Department has heard from some parties that

11 whereas some men athletes will walk-on to

12 intercollegiate teams without athletic financial

13 aid and without having been recruited, women

14 rarely do this. Is this accurate and, if so,

15 what are its implications for Title IX analysis?

16 We also said that this was the

17 area under which we take on issues regarding

18 walk-ons and capping of sports in the athletics

19 arm\'s race, which we have heard a lot of about.

20 I\'m trying to find if we have any \-- Gene has

21 one. We\'ll take yours first, Gene. It\'s either you

22 or Julie.

23 MR. DeFILIPPO: Question four,

24 finding one, males tend to walk-on at a higher

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1 rate. I\'m just going to ditto what Bob Bowlsby

2 said earlier. I don\'t know what the facts \--

3 what the findings are. You know, we hear that

4 other people have said \-- other speakers have

5 said that that\'s not necessarily the case. I\'m

6 not going to repeat, but I found throughout

7 intercollegiate athletics the same thing that

8 Bob Bowlsby spoke about earlier.

9 MR. LELAND: Okay. Comments? Yes?

10 MR. SPANIER: Well, we know that\'s \--

11 we know that\'s the case or we wouldn\'t have roster

12 management. I mean, every \-- all of our schools

13 are heavily engaged in controlling men\'s rosters.

14 We have literally several dozen male athletes who

15 we have closed out. So that\'s not any kind of

16 statement about whether it\'s right or wrong, but

17 I think it is factual.

18 MR. LELAND: Cary?

19 MS. GROTH: If we go back to the

20 three-prong test, the number question, and if

21 we are successful in getting to a place where

22 all three prongs are safe for institutions,

23 then, there is no need to cap men\'s programs

24 anymore because we can have unlimited walk-ons

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1 under prongs two and three; if we can get to

2 that place.

3 DR. YOW: The problem with that,

4 Cary, is that there\'s a difference in allowing

5 additional opportunities into an existing sport

6 versus continuing to add sport after sport after

7 sport after sport for women just so that men,

8 in a traditional men\'s sport like wrestling,

9 can walk-on to the team.

10 I don\'t know how you decide,

11 as an example, what adequate \-- what is adequate

12 interest before you have to add that, you know,

13 for me, the 15th, 16th women\'s sport so that the

14 wrestlers can walk-on.

15 The disconnect is that those

16 wrestlers are walking on knowing they are not

17 going to be part of the big picture in the sense

18 that they are not going to start, they may never

19 get in a match, but they get to go to practice.

20 What we are saying is, okay,

21 you can do that, but before you do that, go over

22 and add women\'s bowling and there might be some

23 women on campus who are interested in women\'s

24 bowling because they are going to start on the

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1 women\'s bowling team.

2 You know, the question is how

3 much of that do you have to do just to make a

4 place for those walk-ons in that traditional

5 sport and that\'s a disconnect for people \--

6 from a logic-flow perspective that you have

7 to put yourself continually in that position

8 just so those other guys can show up at that

9 practice because the cost implications are

10 extraordinary as you continue to have to add

11 those sports.

12 I will tell you in terms of

13 club sports, there would be no end to women\'s

14 club teams who would like to be considered

15 varsity and use the training table, the academic

16 support services, et cetera. I personally don\'t

17 think that\'s a legitimate means of judging

18 fairness to women.

19 MR. DeFILIPPO: Ditto to that and

20 it also depends in what area of the country you

21 live in. I\'m not familiar at all with the Midwest

22 so I couldn\'t begin to speak about it, but in our

23 area, we are in with the ivy leagues and you talk

24 about institutions that have 35, 40 and 42 sports.

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1 I mean, there are people for us to play and there

2 would be a continual adding of sports if that\'s

3 what we have to do on the women\'s side. We don\'t

4 have the facilities or the revenue to be able to

5 do that.

6 MR. REYNOLDS: Well, one possible

7 way out is not to count walk-ons, both male and

8 female, so that would get around the necessity

9 of adding teams.

10 MS. FOUDY: I think we are locked

11 into this picture of Division I-A. You know,

12 how do you define walk-on? I mean, we\'re looking

13 at it from our experiences and my experience at

14 Stanford, but we\'re just a small picture of what

15 is happening to all of Title IX. I mean, look at

16 Division II and Division III. How do you define

17 walk-on? All of their athletes are walk-ons.

18 MR. BOWLSBY: None of their athletes

19 are walk-ons. I would suggest to you that 95

20 percent of every student athlete that competes in

21 this country on a college campus is recruited in

22 one form or another and that includes \--

23 MS. FOUDY: It defines it as a

24 scholarship athlete.

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1 MR. BOWLSBY: \-- Division II and

2 Division III.

3 MS. FOUDY: It also defines it as a

4 scholarship athlete.

5 MR. BOWLSBY: No. It doesn\'t

6 have anything to do with a scholarship athlete.

7 There are a lot of invitations made at the

8 Division III level. People don\'t just end up

9 at Cornell College and Iowa. They are invited

10 to that campus.

11 Sometimes there is an aid

12 package involved because those institutions

13 typically have lots of need-based aid and

14 even some grant aid under certain circumstances,

15 but there are very few student athletes engaged

16 in college athletics in that country that aren\'t

17 invited at one level or another or recruited

18 at one level or another to participate in those

19 programs. It is \-- there are very few pure

20 walk-ons.

21 MR. LELAND: Well, let me just

22 focus this a little bit. The department heard

23 from some parties whereas men athletes will

24 walk-on intercollegiate teams without financial

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1 aid and without being recruited. Women rarely

2 do this. Is this accurate? If so, what are

3 some implications for Title IX analysis?

4 We\'ve got one finding here

5 that says that male athletes walk-on at a higher

6 rate. I feel a little more comfortable if it

7 said many cases, male athletes walk-on at a higher

8 rate because I think there are some instances

9 where they don\'t.

10 I think that what Bob was

11 suggesting is maybe the whole idea of walk-on

12 needs to be talked about or thought about

13 because \-- and I know that was the case at

14 least in part of the Brown decision was, gee,

15 these aren\'t really walk-ons you\'re talking

16 about, they are recruited through the whole

17 recruitment process at the university.

18 MR. BOWLSBY: To go back to the

19 example that Debbie used at our \-- I think it

20 was San Diego or maybe it was Colorado Springs,

21 with regard to your Lacrosse program, you know,

22 I\'m sure that some sports lend themselves to

23 walk-ons more than others.

24 Team sports are probably a

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1 little tougher than individual sports in some

2 ways, but if a program with that level of

3 tradition and that level of profile, you\'d

4 think it would be natural for people to want

5 to affiliate themselves with that program

6 yet you identified your frustration, vis-a-vis,

7 the wrestling program and I think it\'s entirely

8 emblematic of what we see in other places. It isn\'t

9 universal, but it certainly is an enormously strong

10 trend in that direction. To ignore it, I think, is

11 to be irresponsible in our process.

12 MR. SPANIER: I\'m not sure it\'s

13 of great consequence to precisely figure out

14 what the walk-on imbalance is. I think most

15 of us would acknowledge that it\'s there, but

16 I think the heart of the issue here is if we\'re

17 trying to create maximum opportunities for men

18 and women to participate and if our goal is to

19 create maximum opportunities for women without

20 denying opportunities to men, then, we have to

21 be concerned about the phenomenon of roster

22 management.

23 It\'s really a little more about

24 the roster management part of this, I think, than

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1 settling the walk-on issue, per se. I mean, they

2 are conceptually linked, but I think you could have

3 a school with ten men sports and ten women sports

4 and we are tinkering with the numbers in some cases,

5 even with normal roster sizes, to force ourselves

6 into a particular box.

7 We all know that with football

8 in its big numbers that that accounts for some

9 of it at the scholarship and participation level,

10 but it does \-- I think it probably concerns all

11 of us when we get into the zone where we are closing

12 out opportunities for men who are not necessarily

13 taking up huge resources as part of all of this.

14 If that\'s happening as an

15 excuse for not properly treating women\'s athletics,

16 then, that\'s a problem at the same time. But I

17 think you have to tie the \-- you know, so we could

18 spend all of our time talking about the sociology

19 of men walking on more. It\'s an interesting

20 sociological question, but it\'s not really what

21 I care about most in this discussion.

22 It\'s really about a lot of the

23 people we heard from and a lot of the people at

24 institutions that we know we are closing the

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1 doors on and I think that\'s what we have to talk

2 about. I don\'t imagine that there was a big

3 difference between the coach of a men\'s soccer

4 team or women\'s soccer team or a men\'s volleyball

5 team and a women\'s volleyball team, how many

6 people they would like to have at practice and

7 they need to fill a team, but we have different

8 limits for all of those sports at our school

9 and I suspect some of you do.

10 We \-- the men are only

11 allowed to have so many people come out and the

12 women have a different number. I think that\'s a

13 phenomenon we just need to face up to here and

14 decide what to do about it.

15 Again, that\'s on the other

16 side of our discussion, but I would rather spend

17 our time on that than the nuances of the finding

18 of the sociology of the walk-on.

19 MR. REYNOLDS: It seems to me

20 that if we dig a little deeper, I mean, there

21 is something more important involved in this issue,

22 especially if you face a circumstance where the

23 marginal expense associated with the walk-on is

24 nominal and no benefit is being taken away from

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1 women. If that is the case, then, what\'s the point

2 other than to get your numbers right.

3 If there is no corresponding

4 benefit that flows to women or money not being

5 taken away from the women\'s program, then, what

6 are we doing by telling a male walk-on, I\'m sorry,

7 we hit our cap. No, it\'s not going to cost any

8 money, but we can\'t do it because you would throw

9 numbers out.

10 MS. GROTH: Jerry, with walk-ons,

11 at least at our institutions, it\'s probably true

12 for the others sitting around the table, the

13 walk-ons receive the same type of benefits as

14 the non-walk-ons. They get the academic support,

15 they use the weight room, they get the practice

16 gear, they get the coaches. I mean, so \--

17 MR. REYNOLDS: Does that take away \--

18 I mean, does that take away a benefit from women?

19 I mean, because the coach is there, the weight

20 room, these were all fixed costs, you have to

21 make your monthly debt service payments whether

22 it\'s ten people using equipment or 15 people using

23 the equipment.

24 For me, if a school has sinned

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1 and discriminated against women, the \-- I would

2 hope that the primary goal is to help women, not

3 to say that we\'re going to fix this problem and

4 the problem is discrimination by saying we\'re

5 going to make an accounting adjustment in terms

6 of numbers and that adjustment basically is roster

7 management or the elimination of teams.

8 MS. GROTH: You know, I\'m going

9 to throw something else out here that\'s not

10 directly related to the participation numbers

11 with roster management, but we have to get a handle

12 on the number of student athletes per institution,

13 and it differs, on how much we can afford, how many

14 student athletes can we afford to have on our

15 rosters.

16 Not all of the institutions

17 around the country can afford a full compliment

18 of staff and when is it safe or not safe to have

19 a certain number of wrestlers or women\'s gymnasts,

20 men or women student athletes in the gyms practicing

21 or when does it get to a point where we can afford

22 to spend an extra couple thousand dollars for the

23 tennis team for men\'s or women\'s walk-ons.

24 I mean, I think roster management

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1 is something real we need to face whether it has to

2 do with men\'s versus women\'s participation numbers

3 or not. We roster \-- we do roster management at

4 Northern Illinois University, but we have approached

5 it in a manner that we cannot afford to have that

6 many student athletes or this many student athletes

7 in our particular program.

8 MR. REYNOLDS: Well, as a financial

9 matter, I think that there is a limit and you have

10 to decide when \-- you know, when you can\'t afford

11 to add anymore. I\'m not saying that a school

12 shouldn\'t have that prerogative. I mean, it just

13 wouldn\'t work if there was just a blank check that

14 students could sign.

15 What I am saying, though, is

16 if this limit \-- if this limit is not due to

17 financial concerns, but due to Title IX compliance

18 concerns specifically with the first prong, then,

19 again, if no benefit is being taken away from

20 women, I just don\'t \-- it just doesn\'t make sense.

21 MS. COOPER: I think we\'ve kind of

22 gotten in the recommendation part of it.

23 MR. LELAND: Yeah. I think we\'re

24 a little bit into the recommendation area. It

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1 seems to me we might have a consensus here that

2 there is a \-- you know, many times or in many

3 cases, males tend to walk-on at a higher rate

4 than females and that this has caused institutions

5 to engage in various forms of roster management,

6 which many times disadvantages opportunities. I

7 don\'t know. Maybe you could even say male

8 opportunities.

9 Would everybody be comfortable

10 with something a lot brighter than that, but

11 something that said something like that?

12 MS. FOUDY: I\'m sorry. Say that

13 again, Ted. I wasn\'t listening. Tom was

14 distracting me again.

15 MR. LELAND: It\'s Tom\'s fault!

16 In many cases, many times,

17 males tend to walk-on at a higher rate than

18 females. I mean, we are answering specifically

19 this question.

20 And it seems to us that

21 this has caused a number of institutions to

22 roster manage and that roster management is \--

23 has disadvantaged some male athletes without

24 a corresponding advantage to females or something

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1 like that. I mean, it seems to me there\'s a \--

2 MS. FOUDY: I know Graham doesn\'t

3 want to bring in the sociology of it, but I

4 think we would be remiss if we didn\'t mention

5 that there is a lot of other intangible benefits

6 associated in men\'s sports that foster walk-ons

7 coming to the men and that, I mean, it\'s much

8 more attractive, there\'s much more publicity

9 with football teams, with basketball teams, to

10 be a part of that group than you see on the

11 women\'s side. There are better facilities,

12 better coaching. I mean, the list, you can go

13 on and on. I think that we have to bring that

14 into play to understand the big picture of it

15 as well.

16 MR. SPANIER: Right. Can\'t we \--

17 I mean, certainly we could have a recommendation

18 that acknowledges \-- I mean, I \-- what you are

19 saying is fine, although it seems much to slippery

20 to me. Maybe \-- no, maybe sometimes in most cases,

21 I mean, okay, it\'s a phenomenon.

22 But in our recommendation \--

23 we should acknowledge it is and, then, in our

24 recommendation say whatever \-- there should be

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1 further study of why this phenomenon exists

2 and in the spirit of encouraging more opportunities

3 for women, let\'s encourage \-- let\'s change whatever

4 needs to be changed to encourage more women to

5 walk-on.

6 MS. FOUDY: And I think that those \--

7 MR. SPANIER: I think in time that

8 we won\'t see any differences like that. I don\'t

9 know how long it will \--

10 MS. FOUDY: Yeah.

11 MR. SPANIER: \-- take, but at some

12 point, women will walk-on like men are now walking

13 on and we should encourage that. In the meantime,

14 let\'s not artificially close off opportunities or

15 force schools to close certain sports down because

16 that imbalance exists at this point in time.

17 MR. LELAND: Does that make you more

18 comfortable?

19 MS. FOUDY: I mean, I think \-- but

20 I think it goes to the heart of what Percy was

21 talking about, too, is that, you know, with the

22 grass roots level and having a strong presence

23 there because that\'s what I think brings this

24 about in that men are taught from a young age

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1 that it\'s the manly thing to do, to play sports,

2 and we come back again to the sociology of it,

3 which I think affects your numbers, which we have

4 to somehow bring out.

5 DR. YOW: Ted, I agree with that,

6 Julie. I know you are shocked, but I do.

7 MS. FOUDY: Thanks, Debbie.

8 DR. YOW: Any time!

9 I think that it\'s all about

10 the foundation. I don\'t \-- I think, though,

11 that we might be mischaracterizing it to talk

12 maybe about the football and basketball being

13 higher profile. I\'m really talking wrestling.

