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 - SALONS A & B

7 PHILADELPHIA, PA 19107

8 (215) 625-2800

9

10

11 TRANSCRIPT OF PROCEEDINGS

12 DECEMBER 4, 2002

13 9:00 o\'clock a.m.

14 WEDNESDAY

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

L.A. REPORTING (312) 419-9292

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1 MS. COOPER: Would the commissioners

2 please come forward. We\'re ready to get started

3 just as soon as the commissioners can take their

4 seats and get ready. Let\'s do that now, please.

5 Good morning. Welcome today

6 to our Philadelphia meeting. I am Cynthia Cooper

7 along with Ted Leland. I serve as co-chair of

8 the Commission.

9 We have a very busy day ahead

10 of us. This morning, we will begin to develop

11 our recommendations.

12 This morning we will also hear

13 from Secretary Rod Paige, who will join us shortly.

14 When he arrives, the secretary will sit with us

15 and listen to our deliberations. Then, following

16 the break, he will make remarks to the Commission

17 and he will not be accepting questions if I\'m

18 correct. He is just observing. He is here to

19 observe and he will make his remarks after we

20 come back from the break.

21 Before we begin, let me

22 outline the process we will use today to develop

23 our recommendations. Our process will be a bit

24 different than yesterday. Ted and I decided to

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1 revise the process in order to ensure that all

2 commissioners, including those who have to leave

3 early, have an opportunity to present their

4 recommendations.

5 Our process will be this:

6 Starting with the co-chairs, each commissioner

7 will present their top recommendation. Starting

8 with the co-chairs, each commissioner will

9 present their top recommendation.

10 The commissioners will discuss

11 each recommendation. We will try to determine

12 whether the recommendation has the support of

13 the Commission and if so, we will bring the

14 recommendation to our January meeting in Washington

15 to vote on it there.

16 We will \-- after we have gone

17 around the table once, we will repeat the process.

18 Each commissioner will be asked to present another

19 recommendation and there is a soft time limit of

20 about five minutes. So we just want to be mindful

21 of that, that there was a soft time limit, and

22 then we will then move on to the next

23 recommendation.

24 We should be mindful that each

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1 recommendation should address the seven questions

2 in our charter. Just be mindful that I know there

3 is a lot of crossover and there\'s \-- you know, in

4 indirect ways, they will address the seven

5 questions, but we just kind of want to keep in

6 mind that we are to make recommendations on the

7 seven questions.

8 At this point, I want to open

9 it up for any questions from the commissioners

10 on anything that I have said.

11 MS. GROTH: Cynthia, yesterday

12 towards the end of the meeting, it was clear

13 that many of us weren\'t very clear on the

14 three-prong test. We dug through our cases

15 and tried to find a copy and had many questions.

16 I\'m wondering if it wouldn\'t be appropriate,

17 and I made copies for everybody on the three

18 prongs, since we are going to be potentially

19 making recommendations on a 30-year old law,

20 that perhaps we should take some time this morning

21 and talk a little bit and review the three-part test

22 so that we all understand it.

23 I don\'t know if that should

24 come from the OCR staff, who can walk us through

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1 with the examples or not. I don\'t know if you

2 felt like I did yesterday, but I walked out of

3 here and thought we didn\'t have the appropriate

4 material and then, furthermore, we were all a

5 little bit confused. We didn\'t know if it was

6 one percent, five percent, if there were examples

7 or if there weren\'t examples. So if that\'s okay

8 with you, maybe we could do that.

9 MS. COOPER: We have five minutes.

10 Jerry, why don\'t you start?

11 MR. REYNOLDS: Okay.

12 MS. COOPER: And speak into the mic.

13 MR. REYNOLDS: Yes. I remember your

14 order from the order yesterday.

15 Okay. I guess this is a good

16 opportunity to announce that Julie was right

17 yesterday. We were discussing the issue \-- I

18 started discussing variance, whether there was

19 such an animal.

20 In a practical \-- in the

21 day-to-day activities of OCR, there is a rule

22 of thumb basically, the lower the better, but

23 a little reading of the example to include it

24 in the three-part test leads me to conclude

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1 that there isn\'t a percentage variance.

2 Basically, we start off with

3 what the \-- the goal is to hit the number, to

4 match up the participation opportunities with

5 the enrollment rate and if there is a variance,

6 to find out whether a school is in compliance,

7 you just count the number of students.

8 Basically, if it\'s three

9 percent, if you have a program of, say, 600

10 athletes and 300 are women and there is a two

11 percent variance, you just do the multiplication

12 and if there is enough students, enough students

13 who have an interest and ability and if there

14 are \-- if there is competition in that area,

15 then, you will be held to be out of compliance.

16 Anyway, I think that after

17 getting away from that, I think that it will

18 be helpful if people would ask questions and

19 I will do the best I can to answer questions.

20 Is there anything specific on the minds of

21 commissioners?

22 MS. COOPER: So there is a \--

23 MR. BATES: Yes.

24 MS. COOPER: Go ahead.

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1 MR. BATES: I\'m sorry. I just

2 want to know when we talk about proportionality

3 and scholarships, what are the percentages that

4 we are \-- that we\'re talking about with the

5 variance?

6 MR. REYNOLDS: With respect to

7 scholarships, it\'s \-- you are presumed to be

8 in compliance if the variance is one percent

9 or less. That\'s with respect to scholarships.

10 That\'s not the case in determining compliance

11 outside of that framework.

12 MR. LELAND: That\'s one percent

13 variance scholarship ratio versus participation

14 of athlete ratio, not student body ratio, is

15 that correct?

16 MR. REYNOLDS: That\'s correct.

17 MR. LELAND: Okay. Let me just

18 make a comment. I talked to Cary a little bit

19 before this. I didn\'t feel embarrassed by the

20 fact that we didn\'t know exactly the formula

21 requirements for proportionality because to me,

22 it was confirming the issue of the confusion.

23 There is confusion.

24 We \-- I think some of the

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1 people represented here have some of the best

2 women\'s programs in the country and have worked

3 hard to comply with Title IX and spend every

4 day trying to \-- as part of their day trying

5 to do that. So I think the fact that we were

6 confused is an example of the need for

7 clarification.

8 I want to expand it just a

9 little bit because of the \-- if you get in our

10 situation, you get, you know, opinions from

11 sort of OCR documents. You get opinions sort

12 of word-of-mouth about OCR decisions in different

13 areas.

14 You get \-- NCAA will give you

15 different opinions and somebody\'s certification

16 will give you different opinions. NCAA guides \--

17 you get guides from the NCAA on how to meet Title

18 IX. You also go to seminars by Title IX. You

19 have on-campus Title IX committees. We have

20 consultants out there.

21 I mean, there are all of these

22 people sort of bombarding us with information and

23 in the end, nobody really knows \-- not nobody,

24 but a lot of people who are actually making these

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1 decisions don\'t know the day-to-day facts of the

2 case. So I think it just argues \-- I didn\'t feel

3 embarrassed. I felt confirmed by the fact that we

4 were all confused.

5 MR. REYNOLDS: Well, Ted, you

6 raise a good point. I think that there has

7 been a vacuum. I think that OCR needs to do

8 a better job of getting out there and being

9 the official repository of knowledge.

10 We have a whole host of groups

11 out there talking about what the standard is and

12 so I can \-- as I told one of the ADs here, I

13 appreciate the difficult job that ADs have in

14 terms of coming into compliance, but I think

15 that throughout the town hall meetings, people

16 have criticized the Office of Civil Rights and

17 some of the criticism is grounded, in fact.

18 I think that we have to do a

19 better job and hopefully, after we come up with

20 our recommendations, that those recommendations

21 could help guide the process.

22 The process is already

23 underway at OCR in terms of doing a better job

24 of articulating what the policy is and disseminating

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1 information, but I hope that we get some additional

2 recommendations that we can use to alter our

3 practices.

4 MS. GROTH: Ted, because of all of

5 those reasons and all of those people that you

6 mentioned or groups that you mentioned with the

7 different interpretations or opinions about the

8 three-part test, that\'s why I thought perhaps it

9 would be best if we just walked through what it

10 is.

11 You know, what is \-- what are

12 the interpretations through the 1996 letter so

13 that as we move forward this morning, we all are

14 starting from the same place because we do have

15 all of those opinions that have been given to

16 us over the years or whatever the case may be.

17 MS. COOPER: Cary, I don\'t think

18 we have time to walk through the document

19 piece-by-piece.

20 MR. SPANIER: We don\'t even have a

21 document.

22 MR. REYNOLDS: Well, we could \-- I

23 agree, Cynthia, that if we want to analyze the

24 three-part test, then, we\'re talking a good chunk

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1 of time here. Just with the first proportionality

2 prong, there are a whole host of issues lined up

3 with it. We can ask whether that is the appropriate

4 pool for substantial proportionality.

5 It says substantial

6 proportionality, but how it works in a practical

7 sense, is that closer to strict proportionality?

8 We can get \-- we can have some great conversations

9 about this and we have. We have discussed a lot

10 of the issues.

11 I\'m also concerned that we

12 haven\'t spent enough time talking about prong two.

13 One issue that concerns me is if a school has done

14 a bad job in the past of complying with Title IX,

15 should successor ADs be penalized for the

16 discriminatory conduct of ADs \-- of previous ADs and

17 you have to show continuous progress. If

18 there is a gap, you have difficulty coming into

19 compliance with prong two.

20 MS. COOPER: Jerry \--

21 MS. GROTH: Jerry, I think what \--

22 oh, go ahead, Cynthia.

23 MS. COOPER: I just want to cut this

24 off because I think a lot of this conversation and

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1 a lot of these points will be brought up within the

2 recommendations and the discussions that we will

3 have after our \-- after each person\'s recommendation

4 is presented. So I just want to stop this right

5 here.

6 MR. SPANIER: Can I just say

7 something?

8 MS. COOPER: Yes, of course.

9 MR. SPANIER: I just want to say I

10 would like for us \-- I want to make another pitch,

11 as I did a couple of times yesterday, for us to

12 take the big picture here into consideration.

13 Rather than focus on each individual recommendation

14 and hammer that to death, can we create some larger

15 vision of what we would like to see happen?

16 I think given all of the

17 testimony that we have heard and all the discussion

18 we had yesterday, we should be thinking about the

19 possibility of a new clarification letter. I think

20 what the new letter \-- what such a new letter would

21 say if one were to be issued would be much more

22 important to talk about than what the different

23 opinions are about what an old letter said.

24 I asked the question yesterday,

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1 at any time leading up to the 1979 determination

2 was there a discussion of other prongs or other

3 tests? I think that\'s an interesting question and

4 should there be.

5 Secondly, I think it should be \--

6 it could be very important to explore not just here

7 are a few ways and you pick one and meet that test,

8 the world isn\'t that simple often. If a school were

9 30 percentage points off in their equity ratios, but

10 had added three years ago women\'s Equestrian, should

11 that now make them compliant? I\'m not sure I would

12 buy that just because they have made some progress

13 recently. What were they doing the last 20 years?

14 Maybe they ought to be making a lot more progress

15 a lot more quickly.

16 I think \-- I would suggest that

17 we talk about getting into a zone where you look

18 at a balance of demonstration that you are in

19 compliance. Maybe the question shouldn\'t be is

20 one or three or five percent the right difference.

21 One or three or five percent might have to do

22 with how you are doing on the other two prongs

23 or some other prongs that we haven\'t talked about.

24 Am I making any sense? I

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1 think \--

2 MS. COOPER: Yes, you are making

3 sense.

4 MR. SPANIER: \-- that \-- I just

5 hope we have that discussion because if we just

6 do each individual recommendation and somebody

7 says, well, let\'s change one percent to five

8 percent, let\'s clarify how \-- what surveys of

9 interest and abilities would be, let\'s put a

10 time element on what it means to be making

11 progress towards equity. You have a sport \--

12 you know, to give more specificity to that,

13 I\'m not sure if that provides the right long-term

14 impetus for enhancing Opportunity in Athletics.

15 MS. COOPER: Okay. And we can \--

16 MS. FOUDY: Cynthia, can I just say

17 something real quick?

18 I agree, Graham, that, you know,

19 looking forward and looking at things that we can

20 help and big picture recommendations, but I also

21 think at the same time we have to be careful that,

22 you know, we don\'t repeat some of the same mistakes

23 by not knowing what the prior mistakes were, by

24 not understanding the issues.

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1 It would be like the analogy of

2 if you\'re on the diving board and you\'re jumping

3 off and then you realize you don\'t know how to

4 swim when you are in the air. I think that we

5 just have to be careful that if we\'re going to

6 make changes, that we understand the implications

7 of such and understand what has come before us

8 because it\'s been around for 30 years and we can\'t

9 deny that history and just have an understanding

10 of that as well as looking forward because I would

11 hate to make some of the same mistakes again and

12 find ourselves having another Commission in, you

13 know, in six months.

14 MR. SPANIER: I agree with that

15 and I \-- you know, my thinking is there is no

16 way this committee in a matter of a couple

17 weeks is going to be able to collectively write

18 a ten-page document, maybe the next one has to

19 be even longer, that clarifies everything.

20 I think part of what we need

21 to do is to \-- I mean, it\'s not our authority

22 to do this, but give the staff or request the

23 secretary of education or the Office of Civil

24 Rights to give them a mandate or encouragement

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1 to do a new letter that deals with all of the

2 things that we have been talking about and may

3 still yet talk about.

4 MR. LELAND: I think we \-- we need

5 to \-- we have sort of committed ourselves to a

6 process here. I think both what Julie is concerned

7 about and, Graham, what you are concerned about

8 and, Cary, can be formulated, and I challenge you

9 to formulate it in terms of what recommendations you

10 might make. They don\'t have to be a short-term

11 practical day-to-day recommendation of the change

12 in percentage or something, they could be more

13 global type of recommendations like Graham is

14 interested in.

15 The vehicle for you guys to

16 voice your concerns is sort of a recommendation

17 process. That\'s the way I think Cynthia and I

18 would like to go forward and then we will see

19 where we are in the end. I think there is \--

20 I\'m agreeing with everybody, yet at the same

21 time, we have a deadline. We didn\'t set the

22 deadline. The deadline was set for us. We

23 need to get on with the business.

24 I think we need to \-- we

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1 need to challenge you guys to figure out a way

2 to get your concerns down in the form of some

3 kind of a recommendation for government action

4 as opposed to us stopping the process right

5 now and spending all day discussing some of

6 these issues, which we have discussed a number

7 of times.

8 MR. BOWLSBY: Ted, when do we \--

9 obviously, we can\'t adopt everybody\'s

10 recommendation. Some may be at odds with one

11 another. Some are just in a vacuum and are

12 not things we just would not like to adopt in

13 the majority. When do we discuss those?

14 MR. LELAND: Well, I think Cynthia

15 and my idea was today, we would go around, you

16 know, and based it sort of on where you are

17 sitting and try to be as fair to all the

18 commissioners as we can to ask for your

19 recommendations.

20 If there is some support

21 from other commissioners for your recommendations

22 as in, i.e., one or two other people, then, we\'ll

23 ask the staff to write that recommendation up and

24 then present it to us in front of \-- before the

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1 January meeting so we all have a chance to read

2 them and then the idea would be that we would

3 have a vote on those recommendations.

4 If they are conflicting or

5 whatever, we\'ll have to work that out as we

6 worked through the proposals. So my thought

7 was I would \-- if I start out, Cynthia said

8 we\'re going to start it. If I start out, I\'ll

9 make a proposal, we\'ll discuss for five minutes,

10 and if there is any support for that, we\'ll \--

11 and it can be a very practical one.

12 Change one percent to two

13 percent. It could be very global. We should

14 worry about the big issues. We should talk

15 about whether there are really three prongs

16 or should there be four of them? You can

17 handle your recommendations in any way.

18 If there is support for

19 that recommendation, the staff writes it up,

20 gets it to us, we discuss it when we get it

21 back in January. Hopefully, it is a

22 knowledgeable discussion. Then we go ahead

23 and vote it up or down.

24 That\'s the process we are

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1 looking at. We have to \-- if we are going

2 to have recommendations \-- we don\'t have to

3 have recommendations, but we have to have

4 findings. We did that \-- we got our draft,

5 we hope, done yesterday of that.

6 Now, today was the day

7 we had set aside for trying to go through

8 recommendations. I have a feeling people

9 want to recommend more practical or global

10 looks at this issue.

11 MS. COOPER: Okay. Is that

12 okay?

13 MR. LELAND: Yes.

14 MR. COOPER: I just want to make

15 sure that, Julie, I don\'t know if you were in

16 here when we discussed that we are going to go

17 around the table and we\'re going to \-- we\'re

18 going to tell everyone, for lack of a better

19 phrase, our top recommendation. Did you hear

20 that part?

21 MS. FOUDY: No.

22 MS. COOPER: All right.

23 MS. FOUDY: No, I didn\'t. I\'m

24 sorry.

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1 MS. COOPER: Do you want me to go

2 back over it?

3 MS. FOUDY: No. Tom would like

4 to hear it again too.

5 MR. COOPER: I just want to get \--

6 Tom, you want to hear it again too?

7 MR. GRIFFITH: Yes.

8 MS. COOPER: I said before we begin,

9 let me outline our process. Our process would be

10 a bit different than yesterday. Ted and I decided

11 to revise the process in order to ensure that all

12 commissioners, including those who have to leave

13 early, have an opportunity to present their

14 recommendations. Starting with the co-chairs,

15 each commissioner will present their top

16 recommendation.

17 That\'s what was said. Okay?

18 MS. FOUDY: Okay.

19 MS. COOPER: And then we will go

20 around and then we will go around a second time

21 and so on and so forth. Okay?

22 MR. GRIFFITH: I just want to

23 make \-- this may sound like I\'m nitpicking.

24 You said that yesterday, we came up with a draft

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1 of the findings. I think I was saying several

2 times yesterday that\'s not what my understanding

3 of what yesterday was. I mean, there were a lot

4 of things that went by that I wouldn\'t want to

5 be in a first draft of the findings.

6 I thought what we were about

7 was people getting out on the table what their

8 proposed findings would be without us getting

9 into detailed discussions on each proposed

10 finding whether that would be, you know, part

11 of the drafts. I may be splitting hairs.

12 MR. LELAND: No, no. I agree,

13 Tom.

14 MR. GRIFFITH: Okay.

15 MR. LELAND: You are correct. I

16 stand corrected. Let\'s be very, very clear that

17 what comes out of yesterday\'s discussion is just

18 sort of a document that we\'re going to continue

19 to chew on, but it doesn\'t represent any kind of

20 consensus or any kind of position or any kind of

21 draft. I apologize for giving you the wrong

22 impression.

23 MR. COOPER: Do you want to start?

24 We need to get moving.

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1 MR. LELAND: Yes. I\'ll start this.

2 I think we were going to try to keep each one

3 to \-- oh, thank you. He\'s complimenting me,

4 thanking me for starting.

5 My first recommendation is

6 that the department \-- the OCR consider an

7 alternative way of measuring participation

8 opportunities and that is instead of having a

9 definition of a participant or an opportunity

10 as a participant who is on the squad the first

11 day of competition, that we would have an

12 alternate way to do it.

13 I don\'t think this is in lieu

14 of. I think this is in addition to because many

15 people are \-- have invested lots of money in

16 the old system of \-- in the present system of

17 measuring student athlete participation and

18 basic proportionality formulas on the number

19 of student athletes the first day of competition

20 on the squad list.

21 I would like to see an

22 alternative way to do that, which would be to

23 set an arbitrary number for each particular

24 sport. For instance, soccer might be 20 for

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1 men and 20 for women and you add up the number

2 of sports that you offer and instead of plugging

3 in the number of student athletes on the squad

4 list the first day, you plug in that number

5 that is assigned to that sport.

6 Now, there is John Parry from

7 Butler who suggested this \-- suggested that we

8 have sort of a professional staff sit down and

9 say, gee, this is how many people should be on

10 a rowing team, this is how many people should

11 be on a soccer team.

12 My thought would be to use

13 the average number of participants in the NCAA

14 statistics so if you had soccer and the average

15 number of soccer players was 21, you would use

16 21 and you add that up and that\'s how you measure

17 your compliance with the proportionality as

18 opposed to you add up the men and you add up the

19 women and you compare the percentages versus the

20 percentages of \-- in the student body and that

21 gives the school an alternative way to measure.

22 The thing that this does in

23 my mind is that it eliminates the need to cap

24 men\'s sports, which I think we are all struggling

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1 for a way to figure out how to do that without

2 taking away from the power and influence of Title

3 IX, and it also eliminates what I consider false

4 opportunities for women, which is sports teams

5 that bloat the number of women up on their roster

6 the first day knowing that in the end that those

7 student athletes probably don\'t have a chance to

8 compete, don\'t have access to coaching, might not

9 even have access to facilities, but they are on

10 the chart the first day.

11 So that\'s my proposal. Again,

12 I see it as an alternative. It\'s a suggestion

13 to the Office of Civil Rights that they look at

14 that as a model for an alternative way of meeting

15 proportionality as opposed to the present way.

16 Again, I don\'t see it in lieu of

17 the old system because I know there are people \--

18 schools that have bought into the old system and

19 the present system, which means they want to have

20 100 and some women\'s rowers, they want to have a lot

21 of female participants and they want to cap the

22 men\'s and that\'s how they do it.

23 For those of us who don\'t want

24 to cap the men and don\'t want to create false

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1 opportunities for women, this is another way for

2 us to do it. So that\'s it.

3 MR. GRIFFITH: Do we discuss that?

4 MR. LELAND: Yes.

5 MR. GRIFFITH: I think we\'re going to

6 want to have discussion on this.

7 MR. SPANIER: Well, I think that\'s

8 an excellent suggestion. I would like to be

9 supportive of that with one caveat. I think

10 the methodology for establishing that number

11 needs to be carefully thought out rather than

12 just taking a current snapshot of what exists

13 because the current snapshot would reveal some

14 of the tricks that you have identified that

15 some programs have used and they wouldn\'t

16 necessarily be very good numbers.

17 Now, maybe if you averaged

18 them over a thousand different schools, you

19 could find it. But I think what makes more sense

20 is the process of getting there where there would

21 be at least some degree of consultation because

22 in the end, a policy is going to be better if a

23 lot of people buy in.

24 MR. LELAND: Right.

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1 MR. SPANIER: I mean, if you give

2 the coaches some input, I mean, if you give a

3 soccer coach or the soccer coach\'s organization

4 a chance to say, well, you know, we\'ve all talked

5 about it and we think 20 is the right number as

6 opposed to having just done the calculation and

7 finding out it\'s 17.2 or 23.1 or something.

8 Of course, in the end, it\'s

9 going to have to match up somehow with all the

10 NCAA rules and \--

11 MR. LELAND: Right.

12 MR. SPANIER: \-- it would be nice

13 if the NCAA and it\'s governing system had a chance

14 to say, yeah, we\'ve looked at your proposed numbers

15 and we think they are all okay except these two out

16 here are not how we do it.

17 So that\'s a technical thing

18 and if we were to have such a recommendation,

19 I would simply suggest that part of the wording

20 be that there could be some process that would

21 determine \--

22 MR. LELAND: To determine the number,

23 yeah, I\'m fine with that as a \--

24 MR. SPANIER: \-- what the sufficient

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1 numbers are, but I think the idea is very good.

2 MR. GRIFFITH: Could you explain to

3 me how it works again? I\'m sorry. I just don\'t

4 quite catch it.

5 MR. LELAND: Well, right now what

6 you do to determine the \-- your proportion numbers

7 for participation opportunities is you add up the

8 number of athletes on the squad list the first day

9 of competition.

10 MR. GRIFFITH: Right.

11 MR. LELAND: And that\'s, in effect,

12 so we don\'t measure opportunity. We measure

13 actual participation \--

14 MR. GRIFFITH: Right.

15 MR. LELAND: \-- defined by the first

16 day.

17 MR. GRIFFITH: I\'ve gotcha.

18 MR. LELAND: And I\'m just saying,

19 you know, if you did a number of opportunities \--

20 I mean, the one I thought was a heart rendering

21 story that we heard in Atlanta that sort of started

22 this off was the story of a Division III school

23 that had so many swimmers and some women swimmers

24 quit in the morning and they had to kick men

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28

1 swimmers off in the afternoon. I thought that

2 was \-- I mean, I think all of us were sort of

3 horrified by that and how Title IX got twisted into

4 that kind of outcome; this is a way where you

5 wouldn\'t have to do that.

6 MR. GRIFFITH: It\'s just a different

7 way of counting student athletes.

8 MR. LELAND: Yes. It\'s a different

9 way of \-- oh, you would be counting. In my opinion,

10 you would be counting sort of opportunities as

11 opposed to actual participation.

12 MR. GRIFFITH: And you would go

13 to some neutral source to determine what the

14 appropriate number is?

15 MR. LELAND: Yes. And that\'s why

16 I took Graham\'s advice as a friendly amendment.

17 MR. GRIFFITH: Okay.

18 MS. FOUDY: So if you set a number,

19 your average, then, and you get twice as many that

20 come out and the coach wants to keep them, then,

21 you just count the average number?

22 MR. LELAND: Yes. I mean, if you

23 ended up \-- for instance, we had this at our

24 school for the last, you know, let\'s say, ten

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29

1 years running.

2 We\'ve had 15 or 16 men\'s

3 basketball players and we give 13 scholarships.

4 You\'ve got ten, 11 or 12 women\'s basketball

5 players and we get 15 scholarships. Title IX

6 would say, you know, if you had the proportionality,

7 we have a proportionality problem there even though

8 we budget more scholarships, we just carry less

9 women on the team because sort of the nature of the

10 thing and the thought would be you would count 15

11 for men\'s basketball and 15 for women\'s and then

12 the vicissitudes and the changes in the day-to-day

13 composition of the team wouldn\'t affect your

14 balance.

15 Now, you would also have to

16 meet the second part of the test as you indicated

17 yesterday in terms of, you know, uniform

18 scholarships, financial resources put into the

19 program. My interpretation is you couldn\'t \--

20 if you had a crazy men\'s soccer coach who wanted

21 to keep 40 men and your women\'s soccer coach only

22 wanted to keep 20, you couldn\'t double the men\'s

23 budget and have twice as many games. You would have

24 to make it equal and the sort of laundry list would

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1 have to be equal.

2 MS. GROTH: Ted, one more question

3 for clarification. Using the example of soccer,

4 if you set the opportunities at 30 for men\'s

5 soccer and women\'s soccer \--

6 MR. LELAND: Uh-huh.

7 MS. GROTH: \-- but you had 25 women

8 and 45 men, you would still just count 30?

9 MR. LELAND: Yes.

10 MS. GROTH: You wouldn\'t count the \--

11 MR. SPANIER: Thirty of the men, but

12 only 25 of the women.

13 MR. LELAND: No. I would think you

14 would count 30 of both.

15 MR. DeFILIPPO: She is saying it falls

16 short of the 30 for the women.

17 MS. GROTH: Right.

18 MR. LELAND: No. But I\'m saying

19 even if they fall short, you just add up the sports

20 you \-- that\'s my concept. Now, it may be flawed

21 and I can\'t imagine you would have the scenario

22 you just laid out; 45 and 25. That doesn\'t seem

23 to \--

24 MR. DeFILIPPO: I think he is

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31

1 counting opportunities. Isn\'t that what you are

2 counting instead of heads?

3 MR. LELAND: I\'m not counting

4 opportunities. I\'m not counting heads. You

5 don\'t have to go out there and kick kids off

6 the team or add false opportunities for women

7 simply to meet Title IX goals. You have a set

8 of \-- now, what this would mean on a practical

9 sense for a lot of schools, you have to add

10 sports for women. That\'s what\'s going to

11 happen.

12 MS. FOUDY: My only concern with

13 that is you are not \-- if all else were equal,

14 like, budgets for recruiting, budgets \-- going

15 out and getting players to come to the school,

16 then, okay, but now you\'re counting empty slots

17 and what are the reasons \-- I mean, perhaps the

18 reason that some of those slots are empty

19 is because only 30 percent of the recruiting

20 budget was spent on recruiting women. So they

21 didn\'t find the best players to come necessarily

22 to that school yet you are still counting it as

23 an opportunity slot when that woman really wasn\'t

24 given a fair opportunity to come as a recruit,

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1 if that makes sense.

2 MR. LELAND: Yes, I understand.

3 I think my system, you know, what I am suggesting

4 isn\'t all that well thought out and it certainly

5 is imperfect. My argument is the present system

6 is certainly imperfect as I watch it \--

7 MS. FOUDY: Right.

8 MR. LELAND: \-- because we

9 aren\'t measuring opportunity, we are measuring

10 participation and there are ways that flex with

11 the system as is presently done that does, in

12 my opinion, allow for a couple of uses.

13 MR. REYNOLDS: Excuse me, Ted,

14 looking at Julie\'s example, the fact that the

15 women would have a lower recruiting budget,

16 that in and of itself would be a violation

17 under your proposed plan.

18 MR. LELAND: I think you still

19 have to meet the \--

20 MR. REYNOLDS: The laundry list.

21 MR. LELAND: \-- I take

22 particular \-- I\'m not sure about the recruiting

23 budget issue. That\'s always been one that\'s \--

24 for me, that\'s a side issue. In terms of uniforms,

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1 quality facilities and all that other stuff, I

2 think in coaching, coaching salaries, et cetera,

3 I think, yeah, you would have to be \-- you would

4 have to meet the second part of that \--

5 MR. REYNOLDS: Uh-huh.

6 MR. LELAND: \-- kind of which means

7 provide equal services \-- goods and services to

8 the students.

9 MR. REYNOLDS: So, Julie, you believe

10 that it would be unfair if a school \-- if there were

11 empty slots because a school did not put in the

12 efforts to get female athletes?

13 MS. FOUDY: Right. And then you are

14 counting these empty slots when really \--

15 MR. REYNOLDS: When you didn\'t do

16 what you should have done to fill those slots?

17 MS. FOUDY: Right, which is what

18 the numbers are showing us right now. There is

19 only 30 \-- I think it\'s 32 or 33 percent is

20 being spent on women in the entire recruiting

21 budget.

22 MR. LELAND: Well, that\'s it.

23 MS. COOPER: My turn?

24 MR. LELAND: Do we need somebody

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34

1 to \-- I think what we thought last night is we

2 would see if anybody would like to see this

3 proposal of mine, elaborated by staff and presented

4 in January. I think we need a show of hands. Now,

5 you\'re not voting for it. You\'re just voting

6 to take the next step and look at it. Okay?

7 Okay. That\'s good. We just

8 want to make sure there are at least two or

9 three or four commissioners who thought it was

10 worth the staff\'s time to go ahead and take

11 this to the next step, which is sort of to

12 think about it and write it up.

13 MR. BATES: Ted, at least for me,

14 it\'s the kind of thing I would like to think

15 about and it might help to see it fleshed out

16 a little bit more.

17 MS. COOPER: Okay. I heard \--

18 we\'ve heard a lot about surveys. I\'m just

19 going to jump right into this. I think OCR

20 should conduct surveys to determine actual

21 interest levels. Instead of presuming that

22 enrollment figures are a close proximity for

23 interest, the department should consider

24 requiring colleges to conduct a survey of the

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35

1 students on a periodic basis to determine the

2 interest and abilities of its male and female

3 students. I will cite LSU as an example.

4 MR. REYNOLDS: I think that OCR

5 should look into it. I\'m not convinced yet

6 that it\'s feasible, but I think that there is

7 no good reason why we shouldn\'t look into it.

8 Right now, we do presume that enrollment is a

9 close proxy for interest. I think that interest

10 varies from campus to campus. I think that it\'s

11 clear that there has been increasing interest

12 on the women\'s side of the ledger over the years

13 and if we would have a regular survey \-- require

14 schools to do regular surveys, we could capture

15 the changing interests in participating in

16 athletics. I think it\'s a good idea to look into

17 it.

18 DR. SIMON: Cynthia, this is one

19 of my major \-- would be one of my major

20 recommendations, that we not only do surveys of

21 interest, but surveys at the high school level

22 and we have them on participation rates and of

23 interest rates as people are coming into the

24 universities and I have taken notes and I can

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36

1 talk about that afterwards about where \-- which

2 schools you conduct those surveys in and how you

3 conduct them.

4 I would say one thing, we have

5 expert national survey associations. Why have

6 OCR do it? Why don\'t you have National Opinion

7 Research Center at the University of Chicago,

8 for example, run the surveyor or some other \--

9 the Roper Center or something like that so that

10 there is no question that these are independently

11 conducted surveys by experts who have been doing

12 this and doing it very well.

13 I would say that, for example,

14 at state universities, you probably want to do

15 the survey in more of the high schools in the

16 state. For national private universities, you

17 want to find out where do most of the regions

18 in the country do most of the students come

19 from? You might want to do the surveys

20 particularly in those regions.

21 I think we should talk with

22 experts and one of the things that social sciences

23 know about is how to run surveys. Let them do it.

24 MS. GROTH: Cynthia, could you

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37

1 repeat your recommendation one more time for

2 us, please?

3 MS. COOPER: Sure. Conduct surveys

4 to determine actual interest levels instead of

5 presuming that enrollment figures are a close

6 proximity for interest. The department should

7 consider requiring colleges to conduct surveys \--

8 conduct a survey of the students on a periodic

9 basis to determine the interest and abilities

10 of its male and female students.