14 There\'s not much of a profile, God bless them,

15 at least at our institution. I know they are

16 there. I see them occasionally. That\'s about

17 it. There is certainly no one there watching

18 them compete in any significant numbers.

19 Those are the people that

20 we\'re concerned about and part of the reason

21 I think there\'s a little bit of a disconnect

22 is because of the trust factor again. I don\'t

23 think there is \-- I don\'t think there is any

24 way it could ever fly that we just say we don\'t

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1 count walk-ons because there really is a trust

2 issue there of significance in terms of what

3 that might mean.

4 But whether or not when we

5 get to recommendations there might be some way \--

6 some wiggle room to allow some percentage or

7 some number of walk-ons that wouldn\'t be

8 countable, it would seem to be healthy to

9 just consider because that is the single most

10 disenfranchised population related to this

11 and if there\'s a way to help them, if we don\'t

12 get anything else done for them, I believe that

13 they would acknowledge and appreciate that.

14 I know that there have to be

15 safeguards in place or there would be a fear of

16 abuse. In other words, walk-ons for football

17 versus walk-ons for wrestling, none of us, as

18 athletic administrators, believe we can afford

19 to go to football programs again that had 150,

20 170 people on the roster. I don\'t think we want

21 that, but we do want to try to help the wrestlers

22 somehow.

23 MS. FOUDY: How do you bring into

24 the issue \-- I mean, my experience \-- and I know

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1 Bob and Gene have different anecdotal experiences

2 with it at their schools, but my experience at

3 Stanford was there were a ton of walk-ons for

4 the women\'s soccer team that didn\'t make the team,

5 you know? I feel awful for them, but there is

6 only a number you can take and how do you address

7 that issue, then, because it\'s not just \-- I mean,

8 I know we have heard a lot of the men talking

9 about it, but there are \-- I\'m sure Cynthia has

10 similar experiences where there were a lot of

11 walk-ons with her sport.

12 I know Stanford programs \-- I

13 mean, soccer programs across the country, that\'s

14 the case. Maybe that\'s the consequence of the

15 grass roots being so strong, but I think we need

16 to consider that as well because it\'s not just a

17 one-sided issue.

18 DR. YOW: Absolutely. I am making

19 that assumption that if they are there for the

20 women or if they are there for the men, that

21 something needs to be done to better ensure that

22 they are able to do that.

23 MS. FOUDY: Right.

24 DR. YOW: I\'m really not \-- it\'s

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1 not just the men\'s issue, although I always use

2 the example that\'s in my world, but I hear what

3 you are saying.

4 MS. FOUDY: Uh-huh.

5 MR. GRIFFITH: Yes. At least the

6 experience on our campus leads me to believe

7 that if we don\'t fix this walk-on issue for

8 the men\'s side, eventually we have it on the

9 women\'s side too.

10 Eventually, when all the

11 sociological things change and everything, I

12 think we\'re going to have it on the women\'s

13 side if we started roster managing both sides.

14 So it would disadvantage the people we really

15 meant to advantage when we started this thing.

16 I would like to see some way to solve that,

17 Ted.

18 MR. BOWLSBY: Let me \--

19 MR. LELAND: Yes?

20 MR. BOWLSBY: One other item on

21 that, just as a frame of reference, maybe this

22 program exists someplace, but I\'m not aware of

23 programs that allow anybody that wants to be

24 a part of a program to be a part of a program.

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1 That just isn\'t the way it works out.

2 I mean, there are more football

3 players that want to be walk-ons than the football

4 coach is willing to keep around and there are more

5 wrestlers that want to be a part of the program

6 than the wrestling coach is going to want to

7 keep around. So your Stanford soccer example,

8 I think, is everywhere at the upper end of

9 collegiate athletics. There are always more

10 people that aspire to be Rudy than there are

11 opportunities to be Rudy.

12 I think the artificial

13 predesignation of who can be involved and in

14 what numbers is a real flash point on this

15 issue. I agree with Ted that, you know, if

16 we continue down the path we are with men\'s

17 sports, I think it won\'t be long before we

18 have it in women\'s sports as well and I don\'t

19 think we\'ve gained anything. As an enterprise,

20 we have lost by taking those opportunities

21 away from them.

22 MR. LELAND: Okay. That\'s the

23 walk-on area.

24 We\'ve got another part to

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1 this question we\'ve got to take on. Any other

2 thoughts on roster management and walk-on issues?

3 Okay. Let\'s talk about do

4 revenue-producing \-- how do revenue-producing

5 and large-roster teams affect the provision

6 of equal athletic opportunities?

7 Judy, would you \-- Julie, would

8 you do your Q5-F1?

9 MS. FOUDY: Q5, which one?

10 MR. LELAND: F1, the one about

11 football.

12 MS. FOUDY: Right. On numerous

13 occasions, Congress has considered and rejected

14 proposals to exempt football, men\'s basketball

15 and other revenue-producing sports. This is

16 consistent with the interpretation of all civil

17 rights laws that there is no financial justification

18 for discrimination.

19 MR. LELAND: Okay. Let\'s talk

20 about this. Any other \-- anybody still hoping

21 to be able to push our way into exempting

22 revenue-producing sports from the calculations?

23 I shouldn\'t say that. That\'s cut off all

24 debate because nobody is going to jump on

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1 that band wagon right here. Let\'s discuss

2 what Julie put on here and let\'s see where

3 that goes.

4 MR. SPANIER: Is this the only

5 finding on this question that anyone has

6 submitted?

7 MR. LELAND: No. Julie has

8 about five more and you have a couple and

9 we\'ve got some others, but we have to do

10 them sort of one at a time, I think.

11 MR. SPANIER: Yes. I just have

12 to say that there is a problem with this finding

13 approach because everybody went off and wrote

14 between zero and however many they wanted. We

15 only scratched the surface of the potential

16 findings.

17 Somebody on the staff has to

18 sit down and fill in all the gaps. We have to

19 have a comprehensive set of findings. You

20 have a couple of findings here and there that

21 talk about one tiny little part of the picture.

22 I mean, this is the big question with a lot of

23 things you could say about it. We spend our

24 time talking about what somebody has to propose.

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1 MR. LELAND: Well, I also think

2 it gets to the heart of one of the controversies

3 you hear consistently. People are saying football

4 should be exempt. We heard testimony to that

5 extent so I think it\'s important \-- there may

6 be other findings that we have under this

7 question, but I think this is an appropriate

8 one for us to discuss comfortably.

9 MR. SPANIER: I think it would

10 be inappropriate to exempt football or any other

11 sport. The question is what about sports that

12 carry \-- that require carrying so many people

13 on the roster that they greatly affect the

14 overall balance of numbers and, I mean, it

15 seems like that is what the question is designed

16 to get at.

17 Is large roster \-- how do

18 they affect the provision as well? There ought

19 to be some \-- whether we \-- wherever we end

20 up with it, I mean, we may say too bad, football

21 has got that many sports, you\'re going to need

22 six women\'s sports to equal it out. That may

23 be what we believe in the end, but we really

24 have to face up to the finding that acknowledges

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1 that this is a phenomenon. We\'re going to have

2 some findings that spell out those facts.

3 MR. LELAND: Well, let\'s get to

4 those.

5 MR. SPANIER: Yeah.

6 MR. LELAND: Okay. Let\'s \--

7 let\'s talk about this one in terms of the

8 question that\'s been asked how do net \-- how

9 do revenue-producing large-roster teams \-- so

10 let\'s go on the revenue-producing first and

11 that\'s what I saw as Julie\'s taking the bold

12 step of putting something down for us. So

13 does anybody \--

14 DR. YOW: Yeah. This

15 disproportionately impacts the numbers of

16 student athletes.

17 MR. LELAND: Right. But let\'s

18 stick on the revenue \--

19 DR. YOW: That\'s a finding.

20 MR. LELAND: Let\'s stick on the

21 revenue-producing issue first because I \--

22 DR. YOW: All right. Football.

23 MR. LELAND: Right. Or basketball.

24 DR. YOW: Or basketball.

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1 MR. LELAND: This is \-- this is

2 revenue-producing, which I \--

3 DR. YOW: But basketball doesn\'t

4 produce the finding that I just suggested. I

5 mean, you just asked a very basic question, right?

6 What does it do?

7 MR. LELAND: How do revenue-producing

8 teams affect the provision of equal athletic

9 opportunities? Julie has written a finding that

10 addresses that question. So I think we should

11 talk about this finding.

12 It doesn\'t really relate to

13 large roster teams at the moment. So can we

14 just \-- let\'s try to take Julie\'s, which she

15 has taken the time to write down. I think this

16 is an important question. People are going to

17 want to know, you know, is football still counted

18 and what if basketball makes a lot of money, can\'t

19 you exempt them?

20 DR. YOW: Okay. Now, Julie\'s

21 going to think you can\'t tell what side I\'m on

22 here, Julie, but this is \-- this is \-- I don\'t

23 think it should ever be how it impacts it. It

24 deals with the numbers in a very peculiar way

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1 because we have no other sport for women that

2 carries 110 people on the roster.

3 With that being said, I

4 personally don\'t believe that it should be

5 exempted. I know you\'re shocked. Aren\'t

6 you shocked that I said that? I don\'t believe

7 it should be exempted. It is \-- and the reason

8 again, there is such an emotion about it is

9 because it\'s a cultural phenomenon. We\'ve had

10 this sport quite awhile and it\'s dear to us

11 and we want to keep it. We want it to be healthy.

12 Because of the proportionality

13 situation, we find that to keep that sport and

14 to also meet prong one\'s safe harbor that all of \--

15 that many of us as ADs are told to focus on, we

16 now have to add what Graham said. Five sports

17 for women and all the operational expenses that

18 go with it.

19 MR. LELAND: I\'m hearing no one

20 who is wanting to bring up the revenue-producing

21 issue. So we\'ll \-- we can dispatch with almost

22 unanimous consent with Julie\'s \-- yes?

23 MS. FOUDY: Go ahead. I don\'t

24 understand how that relates. I mean, are we okay

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1 with the finding?

2 MR. LELAND: I think that\'s what I\'m

3 trying to get to.

4 MS. FOUDY: Oh, okay.

5 MR. LELAND: I\'ve heard no one object

6 to it. That\'s what I just said.

7 MR. GRIFFITH: I have a question as to

8 its accuracy. Isn\'t it, in fact, true that on

9 numerous occasions \--

10 MS. COOPER: Get your microphone.

11 MR. GRIFFITH: Oh, I\'m sorry.

12 Educate me.

13 Is it, in fact, true that on

14 numerous occasions, Congress has considered an

15 objective?

16 MS. de VARONA: Yes.

17 MR. GRIFFITH: What does that mean?

18 Bills have been introduced?

19 MS. de VARONA: Yes.

20 MR. GRIFFITH: Hearing held?

21 MS. de VARONA: Yes.

22 MR. GRIFFITH: I mean, I\'m aware of

23 one, the \--

24 MS. de VARONA: Yes.

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1 MR. GRIFFITH: \-- Tower.

2 MS. de VARONA: Yes, many times.

3 MR. GRIFFITH: Many times?

4 MS. de VARONA: Many times.

5 MR. GRIFFITH: Okay.

6 MR. SPANIER: Well, I think it depends

7 on \--

8 MS. de VARONA: And the Javis \--

9 MR. GRIFFITH: Was it rejected \--

10 MS. de VARONA: And the Javis \--

11 MR. GRIFFITH: Was it rejected or have

12 they actually had, like, a vote on it?

13 MS. de VARONA: The Javis amendment

14 was passed to accommodate \-- to compromise football.

15 MR. GRIFFITH: I see. I know that

16 twice \-- I don\'t know. I just \--

17 MS. de VARONA: No. It\'s been more

18 than \--

19 MR. LELAND: There were \-- there were

20 a couple other sets of hearings on it. In almost

21 every one of the hearings, it\'s come up.

22 MS. de VARONA: Right.

23 MR. LELAND: I don\'t know. Maybe we

24 could ask this \--

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1 MR. GRIFFITH: I\'m being just

2 technical. What does it mean that Congress has

3 considered this thing anyway?

4 MR. LELAND: \-- whether this was

5 enacted.

6 MR. SPANIER: I would think to say

7 Congress has considered and rejected means the

8 bill introduced, there was debate on the floor and

9 there was a vote.

10 MS. FOUDY: Senator Hasser has a few

11 times.

12 MR. SPANIER: There was a vote on it

13 and the vote went down. I think that\'s \--

14 MR. LELAND: Is it okay if we ask

15 the staff to put this in the kind of verbiage and \--

16 MS. FOUDY: Just for that first

17 sentence?

18 MR. LELAND: Yeah.

19 MS. FOUDY: Yeah.

20 MS. de VARONA: Failure to act?

21 MS. FOUDY: On numerous occasions.

22 MR. LELAND: And this is consistent

23 with all civil rights laws. There is no financial

24 justification for discrimination. I mean, I don\'t

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1 know if that needs to be part of our findings.

2 I\'d rather have \-- I think we could say sort of

3 the same thing without making such a sweeping \--

4 are you okay if we wordsmith this a little bit

5 for you or do you want to stick with what you\'ve

6 got? It\'s okay if you want to stick with what

7 we\'ve got.

8 MS. FOUDY: I like what I have, but \--

9 MR. LELAND: Okay.

10 MS. FOUDY: \-- that\'s my personal

11 bias. I mean, we could say this is consistent

12 with interpretation of civil rights laws, that

13 there is no financial justification for

14 discrimination.

15 MR. JONES: I think you could also

16 add here, though, too, is just the simple \-- I

17 mean, for our purposes in recommending to the

18 secretary is just the simple authority point to \--

19 that we \-- that the secretary does not have the

20 authority to waive the application of the civil

21 rights statute, you know, to \--

22 MR. LELAND: Okay.

23 MR. JONES: \-- a portion of an

24 institution. So, I mean, this is \-- I mean, if

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1 we\'re going to make a recommendation like this,

2 I mean, essentially what we are recommending is

3 that the secretary, in turn, recommend to the

4 Congress that this sort of change be made because

5 he does not have that independent authority to

6 waive the Civil Rights Act.

7 MR. LELAND: Are you going with that

8 as a modifier?

9 MS. FOUDY: Uh-huh.

10 MR. LELAND: Any other thoughts on

11 Q5-F1 from Julie? We\'ve got to turn the page.

12 I hate to put you on the spot, but you did all

13 the work.

14 Do you want to do this one,

15 F2?

16 MS. FOUDY: Revenue-producing

17 and profit-generating are not equivalent terms.

18 Many sports produce revenues, but few produce

19 profits. Whether a team or athletic program

20 produces revenues or profits does not remove

21 the obligation of a school to comply with Title

22 IX. In fact, often the heavy spending on

23 revenue-producing sports causes the loss of

24 opportunities for some men in other sports.

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1 MR. SPANIER: Where did we find

2 that out? I mean, where did this Commission

3 learn that? It sounds like somebody\'s opinion

4 rather than a finding of the Commission.

5 MS. FOUDY: When we looked at

6 the different studies on the different football

7 programs, when we talked about the two distinctions,

8 revenue-producing and profit-generating, which

9 was brought into play on this question, a lot of

10 the statistics point to the fact that many are

11 revenue-producing, but fewer are profit-generating

12 and I think it goes back to the issue of the issue

13 of resources, which we talked about initially.

14 MR. LELAND: Well, this is the

15 arm\'s race issue, which is the other one we

16 said we were going to discuss in number five.

17 It\'s appropriate that we now \-- Julie has put

18 it out \-- laid it out in front of us. So we

19 can now talk about it.

20 MS. FOUDY: I don\'t remember which

21 hearing it was at, but \--

22 MR. LELAND: An argument has been \--

23 I remember testimony. An argument was made that

24 there was a quicker and more significant increase

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1 in spending on men\'s sports during a certain period

2 of time than there was on women\'s sports during

3 that same period of time. I don\'t remember the

4 exact time frame, but I remember testimony. I

5 don\'t know if I ever agreed with the numbers.

6 MS. FOUDY: I think it was Zimbolus

7 in San Diego actually when I read his testimony,

8 Andrew Zimbolus.

9 MS. de VARONA: We also talked about

10 the train wreck \--

11 MR. LELAND: Yeah.

12 MS. de VARONA: \-- that we were headed

13 for because of escalation.

14 MR. SPANIER: Well, I think there

15 was far more testimony just to the contrary that,

16 I guess, what\'s behind this point is that some

17 people believed that men\'s sports had been closed

18 down not because of Title IX, but because of

19 financial problems in the athletic department

20 and those financial problems developed to feed

21 football and men\'s basketball. I guess that must

22 be what\'s behind that.

23 MR. LELAND: Yeah.

24 MR. SPANIER: But we have heard

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1 from a lot of athletic directors and other

2 people saying that football brings in \-- I

3 can\'t remember the Penn State numbers now \--

4 but football brings in maybe \$30 million and

5 costs us \$10 million and the other \$20 million

6 is what supports our 14 women\'s sports.

7 So I\'m just very uneasy about

8 a sweeping statement like that is sort of

9 an accusation hurled at heavy spending. It\'s

10 a pejorative term. It\'s an accusation hurled

11 at revenue-producing sports.

12 Thank goodness we have some

13 revenue-producing sports to allow us to have

14 intercollegiate athletics in this country at

15 the Division I level. Division III level, a

16 different phenomenon. Division II is somewhere

17 in between.

18 I just think it would be an

19 embarrassment for us to make a couple of these

20 statements and act like we support intercollegiate

21 athletics.

22 MS. FOUDY: I don\'t think I\'m

23 disputing \-- this finding does dispute the fact

24 that these football programs are great sources

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1 of income for a lot of programs. What the

2 finding says is that there often is the case

3 of this arm\'s race where the expenditures are

4 so high that even if they are profit-generating \--

5 if they are revenue-producing, they don\'t become

6 profit-generating and it\'s more the question of

7 the expenditure control and that \--

8 MR. SPANIER: No question about

9 that.

10 MS. FOUDY: \-- and that resources

11 are dwindling because of that.

12 MR. SPANIER: Any of us in university

13 or athletic administration worries every day about

14 the arm\'s race. That is a very big, important

15 issue. It\'s just not \--

16 MR. GRIFFITH: Is there another

17 proposed finding somewhere setting forth what

18 Graham stated about the role of revenue-producing

19 sports and providing money for these programs?

20 MR. SPANIER: I think you just \--

21 if you\'re going to do this, you\'ve got to have \--

22 you know, we\'ve heard this, yet we\'ve heard this

23 and we found this. It\'s \-- I think, you know,

24 we\'re only about a third of the way through this

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1 particular document and I\'m just not sure how

2 we are going to get from here to there.

3 MR. GRIFFITH: Graham, is there

4 somewhere \-- and I should know this, but I don\'t,

5 but is there somewhere in a proposed finding

6 what you just described to us, this \-- the

7 relationship between revenue-producing sports

8 and women\'s sports? I think there ought to be.

9 MR. SPANIER: Not that I recall

10 seeing.

11 MR. GRIFFITH: I think there ought

12 to be, but I think you recognize there are some

13 statements in here that are fairly important as

14 well about the arm\'s race.

15 MR. DeFILIPPO: Graham makes a

16 great point, too, because not only revenue that

17 they produce, but all of our Olympic sports,

18 both men\'s and women\'s, play in much better

19 facilities and have better facilities and

20 weight rooms and training rooms and all of

21 that because of our revenue-producing sports.

22 That\'s certainly not anything that\'s been

23 put down here either.

24 MR. BOWLSBY: Ted?

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1 MR. LELAND: Yes?

2 MR. BOWLSBY: This is part of

3 what I sent in and if I may, I will just read

4 it to the group. I know you don\'t have it

5 in front of you.

6 There could be no question

7 that the cost of operations in intercollegiate

8 athletics has escalated rapidly and in some

9 cases, has been the rationale for discontinuation

10 of sports programs for men and women. While

11 necessary, controlled expenses is well beyond

12 the province of this Commission and neither the

13 scope of the task nor the time available provide

14 any hope of quality outcomes. Many, if not most,

15 of those involved with the leadership of

16 intercollegiate recognize the need for national

17 action, which will slow the escalation. Some

18 statement to that effect from the Commission

19 could be helpful, particularly if it assisted

20 in convincing Congress that form of antitrust

21 relief might be well advised.

22 MS. de VARONA: I could \-- I could

23 go for that.

24 MR. LELAND: We\'re getting unanimity

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1 here.

2 MS. de VARONA: I could go for that.

3 MS. FOUDY: I like that. I like

4 that, but the reason this finding \-- my particular

5 finding talks about the question of complying

6 whether football should be exempt from complying

7 with Title IX and I address it.

8 MR. LELAND: Yeah. I think \-- but

9 that was the last finding we were working on.

10 MS. FOUDY: Right.

11 MR. LELAND: This one, we

12 haven\'t. This, I like the revenue versus non

13 profit-generating, the difference in the terms,

14 the first two sentences.

15 MS. FOUDY: Uh-huh.

16 MR. LELAND: But I think the third

17 sentence \-- my opinion is that we have to have

18 what Bob just said in here, but we have to have

19 something maybe that says it a little softer than

20 this. We have to have something in here that

21 recognizes that the heavy spending on \-- in some

22 institutions on revenue-producing sports, I\'m

23 not sure it\'s cost opportunities, but it\'s a

24 factor.

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1 I mean, it\'s hard to go to

2 the general public to a school that has dropped

3 two or three sports, indicate that it\'s Title

4 IX, and then six months later gives the coach a

5 \$400,000 raise. It\'s hard to go to the public

6 and say that wasn\'t \-- you know, this escalation

7 in men\'s sports isn\'t at all a fact offer.

8 So I \-- I\'m not sure I would state it in a

9 heavy-handed way, and I love what Bob said, but

10 I think we have to have something in there that says

11 we recognize there is this set of trade-offs that

12 people are making.

13 MS. de VARONA: Right.

14 MR. BOWLSBY: Except, Ted, it isn\'t

15 just in revenue-producing sports. There are people

16 paying baseball coaches and softball coaches

17 enormous amounts of money.

18 MR. LELAND: Right.

19 MR. BOWLSBY: There are soccer

20 coaches that are extremely well compensated.

21 The whole Director\'s Cup thing that you have

22 had such good success in, indeed, has driven

23 a national escalation in compensation that

24 is not limited to just football and basketball,

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1 but to virtually every sport we sponsor.

2 MR. LELAND: I agree. I stand

3 corrected.

4 MR. BOWLSBY: It\'s caused all of

5 us to be national programs.

6 MR. LELAND: Yeah. We\'re spending

7 more and more money per student athlete in our

8 program all the time. Some people have to wonder

9 is that costing \-- is that hurting our ability

10 to provide equal opportunity, you know, and I

11 think that\'s a fair question.

12 MR. BOWLSBY: Especially as it

13 pertains to program expansion.

14 MR. LELAND: Yeah, yeah. Because

15 it makes it harder and harder to expand.

16 So are we okay with that, you

17 guys?

18 MR. REYNOLDS: Well, I\'d like to \--

19 MR. LELAND: You told me we did all

20 right this morning.

21 MR. REYNOLDS: \-- pipe up briefly.

22 Money is a factor, but there are instances where

23 money is not and the example that comes to mind

24 is Marquette. Sometimes your numbers are just

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1 not right and money just has nothing to do with

2 it whether we have a huge budget associated with

3 football or not. If your numbers aren\'t right,

4 you have to do something about it. That\'s just

5 a commentary.

6 MR. LELAND: Okay.

7 MR. REYNOLDS: That\'s it.

8 MS. FOUDY: Something similar to that

9 is \-- I\'m going back. You switched that question

10 one to five.

11 MR. LELAND: Oh, yeah.

12 MS. FOUDY: Something similar, I

13 think, to Bob\'s is the \-- finding number six,

14 Q1-F6.

15 Do you want to look at that?

16 I just noticed that.

17 MR. LELAND: Yeah. We were \-- we

18 changed this, remember? We reorganized this one.

19 That\'s \-- it\'s a longer one. This states that

20 second \-- third sentence in the other one \--

21 MS. FOUDY: Right.

22 MR. LELAND: \-- in much better

23 terminology.

24 MS. FOUDY: Right, right.

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1 MR. LELAND: So let\'s talk about this

2 one for a second, Q5 amended, I guess we would say

3 it, F6.

4 MS. FOUDY: Q1-F6, which is now

5 amended Q5-F6?

6 MR. LELAND: It used to be Q1.

7 MS. FOUDY: Okay.

8 MR. LELAND: Any objections or

9 comments?

10 DR. YOW: Ted?

11 MR. LELAND: Yes.

12 DR. YOW: Just to play on what

13 Jerry said earlier, Julie, where you use the

14 terminology equal opportunities, I think that

15 Jerry had indicated a desire or look at using

16 the word nondiscriminatory versus equal

17 opportunities. That\'s \--

18 MS. FOUDY: In the second paragraph?

19 (Whereupon, Ms. de Varona

20 exited the proceedings.)

21 DR. YOW: Yes, the second paragraph.

22 Title IX requires that members of both sexes have

23 nondiscriminatory opportunities to participate.

24 MR. LELAND: Does anybody have any \--

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1 are we doing okay?

2 Does anybody have any objection

3 besides what we just heard to Q1?

4 MR. SPANIER: This is the one that

5 includes the word curtailing bloated expenditures?

6 MS. FOUDY: Okay. Maybe that was a

7 little bit of a recommendation.

8 MR. SPANIER: Yeah.

9 MS. FOUDY: But, Graham, you have

10 to recognize somewhere that we have a problem

11 with an arm\'s race. That\'s what it is. I mean,

12 that\'s what we have heard.

13 MR. SPANIER: Yes. I believe that

14 is correct.

15 MS. FOUDY: I mean, to not recognize

16 that, I think, would be a mistake.

17 MR. SPANIER: But I think there

18 is a difference between the fact that we are

19 in a competitive environment. There\'s an arm\'s

20 race going on and saying that there are bloated

21 expenditures, I don\'t allow my athletic director

22 to participate in bloated expenditures. So I

23 will go on record saying that we don\'t do that

24 at Penn State. I will acknowledge the national

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1 phenomenon of their being an arm\'s race.

2 MS. FOUDY: So we can change that

3 to savings can be realized by reigning in the

4 athletics arm\'s race.

5 MR. SPANIER: Yes.

6 MS. FOUDY: That\'s fine.

7 MR. SPANIER: That doesn\'t contain

8 any fighting words that way.

9 MS. COOPER: Do you want me to read

10 Muffet\'s?

11 MR. LELAND: Yeah, why don\'t we?

12 Let\'s get Julie off the spot here for a second.

13 She\'s the one that did all the work.

14 MS. COOPER: I\'m just going to read

15 a finding from Muffet McGraw.

16 Large roster teams have no impact

17 on the provision of equal opportunity for schools

18 who choose to comply with Title IX through prongs

19 two and three.

20 Do you guys have her comments?

21 I\'ll repeat it. Large roster teams have no impact

22 on the provision of equal opportunity for schools

23 who choose to comply with Title IX through prongs

24 two and three.

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1 MR. LELAND: We\'ve sort of done \--

2 I mean, if you look at question number five, we\'ve

3 sort of done the revenue-producing. We have some

4 findings there. We did the idea of walk-on and

5 capping and now we have to deal with the large

6 roster teams.

7 Debbie? You wanted to see

8 something, I know. I can see that gleam!

9 DR. YOW: We\'ve spent too much time

10 together if you can tell that!

11 It\'s just that it\'s an interesting

12 statement, but it\'s half the story again. For those

13 of us who have been told prongs two and three are

14 not options, that statement says for those of us

15 who have chosen to use prongs two or three, that

16 the large roster teams don\'t matter.

17 Well, what about those of us

18 who have been told that prong one, the safe harbor

19 prong, is all we can use? We didn\'t choose it.

20 It chose us and the large roster teams do have

21 an impact. So it\'s just got half a story.

22 I\'m uncomfortable with it.

23 MR. LELAND: Are there any other

24 comments on \-- does anybody support that? Do

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1 you want \--

2 MS. GROTH: Support Muffet?

3 MR. LELAND: Support Muffet\'s

4 finding. I don\'t know what that does for us.

5 MR. SPANIER: I\'m not sure where

6 it gets us.

7 MR. LELAND: I\'m not sure what it

8 does.

9 MS. COOPER: Don\'t look at me. I

10 didn\'t write it.

11 MS. GROTH: After Julie\'s, did we

12 support Julie\'s with that change at the end?

13 MR. LELAND: The F6?

14 MS. GROTH: Yeah, F6. On Julie\'s

15 Q1-F6, did we \-- are we all in consensus with

16 that \-- with the change reading the last sentence,

17 savings can be realized by reining in the athletics

18 arm\'s race?

19 DR. YOW: No, because we talked about

20 the difference of terms of equal opportunity versus

21 nondiscriminatory.

22 MR. LELAND: I would rather have

23 savings maybe realized, but I\'m fine with it.

24 Is there anybody else that wants

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1 to stop the presses from rolling and the people

2 from hedging, et cetera?

3 MR. JONES: I\'m unclear. Are we

4 accepting Debbie\'s suggested change or not?

5 MR. LELAND: I think so. It was

6 your \--

7 MR. REYNOLDS: Right, exactly.

8 MR. LELAND: Yes, I think we are.

9 I see them all as friendly amendments, taking out

10 the bloated and the whole \--

11 MR. BOWLSBY: Where is this, Ted?

12 MR. LELAND: Pardon me?

13 MS. COOPER: This is \--

14 MR. LELAND: It was originally Q1-F6.

15 MS. PRICE: It was Q1-F6 and we

16 renumbered it.

17 MR. BOWLSBY: Q1 what?

18 MS. PRICE: F6.

19 MR. BOWLSBY: Q1-F6.

20 MS. GROTH: I mean, that addresses

21 some of your concerns, Bob, but we are talking

22 about that and we jumped to another one and I

23 just wondered if we should question that.

24 MR. LELAND: Yeah. No, I think

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1 we are okay on it now that we\'ve amended them.

2 I\'m glad you brought it up.

3 Which one are we on now,

4 Muffet\'s?

5 MS. COOPER: Yes.

6 MR. LELAND: And we did \-- are there

7 any others on \--

8 MS. COOPER: Bob, do you have any

9 other recommendations \-- I\'m sorry \-- findings

10 under question five?

11 MR. BOWLSBY: Relative to this one?

12 MS. COOPER: Yes.

13 MR. BOWLSBY: Not other than what I

14 read.

15 MS. GROTH: I think Bob Bowlsby\'s

16 comment from Chicago is worthy of a finding.

17 The arm\'s race in intercollegiate athletics

18 is a train wreck waiting to happen, end of

19 quote. I don\'t know if you are comfortable

20 with it, but I think that goes hand and hand with

21 that last comment. I think it\'s got bigger

22 ramifications than just Title IX. If you\'re

23 comfortable\...

24 MR. BOWLSBY: Well, I don\'t

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1 think that\'s inconsistent with what I just read.

2 Perhaps the second one was a little more carefully

3 stated. The fact is that is where we are. I

4 don\'t think we can deny that, but I also don\'t

5 know that it\'s entirely germane to this discussion.

6 MR. LELAND: All right. Any other

7 questions on number five?