11 MS. GROTH: I think there is a

12 place for surveys \-- interest surveys, but I

13 think that\'s more in prong three if we are to

14 stay with the prongs. But I think interest

15 and ability surveys, there is a place in prong

16 three, but to replace the enrollment standard

17 with interest surveys, I think, is \-- I wouldn\'t

18 agree with.

19 I was thinking about the

20 interest surveys last night and the interest

21 overall of girls participating and again, we

22 have almost 3 million high school girls

23 participating in sports, yet only 180,000

24 opportunities at the collegiate level. So

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38

1 there is a clear indication that there is

2 interest for girls to participate. There

3 are just not as many opportunities.

4 MS. COOPER: But what \--

5 DR. SIMON: But that\'s wonderful

6 that there is demonstrated interest and let\'s

7 show it. Let\'s highlight it and let\'s show

8 that we\'ve measured it in a reliable and valid

9 manner.

10 I would think that we\'re not

11 taking away from prong one, we\'re simply refining

12 prong one to make it more meaningful.

13 MR. REYNOLDS: Yes. I\'m curious.

14 Why would you like to just limit surveys to prong

15 three? What\'s the rationale for limiting the use

16 of surveys to that prong as opposed to using it

17 in prong one?

18 MS. GROTH: Maybe I would like to

19 switch the question to what\'s the rationale for

20 using surveys in prong one?

21 MR. REYNOLDS: Because enrollment \--

22 using enrollment, it\'s a presumption that may not

23 be grounded in fact. We are right now operating

24 on faith. We are assuming that the interest

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39

1 levels \-- we have pegged it to what may turn out

2 to be an artificial indicator. It could be right,

3 but what is wrong with just doing some research to

4 find out if it\'s right.

5 Now, if the numbers show that

6 enrollment is a close proxy for interest, then,

7 by God, there is no reason to change it. But

8 if the data shows otherwise, why stick with

9 something that the data shows is not right?

10 DR. SIMON: And what data we

11 have suggests that there is not a very strong

12 congruence between interest, prior participation

13 and enrollment. Therefore, it\'s very important

14 that we look at it and get good data.

15 MR. BOWLSBY: This is off the topic

16 of recommendations, but I would like to ask the

17 question I hope somebody here can answer it.

18 In Dr. Kravitz\'s data, it

19 was in Tab D, Page 2, Item 7, there is a reference

20 in there where it says that 5.38 percent of male

21 participants in high school sports go on to find

22 participation opportunities in college. Now, 5.39

23 percent of female participants in high school go on

24 to find opportunities in college.

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40

1 Now, I assume that\'s not \--

2 that\'s participation opportunities, not

3 scholarships, per se. The data would be somewhat

4 skewed by just using the scholarships. It would

5 be skewed in favor of female participants.

6 Do those two numbers for the

7 dumb athletic director that doesn\'t know much

8 about statistics, does that mean that men and

9 women out of the feeder system are almost equally

10 likely to find a post high school participation

11 opportunity?

12 Is that what that means?

13 MR. SPANIER: That\'s the way I

14 read the data.

15 THE COURT REPORTER: I\'m sorry.

16 I can\'t hear you. Would you please use your

17 microphone?

18 MR. SPANIER: I looked at that

19 data pretty carefully and that is how I interpreted

20 them.

21 MR. BOWLSBY: So from that, based

22 upon current numbers, current participation ratios

23 at the collegiate and high school level, males and

24 females are about equally finding participation

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41

1 opportunities at the next level, is that correct?

2 MR. SPANIER: In relation to their

3 high school participation?

4 MR. BOWLSBY: Yes, in relation to the

5 feeder system. Okay. Thank you.

6 MR. LELAND: I would just like

7 to say that I think that \-- gosh, I thought my

8 recommendation was going to be controversial.

9 Cynthia trumped me!

10 The \-- I just \-- what I think

11 Rita and what a lot of people are concerned about

12 is that as we struggle to provide equal opportunity

13 for women and use the present sort of imperfect

14 system that we have to measure proportionality,

15 et cetera, that we \-- if we got on some kind of a

16 general interest measure of participation in post

17 secondary athletics and the numbers ended up being

18 significantly lower, let\'s say, 60 percent of the

19 men were participating and 30 percent of the women

20 were interested in participating \--

21 DR. SIMON: Isn\'t it 58/42 now?

22 MR. LELAND: Yeah. Okay. 58/42.

23 I think there is a concern that would be \-- I

24 would share that concern. That would be a

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1 significant step backward. If we, then, used

2 our sense of fairness, which there are different

3 ways to measure fairness, to change the

4 proportionality requirements to say that now we

5 could satisfy Title IX by being at 42 percent

6 of participants and I just think that\'s \-- to

7 me, that\'s a hard one to say that\'s fair even

8 though you can argue from an interest survey

9 that that might be fair. That\'s just a hard one

10 for me.

11 DR. SIMON: And, Ted, I\'m not

12 saying that we should replace the participation

13 rates in high school or the interest expressed

14 prior to entering college completely, that we

15 should use that data rather than proportionality.

16 I\'m saying we need to find a way of refining

17 proportionality. I\'m not saying take the earlier

18 measures versus proportionality, but we have to,

19 I think, take them into account.

20 MR. LELAND: But I thought from

21 what Jerry said and from what Cynthia said

22 that there was sort of a \-- that was part of

23 the motion, that if we did these interest surveys,

24 there is a potential down the road to replace

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1 the measure of proportionality, the denominator,

2 whatever you call it, which is the percentage of

3 male undergraduates with the percentage of female

4 undergraduates who are interested in participating

5 in sports as identified by some interest survey.

6 That sort of \-- that\'s what scares me. Is that part

7 of it?

8 MR. REYNOLDS: I don\'t think that

9 it would be as simple as that. I don\'t think

10 that \-- well, first of all, it\'s interest and

11 ability. You also have to look at the competition

12 in the region and how the survey is constructed.

13 I wouldn\'t assume that it would be a general

14 survey.

15 I\'m not sure how \-- what the

16 mechanics are or how it would be done, to have no

17 expertise in conducting surveys, but I think that

18 it should \-- it\'s a topic that we should at least

19 explore. I\'m not saying that at the end of the

20 day, it would be a good idea because I don\'t know,

21 but I hear a push back just to the proposition of

22 exploring the idea.

23 DR. SIMON: Ted \--

24 MR. LELAND: We\'ll go with Julie and

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1 we\'ll come back.

2 DR. SIMON: Okay.

3 MS. FOUDY: I know I have been

4 involved in athletics personally and I have

5 clearly a personal interest in this, but I

6 don\'t know if I\'m crazy or if what I\'m hearing

7 is crazy because I just think that it reminds

8 me of the days when women had to prove that

9 they wanted to vote, that women had to prove

10 that they wanted to own property, that women

11 had to prove that they wanted to go to medical

12 school, that women had to prove that they wanted

13 to be lawyers.

14 I think it creates a double

15 standard that now we look at those things that

16 once people probably ask for surveys for now

17 seems ridiculous, but to take us to a day where

18 we say women have to prove there is interest in

19 when we have created a vacuum historically for

20 opportunity, I think is a dangerous thing to go

21 to. I think it is very dangerous.

22 I think you are creating an

23 opportunity to freeze into place that hypocrisy

24 with a survey. The fact that there exists this

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1 thought pattern that we have to prove \-- women

2 have to prove that they are interested to be

3 afforded equal opportunity, in my mind, takes

4 us back many years.

5 MR. REYNOLDS: The characterization \--

6 MR. LELAND: I\'m sorry. Jerry, Rita

7 will be next.

8 DR. SIMON: I\'m completely in favor

9 of equal opportunity for women in sports. I think,

10 however, we have to refine the measures that we

11 use to look at opportunity and I\'m suggesting a

12 regression analysis, which would take into account

13 various factors and you see how much weight each

14 factor has, the interest factor, the prior

15 participation factor, the number of male and female

16 undergraduate students.

17 All of these factors are taken

18 into account and you do a regression analysis in

19 which you see how important each factor is. You

20 don\'t replace the number of male and female

21 undergraduate students with these other factors.

22 You just include them.

23 MS. FOUDY: And, Rita, I mean, I

24 think there is a place for surveys, but to say

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1 that \-- I don\'t know if I read you wrong, but

2 to say \-- if you are saying it\'s not going to

3 replace proportionality, which provides equal

4 opportunity, then \--

5 DR. SIMON: It\'s going to enhance

6 the prong one measure.

7 MR. LELAND: Let us sort of grab

8 a hold of this, at least the organization if we

9 can. Let\'s hear from Jerry and then Graham.

10 MR. REYNOLDS: Well, I guess my

11 first point is that this is not a demand that

12 women prove anything. We would take \-- the

13 survey would apply to men and women on college

14 campuses and it\'s a tool just to quantify what

15 the interests are.

16 The interests will be what

17 they will be. It will vary from campus to campus

18 and it will change over the years. We will not

19 freeze anything into place because, as I have

20 said on several occasions, if we\'re going to go

21 down this road, it would have to be done on a

22 regular basis to capture the changes in interest

23 levels. That\'s the only way it would work.

24 DR. SIMON: And it could \--

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1 MR. LELAND: Graham?

2 DR. SIMON: I\'m sorry.

3 MR. SPANIER: Well, I see the

4 purpose of this discussion as finding a way

5 to protect the progress and the societal games

6 that have taken place and to help the Department

7 of Education come up with a methodology for

8 enforcement and for the continued promotion

9 of equal opportunity.

10 So I think it would be very

11 unfortunate if we left on the table the analogy

12 that this was akin to taking away the right to

13 vote. I wouldn\'t want to be party to something

14 like that. I think that would be a very

15 unfortunate impression to leave.

16 We are not talking about

17 something akin to finding out through a survey

18 that women or certain minorities or college

19 students have voting rights that are less

20 than other groups of the population and,

21 therefore, we should take away the right to

22 vote.

23 I think what we are looking

24 for here is keeping the doors of opportunity

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1 as wide open as possible to women, but at the

2 same time, not taking away opportunities for

3 others and having a monitoring and an enforcement

4 methodology and guidance for athletic administrators

5 on how to create the right balance.

6 MR. LELAND: Cary?

7 MS. GROTH: The beauty of the

8 three-prong test is that it offers flexibility.

9 The surveys \-- you can use the surveys in two

10 and three. I\'m wondering why \-- why we would

11 want to change prong one as it refers to surveys

12 because, in essence, if you do that or if we do

13 that, we\'re just creating another prong two or

14 prong three.

15 MR. BOWLSBY: Ted?

16 MR. LELAND: Rita and then Bob.

17 DR. SIMON: Julie, I want to say

18 that, in fact, the existence of these surveys

19 and publicity about the results of the surveys

20 could, in fact, enhance women\'s interest and

21 willingness and desire to participate.

22 When they hear about the

23 results, my God, only 42 percent of us are

24 interested in sports? That can\'t be true.

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1 Let\'s go around and mobilize more interest.

2 The very existence of surveys would arouse,

3 I think, more interest on the part of the

4 gender that is at the moment under-represented.

5 MR. LELAND: Okay. Bob and then

6 Brian.

7 MR. BOWLSBY: Well, it seems to

8 me we\'re all around the essence of this discussion.

9 I think it was Graham that made the comment

10 yesterday that the only thing that is law in

11 what we are looking at is the language of Title IX.

12 Everything else is interpretation and bureaucratic

13 development of what the last 30 years have held in

14 store.

15 I think at some point, we need

16 to get to the discussion of what many people have

17 told us is a flawed entry assumption and that is

18 that the undergraduate population has anything

19 whatsoever to do with athletics participation.

20 It isn\'t probably any more

21 valid than using the percentage of males and

22 females in the entire population in our country

23 or the percentage of male and female participation

24 in the feeder system or the percentage for that

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1 matter of people in the population that drive red

2 cars.

3 It\'s the one piece of this

4 that I have struggled over throughout all of the

5 discussions is that it seems that lots of people

6 believe that the comparison of the undergraduate

7 population is a flawed entry assumption. If we

8 don\'t talk about that, I don\'t think we are going

9 to get our arms around any of the rest of the

10 substantive issues that are part of this topic.

11 (Whereupon, Secretary Paige

12 entered the proceedings.)

13 MR. LELAND: Okay. Brian?

14 MR. JONES: Now that the boss is

15 here, I\'ll make it quick! I actually just wanted

16 to respond to Cary\'s point because I think you

17 actually raise a good point and this is the way

18 I would think of why it at least makes some sense

19 to at least examine further Cynthia\'s suggestion

20 with respect to prong one.

21 You ask why a survey would make

22 sense in prong one and it goes back, I think \--

23 at least one argument goes back to what I was

24 talking about yesterday. I probably sound a little

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1 bit like a broken record on this point, but that is

2 to again get back to thinking about Title IX as what

3 it is, an anti-discrimination statute.

4 I talked about how in other

5 anti-discrimination context, when you are

6 talking about statistical imbalances, you are

7 looking at statistics as creating an inference

8 of discrimination. Generally, what happens

9 is an institution that has a policy that creates

10 this kind of statistical imbalance has an

11 opportunity to go back and to show, you know,

12 there is a nondiscriminatory reason for the

13 imbalance.

14 Here, I think that one

15 rationale for using a survey as sort of your \--

16 to determine what your denominator is for the

17 statistical purposes in prong one does. I mean,

18 it allows an institution to point to something

19 that may, in fact, explain part of the imbalance

20 and that is that well, you know, in this particular

21 case the interest level is different.

22 The interest level closely

23 tracks, you know, the rate at which we provide

24 opportunities. I agree. I mean, I think Julie

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1 is absolutely right and we talked about this

2 yesterday, that you obviously have to be careful

3 about these things because you don\'t want to be

4 ever put in a position where you freeze into place,

5 you know, a discriminatory status quo.

6 That speaks more to what

7 Graham talked about yesterday about just \--

8 that speaks more to how you use the survey.

9 That means that you continually update surveys,

10 you use surveys in conjunction with other

11 instruments. Fundamentally, I think one good

12 rationale for this is that you can allow a

13 school a way of showing that there is a

14 nondiscriminatory reason for the imbalance.

15 MR. LELAND: Okay. Let\'s do

16 this. Cynthia and I have \-- let\'s allow one

17 or two more comments on this issue.

18 MS. COOPER: No. Let\'s just

19 move on. We have discussed this fully.

20 MS. McGRAW: May I make a

21 comment?

22 MR. LELAND: Muffet?

23 MS. PRICE: Muffet has a comment.

24 Go ahead, Muffet.

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1 MS. COOPER: Hey, Muffet!

2 MS. McGRAW: This reminds me, this

3 survey, a little bit of the NCAA using the SAT

4 to get into college and that was supposed to be

5 a measure of intelligence and there was a lot

6 of talk about it as racially biased and that it

7 was discriminatory. In the next few years, we

8 will not be using the SAT to get into college

9 anymore. I think the interest survey could have

10 a big gender bias. That\'s my concern about the

11 survey.

12 MS. COOPER: Okay.

13 MR. BATES: I guess I had a

14 question. When \-- Cynthia, when you first made

15 this recommendation, it seemed rather simple

16 to me and it seems to be getting, I guess, more

17 complicated than I can follow at the moment.

18 Prong three talks about fully

19 and effectively accommodating the interests and

20 abilities of the under-represented sex. Now,

21 we have some ways of getting that, but it seems

22 to me that in addition to these, having a survey

23 to get at interest, which is historically how we

24 have tried to measure interest is through some

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1 sort of survey.

2 So I don\'t \-- I mean, it seems

3 to me that we are beating this one a bit in a way

4 that I don\'t understand because we are \-- we do

5 have a prong that talks about interest. I don\'t

6 see any reason why in addition to other things,

7 which is what I thought, Julie, we talked about

8 yesterday, not using this survey by itself because

9 there are some specified other ways that you can

10 go about doing that.

11 I must say, Jerry, I don\'t see

12 the need for it in prong one. I mean, I don\'t

13 see the connection there. Clearly, it points to

14 prong three and that\'s how I heard it and that\'s

15 what I thought we were talking about.

16 MR. REYNOLDS: Well, if the use of

17 survey instruments is helpful in prong three, is

18 it possible that it could be helpful in other

19 prongs? Again, I get the distinct impression

20 that prong one is a sacred cow. No one wants

21 to touch it. That\'s one theory.

22 Another one is we don\'t want

23 to look at \-- we don\'t want to quantify interest

24 and if throughout our documents it talks about

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1 interest and abilities, interest and abilities,

2 what\'s wrong with trying to quantify interest

3 and abilities in a precise manner?

4 If we have social scientists

5 who do this stuff for a living who feel confident

6 that it can be done and be done in a fair way,

7 then, it seems to me that at a minimum, we should

8 at least explore the feasibility of doing it.

9 What I\'m hearing is let\'s not

10 listen to the experts. Let\'s not even see if

11 it\'s feasible. Again, I start out by saying I\'m

12 not sure it\'s feasible. All I\'m saying is let\'s

13 look at it.

14 MR. BATES: Jerry, I\'m not saying

15 never say never. I guess it seems to me it\'s a

16 stretch. It is directly tied to prong three,

17 as I read it. I think it\'s a stretch to say

18 let\'s also use it for prong one. That\'s all I\'m

19 saying.

20 MR. REYNOLDS: And you may be right.

21 All I\'m saying is let\'s do the legwork to find

22 out if you are right.

23 MR. LELAND: Okay. Listen, one

24 or two more comments. I think there is enough

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1 public \-- there is enough commissioner support

2 for this. We\'ll move to the next level and ask

3 the staff to do some work on it.

4 Let\'s try to eliminate the \--

5 Julie, one last thing. Then we\'ve got to be

6 fair to the other commissioners.

7 MS. FOUDY: Just to follow up on

8 what Percy has said and what Ruth said, I think

9 one of the things that I think we need to remember

10 is that when we are looking at this, we\'re making

11 the assumption that it\'s not based on something

12 that\'s had history discrimination and I think we

13 have to because, you know, a good example is I

14 just met a team here in Philadelphia that\'s

15 comprised of over 40 women over 40 years old.

16 It is all women that are working

17 moms who row on this dragon boat team. They just

18 started this team. They are all breast cancer

19 survivors. They just started this team last year.

20 None of them had any experience in sports because

21 they came pre-Title IX and now they are vying for

22 the world championship in August next year and this

23 has been created by one woman who said let\'s start

24 this team and let\'s do this.

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1 Now, if you were to take a

2 survey of them, they would say they are very

3 interested in sports. I think it changes and

4 you have a history of not providing opportunities

5 and it changes day-to-day depending on what your

6 circumstances are and the way you grow up and how

7 you have been exposed to it. I don\'t think we

8 can avoid that fact.

9 MR. LELAND: Okay. That\'s a great

10 discussion. Let\'s try to move on.

11 Gene, do you have a

12 recommendation? You\'re next up.

13 MR. DeFILIPPO: I\'m next?

14 MR. LELAND: Yes, sir.

15 MR. DeFILIPPO: Okay. At all of

16 the town meetings, I have been a proponent for

17 more clarity and guidance for using prongs two

18 and three. I have asked those questions of

19 panelists at every one of our town meetings.

20 However, yesterday, I, too,

21 felt embarrassed at first, but then I wasn\'t

22 embarrassed because it just shows the lack of

23 clarity and understanding and advice that many

24 of us on college campuses have received from

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1 OCR.

2 So I would like to recommend

3 that OCR not should, but must provide us with

4 clear and consistent policy guidance by, among

5 other things, issuing a new written policy

6 statement.

7 In addition to that, that would

8 be for prong one. We absolutely need more clarity

9 and guidance for using prongs two and three. That

10 would be my recommendation.

11 MR. LELAND: Any discussion?

12 MR. GRIFFITH: Can I ask a question?

13 You used the phrase a new written

14 policy statement. May I \-- I want to suggest,

15 and this has been sort of my standard speech,

16 that whatever OCR does would be strengthened, if

17 they put it out for comment if they went through

18 the process that\'s created to make something law.

19 That\'s to make it part of the regulations.

20 The 1979 interpretation is

21 just that. I think there are substantial questions

22 about the strength of the \'79 interpretation

23 because it isn\'t \-- it doesn\'t have the same

24 weight as the 1975 regulations. We have a

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1 process for creating law in our country. I

2 don\'t know if that\'s more than you would

3 want to do.

4 I think we would all agree

5 that clarity is better here. I\'m wondering

6 if you would be agreeable, or maybe I can just

7 wait until my time, to make a recommendation

8 that they do it in more than the form of a

9 letter, but that they do it \-- put it out for

10 comment and go through the proposed rulemaking

11 process.

12 MR. DeFILIPPO: Well, that would

13 be up to OCR, but mine is to issue a new written

14 policy statement that would provide us with the

15 clarity, the consistency and the guidance that

16 we need and the interpretation for prongs one,

17 two and three.

18 MR. LELAND: You don\'t take that

19 as a friendly \-- it was friendly, but you\'re not

20 going to \--

21 MR. DeFILIPPO: It was friendly,

22 but \--

23 MR. GRIFFITH: Give it to OCR and not

24 me.

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1 MR. DeFILIPPO: Okay.

2 MR. LELAND: Okay. It\'ll be up to

3 Tom to give it to OCR.

4 Other comments on this proposal?

5 MR. SPANIER: Yes, well, trying to

6 dutifully write up something at the 10,000-foot

7 level, I mean, coincidentally it is very close to

8 what I drafted as to what you said.

9 Let me try some wording and

10 see if it\'s consistent. I wrote the Department

11 of Education, through its Office of Civil Rights,

12 should issue a new regulation policy interpretation

13 or letter of clarification that clarifies Title IX.

14 In addition, such a clarification or policy

15 interpretation should consider those sentiments

16 of the Commission that have a preponderance of

17 support.

18 MR. LELAND: Is that your global \--

19 MR. SPANIER: Well, that\'s one of the

20 two global ones.

21 MR. LELAND: Okay. But do you want

22 to add that onto what he is stating?

23 MR. SPANIER: Yes. I was just trying

24 to \-- I was attempting to go give it a little more

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1 specificity, but I think it\'s \-- they overlap about

2 90 percent.

3 MR. LELAND: Can we \-- staff, can we

4 subsume the two into this?

5 Okay. More comments on Gene\'s

6 proposal then. Is there a consensus that we

7 should move this forward as a draft and ask the

8 staff to draft it up? We\'re not approving

9 anything. We\'re just asking the staff to draft

10 up a recommendation. Are we okay on that?

11 MS. COOPER: We\'re up to Graham.

12 MR. LELAND: All right. Graham,

13 you are next.

14 MR. SPANIER: Oh, okay. Well,

15 this is just another one. This might require a

16 little discussion though. The concept of a safe

17 harbor test or prong should be abandoned in favor

18 of a test that puts the prongs on a more equal

19 footing. Additional ways of demonstrating equity

20 beyond the existing three-part test should be

21 studied. In addition, the evaluation of compliance

22 should include looking at all prongs in aggregate

23 or in balance as well as individually.

24 MR. LELAND: Okay. Discussion?

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1 Julie?

2 MS. FOUDY: Could you read it one

3 more time? I\'m sorry. I\'m a little slow this

4 morning. I need some coffee.

5 MR. SPANIER: Yes. The concept

6 of a safe harbor test or prong should be abandoned

7 in favor of a test that puts the prongs on a more

8 equal footing. Additional ways of demonstrating

9 equity beyond the existing three-part test should

10 be studied. In addition, the evaluation of

11 compliance should include looking at all prongs

12 in aggregate or in balance as well as individually.

13 What I\'m trying to capture

14 there is some of our discussion about this awkward

15 situation we have where two of the prongs have been

16 rendered almost meaningless to most athletic

17 administrators in this country because of the

18 evolution of the concept of a safe harbor.

19 I think if there is any merit

20 in those two other prongs, we need from the Office

21 of Civil Rights some greater level of clarification

22 of how you would actually use those prongs, what

23 they are, how you get from here to there, but that\'s

24 only going to be meaningful if they are put on an

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1 equal footing with what is now the safe harbor

2 test.

3 You\'ve got \-- you can\'t pull

4 one out \-- I mean, part of the problem we have

5 right now, I think, is that we have identified

6 one test as the ultimate test. I think if you

7 say there are a variety of ways to get from

8 here to there and to demonstrate and promote

9 equity in athletics, it \-- that\'s a step forward.

10 We\'ve also said, or maybe I\'ve

11 been the only one to say it, that I\'m not sure

12 that there are just three and only three ways

13 to promote equity and demonstrate it. I can\'t

14 think of what a fourth or fifth way might be,

15 but I think it should be explored.

16 Then I think the main point

17 I\'m making is while it might be legally nice

18 and neat and it would simplify the life of an

19 athletic administrator to say I\'m going to

20 pick that test and show you why I\'m at that test

21 and so don\'t bother me with the details of any

22 other aspect of this. I don\'t think that\'s quite

23 right.

24 I think you have to be willing \--

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1 I mean, you could use an individual test, I\'m

2 saying, as well individually. You could say,

3 okay, I\'m picking proportionality and we\'re

4 proportionality so that should be good enough.

5 Okay. Fine. But in the real

6 world, things aren\'t that simple and shouldn\'t

7 we allow a high school, a college and university

8 and shouldn\'t we allow the Office of Civil Rights

9 and their investigators and shouldn\'t we allow

10 the courts, if it comes to that, to examine a

11 balance between what schools are doing.

12 Maybe they are 90 percent of

13 the way towards meeting interest and abilities.

14 Maybe they are 95 percent of the way to meeting

15 proportionality. Maybe they just added a sport

16 last year. So it is of diminimus relevance that

17 they are a little off on each of the three

18 because if you look at the whole picture, they

19 have done about one of the best jobs of getting

20 there even though if you had to say we\'re picking

21 this one prong and we are short there. Therefore,

22 there is something wrong with you. That might be

23 right when another school might be so divergent

24 in proportionality, but happens to have added a

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1 sport last year that we say they are okay, we\'re

2 going to leave them alone, when you compare the

3 two schools, there is really no comparison.

4 It\'s a way of bringing a little

5 common sense to how things actually operate and

6 I think could be a way of, you know, minimizing

7 some of the game playing.

8 MR. LELAND: Okay. Questions?

9 Rita?

10 DR. SIMON: Graham, in principal,

11 I like your idea, but as I start thinking about

12 it, I wonder how you operationalize it because,

13 for example, if you do find universities that

14 use the \-- that are in keeping with Title IX in

15 terms of proportionality, that 52 percent of the

16 full-time undergraduate and women, they get 52

17 percent of the scholarships and then men get 48

18 percent, then, if you have that, do you \-- what

19 do you do with prongs two and three? They are

20 giving the proportional number of scholarships.

21 No, there has not been expansion

22 of sports programs for women and no, there haven\'t

23 been any demonstrations of whether women\'s interests

24 in sports are being represented, prong three, but

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1 you do have the 52 percent of the women getting the

2 scholarships.

3 So how do you add the three

4 prongs together? You give different weights to

5 them? Are they all weighted equally because if

6 prong one is, in fact, met what do you do with

7 prongs two and three to enhance compliance?

8 MR. SPANIER: I don\'t have

9 all the answers. Maybe you don\'t do anything.

10 I\'m saying maybe \-- I\'m saying as well as

11 individually. Yes, some schools may say we

12 are demonstrating our compliance this way.

13 There is a whole history and body and law

14 and so that\'s all right.

15 I\'m just thinking if I were

16 a civil rights investigator going into a school,

17 I don\'t like the idea of having the university

18 in a position to say we\'re only talking to you

19 about this one prong and don\'t stick your nose \--

20 you have to look at the big picture.

21 We do this all the time in

22 our own sphere of endeavor. When somebody comes

23 in to evaluate our law school or medical school

24 or college of engineering, they\'ve got a whole

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1 set of questions they are looking at and they

2 are obligated to look at them all and make their

3 accreditation decision in balance on how the

4 whole picture looks.

5 To say we\'re just going to

6 look at this one thing and we don\'t care how

7 deficient you are in the other areas, that

8 that is irrelevant, I believe that what this

9 does, I mean, it\'s really written with some intent

10 to be A, more flexible and B, more realistic in

11 the sense it brings some common sense.

12 MR. LELAND: Questions, Percy?

13 MR. BATES: Graham, I think I

14 agree with most of what you said and I do have

15 some question about the potential outcome, but

16 I\'m just wondering if we followed Gene\'s

17 recommendation and with what you added to it,

18 couldn\'t we get most of what you outlined?

19 MR. SPANIER: Well, we \-- I think

20 this would be \-- this one recommendation would

21 presumably lead to something that would be in a

22 larger clarification. I think, you know, the

23 most \-- probably the most important part of what\'s

24 in this second recommendation that I have written

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1 gets to the concept of should one test be the safe

2 harbor because that \-- that is the \-- that\'s the

3 source of maybe 30 percent of the testimony we have

4 heard from 250 people. I mean, that \-- that really

5 highlights a big chunk of frustration that a lot of

6 people have identified for us.

7 MR. LELAND: Okay. Let\'s move through

8 this quickly. We are committed to a break soon.

9 We\'ll take Julie and then Rita.

10 MS. FOUDY: Graham, I understand

11 what you are saying and I like a lot of it. I

12 think what we all want is the three-prong test

13 to have equal strength on each prong, but I think

14 we differ on how we want to get there.

15 One of the things that I see

16 is we want to make two and three stronger, but

17 at the same time, we don\'t want to weaken one

18 because we need some type of analytical approach

19 to it. I think my only concern was with your

20 first sentence. I don\'t know if you want to read

21 it again.

22 MR. SPANIER: Okay. Here\'s what I

23 would envision, and this is the kind of thing that

24 you\'ve got to get lawyers to write up the words

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1 on it. I would envision that any examination of

2 compliance of Title IX would look at the numbers.

3 I mean, you know, you are looking at

4 proportionality. Of course, that should always be

5 looked at.

6 I wouldn\'t back off from that

7 being examined prominently under any scenario.

8 My concern is the legal definition of that test

9 being defined as a safe harbor because that has

10 so significantly muddied the water on the other

11 tests, that it\'s an underlying, big source of

12 confusion that\'s out there.

13 Until you give the Office of

14 Civil Rights permission or the mandate to re-examine

15 this safe harbor concept, I don\'t think we\'re going

16 to get to wherever we\'re going to get on the other

17 prongs. That\'s all I\'m trying to communicate with

18 that.

19 MR. LELAND: Rita and one or two

20 other questions.

21 DR. SIMON: Graham, again, I

22 think the only way it makes sense to add the

23 three prongs together is if you are not meeting

24 the proportionality test. If you meet the

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1 proportionality test, then, anything else that

2 you add is, I don\'t know, icing on the cake or

3 something like that.

4 So I think you have to say

5 how much weight do we give to each of these

6 measures? Do we give them equal weight? Do

7 we give prong two and three more weight than

8 prong one? It seems to me that we have to

9 take into account the fact that it would only

10 make sense to add them together if, in fact,

11 you were under-representing women at the prong

12 one level, that there are over 50 percent of

13 women undergraduates and they are not getting

14 50 percent of the scholarships.

15 The most radical suggestion or

16 comment that we heard really hasn\'t been talked

17 about and that is are we dealing with a relevant

18 population of full-time undergraduate students, if I

19 understand you correctly.

20 That\'s the most radical comment,

21 I think, that\'s been made this morning and you

22 might want to take that into account as you

23 reconsider the prongs and the relevant values.

24 MR. LELAND: Okay. I feel there

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1 is a consensus that people liked what they heard.

2 I shouldn\'t categorize it that way, but people

3 would like to have Graham\'s proposal written up

4 and take a look at it in January. In no sense are

5 we approving anything right now, but we\'re just

6 wanting to move forward with it. One or two more

7 questions, then, we will break.

8 MR. BOWLSBY: Ted, I\'m compelled

9 to make a little bit of a qualification on that.

10 I don\'t consider my assertion radical whatsoever.

11 I considered it fundamental to the issue. I

12 think \--

13 DR. YOW: Bob, you don\'t want to be

14 radical?

15 MR. BOWLSBY: It\'s central to what we

16 are talking about.

17 DR. SIMON: Bob, it wasn\'t a negative

18 comment either.

19 MR. LELAND: Rita appreciates

20 radicals!

21 Let\'s take a 15-minute break,

22 if we could, and readjourn on time if we could.

23 Thank you.

24

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1 (Whereupon, after a short

2 break was had, the

3 following proceedings

4 were held accordingly.)

5 MS. COOPER: Can the commissioners

6 start to come back?

7 MR. LELAND: If we could come to

8 order, please? Commissioners, could you please

9 locate your seats?

10 MS. COOPER: Today, I have the

11 honor of introducing my friend and Houston

12 neighbor, Secretary of Education, Dr. Rod Paige.

13 Over the years, Dr. Paige

14 has excelled as a coach, teacher, dean and

15 superintendent of schools. Today, he excels

16 as our nation\'s Secretary of Education.

17 Since becoming secretary in

18 early 2001, Secretary Paige has worked tirelessly

19 on behalf of the nation\'s students, schools and

20 colleges. The Secretary created this Commission

21 in order to expand opportunities and ensure

22 fairness for all college and interscholastic

23 athletes.

24 Both the President and the

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1 Secretary fully support Title IX. The Secretary

2 was right when he made the decision to form this

3 Commission and I know that I speak for all of us

4 when I say we are honored to be a part of your

5 team.