8 Julie has a couple more if you

9 will turn to \-- she did all the work so she gets to

10 sort of control the agenda a little bit, but she

11 deserves it.

12 We are now on Q5-F4. This is

13 really going back over the walk-on issue. Julie,

14 is there any part of this you would like \-- I mean,

15 we gave a lot of \--

16 MS. FOUDY: Yeah. No, we\'ve already

17 talked about that a lot.

18 MR. LELAND: Are you okay with what

19 we did before?

20 MS. FOUDY: Did we talk about the

21 F3 one in terms of larger roster size?

22 MR. LELAND: Yes. I thought we \--

23 let\'s go back to Q5-F3.

24 MS. FOUDY: I don\'t know what we

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1 decided on that.

2 MR. LELAND: It talks about the

3 roster size. I thought it was pretty good. I\'m

4 not trying to butter you up.

5 MS. FOUDY: Thanks, Ted.

6 MR. LELAND: I mean, we had to deal

7 with the roster size issue in some way and this

8 looks like a pretty good shot at it.

9 Okay. Do you want to try F4

10 now? I think we already did that one.

11 MS. FOUDY: Yes. We already did

12 F4, I think. Yeah. I think we\'re good.

13 MR. LELAND: I think we\'re fine with

14 that too.

15 MS. FOUDY: Yeah.

16 MR. LELAND: Anybody else on

17 prong \-- not prong \-- whew \-- on question number

18 five? We said we would take care of the arm\'s

19 race, the walk-on, and the capping of sports

20 issues. I think we answered \-- at least made

21 a first shot at answering the other parts to

22 this question.

23 DR. YOW: I just have a question.

24 MR. LELAND: Uh-huh.

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1 DR. YOW: In Julie\'s document under

2 Q5-F5, what happened to this finding?

3 MS. FOUDY: Q5-F5?

4 MR. LELAND: Where a school chooses

5 to comply with prongs two and three of the

6 three-part test, the number of male athletes

7 is irrelevant. The only question is the school\'s

8 accommodation of the interests and abilities of

9 female athletes. As a result, a school need not

10 count its number of male walk-ons under either

11 prong two or prong three.

12 MS. FOUDY: That\'s the one that

13 Cary brought up, right?

14 MR. REYNOLDS: Yes.

15 MS. FOUDY: So we\'ve already addressed

16 it?

17 MR. LELAND: Yes.

18 DR. YOW: What did we say? I mean,

19 I\'m looking at the last sentence. It says, as a

20 result, a school need not count its number of male

21 walk-ons under either prong two or prong three.

22 So this stood?

23 MR. SPANIER: I don\'t see how we

24 can have this finding.

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1 DR. YOW: That hasn\'t been my

2 experience. I\'m just raising it as a question.

3 I would have trouble, Graham, of supporting

4 it given the reality of my world \-- in my world.

5 MR. SPANIER: Well, it\'s just not

6 so, is it? I mean, there is no such thing as

7 not counting anything. We count everything.

8 I mean, it\'s a whole different point if you

9 are trying to say \-- what you\'re really trying

10 to say here is, okay, folks, don\'t tell us you

11 are scared to death of proportionality because

12 there is a way out. Your numbers could be way

13 out of whack if you are complying with prong

14 two or prong three. Then you could ignore your

15 numbers.

16 How you got to not having

17 proportionality and ignoring the numbers, you\'re

18 not in a good situation. I mean, this is not \--

19 this is another one of these disingenuous kinds

20 of comments.

21 MS. FOUDY: But it\'s \-- I mean,

22 it may not be true in your case, Graham, but

23 there are people who can comply under prongs

24 two and three and that would be the case.

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1 That\'s just a finding. That\'s a fact. Maybe

2 not for you.

3 MR. SPANIER: They can \--

4 MR. BOWLSBY: I don\'t believe

5 that is factual. I think \--

6 MS. FOUDY: Why not?

7 MR. BOWLSBY: I think even under

8 the new and improved prong three advice and

9 guidance that we hope to have at the Commission,

10 has completed its work, every athletics

11 administrator and president in the country is

12 going to be counting noses still. I don\'t

13 think there is any doubt about it for all of

14 the reasons that Graham noted.

15 MR. SPANIER: It\'s another \--

16 it just feels too slippery. The number of

17 male athletes is irrelevant. I don\'t want

18 to hear from any of you over there telling

19 me you\'ve got a numbers problem. You can

20 comply this way. The numbers are irrelevant.

21 That is just too far-fetched.

22 The numbers are highly

23 relevant under any scenario. They are so

24 relevant, we\'re spending \$100,000 or whatever

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1 it is to send reports to Sally to put up on

2 the web.

3 MR. LELAND: She\'s not bothered

4 anybody and Sally just gets it!

5 MS. STROUP: It\'s not my fault.

6 MR. SPANIER: I know, but I\'m

7 just saying it\'s not \-- I don\'t think it does

8 our work credit to do that. A lot of the

9 findings \-- not just Julie\'s, but I see a lot

10 of what all of us sent in and we have been

11 bending over backwards, and maybe for good

12 reason, to try to say there is a lot of good

13 things about everything leading up to where

14 we are with Title IX.

15 We\'re putting all of that

16 stuff in there, but we don\'t have a good

17 balance of these findings yet and some of them

18 go just a little beyond credibility and I don\'t

19 want us to do that. I think when we get in the

20 direction where we\'re using fighting words or

21 we\'re being pejorative or calling things irrelevant

22 or we\'re missing the heart of an argument just

23 so we can make a point that will make someone

24 feel good, it\'s not a good zone for us to be in.

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1 MR. BATES: Ted, I guess I thought

2 I heard us saying earlier that there are other

3 reasons other than Title IX to watch our numbers

4 that have nothing to do with Title IX.

5 Earlier, I think Debbie said

6 maybe we ought to think about a certain percentage.

7 I don\'t think it will ever be open-ended, but I

8 think the question has to do with pointing the

9 finger that said we can\'t have these walk-ons.

10 I\'m losing opportunities. The article in the

11 New York Times sort of highlighted this.

12 That\'s what I think we\'re

13 trying to get away from and to say there is

14 nothing in this legislation that says you

15 have to behave that way, that\'s how I interpret

16 this. Now, we may want to put some parameters

17 on it, but I think this deals with that question

18 that simply says whatever the reasons are, they

19 may go beyond Title IX, that\'s fine, but if

20 you\'re looking at prongs two and three, you

21 have some options to deal with.

22 Again, to go back to what

23 Debbie said, we may want to put some parameters,

24 because, Graham, I agree with you. I don\'t

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1 think we can\'t not count them. We\'re going to

2 count them at some point, but we may want to

3 give some guidelines as to how many, but we

4 do not have to be locked in is how I read this.

5 MR. SPANIER: Yes. But it says

6 where a school chooses to comply with \-- no

7 school chose to comply with prongs two or three.

8 They \-- that \-- when one of the prongs is

9 defined as a safe harbor, how many chose to

10 do it that way?

11 MR. BATES: But aren\'t we trying to

12 get out of that?

13 MR. SPANIER: They may have ended up

14 there.

15 MR. BATES: But I guess that I\'m

16 suggesting we are trying to get out of that.

17 I mean, I \-- we\'re looking at where we have

18 been and I think the real question is can we

19 get out of this bind and can we help somehow?

20 MR. LELAND: Gene?

21 MR. DeFILIPPO: If we had clarity

22 on prongs two and three, this would make sense,

23 but there is no clarity. There is nothing

24 substantive so we can\'t use it.

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1 MR. BATES: But that\'s what we\'re

2 going to get when we \-- who was it? There was

3 somebody over here. I think Bob said when we\'re

4 done with this, we\'re going to have that clarity.

5 MR. DeFILIPPO: So it\'s unrealistic

6 at this point? No, in the future, this could be

7 something that could be factual.

8 MR. BATES: But that\'s where we\'re

9 trying to go and trying to get people there and

10 hopefully to educate them.

11 MR. BOWLSBY: That\'s where I said I

12 think we\'re trying to go.

13 MS. FOUDY: But we\'ve heard \-- we\'ve

14 heard testimony of people using prong two and prong

15 three. I mean, we\'ve heard them and, Graham, you

16 say no one uses it, but that\'s where I think we

17 are misguided. I think there are people that are

18 using it that we haven\'t heard from and that we\'re

19 not educated enough in those areas to encourage

20 people to use it more often. It may not be the

21 case at these big Division I-A schools, but there

22 are other schools that are using it and Debbie

23 Corum was the last panelist we heard talk about her

24 using garbage stock about her using prong three.

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1 MR. SPANIER: But what\'s our objective

2 on that, that it\'s irrelevant?

3 MR. LELAND: Let me just \--

4 MS. COOPER: I have a question for

5 you, Julie. Right here where it says that the

6 male athletes, that the numbers are irrelevant,

7 did we hear testimony to that effect?

8 MS. FOUDY: When we\'re talking

9 about a finding, we\'re talking about what the

10 statute says. If you are using two and three,

11 they\'re saying that then you don\'t have to use

12 proportionality and that\'s what I\'m referring

13 to.

14 MR. LELAND: Let me try to see

15 if there is a common ground here.

16 The question is how do large

17 roster teams affect the provision of equal athletic

18 opportunities. What \-- it seems to me what Julie

19 is saying here is if you use prong two and prong

20 three, large roster teams don\'t make any difference

21 because you don\'t have to count heads \-- you don\'t

22 necessarily have to count heads. If we worded this

23 a little bit softer, Graham, would you be okay with

24 it?

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1 DR. YOW: Let me try this before

2 Graham says no.

3 Julie, what if it said something

4 like this, because actually of the rhetoric \-- what

5 happens is you do get hung up on the word. There

6 are connotations associated with various words \--

7 different words and irrelevant is, you know, a bell

8 ringer.

9 As an example, what if it

10 just said something basic like this; a number

11 of institutions have been successful in the

12 utilization of prongs two or three in meeting

13 Title IX requirements, period. In those cases,

14 the respective institutions have not been held

15 to proportionality. That is what you say we

16 heard in the testimony. That has not been my

17 personal set of \-- that\'s not my experience,

18 but you\'re trying to indicate it\'s been the

19 experience of somebody that\'s testified to us,

20 but take out all the words irrelevant and \--

21 MS. FOUDY: That\'s fine.

22 DR. YOW: \-- as a result, schools

23 don\'t need to count. You know, that\'s not my \--

24 again, that\'s not my reality. I do have to count.

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1 MS. FOUDY: Uh-huh.

2 DR. YOW: Because we were in prong

3 one land and our attorneys have not let me out.

4 I mean, that\'s where I live.

5 MS. FOUDY: And I know that, but

6 I just think that we need to remember that not

7 everyone is in prong one land even though the

8 majority of us at this table are.

9 DR. YOW: That reflects that it

10 says a number of institutions have been successful

11 in the utilization of.

12 MR. LELAND: Can we use that as a

13 friendly amendment?

14 MR. SPANIER: Well, no, no. It\'s

15 fine with me because with every one of these,

16 we can come up with a change in words that

17 make it okay. But if you were a suspicious

18 person, seeing a statement like this, I would

19 probably be thinking what is the underlying

20 message here?

21 The underlying message is

22 when we come to the end of this, we\'re going

23 to want to say under no circumstances should

24 we back off from the concept of proportionality

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1 or strict proportionality and this becomes an

2 argument for supporting that conclusion and

3 so what we\'re doing by talking through all

4 of these findings is if I made the mistake

5 that \-- of reading the conclusion that you

6 wrote first, which I don\'t know if you\'ve

7 all \-- there is a concluding page and this

8 whole document reads like a lawyer prepared

9 a legal brief to support all of the points

10 leading to that conclusion. So tinkering

11 with the words here and there of one particular

12 set of documents is, I mean, we have a format

13 that, I guess, was agreed to, but I would have

14 started with what are the ten or the 20 questions

15 that we need to answer as a Commission and let\'s

16 answer those questions.

17 That\'s the way I wrote it up

18 not knowing ahead of time that we would \-- were

19 to be in this findings format. That\'s why, you

20 know, I hate being in the position of feeling

21 like I\'m in an adversarial mode with these things

22 that are written, but I just don\'t think it\'s the

23 right way to get from here to there.

24 That\'s what I\'m a little worried

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1 about, that with each one, we\'re tinkering around

2 the edges and we haven\'t gotten to the heart of

3 the issues.

4 DR. YOW: I understand that. In

5 fact, I would suggest that if we had this finding,

6 I would like to add a finding that says a number

7 of institutions have not been successful in the

8 attempted utilization of prongs two and three

9 and have been held to a strict prong one land.

10 MS. FOUDY: That\'s fine, but just

11 put that out there. I mean, I\'ve put out, you

12 know, my version, but that doesn\'t prevent you

13 from putting out findings as well.

14 MR. LELAND: That last finding

15 probably belongs in question one.

16 MS. GROTH: Right. I think what

17 Julie is getting at is going back to the

18 flexibility of the three prongs and addressing

19 the walk-on issue, which could go back to the

20 first question, is that accurate?

21 MS. FOUDY: Uh-huh.

22 DR. YOW: It kind of goes back to

23 it, but what it also points out is there isn\'t

24 flexibility. If you have been held to prong one,

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1 you have no flexibility, which is why if we have

2 this finding, we really should have the other

3 because a number of us are not experiencing any

4 flexibility for many, many, many years on how

5 this is dealt with.

6 MR. GRIFFITH: And it was my

7 understanding that the purpose of the exercise

8 today was simply to let those who have prepared

9 findings present them here, make certain that

10 the rest of us understand it, see if there are

11 corrections so that we can better understand it

12 and then it goes forward.

13 It wasn\'t my understanding

14 that at this point in time, I\'m supposed to

15 say whether I agree or disagree with that

16 finding.

17 MR. LELAND: You are correct. I

18 think the process that we are \-- and it\'s an

19 imperfect process. We are inventing as we go

20 along. We are to have this discussion today

21 on the findings tomorrow on the recommendations,

22 ask the staff to write an elegant document that

23 will allow us in some way to come back in January

24 and then if we need to, if there is not consensus,

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1 actually sit down and vote on different things

2 and wordsmith again.

3 So I think that\'s where we

4 are. I don\'t think by moving this forward we\'re

5 not necessarily locking ourselves into \--

6 MR. GRIFFITH: All I\'m looking at is

7 I\'m just trying to understand what the findings are.

8 MR. LELAND: And I think that\'s what

9 the purpose was of today. These are complicated

10 things. I also think there has been a nice

11 negotiation on many of the findings that have

12 made them more palatable on the front end so

13 we don\'t have to do that in January and we don\'t

14 waste our time, you know, just writing them up

15 and having people that can\'t agree with them

16 dismiss them out of hand. It\'s been imperfect

17 too.

18 We\'ve suffered, you guys,

19 because we\'ve \-- there wasn\'t as much time between

20 the San Diego meeting and now when you include

21 football games and all the pressures we have on

22 us and Thanksgiving. We didn\'t have a lot of

23 time to get this stuff in advance.

24 MR. GRIFFITH: There you go blaming

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1 football again, Ted.

2 MR. LELAND: So it\'s been difficult

3 for many of us to get this stuff in on time. I

4 don\'t want to pillar the people that did. So any

5 other thoughts on the question? It seems to me

6 that we\'ve talked about how revenue-producing

7 teams affected opportunity, how large roster

8 teams and then we\'ve discussed the walk-on issue.

9 Are there any other thoughts?

10 Okay. Let\'s go down to question number six.

11 In what ways do opportunities in other sports

12 venues, such as the Olympics, professional

13 leagues, and community recreation programs,

14 interact with the obligations of colleges and

15 school districts to provide equal athletic

16 opportunity. What are the implications for

17 Title IX?

18 MS. COOPER: Wait a second. We

19 said we would go back to one before the break

20 if we finished with these, you know, before we

21 go to six and seven.