6 Secretary Paige, we are honored

7 to have you here today. Ladies and gentlemen,

8 my friend, the U.S. Secretary of Education, the

9 honorable Dr. Rod Paige, America\'s coach!

10 (Audience applause.)

11 DR. PAIGE: Thank you, Cynthia,

12 for that warm introduction!

13 MS. COOPER: Bring your microphone

14 closer!

15 DR. PAIGE: I\'m real pleased to

16 have this opportunity and because primarily I

17 just wanted to come and thank you for your

18 service and for what you are doing. Each

19 of you have incredibly busy schedules, but

20 yet you take time to set aside those schedules

21 and come and do this. It\'s amazing really.

22 I was just talking to Dr. Yow.

23 I was the athletic director of Texas Southern

24 University, a small university, but I know what

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1 it is to have to put on an event for 70,000 or

2 80,000 people every other week, right in the

3 middle of while she is getting ready to go to

4 the Peach Bowl.

5 Ted is breaking in a new coach.

6 MR. LELAND: Trying to!

7 DR. PAIGE: Trying to!

8 Cynthia is getting in condition

9 again so she can go back into the WBA. Each one

10 of you have a schedule, but yet you have chosen

11 to do this and the enthusiasm that you have shown.

12 I\'m deeply grateful and the President is deeply

13 grateful and that\'s the chief message that I want

14 to \-- want to convey.

15 As I was sitting here, I was

16 thinking what a wonderful country this is to give

17 and take of a discussion surrounding an idea

18 that\'s going to influence policy, that\'s going

19 to impact the lives of Americans for years. It\'s

20 very important. Democracy is not a tidy process,

21 but it\'s a great process. So thank you for that.

22 You have been asked to gather

23 the facts, listen to what Americans have had to

24 say and this is what, the fifth \-- fifth meeting?

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1 You have been in four different cities listening

2 to other Americans and make some recommendations.

3 This is different from many

4 places where one or two individuals sit in a

5 room and come up with policy and make rules that

6 everybody has to jump and salute to. What a

7 great country we live in.

8 This is a difficult issue.

9 That is why we wanted to get the very best minds

10 we could to discuss it and talk to us about it.

11 We just want to make a good thing better. We

12 want something to help all Americans.

13 I know you have heard from

14 50 experts including general counsels of

15 universities and athletic people, civil rights

16 people, just plain people. And now, you are

17 getting to the point where you have to take

18 all of that information and condense it and

19 come up with something that\'s going to be good

20 for all of us.

21 I wanted to just come and

22 listen and I\'m benefited by just the brief part

23 that I have heard, but I\'m going to sit through

24 the rest of it today and hear more because you

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1 are great Americans and you are contributing to a

2 great country.

3 So to both of the chair people,

4 thank you for your leadership. Let\'s just keep

5 going. I\'ll do what I came to do. Now, I\'ll just

6 sit back and listen. Thank you.

7 MR. LELAND: Thank you.

8 MS. COOPER: Debbie?

9 DR. YOW: Is Graham finished?

10 MR. LELAND: Yes.

11 MS. COOPER: Yes.

12 MR. SPANIER: I have more, but not

13 now.

14 DR. YOW: Graham has more, but not

15 for right now.

16 Okay. So don\'t pummel me.

17 Okay? This is one idea, Ted, and I want to start

18 making assumptions and I\'m not going to take the

19 global approach exactly that Graham took.

20 Being in athletics, I want to

21 know what the target is. Show me the target,

22 show me the basket, show me the goal. As soon

23 as I know what that is, then, I know what to hit.

24 I have real issues with, I think,

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1 prongs two and three for that reason. I\'m not

2 sure what those targets are exactly and whether

3 or not I ever am deemed to be within the scope

4 of those is in large part related to who reviews

5 the information and that\'s different from

6 institution to institution. So I don\'t like the

7 way any of that feels.

8 So here are my assumptions

9 and I\'m going to offer a specific, pragmatic

10 application. The assumptions are that there

11 is an unmet need for women and men interested

12 in sports. That\'s just an assumption. You

13 can disagree with my assumptions, but I wanted

14 you to understand where I\'m coming from.

15 Assumption two is there is a

16 need to provide a greater number of scholarships,

17 scholarship opportunities for women and a need

18 to provide a greater number of participation

19 opportunities for men and women.

20 With the men, it takes the

21 form of the walk-on problem or dilemma more

22 than anything else. For women it could take

23 the form of additional scholarships to existing

24 traditional teams or it could be adding women\'s

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1 teams.

2 The third assumption is that

3 there is a need to have a standard that\'s easily

4 measurable, easily enforceable, objective and

5 that that is beneficial to those of us who don\'t

6 want to get bogged down in using periodic surveys

7 because the target, it changes, everything changes

8 every time you use one.

9 The fourth assumption is there

10 is a need to provide a degree of wiggle room.

11 It provides the flexibility to allow for those

12 walk-ons, to not be penalized for people who

13 transfer out of your institution in mid-year

14 to go play at another institution or for people

15 who quit teams because they are not getting

16 enough playing time or individuals who aren\'t

17 on the teams because they are academically

18 ineligible. There is a cadre of reasons why

19 there\'s people that disappear from the landscape.

20 The fifth and final assumption

21 is that there is no logical flow to tying the

22 undergraduate enrollment ratio to athletes in

23 this male to female ratio. There is no logical

24 flow.

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1 Those are my assumptions.

2 With those assumptions, I offer the following

3 for discussion. This is the part where you

4 don\'t pummel me. Okay? Just remember that.

5 Be gentle.

6 Because of those assumptions,

7 I think it would be worth considering having a

8 requirement or a prong \-- I hate the word prong,

9 but I don\'t have another word for that \-- a

10 possibility of having 50 percent female and 50

11 percent male at all institutions. Remember the

12 assumptions, that there is an unmet need.

13 So you just start with 50/50,

14 but you also include a different variance. You

15 would allow somewhere between a five and seven

16 percent variance for scholarships and participation

17 opportunities and the reason that becomes valuable

18 is it provides that wiggle room for the walk-ons,

19 for the transfers, for the people who are

20 academically ineligible, all the things that can

21 happen to you.

22 The results would be the

23 following: It would vastly improve the current

24 status for women in sports because when you look

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1 at the situation of 50/50 and five to seven

2 percent variance, let\'s say it\'s a seven percent

3 variance, just as an example, the worst it can

4 get, Julie, if you want to look at a worst case

5 scenario, the worst it can get is something like

6 53 percent of the population at a respective

7 institution would be male and 46 percent would

8 be female.

9 If you look at those numbers

10 across the country right now, you know that 46

11 is an admirable target for a number of these

12 institutions who someone pointed out are as many

13 as 30 percentage points out of compliance.

14 There would be, in that case,

15 no need for survey documents and there would be

16 no need to worry about using the female enrollment

17 numbers. I\'m being very candid here. If it\'s

18 true that by the year 2007, that I believe it was

19 said, Ted, 56 percent of our undergraduate

20 enrollment in collegiate institutions will be

21 female, then, that becomes a non-issue as well.

22 So we stop the bleeding for

23 the men. We vastly improve the situation as it

24 currently exists for the women, but we provide

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1 wiggle room, that variance, to account for

2 walk-ons and all the other nondiscriminatory

3 types of situations that occur that none of us

4 as ADs know are coming until they happen.

5 If you did that, then, you

6 don\'t have to worry about any other prong. You

7 don\'t have to worry about surveys and you don\'t

8 have to be concerned about the upwardly moving

9 female undergraduate enrollment and you help your

10 walk-ons. That\'s it.

11 MR. LELAND: Okay. Question, Jerry?

12 MR. REYNOLDS: Well, that is a

13 radical proposal. Have you taken into account

14 the \-- that some schools are going to have to

15 spend a significant amount of money to meet your

16 targets? I think that Stanford and the University

17 of Maryland are in pretty good shape, but there are

18 other institutions that have \-- that their \-- in

19 terms of the numbers are way out of compliance.

20 You just use the 30 percent figure.

21 Would you consider a phase-in

22 period because I see \-- I see some institutions

23 may have difficulty coming up with this amount

24 of money in a short period of time.

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1 DR. YOW: There are a couple of

2 things, Jerry. One of them is there \-- of

3 course, the reason does matter in terms of \--

4 it\'s an interesting dynamic because there would

5 be people who say, well, they are out of compliance

6 because they didn\'t do anything the last 30 years,

7 but then there are other people that say, okay,

8 well, that\'s in the past. Let\'s deal with the

9 future and let\'s give them a reasonable opportunity.

10 I think a reasonable opportunity should be given

11 for people to phase in. I don\'t know what that

12 would be exactly.

13 I also think that the other

14 argument, if you will, against this would be

15 when you say seven percent variance, that instead

16 of using it for what it\'s intended to be, that

17 there will be institutions that cap women\'s

18 opportunities within that seven percent variance,

19 but even if that is true, it vastly improves the

20 state for women, the opportunities for women in

21 athletics, from what it is currently. So that\'s

22 why it doesn\'t really, really bother me.

23 And it also, on the other side,

24 remember, if proportionality stays in place as we

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1 now know it, then, and I did refer to as stopping

2 the bleeding, and I do see it that way actually,

3 I don\'t \-- I can\'t imagine having an athletic

4 program that because the undergraduate enrollment

5 for females reaches 56 percent and continues to

6 escalate up, that we turned our athletic program

7 to find that we have many more women in our

8 program than we do men because it\'s tied to the

9 undergraduate enrollment rate. So I see it kind

10 of as a compromise on both sides.

11 MR. LELAND: Okay. Other questions,

12 Graham?

13 MR. SPANIER: Yes. Debbie, what I

14 see your proposal doing is trying to get at some

15 of the very same underlying issues as other

16 things that have been put on the table get at,

17 but with a different methodology.

18 The problem I would see with

19 yours is that, you know, at the operational level,

20 it really would conflict with a lot of the other

21 things that have been put on the table because

22 you are really arguing let\'s just, plain and simple,

23 go to a standard of proportionality and allow more

24 flexibility around it and that would be in conflict

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1 with other sentiments I and some others have made

2 that we really need to think more broadly.

3 I guess my reaction to your

4 proposal would depend on whether it became the

5 defect of a standard or whether it is just

6 another way of meeting the \-- another way of

7 being able to demonstrate gender equity. I

8 think \-- I think we\'re trying to get at the

9 same thing, but it really doesn\'t match up with

10 some of the other things we have been saying.

11 DR. YOW: I don\'t do well, and I

12 don\'t think the majority of the ADs who have

13 to \-- institutionally, I see benefits as well.

14 I like starting from the

15 assumption that there is enough interest in

16 sports for women that it would be 50/50, but

17 then allowing the variance and that, as I said,

18 it might equal that that\'s set as a cap, if

19 you will, for women. Even if it were, the

20 situation in the long run, if given the phase-in

21 would be vastly improved over what it is.

22 We sidestep this periodic use

23 of \-- Graham, I\'ll tell you what. I might not

24 feel the way I do if I actually saw the document,

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1 but sitting here at the table talking about some

2 survey that I have no clue as to what the survey

3 is going to say, I mean, it\'s hard for me to

4 support that concept because I might not agree

5 with what the survey says. It\'s not my field.

6 I\'m presuming that if you do the survey once,

7 you\'re going to do it again. Then interests change

8 and the target moves. It just seems something

9 very right about starting with equal opportunity,

10 this 50/50.

11 MR. SPANIER: Am I interpreting

12 what you are saying that what you are really

13 arguing for is for those institutions that wish

14 to use proportionality, let\'s give a clearer

15 definition of what that would mean and, then,

16 some level of flexibility around it?

17 DR. YOW: I am because if you do

18 it this way, you still get the heart of the issue

19 for the walk-ons, but you don\'t have to count all

20 of these, you know, averages of squad sizes and

21 do this and do that. I\'m just looking for a way

22 to get at meeting several of the needs, improving

23 the situation for women, capping \-- not capping \--

24 helping the walk-ons at least to the variable of

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1 seven percent. If it\'s true that men do walk-on

2 more readily than women, then, we\'re going to

3 have some wiggle room there to allow that to

4 occur.

5 There are those kinds of things

6 that are happening. It\'s simple. It\'s more

7 simple. It\'s easier to understand. The public

8 would actually understand it, I think, which would

9 be a benefit.

10 MR. LELAND: Okay. Rita?

11 MR. SPANIER: Let me just \-- I have

12 one small thing. I\'m sorry, Rita.

13 DR. SIMON: Oh, sure.

14 MR. SPANIER: Let me just point out

15 you keep saying 50/50. We heard from the athletic

16 director of the Air Force Academy in Colorado

17 Springs, 15 percent \-- I think it was 15 percent

18 of the cadets are women.

19 In many of the land grant

20 universities, while nationally, it might be

21 53 percent women and 47 percent men at many of

22 our land grant universities because they have

23 thousands of students in engineering and

24 agricultural and so on, you know, it\'s actually

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1 the other way around. So 50/50 as a starting

2 point isn\'t \-- conceptually, I understand what

3 you are saying, but you really have to take some

4 other things into account.

5 DR. YOW: I hear that and I do

6 think, though, that we have to be careful not

7 to use, like, Georgia Tech Air Force Academy,

8 the engineering type schools, because there

9 are so few of them now and the land grant \--

10 Maryland is a grant. We are 52/48, moving

11 to 51/49 right now. Whether or not there is

12 a mechanism, Jerry, for people who are obviously

13 disadvantaged, I think that that could be done.

14 MR. LELAND: Okay. Let\'s take

15 questions, Rita and then Jerry.

16 DR. SIMON: Debbie, this is a

17 question. I\'m intrigued with your idea of let\'s

18 start out at 50/50, but I\'m curious as to how

19 you determine how much variance for different

20 universities. Do you determine the variance, then,

21 on the basis of enrollment? Do you determine

22 the variance, then, on the basis of walk-ons?

23 How do \-- do you determine the variance, then,

24 on the basis of interest or prior participation?

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1 Because it seems to me that

2 with the variance of up to seven percent, you

3 are going to cover almost all of the universities

4 and colleges in this country. Obviously, not the

5 Air Force Academy, but I don\'t think you\'re going

6 to find many universities that have a wider variance

7 than 43/57, for example. So that it\'s very

8 important to determine how much of a variance

9 at different schools and on what basis.

10 MR. LELAND: Okay. We need quick

11 questions and quick answers because we need to

12 move through.

13 DR. YOW: I have no empirical

14 statistical data to support the variance of

15 seven percent. It\'s based just in my years

16 of \-- 26 years of just dealing with this and

17 how it feels on this side when people quit and

18 change.

19 DR. SIMON: But would you have

20 some university with a variance of only two

21 percent? Would you have some universities

22 give a variance of seven percent? I\'m asking

23 just to push out your idea.

24 DR. YOW: No. I adhere to the

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1 principal of equal and fairness.

2 MR. LELAND: Okay. We\'ve got

3 four more questions and then we\'ll have to move on.

4 Cary?

5 MS. GROTH: Debbie, I have a

6 question regarding the institutions, if we

7 eliminate the flexibility of prongs two and

8 three, which I think you are suggesting, and

9 just have proportionality starting at 50/50

10 with a variance, are you not concerned that

11 many institutions would continue to drop or

12 accelerate the dropping of men\'s Olympic sports

13 to get to that proportionality with your

14 recommendation?

15 DR. YOW: No, because I think

16 with the seven percent variance, you have

17 enough of a variance for the majority. I

18 don\'t have the empirical data, but it\'s just

19 my observation that it would be enough to

20 not cause that to happen and in addition to

21 that, provide opportunities for those walk-ons

22 in the wrestling teams and those kind of things.

23 MR. LELAND: Okay. Gene?

24 MR. DeFILIPPO: Debbie, I have

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1 come not to pummel you, but to praise you.

2 You mentioned some great things; enrollment,

3 differentials, walk-ons, more scholarships

4 for women. I still think that all of those

5 things need to be taken into consideration,

6 but if OCR will provide us with clear and

7 consistent policy guidance by, among other

8 things, issuing a new written policy statement

9 keeping this \-- these issues which you spoke

10 about and those which Graham spoke about and

11 others that are to follow, I think all of this

12 is going to take care of itself.

13 DR. YOW: I\'m fine with that.

14 I\'m looking for an opportunity to redefine

15 that prong one and provide a greater degree

16 of flexibility for the walk-ons.

17 MR. LELAND: Okay. Julie?

18 MS. FOUDY: This seven percent

19 variance, the worst case scenario you gave was

20 53/46. When you talk \-- so you\'re not talking

21 about seven percent off of 50 where it could

22 be 43/57?

23 MR. LELAND: I think she is talking

24 about 50 percent \-- you start at 50 and you allow

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1 a seven percent variance. That would be 43 percent

2 female.

3 MS. FOUDY: That\'s really a 14 percent

4 variance.

5 DR. YOW: Yes. We need to \-- being

6 an English major\...

7 MR. LELAND: I think she said \-- to

8 speed this up, I think you said they start with

9 50/50 and then you give variance from there, not you

10 start with the enrollment ratios and give variance

11 from there, but please clarify.

12 DR. YOW: Yeah. I don\'t think I can

13 clarify it. I\'m actually open to discussion about

14 either one, to be candid with you.

15 MR. LELAND: So the issue is a

16 set standard with some flexibility, a set standard

17 that\'s universal with some flexibility.

18 DR. YOW: With measurable flexibility.

19 MR. GRIFFITH: Okay. The question is

20 what\'s the swing?

21 DR. YOW: I understand the question.

22 I\'m just over here thinking about it because I did

23 give the example of 53 and 47, which is a seven

24 percent variance, but then the question was asked

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1 about going in the other direction and I said I

2 wasn\'t sure and I\'m not sure. It\'s an open ended \--

3 it\'s a question. I just know it needs to be

4 something that\'s measurable.

5 MS. FOUDY: Because \--

6 MR. LELAND: Okay. One or two more

7 questions and then we need to move. Go ahead.

8 MS. FOUDY: Just the one comment of

9 from what we have heard from athletic directors

10 that once you get to this, whatever the standard

11 if you set the standard, that\'s what we are going

12 to get to. 50/50 becomes less of an issue and it\'s

13 okay. What\'s my biggest margin of error that I

14 can get to? Essentially, depending on the variance,

15 you are setting it at 43/57 instead of 50/50.

16 DR. YOW: Right. So you\'re saying

17 that you could perhaps see it, Julie, if the

18 variance of seven percent meant 53 \-- as an example

19 53 percent for women and 46 percent for \-- 53 for

20 men and 46 percent for women, but not that wide a

21 variance?

22 MS. FOUDY: I\'m just saying the

23 principal of 50/50, I understand.

24 DR. YOW: Yes.

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1 MS. FOUDY: But in reality, what

2 would end up happening, they would go to \--

3 DR. YOW: I acknowledged that.

4 I acknowledged that whatever the variance would

5 be, that\'s where \-- that\'s where a number of

6 institutions would go as a ceiling and I\'m

7 saying to you that even if that happens, there

8 would be vast improvement for women in sports.

9 There would be a number of

10 institutions \-- and Maryland is not alone, that

11 we\'re not going to do that. We\'re not alone.

12 We\'re not unique. There are a number of ADs

13 around this table, as a matter of fact, who

14 would never allow that to happen.

15 So it would happen some. It

16 would still make it better nationally than

17 anything we\'ve ever dreamed about for women and

18 there would be a number of us that wouldn\'t even

19 allow that to happen on our campuses.

20 MR. LELAND: We\'ve got one more

21 question. Bob, do you have a question?

22 MR. BOWLSBY: Debbie, just so I

23 understand what you are proposing, you would

24 be talking about a base of 50 percent \--

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1 50/50 participation-wise and also 50/50

2 scholarship-wise?

3 Would those same two variances

4 be in place in both because you had mentioned

5 the walk-ons? Would the only variance be available

6 in walk-ons or would that scholarship variance, in

7 your vision, also be present?

8 DR. YOW: In my vision, there

9 would be the variance available for both because

10 of the issues of people transferring in both male

11 and female.

12 MR. BOWLSBY: Okay.

13 DR. YOW: We don\'t know when

14 that\'s going to happen or kids that quit teams

15 or academically become ineligible, you know, it

16 happens all throughout the year.

17 MR. BOWLSBY: Thank you.

18 MS. COOPER: I have a quick question.

19 Would that variance be different for participation

20 as opposed to scholarships?

21 DR. YOW: As I presented it, Cynthia,

22 no. It would be the same. It would be seven

23 percent although there was a question about what I

24 meant by seven percent.

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1 MR. LELAND: Okay.

2 DR. SIMON: I just want to say I

3 think that\'s a very interesting idea, Debbie.

4 I think that it loosens things up sufficiently,

5 that it gives enough opportunity to handle

6 special problems and we\'re not stuck with strict

7 proportionality. I think it\'s a very interesting

8 idea.

9 DR. YOW: Why, thank you, Rita!

10 MR. LELAND: Okay. Other thoughts and

11 comments?

12 DR. YOW: I\'ll pay you later!

13 DR. SIMON: Good!

14 MR. LELAND: Julie?

15 MS. FOUDY: I just have problems

16 with the variance issue and the fact that you are

17 creating a situation that is essentially unequal

18 and we need to be very cautious about that.

19 DR. YOW: Julie, just hang onto this

20 thought. You\'re not going to get everything you

21 want. Compromise, compromise, compromise. Think

22 of this, if it were seven percent as you described

23 it, how would you feel about it? Not the 14 percent

24 thing, but \--

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1 MS. FOUDY: I think the variance is

2 still too large.

3 DR. YOW: Oh, my. Okay.

4 MR. LELAND: Okay. I think there

5 is enough support that we could pass this on

6 without taking a show of hands and at least ask

7 the staff to clarify and work with Debbie on the

8 issues that have been brought up so when we come

9 back in January, we\'re clear. Thank you again.

10 Cary?

11 MS. GROTH: My turn?

12 MR. LELAND: Yes, ma\'am.

13 MS. GROTH: I have actually two

14 recommendations that kind of go hand-in-hand.

15 Is that okay? They kind of trail a bit.

16 MR. LELAND: Well, let\'s say we

17 have one with two parts.

18 MS. GROTH: Okay. One with two

19 parts.

20 MR. LELAND: That way, we can feel

21 more comfortable.

22 MS. GROTH: Consistent education

23 and enforcement of Title IX by the Office for

24 Civil Rights and that goes hand-in-hand with

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1 what Gene had recommended with the enforcement

2 and then also piggybacking on what Graham had

3 said about the safe harbor, to eliminate the

4 safe harbor would, in fact, allow the opportunity

5 for those three tests to be looked at equally.

6 If we were to do that, and I would encourage us

7 to redesign the EADA report so that it does not

8 only list the proportionality as the prong one

9 because that\'s the perception and it encourages

10 the perception that that is the only prong that

11 is a safe harbor.

12 MR. LELAND: Okay. Comments and

13 questions for Cary? That was a nice one with

14 three or four parts, but that\'s okay.

15 MR. SPANIER: Yes. I have one

16 comment. I think, you know, for opening up

17 the discussion of the EADA report, where does

18 the mandate from that come from by the way?

19 Was that an act of Congress or was that something in

20 your \--

21 MS. STROUP: It\'s statutory. The

22 requirements for EADA and the actual specific

23 line items that get reported are all reported \--

24 are all part of the \-- they are in the Higher

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1 Education Act. So it\'s statutory. It takes

2 an act of Congress.

3 MR. SPANIER: The one that\'s up

4 for renewal right now?

5 MS. STROUP: Yes. That\'s right.

6 MR. SPANIER: So this is very timely?

7 MS. STROUP: This is very timely.

8 MR. SPANIER: Does the Higher

9 Education Re-Authorization Act include specifics

10 like, you know, financial data and things like

11 that? Is it that specific or did the department

12 decide what should go into the 30 or 40 or 50

13 pages?

14 MS. STROUP: I would say, Graham,

15 some of it is through regulatory process, but

16 a lot of it is very specific if you read the

17 statute. It really says, you know, assistant

18 coach numbers, salaries, men, women, I mean,

19 it\'s very specific when you look at the

20 legislation.

21 MR. SPANIER: Because I think since

22 you brought this up, I guess my comment is \-- I

23 mean, I like the idea of taking a look at the act,

24 but I think we should really encourage that it be

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1 taken a look at, not just do we add a box that

2 says we are following prong three.

3 I have not met an athlete yet

4 who has ever looked at those data. I mean, our

5 country is spending a lot of money and staff time

6 getting that up on the web and as far as I know,

7 the only \-- I mean, there is just a handful of

8 people who look at, a couple of them like Welch

9 here in the audience taking notes and, you know,

10 they do something with it, but I\'ve never met an

11 athlete yet who actually looked at it.

12 So my suggestion would be if

13 we\'re going to take a look at it, let\'s redo

14 it so it\'s a report of maybe a few pages with

15 relevant information that somebody might be

16 actually interested in looking at.

17 How Boston College pays for

18 the medical costs of its student athletes,

19 whether it\'s coming out of this budget or that

20 budget, whether it\'s listed under this category

21 or that category, is completely irrelevant to

22 a public reporting, but there may be some other

23 things that aren\'t in there that actually might

24 be kind of interesting sort of as a consumer

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1 oriented bit of information.

2 Anything that we could do to

3 cut down on unnecessary paperwork, unfunded

4 mandates, staff time, hundreds, collectively

5 tens of thousands of hours of effort to fill

6 out reports that nobody ever looks at is just

7 a colossal waste. So I would say let\'s take a

8 fresh look at the EADA.

9 MR. LELAND: Let\'s \--

10 MS. STROUP: Could I say one thing?

11 MR. LELAND: Yes.

12 MS. STROUP: You now stole my

13 recommendation although I was going to actually

14 frame it in two ways and say one consideration

15 is to recommend to the Secretary that he support

16 the repeal of it and get rid of it all together.

17 A lot of what you said is true. People don\'t

18 use it. We don\'t use it for any purpose at all.

19 We literally pay a contractor to load it to the

20 web site and stick it up there.

21 Half of the time, we don\'t

22 know if the data is right. I mean, we have no

23 way of knowing if you are reporting the right

24 numbers. The Department of Education, we would

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1 never be able to tell. We have to take your

2 word for it that you are actually giving us

3 good data.

4 If what everyone says is true,

5 and I have no reason to doubt you, half of

6 it is irrelevant and not comparable across

7 institutions so I don\'t know what value it has.

8 You are right, it is costing everybody a lot

9 of time and effort.

10 My second point of that was

11 going to be if I don\'t want to vote for repealing

12 it, we need to fix it, and make it something

13 that has some value to people. It is a consumer

14 disclosure product for us. I mean, it\'s in the

15 law as a consumer disclosure issue. That\'s why

16 Congress adopted it. We use it as that purpose.

17 It\'s part of a consumer disclosure issue for us.

18 MR. LELAND: Well, Cary, would you

19 accept the possible elimination of it as a friendly

20 add-on to yours?

21 MS. GROTH: No. I would prefer that

22 we not eliminate, but \--

23 MR. LELAND: Okay.

24 MS. GROTH: \-- that we do what Graham

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1 suggests, that we look, we revise it and we make it

2 an appropriate document that people can use and are

3 using.

4 MR. LELAND: Revise and appropriate to

5 the three prongs, correct?

6 MS. GROTH: Uh-huh.

7 MR. LELAND: Okay. Then we still \--

8 if you want to make your \-- Julie, do you have a

9 question?

10 MS. FOUDY: That\'s fine.

11 MR. LELAND: Okay. Other thoughts

12 and questions on, really, the two-part

13 recommendation that Cary has made? We\'ll skip her

14 next time around! No, just kidding.

15 MS. COOPER: We\'ll go to Percy.

16 MR. SPANIER: Put both

17 recommendations. I mean, since \-- you know, a lot

18 of the things that are on the table so far like what

19 Debbie has done and some of the others, we can\'t

20 vote everything up in January because some of them

21 are in conflict.

22 MR. LELAND: Correct.

23 MR. SPANIER: So why not have \--

24 you know, let\'s keep it grossly amended, but let\'s

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1 eliminate it and then we\'ll have to lean one way or

2 another on it.

3 MR. LELAND: Yeah. I think when

4 Cynthia and I talked about the procedures, we \--

5 last night for today\'s meeting as we move forward,

6 I think we understood there would be contradictory

7 proposals at this time that we would ask the staff

8 to write up and we\'ll try to settle those

9 contradictions, if we have to, at the January

10 meeting, but let\'s not squelch anybody\'s ideas

11 as long as there is some support from other

12 commissioners for what is suggested.

13 So I think, Graham, we anticipated

14 what you are talking about and think that\'s probably

15 perfectly appropriate to have a little bit of

16 contradiction here. Any other thoughts on Cary\'s?

17 Okay. Percy?

18 MR. BATES: Thank you. I could

19 actually say ditto to Gene and Graham, but since

20 I have five minutes, I don\'t want to waste it.

21 Unlike Debbie, I guess I want to

22 put in a pitch for prongs two and three. I think

23 we have heard people complaining about the safe

24 harbor and how they got there and feeling forced

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1 into it and asking for some flexibility and I guess

2 I think that two and three actually provides that

3 kind of flexibility.

4 By way of my top recommendation,

5 it seems to me that we need to look very carefully

6 at this legislation and provide clear and

7 understandable structures and guidelines for

8 implementation.

9 Now, certainly a lot of this focus

10 might be on prongs two and three to make them, of

11 course, more workable entities, but we\'ve also heard

12 that we need to do something as well with clarifying

13 prong one.

14 We have heard repeatedly that

15 there essentially has been only one viable prong

16 and, of course, that being number one, but prongs

17 two and three, in my view, are very viable and it

18 should, of course, be an integral part in the

19 implementation of this legislation.

20 It seems to me we\'ve heard part

21 of the reason why some people may or may not have

22 been in compliance is that the rules and regulations

23 were not clear, the communication was not

24 necessarily clear. I think we need to make every

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1 effort to make sure that those who go in to examine

2 and those who have to participate all understand

3 what is being asked of them. It seems to me we\'ve

4 heard that there is some lack of communication on

5 that.

6 Now, once we have that level of

7 clarity, then, I think we must talk about stronger

8 sanctions for failure to comply because I\'d like to

9 get rid of the notion that if I understood better,

10 if it were clearer, I might be in compliance. I

11 think we need to make it absolutely clear that there

12 is no way that one can misinterpret what is being

13 asked of them.

14 Now, once we have that, and that\'s

15 when I go to the second level to talk about \-- now,

16 I\'m willing to talk about sanctions and believe me,

17 if there are no sanctions, there is no reason to

18 require anything because it\'s not a requirement if

19 there are no sanctions. So out of all of this,

20 we\'ve got to come up with a way, it seems to me, to

21 say if we\'re going to put the work into getting you

22 to understand what it is, once we understand it, if

23 you don\'t now do it, then, there will, in fact, be

24 some clear sanctions for it.

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1 So that\'s my top recommendation

2 and I hope Debbie agrees that we ought to hang onto

3 two and three a little bit longer.

4 MR. LELAND: It seems to me that

5 there\'s two \-- sort of two new ones besides the

6 dittos and that was strong support for two and three

7 and then strong support for some kind of sanctions

8 program based on criteria of some kind.

9 MR. BATES: Correct.

10 MR. LELAND: Let\'s discuss those, if

11 you agree, Percy, those are the \-- sort of the gist

12 of your thoughts.

13 MR. BATES: Right. Those are the two

14 issues.

15 MR. LELAND: Let\'s have conversation

16 on those two issues; strong support for two and

17 three and the sanctions issue. Any thoughts?

18 MS. FOUDY: Can I just add one detail

19 to, I think, both Cary and Percy\'s points about one

20 of the things that I had recommended was including

21 athletic closure letters to universities and high

22 schools and junior high schools so that they

23 understood, you know, how this university has

24 complied and how this one has or this school and

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1 the sharing of more examples for better

2 understanding?

3 MR. LELAND: Uh-huh. Yes?

4 DR. YOW: I appreciate and agree with

5 Percy\'s emphasis on enforcement given our 30-year

6 history here with no \-- with being sanctioned as

7 threatened, but I would like to say that I think

8 that that also lends itself to having standard that

9 is objectable, easily understandable so that it can

10 also be easily enforced.

11 MR. BATES: That\'s all implied in what

12 I was saying.

13 MR. LELAND: Yes.

14 MR. BATES: Do one and then the other.

15 MR. LELAND: Okay. Other \-- Rita?

16 DR. SIMON: I just want to say that

17 I think the issue of sanctions is very important,

18 Percy, in areas that I have done a great deal of

19 work. The absence of the enforcement of sanctions,

20 which were written into the law has made the law

21 meaningless.

22 For example, on transracial

23 adoption, there is a law that was passed, I helped

24 get it passed, race should not be a factor in

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1 adoption. The sanction was if states violate that,

2 then, federal funds are withheld, but it\'s not been

3 enacted at all and, therefore, it\'s the same old

4 business as unusual. There has been no change.

5 Really, race is taken into account in most

6 instances.

7 Another area is sexual trafficing.

8 We had a law passed a few years ago, which did

9 provide some sanctions and that has so far really

10 not been operative.

11 Unless you have sanctions, I think

12 the meaningfulness of the law will not be workable.

13 MR. LELAND: All right Great. Other

14 thoughts or concerns? Okay. Thank you, Percy.

15 Sally?

16 MR. BATES: Did I use all of my five

17 minutes?

18 MS. STROUP: I\'ll go back to mine

19 since I\'m the one who has gotten beat up over EADA,

20 you know, by Graham for the past day and a half and

21 just say again the reason I \-- I would just at least

22 consider recommending eliminating it is because I

23 worry about what we are using it for. I listen to

24 all of you talk about it at these things and I

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1 listen to the people who testified about it and

2 it seems to me people are looking at the EADA report

3 that we post on the web and say this is some

4 accurate picture that we should use to judge whether

5 or not someone is in compliance with Title IX. No.

6 That is not correct. We do not go back and audit

7 that information.

8 I know from experience and from

9 talking to people that lots of athletic directors,

10 they just sort of pass it around and figure out what

11 the numbers should be and send it to us. We post

12 it. That\'s what we are supposed to do with the

13 information. We do not sit there and go back and

14 audit, recheck and say is this right or is this

15 wrong.

16 If you are using it to judge

17 somebody, you are using it for an incorrect purpose.

18 That\'s just not what we do with it. So it worries

19 me that you talk about fixing it. I don\'t know how

20 you fix it. All I\'ll say is I\'ve actually looked at

21 this because I have to worry about reauthorizing the

22 Higher Education Act and so it\'s on my list of

23 things to do, and I have gone through some of the

24 reporting and said how are you going to change this

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1 to ensure to anybody out there that it\'s actually

2 accurate information? I don\'t know how we do that.

3 It is very complicated. It\'s 40 some pages long.

4 We ask you every nit known to man about what\'s going

5 on at the athletic department.

6 Again, it\'s statutory \-- most of

7 that is statutory. Don\'t get me wrong, it\'s not

8 because anyone at the Department of Education in the

9 past has decided that\'s the way it should be done.

10 I think it is something worth considering. Maybe

11 it\'s scrapping it and proposing something else that

12 everyone can agree to that is information that has

13 some value, that you want the department to have on

14 its web site and use for disclosure purposes mainly

15 for students making decisions on choosing colleges.

16 But this is one that I just see

17 people using it in a way that it\'s not intended. We

18 have other web sites that do this. We post all of

19 your costs at your colleges. That\'s on our web

20 site. That\'s good disclosure information. You

21 can\'t really fudge those. People know what your

22 tuition is. They know what you are charging. It\'s

23 in your handbook.

24 On this one, I don\'t feel we get

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1 the same level of accuracy. That\'s what worries me

2 about trying to do this kind of reporting. So I

3 would again at least advocate that you consider

4 proposing support for eliminating it.

5 MR. LELAND: Okay. Thoughts and

6 questions?

7 My concern about eliminating it

8 is, first of all, maybe we need to eliminate and

9 reinvent it, but I think a lot of us would \-- sort

10 of the gist of the testimony I\'ve heard and what

11 I\'ve heard from commissioners is they would like to

12 have some public acknowledgment not only of prong

13 one, but prong two and prong three. You know, the

14 only way to do that right now is the ADA form.

15 So maybe it\'s a different kind of

16 form, but I think there is a concern that university

17 presidents would like a way to have a public

18 acknowledgment of their compliance with Title IX.

19 That\'s why, you know, somebody like Cary or myself

20 would think, gee, let\'s put prong two and prong

21 three on the EADA report.

22 Maybe we need to eliminate the

23 EADA report and have something come out of a whole

24 different branch of the Department of Education that

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1 deals specifically with Title IX compliance and has

2 the right kind of signatures.

3 MS. STROUP: Just remember, this

4 is a reporting mechanism. You simply transmit

5 information to us and we\'ll put it up there, you

6 know, no matter what you would decide that

7 information should be. Again, we are not ensuring

8 that it\'s accurate information. That\'s not part of

9 the process.

10 I don\'t know exactly how you do

11 two and three in a new web environment of reporting.

12 It\'s one thing to have a 40-page data thing because

13 we can just plug up the data. We just fill the

14 fields with your information. Trying to do an

15 explanation of how you are complying with something

16 is a whole other issue that would have to be

17 resolved if you go down that road, but I understand

18 what you are saying.

19 MR. LELAND: Okay. Graham?

20 MR. SPANIER: Well, just to your

21 point, Ted, the NCAA has \-- requires its members to

22 do a rather massive amount of reporting on this and

23 other issues as well. So by eliminating the EADA,

24 we, in the NCAA, have decided nevertheless to do

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1 certain kinds of reporting and, you know, I have no

2 doubt that if we eliminated the EADA as a federal

3 mandate, that the NCAA and its members would still

4 decide what kinds of information it wanted to put

5 out and that is a voluntary association governed

6 by its members.

7 I\'m just not worried about the

8 elimination of that because the key things that we

9 all wanted \-- the NCAA is so historically committed

10 to a level playing field and, you know, sharing

11 certain kinds of information so we all know we are

12 in the right zone, I don\'t think that\'s the case

13 that if we eliminated that through the Higher

14 Education Reauthorization Act that we would be left

15 with no public information about how we\'re doing on

16 a number of things.

17 MR. LELAND: Okay. All right.

18 Anything else? Julie?

19 MS. FOUDY: I don\'t claim to be an

20 expert on the EADA at all, but from what I have

21 heard, and Graham has said that he doesn\'t know

22 of a student that\'s looked at it, I heard there is

23 some value to it in terms of looking at different

24 numbers and figures. I know there is some inherent

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1 problems with it that clearly need to be addressed,

2 but I would be against eliminating it because I

3 think it does serve a purpose.

4 MR. LELAND: Okay. Other comments?

5 I feel some support for this so we should pass it

6 forward to the staff. Brian?

7 MR. JONES: Actually, I\'m going to

8 defer on this round. Imagine that, a lawyer with

9 nothing to say!

10 MR. LELAND: Okay.

11 MR. JONES: Percy can have my five

12 minutes if he\'d like. I\'ll defer. Thanks.

13 MR. REYNOLDS: Ditto.

14 MR. LELAND: Julie, are you ready?

15 MS. FOUDY: I\'m shocked, Jerry.

16 I keep coming back to this arm\'s

17 race issue, but I see it as central to what we are

18 discussing and I don\'t mean that we are going to

19 eliminate football or basketball or anything like

20 that, but I think that we can all agree that there

21 is a problem with excessive expenditures at the

22 collegiate level and resources and the fact that we

23 have a finite pie has become a major issue in many

24 decisions on whether you are keeping teams, cutting

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1 teams, whether you can add a team.

2 So it always comes back to the

3 resource issue. My recommendation deals with that.

4 I know \-- I agree with Bob that, you know, this

5 isn\'t the place to figure out how we are going to

6 address that, but I think we need to make some sort

7 of strong recommendation that this is a huge issue

8 that could help alleviate some of the problems

9 associated with Title IX.

10 So my recommendation goes

11 something like this: The Department of Education

12 should encourage educational institutions and

13 national athletic governance organizations to

14 address the issue of reducing expenditures in

15 intercollegiate athletics on a national level.

16 Having adequate financial resources is more likely

17 to contribute to the retention of participation

18 opportunities for the over-represented gender and

19 the expansion of opportunities for the

20 under-represented gender.

21 MR. LELAND: Okay. Did you guys

22 write that down? She read it a little fast. I\'m

23 just kidding! Hopefully, we\'ll get a transcript.

24 Let\'s discuss it.

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1 MR. SPANIER: Well, I\'m very

2 supportive of having that recommendation, but

3 let me just tell everybody that I have had the

4 experience of being on the witness stand for

5 several hours in one of the nation\'s major antitrust

6 cases that resulted in a judgment of tens of

7 millions of dollars against the NCAA because I

8 was chairman of the board, Division I board of

9 directors, at the time.

10 While I\'m very supportive of that

11 recommendation, I think that group needs to discuss

12 this at another level because implied behind that is

13 the question of whether this Commission would want

14 to urge the Secretary of Education being an advocate

15 for and the Bush administration being an advocate

16 for some limited antitrust exemption for

17 intercollegiate athletics.

18 The idea of curtailing the

19 arm\'s race in athletics really comes down to

20 those categories of expenditures that while not

21 necessarily unique to intercollegiate athletics,

22 are very profoundly at the heart of the arm\'s race

23 of intercollegiate athletics.

24 Salaries and employee benefits in

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1 athletics has a preponderance of costs in personnel.

2 It\'s a very people intensive business. Things like

3 travel, which are a big part of our budgets because

4 we are flying our athletes all around, we have

5 nothing to do there other than to alter our

6 schedules or to pay whatever the escalating travel

7 costs are.

8 But the NCAA \-- to the extent

9 that there are limitations and expenditures, the

10 NCAA is only able to provide limited support there

11 in certain categories like you can only have 13

12 scholarships in men\'s basketball and that is

13 considered to be an acceptable limitation. But

14 there are other categories of expenditures that

15 universities in the NCAA have been unable to

16 legislatively control because of antitrust concern.

17 So I support that recommendation,

18 but I think it\'s important to take a minute to go a

19 step further and to ask whether it\'s a part of that

20 recommendation or a separate one.

21 Does this Commission want to ask

22 the Department of Education or the administration to

23 explore that limited antitrust exemption for

24 intercollegiate athletics? That\'s probably, in

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1 my opinion, what it\'s going to have to \-- I mean,

2 other than some unknown level of internal discipline

3 where we all wink at each other and say, no coach

4 should be paid more than a million dollars or

5 whatever we would wink at each other, but we need

6 to address that issue, I think.

7 MR. LELAND: Tom?

8 MR. GRIFFITH: You are going to be

9 deposed again if you keep talking about winking at

10 each other. That wink would be illegal.

11 MR. SPANIER: Well, I\'d love your

12 comments on this as A, as a general counsel and B,

13 as a former legal counsel for the Senate.

14 MR. GRIFFITH: I think you are right.

15 If the Commission decided that there was something

16 the law could do about the arm\'s race, I don\'t think

17 there is any question, we\'ve discussed this many

18 times before, that you need to get an exemption from

19 existing antitrust laws, which make it illegal right

20 now for college presidents to agree among themselves

21 to restrict the salaries that they pay to their

22 coaches. That is against the civil and criminal

23 laws of the United States today. That would be a

24 really significant recommendation.

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1 I, for one, would not favor it

2 for a whole host of reasons, but I think Graham is

3 right, that\'s at the heart of that. The only way

4 the law could get at that issue is by changing the

5 law in a very fundamental way. Now, it\'s done \--

6 it\'s done for major league baseball. Let\'s

7 recognize that it\'s not unprecedented, it would \--

8 that\'s what it would take to do that.

9 I, for one, wouldn\'t favor it

10 because generally speaking, I\'m in favor of what the

11 marketplace is and I think efforts to restrict the

12 marketplace generally, as history has shown, doesn\'t

13 work very well. I\'m not certain there isn\'t a role,

14 however, for the Secretary of Education or the

15 President or whoever, to use a bully pulpit to talk

16 about, you know, how colleges and universities ought

17 to properly spend their money. I think that\'s a far

18 cry from the other alternatives. This would require

19 major revisions of the law.

20 MR. LELAND: Julie?

21 MS. FOUDY: I think there is a few

22 different levels here. That antitrust exemption is

23 one, which I think if you put it in light of the

24 fact that we\'re talking about universities when the

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1 principal goal is to educate instead of be a

2 professional athletic organization, then, I think it

3 sheds a different light on it.

4 I think the second thing is you

5 have \-- you have other expenses that many people

6 have talked about as panelists that have come in

7 with testimony about a 300-page color brochure, a

8 night before games and hotels, and that \-- we know

9 it\'s not as expensive to keep a wrestling team or

10 a swimming team when it\'s a couple hundred thousand

11 dollars and looking at and tweaking budgets in a way

12 where you do it across the board where it\'s not just

13 one school at a time where you are mandating across

14 the board so it\'s not affecting the competitive

15 balance is something that\'s another level, I think,

16 that should be addressed and recommended because

17 it\'s not going to impact the performance of their

18 team necessarily or their entire athletic program,

19 yet it has the potential of saving many men\'s teams,

20 which brings us here essentially.

21 MR. LELAND: Okay. Debbie?

22 DR. YOW: Julie, it\'s an idea that

23 has been discussed for years and years and years.

24 It\'s called cost containment and we run through

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1 these cycles in the NCAA where we define the number

2 of colors on stationery that people can have and in

3 those big brochures, which pages can be color versus

4 which ones have to be black and white. So just

5 know \--

6 MS. FOUDY: I know that. I know that

7 it\'s been discussed. My issue is that it\'s never

8 been taken to the next step where it\'s just gone

9 from discussion to let\'s enact something that

10 actually causes these universities to do more cost

11 containment.

12 DR. YOW: Good luck.

13 MS. COOPER: Rita?

14 MR. LELAND: Rita?

15 DR. SIMON: I just want to say that

16 there \-- we have data that shows there is a strong

17 relationship between improvement in the educational

18 performance and the standards of \-- scholarship

19 standards of universities and how well their

20 athletic programs are.

21 Living in the Washington D.C.

22 area, I\'ve seen two very dramatic examples of that.

23 As the athletic programs have gotten better and as

24 their teams do well, you get better students

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1 applying to the university. We have perhaps more

2 prestigious faculty members wanting to be members

3 of that university so that there is a very strong

4 relationship and some coaches who may get more than

5 a million dollars probably deserve it because they

6 are doing other things besides building a strong

7 sports program.

8 They are, in fact, enhancing the

9 overhaul prestige of the university. I always tell

10 the president of my university go out and buy a good

11 basketball team if you want to enhance the

12 university!

13 MR. LELAND: Rita, I\'m appearing

14 before the faculty senate at Stanford. We\'d love

15 to fly you out for that little comment if you could

16 tell our faculty there that.

17 I think there seems to be enough

18 support to move this forward at least into the next

19 phase.

20 MR. BATES: But in what form? I guess

21 I want to \-- because I think we have heard about

22 three different formats; the bully pulpit, the \--

23 MR. SPANIER: Well, I would be very

24 comfortable just supporting that as you wrote it and

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1 then asking the staff to think about a separate one

2 as kind of an adjunct that deals with this legal

3 side of cost containment issue.

4 I\'m not sure, like Tom, if I

5 support it, you know, what I would support in that

6 area myself, but I think it is naive if we don\'t

7 put that out there as an important issue that

8 somebody has to face up to and talk about.

9 MR. BATES: Yes.

10 MR. SPANIER: Otherwise, just talking

11 about cost containment, you know, as Debbie said, I

12 mean, the NCAA has already passed rules that are

13 designed to contain about every imaginable cost that

14 can be contained that doesn\'t get you into legal

15 trouble trying to contain.

16 MR. BATES: Yes. Ted, I guess I just

17 wanted to simply add that it\'s pretty clear. I

18 think Bob called it a train wreck about to happen

19 somewhere down the road and this is an area where we

20 have to do something.

21 I guess I believe that we are not

22 going to be able to somehow police it ourselves

23 because it is an arm\'s race. If Ted is going to do

24 it, we\'re going to do it, Gene is going to do it and

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1 it keeps going and we are not going to stop it.

2 If it\'s going to be stopped, it

3 has to be from an entity that\'s out \-- that\'s

4 someplace \-- that\'s somehow outside of the current

5 arena. I think we have to decide whether we want

6 to really take it on while at the same time

7 recognizing anything softer than some sort of

8 antitrust exemption, no matter how minimal, that

9 is probably the only way if we are looking for some

10 realistic change in this area that we are going to

11 get it.

12 MR. LELAND: Gene? Then, we will move

13 on.

14 MR. DeFILIPPO: I definitely think

15 that these are issues that we need to look at, but

16 I would like to ask are we in athletics a whole lot

17 different than the rest of our campuses? I mean,

18 we\'re all competing for the very, very best

19 students.

20 Go on any of our campuses and

21 you\'ll see new construction and renovation. We\'ve

22 all found that the way to gain a legal edge in

23 getting the great students to come to our

24 institution is provide job placement upon graduation

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1 and to have great facilities. In all of our

2 campuses, we\'re competing for the best students.

3 I don\'t see athletics doing

4 anything that\'s any different than that. We\'re all

5 paying what we can pay for the best professors in

6 certain areas. We\'re trying to get the best

7 coaches. We\'re trying to have nice venues in which

8 our student athletes can play. I don\'t see that

9 we\'re doing a whole lot different than what the rest

10 of the campuses are doing.

11 MR. LELAND: Okay. Other comments?

12 Bob?

13 MR. BOWLSBY: I think this is a good

14 discussion and it\'s one we\'ve had \-- it\'s been a

15 recurring theme over the \-- throughout our hearings.

16 I think we are all coalescing around some ideas, but

17 it probably is also appropriate to interject that

18 the \-- while we have talked about facilities and

19 salaries and a number of our areas of escalation, on

20 my campus, and I think that probably it\'s consistent

21 across most of our country right now, is the area

22 where we have the fastest escalation in baseline

23 costs is in tuition and fees, room and board.

24 That\'s because of difficult

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1 economies throughout our country and because

2 institutions \-- at the University of Iowa, our

3 tuition and fees went up 18 percent last year and

4 19 and a half percent this year. I don\'t have

5 another area of expenditure within my program that\'s

6 going up anywhere close to those rates. You know,

7 that\'s \-- for me, the escalation in cost and the

8 train wreck we\'ve talked about is only tangentially

9 involved in the issues of equity.

10 It has \-- it affects our program

11 from stem to stern and it\'s not going to go away

12 around equity issues any more than it\'s going to go

13 away around any other single aspect of expenditure

14 within our program.

15 We have some very serious funding

16 problems in athletics and in higher education in a

17 larger context. So for us, tuition and fees and

18 room and board is escalating a lot faster than the

19 two percent salary increase we had last year.

20 MR. LELAND: Okay. Other thoughts and

21 comments on Julie\'s recommendation?

22 Okay. Hearing none, Tom?

23 MR. GRIFFITH: I have a substantive

24 recommendation and then I have a process one that

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1 would apply to all of them, but fearing that the

2 chairman may not let me get to the second one, let

3 me do the first one, the substantive one.

4 It\'s a simple one and that is,

5 it comes out of the discussion we had late yesterday

6 about strict proportionality versus substantial

7 proportionality. My recommendation would be that

8 if substantial proportionality is retained, and I

9 think there is a political will to retain

10 substantial proportionality, I think everyone

11 agrees that it has achieved some significant measure

12 of success, that if substantial proportionality is

13 retained, that the OCR clarifies what substantial

14 proportionality means and we move away from the

15 regime we have now, which, for many colleges and

16 universities, is, I think, better described as

17 strict proportionality.

18 If it\'s really one percent, if

19 we have OCR regional offices that are interpreting

20 it as diminimus or one percent, I think it needs

21 to \-- there needs to be more flexibility and that

22 we need to capture a better idea of what is

23 substantial proportionality. I think it at least

24 has a common sense meaning and I would go in the

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1 range of what Debbie is talking about.

2 I would say seven to nine percent.

3 Something in that range is more akin to substantial

4 proportionality than the regime right now, which I

5 think is better described as strict proportionality.

6 So I would say that substantial proportionality

7 should be clarified to be in the range of seven to

8 nine percent.

9 MR. LELAND: Variance versus whatever

10 population measure we use?

11 MR. GRIFFITH: Yes, that\'s right, yes.

12 I\'m talking about affecting the numerator. I\'m open

13 to the other suggestions about what the denominator

14 ought to be, but I\'m saying if you took it right now

15 where the denominator is student enrollment, and I\'m

16 not necessarily in favor of that, but if you took it

17 right now, at the very least, there ought to be the

18 variance of seven to nine percent because that\'s

19 more of what substantial proportionality means than

20 what we have right now, which is strict

21 proportionality.

22 That leads to my other

23 recommendation.

24 MR. LELAND: Is it short?

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1 MR. GRIFFITH: It will be short.

2 Whatever recommendations the

3 Commission makes that we recommend, that whatever

4 policy OCR goes forward with, that it takes either

5 the form of a proposed statute or takes the form of

6 a proposed regulation. Now, I \-- here\'s why I think

7 that\'s important. I\'m going to read from the

8 Constitution of the United States.

9 Article I, Section 7, it\'s called

10 presentment clause, says every bill which shall have

11 passed the House of Representatives and the Senate

12 shall, before it becomes a law, be presented to the

13 President of the United States. If he approves, he

14 shall sign it.

15 Article II, Section 3 of the

16 Constitution, the take care clause, says that one

17 of the responsibilities of the President is that

18 he shall take care that the laws be faithfully

19 executed.

20 Now, that\'s the way we make laws

21 in the United States of America. Without following

22 that process, a bill that\'s presented to the House

23 and the Senate, signed by the President, and then

24 faithfully executed by the President, unless you go

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1 through that process, in our system, it does not

2 have the force of law because it\'s not a product

3 of this very careful political process that was

4 designed by the framers to make certain that all

5 people had a chance to participate in the making of

6 the law.

7 If you look at the history of

8 Title IX, Title IX itself was a product of that

9 process. The 1975 regulations are a product of

10 that process because the take care clause describing

11 the President\'s responsibility includes his

12 responsibility through his administrative agencies

13 to propose regulations that have the force of law.

14 But the 1979 policy interpretation

15 was not done that way. It does not have the same

16 force of law that the statute itself and that the

17 regulations have. Now, so what? Is this just a

18 lawyer\'s argument? No, I think it makes a

19 difference here because in the 1979 policy

20 interpretation, as it has been used by some OCR

21 regional offices, something has happened that

22 contradicts what the framers of Title IX made

23 clear they never wanted to have to happen. They

24 never wanted Title IX to be used as a quota system.

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1 I don\'t think there is any

2 question, but the way that some of the regional

3 offices of OCR have interpreted the enforcement of

4 the 1979 policy interpretation has lead \-- has lead

5 to quotas in some cases.

6 Well, I think that\'s an example

7 of why whatever the Department of Education does,

8 it needs to be done with the force of law. I think

9 the Department of Education either needs to go and

10 suggest that Title IX itself be amended and

11 clarified, passed by Congress to take into account

12 these issues we are talking about right now or that

13 the Department of Education go through the

14 rulemaking process that\'s created by statue, but

15 failing to do that, I think, creates a product that

16 does not have the force of law and my experience has

17 been that the process is a great safeguard to avoid

18 aberrant interpretations that order people\'s lives

19 in a way that really doesn\'t have the force of law.

20 So that\'s my speech for why I

21 think whatever we do, we ought to recommend the

22 Department of Education either propose a statute,

23 which I actually would not be in favor of, or

24 propose regulations, which is what I would propose.

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1 MR. LELAND: Okay. Let\'s \--

2 substantial proportionality, there are two

3 suggestions by Tom.

4 Is there any discussion on

5 the issue of clarifying the idea of substantial

6 proportionality as opposed to what Tom said was

7 strict proportionality. Let\'s do that one first

8 and then we\'ll get to the second one.

9 MS. GROTH: Okay. Tom, let me \-- I\'m

10 not in favor of the range.

11 MR. GRIFFITH: Okay.

12 MS. GROTH: Let me tell you why.

13 Prongs two and three, if we\'re not \-- if we are

14 not offering equal opportunities, then, there are

15 two other prongs that we can use and I go back to

16 we would make prong one more like a prong two or

17 prong three if we were to do what you suggest.

18 Further, if we take Graham\'s

19 suggestion in getting rid of the safe harbor and

20 enforcing all three prongs equally or equitably,

21 I think it would take care of the issue that we\'ve

22 heard so often regarding proportionality in the

23 first prong.

24 Again, I think it\'s worth

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1 repeating if we\'re not offering equal opportunities,

2 we still have two other prongs that will put us into

3 compliance.

4 MR. GRIFFITH: See, I would quarrel \--

5 you are equating equal opportunities with strict

6 proportionality. I think that\'s a new idea. That\'s

7 not one that I would necessarily agree with. All

8 I\'m suggesting is the phrase that has been used

9 since at least 1979 is substantial proportionality.

10 How did that get to mean one

11 percent? If we \-- you know, if we were to go up

12 to people on the street and say, here\'s the phrase,

13 substantial proportionality, what do you think that

14 means? I\'d betcha virtually no one would think that

15 the common meaning of that is a one percent

16 variance.

17 That\'s really all I\'m saying.

18 If we\'re going to keep substantial proportionality,

19 and I think we should, it ought to be more flexible

20 than that. Now, maybe we ought to move to some

21 other regime such like Debbie is talking about.

22 Maybe we should start with a different baseline,

23 50/50, and move from there. I think that\'s really

24 another way of getting at the same issue that I\'m

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1 talking about.

2 MR. LELAND: Let\'s stick with this

3 substantial proportionality.

4 MS. FOUDY: To expand on that, to

5 me, it\'s more an issue of education, about what

6 substantial is, and the fact that \-- I mean, the

7 fact that yesterday, we pretty much illustrated

8 the example of no one knowing what it is and

9 everyone here is involved in that business directly

10 and yet we didn\'t know if it was five percent or

11 one percent or three percent. So the issue of

12 education is clear, that that needs to be enhanced.

13 Rather than changing what we have, let\'s make sure

14 everyone knows what we have.

15 DR. YOW: Julie, one of the problems

16 is this; if you\'re going to call it substantial

17 proportionality and then say it\'s plus or minus one

18 percentage point, let me just say to you that\'s a

19 target we cannot hit because we don\'t know who is

20 going to transfer, we don\'t know who is going to be

21 academically ineligible, we don\'t know who is going

22 to get pregnant and not be able to play, that

23 happens a lot now, they can\'t play that season, we

24 don\'t know who is going to say they didn\'t get

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1 enough playing time and they are transferring to

2 university X. All of those things are happening to

3 us all of the time. There is no wiggle room with

4 the one percent.

5 MS. FOUDY: This is why we have the

6 Cantu letter. The paragraph we found yesterday,

7 which we were asking about, it talks about \-- and

8 I\'ll read directly from the 1996 clarification

9 letter, it says, however, because in some

10 circumstances, it may be unreasonable to expect

11 an institution to achieve exact proportionality,

12 for instance, because of natural fluctuations in

13 enrollment and participation rates or because it

14 would be unreasonable to expect an institution to

15 add athletic opportunities in light of the small

16 number of students that would have to be

17 accommodated to achieve exact proportionality,

18 the policy interpretation exam is whether

19 participation opportunities are, quote,

20 substantially proportionate to enrollment rates.

21 Because this determination depends on the

22 institution\'s specific circumstances and the

23 size of its athletic program, OCR makes its

24 determination on a case-by-case basis rather

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1 than through use of a statistical test.

2 DR. YOW: Yes. And case-by-case means

3 that you now are involved in \-- you\'re always having

4 to prove where you are, get your attorneys involved,

5 create documents and if we\'re going to do that, it

6 shouldn\'t be called substantial proportionality.

7 It should be strict proportionality. Let\'s call it

8 what it is.

9 MS. FOUDY: But I think we can\'t

10 forget the reason behind Title IX is for the

11 athletes. You need some type of analytical form

12 to look at. If you don\'t measure up to the

13 analytical side of it, then, you have prongs two

14 and three to go to show why your numbers aren\'t

15 substantially proportionate.

16 DR. YOW: I think one of the

17 interesting things Cary said was in the use of

18 two and three, those prongs that \-- I think she

19 talked about being equitable. It\'s not equitable

20 in the sense that it\'s \-- you don\'t even know who

21 is going to review that. Who reviews it has

22 everything to do with what the outcome might be.

23 That\'s why I\'m looking for something that\'s easily

24 understood, a target that can be hit that provides

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1 some true substantial proportionality, which is what

2 Tom\'s recommendation does. Now, I don\'t agree with

3 nine percent, but that\'s another issue. The

4 concept, I believe, is right on target.

5 MS. FOUDY: Right.

6 MR. GRIFFITH: The number, I don\'t

7 know.

8 MS. FOUDY: And I \--

9 MR. LELAND: You can\'t go back, Julie.

10 MS. FOUDY: No?

11 MR. LELAND: Let\'s go to Graham first

12 and then we\'ll give you another chance.

13 MS. FOUDY: Oh, okay.

14 MR. LELAND: Now, I just have one

15 question. Do you want seven percent or nine percent

16 in your motion or do you want just substantial

17 proportionality?

18 MR. GRIFFITH: Let\'s say seven

19 percent.

20 MR. LELAND: Okay.

21 MR. GRIFFITH: Nine is \-- you\'re

22 probably right. Seven would be \--

23 MR. SPANIER: Well, I\'m not sure what

24 the right numbers are, but I think we have already

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1 all agreed, almost all of us, perhaps, have agreed

2 that we need some \-- there needs to be some further

3 clarification of these terms of proportionality \--

4 substantial proportionality and strict

5 proportionality and to the extent that that all has

6 to be rewritten, there has to be some guidance given

7 either through words or numbers what that means.

8 So I think your recommendation

9 has some merit with whatever the number would turn

10 out to be or some description in words of what the

11 general objective is.

12 I\'ll give you the example

13 at Penn State last year, we were one point some

14 percentage points off and I said to my athletic

15 director, I would like to be within one percent by

16 this fall. That was my charge to him. Be within

17 one percent. We were close last year and there were

18 some reasons he had why it was off.

19 Well, he came in sheepishly at

20 the beginning of this year with the report, very

21 apologetic, I think he maybe thought I was going to

22 fire him or something because he was at 1.3 percent.

23 Well, there were a couple of women on the basketball

24 team who transferred or didn\'t come back eligible or

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1 something. I can\'t remember what all the details

2 were, but there were about a half a dozen people who

3 had an individual story, which collectively added up

4 to three-tenths of a percent.

5 He thought we were going to be

6 within one percent and then the summer is over and

7 the athletes come back, you know, I don\'t know, some

8 have this problem, that problem, some didn\'t come

9 back at all, and there you\'ve got it. I mean, it\'s

10 sort of what you\'ve described and so, you know, here

11 I was trying to get the athletic department to

12 achieve a particular number and we didn\'t get there.

13 So we need to have \-- there needs to be some real

14 life understanding and flexibility.

15 What it is, I\'m not sure, but I

16 think your suggestion has merit because what you

17 are really saying, Tom, is we\'ve got to have some

18 clarification of what those terms mean and what the

19 objectives really are and if it\'s a number, come up

20 with a number whether it\'s seven or nine or five or

21 whatever. You know, pick your number.

22 MR. LELAND: Okay. Rita and then

23 Julie.

24 DR. SIMON: All I want to say, in

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1 other words, we need operational definitions. When

2 we talk about substantial proportionality, we need

3 numbers. When we talk about expansion, when we talk

4 about sanctions, we need to put in some operational

5 definitions. Verbal terms may not be enough on

6 these things.

7 MR. LELAND: Okay. Julie, did you

8 have more?

9 MS. FOUDY: I just think we need to be

10 careful. It\'s a civil rights law. When we put in

11 numbers and variances, the nature of it is you\'re

12 going to go to the point of least resistance.

13 You\'re going to go to that number. So, in essence,

14 you are creating an inequality with these numbers

15 and we can look at the variance level we\'re going

16 to choose or we\'re going to recommend, but I think

17 we need to be very careful because it is a civil

18 rights law and you are tampering with equal

19 opportunities.

20 MR. LELAND: Yes, Tom?

21 MR. GRIFFITH: You don\'t have any

22 water that you\'re going to throw on me when I

23 respond to that, do you?

24 I think that you\'re right to be

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1 concerned about that. I think the safeguard there

2 we should never forget is if there is intentional

3 discrimination, that\'s illegal. We\'re not talking

4 about cases where it\'s clear that people are being

5 discriminated against. If that\'s going on,

6 regardless of the numbers, that\'s wrong and that

7 can be redressed.

8 What we are talking about

9 now is when you don\'t have clear, intentional

10 discrimination, what are your guidelines? In that

11 way, Title IX is far more protective of any possible

12 civil rights interest than any other statute. So I

13 want to be clear that you\'re right. If someone has

14 that seven percent variance here and yet it can be

15 shown that they are intentionally discriminating

16 against female athletes, under this proposal, they

17 still get nailed, as they should.

18 MR. LELAND: Okay. Any other

19 components on this substantial proportionality?

20 Brian?

21 MR. JONES: No.

22 MR. LELAND: Okay. I think there is

23 enough support, it seems, to move that forward.

24 Let\'s talk about the second part

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1 of our question here and that\'s in terms of the

2 process that we\'d ask \-- that we\'d suggest that the

3 government would follow if and when they decide

4 to interact \-- you know, reevaluate and relook at

5 this whole issue.

6 Does anybody have any questions

7 for Tom about that? None of us are quite up to

8 snuff on the whole \-- okay. Let\'s \-- we will pass

9 that. Go ahead.

10 DR. YOW: I\'ve got a question for you.

11 Tom, if it were a regulation,

12 which I think is Congress versus a statute, which

13 is OCR \-- that\'s wrong?

14 MR. GRIFFITH: No. Actually, the

15 regulation would be \--

16 DR. YOW: That\'s wrong? It\'s the

17 other way around. Thank you.

18 MR. GRIFFITH: \-- with the Department

19 of Education and \--

20 DR. YOW: You can tell that I don\'t do

21 what you guys do for a living.