22 MR. LELAND: Our coach here thinks

23 we should, which I agree with her \-- as promised

24 earlier, instead of jumping to six and seven,

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1 which we said we would do after dinner, is go

2 back to number one and try \-- and try to finish

3 it, which there is a lot of the big issues

4 still there.

5 MS. COOPER: And Debbie wants me

6 to hammer home the fact that dinner is a working

7 dinner and we\'re going to eat right here so we

8 all need to make space. They are coming in a

9 box and they are going to be cold. Just kidding!

10 MR. GRIFFITH: What is dinner?

11 MS. PRICE: Salmon.

12 MS. COOPER: Dinner is salmon.

13 MS. PRICE: It\'s a very nice dinner.

14 MS. COOPER: It\'s a very nice dinner,

15 says Debbie.

16 MR. GRIFFITH: Should I stop eating

17 the candy, then?

18 MS. COOPER: And for the public,

19 she\'s going to pay for your dinner!

20 MR. LELAND: Cary, did we already

21 do your question one findings? We did, did we

22 not?

23 MS. GROTH: Yes.

24 MR. BATES: What do we still need to

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1 do on one? I don\'t remember what we left hanging.

2 MS. COOPER: Well, there is \-- for

3 example, Cary has some different points under one

4 that we didn\'t get to. There were different

5 findings that we didn\'t get to.

6 MR. BATES: Okay.

7 MS. COOPER: And if anyone else has

8 any comments or findings under question number one,

9 then, we want to get to those also.

10 MR. LELAND: You know. I thought \--

11 I think we have gone through the question one

12 findings that have been submitted. We went

13 through Cary\'s.

14 MS. GROTH: I think we covered this.

15 I can\'t see any.

16 MR. LELAND: The one issue that I

17 thought \-- we will look through up there to see

18 if there are any of the submitted findings on

19 one that we need to deal with.

20 The one issue that we did say \--

21 there were three issues that we wanted to talk

22 about and it ended up being four that weren\'t

23 sort of part of the question. One is the issue

24 of safe harbor, which we\'ve talked about. There

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1 is the issue of dropping men\'s sports, which we\'ve

2 talked about. There was the appropriateness of

3 the three-prong test. The last one was how we

4 defined and measured proportionality.

5 In other words, it seems to me

6 we heard testimony where people were concerned

7 that we now measure proportionality by the number

8 of student athletes on the team on the first day

9 of competition and, in fact, we are measuring an

10 outcome and what we should be measuring is an

11 opportunity in some way. Go ahead.

12 MS. GROTH: We talked, and I think

13 it was brought up substantially at Chicago, but

14 eliminating the proportionality prong does not

15 guarantee that institutions will not continue

16 to eliminate men\'s Olympic sports. I would

17 also like to throw in women\'s Olympic sports.

18 Unfortunately, we are in an

19 institution where we dropped field hockey back

20 in 1991, which is a very viable women\'s sport,

21 but you see the numbers decreasing in women\'s

22 field hockey. There was a trend. You see the

23 numbers, and they are staggering, with women\'s

24 gymnastics programs that have been dropped and

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1 we hear about the unfortunate situation with

2 wrestling, men\'s and women\'s swimming and men\'s

3 gymnastics. It\'s not just wrestling and men\'s

4 gymnastics. We have some trends that have

5 happened over the years with some of these

6 sports programs, men\'s and women\'s sports

7 programs.

8 I guess this is more of a

9 comment than a finding, even though I listed

10 it as a finding. The elimination of prong one

11 does not guarantee that institutions will not

12 continue to eliminate men\'s Olympic sports.

13 I think that\'s \-- there is a lot of truth to

14 that.

15 We just need to remember

16 that many, many sports programs have been

17 eliminated, men\'s and women\'s, and it seems

18 that once there is a trend of ten to 12 or

19 ten to 15, it\'s easier for institutions to

20 drop those sports because of conference

21 affiliations or regional competition.

22 I think the rest of them,

23 Ted, have been covered through Julie\'s or

24 some of the others.

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1 MR. LELAND: Okay. I\'m still \--

2 I have a particular vent here. I\'m concerned

3 about the issue of proportionality based on \--

4 I think I shared this with some of the staff

5 people. We got a letter from John Parry at

6 Butler. He is one of the best thinkers around

7 and John \-- the problem that we have with

8 proportionality and the way we now define

9 it is that we end up having to roster manage

10 the men\'s teams and then we also create false

11 opportunities \-- what I would call or what

12 John Parry calls false opportunities for women.

13 By that, I mean, you tell

14 the coaches you\'ve got to jack your numbers

15 up. You have to have 160 rowers. There is one

16 EADA report I saw that had reported 70 women\'s

17 water polo players. Well, there probably were

18 70 women on that roster the first day of

19 competition, but because of the way we measure

20 Title IX, I\'m sure that there was sort of a

21 department initiative. Let\'s make sure we work

22 this thing out and you get as many guys as you

23 can and as many women as you can on the team

24 and I just think there might be a way you can

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1 do it differently. I think it\'s a problem.

2 I don\'t know other areas

3 lawyers have been in here. I don\'t know other

4 areas of civil rights law where you actually

5 measure the outcome and that\'s how you comply

6 with the law as opposed to measuring the

7 opportunity, which we don\'t measure the

8 opportunity. We measure the outcome.

9 How many kids are actually

10 there playing \-- not playing, but are on the

11 roster. So I have a recommendation, which

12 doesn\'t come until tomorrow, on how to try

13 to solve this, but I see this as being an

14 issue. I think there is a \-- we both roster

15 manage and create false opportunities for

16 women because of this definition we have

17 with what a participant is.

18 MR. GRIFFITH: Well, I can\'t speak

19 to civil rights law, but you are not allowed

20 to measure outcome alone unless there is a

21 finding of discriminatory intent. That\'s pretty

22 clear.

23 Title IX is unique in this way.

24 Title IX, as interpreted by the Office of Civil

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1 Rights, is unique in that regard. I don\'t know

2 that that answers overall questions, but you

3 asked the discreet question about how does this

4 compare to other civil rights laws.

5 MR. REYNOLDS: Well, I would have

6 to quibble with Tom just a bit. If you look at

7 the statute, the statute conceptually is similar

8 to the rest of civil rights laws. It is the policy

9 interpretation and the clarification. It\'s what

10 OCR has done in terms of establishing conceptual

11 framework for enforcement. These problems don\'t

12 flow from \-- if you just look at the statute, the

13 statutory language, the problems don\'t flow from

14 that statute.

15 MR. GRIFFITH: Yes, I agree with

16 that. I should have said Title IX, as it\'s been

17 interpreted, by OCR.

18 MR. LELAND: I mean, I think we\'ve

19 heard a little \-- one or two people who have

20 testified that this was an issue. Is it an issue

21 for anybody else but me?

22 MR. REYNOLDS: Well, no, I think

23 your point is an important one. It\'s a fundamental

24 issue. The question is what\'s discrimination?

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1 If you have done everything in your power and

2 your numbers don\'t come out right, you still

3 can be \-- we could still conclude that you have

4 discriminated against women or men. I\'m not

5 sure \-- I mean, is that a rational approach

6 to take?

7 If you can\'t find any intent,

8 if you have evidence, if you can show the efforts

9 that you\'ve made to increase opportunities and

10 you\'ve fallen short from some numeric \-- from

11 some number, is that fair to conclude that a

12 college has discriminated? Well, I have grave

13 concerns about that. It\'s not fair.

14 MR. JONES: Just to piggyback and

15 add something on that, when you typically think

16 about this kind of sort of statistical analysis

17 as it plays out in the anti-discrimination context,

18 you look at the way these sorts of statistical

19 imbalances typically play out in discrimination

20 law, you know, and I\'m an employment lawyer by

21 training, typically you show the imbalance, but

22 then there is the opportunity for \-- for the

23 company or the institution or whatever it is

24 to then be able to show that there was some

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1 legitimate basis for the imbalance.

2 You know, as the analysis

3 seems to work here, you know, it doesn\'t appear

4 that that\'s always the case. We often, and

5 in a lot of the discussion here, it is sort

6 of just presumed that, you know, if there is

7 not the balance and you can\'t meet prongs

8 two and three, if you\'re out of balance,

9 somehow the statistical imbalance equals

10 discrimination and generally that\'s a concept

11 that really is quite succinct from how

12 statistical balances play out in other

13 discrimination contexts.

14 MR. REYNOLDS: It would make

15 more sense if we would set up a rebuttable

16 presumption. If we are going to keep this

17 framework, schools should have an opportunity

18 to come in and present evidence that it\'s

19 nondiscriminatory reasons that explain a

20 statistical disparity and that evidence

21 would have to be evaluated.

22 It seems to me again if

23 we want to be fair and if the goal is to

24 ensure that men and women aren\'t discriminated

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1 on the basis of sex, then, we have to ask

2 some fundamental questions. I mean, do

3 these disparities flow from discriminatory

4 conduct or are there nondiscriminatory reasons

5 that explain it? That analysis \-- we don\'t

6 do that analysis.

7 MR. LELAND: Let me tell you the

8 way this sort of works. Let me just use \--

9 let\'s say you have a men\'s rugby team and a

10 women\'s rugby team what you do \-- people do

11 this all over the country. They tell all the

12 kids in the fall if you\'d like to try out for

13 rugby, let\'s try out for rugby. So the two

14 teams show up and there are 60 men and 60 women.

15 They all want to play rugby.

16 So what you do is a week later,

17 you play your first women\'s game and there are

18 still 70 kids on the team and you tell your men

19 they can\'t play until February. Then, there

20 are 30 men on the team. You made it. You know,

21 there is your offset for football, whatever

22 you need to do, because you can now count 70

23 women, 30 men because it\'s the first day of

24 competition. It happens all over.

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1 So when you count participants,

2 that\'s the kind of games that people play and

3 that\'s why I call those false opportunities

4 because there really weren\'t any more

5 opportunities for women in that case that I

6 just showed you in rugby because the competition

7 really doesn\'t start until February, but you

8 can find somebody to play in October. You can

9 get a team to come and play you, you know, so

10 you play a game in October and you know there

11 will just be this natural attrition.

12 You don\'t have to kick

13 anybody off. It\'s just a natural attrition

14 over a period of time. That\'s why I think I

15 would like to look at some model or at least

16 point out the issue that we\'re measuring an

17 outcome, not an opportunity. I don\'t think

18 that made me popular with anybody.

19 MS. COOPER: I had a question.

20 This is \-- this could be \-- did we make the

21 finding? I\'m reading this from Ted\'s findings.

22 In the past 20, 30 years, there has been a

23 small drop off in men\'s opportunities.

24 Did we submit that as a

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1 finding or did we \--

2 MS. FOUDY: Which one are you on?

3 MS. COOPER: Q1-F3.

4 DR. YOW: Cynthia, somebody said

5 at about that time that the number was larger

6 than smaller and there was some discussion about

7 what wording would be used.

8 MS. COOPER: Right. I\'m kind of

9 confused on what we ended up saying for that

10 finding.

11 MR. SPANIER: I had asked earlier

12 about that report that was done. I checked during

13 the break to get a little more \-- the NCAA

14 statistician did not disagree with that report.

15 He supported it.

16 MS. COOPER: Right. That\'s what I

17 remember also.

18 MR. SPANIER: And so, I mean, here

19 a study was commissioned to get the real numbers.

20 The Commission has those numbers available. That

21 should be a part of the \-- I think there are data

22 out there and I would like us to be \--

23 MS. COOPER: Yes. I guess I wouldn\'t

24 say the last 20, 30 years, but I probably would say

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1 the last ten years, 10, 20 years. I think there was

2 a decline \--

3 MS. FOUDY: What report are we talking

4 about again?

5 MS. COOPER: The NCAA, the guy who

6 came to testify \--

7 MR. SPANIER: No, no. There was

8 an independent \-- everybody was criticized in

9 the NCAA report. We had different \-- we had

10 20 different testimonies. People were arguing

11 about one set of data and remember, we said

12 between hearings \-- after hearing three, but

13 before hearing four, we know why the people

14 are arguing about the data because there are

15 some other variables in the picture.

16 The variables were that the

17 NCAA itself has changed. There were some new

18 members that came in. Some people weren\'t

19 members. There were sports ramping up. It

20 depended on whether you wanted to look at how

21 many people were per team, per school, per

22 sport and so on.

23 So an independent was

24 commissioned by real statisticians to make sense

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1 of all the data. It was presented in San Diego.

2 We got a printed document. I looked it over and

3 so the numbers are there. It was an attempt to

4 put things into an apples to apples comparison.

5 I think to the extent that we

6 wanted to site numbers, that is a pretty good

7 set of numbers to look at. I don\'t know, probably

8 the person only had a few minutes and maybe didn\'t

9 get through all the data, but I see some people

10 shaking their head.

11 MR. GRIFFITH: What was that

12 gentleman\'s name?

13 MR. JONES: It was Kravitz

14 Mr. Kravitz.

15 MS. FOUDY: I haven\'t seen it.

16 MR. SPANIER: I see several of

17 you drawing a blank on that like it didn\'t

18 happen.

19 MS. GROTH: I remembered it

20 differently. I thought he challenged some

21 of the statistics of the NCAA and then the

22 NCAA staff, when they were asked specifically

23 about the number of sport teams or the number

24 of institutions coming into the NCAA, if

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1 those numbers were accurately reflected in

2 the NCAA report, and I thought you said yes.

3 I think since there is confusion, we need to

4 make sure that we are all on the same page

5 as what numbers are accurate. We need to

6 go back to those two reports, but I thought

7 he addressed that.

8 MR. SPANIER: My understanding

9 was that he specifically used NCAA data, but

10 then tried with it to go beyond it and answer

11 the questions that we were \-- that we had

12 asked after the third hearing. That\'s why I

13 thought it was a pretty useful report.

14 MR. BATES: Well, he did use

15 the NCAA. He was \-- that\'s what he relied

16 upon, but he did indicate that he and Todd \--

17 he and Corey disagreed on certain aspects

18 as to the way they were interpreting it.

19 MR. REYNOLDS: Well, we could

20 just refer to the transcript.

21 MR. BATES: Pardon?

22 MR. REYNOLDS: We could just refer

23 to the transcript.

24 MS. COOPER: Right. I was just

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1 talking to Debbie about the transcript and we don\'t

2 have them yet.

3 MS. PRICE: We just received the

4 transcripts late afternoon yesterday from the

5 transcriber. So I don\'t \-- oh, wait. Matt is

6 trying to print it right now. Tah-dah!

7 MR. LELAND: Well, maybe as a \--

8 we could ask the staff to print it during dinner

9 or maybe just develop a finding based on what the

10 transcript says for us to look at when we get back

11 in January. What\'s the preference? Do you want to

12 look at it first and then \--

13 MS. FOUDY: Yes. Let\'s have some

14 time to look at it, I think. I haven\'t looked

15 at it before.

16 MR. SPANIER: I just think that with

17 all of the hand ringing we\'ve collectively done

18 at each meeting about the data and we finally went

19 out and said, okay, take all of these different

20 data sets, make some sense out of them, report

21 back to us, we ought to have some finding, and

22 it\'s probably not a sentence, I mean, it might

23 be a couple of pages that summarizes the data,

24 not that it will really change what we decide

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1 tomorrow or in January, but at least it\'s there

2 for the public to have as some factual matter.

3 MR. LELAND: Okay. Any other

4 comments?

5 Okay. Why don\'t we \-- you guys

6 did a great job of hanging in there. I really do

7 appreciate your patience with the process because

8 the process has not been elegant or smooth, but

9 I think we have made a lot of progress today in

10 hammering some of the big issues.