22 MR. GRIFFITH: No, that\'s fine.

23 That\'s fine.

24 DR. YOW: If it were Congressional in

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1 nature, it would appear on the surface to a lay

2 person that that takes a lot of time to implement

3 versus \--

4 MR. GRIFFITH: That\'s why I wouldn\'t

5 recommend that, but \--

6 DR. YOW: \-- doing it through the

7 Office of Civil Rights.

8 MR. GRIFFITH: Which is what my

9 recommendation would be.

10 DR. YOW: Okay.

11 MR. LELAND: Do you want that part of

12 your recommendation, Tom?

13 MR. GRIFFITH: Yeah, let\'s make it

14 that way.

15 MR. LELAND: Okay.

16 MR. GRIFFITH: But the significance

17 here \-- let me \-- the significance here, for

18 example, we\'ve been talking about substantial

19 proportionality a lot. Well, that phrase isn\'t

20 found anywhere in the statute. It isn\'t found

21 anywhere in the regulations and yet that\'s the

22 standard by which literally tens of thousands of

23 lives are affected. Well, that bothers me.

24 I think whatever happens going

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1 forward, it ought to have the force of law and

2 shouldn\'t be the result of a process that\'s decided

3 by \-- excuse me \-- don\'t be offended by this \-- but

4 by bureaucrats who are largely immune to the

5 political process.

6 MR. LELAND: However cheerful they

7 are.

8 MR. GRIFFITH: Yes.

9 MR. LELAND: Okay. Any other

10 questions on Tom\'s second point?

11 Okay. Rita?

12 DR. SIMON: It\'s nice being this far

13 along because I was able to learn so much from

14 everybody else\'s suggestions. Actually, mine are

15 going to be a composite.

16 First of all, I want to comment

17 on the work of a fellow who I think is a potential

18 Nobel prize winning economist and that\'s Thomas

19 Sowell and Thomas Sowell always makes the point that

20 not all imbalances, not all differences indicate

21 discrimination. I think that\'s very important.

22 For example, in all of our town

23 meetings, and among all the people on our panel, I

24 haven\'t heard anyone say it\'s discriminatory not to

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1 have a women\'s football team. There are some

2 differences. Now, maybe we should have a women\'s

3 football team, but so far, I haven\'t heard anyone

4 suggest that.

5 Okay. So let\'s keep that in mind

6 and look at some of the issues. One, on the matter

7 of proportionality, I think Debbie Yow\'s suggestion

8 of starting out at 50/50 and then allowing a

9 variance and spelling out what that variance should

10 be, seven percent, nine percent, but have that

11 included in what we mean by 50/50 plus the variance,

12 that it would be up to \-- it would be the discretion

13 of the universities to activate, I think if we do

14 that, then, I think it would be very useful to use

15 the surveys that I\'m still advocating, interest

16 surveys and prior participation surveys, to

17 understand how to make prong three stronger.

18 What, in fact, are the interests?

19 Well, now, we\'d have some hard data and we could

20 look at these regularly performed surveys to see how

21 interests change, how participation rates change and

22 so forth. So I would say we use the substantial

23 proportionality in the sense of 50/50 plus variance

24 and then we go on and include surveys and use

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1 surveys for \-- to better understand the importance

2 of prong three.

3 Then it seems to me we have

4 to spell these criteria out very carefully to

5 all the universities so they all understand.

6 They start out at 50/50 and then they have that

7 much discretion and then they will be expected

8 to have survey data that they can refer to in

9 terms of measuring interest and measuring likely

10 participation rates because if you don\'t have

11 those criteria very clearly spelled out, then,

12 you can\'t get to my last point, which is I think

13 we should have sanctions.

14 I think that we should indicate

15 to the universities when these sanctions will begin,

16 how they will be enforced and so forth. If you have

17 all of these regulations and you don\'t have any

18 sanctions, it\'s often business as unusual. So I

19 think what I am suggesting 50/50 with operational

20 definitions, a variance, use surveys to get at

21 interests and that enhances prong three, be very

22 clear to spell out these criteria so all the

23 universities know what the rules are and then

24 institute sanctions.

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1 MR. LELAND: Okay. I \-- it seems

2 to me that most of those points, which are very

3 articulate, are sort of subsumed in what other

4 people\'s \--

5 DR. SIMON: That\'s exactly right.

6 MR. LELAND: \-- sort of support what

7 other people said.

8 Does anyone want to comment on

9 that? I don\'t see any new proposals from Rita, but

10 does anybody want to comment on any of them before

11 we move forward? Thank you, Rita. Bob?

12 MR. BOWLSBY: Thank you.

13 MS. COOPER: Muffet? Are you there,

14 Muffet?

15 MR. LELAND: Muffet, are you there?

16 MS. McGRAW: Yes, I am.

17 MR. LELAND: Oh, it\'s your turn.

18 MS. COOPER: It\'s your turn.

19 MS. McGRAW: Okay. There has been

20 a lot of great stuff that I already have on my

21 recommendations as well so I\'ll just try to find

22 the one thing that nobody has mentioned.

23 With \-- regarding the

24 proportionality prong, my recommendation was that

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1 we use the traditional aged student rather than the

2 student enrollment as a general number thinking

3 that \-- I read something that said about 45 percent

4 of the college students were really only the ones

5 that were at college age. So there\'s a lot of women

6 that are being counted that aren\'t or maybe should

7 not be counted in the student enrollment.

8 Along with that, I also agree that

9 we need to have a variance. My number, I thought,

10 less than five percent. I thought seven was a

11 little high. So I wanted to go with less than five

12 percent. That\'s it.

13 MR. LELAND: Okay. Questions?

14 DR. YOW: I have a question.

15 MR. LELAND: There are two proposals

16 there. One is to change the seven percent that we

17 are sort of carrying to five. We again said we

18 would entertain contradictory proposals, too, that

19 seems to me to be within the fair game.

20 The other one, which is new,

21 is keeping proportionality, but looking at

22 traditionally aged students as opposed to all

23 students, is that correct, Muffet?

24 MS. McGRAW: That\'s correct.

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1 MR. LELAND: Questions?

2 DR. YOW: Hi, Muffet. This is Debbie.

3 A question for you, if it were restricted and you

4 took out the non \-- quote, unquote, nontraditional

5 students, however they end up being defined, how

6 often do you see that measurement being taken

7 because I just \-- I was just curious about that.

8 I\'m not opposed to it. I\'m just thinking ahead to

9 the implementation of that. Would it be every four

10 years? I mean, what cycle would you see that? What

11 form would that take?

12 MS. McGRAW: Well, by traditional, I

13 just meant age. So I don\'t know that you have to \--

14 to do it in any certain amount of time. It would

15 just \-- the college age would be 17 to 22.

16 DR. YOW: Well, you have to measure

17 it, though. If you\'re going to measure it for

18 ratios, male to female, I mean, are you suggesting

19 you measure it every single year? If you measure it

20 every single year, how do we stay in compliance

21 because that\'s a moving target year-to-year?

22 MS. McGRAW: I don\'t know about that.

23 I guess I would say every four years just going with

24 the cycle of the college students.

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1 DR. YOW: Okay. Thank you.

2 MR. LELAND: Any other questions?

3 Julie?

4 MS. FOUDY: How, right now, does NCAA

5 define a student that\'s eligible to participate in

6 athletics and if a student falls out of that

7 definition or that criteria, are they counted in the

8 percentages?

9 MS. McGRAW: I\'m not sure. Can

10 anybody else answer that one?

11 MR. LELAND: Well, the easy answer to

12 the question is it\'s about 25 pages in the NCAA

13 manual about eligibility versus ineligibility. I

14 mean, it\'s really complicated.

15 MS. FOUDY: Uh-huh.

16 MR. LELAND: And we did have testimony

17 from the people at Cal Now settlement in California

18 that said they used NCAA eligible \--

19 MS. FOUDY: Right.

20 MR. LELAND: \-- which I took to mean

21 enrolled for 12 students, you know, full-time

22 students. I didn\'t take that to mean they were \--

23 that the University of California was going through

24 eligibility requirements for all their hundreds of

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1 thousands of students. So when he said NCAA

2 eligible, that\'s what \-- but NCAA eligibility is

3 very complicated and it has to do with \--

4 MS. FOUDY: Because \-- I\'m asking

5 because I believe I read somewhere, and I don\'t know

6 where, because we\'ve read so much, but one of the \--

7 I think it was one of the clarification letters

8 about Title IX or from a civil rights person about

9 the issue of your student body being counted off

10 the NCAA eligibility requirements and if that is,

11 in fact, the case, then, that solves the problem

12 of non-traditional students and the second part to

13 that being is I again see this as an issue of

14 education because prong three deals with this in

15 that you have heard from junior colleges that their

16 non-traditional students are not interested because

17 of that, they are working mothers or for whatever

18 circumstances, they fall under the prong three

19 criteria.

20 MR. LELAND: Okay. Bob?

21 MR. BOWLSBY: As I understand it,

22 the OCR has a description or definition of

23 non-traditional students.

24 Could you share that with us,

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1 Jerry?

2 MR. REYNOLDS: Well, there are at

3 least two definitions. At OCR, I believe we use

4 full-time undergraduate students. That\'s what we

5 look at. So we don\'t count graduate students. We

6 don\'t count part-time students.

7 But with respect to the definition

8 of \-- well, there is a second definition of the

9 traditional student that some component within the

10 Department of Education has. I don\'t know which

11 component, but there is \-- the department does have

12 a definition of the traditional student.

13 MR. LELAND: So what you are saying is

14 there is a definition already out there? It\'s not

15 necessarily used in today\'s computations for

16 proportionality? You don\'t know? You just know you

17 have a definition, correct?

18 MR. REYNOLDS: I\'m sorry. Could you

19 repeat that?

20 MR. LELAND: Well, the question was is

21 there a definition for traditional students and you

22 said yes, there is.

23 MR. REYNOLDS: Yes.

24 MR. LELAND: I don\'t think that\'s

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1 applied right now to our formulas as it relates to

2 this issue in front of us and what Muffet is

3 suggesting is that we apply that.

4 MR. REYNOLDS: Yes. There is a

5 definition in one of the \-- one of the components of

6 the department has a definition of a traditional

7 student and I forget \-- it includes age, it includes

8 the number of credits.

9 MR. LELAND: Cary?

10 DR. SIMON: It says right here

11 full-time undergraduate.

12 MR. REYNOLDS: Well, that\'s not the

13 one that I\'m referring to. That is the \-- OCR

14 currently uses that as a standard, all full-time

15 undergraduate students, but that doesn\'t speak to

16 the issue of traditional student versus

17 non-traditional student.

18 MS. GROTH: Ted, my \--

19 MR. LELAND: Yes, Cary?

20 MS. GROTH: My question is with

21 regards to variance issues and it really goes to

22 Tom, Rita, Muffet and even Debbie. I think we need

23 to clarify this before we have staff work on some

24 of these recommendations and maybe you have and I

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1 just \-- it\'s gone over my head, but when we talk

2 about five percent variance, are we talking about

3 52?

4 If we are using 50/50, just as

5 an example, are we talking 52.5, 47.5 or are we

6 talking, you know, 60 \-- 55 to 45? I mean, there\'s

7 a huge difference and I don\'t think we ever cleared

8 that up. Maybe we did when Debbie talked about it,

9 but I think we need to decide on that. I want to

10 go on record that I\'m uncomfortable even with five

11 percent, but we do need to clearly define what that

12 variance means before we move forward.

13 MS. McGRAW: I was talking about a

14 difference of five percent.

15 MR. LELAND: Say that again, Muffet.

16 MS. McGRAW: Just a difference of five

17 percent so it would be 50 to 45.

18 MS. FOUDY: No, no.

19 MS. GROTH: So it\'s at ten percent.

20 MS. FOUDY: It would be your first

21 one, right?

22 MR. SPANIER: Five percent for

23 proportionality.

24 MS. McGRAW: 52 to 47, I guess it

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1 would be.

2 DR. SIMON: Fifty-two and a half to

3 47.

4 MS. GROTH: Okay.

5 MS. FOUDY: Yeah.

6 MR. LELAND: And is the seven

7 percentage, would you \-- Tom, in yours, would you

8 identify it the same way, the differences between

9 the percent of \-- go ahead.

10 MR. GRIFFITH: What I thought it

11 meant, but I\'m open, I\'m not wed to this, is that a

12 seven percent variance would allow at the maximum 57

13 and 43. That\'s what I \--

14 MR. LELAND: Okay. So we\'ve got that

15 as Tom\'s.

16 MR. GRIFFITH: Isn\'t that what

17 variance means? I mean, I don\'t \-- I mean, I may be

18 wrong.

19 MS. FOUDY: So 14 percent

20 essentially.

21 MS. GROTH: Yes, 14 percent.

22 MR. LELAND: Do you understand? I

23 mean, it could be seven percent versus \--

24 MR. GRIFFITH: I understand.

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1 MR. LELAND: \-- the 50 percent female

2 enrollment or it could be the difference between

3 male percentage of athletes and female percentage of

4 athletes.

5 MR. SPANIER: There\'s a difference

6 between a variance and a range.

7 DR. SIMON: Right, right.

8 MR. GRIFFITH: Yes.

9 MR. SPANIER: If we\'ve looked at

10 proportionality in the past being the ratio to

11 full-time undergraduate students and you are

12 somewhere where it\'s 52/48, then, your variance

13 from proportionality would be if it was one percent,

14 it would be one percent either way. So a variance

15 is your variation from proportionality or 50/50 or

16 whatever I want to call it. The range is when you

17 talk 14, that\'s not the variation. That\'s the total

18 range within which it could fall.

19 MR. GRIFFITH: Okay. Then I misspoke.

20 MR. SPANIER: And the ranges don\'t

21 really apply anyway because everything that\'s ever

22 been written on this has been written in terms of

23 the variation for the under-represented group so to

24 talk about another seven percent on the other side,

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1 nobody has ever said that\'s a problem.

2 MS. McGRAW: Well, I didn\'t go to

3 Notre Dame. I just work here. I\'m going to leave

4 that part to you guys.

5 MR. LELAND: But let\'s try \-- let

6 me try to make it clear. If you have a \-- if you \--

7 just as a hypothetical, if you have 50 percent

8 female enrollment at your institution and you are

9 required to be within substantial proportionality,

10 it means a variance of five percent, that means you

11 must have \-- 45 percent of your student athletes

12 must be female.

13 That\'s the way we all interpret

14 both of these numbers, both the seven percent and

15 Muffet\'s five percent as we go forward. Is that

16 okay? Then we can always change your mind on what

17 the number is, but let\'s agree on how we sort of

18 calculate the numbers, if we could do that.

19 Are we okay?

20 DR. YOW: And that\'s \-- according to

21 what Graham said, that\'s a variance, not a range.

22 MR. BATES: That\'s a variance and not

23 a range.

24 MR. SPANIER: Because on the plus

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1 side, it\'s irrelevant. There is no \-- that\'s not

2 an issue. Nobody is against having historically

3 under-represented individuals at some point being

4 over-represented and I think there was one or two

5 universities in the country that were on the flip

6 side.

7 MR. LELAND: Yeah.

8 MR. SPANIER: There were only, like,

9 five that were within one percent anyway or that

10 were cited.

11 MR. LELAND: Okay. More conversation?

12 Muffet had two. One is sort of a substitute

13 recommendation, which would be a five percent

14 variance on proportionality and the other was within

15 asking the Department of Education to look into

16 using the comparison data of traditionally aged

17 students or traditional students. We identified

18 there is a definition out there somewhere for that.

19 Yes, Julie?

20 MS. FOUDY: I think my point was that

21 are we not already using this definition taking them

22 into account, the non-traditional, because they are

23 not eligible for NCAA activities or sports.

24 MR. LELAND: No. I think the EADA

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1 report, when you compute the number of full-time

2 students, doesn\'t deal with NCAA eligibility issues.

3 It\'s the number of full-time equivalency is what it

4 is, I think. Go ahead.

5 MS. GROTH: Well, and the age

6 discussion really depends on the divisions and

7 the associations. You know, it\'s not the same.

8 Division I is different than the other divisions

9 and NAIA. So I don\'t think we can use \-- in junior

10 colleges, I mean, you can have your rowing example.

11 Those women could participate at the junior college

12 level at 40 years old. You know, I think we\'re

13 going to get ourselves in a little bit of a bind if

14 we use age as a criteria or in that case because it

15 is different. It\'s not consistent.

16 MR. LELAND: Yes, Rita?

17 DR. SIMON: I just think

18 overwhelmingly, if you use the term full-time

19 undergraduate students, you are talking about

20 students between the ages of 17 and 22. Yes,

21 there are some variations, people who come back

22 to school full-time as undergraduates after they

23 have raised the family or they\'ve done some other

24 things, but overwhelmingly, I\'m sure well over 90

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1 percent of full-time undergraduate students are

2 between 17 and 22 years of age.

3 MS. McGRAW: I don\'t know if I agree

4 with that. Do you have data that supports that?

5 DR. SIMON: I can find it. I don\'t

6 have it at the tip of my fingers here.

7 MS. McGRAW: I don\'t know if it was

8 full-time, but I read that 45 percent were college

9 age students.

10 MR. LELAND: Well, Muffet, would you

11 take as a friendly amendment to your \-- that they be

12 some kind of \-- you ask the Department of Education

13 between now and January to look into some definition

14 that might be handy of traditional students \--

15 MS. McGRAW: Yes.

16 MR. LELAND: \-- that might be a cohort

17 to measure the percentages against as opposed to

18 just what we\'re doing now?

19 MS. McGRAW: Right. I agree with

20 that.

21 DR. SIMON: It\'s in the Handbook of

22 Statistics. We can get it.

23 DR. YOW: Ted, can I say one thing?

24 In \'99/2000, we did a survey

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1 ourselves. We had a person at each of the schools

2 that finished in the top 25 for the Sears Cup.

3 We did an analysis of \-- based on their \-- the

4 proportionality prong as it currently stands, who

5 was \-- how far off they were both in participation

6 proportion and scholarship proportion and ten of

7 the 25 met the seven percent variance, only ten of

8 the 25.

9 So I just want to say, Julie, if

10 it were seven percent, you\'re still going to see

11 improvements of significance even among the elite

12 institutions. Now, this is two years ago. This is

13 two years old. I knew it was two years old because,

14 Graham, you were close even then. You were only

15 2.09 percentage points off in your participation

16 rates. So it makes sense that they closed the gap

17 on that since then.

18 But it is \-- it is \-- it\'s a kind

19 of a mix. You\'re afraid there are not going to be

20 enough opportunities and Bob referenced a point that

21 would be shared by many, which is, it\'s too tight.

22 There is too much \-- I mean, there are loads of

23 people that are so far out of compliance, it will

24 take a long time for them to get there and that goes

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1 to Jerry\'s point what kind of structure would you

2 put to allow people an opportunity to get there.

3 But it would, just so you know, significantly

4 improve throughout the ranks opportunities for

5 women.

6 MR. LELAND: Okay. Since we\'ve got

7 two of Muffet\'s suggestions or recommendations on

8 the table, is there anybody who wants to object to

9 asking the staff to move forward with those?

10 Okay. I think what we\'ll try \--

11 what Cynthia would like to do is have one more and

12 then we\'ll break for lunch. We\'ll have one more.

13 Last, but not least, Bob?

14 MR. BOWLSBY: I am willing to go after

15 lunch, if you\'d like.

16 MR. LELAND: No, no. Let\'s go now,

17 please.

18 MR. BOWLSBY: I have the burden and

19 benefit of going last, but I have been particularly

20 struck throughout by some of the things Tom has had

21 to say and his recent comment was certainly an

22 example. I think he is exactly on target. Earlier,

23 I alluded to it. He stated it better.

24 The only thing etched in stone

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1 about anything of this is those 37 words in the 1975

2 regulations and as we peel away from our own various

3 ways the layers to try and get at how we fix this or

4 how we strengthen it, I think we all agree we want

5 to make it better for women and better for men and

6 more understandable and quantifiable for the

7 institutions that are involved, but I guess I\'ve

8 been kind of impressed by how well this morning has

9 gone. I thought that there might be a little more

10 acrimony than there has been.

11 Having the opportunity to go last,

12 I hesitate to throw in anything more that\'s going to

13 confuse the issue out here, but I do think that I\'ve

14 got a \-- perhaps it\'s a friendly amendment that kind

15 of blends prongs two and three a little bit and, I

16 think, goes to Debbie\'s position that was stated

17 earlier. That would be simply to look for a way to

18 incentivize what we are doing with Debbie\'s proposal

19 and my idea \-- and I have no particular pride of

20 authorship and this is sort of emanated out of what

21 I heard this morning would be to further amend prong

22 one of the three part test to identify the current

23 language as perhaps Item 1-A and to add an Item 1-B.

24 That addition would allow institutions to meet prong

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1 one by offering participation opportunities equal

2 to, say, three percent more, three percent in access

3 of the actual participation of the under-represented

4 gender in the OCR region in which that institution

5 resides.

6 As I understand it, the OCR

7 regions are fairly well enunciated and I think this

8 would be a subprong of prong one, if you could call

9 it that, and unlike the earlier representation that

10 we\'ve talked about, in my estimation, there wouldn\'t

11 be any variance allowed under this circumstance. It

12 would just be an additional way to get at and offer

13 institutions to meet the stipulations of prong one.

14 So basically, what they would have

15 the opportunity to do is draw upon OCR/Department of

16 Education statistics or some other agreed upon set

17 of data and they would have to offer more than what

18 is in the feeder system in order to \-- in order to

19 encourage young women to get involved and to shoot

20 for that brass ring at the next level.

21 It would \-- and I think, if you

22 look at the numerical aspects of it, you are

23 probably going to get in the same range of Debbie\'s

24 proposal with the variance that\'s been described and

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1 this would just be another way to attack the problem

2 for institutions. Hopefully, it doesn\'t make it too

3 much more complex, but as I say, I think it\'s a way

4 to sort of blend the elements of prongs two and

5 three and at the same time, incentivize compliance

6 under prong one.

7 MR. LELAND: Okay. Questions?

8 MS. FOUDY: Explain that again, the

9 first part, 1-A. I didn\'t catch that.

10 MR. BOWLSBY: For instance, if you

11 would use my institution as an example, we\'re in \--

12 I don\'t know what states are in the region of OCR

13 that we\'re in, whatever region it is, but some sort

14 of determination would be made, I guess, through

15 actual high school participation numbers, what

16 that \-- what that percentage of participation is.

17 Maybe it\'s 43 percent female and 57 percent male.

18 Under that circumstance, an

19 institution could meet compliance with prong one

20 if they were offering 46 percent of their

21 opportunities that would include participation and

22 scholarships to the \-- to \-- in proportion to what\'s

23 in the feeder system. They would be using actual

24 participation numbers.

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1 That goes back to Rita\'s example

2 of the last set of hearings, but it would

3 incentivize the growth of opportunities at the

4 collegiate level and the high school level because

5 there would be this percentage that was above and

6 beyond what the actual was for growth.

7 MS. FOUDY: I have a problem with our

8 assumptions because I think you are assuming that

9 the feeder level is equal and that we\'re not having

10 a problem with Title IX at the feeder level as well.

11 I think we recognize from some of the panelists and

12 what we have heard that that\'s not the case and that

13 there is inequality even at the feeder level. So to

14 base your numbers off participation numbers at high

15 school and then bring them to college, I think,

16 again, you are talking about freezing into place

17 that discrimination by bringing it on to the next

18 level.

19 I think that one of the things you

20 talk about, Debbie, is this significant \--

21 MR. BOWLSBY: Before you go on, I

22 don\'t think it\'s been demonstrated that the

23 differential in the feeder system is a result of

24 discrimination. I think it\'s a result of perhaps

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1 a lot of things and discrimination is probably one

2 of them in some circumstances, but I don\'t believe

3 we\'ve heard any empirical evidence that that\'s due

4 to discriminatory factors solely.

5 MS. FOUDY: Well, you could look

6 at a lot of court cases that have been brought

7 forward saying that they don\'t have the same quality

8 of fields, same quality of coaching, et cetera,

9 funding at that grass roots level.

10 MR. BOWLSBY: Yes, but we\'re talking

11 about the numbers on this, the participation

12 numbers.

13 MS. FOUDY: Right. And I think you

14 could look at that as well because I just \-- I have

15 a hard time with some of our assumptions because I

16 think we\'re assuming in a perfect world that all is

17 equal and we\'re not there yet. I wish we were. We

18 wouldn\'t need Title IX, but a lot of the things we

19 talked about are assuming that we\'re going to get

20 the spirit of the law that is \-- that all things are

21 equal and we are not there yet.

22 You know, Debbie, you made the

23 point of it\'s a significant improvement and that it

24 should be a compromise because it\'s a significant

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1 improvement, but that\'s not the spirit of Title IX.

2 It\'s not just about making significant improvements.

3 It\'s about equality. That\'s what civil rights laws

4 are about.

5 MR. BOWLSBY: Well, the letter and the

6 spirit is about nondiscrimination. It doesn\'t

7 reference equality.

8 DR. YOW: Right. And I think, Julie,

9 there is an important distinction that Bob is making

10 because we have heard from so many people.

11 I don\'t think anyone can present data to us to prove

12 that, you know, there is a specific number of women

13 who deserve this opportunity because it\'s all

14 floating out there with abilities and interests and

15 who wouldn\'t be interested in a scholarship, but

16 they are not interested necessarily in being the

17 walk-on of the team. So \--

18 MS. FOUDY: And I\'ll use the word

19 nondiscrimination, but that\'s why we have prongs two

20 and three is that you can also show that as well

21 through these two prongs, that if you are not

22 meeting the equal access prong, then, you have two

23 and three to go to for nondiscriminatory purposes.

24 MR. LELAND: Cary?

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1 MR. SPANIER: While I do share Bob

2 Bowlsby\'s \-- I support what he is saying, I think

3 Julie has an important point. I\'m not sure it

4 negates anything Bob is saying necessarily, but I

5 hope that the Commission, by the time we are done

6 with what we are doing, I hope we say something

7 about the feeder system, about high schools and

8 other opportunities we all happen to be centered and

9 focused on the collegiate experience, but again,

10 this is a case where when we get up to the

11 30,000-foot level and away from each individual

12 recommendation, we need to come out of this saying

13 something about that whole system of things that

14 leads up to the collegiate experience and just a

15 quick question, if you have the answer, what

16 proportion of the complaints that do come to OCR

17 are pre-college versus college?

18 MR. REYNOLDS: I don\'t have that

19 answer. I don\'t have that figure in my head.

20 MR. SPANIER: But is it fair to say

21 that a substantial amount of what we do \-- what does

22 come to your attention is pre-college? We tend to

23 know about most of the university-related cases.

24 They get a lot of visibility and, you know, we are

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1 aware of them. Frankly, it has not been a huge

2 amount, but I have heard about lots of high school

3 problems. I have the impression \-- I mean, I\'m

4 speculating, let\'s say, that it may be an even

5 larger number, thus, giving credence to what \--

6 MS. FOUDY: And that\'s part of the

7 problem, though, Graham, is that we don\'t have a

8 system in place at that level, at the feeder system

9 level, to measure those numbers. We have the

10 National Federation of High Schools, which does a

11 state-by-state comparison of only participation

12 numbers.

13 There is nothing that gives

14 numbers financially. There is nothing that gives

15 the school by school measurement. And so we have

16 nothing to base that off of and the things you see

17 being brought to the courts are about funding issues

18 because you don\'t have anything that can look at

19 participation numbers. There is no system in place

20 right now for that.

21 MR. LELAND: Okay. Cary?

22 MS. GROTH: Bob, I would agree with

23 Julie. I think to add a measurement using a

24 foundation that\'s not fixed yet and could be

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1 substantially different geographically depending

2 on the region where there is no uniform consistency

3 region-to-region would be very difficult.

4 For example, region five in which

5 we\'re at, Iowa, Illinois, parts of Wisconsin, could

6 have 45 participating females and 55 percent males

7 at the high school level. I\'m just using that

8 hypothetically. However, a different region,

9 perhaps maybe in the Wyoming area or whatever, pick

10 a state, could be 30/70, 30 percent female, 70

11 percent male. There is so much inconsistency using

12 those percentages as a foundation with a system that

13 really has not been under the same scrutiny as

14 colleges and universities have to fix the problem,

15 that worries me.

16 MR. BOWLSBY: Well, except that to

17 not take that into account is to place all the

18 burden on the colleges and none of the burden on

19 anywhere else and it doesn\'t seem to me that that\'s

20 appropriate either. It\'s probably all right that

21 there is some variance among regions in the country

22 because that\'s \-- you know, for the most part,

23 that\'s where we\'re drawing our students from and our

24 recruits.

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1 MS. GROTH: And I do agree with you.

2 I don\'t think it\'s fair that all the burden or

3 publicity regarding Title IX is just solely going to

4 the colleges and universities. I think the

5 accountability level at the lower levels needs to be

6 much greater. So I agree with you.

7 MS. FOUDY: I think that speaks to the

8 issue that we need to work on something to help

9 enforcement at the lower levels because if we can

10 fix things there, then, it helps the colleges and we

11 have no system in place for that right now. That

12 seems to work.

13 MR. LELAND: Okay.

14 MR. BOWLSBY: After 13 presentations

15 and ideas, there\'s not much low hanging fruit left.

16 So I \-- as I say, I have no pride of authorship on

17 this, but I did think that it was worth throwing up

18 and just talking about it a little bit.

19 MR. LELAND: Jerry?

20 MR. REYNOLDS: At the next meeting,

21 Graham, I\'ll bring in some figures on the breakdown

22 of complaints of colleges versus K through 12.

23 MR. LELAND: Okay. It would also be

24 nice, I think, if \-- I\'m assuming we\'re going to

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1 extend Bob the courtesy we\'ve extended to the other

2 commissioners by moving this forward.

3 There hasn\'t been any \--

4 anything, I think, we\'ve decided not to. So we\'re

5 going to move this forward, but I would like to \--

6 a lot of how I would respond to this would be,

7 you know, based on what the numbers are.

8 In other words, if you told me

9 there were certain OCR districts out there where

10 there\'s only 25 percent of the females \-- 25 percent

11 female participation in high school sports and

12 people could get by with 28 percent participation

13 at their school and meet prong one, I\'m not sure

14 I\'d be in favor of that, but if I find out that

15 there\'s, you know, 50 percent female participation

16 in OCR districts, so we may have to use somebody

17 else\'s statistics, but I\'d like to know what the

18 sort of bottom line effect \-- where this moves the

19 bar as a \-- you know, in the different areas, just

20 a general impression. Yes?

21 MR. BATES: Ted, I just have a

22 question. Since I mentioned the issue of sanctions,

23 in thinking about that, there must be a reason why

24 in 30 years there have not been any and it makes me

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1 a little uneasy to think that by simply saying in

2 the future there ought to be sanctions that it\'s not

3 likely to happen.

4 I guess just as a thought, is

5 there any way to think about bringing the NCAA into

6 this picture since we have a fairly effective way

7 of looking at these things and providing sanctions

8 like losing scholarships or something like that, the

9 notion of somehow withholding funds, it seems to me,

10 may not go very far.

11 As I\'ve said, we have evidence

12 that in 30 years we haven\'t done that. I don\'t know

13 how we\'re going to get to doing it tomorrow, but I

14 think if we\'re going to be serious about the issue

15 of sanctions, we may think of some alternative ways

16 of partnering in this process in order to make it

17 work.

18 MR. LELAND: Okay. Let me just \--

19 that\'s a little off. That\'s sort of a new subject,

20 but if you guys want to respond \--

21 MR. GRIFFITH: Maybe we should go to

22 lunch.

23 MS. COOPER: Yes.

24 MR. LELAND: Let\'s get a response to

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1 that and then we\'ll go to lunch.

2 MR. JONES: Sure. Just quickly, I

3 mean, there actually \-- in the statute that created

4 the Department of Education, there are a range of

5 enforcement mechanisms that the Secretary has. I

6 mean, he\'s got a good deal of discretion with how he

7 enforces the statutes that are ours to enforce and,

8 you know, the termination of federal funds, of

9 course, is sort of the death penalty.

10 There are things, you know, the

11 more common things that we would see are things

12 like compliance agreements, cease and desist orders,

13 a whole range of things. So I think we could make

14 a recommendation to make greater use of the

15 statutory authority that he has now or we could

16 also think of recommendations that we might want to

17 ask the Secretary to pass on to Congress to revisit

18 our organizing statute.

19 MS. COOPER: Let\'s go to Bob and then

20 we\'ll break.

21 MR. BOWLSBY: Well, I just wanted to

22 add to what Percy said. You know, if the national

23 organizations are somehow involved in this, perhaps

24 we could look for ways to incentivize so that

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1 institutions that are doing a good job could

2 participate in some positive way and I \-- you know,

3 I \-- we\'re always looking for penalties, but there

4 may be another way to get at it to make this a

5 positive thing.

6 DR. YOW: Percy, you\'re not suggesting

7 that the NCAA would do the evaluation on it?

8 MR. BATES: Oh, no, no, no, no, no.

9 DR. YOW: Okay. Thank you. You

10 scared me.

11 MR. PERCY: No, no. That was not what

12 I had in mind.

13 MS. COOPER: Okay. Let\'s break for

14 lunch. We\'ll come back at what, 1:00 o\'clock, 1:15?

15 (Whereupon, after a short

16 break was had, the

17 following proceedings

18 were held accordingly.)

19 MS. COOPER: Okay. I think I\'m going

20 to begin. I think we are going to go over to Tom

21 because he has a suggestion about the date of our \--

22 for the date of our next meeting.

23 MR. GRIFFITH: I would \-- given what

24 needs to happen between now and our next \-- given

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1 what needs to happen between now and our next

2 meeting, which is that the staff \-- it was scheduled

3 to be on the 8th, which the staff is going to come

4 up with a report. The committee that\'s been chosen

5 \-- Percy is on that committee and Donna and I think

6 Lisa, Rita and myself.

7 DR. SIMON: Lisa is not.

8 MR. GRIFFITH: Lisa is not on the

9 committee?

10 DR. SIMON: No.

11 MR. GRIFFITH: That, you know, we\'ll

12 need to take a look at it, get it in shape for the

13 next meeting, I don\'t \-- and given the fact that

14 it\'ll be over the holidays, if there is flexibility

15 to do so, I would suggest that the next meeting be

16 moved back at least a week. It\'s scheduled now for

17 the 8th.

18 Another reason is our dear

19 colleague, Rita, is going to be in Cuba and won\'t

20 be back in time for the 8th. I think, you know, I

21 don\'t know what other people\'s schedules are like,

22 but if we could move it back a week, I think it

23 would be productive for everyone involved.

24 MR. LELAND: How does that fit with

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1 our submission time line?

2 MR. DISKEY: Sorry, Ted. I forgot

3 about that microphone.

4 Well, as we discussed in San

5 Diego, whatever you submit on January 31st will

6 probably be in a basic word document that no matter

7 how quickly we move \-- let me put it this way, you

8 would have to have the report nearly done now within

9 the next week or ten days in order for a designer to

10 do his job or her job and then go to GPL and have a

11 finished, polished, published document, so to speak.

12 So what Tom has suggested, in

13 essence, gives members of the staff and myself,

14 those people who are writing and editing, another

15 week and it obviously gives this subcommittee time

16 to look at it as well. I don\'t know quite candidly

17 how long it will take. There is \-- as a very basic

18 estimate, I would think there would be at least ten

19 business days or more involved in writing this,

20 which puts us into delivering that draft to the

21 subcommittee on Christmas Eve or doggone close.

22 If \-- again, if the Commission

23 is open to giving the writing group another week,

24 I think that certainly would be appreciated.

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1 MS. COOPER: Go ahead, Ted.

2 MR. LELAND: Okay. Let\'s hear more

3 thoughts on the proposal as we move from the 7th or

4 8th to the \-- I guess it would be the 14th or 15th.

5 DR. SIMON: Oh, I hope the 15th. I\'ll

6 be returning late the 14th.

7 MR. SPANIER: The other problem for

8 me, and maybe others, is that I had that date on my

9 calendar and every other day of the month is now

10 booked. I mean, it\'s \-- to get to the meeting

11 yesterday, I had to cancel a whole day\'s worth of

12 meetings and I can\'t tell you how many people are

13 angry about that. I\'d hate to have to do that a

14 second time. So just changing schedules is

15 difficult.

16 MS. GROTH: Ted and Cynthia, if we

17 go with the current schedule and if the staff cannot

18 get the draft report to the committee until

19 Christmas Eve or Christmas Day, around that time,

20 and we\'re meeting on the 8th, I don\'t know if we

21 will have enough time to receive the report or if

22 there is enough time for us to get the report in a

23 timely fashion, read it and be able to respond in

24 some fashion.

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1 So I think the time line is

2 awfully tight. I was going to make a suggestion

3 later today that we \-- the commissioners receive

4 the draft, like, by the 20th of December, but

5 obviously that\'s impossible.

6 MR. LELAND: What you are saying

7 in effect is if it does take us until Christmas or

8 Christmas Eve to do that and then we meet on January

9 7th and vacations and all that other stuff that\'s in

10 there, it\'s difficult for us to get our work done,

11 right, for us to get timely enough notice of \--

12 MS. GROTH: If you get the \-- if the

13 committee does not get the report until the 25th

14 and then they need to take a look at it, massage it,

15 do whatever they are responsible for doing, then,

16 the commissioners won\'t have an opportunity to

17 review the report.

18 MR. LELAND: So you would rather have

19 the 14th or 15th?

20 MS. GROTH: I would rather have it

21 later so we have an opportunity to \-- at least, you

22 know, a week or ten days before the meeting for us

23 to read the report and be able to react to it.

24 MR. LELAND: Percy?

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1 MR. BATES: Is the plan, though, to

2 have the draft to all of the commissioners prior to

3 the 8th or whatever the date is? Is that what \--

4 Debbie?

5 MS. PRICE: Best case scenario, that\'s

6 my desire to be, yes, that we do the drafting, so

7 to speak, a draft of the draft, get that to the

8 subcommittee who is reviewing it, get that document

9 then to all the commissioners in a day or two

10 hopefully, too, before we meet for our next meeting

11 so you actually have a chance to read through it

12 before you see it for the first time. If we can get

13 it before a day or two, great. That would \-- that

14 would be \-- that\'s my focus and my desire right now.

15 MR. BATES: Okay.

16 MS. GROTH: Debbie, I think a day or

17 two is \-- we need much more time and I know we\'re

18 looking at a strict time line, but what we\'re doing

19 here is so important and to just have a day or two

20 to review the report and hit and miss on all of us

21 with our schedules, I think, is \--

22 MS. PRICE: I understand.

23 MS. COOPER: Are you saying a day or

24 two before the 7th or 8th or are you saying a day or

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1 two before \-- if we were to move it back to the 14th

2 or 15th? Are you saying now we would have ten days?

3 MS. PRICE: I\'m saying if we backed up

4 the meeting to the 14th or 15th, it would give the

5 staff and the subcommittee a day or two longer and

6 then it would also give us an opportunity to get it

7 to you possibly a couple days sooner. You know, I

8 mean, it just provides seven days of working \--

9 seven working days you didn\'t have before. So

10 hopefully, you know, it could help out both arms of

11 that.

12 MR. LELAND: Okay. Well, the proposal

13 before us, then, it seems to me, is to move the

14 meeting to the 14th or 15th and get the \-- a

15 commitment by staff to get us a draft of the report

16 thoroughly reviewed by our subcommittee a week in

17 advance because I agree with Cary, getting it a

18 couple days in advance and then all of a sudden

19 you\'re traveling and you never get it, it\'s a mess.

20 DR. SIMON: I was just going to say if

21 you\'re going to move it, I come back \-- I know I\'m

22 only one, but I do come back early in the evening on

23 the 14th. If we could possibly meet the 15th,

24 since you were moving it up, that would make an

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1 enormous \-- otherwise, I can\'t be here the 14th.

2 MR. LELAND: Well, I, for one, would

3 trade a later date for an earlier packet arrival so

4 I could review it than to have it rushed like it was

5 this time. I mean, we spent, you know, two hours

6 yesterday morning trying to find out what we were

7 trying to do because we had materials coming and

8 going and it would be much easier if we could do

9 that. So I\'m comfortable postponing it until the

10 15th.

11 MR. BATES: You know, this \-- we\'ve

12 got to have everybody at that meeting and I think

13 we\'ve got to try and figure out which date will

14 allow us to do that because I just don\'t think we

15 cannot have some of the members of the Commission

16 not there.

17 MS. COOPER: And, Julie, you were

18 saying the 14th is \--

19 MS. FOUDY: I think that I \--

20 MS. COOPER: Get the microphone.

21 MR. GRIFFITH: My proposal would be

22 let\'s do it the 15th, 16th or 17th; sometime around

23 the 15th or after.

24 MR. SPANIER: There are \-- about half

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1 the Commission is not at the table right now. I

2 think you are making a big mistake because we went

3 through all of everybody\'s schedule and came up \--

4 back then, everybody knew what their calendar was

5 and we came up with a date that hit the most.

6 I personally reject the idea that

7 we will only or can only get the material to people

8 a day or two ahead of time. There is a professional

9 staff here who has a month to get the job done. Why

10 not get it done before Christmas and give the group

11 plenty of time to deal with it?

12 If this were taking place with my

13 staff, I would give them the deadline and tell them

14 when to get it done. I just think it makes no sense

15 to take a volunteer group of commissioners who have

16 established this on their schedule and have had it

17 on their schedule since July and change it at the

18 last minute because the staff can\'t have the

19 document we need a few days earlier.

20 Let the Commission give the staff

21 a deadline when we want to see the document.

22 MR. LELAND: Yeah. Graham, I think

23 the reason this got brought up is because a

24 commissioner can\'t make it on the 7th, isn\'t that

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1 correct?

2 MR. SPANIER: Well, we\'ve known that

3 from the beginning, but you\'re going to have at

4 least as many or more commissioners who can\'t make

5 it on the next date.

6 MR. LELAND: Yes, Debbie?

7 MS. PRICE: Graham, I really do

8 appreciate what you said and, you know, up until

9 just a few minutes ago, we had every intention of

10 getting the information in the documents to you all

11 in a timely manner prior to the 8th. You know,

12 we\'ll just \-- we just have to work under time

13 constraints and be responsible to those time

14 constraints. So I agree, what you said is certainly

15 reasonable, and we\'ll work with that,

16 with whatever we have to do.

17 DR. SIMON: All right. But then when

18 does this subcommittee get the draft?

19 MS. COOPER: Can you guys answer that?

20 MR. DISKEY: The answer \-- there is no

21 answer. There are a number of items we\'ll have to

22 look at on the transcript. There\'s a number of

23 statistics that are going to have to be pulled. I

24 mean, there is \-- preliminary work has been done.

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1 DR. SIMON: I appreciate that.

2 MR. DISKEY: I wish I had an answer.

3 We simply do not.

4 DR. SIMON: Because, well, you know,

5 I\'m a minority. I would work on the 25th, but I

6 think most of you will not be working on the 25th

7 or 24th or 26th and so that gets very complicated,

8 it seems to me, as to when the committee has a

9 chance to work on it before \-- the subcommittee \--

10 before we send it out.

11 MR. LELAND: I mean, I \-- let\'s \--

12 it seems to me that we \-- the only fair thing \-- the

13 way to look at this \-- not the only fair thing, but

14 a fair way to look at this is, we sort of have to

15 have a consensus that change is appropriate because

16 we\'ve already committed our calendars. We already

17 said we could do it. Doesn\'t sound like we have a

18 consensus to move it a week later. Unless that

19 consensus develops, let\'s just leave it on the 8th

20 and we\'ll just work with staff to try to work with

21 the subcommittee on the dates and let\'s get it to

22 people as \-- but I agree with Graham, we need to \--

23 Debbie, I think we need to set a date where we\'re

24 going to get this thing that we can all count on.

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1 MS. FOUDY: We can set that now

2 because that\'s \-- I mean, that\'s the other thing

3 seeing as it\'s the holidays. I don\'t want to be

4 in a situation again where we have only one day to

5 look at it. I mean, is there \--

6 MR. LELAND: Well, I\'d love to get

7 them sent January 2nd. That would \-- we\'re meeting

8 on Wednesday. Could we get it sent for Thursday

9 before? Is that \-- was that our \--

10 MR. DISKEY: Debbie, you\'re going to

11 have to answer this. I do not make assignments

12 throughout the staff.

13 MS. PRICE: Yes. So you\'re asking

14 for us to send out the document to you on the

15 Thursday before our Wednesday meeting, the 8th?

16 MR. LELAND: Yeah. That would be

17 Thursday, January 2nd.

18 MS. GROTH: Can we try to shoot for a

19 week \-- one week before?

20 MR. LELAND: That puts it on January

21 1st. That\'s New Year\'s Day. The government is

22 closed.

23 MS. PRICE: Just realistically,

24 there are certain constraints. It will take us a

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1 while to get the transcript back from the

2 transcriber and Jay and the different folks working

3 on drafting the \-- writing the draft can be working

4 on some of that. Some of that will be contingent on

5 the transcript \-- getting the transcript back.

6 All of this we will do as quickly

7 as possible. We will \-- you know, then, we have to

8 give it to the four subcommittee folks who then

9 have the responsibility of getting it back to us in

10 a timely manner so we can process their changes.

11 I don\'t see any problem with that occurring and

12 getting \-- you know, getting the document to you

13 January 2nd, but there are things that need to fall

14 into place that staff has no responsibility for.

15 Basically, the subcommittee has the responsibility

16 for that. So we will all work together to meet that

17 goal.

18 MR. LELAND: Well, why don\'t we \-- why

19 don\'t we shoot for a January 2nd mailing or \-- I

20 don\'t know what you call it \-- sending it to us and

21 we will get notified by staff if there\'s a problem

22 with that date we\'ll \-- Cynthia and I will argue

23 with them then.

24 MS. GROTH: I would like to recommend

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1 that maybe we send it to our home addresses versus

2 school because some of the institutions mailing

3 services are delayed.

4 MS. PRICE: Realizing that some of you

5 will be on a Christmas break, you might \-- exactly

6 that, Cary. If there is an address other than the

7 address we normally would send it to, send us that,

8 but hopefully, this will be able to be an e-mailed

9 document, which then we really wouldn\'t have a

10 problem. If it\'s on \-- if it\'s in the computer as a

11 document, we can e-mail it to you and that\'s much

12 quicker. If we have to \-- just to be certain, if

13 there is an address other than the address that we

14 normally send it to, if you would e-mail us that

15 right away so we have that in case we do have to

16 ship it, but hopefully it will be an e-mail

17 document.

18 DR. SIMON: Just in terms of details,

19 if this subcommittee gets the document, say, the

20 24th, each of us will look at it, make editorial

21 changes and then we have to be in touch \-- the four

22 of us have to be in touch with each other and

23 I assume you want consensus among the four of us as

24 to what \-- there\'s one document that gets back to

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1 you from the four of us.

2 MR. LELAND: Right.

3 DR. SIMON: And you want that done

4 between the 24th and the 2nd?

5 MR. LELAND: The 2nd.

6 DR. SIMON: That\'s going to be hard.

7 MR. BATES: When do you leave, Rita?

8 DR. SIMON: I leave the 2nd.

9 MR. LELAND: Well, it seems to me

10 it doesn\'t have to be an all or \-- I mean, we

11 specifically chose the people to be on the

12 subcommittee because of their interest and sometimes

13 their location. It doesn\'t seem to me that you have

14 to wait until the whole document is done before you

15 start working with these people. You could get

16 sections of it done and work it section-by-section.

17 I mean, we don\'t have to make this a lot harder than

18 it is.

19 We all edit documents all the

20 time. It doesn\'t have to be an all or nothing

21 thing. I don\'t \-- I can\'t understand that we\'d

22 have to wait that long to get anything done. The

23 format of this thing and a lot of decisions could

24 be worked through the subcommittee before the total

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1 transcribed document is done and rewritten. I mean,

2 it just seems to me that that can happen.

3 So I\'m comfortable with that

4 deadline and then I would just say to the staff

5 let\'s work with the subcommittee as much as you can.

6 A lot of the \-- what you\'ll hear, I think, on the

7 8th is going to depend \-- staff people, it\'s going

8 to depend on the quality of your interaction with

9 our subcommittee.

10 I think if our subcommittee has

11 thoroughly blessed a lot of this stuff \-- a lot are

12 comfortable turning over a lot of this work to them

13 and so the meeting on the 8th will go a lot better

14 if \-- if the subcommittee has not been used

15 effectively and efficiently, then, I think we will

16 have some problems. Yes?

17 MS. FOUDY: I have more process

18 questions. So if you get that to us on the 2nd

19 and the meeting is on the 8th, right, not the 7th?

20 It\'s the 8th? Then, that draft is close to final

21 and we\'re meeting together to make final \--

22 MS. PRICE: To go over line by line \--

23 MS. FOUDY: But is that a chance again

24 to offer revisions and so forth and so then there is

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1 another round after January 8th where we have to

2 have the final then?

3 DR. SIMON: But we don\'t meet \-- we

4 don\'t meet again as a group.

5 MS. PRICE: You don\'t meet again,

6 but \--

7 MS. FOUDY: Right.

8 MS. PRICE: \-- you\'re taking the edits

9 from the \-- you read the document prior to the 8th.

10 You all will edit it on the 8th as we do the

11 walk-through.

12 MS. FOUDY: Right.

13 MS. PRICE: Then we will get that back

14 to all of you before we \-- I mean, that then should

15 be what comes back with all of your \-- after your

16 review of that, it should be close to the final

17 document we turn in on the 31st.

18 MS. FOUDY: Okay. And what is the \--

19 the other process of \-- we\'re offering findings

20 and then the recommendations and then with the

21 recommendations, what\'s the process behind that

22 with the vote?

23 MS. PRICE: Line by line.

24 MR. LELAND: The same as \-- I assume

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1 we\'re going to review them one by one and then \--

2 MS. FOUDY: Right.

3 MR. LELAND: \-- we will have some

4 type of either consensus, acknowledgment or vote or

5 something just like we \--

6 MS. FOUDY: Are we \-- are we going

7 to define that better? I mean, because I know

8 that there are different views on different

9 recommendations and we are going to have to come

10 to that somehow. How will we \--

11 DR. SIMON: Julie, can you imagine a

12 minority report, for example? Is that \--

13 MS. FOUDY: I don\'t know. I\'m just

14 saying I don\'t know the process. I mean, because

15 there are different opinions, clearly, I \--

16 MR. LELAND: I know. I think we are

17 assuming there\'s going to be some kind of vote.

18 It would be wonderful in the best of all worlds if

19 there was a consensus regarding the final draft and

20 the recommendations \-- excuse me \-- of the findings.

21 That would be a real step forward for us if we could

22 get a flat out consensus on that. I\'m not sure we

23 can achieve that, but we ought to try.

24 I assume we\'re just going to go

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1 through and vote on the recommendations after we\'re

2 done. I think that\'s the way it\'s going to work.

3 I would like to talk to Cynthia about it sort of in

4 private and figure out what she\'s \-- what we\'re both

5 comfortable with and then present it to all you guys

6 in the start. You\'re thinking a little bit further

7 ahead than, I think, we\'ve thought, but it\'s a good

8 question. It\'s an absolutely appropriate question.

9 I just don\'t know if we have the definite answer.

10 DR. SIMON: And by a vote, are we

11 talking a majority vote or two-thirds? I think

12 once Julie raises this, we have to \-- we should

13 understand what the ground rules are.

14 MR. LELAND: Yes. I think you have

15 to \--

16 MS. FOUDY: And I \--

17 MR. LELAND: Go ahead.

18 MS. FOUDY: I mean, coming to that

19 process, I think, is important too. How \-- you

20 know, we\'re not going to be together again until

21 January 8th when that\'s supposed to be almost a

22 final form. So how do we decide on that process

23 together is another issue that makes sense because

24 I think we would decide on a process together,

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1 correct?

2 MR. LELAND: Yeah. I\'m assuming that

3 Cynthia and I and the staff get together and sort

4 of \-- once we see what this product looks like, get

5 an idea of how best to try to work with you guys and

6 then present that to you when we meet and we can

7 have a discussion as we have on other process

8 issues.

9 It seems that every time we\'ve

10 met, we, as co-chairs, have sort of said this is how

11 we think it ought to work. We\'ve either done it

12 that way or you guys have amended it and we\'ve had a

13 consensus and away we went. So I\'m assuming that\'s

14 the way it would go.

15 I mean, in other words, we\'d

16 present to you guys, gee, here\'s what we think this

17 is going to look like. This is the way we\'d like

18 to proceed during the next X-number of hours and

19 what do you think about it?

20 MS. FOUDY: So the vote wouldn\'t

21 happen until actually January 8th?

22 MR. LELAND: I\'m assuming that.

23 MS. COOPER: Yes.

24 MS. GROTH: Ted and Cynthia, could

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1 you \-- and I wasn\'t at the second day of the San

2 Diego hearing so I apologize, but could you tell

3 me what the role is of the subcommittee and the

4 process when they receive the report?

5 Will Rita have certain members

6 of the Commission that she will call to discuss

7 the report? How does that work? Could you \--

8 MR. LELAND: Well, I think what

9 happened was there was a concern when the staff

10 presented the ideas of how they were going to edit

11 and write this, that commissioners were concerned

12 that the staff not get too far down the road on any

13 particular issue or any particular editorial style

14 until the commissioners had it, you know, that we\'d

15 be so far down the road that the Commission would

16 lose control of the process and maybe lose control

17 of the content.

18 So we said, well, we don\'t want to

19 have all 15 commissioners looking over these poor

20 individuals\' shoulders so let\'s have a subcommittee

21 who are interested and maybe geographically located

22 in an area that they could help edit this thing on

23 an ongoing basis. That\'s why I said earlier I

24 didn\'t see this as them completing the project,

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1 handing it over to the subcommittee and handing it

2 back. I saw it as more collaborative as we go

3 along.

4 Then when we met in January, we

5 would have assurances that there were commissioners

6 that had monitored the editing and the developing

7 process in a way that would make us more comfortable

8 with the process. We were all, I think, afraid at

9 the time that \-- not that the staff was a bunch of

10 wild people who were going to go off and do it, but

11 I think there was a concern that, gosh, if this

12 is \-- if our names are going to be on this, that we

13 ought to have some oversight as the thing \-- as

14 we\'re now getting to crunch time and it\'s being

15 developed. That was the point.

16 MS. GROTH: And that makes sense.

17 MR. SPANIER: Did you say staff were

18 geographically located?

19 MR. LELAND: No. I said \-- I said

20 that the committee was either particularly

21 interested in helping with the editing or were

22 geographically located in a way that might be

23 easier for them to help with the editing.

24 DR. SIMON: But we\'re \-- but, in fact,

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1 we\'re all over the country; Brigham Young, Michigan

2 and \-- and where\'s Donna?

3 MR. GRIFFITH: We\'re all in America.

4 DR. SIMON: That\'s true.

5 MR. SPANIER: Well, I\'m just thinking

6 if it\'s going to be done, really, electronically or

7 via conference call, couldn\'t we all get the draft

8 electronically and send the input in and within

9 about 48 hours, then, they have everybody\'s input?

10 You\'re talking about a time element and, I mean, I

11 think it would be great \-- it\'s great that some of

12 our colleagues are willing to spend a couple extra

13 days doing that, but it\'s probably not really

14 necessary or efficient at this point if you have

15 good staff working on it.

16 MR. LELAND: Well, that\'s different

17 than what we decided last time. I think \-- I don\'t

18 see any reason why we couldn\'t change direction.

19 We could disband our subcommittee and make it the

20 committee of the whole. I don\'t \-- I don\'t have a

21 particular pride of authorship in the idea. It came

22 from a commissioner.

23 MS. GROTH: My suggestion was going to

24 be when the draft \-- it\'s similar to Graham\'s. When

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1 the draft went to the subcommittee, that we all got

2 copied as well and I had thought I heard Rita, and

3 correct me if I\'m wrong, saying that the

4 subcommittee would then make phone calls to various

5 commissioners to get feedback.

6 So I just \-- if that\'s the way

7 it\'s going to work or if that was the plan, then,

8 perhaps we would have the report at the same time

9 they do to read. Did I misunderstand?

10 MR. BATES: No. I thought there were

11 calls between the members of the subcommittee.

12 MR. LELAND: And I thought that we

13 would \-- my impression was we would have a

14 conference call or something between the

15 commissioners. I think the problem is \-- is that

16 what commissioners were concerned about, if I\'m not

17 mistaken, this was not my concern, but commissioners

18 were concerned that once a draft is presented, it

19 takes a life of its own and what you\'re suggesting,

20 if we make this the committee as the whole, this

21 draft will appear and probably appear in public and

22 it will take a life of it\'s own and we\'ll have to

23 then respond to this certain vehicle.

24 I think the idea was let\'s

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1 have a committee of commissioners watch this vehicle

2 be developed so it\'s not just presented to us as

3 something we must respond to similar to the way

4 people were concerned about the way different things

5 were presented the other day. Gee, I\'ve presented

6 this and now I have to respond to it.

7 So the idea was let\'s not get

8 presented with anything unless the commissioners

9 have a chance to watch the process unfold and

10 monitor it. So we said we all don\'t want to do

11 that. Now, we\'re saying \-- suggestion has been

12 made, which is a very reasonable one, why doesn\'t

13 everybody become \-- sort of monitor that process.

14 If I were writing this thing, I would prefer having

15 four people, not 15, as my boss.

16 MR. JONES: Ted, there is a concern

17 that I have about the conference call \-- he\'s

18 nodding his head. I think he knows \-- Graham\'s

19 nodding his head. I think you know where I\'m going

20 with this and that is the Federal Advisory Committee

21 Act. You know, our meetings have to be open to the

22 public. We can\'t have a committee meeting \-- a

23 Commission meeting by conference call where the

24 public is not invited to attend.

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1 MR. LELAND: We can\'t have a

2 subcommittee either, huh?

3 MR. JONES: Well, I \-- I mean, you

4 know, there are \-- obviously, you can have

5 individual communications from an individual

6 commissioner to the staff and that sort of thing,

7 but I just think I\'d want to be very careful about

8 how we did that kind of thing because I don\'t want

9 to have us in a position where there is some sort

10 of, you know, the official, sort of substantive

11 discussion that\'s going on amongst commissioners

12 that the public doesn\'t have access to.

13 MR. LELAND: Well, you may have

14 answered our question, then, because if four members

15 of the Commission cannot get on the phone with the

16 people that are writing this and discuss it, then,

17 we don\'t need our committee, right?

18 MR. JONES: Right. In some ways,

19 right. It would depend on what the content of that

20 discussion is. I think it\'s \-- we would probably

21 defend it better if it were a smaller group that

22 were \-- that was interacting with, you know, the

23 staff. Again, I just don\'t want us to be in a

24 position where this is a \-- you know, the Commission

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1 is functioning by conference call.

2 MR. LELAND: Okay. So you\'re arguing

3 against what Graham suggested, which is we all do it

4 together \--

5 MR. JONES: I think I am arguing

6 against what Graham suggested if, in fact, you were

7 suggesting a committee of a whole conference.

8 MR. SPANIER: Oh, absolutely not. No,

9 I think that\'s completely unworkable. It\'s even

10 more unworkable than having four people try to \-- I

11 think give us a draft, let us \-- give us 48 hours to

12 work it over, send back the whole thing. If it\'s

13 still too complicated, do another iteration and then

14 you know what everybody thinks and we work towards a

15 conclusion.

16 MR. JONES: I guess my understanding

17 of what we had talked about in San Diego is that we

18 would have these commissioners who had sort of

19 agreed that they would sort of be checking in with

20 the staff and looking over what was going on just to

21 make sure that we weren\'t veering off the tracks \--

22 that the staff wasn\'t veering off the tracks in

23 terms of content, style, et cetera.

24 MR. SPANIER: Right.

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1 MR. JONES: And, you know, that

2 strikes me as quite different from having a, you

3 know, a real sort of substantive exchange on the

4 issues with a big group of commissioners, which I do

5 think, you know, gets us in trouble.

6 MR. SPANIER: I\'d even be \-- I would

7 be supportive of sharing it \-- how many people are

8 on the subcommittee, four? Sharing the first

9 iteration with four of the people and giving them a

10 chance for feedback and then sharing it with the

11 rest of the group, but, you know, I say move it

12 along and give everybody a chance for input. I

13 don\'t think \--

14 MR. LELAND: I think what you just

15 suggested is what the model was. It was that we\'d

16 have a small group of people who would not act as a

17 committee of the whole, but would help edit this

18 thing so we weren\'t presented with a final \-- I

19 mean, this was in an environment now where people

20 were \-- commissioners were coming to Cynthia and I

21 and saying, gosh, you know, we need more input on

22 who is being invited.

23 We put our names in and all we\'re

24 doing is \-- we come up with a fait accompli. So we

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1 said, well, we don\'t want any more a fait accompli.

2 We don\'t want any more completed documents handed to

3 commissioners so let\'s let commissioners sort of

4 monitor this process, a subcommittee. I mean, so I

5 saw it operating exactly like Graham just said.

6 Now, we don\'t have to \-- let\'s

7 decide what we\'re going to do because we have some

8 other business to take care of. I mean, if people

9 don\'t think that a subcommittee monitoring it is a

10 good idea, we\'ll just get a draft on January 2nd and

11 away we go. If we\'re fine with that, I\'m fine with

12 that. It saves these people some work.

13 MS. GROTH: Ted, I think \--

14 MR. GRIFFITH: I\'m going to \-- oh, I\'m

15 sorry.

16 MS. GROTH: Well, I think it\'s a great

17 idea. I just was wondering what the process was

18 once the subcommittee got the report. So I might

19 have muddied it a little bit, but since I wasn\'t in

20 San Diego, I just want to know what happens next and

21 I guess the subcommittee \-- you answered that the

22 subcommittee just works with the staff and then we

23 receive the draft electronically or however.

24 MR. LELAND: Tom?

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1 MR. GRIFFITH: Sounds good to me. I

2 would have been heading in the wrong direction. I

3 want to back up to the date issue again. Graham,

4 you\'re right. I mean, there are settled

5 expectations about what our schedules are for

6 January and that makes it difficult, but I\'m

7 convinced that if we had more time before the

8 January 8th meeting, that that January 8th meeting

9 would be a lot more productive.

10 If there\'s \-- if there\'s a chance

11 for the subcommittee to do its work, if there\'s a

12 chance for the staff to get the report out to the

13 full commission, I just think that extra week will

14 pay off huge dividends. As it is, we just have

15 scheduled one day and I presume that the January 8th

16 schedule will go from, what, 9:00 in the morning

17 until 5:00 in the afternoon or something like that?

18 And that\'s it. That\'s our last chance to get to \--

19 MR. LELAND: So you\'re arguing again

20 to move it back a week?

21 MR. GRIFFITH: Yeah. Last ditch

22 effort to move it back a week.

23 MR. LELAND: Okay.

24 MR. GRIFFITH: I don\'t see too many \--

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1 MR. LELAND: Well, let\'s first deal

2 with the issues. Are people comfortable with the

3 process of a subcommittee helping the staff and us

4 getting it in sort of a draft that\'s been somewhat

5 vetted through this subcommittee in sort of a way to

6 be determined \-- in a way that meets the law so that

7 we don\'t violate the public disclosure requirements?

8 Are we comfortable with that now? Okay. Then

9 let\'s \--

10 DR. SIMON: How do you do \-- I mean,

11 are you looking at people\'s expressions or do you

12 want a show of hands or what are we doing here?

13 MR. GRIFFITH: Rita, microphone.

14 MR. LELAND: Well, in the past, Rita,

15 what I\'ve been doing \-- what Cynthia and I have been

16 doing is sort of look around and if nobody shakes

17 their head and say no, we \-- are you \-- are you

18 uncomfortable? Did you want to express \--

19 DR. SIMON: No. I just want to be

20 sure because these are important issues. I just

21 want to be sure.

22 MR. SPANIER: I guess I\'m quite

23 comfortable with that one proviso and that is that

24 the subcommittee understands that \-- at least to

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1 me \-- would not wish to see the subcommittee amongst

2 themselves negotiate away things that we\'ve already

3 agreed or a preponderance of us have indicated by

4 the look in our eyes that we would like to see

5 reflected in some way in the report.

6 MR. LELAND: And, Graham, I think \--

7 MR. SPANIER: I don\'t think the

8 subcommittee should be empowered to negotiate out

9 differences of opinions.

10 MR. LELAND: No, absolutely not.

11 MR. SPANIER: If you\'re talking about

12 style or are all the topics on the table, you know,

13 is it all there, are we headed in the right

14 direction, that\'s fine.

15 MR. LELAND: I think that\'s what we\'re

16 talking about unless I\'m mistaken.

17 MR. JONES: The kind of activity that

18 you\'re talking about that you don\'t want to see,

19 that\'s the kind of activity that I think this group

20 shouldn\'t be engaged in if the public is not there

21 to observe.

22 MR. LELAND: Okay.

23 MR. GRIFFITH: It\'s, I think, style.

24 MR. LELAND: That\'s better guidance

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1 for our subcommittee and for the staff as they work

2 with them. We\'re talking about a style issue and a

3 putting-it-together issue. I think we can function

4 well there. I would encourage staff to sort of

5 connect with these people and let\'s get going and

6 let\'s not wait until the whole thing is done and

7 give it to them. That could back us up.

8 Maybe when part of it gets done,

9 you could work, you know, part to the whole instead

10 of having the whole thing. Is there anybody \-- Tom

11 has again brought up the idea of \--

12 MR. GRIFFITH: I\'ll pull that back.

13 MR. LELAND: Okay.

14 MR. SPANIER: Can I have just one

15 other possibility? My note \-- and you can clarify

16 this right away, Debbie, but my notes from the

17 August meeting suggest that we had actually settled

18 on January 7th and not January 8th. I\'m a little

19 confused about that.

20 MS. PRICE: I thought we had switched

21 from the \-- we had come in with January 7th and

22 switched it to the 8th.

23 MR. SPANIER: I had the 7th and 8th.

24 DR. SIMON: I have the 8th down in my

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1 book.

2 MR. LELAND: I had the 7th on mine,

3 but my perception is we changed it to the 8th at

4 some point in time.

5 MR. SPANIER: That was the case where

6 we actually started with the 8th and moved it to the

7 7th. I just think we need to clarify that because,

8 again, that has some scheduling implications for me.