11 Come back at 6:15 and we eat

12 and begin again. Thank you, guys!

13 (Whereupon, after a short

14 break was had, the

15 following proceedings

16 were held accordingly.)

17 MR. LELAND: Okay. Let\'s get

18 back into business if we could.

19 We have three things left on

20 our agenda. One is try to ferret out and develop

21 findings on question six and the same for question

22 seven and then we\'ll try to leave a little time

23 for any additional findings \-- any issues that

24 you think that we have come across in testimony

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1 that we have heard and the documents that we

2 reviewed that doesn\'t quite fit into one of the

3 seven questions we committed earlier to provide

4 that opportunity for you.

5 So let\'s leap in here. We

6 don\'t have very many findings submitted regarding

7 questions six and seven.

8 Let me read six. In what ways

9 do opportunities in other sports venues, such as

10 the Olympics, professional leagues, and community

11 recreation programs interact with the obligations

12 of colleges and school districts to provide equal

13 athletic opportunity? What are the implications

14 for Title IX?

15 I think I\'ve got one or two

16 suggestions here. Cary, you happen to have sent

17 one in?

18 MS. GROTH: My finding was that

19 opportunity at the Olympic and professional

20 levels enhanced students interests in participating

21 in these sports in high school and collegiate

22 programs.

23 MR. LELAND: Comments? Let me see.

24 Does anybody disagree with that?

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1 I might \-- well, we have one from Julie. No, this

2 is a recommendation, Julie.

3 MS. FOUDY: Which one are we on?

4 MR. LELAND: We are on question six.

5 All you have left is recommendations. So that\'s

6 the only finding that we have.

7 MS. COOPER: Muffet has one. Are

8 we finished with Cary\'s?

9 MS. GROTH: Uh-huh.

10 MR. LELAND: Yes.

11 MS. COOPER: This is from Muffet\'s

12 fax. While offering sports at the high school

13 and college level could lead to a select group

14 of individuals participating in the Olympics,

15 this is merely a by-product of Title IX and not

16 of our immediate concern. With regard to community

17 recreation programs \-- did we want to discuss that

18 before I get to the other one?

19 MR. LELAND: Yes. Let\'s open it

20 up for discussion now. I think this \-- after we

21 listened to the people in Colorado Springs that

22 were directly involved in the Olympic movement,

23 I think what Muffet just put on the table, I

24 guess, was voiced by a couple of the commissioners.

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1 Now, does anyone want to add anything?

2 MS. FOUDY: Could you read it again,

3 Cindy \-- Cynthia?

4 MS. COOPER: While offering \-- are

5 we ready? I\'ll let you guys get a mouthful of

6 salmon first!

7 While offering sports at the

8 high school and college level could lead to a

9 select group of individuals participating in

10 the Olympics, this is merely a by-product of

11 Title IX and now our immediate concern.

12 MR. LELAND: No comments? No one

13 wants to refute that?

14 MR. SPANIER: Was that supposed to

15 be a finding?

16 MS. COOPER: Yes. She submitted it

17 as a finding.

18 MR. LELAND: As a draft of a finding.

19 MR. SPANIER: That something is not

20 our concern? That sounds like a finding.

21 MS. COOPER: Yes, not our immediate

22 concern.

23 MR. BATES: I guess I heard that

24 and thought about it, but I\'m not so sure how

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1 we can simply ignore the Olympic sport as it

2 relates to the broader question of providing

3 opportunities in athletics.

4 I mean, it seems that it

5 belongs there. Now, whether we\'re talking

6 about K-12 or higher ed is a different question,

7 although certainly some of the sports that

8 we would be interested in high school are

9 not in high schools. They are mostly club

10 sports.

11 But somehow, I think we need

12 to embrace that somehow because that\'s the broader

13 question pool of providing athletic opportunities.

14 I just don\'t think we can say it\'s not our business.

15 Let it go away. I really do think we need to

16 somehow address it.

17 MS. COOPER: Well, there has been

18 testimony that the Olympic sports \-- the demise

19 of Olympic sports in colleges could hurt the

20 Olympic movement.

21 MR. LELAND: I mean, I think that

22 was the point of the panel.

23 MS. COOPER: Yes, from UCLA swimmers

24 to gymnasts.

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1 Do we need to wait until after

2 dinner?

3 MR. LELAND: No. I\'m thinking is

4 there a \-- would there be a consensus to leave

5 something here that talked about sort of a

6 continuum of youth sports to school sports to

7 college sports to professional sports and they

8 all sort of interact with each other?

9 MR. BATES: That would be my druthers,

10 if we could \--

11 MR. LELAND: Although it\'s not

12 really the direct purview of, you know, the

13 implementation of Title IX to enhance these

14 other programs and provide the impetus for

15 people below us, it\'s certainly a nice by-product.

16 MR. GRIFFITH: Was the testimony

17 that one of the by-products of cutting back

18 on Olympic sports for men in college \-- is

19 that what you were saying \-- is that it has

20 an unintended consequence of damage in the

21 American Olympic movement, is that it?

22 Is this a wrestler\'s argument

23 sort of thing?

24 MS. COOPER: It\'s not necessarily a

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1 wrestler\'s argument. I remember testimony, and

2 I don\'t remember from the exact names, but I

3 remember testimony from different people stating

4 that because of the demise of sports \-- Olympic

5 sports in universities, a lot of those \-- a lot

6 of Olympic athletes come from those programs or

7 came from those programs and those programs no

8 longer exist. Thus, it would hurt \-- it probably

9 will hurt in the future our Olympic movement

10 because those programs no longer exist. It wasn\'t

11 really wrestling. To be honest, it was gymnastics,

12 I remember, and swimming, I think.

13 MR. LELAND: It seems like the

14 arguments we\'ve heard were both that Title IX

15 had adversely affected a couple of sports, if

16 you buy the argument that that caused sports

17 to be dropped, but it also enhanced other sports

18 because it caused them to be added.

19 So maybe the way to say it

20 is the menu of opportunities provided in the

21 collegiate setting affects both the grass roots

22 programs in terms of providing inspiration and

23 potential opportunities and it affects the post

24 graduate programs and international by providing

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1 elite athletes.

2 Does that get where we are? I

3 don\'t see any controversy here.

4 MR. GRIFFITH: Is there an element

5 here of \-- I know the wrestlers have made the

6 argument that there are all these wrestling

7 programs in high school throughout the country

8 and opportunities are not being provided for

9 these wrestlers once they get to college, that

10 the number of college programs has declined.

11 Is that part of this here that

12 somehow \-- is there an implication here that when

13 there is a recognized interest below the college

14 level that as we look at colleges providing

15 opportunities for young people to participate

16 in athletics, that that\'s a factor that ought

17 to be considered as if there really is a desire

18 out there that somehow ought to be addressed?

19 I don\'t know. I don\'t remember any testimony

20 about that.

21 MR. LELAND: I thought the only

22 testimony we heard about that might have been

23 from the LSU case where they were trying to do

24 the needs and interests assessment and they had

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1 to look at the number of high school athletes

2 in that sport in the state of Louisiana.

3 That\'s the only thing that

4 I can remember. I don\'t remember that being

5 specific. Any other thoughts on this one?

6 MS. FOUDY: Was there any mention

7 about funding possibilities at the Olympic

8 committee? I wasn\'t in Colorado Springs and

9 I know that topic came up before that and that

10 we were going to mention it there about

11 opportunities to help through the Olympic

12 community funneled to the NCAA or through

13 the \-- I don\'t remember the exact point.

14 MS. COOPER: Is that question seven?

15 MS. FOUDY: Because that seemed to

16 be a big issue.

17 MS. COOPER: Would that be covered

18 under question seven, what you are asking?

19 MR. LELAND: We can just say it\'s

20 under seven if you want.

21 MS. COOPER: I\'m asking.

22 MS. FOUDY: Yes, it could be. That\'s

23 true.

24 DR. YOW: Ted, do we not \-- Donna

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1 is the person who has had a lot of emotion around

2 this. Did we not get anything in writing because

3 that surprises me a little bit because she was

4 very passionate about this particular issue.

5 MS. FOUDY: I think Donna has been

6 out of the country.

7 DR. YOW: Okay.

8 MS. FOUDY: That\'s what I heard. I

9 think she just got back.

10 MS. COOPER: We haven\'t received

11 anything from Donna.

12 DR. YOW: So, Julie, you can\'t

13 represent anything she shared with you as an

14 example about that.

15 MS. FOUDY: She may have been the

16 one that mentioned that at a prior town hall

17 meetings, but I just remember that being a big

18 issue. I wasn\'t at the Colorado Springs meeting so

19 I don\'t recall.

20 MR. LELAND: Well \--

21 MS. FOUDY: We can hit on that later,

22 though, when she gets back or she can type something

23 in if she remembers.

24 MR. LELAND: Okay. Why don\'t we run

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1 with what we\'ve got and then we\'ll make a special

2 effort to see if Donna has a proposal for us that

3 might cover some more ground.

4 Does that sound all right to you

5 guys?

6 MS. COOPER: There is another finding

7 from Muffet. She has been busy.

8 With regard to community

9 recreation programs \-- with regard to community

10 recreation programs, they should meet Title IX

11 standards for equity between men and women.

12 I\'ll repeat it. With regard

13 to community recreation programs, they should

14 meet Title IX standards for equity between men

15 and women.

16 DR. YOW: That would mean \-- I

17 think we probably should be dealing with club

18 sports on our university campuses if we were

19 going to go that route before we ever went to

20 neighborhood gatherings.

21 MR. GRIFFITH: That strikes me

22 as quite an overreach here. I mean, Title IX

23 is limited to federal funding to educational

24 programs. We\'re now talking about extending

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1 it to local teams. Somebody maybe ought to

2 do that, but it\'s not us and it\'s not the

3 Department of Education. That ought to be

4 done at a different level. I think that\'s

5 way beyond our scope.

6 MR. LELAND: I would agree.

7 Anybody disagree? Would you

8 like to second that motion? We\'re sort of stuck

9 here because I don\'t think we have any passion \--

10 we haven\'t heard a lot of testimony that was

11 really \-- that rang the bell on this one.

12 So are we okay with what we

13 discussed, in essence, to staff craft a \-- I

14 don\'t want to call it a milk toasty, but an

15 answer?

16 MR. BATES: Ted, I just have

17 one question, both on the Olympics and on

18 this recent mention of Muffet about the

19 community. While I think it\'s an overreach,

20 it was my understanding that we are the

21 Secretary\'s Commission\'s in Opportunities

22 in Athletics and not just on Title IX. I

23 thought that was purposeful in the sense that

24 we could, in fact, look at a broader picture

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1 and not just limit it to Title IX. Otherwise,

2 we would have been Commission on Title IX.

3 I assume there was a reason

4 for this title versus focusing only on Title IX

5 and it seems to me there are some things that

6 when we get to that, we say, well, that\'s not

7 in our bailiwick. Again, not to comment, I

8 don\'t have a suggestion, but I do think the

9 issue really is broadening athletic opportunities

10 and not necessarily limiting it to college

11 campuses.

12 MR. GRIFFITH: Well, I agree. It\'s

13 not limited to college campuses, but I think it

14 has to have some nexus with the jurisdiction of

15 the Department of Education. That\'s all.

16 MR. BATES: I understand.

17 MR. LELAND: And I also think

18 there may be an opportunity for us, when we

19 start talking about other findings or other

20 recommendations, as opposed to handling it

21 under number six.

22 MR. BATES: That\'s only an

23 observation.

24 MR. LELAND: Okay.

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1 MR. BATES: It\'s just that I don\'t

2 want that to be the limiting factor for us.

3 MR. LELAND: All right. Hearing

4 no more \-- anybody pushing to the microphone?

5 MR. GRIFFITH: Move on, move on.

6 MR. LELAND: Move on to seven?

7 MS. FOUDY: Yeah.

8 MR. GRIFFITH: Bury it. Bury six.

9 MR. LELAND: Question number seven,

10 apart form Title IX enforcement, are there other

11 efforts to promote athletic opportunities for

12 male and female students that the department might

13 support such as public/private partnerships to

14 support the efforts of schools and colleges in this

15 area?

16 Cary, do you want to \-- you\'ve

17 got one underneath here. I think you are the only

18 one that I got anything from.

19 MS. COOPER: Muffet has one.

20 MR. LELAND: And Muffet. Oh, Julie.

21 Okay.

22 MS. GROTH: Educational initiatives

23 must also comply with Title IX regulations.

24 Partnerships would be beneficial, especially with

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1 today\'s economic challenges.

2 MR. LELAND: Okay.

3 MS. COOPER: Give me the money!

4 Show me the money!

5 MR. LELAND: Okay. Any comment?

6 MR. GRIFFITH: I\'m not certain I

7 understand. Could you help me?

8 MS. GROTH: Pardon me?

9 MR. GRIFFITH: I didn\'t \-- could

10 you read that again? I didn\'t catch that.

11 MS. GROTH: Educational initiatives

12 must also comply with Title IX regulations. If

13 we get some private funding, of course, development

14 monies or corporate partnership monies, it must

15 comply with Title IX provisions and that

16 partnerships would be beneficial, especially

17 with today\'s economic challenges.

18 MR. LELAND: I think she\'s saying

19 that, in fact, anything the Department of Education

20 helps sponsor would have to comply with the rules \--

21 with the regulations anyway and partnerships would

22 be beneficial especially in today\'s economic

23 challenges.

24 MR. SPANIER: Just an observation,

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1 I think we in the Department of Education need

2 to deal head on very squarely with all of the

3 issues before us and I hope we don\'t succumb to

4 the tendency in the end to say that it\'s really

5 all about money and so let\'s just encourage

6 schools and universities to go off and engage

7 in public/private partnerships and step up their

8 fund-raising and that\'s how they will take care

9 of this and maybe the problems we\'re struggling

10 with will go away.

11 Most universities are heavily

12 involved in fund-raising for their athletic

13 departments already. Maybe our number is \-- I

14 mean, it\'s only a fraction of Stanford\'s. We\'re

15 maybe at \$10 million and I wouldn\'t even want to

16 mention in public what Stanford raises, but the

17 point is we would not be able to balance our

18 intercollegiate athletics budget if we weren\'t

19 heavily involved in athletic fund-raising as

20 it is.

21 Moreover, we all have sponsorships

22 of some level ranging from local car dealers to shoe

23 contracts to names of companies up on our score

24 boards. In fact, we are so heavily into

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1 public/private partnerships already that we all are

2 under some degree of criticism for having gone too

3 far in that direction and we are striving to create

4 the right balance between supporting our athletic

5 programs with outside money and not going so far

6 that it looks like we\'ve over-commercialized

7 athletics.

8 From the very beginning, I\'ve

9 worried about this particular question because

10 it seems like one where the answer is obviously

11 sure, we\'re for it, go ahead and do it. Well,

12 we are sort of doing it and it\'s all about

13 balance in the end. I don\'t think the answer

14 to that question should relieve any of our

15 anxieties it\'s about dealing with the other

16 issues before us. I just wanted to get that

17 out.

18 MR. GRIFFITH: Is there some sense

19 here that this question might get into the issue

20 of what if you could raise money to put on a men\'s

21 gymnastics program or something like that?

22 DR. YOW: Yes.

23 MR. GRIFFITH: I hadn\'t thought about

24 that until just now.

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1 DR. YOW: The question is are there

2 other efforts and one other effort would be to

3 allow sport-specific fund-raising through private

4 sources without penalizing and in that

5 case, just counting the money that\'s given.

6 Another \-- just to bring it

7 down to, you know, the pragmatic level, we have

8 a friends \-- what we call friends of accounts

9 for every \-- for each of our 25 sports. You

10 can donate money specifically to the fund for

11 men\'s swimming because this is the team I\'m

12 talking about.