9 Let\'s answer that question first and then I just

10 have one other suggestion.

11 MR. LELAND: I mean, right now, it\'s

12 on the 8th. Let\'s just say that\'s the official \--

13 MS. PRICE: I had it originally on the

14 7th and we switched it to the 8th and we had this

15 meeting scheduled on, I think, the 5th and we moved

16 it to the 4th.

17 MR. SPANIER: So does everybody here

18 think it\'s on the 8th?

19 MR. SPANIER: Okay. Well, then, I\'m

20 probably the one that\'s confused. If it\'s, indeed,

21 on the 8th, then, we feel that there was some

22 substantive working, reworking, editing, that needs

23 to be done, I\'m wondering if we could identify a

24 subgroup.

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1 It wouldn\'t have to be the same

2 subgroup, but a group who would be willing to come

3 in the afternoon of the 7th and have your word

4 processors geared up and your printers and do it at

5 the Department of Education office so that when we

6 start the meeting on the morning of the 8th, we\'re

7 really ready to start.

8 I mean, I would endeavor to try

9 to be helpful that way, maybe others wouldn\'t, if

10 there was still stuff that needed to be done. We

11 maybe wouldn\'t know that until the time got a little

12 closer. If it was sort of a working group to get

13 ready for that meeting, again, not that they are

14 negotiating anything, but \--

15 MS. PRICE: No, that sounds like a

16 good reasonable suggestion.

17 MR. LELAND: Yes. I\'d be willing to

18 do that myself. Anybody else who \-- we\'ll just get

19 volunteers. Are we okay with the law doing that?

20 MS. PRICE: Yes.

21 MR. JONES: I\'m sorry. To do what?

22 MS. PRICE: Regarding the FACA law, a

23 subcommittee can meet without having to meet in

24 public. The meeting of the whole, and our forum is

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1 eight, cannot meet without the public being

2 available, but a subcommittee can meet, you know, a

3 small group of people can meet. If you \--

4 MR. LELAND: So if five or six of us

5 were to come in on the afternoon of the 7th and

6 get \-- sit down in the room and really try to do

7 another draft that could be printed that night, that

8 would be helpful?

9 MR. JONES: I would still \-- I\'ll be

10 there, too, but I still think we need to be careful

11 about what \-- you know, what we discuss and how it\'s

12 discussed.

13 MR. LELAND: Okay. Bring your billy

14 club.

15 Any other programs or issues

16 regarding the process and timing this stuff?

17 MS. GROTH: I have a point of

18 clarification. So we definitely will have the

19 report by January 2nd?

20 MR. LELAND: They will mail it the

21 morning of the 2nd.

22 MS. GROTH: Mail it the morning of the

23 2nd.

24 MS. PRICE: We\'ll get it out on the

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1 2nd.

2 MS. GROTH: Probably electronically.

3 MR. LELAND: Yeah.

4 MS. PRICE: Hopefully, electronically.

5 MS. GROTH: Any earlier would be

6 appreciated.

7 MR. LELAND: Yes.

8 MS. PRICE: Absolutely.

9 MR. LELAND: The earlier, the better.

10 We\'re assuming the subcommittee has done some

11 cursory vetting of the thing. Okay?

12 MR. LELAND: We\'ll now start \--

13 Cynthia and I thought we would go around and exhaust

14 the recommendations that people have that weren\'t

15 covered on the first.

16 Again, we have some people that

17 are part of our forum that have airplane flights, et

18 cetera. So let\'s make sure that we are as succinct

19 as we possibly can and let\'s not repeat what\'s

20 already been stated.

21 MS. COOPER: Okay. I\'m going to be

22 quick. I think the Department of Education/OCR

23 should initiate programs to promote interest in

24 opportunities for female athletes at the high school

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1 level. That was pretty \-- it\'s not controversial.

2 MR. LELAND: Questions? Thoughts?

3 Hearing none, seeing none, I pass.

4 MR. DeFILIPPO: Pass.

5 MR. SPANIER: Pass.

6 MR. LELAND: Debbie, do you have

7 another recommendation that you would like to share

8 with the Commission and the world at large? Do you

9 want to think about it?

10 DR. YOW: Yes.

11 MR. LELAND: Okay. Cary?

12 MS. GROTH: Pass.

13 MR. LELAND: Percy?

14 MR. BATES: We may have already

15 covered this, but I guess the other one that I had

16 was the need for regional consistency from one

17 region to another. That is one that I think we need

18 to really nail down.

19 The other one that I had has to

20 do with the nationwide education program and I guess

21 we may have already covered this, but it seems to

22 me that there are different groups. There\'s the

23 colleges and universities, members of the NCAA and

24 the thing that I kept hearing, and I don\'t know how

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1 we do this, but clearly, we\'ve got to join hands

2 with the court somehow so that there is some flow

3 here because what we seem to have been hearing is

4 that what we may come up with, by the time you get

5 someplace else, there is a different way to do it.

6 While I know we are not in the business of educating

7 judges, there may be some sort of communication flow

8 that really talks about what the intent is and how

9 that comes out in relationship to the law. That\'s

10 all of mine.

11 MS. COOPER: Well, if you use Tom\'s

12 example or if you make it a regulation, I think that

13 would help.

14 MR. BATES: Yes. Okay. I mean, I

15 just think \-- I just think when we heard \-- when we

16 thought we were doing the right stuff that somebody

17 else said, no, and maybe we weren\'t talking enough.

18 That\'s all. That\'s it. Because I\'m going to have

19 to leave first.

20 MS. COOPER: Do you want to go back to

21 Cary?

22 MR. LELAND: No. Let\'s keep going.

23 Just because we pass one time \-- this is like poker.

24 You can play the second hand.

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1 MR. BATES: Debbie is going to come

2 back. You can bet on that. She\'s not \-- she\'s not

3 finished.

4 MR. LELAND: No, no. She\'s just

5 shuffling through her papers. Sally?

6 DR. SIMON: I \--

7 MS. COOPER: Go ahead, Rita.

8 DR. SIMON: I just want to ask a

9 question of Cynthia. May I?

10 MS. COOPER: Yes.

11 DR. SIMON: When you say should

12 initiate programs at the high school level, do you

13 mean all high schools, every high school in the

14 United States?

15 MS. COOPER: Yes, absolutely.

16 DR. SIMON: Okay. And by initiate

17 programs, could you say something substantively?

18 What do you have in mind?

19 MS. COOPER: Well, I mean, there are

20 different programs that you could initiate \--

21 DR. SIMON: Right.

22 MS. COOPER: \-- that will help promote

23 interest on the grass roots level. I just don\'t

24 believe that \-- while I believe that there are

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1 some \-- that there are some interests that are born

2 on the collegiate level, I just don\'t think that to

3 play varsity sports, that interest began on the

4 collegiate level. I think it begins at the high

5 school level.

6 DR. SIMON: I\'m not disagreeing with

7 you, Cynthia. I just want you to elaborate.

8 MS. COOPER: Well, I just think that

9 the department needs to look into that. You look

10 into different problems all the time to promote

11 education and I think that you could look at

12 different programs. They could look at different

13 programs to help fund the high school level, create

14 more interest for females, even females who weren\'t

15 previously interested in sports.

16 DR. SIMON: Right. And would you

17 also include that they should make recommendations

18 about adding sports that aren\'t included in the

19 particular high schools?

20 MS. COOPER: Well, of course, if there

21 is an interest, absolutely.

22 DR. SIMON: So it\'s really quite an

23 elaborate proposal that you had. That\'s not bad. I

24 just want to understand what you are suggesting.

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1 MS. COOPER: It\'s not controversial,

2 is it?

3 DR. SIMON: I\'m not saying it\'s

4 controversial, but you\'re saying \-- because there

5 are, you know, thousands and thousands of high

6 schools that OCR should look into, all of the

7 high schools in terms of interest, in terms of

8 participation, in terms of types of programs.

9 I\'m not being critical. I just want to know.

10 MS. COOPER: Yes. And I believe

11 that there is an imbalance on the high school

12 level. We hear about athletes \-- male athletes

13 who, on the high school level \-- not even high

14 school level, K through 12, we hear how they dream

15 of playing professional basketball. Well, I would

16 like to hear about women, you know, programs that \--

17 I would like to see programs developed so that we

18 will have women at age five dreaming of playing

19 professional soccer or professional softball, et

20 cetera, et cetera.

21 DR. SIMON: Okay. Well, thank you.

22 MR. LELAND: Any other questions?

23 Sally?

24 MS. STROUP: Pass.

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1 MR. LELAND: Brian?

2 MR. JONES: Pass.

3 MR. LELAND: You guys passed last

4 time. Jerry?

5 MR. REYNOLDS: I thought that we

6 should consider \-- we should reconsider our rules

7 regarding the private funding. The example that

8 comes to mind is Marquette.

9 In that instance, I believe,

10 the alumni offered up some money to fund the

11 program, but because of how the money had to be

12 allocated, the school decided that it wasn\'t enough

13 once you spread the money to both sexes. So I think

14 we may want to reconsider the standard that we use.

15 MR. LELAND: Okay. Does anyone want

16 to discuss that one? Cary?

17 MS. GROTH: So is your suggestion to

18 count donor dollars totally different? Don\'t \--

19 that donor dollars would not be under the same

20 scrutiny as other dollars within the institution?

21 MR. REYNOLDS: No. I\'m not being that

22 specific. I don\'t have anything in mind. It just

23 struck me as odd that in that case where it was

24 clear that the wrestlers at Marquette had the

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1 interest and the ability to wrestle, that these

2 alumni stepped forward with a check that would endow

3 the program, but because how the Department of

4 Education \-- because of our current rules, it was

5 not a viable option.

6 I mean, the fact that there was

7 money, that wasn\'t enough. It just strikes me

8 as \-- it seems to me that we may be able to look at

9 how we decide how money has to be allocated and

10 maybe there are opportunities to tinker with it so

11 that if the situation arises and a team is about to

12 be cut, if someone steps forward, they could do it.

13 MR. LELAND: Donna de Varona has

14 talked a couple of times about this same sort of

15 proposal. Julie, do you have a comment here?

16 MS. FOUDY: I think that my comment is

17 that with Title IX, it doesn\'t seem to prohibit that

18 type of funding to a specific program. It\'s just

19 you have to balance it out or offset it, I think is

20 the word they use, in other areas of your programs.

21 I mean, the analogy would \-- would \-- if you don\'t

22 count it as part of your Title IX equation, the

23 analogy that comes to mind for me is it would be

24 like building a science lab and only white students

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1 can use it.

2 I don\'t think you can take that

3 out of the equation, but I don\'t think you should \--

4 and I think Title IX clearly doesn\'t prohibit them

5 from funding programs like this. It just has to be

6 offset somewhere else. I think that that needs to

7 be pointed out.

8 MR. LELAND: Okay. Graham?

9 MR. SPANIER: Well, I think \-- I think

10 you are raising a good point and within the narrow

11 set of circumstances that you suggest, I would say

12 common sense would suggest, of course, it\'s relevant

13 and it should be considered.

14 I think in the larger scheme of

15 things, one has to be very careful heading down that

16 direction for reasons that Julie mentioned. There

17 certainly could be some mischief making and we

18 often \-- I mean, in the current environment, we have

19 donors who step forward occasionally wanting to give

20 us money with certain strings attached and we have

21 to say no to them or talk them into changing the

22 strings because it would be straying into a gray

23 area or even crossing the line to designate that

24 funds can only be spent in certain ways or for

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1 certain people.

2 So I guess, you know, the answer

3 is under certain narrowly defined circumstances, it

4 would absolutely make sense, but I think you have to

5 be very careful about it.

6 The other thing many of us

7 face, I think we heard in one of our presentations

8 about the University of Minnesota golfers. Of

9 course, the irony there was after they announced

10 they were closing down the men\'s golf team, they won

11 the national championship, but that\'s an aside.

12 But then people step forward and

13 say we\'ll put up the money and I\'m not sure that

14 they actually wrote a check or not, but they claimed

15 that we were prepared to put up the money for three

16 years, or whatever, while the university solved a

17 financial problem.

18 We often have that issue as well

19 where donors step forward and give what appears to

20 be a generous gift to keep something going because

21 there is an emergency, but the university really has

22 to face up to the long-term financial commitment. I

23 think in those circumstances, you must look at that

24 long-term financial commitment in the context of

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1 Title IX.

2 By accepting those funds, what

3 does it mean to the larger scheme of things. Didn\'t

4 Northern Illinois have something in this zone as

5 well or am I thinking about another institution?

6 MS. GROTH: Another institution.

7 MR. SPANIER: But there have been

8 several cases where donors have stepped forward to

9 come to the rescue, but upon closer examination, the

10 waters were a little muddy.

11 MR. LELAND: But you are just

12 suggesting an examination of the options and ways

13 that might be possible under certain circumstances?

14 MR. REYNOLDS: Right. There are

15 concerns. People will game the system. People are

16 gaming the system now. I\'m not suggesting that I

17 have a particular plan in mind, just conceptually.

18 I think we should explore \--

19 MR. SPANIER: Just a license to look

20 at it.

21 MR. REYNOLDS: Yeah.

22 MR. LELAND: Yeah.

23 MR. SPANIER: While Jerry has the mic,

24 could I just ask a question? I think it might be

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1 helpful if our co-chairs would allow you to do this

2 for a minute, but what topics \-- what areas or

3 recommendations are you hoping to receive guidance

4 on that we have missed in our one and two-thirds

5 rounds around the table?

6 Is there a topic or two that you

7 were hoping this Commission would come forward and

8 give guidance on and you have just been quiet over

9 there, I mean, today anyway, and we haven\'t gotten

10 there yet? You know, because this group is not

11 short of opinions. I think we would give them to

12 you if you were waiting for something.

13 MR. REYNOLDS: Prong two, when I look

14 at prong two, I see it has withered on the vine.

15 For many institutions, it\'s not a viable option and

16 that\'s because the prior AD didn\'t do the right

17 thing after Title IX was passed. I think that we

18 need to look at it differently.

19 In other cases, you had schools

20 that, after the passage of Title IX, did the right

21 things and they created a lot of teams for women and

22 just, okay, fine, they did the bulk of their work

23 and they \-- in the late \'70s and early \'80s and so

24 for those schools, the room to grow is somewhat

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1 limited. I think that the current approach that we

2 have in some cases penalizes teams that did the

3 right thing early on and it also ties the hands of

4 ADs who want to do the right thing today, but who

5 may be suffering from the effects of what a prior

6 AD has done.

7 So I think that we need to take

8 another look at prong two to see if we can reshape

9 it to take those concerns into account.

10 MR. LELAND: We already have one on

11 the books saying clarify prong two and prong three.

12 You are really talking about something different.

13 MR. REYNOLDS: One, two and three.

14 MR. LELAND: One, two and three.

15 Sorry.

16 MR. REYNOLDS: Well, no, I guess I

17 was just hoping for more discussion like with

18 respect to prong one, we drilled down and we had

19 detailed conversations. With respect to prong two,

20 basically it was we should clarify prong two without

21 much detailed conversation.

22 MR. LELAND: Would you like this to be

23 in the form of a recommendation?

24 MR. REYNOLDS: Yes.

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1 MR. LELAND: Okay. And I think that

2 was the purpose of \-- we\'re letting you do two in a

3 row. So you should feel good about that.

4 MS. COOPER: That\'s as loud as you

5 have spoken all along!

6 DR. YOW: Ted, can we talk about that

7 for a minute?

8 MR. LELAND: Yes, but let me just do

9 some housekeeping here.

10 I assume that with the first

11 suggestion that Jerry made in terms of suggesting

12 that we take a look at models of allowing private

13 funding to help with programs that may be dropped

14 and Julie had some comments about that. I\'m

15 assuming that\'s going to go forward with the staff

16 to develop a proposal for us.

17 MS. GROTH: Yes.

18 MS. FOUDY: Can we ask some questions,

19 though, about \--

20 MR. LELAND: Yes. Let\'s finish this

21 one. All I\'m saying is let\'s finish this one so \--

22 you want to add an amendment now?

23 MS. FOUDY: No, but to that one.

24 MS. GROTH: Yes, to that one, if Jerry

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1 would allow me to do so. I think to allow private

2 funding for programs who are in danger of being

3 dropped as well as programs, for men or women, to

4 be added, I think we need to cover both sides there.

5 MR. REYNOLDS: That\'s agreeable.

6 MR. LELAND: Okay. Any other

7 questions or comments on the idea of the private

8 funding sort of being handled differently when

9 it relates to a program that is either being dropped

10 or one that we might \-- someone might want to think

11 about starting? Any other comments on that one

12 before we move to the second?

13 All right. Hearing none, let\'s go

14 on to the second now. The reshaping of prong two,

15 let\'s discuss that now.

16 DR. YOW: I want to just say that \--

17 use this as an opportunity, since Jerry brought it

18 up, that that\'s \-- in review of the prong two, prong

19 two shouldn\'t exist. It does no one any good in a

20 terminal sense.

21 Prong two is used to get to prong

22 one. We have heard that over and over again, a

23 number of us around the table have experienced that.

24 Use prong two to get continuing expansion and it is

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1 valuable in getting to proportionality, however that

2 is measured.

3 I understand the value of prong

4 three if you use surveys and you\'re going to make

5 a case that you don\'t need to be in proportionality

6 because you are meeting the interests of your

7 under-represented sex.

8 Jerry, it\'s just problematic, I

9 believe because what it is, you know, continuing

10 expansion every year, ever two years, every three

11 years, every eight years, every three years, as

12 long as the number that you added was at least 60

13 athletes and 20 scholarships.

14 I mean, that\'s another one of

15 those areas that is evaluated differently on a

16 case-by-case basis and I don\'t like that. I still

17 want to hit the target and I don\'t see how you hit

18 the target with that.

19 MR. REYNOLDS: Prong two, it seems

20 to me, is the prong most easily \-- you can most

21 easily gain the system using prong one. If you

22 have \-- if you are aware that there is interest

23 and abilities and you decide not to go ahead and

24 add that team because, well, I have added a team

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1 two years ago, I can wait and hide out for four or

2 five years without doing anything despite the fact

3 that I have knowledge that there was interest,

4 ability and there are schools around where they

5 have other teams, where there\'s competition, so,

6 yeah.

7 But if we are going to keep prong

8 two, and, yes, there are some arguments to be made

9 that we shouldn\'t keep prong two, but if we\'re going

10 to keep it, I think that we should \-- that it should

11 be made more robust so that people can use it. I

12 mean, either we get rid of it or we actually have

13 three \-- if we stick to the three-prong structure,

14 and I\'m not recommending that we do that, I\'m not

15 making a recommendation for or against, but if we

16 wind up staying with the current structure and there

17 is a second prong, then, if we\'re going to hold our

18 nose and keep it, then, let\'s make it viable.

19 MR. LELAND: Debra, are you saying

20 drop it?

21 DR. YOW: I\'m saying drop it from the

22 C.S. Lewis perspective when he says no clever

23 arrangement of rotten eggs will make a good omelet.

24 It\'s bad, guys. It\'s really bad. We need to drop

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1 it.

2 MR. GRIFFITH: Debbie, the examples

3 that you cited of, you know, putting more

4 specificity to it, you know, the last three years,

5 20 scholarships, I take it that that was entirely

6 sarcastic, that none of those would be acceptable?

7 There is one approach you could do. You could say,

8 for example, look at the history for the last ten

9 years or last five years with, you know, adding a

10 certain amount of \-- there are benchmarks you can

11 use, which I sort of took Gene to be getting at when

12 he said let\'s just clarify each one of them, but is

13 your feeling now that it really can\'t be salvaged,

14 that \--

15 DR. YOW: I\'ve watched it 30 years.

16 It\'s all over the board. It just depends on who \--

17 to whom you are speaking as to whether or not what

18 you have done in expansion is considered to be

19 sufficient.

20 MR. LELAND: Yes, but I think we

21 already have a proposal to try to figure that out.

22 MR. GRIFFITH: To benchmark that,

23 yeah.

24 DR. YOW: I hear that. I\'m making

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1 another proposal that we consider dropping it.

2 MR. LELAND: Okay. When it\'s your

3 turn, you can do that.

4 DR. YOW: Because I don\'t think it can

5 be fixed. I\'m sorry.

6 MR. SPANIER: Debbie\'s proposal is

7 much more fundamental and I really believe there is

8 some merit there. I think anybody who \-- any school

9 30 years later is working on that prong, somebody

10 hasn\'t been minding the store. Now, it gets to

11 your issue should our predecessors be blamed or

12 should current people be blamed for something our

13 predecessors did, but I would think at the very

14 least, in a new set of regulations or clarification,

15 I don\'t know, you know, if it\'s permissible to do

16 something like this, but shouldn\'t it be about a

17 sunset provision that that prong \-- okay. Here\'s a

18 new set of rules, everybody, and it\'s very clear so

19 nobody can argue they didn\'t know what the deal was.

20 Now, you know, and you\'ve got five years \-- you can

21 only use that prong for five years and after that,

22 you ought to be there and then you can\'t use that

23 anymore. Then you\'re going to have to demonstrate

24 it in one of the other ways.

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1 MR. LELAND: Okay. Do you take either

2 dropping prong two or giving a sunset, are those

3 friendly amendments or do you want to keep yours on

4 the books and we\'ll wait until these guys \--

5 MR. REYNOLDS: Well, with respect to

6 Debbie, I just suggest we add it as a recommendation

7 and ultimately, the commissioners would vote on it.

8 MR. LELAND: Well, when we get around

9 to her, we\'ll do that, But I\'m talking about yours

10 right now.

11 MR. REYNOLDS: I don\'t see how we

12 could add Debbie\'s onto mine. You\'re asking me

13 to \--

14 MR. LELAND: I\'m asking you if you \--

15 do you see what Graham Spainer said and what Debbie

16 Yow said as a friendly amendment to yours?

17 MR. REYNOLDS: With respect to

18 Graham\'s, yes.

19 MR. LELAND: Okay.

20 MR. REYNOLDS: With respect to

21 Debbie\'s, I \--

22 MR. LELAND: No?

23 MR. REYNOLDS: \-- don\'t see how that

24 could be considered friendly.

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1 MR. LELAND: Okay. I\'m just trying

2 to clear up where we are. I didn\'t think it was

3 very friendly either. I\'m just kidding! Friendly

4 towards that.

5 Anything else on this proposal

6 to reshape prong two?

7 MS. FOUDY: The idea being behind

8 prong two is that it\'s the good faith effort of

9 getting there, right, because some schools

10 can\'t afford to immediately go straight to \--

11 DR. YOW: Yes. That was the idea 30

12 years ago, yes.

13 MS. FOUDY: All right. So if a school

14 doesn\'t have the resources to immediately get to

15 compliance and they need time to get there, I mean,

16 the issue is are we going to, then, in fact, be

17 creating more lost opportunities for men because

18 they are just going to have to shave programs to get

19 there right away?

20 DR. YOW: Not with Graham\'s addition

21 to that.

22 MR. LELAND: Well, stick with Jerry\'s

23 proposal. The proposal to drop this is not on the

24 table right now.

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1 DR. SIMON: All right. So tell me

2 again what is on the table?

3 MR. LELAND: His proposal is that we

4 reshape prong two, part of which might be adding a

5 sunset clause. Okay? So I think that\'s what he is

6 proposing. When Debbie \-- when we get over to her,

7 she\'ll propose that we\'re going to drop it and I\'m

8 sure we can \-- okay.

9 Debbie, your proposal was to drop

10 it. That\'s what you said.

11 DR. YOW: Well, I know I did, but if

12 you are going to add Graham\'s comments to Jerry\'s,

13 it, in effect, is the same thing.

14 MR. LELAND: Well, I asked Jerry that

15 question and \--

16 DR. YOW: Modify it, but it is.

17 MR. LELAND: I asked Jerry that

18 question and he said it wasn\'t. I mean, it\'s his

19 motion.

20 DR. YOW: Jerry, modifying and then

21 drop is the same thing as saying we\'re going to drop

22 it, but won\'t drop it until five years from now or

23 three years from now. It\'s the same thing.

24 MR. REYNOLDS: Yes, yes, yes. It\'s

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1 been harmonized.

2 MR. LELAND: Debbie, are you

3 withdrawing that as your suggestion?

4 DR. YOW: Yes, I am.

5 MR. LELAND: Thank you. Anything

6 else? Anybody else have any comments on the idea of

7 reshaping and adding a sunset clause or suggesting

8 that the Department of Education consider reshaping

9 this? I think that\'s what we\'ll probably \-- it will

10 look something like that.

11 Anything else? Since we just gave

12 Jerry two in a row, we\'ll go to Julie.

13 MS. FOUDY: We\'re hearing a lot of

14 talk of reshaping and rewriting and reformulating

15 and my recommendation speaks to that. In providing

16 technical assistance, the Department of Education

17 should not change current policies in ways that

18 would undermine the spirit and purpose of existing

19 interpretations.

20 MR. LELAND: Okay. Discussion?

21 DR. SIMON: Excuse me, excuse me. But

22 Julie, I think some of the discussion this morning

23 indicates that we may be reshaping some of the

24 traditional interpretations. For example, Debbie\'s

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1 suggestion about defining substantial

2 proportionality as 50/50 and then having variances.

3 I think that\'s a different interpretation than the

4 one that is currently being used. I think some of

5 the things this morning that were \-- gained support

6 or seemed to be on the verge of being adopted do

7 not \-- is not consistent with the original

8 interpretation than the one that is currently being

9 used. I think some of the things this morning that

10 gained support or seemed to be are not consistent

11 with the original interpretation.

12 MS. FOUDY: The spirit, I\'m talking

13 about. The spirit of Title IX.

14 DR. SIMON: By the spirit, you mean

15 equal opportunity?

16 MS. FOUDY: Yes.

17 DR. SIMON: All right. Okay. If

18 that\'s what you mean by the spirit of equal

19 opportunity, then, yes.

20 MR. LELAND: Okay. We also remember

21 we said that there were going to be times when

22 recommendations were going to be \-- might be

23 conflicting. So I don\'t think that we should

24 just throw it out because it might be conflicting.

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1 Questions of \--

2 MS. FOUDY: And I\'m not saying that

3 we can\'t provide guidance and that we can\'t educate.

4 I\'m just saying that we shouldn\'t be changing the

5 spirit of the law in the process of doing that.

6 MR. LELAND: Yes?

7 MS. COOPER: Before we go on with

8 that, I want to skip and just ask Muffet \-- Muffet,

9 are you there?

10 MS. McGRAW: Yes. I just had kind of

11 a quick comment and really I just want to make sure

12 that however we decide to work the proportionality

13 numbers with the student enrollment, whatever we

14 choose to do, I just hope it doesn\'t affect the

15 scholarship budget. I feel like how we are treated

16 and the kind of facilities we have is almost more

17 important to me than the participation numbers. I

18 want to make sure that doesn\'t get lost in what

19 we\'re doing.

20 The other comment, I didn\'t write

21 it down and I can\'t remember. Sorry.

22 MR. LELAND: Muffet?

23 MS. McGRAW: Yes.

24 MR. LELAND: This is Ted.

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1 Are you suggesting that we put

2 in some kind of recommendation that says that the

3 support services and scholarship dollars available

4 for women, no matter what model we adopt or the

5 Department of Education adopts for implementation

6 of Title IX should not decrease? Something like

7 that?

8 MS. McGRAW: Yes, that\'s it. And

9 the other one was that we just remember to look at

10 everything through high school, junior college,

11 NAIA, and every other level, not just the Division I

12 level.

13 MR. LELAND: Any questions of our

14 friend on the phone?

15 All right. Muffet, anything else

16 before you go?

17 MS. McGRAW: No, that\'s it. I\'m going

18 to hang up now.

19 MR. LELAND: Thank you.

20 MS. COOPER: Now, we\'ll go back to

21 Julie. Are we done?

22 MR. LELAND: I think we\'re done with

23 Julie\'s.

24 MS. FOUDY: I think Cary had something

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1 to add.

2 MS. GROTH: I have a comment about

3 Julie\'s and maybe it\'s just going back to one of

4 the original statements I made in the beginning

5 this morning and that is we\'re making a lot of

6 recommendations. I, too, am making recommendations.

7 We just have to make sure that we understand the

8 current three prongs.

9 We\'re asking questions of Gerald

10 and Brian and before we make any changes, we all

11 should be very familiar with what the examples are

12 and the current rules and regulations or

13 interpretations are of those. I just want to remind

14 us of that.

15 MR. LELAND: All right.

16 MS. COOPER: Tom?

17 MR. LELAND: Tom, sir?

18 MR. GRIFFITH: Yes. I have one other

19 recommendation and that is I\'d like to hear some

20 discussion at some point on this, but whether the

21 Department of Education should issue some guidance

22 that clarifies that eliminating teams is not the

23 preferred way to achieve compliance. Now, I don\'t

24 know exactly how you get at that, but there were

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1 enough horror stories that we\'ve heard and I know

2 there\'s a very real question about why an

3 administrator eliminates a team, whether it\'s

4 resource issues, Title IX issues and I don\'t know

5 quite how to get at that. Somewhere I\'d like to

6 see us make the recommendation that that\'s not the

7 preferred way to go about compliance.

8 MR. LELAND: Okay. Rita?

9 DR. SIMON: I think what I\'m about

10 to say \-- first, I thought what I was going to say

11 was too specific, but it matches nicely with what

12 Tom is saying. I have been affected and very moved,

13 perhaps moved too much, by the testimonies that

14 we\'ve heard at the various town hall meetings about

15 the dropping of wrestling teams and the gymnastic

16 programs. I think we should not ignore those sports

17 in our final report.

18 I\'m not saying exactly what we

19 should do, but we heard some very eloquent testimony

20 on the part of both athletes and coaches and parents

21 and so on and I pick those two sports out because I

22 think they are the ones that people are most

23 concerned about. For us not to say anything about

24 them, I think, would be a mistake. I think that\'s a

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1 key to, Tom, what you are proposing.

2 MR. GRIFFITH: I accept.

3 MR. LELAND: Other comments?

4 MR. GRIFFITH: I don\'t know exactly

5 how you do that.

6 DR. SIMON: Neither do I.

7 MR. GRIFFITH: And I need to think

8 through that more about how you give incentives to

9 universities that they not cut a program to get into

10 compliance.

11 DR. YOW: Tom, you are doing that

12 by \-- if you start from that as your premise that

13 you don\'t want to eliminate teams, that\'s not the

14 preferred way, all these other ideas play into that

15 as related to private funding although I admit that

16 that \-- we\'re trying to work that through in my mind

17 about how that would actually work.

18 I don\'t know if it can or not,

19 but certainly it\'s an admirable idea, but there

20 are several ideas around the table that would play

21 a part in better ensuring that that elimination

22 would not take place including the change in the

23 definition of substantial proportionality.

24 MR. GRIFFITH: Here\'s my anxiety

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1 and maybe Graham could speak to this. I mean,

2 on the other hand, universities need to be free

3 to adjust their programs, right? Sometimes

4 universities need to make decisions to eliminate

5 sports.

6 How would that get affected by

7 a law or a policy by the Department of Education?

8 That is curious to me. That\'s what I need to

9 think through some more. We have a great staff

10 to help us phrase it in the way that what we get

11 at being in compliance with whatever \-- however

12 Title IX has interpreted, you know, should look

13 askance at a university cutting to comply with that.

14 MR. LELAND: Okay. Julie?

15 MS. FOUDY: Wasn\'t there a proposal

16 out there or a recommendation that there be a

17 waiting period for schools to have to reevaluate

18 instead of \-- do you recall hearing that

19 somewhere \-- that there be a waiting period before

20 they dropped the program that they had to explain

21 why.

22 MR. LELAND: I thought there was a

23 proposal in Congress that was going to require

24 people to do that.

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1 MS. FOUDY: A recommendation in one

2 of our reports? I don\'t know. You guys that are

3 familiar with that, would that help in terms of

4 having to \--

5 MR. LELAND: I thought there was some

6 proposal in Congress.

7 MR. BATES: Senator Welsh said

8 something like that.

9 DR. YOW: It was there, but I could

10 not, as an athletic director, support further

11 government involvement in the university\'s

12 activities in athletics. I mean, we\'ve never

13 dropped \-- we haven\'t dropped a sport and don\'t

14 plan on dropping one so it\'s not pertinent to

15 our situation.

16 But in general, for ADs, we \--

17 imagine trying to explain to people in Congress

18 why you\'re dropping a sport and who is going to \--

19 who would make that \-- why would we be doing that

20 with them? Are they going to have a committee or

21 something that tells us we can or can\'t? I mean,

22 how does that work?

23 MS. FOUDY: So are you saying that

24 having a waiting period wouldn\'t \-- I mean, more

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1 the nuance of having to be dictated by the

2 government or, I mean, would it still \-- would

3 the fact still remain that it was actually to

4 save some programs?

5 DR. YOW: Yeah. I don\'t know, Julie.

6 It sounds like the EADA report \-- the EADA report

7 and its lack of value to us. It\'s just that this

8 adds another burden on our shoulders.

9 MR. LELAND: Okay. Rita?

10 DR. SIMON: We went through four town

11 hall meetings and at those four town all meetings

12 we heard more about the dropping of gymnastics and

13 wrestling than any other sports. I think if somehow

14 that is not reflected in our report one way or

15 another, I think that the people who read the report

16 will say, were they deaf? Did they hear us?

17 MS. COOPER: I agree.

18 MR. LELAND: I think Tom\'s suggestion

19 here addresses it. We\'re maybe talking about

20 specifics, you know, how we can try to solve it.

21 Graham?

22 MR. SPANIER: Well, in light of all

23 the testimony that we heard, I think Tom\'s

24 sentiments are important and they reflect, you know,

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1 a certain compassion, but I would agree with Debbie,

2 I just don\'t see how you can legislate delaying the

3 closure of the program. The \-- it\'s very hard

4 sometimes to sort out the precise reasons.

5 We had people who stood up and

6 gave us testimony about their programs being

7 eliminated blaming it on one thing or another.

8 Many of us around the table know the real stories

9 and I don\'t think even \-- I mean, in some of the

10 cases, and, you know, we heard one case where

11 people were quite sure it was about Title IX

12 where, to the best of my knowledge, it was about

13 infractions of wrongdoing within the program

14 and the school decided perhaps in light of their

15 Title IX and financial issues they were dealing

16 with anyway, now is the time to get rid of that

17 program, why resurrect a corrupt program, I\'m

18 overstating it a little bit, when it will help

19 us with Title IX and compliances. But I think

20 that\'s what you are going to find in a lot of

21 programs. It\'s not just one clear thing. It\'s a

22 mix of things.

23 A point I made two hearings ago,

24 I think, in many of the program closures, it\'s

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1 really a mix of financial exigency and Title IX.

2 If it were just Title IX \-- I mean, if money

3 weren\'t an issue \-- if money weren\'t an issue,

4 we wouldn\'t be here today because we would all

5 just go out and start lots of new women\'s programs,

6 support them at the fullest level and we all could

7 just double our athletic budgets, we wouldn\'t be

8 having this discussion because we could do

9 everything we wanted to do. So it\'s about a mix of

10 things.

11 Therefore, if a \-- I think \-- what

12 happened to the Iowa AD? He\'s gone. As he pointed

13 out earlier this morning the last \-- the decision

14 of last resort is closing a program. By the time

15 the school has made the decision to close its men\'s

16 program, they are going to do it and it\'s a

17 combination of reasons. I don\'t \-- to try to stop

18 them from doing it just exacerbates all of their

19 problems. So I hope we can find a way to show some

20 sensitivity to this issue without getting the

21 government regulating program closures.

22 MR. GRIFFITH: And I agree. That\'s

23 why I added at the end I wouldn\'t want to do this

24 in a way that unduly restricts university

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1 administrators.

2 MR. SPANIER: Right.

3 MR. GRIFFITH: And maybe the only way

4 you can do it is to identify that you can\'t do it

5 and you shouldn\'t do it simply for compliance with

6 Title IX. Maybe that describes a null set, but it

7 might describe some out there, and I think it would

8 be valuable to have the Department of Education

9 weigh in with that set of values, that, you know,

10 we\'re not interested in you getting to compliance

11 by cutting sports. If you have legitimate reasons

12 to cut sports, that\'s \--

13 MR. SPANIER: Or offer it as a

14 recommendation of at least saying that the

15 Commission recommends that the Department of

16 Education not routinely use in its negotiations

17 the closure of men\'s programs to accomplish the

18 goal of Title IX or something like that.

19 MR. GRIFFITH: Absolutely, something

20 like that. That would be one way to get at it.

21 MR. LELAND: Would you see that as

22 a friendly addition to it?

23 MR. GRIFFITH: Yes.

24 MR. LELAND: Okay. Other questions or

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1 comments regarding this?

2 MR. DeFILIPPO: No. That makes good

3 sense. Ditto to that because, you know, I take

4 this back to college campuses. Many of our campuses

5 drop this particular major and add that major

6 because in time, it makes more sense for that

7 institution, yet the emotion of sports is such

8 that we\'re talking about asking Congress if an

9 institution can drop a sport. I don\'t think that

10 makes sense.

11 MR. LELAND: Cary?

12 MS. GROTH: It is in the 1996

13 clarification letter that OCR does not promote

14 that dropping of men\'s sports to achieve Title IX.

15 However, I think if we go back to one of Graham\'s

16 recommendations to eliminate the safe harbor

17 concept, the idea that it\'s only prong one, and

18 educate people that there are two other prongs, I

19 think it will be helpful if we get to that point

20 because the majority of the people who spoke about

21 the elimination of their programs, the unfortunate

22 elimination of their programs, they tied that into

23 proportionality, only prong one. So hopefully,

24 that will help.

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1 MR. LELAND: Okay. Are there other \--

2 Percy?

3 MR. BATES: Yeah. I think if I were

4 an athletic administrator, I might, I guess, view

5 this a little differently, but what I\'m sort of

6 concerned about and what I thought we heard is

7 that in many instances, programs were closed for

8 budgetary reasons, but it was implied that it was

9 because of Title IX.

10 I don\'t know how we get at this,

11 but somehow, if we could do something that would

12 blunt that just a little bit so that if there are

13 really budgetary reasons, that\'s what we ought to

14 say. I mean, it has nothing to do with I wouldn\'t

15 do this if it were not for Title IX and so they go

16 off in saying it was Title IX that did it.

17 I guess I\'m more interested in

18 trying to get something to blunt that somehow so

19 that we can get around that and maybe we can\'t, but

20 I think we heard a lot of that where some people

21 felt that that was erroneous and that there were

22 other reasons and that we ought to fess up a little

23 bit rather than having people go away saying then

24 I\'ll go and point the finger at somebody else.

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1 MR. LELAND: Okay. Rita?

2 DR. SIMON: All right. And that,

3 you see, is what I\'m concerned about in what form

4 this final report is going to take because I think

5 we have to have sections in which we talk about

6 what we have learned at the town hall meetings and

7 which we say, yes, we\'ve heard you and \-- in which

8 we can \-- without writing something in stone,

9 indicate our awareness if the confusion about why

10 some programs were dropped and how that has been

11 blamed on Title IX, we understand all of that, but

12 in the end, we recognize the importance of some of

13 these sports, particularly wrestling and gymnastics,

14 and somehow the report has to be a literate enough

15 document that we can have discussions about these

16 issues without saying Congress must do this or OCR

17 must do this. There has to be some indication that

18 the town hall meetings were worthwhile and we picked

19 up the concerns and the worries.

20 MR. LELAND: That\'s right. Brian and

21 then Julie.

22 MR. JONES: Okay. I just want to back

23 up just for a second to address Percy\'s point. You

24 get back to something that we talked about a little

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1 bit yesterday that Bob raised and that I talked

2 about too. I think your effort to sort of blunt

3 the perception that, you know, cutting teams is the

4 result of Title IX and instead it was budgetary

5 reasons, you know, runs into the problem that they

6 are not distinct things.

7 I mean, again, I put on the record

8 once again and Bob made that point yesterday that

9 sometimes you\'ve got a situation where you\'ve got to

10 shave a couple hundred thousand dollars out of your

11 budget so you need to eliminate a program. Well, at

12 the same time you\'re doing that, you\'re mindful of

13 your numbers for the Title IX compliance purpose.

14 So where do you look when you\'ve got to make that

15 cut for the sake of the budget?

16 Well, we look on the male side

17 of the ledger in order to preserve, you know, the

18 right balance. So I do think it\'s a little bit

19 complicated at times. I mean, I\'m sure sometimes

20 it\'s a straightforward budget decision that\'s got

21 nothing to do with Title IX or sometimes vice-versa,

22 but my suspicion is, just based upon what I\'ve been

23 hearing in public meetings, is that more often than

24 not, it\'s sort of a \-- it\'s a mixture of the two.

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1 MR. BATES: I\'m just wishing for a

2 little bit. That\'s all.

3 MR. LELAND: Yeah, but I do \-- I do

4 think we\'ve heard a lot of people who testified

5 for us who blamed it on one thing and that\'s Title

6 IX. I think most of us would say that that\'s \--

7 I don\'t \-- scapegoating is too hard of a word

8 maybe, but it certainly has been sort of the

9 thing everybody blames it on. It became an easy

10 target. Oh, gosh. I love you. I would love

11 to do everything for you. You\'re a great athlete

12 and loved everything, but it\'s those women.

13 I think that\'s caused a lot

14 of damage to a lot of people and I think whatever

15 we can say in a literate way, Rita, that brings

16 that out, I\'d really support because I think we

17 need to get that \-- the word out that we heard

18 when people said \-- and we\'re also smart enough

19 to see through some of the \-- I don\'t think

20 people were fibbing to us clearly, but I think

21 that it\'s much more complicated than just,

22 gee, we dropped your sport because women want

23 something and we can\'t give it to you.

24 So, Tom, are we okay on yours?

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1 MR. GRIFFITH: Yes.

2 MR. LELAND: Rita?

3 DR. SIMON: Okay. I just want to

4 be sure that the tone of our \-- the overall tone

5 of our report says we strongly \-- we strongly

6 believe in equal opportunity.

7 MR. LELAND: Yes.

8 DR. SIMON: And I think that\'s

9 very important and that \-- and I\'m using again,

10 to quote Tom Sowell, it\'s equal opportunity.

11 We\'re not necessarily concerned about the equal

12 results. That has to come as a function of

13 interest and participation and a lot of other

14 factors, but equal opportunity, I think, is very

15 important and consistent with the earliest civil

16 rights legislation.

17 MR. LELAND: Okay. Anybody want to

18 disagree with that? Any comments? Okay.

19 MS. COOPER: I\'ll pass.

20 MR. DeFILIPPO: I\'ll pass.

21 MR. SPANIER: I\'m just not sure

22 whether we have done this already so let me just

23 ask the question and if we feel it\'s been taken

24 care of, then, fine.

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1 MR. LELAND: Okay. Go head.

2 MR. SPANIER: Let me just put it in

3 the form of a question that I wrote. Should it be

4 an option \-- this is in relation to the measurement

5 of interest and abilities, getting back to that \--

6 that prong. Should it be an option to measure

7 interest and abilities against regional, state or

8 national youth or high school participation or

9 against surveys of prospective students or admitted

10 students or enrolled students?

11 In other words, should prong three

12 be redefined to allow for measurement against more

13 appropriate populations?

14 We sort of had an in-depth

15 discussion of traditional students, non-traditional

16 in relation to prong one. In terms of getting to

17 interest and abilities, in terms of providing

18 scholarships or participation opportunities, are

19 we doing \-- for those who are doing surveys, are

20 they doing the right surveys and do we need

21 a recommendation on the specifics of those kinds

22 of questions.

23 Are colleges and universities \--

24 I mean, we\'ve got junior colleges, community

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1 colleges, Division I, Division II, Division III,

2 and there are striking differences among

3 institutions where their students come from.

4 Some schools, virtually all of their students

5 come from within a commuting radius. At other

6 institutions, 80, 90, 90 some percent of their

7 students are from within the state.

8 Now, that\'s also true at some

9 institutions where maybe the majority of their

10 athletes are from out of state. So there are

11 a lot of different variations on this question,

12 but it all kind of boils down to what extent

13 do we want to want to encourage not only to

14 allow for some flexibility, but to encourage

15 some serious thinking about what are the

16 appropriate populations to sample when one is

17 studying the question of interest and ability?

18 MR. LELAND: Let me respond first.

19 I thought we got some information back on the

20 LSU case about did they use some regional

21 competition and regional high schools and that

22 was sort of the database Debbie Corum said

23 that they already had to use, it seemed to me.

24 That wasn\'t national data. That had to do with

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1 students who enrolled at LSU, students from

2 Louisiana and competition available to those

3 students and competition available to students

4 at Louisiana State University, the five-state

5 area, we talked about.

6 MR. JONES: That\'s right. Remember,

7 they also used the \-- they used the information

8 that they got from some national and regional

9 surveys to fashion the questions that they posed

10 in the survey of their enrolled students.

11 MR. SPANIER: Well, we heard some

12 testimony on it. We heard \-- I think he was the

13 former athletic director maybe or the former legal

14 counsel at Brigham Young who indicated \--

15 MR. GRIFFITH: Athletic director.

16 MR. SPANIER: \-- that in their survey

17 of incoming freshman, they asked a battery of

18 questions and three of them were specifically

19 designed to assess interest and abilities and

20 there \-- apparently there\'s a national survey

21 that many of us do where those questions are

22 invented and we talked about this a little bit

23 yesterday in relation to findings, but I\'m just

24 not sure we put on the table that we should be

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1 recommending something in this area.

2 I guess I would recommend

3 that it be an area of study is probably about all

4 I\'m saying, to study the different ways in which \--

5 it\'s to give guidance as to how you would \-- if

6 that prong is going to be giving some increasing

7 level of emphasis, you need to put some meat on

8 it.

9 MR. LELAND: Okay. Questions and

10 thoughts about that? Seeing none, hearing none \--

11 MR. BATES: There is support for that.

12 MR. LELAND: Oh, I think there\'s

13 support for that. So we\'ll go ahead with that as a

14 potential recommendation. Debbie?

15 DR. YOW: Only \-- just a comment about

16 what we\'ve been talking about and that is Julie

17 referenced the spirit of Title IX and I agree with

18 that, Julie. We need to be sure what we are doing

19 is going to help, not hurt, everybody.

20 I just want to say again that I

21 really support the Jerry/Graham recommendation of,

22 as I understand it, modifying, but eventually

23 eliminating through the sunset clause prong two.

24 The reason I do, Cary, is

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1 because people have used it as the crutch. Why do

2 we think that\'s a good thing, that they just are \--

3 they leave people languishing here on 30 years, 40

4 years, 50 years because they are just trying to

5 figure out how little they can do and get away with

6 it. That is all it comes down to. So let\'s go to

7 one of two very clear \-- let\'s go to interest and

8 abilities and use the surveys that other people

9 know how to put together or use prong one with

10 variations, with changing it, modifying it, updating

11 it, however you want to refer to it, to make it more

12 clear when you hit the target and get rid of \-- you

13 have two ways and get rid of the prong two thing

14 that\'s just used as an excuse for people to not go

15 ahead and take care of business. That\'s just a

16 comment.

17 MR. LELAND: So that\'s just an

18 exclamation point on Jerry\'s earlier \--

19 DR. YOW: Support.

20 MR. LELAND: Support. Okay. Cary?

21 MS. GROTH: Is this a commentary or \--

22 MR. LELAND: No. I don\'t \-- as long

23 as \-- does anyone want to comment on that? I\'d

24 rather move to recommendations if we can go through

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1 those.

2 MS. GROTH: Debbie, as one of

3 your findings, did you say yesterday that NCAA

4 scholarship rules or regulations may be hampering

5 Title IX compliance or something like that, about

6 the scholarships?

7 DR. YOW: Uh-huh.

8 MS. GROTH: We\'ll I\'d like to add a

9 recommendation going along with the \--

10 MR. LELAND: We can\'t hear you.

11 MS. GROTH: Pardon me?

12 MR. LELAND: We cannot hear you.

13 MS. GROTH: You cannot hear me? Okay.

14 Here we go. Perhaps a review of the scholarship \--

15 NCAA scholarship limitations would be a good action

16 item for a recommendation.

17 MR. LELAND: That\'s a suggestion to

18 the NCAA.

19 DR. YOW: Yes.

20 MS. GROTH: Yes.

21 MR. LELAND: Okay. Any other \--

22 DR. YOW: I want to support, and I

23 know I\'m not doing a recommendation, but it\'s okay

24 if I support it, right?

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1 MR. LELAND: Yes. Especially if you

2 grab a mic before I have a chance to tell you not

3 too! I\'m just kidding, Debbie.

4 DR. YOW: I\'ve learned.

5 MR. LELAND: Gene?

6 MR. DeFILIPPO: There are two ways

7 to come at that too. Those of us that have 31

8 sports and more are not in favor of that. We\'re

9 in favor of adding additional women\'s sports

10 programs. Those who have, you know, ten, 11, 12,

11 you know, programs on each side, those institutions

12 would prefer more scholarships.

13 So it depends, on a lot of that,

14 what section of the country you are from. Do you

15 have a broad based sports program or not as wide

16 a broad based sports program? So there\'s two sides

17 to that issue as well.

18 MR. LELAND: Okay. Any other comments

19 on Cary\'s? We\'ll take that forward then. Percy?

20 MR. BATES: Pass.

21 MR. LELAND: Brian?

22 MR. JONES: Pass.

23 MR. LELAND: Jerry?

24 MR. REYNOLDS: Pass.

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1 MR. LELAND: This is one of those

2 things if you pass all the way around one time,

3 we\'re done. Yes, Julie?

4 MS. FOUDY: I hate to go back to this

5 issue, but the walk-on issue, have we made any

6 recommendations on that one?

7 DR. YOW: We made a recommendation

8 as it related to a possible \-- a change in how

9 we describe prong one because it would be a

10 variance of seven percent that would allow wiggle

11 room \--

12 MS. FOUDY: I knew, Debbie, you were

13 going to bring it back to that one.

14 DR. YOW: \-- for walk-ons.

15 MS. FOUDY: The \--

16 MR. SPANIER: And also Ted\'s

17 recommendation mixed several things together

18 including the walk-on \--

19 MR. LELAND: Yeah.

20 MR. SPANIER: \-- issue by defining

21 an appropriate minimum squad size for every sport

22 and then those beyond that number, maybe they

23 would \-- walk-on isn\'t the right term anymore, but

24 that would not be in the formula with that

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1 recommendation.

2 MR. LELAND: You\'re really talking

3 about squad caps.

4 MS. FOUDY: Well, I think I\'m talking

5 more about, again, the educational issue and I think

6 when we are talking, we\'ve talked consistently about

7 providing more assistance and guidance and all of

8 that. I think one of the ways we can do that is

9 somehow providing technical assistance.

10 I have here the Department of

11 Education should advise schools that walk-ons are

12 not limited for schools that are in compliance under

13 prong two or prong three of the three-part test and

14 to just reiterate that.

15 MR. LELAND: Okay.

16 MR. SPANIER: Say that again.

17 MS. FOUDY: Walk-ons are not limited

18 for schools. The DOE should advise schools that

19 walk-ons aren\'t limited for schools that are in

20 compliance under two or three, prongs two or three.

21 MR. LELAND: I think I know what

22 you\'re getting \-- I mean, I \-- you know, just

23 tell the schools, look, when schools stand up and

24 say we have to, Title IX is forcing us to limit the

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1 size of this squad. The women are keeping the 25

2 men on the swimming team and all you extra guys who

3 want to be on it can\'t be on it and the reason is

4 because of Title IX, you want to have somebody that

5 says, well, you know, there are ways to interpret

6 Title IX that don\'t require that you do that?

7 MS. FOUDY: Right.

8 MR. LELAND: We don\'t have to kick

9 men off the men\'s team to meet Title IX under prongs

10 two and three?

11 DR. YOW: Except you do, but never

12 mind me.

13 MR. LELAND: What do you mean you do?

14 DR. YOW: I mean, you do. You do

15 have to do that. Those of us sitting around the

16 table have talked to our attorneys to ad nauseum.

17 I mean, we\'ve made them ill talking about this.

18 Why can\'t I? Why can\'t I?

19 Many of us operate under the

20 premise and the understanding from our own

21 universities that we cannot do that. We cannot

22 just add key walk-ons on the wrestling team,

23 on the men\'s gymnastics team, on the football team,

24 et cetera, et cetera. I mean, I\'m saying that\'s

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1 the way it really is day-to-day for many of us.

2 MS. FOUDY: Well, I think \--

3 MR. LELAND: So her point is well

4 taken then? We should \-- we should make it clear

5 that you don\'t have to do that if you comply under

6 prongs two and three?

7 DR. YOW: Our attorneys will tell you

8 that they are very well-informed and they don\'t need

9 our advice.

10 MS. FOUDY: But let\'s \-- let\'s get out

11 of your world, though. Let\'s go to other \-- I mean,

12 Title IX isn\'t just Division I-A. Let\'s go to other

13 divisions where it may be a practical thing to look

14 at for these other schools that are complying. We

15 have seen with the \-- I think it was the GAO study

16 said over 70 percent were compliant under two and

17 three, that this is something that perhaps they are

18 not educated about and that would be helpful to

19 other universities that aren\'t in your situation.

20 MR. SPANIER: I\'m not \-- I mean, in

21 plain language, are you saying let\'s exempt walk-ons

22 or are you saying don\'t anybody give us any guff

23 about this walk-on problem? I mean, it\'s \--

24 MS. FOUDY: I\'m trying to say that \--

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1 MR. SPANIER: It\'s not really a

2 recommendation, is it? Is it a recommendation

3 saying, okay, you folks, don\'t make any noise about

4 walk-ons because it doesn\'t apply to you or you\'ve

5 solved your problem in another way or \--

6 MS. FOUDY: No.

7 MR. SPANIER: \-- are you saying \--

8 MS. FOUDY: I\'m trying to say that

9 there are probably schools out there that don\'t

10 realize that they could be keeping their walk-ons

11 if they are complying under different prongs and

12 that this may save walk-ons from being cut off of

13 rosters because they are not aware that they are

14 allowed to keep them.

15 I think that that\'s the issue

16 we\'ve talked about a lot is the opportunity for

17 walk-ons to still compete and play and there may

18 be a situation here where schools aren\'t educated

19 about it and that they can keep them and maybe

20 they just don\'t know. I mean, we\'ve talked a lot

21 about education and clarity and it being an issue

22 and here\'s another way that maybe we can keep

23 walk-ons.

24 MR. SPANIER: I see.

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1 MR. LELAND: I disagree with what

2 Debbie said. I mean, I think what if \-- what

3 Debbie said in terms of you have to limit walk-ons,

4 her lawyers are telling her that, I think that\'s

5 only if you\'re trying to comply under some kind of

6 proportionality rule, which you told us earlier

7 your lawyers have told you that you can only do

8 proportionality and she is saying the opposite.

9 Her argument, which I sort of \--

10 I can understand is under prong two and prong three,

11 you don\'t have \-- necessarily have that walk-on

12 limitation issue hitting you in the face the way

13 it does when you are working under proportionality.

14 DR. YOW: And, Ted, if that\'s true,

15 I just wonder where all of those people are who

16 could have, should have testified to us in one of

17 those four town hall meetings that life is good.

18 I\'m under two. I\'m under three. All is well. I

19 can have as many men on these teams as we would

20 like to because I don\'t remember hearing that.

21 MR. JONES: Yes. And I \-- let me

22 just, you know, strike a note for the lawyers

23 because I \--

24 DR. YOW: I love our lawyers. They

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1 are the best.

2 MR. JONES: No, because I can sort of

3 envision \-- just being in a general counsel function

4 myself, I can see why, you know, a lawyer would

5 likely give an institution that kind of advice.

6 Part of it goes back to this discussion of prong one

7 being the safe harbor. It\'s the only objective

8 test.

9 So while an institution may,

10 in fact, you know, be complying with prong two or

11 prong three, I think a lawyer would always know

12 that that\'s \-- you know, that\'s a very subjective

13 thing. Again, your measurement of interest, all

14 of these kinds of things are going to shift from

15 year-to-year and so I would imagine that a lawyer\'s

16 eyes are never going to be far off of the safe

17 harbor provision.

18 So the practical advice, I think,

19 any good lawyer would give you is, yeah, sure, let\'s

20 continue to comply with prong two or prong three or

21 whatever it is that we\'re doing, but let\'s not let

22 our numbers get \-- our proportionality numbers get

23 so off of whack that our compliance with prong one

24 is lost in any case because it is, afterall, the

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1 safe harbor and it\'s the \-- you know, again, it\'s

2 the most \-- well, it\'s the least costly, I should

3 say, you know, approach for compliance and again,

4 it\'s the safe harbor.

5 So even if you\'re complying with

6 prongs two and three, and I think unless we deal

7 with the safe harbor question, I think a lawyer is

8 always going to have his or her eye on the numbers

9 and is always going to be, you know, arguing that

10 you need to pay attention, you need to be roster

11 managing because we don\'t want to get those numbers

12 too far out of whack.

13 MS. GROTH: Debbie, we heard from

14 Debbie Corum, but Northern Illinois University

15 meets Title IX through prong three after a

16 complaint. We went through five years of an

17 investigative process and qualified under prong

18 three and we are comfortable. It scares me about

19 the safe harbor, but we were told by region five

20 that we are in compliance with Title IX because

21 we meet prong three.

22 MR. LELAND: Did \--

23 DR. YOW: And I just want to say that

24 I don\'t think we want to go through five-year

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1 reviews and hope that it all works out.

2 MR. LELAND: No, but did they \-- Cary,

3 did they tell you that you had to limit walk-ons?

4 MS. GROTH: No.

5 MR. LELAND: See, and I think that\'s

6 the point that Julie has made. It\'s a very simple

7 point. If you qualify under two and three, you

8 don\'t have to limit walk-ons. That\'s a very simple

9 assertion on her part. I think that\'s probably

10 correct and let\'s just at least put it in as a

11 recommendation.

12 Whether your lawyer tells you

13 that you have to be under one, you know, that\'s

14 all a different issue. The issue is there are

15 schools that qualify that comply under two and

16 three and they don\'t have to count walk-ons.

17 The walk-ons \-- the capping isn\'t an issue for

18 them. I think it\'s clear that people don\'t know

19 that because of the discussion we just had.

20 So other recommendations? Tom,

21 do you have one?

22 MR. GRIFFITH: This is a

23 clarification. It\'s on the walk-on issue. Within

24 the proposals that have \-- recommendations that have

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1 been made about walk-ons thus far, does it include

2 the possibility of not counting walk-ons? Did any

3 of you \-- is that part of yours, Ted?

4 MR. LELAND: Yeah. Mine would have a

5 system where you wouldn\'t have to \--

6 MR. GRIFFITH: You wouldn\'t count \--

7 MR. LELAND: \-- you wouldn\'t have to

8 roster count is the way to say it. I thought there

9 was another one in here and I only have rough notes.

10 I thought someone else brought up the walk-on issue

11 and wanted us to \-- but I don\'t remember. Okay.

12 Rita?

13 MR. GRIFFITH: I think \-- I think that

14 proposal really ought to be in there somewhere or

15 dealt with somehow.

16 MR. LELAND: Anybody else have any

17 other proposals that they would like to put up as

18 recommendations?

19 MS. FOUDY: I have just one \--

20 MR. LELAND: Julie?

21 MS. FOUDY: \-- that we talked about

22 yesterday that I don\'t know if we said today, the

23 OCR sport stuff \-- stuff \-- defining definitions

24 and disseminating that information, another

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1 educational tool, the sport methodology stuff.

2 MR. LELAND: Yeah. I think that\'s

3 non-controversial. We have all agreed that\'s a

4 problem that we\'ve noticed and we need to make a

5 recommendation. Graham?

6 MR. SPANIER: Ted, I do want to answer

7 your question. This will be the last thing I will

8 say. If your proposal is adopted by the group, I

9 think that is a sensible and elegant mechanism for

10 dealing with the walk-on issue.

11 If we ended up not \-- I think

12 we need some solution about walk-ons. If that

13 were not to be accepted, then, I would have

14 a couple of other approaches that I would want to

15 get on the table, but I haven\'t done that because

16 that sounded as good as any I could have dreamed

17 up.

18 So I just want to say that I think

19 we\'ve got to face up to that issue and deal with it.

20 If we ended up abandoning that, I would urge us to

21 come up with some other variation. So you said

22 there has been no other proposals put on the table

23 or recommendations relating to walk-ons, I think

24 it\'s only because you had the word on that and it

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1 sounded reasonable enough.

2 MR. LELAND: Okay.

3 MR. SPANIER: I don\'t think we should

4 diminish the importance of that issue to \--

5 MR. LELAND: I agree.

6 MR. SPANIER: \-- so many people

7 by virtue of the fact we didn\'t get anymore

8 recommendations about it.

9 MS. GROTH: I know it was not a

10 recommendation, but in looking at prongs two and

11 three, at least what Julie has just said is does

12 accommodate walk-ons. I know it\'s not a new

13 recommendation. Its within the existing policies,

14 but I think that\'s an option as well.

15 MR. SPANIER: I think a lot of

16 people would feel some sense of relief between

17 your recommendation and what we\'ve all kind of

18 revealed to ourselves now about the fact that

19 there is perhaps already and will be more

20 flexibility around the questions of proportionality

21 and safe harbor. I think as a package, it really

22 helps address the issues that are out there.

23 MR. LELAND: Well, are there any

24 other \-- Julie, do you have a couple more

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1 recommendations?

2 MS. FOUDY: Are we still on yours?

3 MR. LELAND: We\'re not on mine.

4 MS. FOUDY: On the model theory,

5 is that what we were talking about with Graham\'s?

6 MR. LELAND: Yeah. I think we\'re sort

7 of done with Graham\'s. I mean, what I\'m debating in

8 my own mind is should we ask Graham to \-- if there

9 is \-- I mean, walk-ons is an important issue. We\'re

10 concerned about it. Probably the proper way to say

11 this is roster management, squad capping, as opposed

12 to walk-ons, and you avoid all the issues of who is

13 a walk-on and who is not a walk-on. But squad

14 capping and if we only have one proposal to define

15 that to help ourselves out of that unintended

16 consequence, how can \-- should we listen to Graham

17 present his others? I\'m inclined to think we

18 should.

19 MS. FOUDY: Yeah.

20 MR. SPANIER: Well, I don\'t

21 actually \-- I mean, yesterday, what we handed out,

22 because I got the format wrong, was a list of

23 questions and you can infer from my questions what

24 some possible proposals would be, but I don\'t have

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1 any written right now.

2 MR. LELAND: Okay. Okay.

3 MR. SPANIER: I mean, I could do that

4 and have them \--

5 MR. LELAND: Well, then, could we \--

6 would it be okay if we just asked Graham to get

7 those to the staff and we could write up \-- because

8 I think we would be negligent when we\'ve heard so

9 much impassioned testimony this squad capping that

10 many of us have felt required to do, that it would

11 be nice to have more than one or two proposals in

12 front of us to try to ameliorate that situation if

13 we could. I don\'t have a good one myself. Julie?

14 MS. FOUDY: I\'m not opposed to

15 looking at this and putting proposals together and

16 trying to figure out a way to solve this, but my

17 concern with the model is that, again, we\'re under

18 the assumption that we\'re spending the same amount

19 of recruitment dollars on women and men and right

20 now, that\'s counting empty slots if you are having

21 an average per team and say you\'re not filling them

22 with the women\'s side and you\'re still counting them

23 as empty slots.

24 I think it\'s hard to jump from the

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1 fact that women are only receiving 33 percent of the

2 budget on recruiting and then still count empty

3 slots as participation opportunities. That\'s a real

4 concern of mine.

5 MR. LELAND: I understand. It\'s not

6 that elegant as a whole.

7 THE COURT REPORTER: I\'m sorry. I

8 couldn\'t hear you.

9 MR. LELAND: I said that my proposal

10 is not that elegant. There are some holes in it.

11 Other \-- anybody else have

12 anything for the good of the cause here? Are we

13 ready to \-- yes, Cary?

14 MS. GROTH: Regarding the walk-ons,

15 do we think that if we were to not count walk-ons

16 or to accept your proposal, that it would not

17 encourage programs to have those walk-ons versus

18 keeping men\'s Olympic sports?

19 In other words, do you think

20 that some schools would opt to keep walk-ons, men

21 participants, in lieu of \-- particularly in men\'s

22 sports and we would see a continuation of some of

23 the Olympic men\'s programs being dropped because

24 schools opt to keep walk-ons instead?

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1 MR. SPANIER: I think that\'s a

2 possible, but remote scenario. In many of the

3 men\'s Olympic sports we are talking about, their

4 actual \-- they are on an equivalency scholarship

5 numbers and it\'s a pretty small number. I don\'t

6 know what the average squad size is in wrestling,

7 but without roster management at Division I-A

8 institutions, it would probably be 40 or so and

9 how many scholarships do they get in wrestling?

10 DR. YOW: Approximately ten.

11 MR. SPANIER: How many?

12 DR. YOW: Ten.

13 MR. SPANIER: Ten. So I mean, it\'s

14 about a quarter of a scholarship per person or less

15 on the average. I just don\'t see that happening.

16 Maybe some of your athletic directors would have

17 a better idea.

18 MR. LELAND: Yeah. I don\'t think

19 either model \-- either the model we have now that

20 counts the number of participants as the students

21 on the squad list the first day of competition or

22 the one that John Parry and I are suggesting, which

23 is sort of a \-- I don\'t think either one of those

24 encourages anyone to drop an Olympic sport and add

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1 walk-ons to another team. I don\'t see that

2 encouragement. I don\'t see the numbers working that

3 way. I could be wrong.

4 Okay. Other comments and

5 thoughts? I guess we \-- by the way, we did really

6 good work today.

7 MS. COOPER: Yes. Thank you.

8 MR. LELAND: I really believe we did

9 great especially this morning. So thank you, guys,

10 and we stand adjourned and I get to hit my little

11 gavel one last time.

12 MS. COOPER: Thanks!

13 (Whereupon, the proceedings in

14 the above-entitled cause were

15 adjourned, to be reconvened

16 on Wednesday, January 8,

17 2003, at 9:00 o\'clock a.m.)

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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 4th 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 11th day of December, A.D., 2002.

9

10 \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

LORI ANN ASAUSKAS, CSR, RPR.

11 Notary Public, Cook County, IL

Illinois License No. 084-002890

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