13 For men\'s swimming, they

14 have \$70,000 friends of account. They want

15 to use it, as you would guess, for scholarship

16 money. It has never been allowed so the money

17 sits in the fund. They could technically use

18 it perhaps for some other operational expense

19 as long as it\'s proven that it\'s nondiscriminatory

20 to our women swimmers, but there are limited

21 uses of the funds.

22 So because it\'s that way, we

23 can\'t get people \-- we can\'t maximize the

24 revenue potential of those gifts because we

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1 have so little flexibility in terms of how we

2 can use them, especially when it comes to

3 participation opportunities. We\'re paying for

4 those walk-ons, to dress those walk-ons or for

5 scholarship support.

6 MR. LELAND: I\'m not optimistic

7 because I happen to agree with Graham in terms

8 of the economic \-- the public/private partnerships

9 at all the universities. We\'re stretching it at

10 about \-- we\'re maximizing our revenue and stretching

11 it about as far as we can giving the academic

12 milieu we live in.

13 I\'ve also had some background

14 and talked to some of the people in Colorado

15 Springs about the national governing bodies being

16 of assistance and I don\'t see that as a way to

17 help ameliorate the financial situation because

18 they have just as bad financial problems as we

19 do and they \-- I mean, I remember years ago,

20 about four years ago \-- it must have been

21 about seven years ago when the Los Angeles

22 money finally got to the national governing

23 bodies when water polo worried about their

24 status as an NCAA sport.

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1 They went and set up this

2 grant program for \$10,000 a year for three years.

3 They would help start a men\'s water polo program

4 and no one could do it because they knew it was

5 more than \$10,000 and it was a life-long commitment

6 and for the Water Polo Foundation, that was a lot

7 of money, \$30,000 to give to some school to

8 start a program, but nobody took them up on it

9 because it just didn\'t make any sense in the

10 long run.

11 It only had little to do with

12 Title IX, the fact that it was men\'s water polo.

13 You know, it had more to do with the fact they

14 would have this obligation in perpetuity because

15 then they would have to drop the sport at the

16 end of three-year period or something. So I

17 don\'t see a lot of \-- I wouldn\'t look to national

18 governing bodies to help us out of our, you know,

19 finite problem with dollars nor do I look for

20 a lot of public/private partnerships because I

21 think we\'re all pretty good in doing that now.

22 I can\'t imagine that there\'s

23 a bunch of money laying out there to support

24 college athletics that we haven\'t tried to

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1 vacuum up already. So maybe that\'s a \-- is

2 that the consensus sort of? Not what I just

3 said specifically, but the kind of, gee, this

4 isn\'t a real avenue we ought to look into?

5 DR. YOW: It\'s that way as long

6 as the money that\'s being raised is used as

7 replacement funds for the athletic program. In

8 other words, we cut our expenses by using that

9 private funding and then people don\'t give that

10 money to us because they don\'t see that a bit

11 like paying debt.

12 They are not very interested

13 in either one of those concepts. They only

14 seem to be interested in it if it is used as

15 money in addition to whatever the commitment

16 is institutionally has already been made to

17 further enhance the sport.

18 MR. LELAND: Okay. Other thoughts

19 and comments on question seven?

20 MS. COOPER: Muffet.

21 MR. LELAND: Muffet?

22 MS. GROTH: Yeah, Muffet!

23 MS. COOPER: Rules on scholarship

24 limits imposed by the NCAA may have negative

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1 affect on compliance with Title IX.

2 I\'ll repeat it. Rules on

3 scholarship limits imposed by the NCAA may

4 have a negative affect on compliance with

5 Title IX.

6 There is another part. Do

7 you guys want me to read that one also while we are

8 here?

9 MR. LELAND: Uh-huh.

10 MS. COOPER: Title IX does not

11 prohibit public/private partnerships.

12 MR. LELAND: I think that could be

13 part of our \--

14 MS. FOUDY: That\'s one of \-- that\'s

15 one of my findings. Both of those are two of mine

16 actually.

17 MS. COOPER: Cool, Julie!

18 MR. LELAND: What was the other

19 one, scholarships and\...

20 MS. COOPER: Title IX does not

21 prohibit public/private partnerships.

22 MR. SPANIER: It\'s almost too

23 obvious to state, isn\'t it? That\'s not really

24 a finding, is it?

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1 MR. BOWLSBY: Well, the issue of

2 the NCAA scholarship limits has been around for

3 a long time. It works okay for \-- we\'ve run

4 it up the flag pole in the Big Ten several

5 times. We could advance our situation rather

6 dramatically by going from \-- from 14 scholarships

7 to 18 scholarships in women\'s basketball or

8 something along those lines.

9 It becomes a non-starter because

10 for everybody below the top 60 institutions, it\'s

11 a competitive issue. You know, we are all stock

12 piling athletes and they are all trying to compete

13 against us. So, you know, as a solution, it

14 really is a non-starter because there are so

15 many competitive level playing field issues.

16 We\'ve proposed one scholarship

17 increase after another and they never go anyplace

18 because there is just too much critical mass and

19 it\'s not even \-- even under the new government

20 structure of NCAA, it never goes anyplace because

21 the mid-majors and some of the fairly \-- other

22 than the top six conferences, you can never get

23 any of it through because it\'s a competitive

24 issue for them. They don\'t want us putting another

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1 four people that they should be having on their

2 roster on our rosters.

3 DR. YOW: That is true, Bob, but

4 the reason it\'s true is because there is no

5 enforcement of Title IX in the way \-- that\'s

6 not well stated.

7 There is not a broad based

8 application \-- uniformly applied application

9 to Title IX compliance. So what happens is if

10 we added the equivalency of two scholarships

11 to women\'s field hockey because that\'s more

12 likely because we might have 30 student athletes

13 on the team, but maybe only 12 scholarships,

14 whatever the limit is right now, that would

15 really be feasible if people understood that

16 the choice came down to either adding scholarship

17 13 and 14 in field hockey or starting a new women\'s

18 sport and paying all of the operational costs that

19 are associated with it.

20 It is only \-- it is exactly

21 as you stated it, but it\'s that way because

22 that dynamic is not in play right now because

23 people don\'t have to be in compliance, so to

24 speak.

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1 MR. BOWLSBY: Well, yeah. I think

2 that\'s right and \-- but at its base level, you

3 know, that Cary\'s institution doesn\'t want 11

4 institutions in the Big Ten to put another 44

5 women\'s basketball players on their roster because

6 those are 44 kids that would be playing at Northern

7 Illinois and playing at the other places.

8 DR. YOW: I understand. I think

9 it\'s just tough for me to think about it with

10 women\'s basketball given they already have 15 and

11 the men only have 13.

12 If it\'s just another \-- you

13 already have 30 players on the field hockey team

14 and you know whether or not everybody else

15 understands the difference in a head count sport

16 and an equivalency sport where so many of them

17 aren\'t on full rides anyway, it\'s a matter of

18 parceling out additional monies to a lot of times

19 existing people on the teams because there are

20 already 30 of them there.

21 Whether or not our ability to

22 offer, you know, \$1,000 or \$4,000 would make the

23 difference in a mid-major program, I don\'t know.

24 Maybe it would. I still think it\'s cost-effective

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1 if the choices are to do that versus adding another

2 women\'s team.

3 MR. BOWLSBY: Well, it\'s also popular.

4 If we go back and ask the coaches on our campus

5 whether they wanted to do some other things to

6 enhance their perhaps or add an additional sport on

7 the women\'s side, every one of them will tell you

8 they don\'t want any more sports. They want

9 enhancements to what we are currently doing because

10 it\'s an issue of the quality for them.

11 DR. YOW: Correct. I think that\'s

12 accurate. If you only have 12 scholarships, but

13 you have 30 student athletes, then, as a coach,

14 you look at that and you go, yes, that person does

15 deserve more aid and so does that one and so forth

16 and so on. So you are right. It\'s very popular

17 with the coaches.

18 MR. LELAND: All right. Any other \--

19 I\'m not sure if that fits into this question. I

20 think it\'s something that\'s been discussed, but

21 I\'m not sure it fits in this particular question.

22 MR. BOWLSBY: It was a great

23 discussion.

24 MR. LELAND: It was a good discussion

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1 among two of our bright lights.

2 Okay. Apart from Title IX

3 enforcement, are there other efforts to promote

4 athletic opportunities for male and female

5 students that the department might support

6 such as public/private partnerships to support

7 the efforts of schools and colleges in this

8 area?

9 Any other comments for the

10 good of the cause? Hearing none and seeing

11 none, we\'ll \-- we\'re done with number seven.

12 So we\'ve answered the questions now.

13 Let\'s give everybody a

14 chance to just take a deep breath here for

15 a second and talk about other areas \--

16 we just mentioned one in terms of the scholarship

17 limitations the NCAA imposes.

18 What other areas are people

19 interested in having findings that aren\'t subsumed

20 in the seven questions or things that we went

21 through?

22 We discussed last time we met

23 the possibility of having findings over and above

24 the seven questions. We think it is probably

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1 within our purview to do that, but want to be

2 cautious when we do that.

3 So where else do we need to \--

4 what other issues have you heard about or that

5 you want to \-- or thought about that you want

6 to discuss now? Now is the time for us to go

7 through them.

8 If there are none, we can

9 adjourn. Yes, Cary?

10 MS. GROTH: Can we think about

11 that overnight? Is there any time in the morning

12 that we can start off with that since we\'re a

13 little fried today going through those and give

14 us a chance to \--

15 MS. COOPER: No.

16 MS. GROTH: That\'s out of the time

17 line?

18 MS. COOPER: Tomorrow is my day.

19 No, I\'m just kidding. No.

20 MR. LELAND: I think we could put

21 it at the end of the agenda tomorrow if you want.

22 DR. YOW: No.

23 MR. LELAND: Oh, you want to put it

24 at the start?

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1 DR. YOW: I won\'t be here at the end

2 of the agenda tomorrow. Can you stick with it for

3 ten minutes?

4 MR. LELAND: Yes.

5 DR. YOW: Okay. Can I talk?

6 MR. LELAND: Yes.

7 DR. YOW: Other than the NCAA

8 scholarship limits, which I think is a marvelous

9 topic, I would like for us to consider the

10 possibility of a recommendation that the Office

11 of Civil Rights would development some type of

12 government pilot program with a significant

13 budget to encourage high school sports participation

14 with boys and girls with an emphasis on the girls.

15 That would be one I would like to think about and

16 maybe talk about.

17 Is the cheerleading thing in

18 here already or do we need to bring that up

19 again? Is that a done deal? We don\'t need to

20 discuss that anymore? We said we have guidelines

21 and that\'s what they are? We don\'t \--

22 MR. LELAND: I think that\'s where we

23 are.

24 DR. YOW: Okay.

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1 MR. LELAND: You will have a chance

2 to look at those again in January.

3 DR. YOW: Nope, nope. The other

4 suggestion is that we modify the EADA report to

5 provide for clear delineation of nondiscriminatory

6 scholarship variances like summer school or other

7 special \-- special term costs. Like, some have a

8 winter term, they have a mini term, you have people

9 going to these terms because they have to stay

10 eligible, as an example, or they just want to and

11 that opportunity is made available to others who

12 chose not to utilize it.

13 MR. LELAND: These are more in the

14 form of recommendations.

15 DR. YOW: Oh, this is not a new

16 topic?

17 MR. LELAND: No. We\'re looking for

18 findings. What have we heard from the public?

19 DR. YOW: Please forgive me.

20 MR. LELAND: No, that\'s great. We\'ve

21 got a jump on tomorrow, but \--

22 DR. YOW: That\'s very tactful, Ted. I

23 really appreciate that.

24 MR. SPANIER: Well, now, I don\'t want

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1 to launch into anything if I\'m on the wrong track

2 here. You\'re looking for findings that we haven\'t

3 talked about at all, not topics that we need to deal

4 with?

5 MS. COOPER: Findings.

6 MR. LELAND: Do you have a topic that

7 needs a finding?

8 MR. SPANIER: Well, let me take two

9 minutes.

10 MR. LELAND: Let\'s let him throw it

11 out there. Yes, please.

12 MR. SPANIER: I think we need a whole

13 discussion on enforcement and we need findings \--

14 more findings on enforcement.

15 I think a consistent theme that

16 we\'ve heard in testimony and I think all of the

17 commissioners have felt that we have this very

18 peculiar phenomenon going on here where we have

19 had Title IX for years and years. No school has

20 ever actually had the ultimate penalty occur,

21 namely, the withholding of funds from the

22 Department of Education. Nobody has been found

23 to be bad enough that they have ever been

24 penalized that way.

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1 Now, maybe that\'s because the

2 negotiations were always so well done that

3 everybody said, oh, yeah, we can agree on that,

4 but we all know that there are schools out there \--

5 I mean, it\'s one thing to argue one percent off

6 or three percent off. Are you this prong or that

7 prong? Heck, there are schools out there that

8 are 30 percent off. I mean, there are schools out

9 there that \-- I just think haven\'t begun to comply

10 with the spirit let alone the letter of any of the

11 laws and what\'s the deal there?

12 I mean, we have this peculiar

13 thing where we are arguing about the nuances

14 around the edges when there are a lot of bad

15 apples out there that we really ought to be

16 doing something about. I\'m just wondering how \--

17 you know, if we can come up with things out of

18 the Commission that get people to stop arguing

19 about the nuances around the edges and let the

20 Department of Education channel its resources

21 into really doing something about programs,

22 whether it\'s high schools or colleges or

23 universities that really have only been protected

24 because they haven\'t been on somebody\'s radar

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1 screen, you know, I have the impression that you

2 guys spend all of your time dealing with complaints

3 that somebody files.

4 Maybe a whole different approach

5 to enforcement is needed than the one now. I mean,

6 that doesn\'t require any \-- I\'m just saying that\'s a

7 whole topic I am wondering we should spend some time

8 on. I think, you know, we spend a lot of time

9 talking about walk-ons, roster management, and so

10 on, but if we\'re going to have any recommendations

11 in that arena, we really need to think about what we

12 mean by walk-ons.

13 I think we may need a whole new

14 vocabulary for a lot of these things too. We are

15 stuck with a lot of old vocabulary terms. We even

16 know there are such things as invited walk-ons and

17 other walk-ons. So, you know, if there is going to

18 be some set of clarifications about the \-- and is a

19 walk-on, and this was in a couple of other people\'s

20 write-ups, too, is a walk-on somebody who just

21 doesn\'t have a scholarship, full or partial, or do

22 we have some concept of what is an appropriate size

23 to field the team?

24 Is it \-- you know, let\'s say it\'s

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1 20 in soccer or 12 in volleyball or 12 in basketball

2 and then is a walk-on anything above that number

3 because if you just counted everybody who didn\'t

4 have a scholarship, that might be too \-- people

5 could hide behind that and really get away from the

6 spirit of Title IX.

7 I think we actually need to

8 think about what we mean by equity, what we mean

9 by gender equity. We have gotten kind of hung

10 up in converting equity to numbers and if we

11 just, you know, for a minute or two, not now,

12 but in a discussion if we could get away from saying

13 what are we trying to accomplish here and what do we

14 mean by equity, is it having the same number of

15 sports?

16 Is it having sport by sport

17 equivalency? Is men\'s gymnastics being treated

18 the same as women\'s gymnastics? Is women\'s being

19 treated the same as men\'s basketball? Are their

20 facilities the same? Is their travel the same?

21 Are their stipends the same? Is that the kind of

22 equity that is important to us or do we really

23 believe that all 85 football players or 30 wrestlers

24 or whatever might have to be matched up person by

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1 person to a woman in a completely different sport?

2 Is that the kind of equity we\'re after? I think

3 we danced around the edges of that a little bit.

4 We\'ve talked about the one prong

5 versus the three prongs and I\'ve mentioned this a

6 couple of times. I\'m just wondering if there might

7 also be some other prongs. You know, who knows, I

8 wasn\'t there, but when they were all sitting around

9 the table in 1995 writing up that letter or in 1989,

10 one step back from that, was it always \-- were there

11 always three prongs on the table or were there a

12 couple other prongs that somebody has forgotten?

13 Are there some other ways of

14 truly demonstrating and enhancing gender equity?

15 We have had so many lawyers before us talking

16 about the way it was and is and the three prongs.

17 The legislation never said there will be three

18 prongs. Somebody along the way wrote that down and

19 that became it.

20 I just \-- you know, I haven\'t

21 spent enough time to think about what might be

22 missing, but I\'m just wondering if there are a

23 couple other things that might be missing and,

24 you know, I said this before, we could argue a

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1 lot about what is the good of surveys, but if

2 there are going to be surveys, what should they

3 really be trying to find out? What are the

4 appropriate populations to be surveyed?

5 So those are a few things

6 that I think, you know, would be some worthwhile

7 topics to think through. If this group\'s charge

8 was different, if this was 30 years ago and they

9 appointed a Commission like this to design Title IX

10 and all of its clarifications, interpretations and

11 policies, you know, what would we have done then and

12 what we do now to really do everything we could to

13 enhance gender equity in athletics?

14 There may be some things out

15 there that we just haven\'t talked about that we

16 should even if it\'s not technically one of the

17 questions asked. Most of those questions are

18 broad enough, if we were bold enough, we could

19 probably put a couple of new ideas on the table.

20 MR. LELAND: Well, I just want to

21 pick up on one thing that Graham said, which I

22 thought we had a consensus or sort of a consensus

23 at the meetings and that was the idea that sort

24 of \-- there is a need to make sure that the law \--

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1 that the implementation of the law is flexible to

2 make sure that it\'s clearer, but to make sure that

3 we beef up the enforcement.

4 I thought when he \-- which he

5 sort of reiterated again here. I thought there

6 was a consensus around the room that that seemed

7 reasonable. I hope we get a finding written that

8 we look at that says something like that. I\'m

9 not sure we did earlier when we talked about

10 enforcement under question number one.

11 I thought when Graham gave a

12 similar talk, I thought most of us were nodding

13 our heads last time. I think we at least ought

14 to \-- unless somebody objects, let\'s get at

15 least a finding done that way so that we feel

16 comfortable.

17 MR. DeFILIPPO: Did we also all

18 agree that the Office of Civil Rights ought to

19 be consistent with all of their regional offices

20 in their interpretation of what we are working

21 with as well as the enforcement, but we need

22 more clarity and we need, you know, similar

23 guidelines from everybody?

24 MR. BATES: Those would be in the

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1 recommendation, correct?

2 MS. FOUDY: It\'s already one of the

3 findings.

4 MR. LELAND: Yeah. I think we

5 already did that one. I should talk in the

6 microphone.

7 Any other comments?

8 MR. REYNOLDS: Several of the

9 presenters alleged that what we have is actually

10 strict proportionality as opposed to substantial

11 proportionality. So I think that it would be

12 useful for us to explore that issue and should

13 we have a variance between X and Y amount that

14 is acceptable. Right now, we don\'t have an

15 official policy on what the \-- what\'s an acceptable

16 variance. The three percent variance, is that okay?

17 Most of the time, I think that we wind up saying

18 yes. If we go up to five or six percent, is that

19 okay? We start to scratch our head when we get to

20 that zone.

21 So I guess the question that

22 will be helpful is what is an acceptable variance?

23 Did we want to tackle that?

24 MR. LELAND: Well, I don\'t think in

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1 terms of a finding, that doesn\'t seem to fit. I

2 mean, it might be a recommendation to, you know,

3 the office of the secretary to leave the initiative

4 to \-- I was thinking this up \-- to clarify that

5 after getting input from the community or something

6 like that. I could see that as being one of the

7 recommendations. I don\'t think that\'s a finding.

8 I don\'t think we had a lot of

9 evidence come to us or people saying, you know,

10 this is what you ought to do. I think it is

11 something that would be helpful.

12 DR. YOW: Ted?

13 MR. LELAND: Yes?

14 DR. YOW: While we were on that

15 subject, can I ask Jerry a question about civil

16 rights law in general. This is not the only

17 civil rights statute. How do you define compliance

18 with other civil rights statutes in terms of

19 percentages?

20 MR. REYNOLDS: Well, I think \--

21 MS. COOPER: Jerry, can you speak

22 up a little bit?

23 MS. PRICE: Please try to use the

24 microphone.

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1 MR. REYNOLDS: Well, there are many

2 aspects of Title IX enforcement that\'s unique.

3 Again, the presumption that if you \-- well, most

4 other areas, you have an opportunity to explain

5 your numbers. It\'s a rebuttable presumption.

6 Here, at least with respect to prong one, if you

7 don\'t hit the numbers, then, you have to go from

8 prong two to prong three.

9 You can\'t stay within prong

10 one and explain why \-- you can\'t point to

11 nondiscriminatory factors to explain why the

12 disparity is not due to discriminatory conduct.

13 I guess that\'s the biggest difference when

14 looking at other civil rights statutes.

15 MR. GRIFFITH: Jerry, I just caught

16 this and maybe everyone else caught this long

17 before, but you\'re saying the Office of Civil

18 Rights has no working guidelines for what

19 substantial proportionality means, that on each

20 case, you handle it on a case-by-case basis?

21 MR. REYNOLDS: We have no written

22 policy with respect to that issue.

23 MR. GRIFFITH: Has there ever been

24 a written policy as a practice?

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1 MR. DeFILIPPO: Jerry, I thought

2 that schools lately were being told to be de

3 minimus, which meant less than one percent, which

4 is really a concern to us because \--

5 MR. REYNOLDS: You should not be in

6 the position of guessing. If I were to ask you

7 where did you get that from, you can\'t point to

8 anything on our web site and you can\'t point to

9 anything on our written documents and for me, that\'s

10 a huge problem.

11 MR. GRIFFITH: Yes. That could be a

12 finding \-- a finding that there was no guideline

13 that a university or college would know beforehand

14 as to what substantial proportionality means.

15 MR. LELAND: Even for prong one.

16 We\'ve already said that about two and three. We

17 would like some guidelines.

18 MR. DeFILIPPO: This is dealing with

19 prong one. We\'ve been told that it\'s de minimus.

20 That means less than \-- I didn\'t know what de

21 minimus meant, but it means less than one percent.

22 MR. REYNOLDS: Well, if that is the

23 case, then, it is not substantial proportionality.

24 It has been straight proportionality.

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1 MR. SPANIER: You survey major

2 universities and ask them what they \-- where they

3 thought they were supposed to be, you would get

4 three-fourths at least saying we understand we have

5 to be within one percent.

6 DR. YOW: Jerry, was that a Norma

7 Cantu \-- was there a letter?

8 MR. REYNOLDS: Well, in the letter,

9 it states that it would be unreasonable to require

10 strict proportionality, but terms were never

11 defined. What is strict proportionality? Is

12 that one percent or less?

13 I would say yes, that if you

14 have to hit \-- you know, if the variance is one

15 percent or less, that\'s strict proportionality.

16 At the same time, though, you have a document

17 here, the \'96 letter, stating that strict

18 proportionality is unreasonable, there needs

19 to be some \-- there needs to be a clarification

20 of the clarification.

21 MS. FOUDY: Doesn\'t she say in the

22 same letter, Cantu\'s letter, that the variance

23 depends on the school size?

24 DR. YOW: Cary is looking for the

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1 letter as we speak.

2 MS. FOUDY: Because the percentages

3 would be different if you only had so many athletes

4 in terms of you couldn\'t add another and so the

5 variance would be higher. She talks about that in

6 the letter. I believe that creates a flexibility

7 that was substantially proportionate.

8 MR. DeFILIPPO: Whatever the letter

9 says, if what Dr. Spanier says is correct in that

10 three out of all the four 1-A schools would say

11 that you have to be less than one percent, then,

12 something is wrong if you\'re telling us that we

13 don\'t have to be.

14 MR. SPANIER: I think it\'s a

15 perception problem.

16 DR. YOW: And Julie, that is also \--

17 my poor attorneys, I feel like they\'ve been beaten

18 up, but that\'s our stance as well, one percent, so

19 there has to be some genesis to that perspective

20 from our legal staff.

21 Cary has that letter somewhere,

22 but that is, of course, strict proportionality and

23 what we worry about is we can\'t \-- we have trouble

24 staying within it. For natural reasons, kids don\'t

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1 get to start and they can start at other

2 institutions so you know they leave or they get home

3 sick and they leave the institution or they get hurt

4 and they can\'t compete. There are so many different

5 reasons.

6 MS. FOUDY: But doesn\'t she address

7 those reasons as well in the 1996 clarification

8 letter about these variance issues? I think she

9 does \--

10 DR. YOW: Cary is looking for the

11 letter. Cary was looking for the letter. It\'s

12 now in the past tense.

13 MR. REYNOLDS: I have a letter and,

14 Julie, the concept that you refer to, you were

15 referring to prong three when you \-- if you do a \--

16 MS. FOUDY: He has got the letter.

17 MR. REYNOLDS: Here it is. The

18 bottom line is I think what we need to do \-- OCR

19 needs to do a better job of articulating what our

20 positions are. I don\'t think that a one percent

21 variance is substantial proportionality.

22 I believe that is strict proportionality and that

23 is not what is required by the \'79 policy

24 interpretation or the \'76 clarification letter.

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1 MR. GRIFFITH: Ted, you were asking

2 whether we have any new findings?

3 MR. LELAND: Yes.

4 MR. GRIFFITH: I would throw that

5 out there as one, that we have some finding about

6 prong one and the standard that\'s been used to

7 enforce prong one with respect to what does

8 substantial proportionality mean. We have a

9 number who feel that it means less than one

10 percent, which I think most of us would agree

11 that\'s not substantial proportionality.

12 That\'s something very higher than that. There

13 may be others who have had different experiences.

14 I think we ought to have something in there about

15 what the practice has been.

16 MR. LELAND: I think there is a

17 consensus after this conversation that we ought

18 to \-- I think we can couch it saying there is a

19 confusion among the practitioners because we

20 happen to be practitioners. I\'m sure there might

21 be an answer for it somewhere.

22 Do you have an answer?

23 MS. FOUDY: It\'s not in the part that

24 he has.

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1 MR. REYNOLDS: I have a letter, but

2 not the examples that were attached.

3 MR. LELAND: Okay. See, I would have

4 thought the Cantu letter said five percent

5 participation variance and one percent scholarship

6 variance. That\'s how crazy I am. That\'s what I

7 thought.

8 MR. REYNOLDS: Oh, not the five

9 percent.

10 MR. LELAND: Well, that\'s my humble

11 little memory.

12 MS. FOUDY: There\'s one behind us.

13 MR. LELAND: We hate to have the

14 facts here.

15 All right. Any other thoughts

16 while we wait for this? I don\'t think it should

17 cause an uproar if we find out one way or another.

18 I want to adjourn before I\'m proven wrong for one

19 thing.

20 Any other thoughts on findings?

21 We\'re going to meet again tomorrow morning on the \--

22 yes?

23 MS. GROTH: I don\'t know if this is

24 possible, but is there any way that we can get a

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1 copy of our findings tonight just to read or when

2 we leave tomorrow so we can \--

3 MS. COOPER: No.

4 MS. GROTH: Just what we decided

5 today?

6 MR. SPANIER: Well, this is all

7 supposed to go to some subcommittee that was

8 decided on in San Diego who is going to now,

9 between the staff and some subgroup of

10 commissioners, write up \--

11 MR. LELAND: We\'ve asked them too

12 much to \-- they are going to have to refer to the

13 transcripts. We are asking for too much. It was

14 a good question, though. We love good questions.

15 MS. COOPER: If we have more findings,

16 can we submit them?

17 MR. LELAND: Yes.

18 MS. COOPER: If we have other\'s

19 findings, if we go home and we think of something,

20 can we \--

21 MR. LELAND: Yes. Let\'s get as many

22 of them done by tomorrow as we can.

23 Any other thoughts for the good of

24 the cause? All right. Thanks for your patience on

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1 our little disorganization at the start. I thought

2 we made a lot of progress.

3 MR. BATES: Can we leave our materials

4 here in this room?

5 MS. PRICE: We will be in a different

6 room tomorrow. You will need to take them with you

7 tonight.

8 MR. BATES: Sorry. They\'ve got to go.

9 All right.

10 MS. COOPER: Okay. We\'re going to

11 kind of go over what we are doing tomorrow. I

12 don\'t have my papers in front of me, but Secretary

13 Paige will be here tomorrow and I hope everyone is

14 listening because I\'m not repeating. So we\'re

15 going to pretty much follow the same format.

16 So 9:00 o\'clock is opening

17 statements and we\'re going to follow the same

18 format that we did today in the sense that we\'re

19 going to go down the list of questions to discuss

20 different recommendations.

21 Secretary Paige will be here.

22 He is going to come in and he is going to observe \--

23 observe for a little while and then around \--

24 MS. PRICE: He\'ll arrive \-- his plane

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1 doesn\'t get in until nine something. He\'ll arrive

2 after we\'ve started. He\'ll just come up and sit

3 down. When we have our break, he will come back.

4 Cynthia will introduce him and he will have some

5 opening comments, but not to interrupt the dialogue

6 we have going, he will sit and watch until we have

7 the break. He will then come back and make some

8 comments. Primarily, he is here \-- he is taking

9 the role of you all. He is basically here as a

10 listener to observe and see the Commission.

11 MS. COOPER: Any questions? Good.

12 MR. BATES: See you at 9:00.

13 MS. COOPER: I think we are adjourned.

14 I think Ted\'s little nnnng-nnnng meant that we are

15 adjourned.

16

17 (Whereupon, the proceedings in

18 the above-entitled cause were

19 adjourned, to be reconvened

20 on Wednesday, December 4,

21 2002, at 9:00 o\'clock a.m.)

22

23

24

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1 STATE OF ILLINOIS )

) SS.

2 COUNTY OF C O O K )

3

4 I, LORI ANN ASAUSKAS, a notary

5 public within and for the County of Cook and State

6 of Illinois, do hereby certify that heretofore,

7 to-wit, on the 3rd day of December, A.D., 2002,

8 personally appeared before me at Marriott

9 Philadelphia, 1201 Market Street, in the City of

10 Philadelphia, State of Pennsylvania, The Secretary

11 of Education\'s Commission on Opportunity in

12 Athletics, Chicago Town Hall Meeting, called by the

13 United States Department of Education is a certain

14 cause now pending and undetermined before the

15 appointed Commission.

16 I further certify that the said

17 testimony was by me reduced to writing by means of

18 shorthand in the presence of said Commission and

19 afterwards transcribed upon a computer, and the

20 foregoing is a true and correct transcript of the

21 testimony so given as aforesaid.

22 I further certify that the taking

23 of the proceedings were pursuant to public notice,

24 and that there were present at the taking of the

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1 proceedings were the aforementioned parties.

2 I further certify that I am not

3 counsel for nor in any way related to any of the

4 parties in these proceedings, nor am I in any way

5 interested in the outcome thereof.

6 In testimony whereof I have

7 hereunto set my hand and affixed my notarial seal

8 this 9th day of December, A.D., 2002.

9

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LORI ANN ASAUSKAS, CSR, RPR.

11 Notary Public, Cook County, IL

Illinois License No. 084-002890

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L.A. REPORTING (312) 419-9292