Archived Information

1

2 THE SECRETARY\'S COMMISSION

3 ON

4 OPPORTUNITY IN ATHLETICS

5 WASHINGTON, D.C., FULL BUSINESS MEETING

6 HOTEL WASHINGTON

7 515 15TH STREET, NW

8 WASHINGTON, D.C. 20004

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10 Thursday, January 30, 2003

11 9:00 o\'clock a.m.

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1 I N D E X

2 APPEARANCES:

3 CHAIRS: CYNTHIA COOPER

TED LELAND

4

5 COMMISSIONERS: PERCY BATES

BOB BOWLSBY

6 EUGENE DeFILIPPO, JR.

DONNA de VARONA

7 JULIE FOUDY

THOMAS GRIFFITH

8 CARY GROTH

LISA GRAHAM KEEGAN

9 RITA J. SIMON

MIKE SLIVE

10 GRAHAM SPANIER

DEBORAH YOW

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EX OFICIO MEMBERS: BRIAN JONES

12 GERALD REYNOLDS

SALLY STROUP

13

STAFF: DEBORAH PRICE

14 MATTHEW BECKER

WILLIAM DUNCAN

15 MARISSA ANN MUNOZ

VIRGINIA DeMINT

16 SALLY RICHARDS

CHERYL MOSS

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CONSULTANT: JAY DISKEY

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1 MR. LELAND: Welcome, everybody, to

2 this morning\'s meeting. By poplar acclamation,

3 Cynthia and I have decided not to give our normal

4 introductory talks by request of the

5 commissioners, but we do have a couple of

6 announcements to make.

7 First of all, we are \-- this is a

8 public open discussion. We need to make sure

9 that we talk into the microphones clearly so we

10 can transcribe the proceedings. At the same

11 time, make sure \-- we all made this mistake,

12 especially myself yesterday \-- that if you are

13 reading from a written document, please read

14 slowly so the transcriber has a chance to keep

15 up.

16 We have sign translation services

17 available. We will ask the translators to work

18 for a few minutes and then they\'ll step aside.

19 If anyone requests those services, you could do

20 so at the table at the side.

21 I\'m assuming that we\'ll take a break

22 at 11:00 o\'clock, but if we are fine with the

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1 work and people choose to stay, we could go

2 ahead and decide that at the time.

3 But otherwise, we have planned on an

4 11:00 o\'clock stop.

5 So I think we are on recommendation

6 number 12, and also start out this one by

7 reading it. Well, let me \-- Cynthia and I have

8 spent a little bit of time trying to talk about

9 to organize this morning, so here was our idea.

10 We would take the recommendations in

11 numerical order, until we hit the first one that

12 dealt with possible changes in the

13 proportionality computations under 1, and then

14 we would adjust our agenda in a way that we

15 would take all of those recommendations that we

16 think deal with proportionality, take them in

17 order and then ask the \-- I say the alleged

18 sponsor, because some of those found out

19 yesterday what they were sponsors on, they

20 weren\'t really sure they were sponsors on.

21 But if your name is attached to it,

22 take four or five, a limit of five minutes to

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1 explain the proposal. Then we\'ll move on to the

2 next.

3 So here\'s my reading of the

4 proposals and that\'s \-- that deal with possible

5 changes, potential changes in the

6 proportionality formula. They are proposal \--

7 recommendation 13, recommendation 14,

8 recommendation 15A and B, recommendation 16,

9 recommendation 18, recommendation 19 and I think

10 recommendation 22.

11 That\'s not a perfect list but I

12 assume that those are the ones that deal the

13 proportionality formula in one way or another.

14 I\'ve been requested by some

15 commissioners that we deal with those all at one

16 time.

17 So what Cynthia and I have decided

18 the best, fairest process would be to go to, for

19 instance, the 13 and 14 and 15A and 15B, on

20 through that list I just gave you and ask each

21 sponsor to talk a limit of five minutes and give

22 your little remarks and then questions.

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1 People want to make adjustments in

2 their proposal at that time, that\'s the time to

3 do it. And then so we could look at the

4 adjustments, the potential adjustments to

5 proportionality in total.

6 And then we can come back and start

7 looking working our way through 13, 14, 15, 16,

8 again. I think there was a feeling among the

9 commissioners that I talked to that

10 procedurally, they\'d like to sort of get a grasp

11 on what all of the different proposals that deal

12 with proportionality might be, so that they

13 could have a better context to vote on each

14 particular one.

15 Again when we deal with

16 proportionality, I think \-- and we\'ve talked to

17 officials at the department of education with, I

18 think, not only perfectly fine but appreciated

19 if we pass on all the relevant, supportable

20 ideas that we have.

21 I don\'t think we have to come up

22 with one way, that we\'re going to ask the state

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1 to come up with one way to suggest to Secretary

2 Page that he change proportionality, but I think

3 we should \-- if we suggest to change it at all,

4 but I think we should offer him a series of

5 proposals. I think that\'s what I\'m hearing from

6 the other commissioners that they\'re most

7 comfortable with, anyway.

8 So these proposals that I just

9 named, 13, 14, 15A, B, 16, 18, 19, 20 are not

10 mutually exclusive. We don\'t just have to end

11 up passing one of those and defeating the

12 others. I think we can pass on more than one,

13 but there\'s no obligation to pass them all on.

14 Is there any question about \-- yes?

15 MS. SIMON: Ted, 19 and 20 are very

16 closely related. Twenty spells out the interest

17 surveys in a little more detail.

18 But since you are including 19, can

19 we also include 20? Nineteen talks about it in

20 survey; 20 spells it out a little bit more.

21 MR. LELAND: The reason I excluded it

22 is \-- first of all I put it in, but the reason I

8

1 excluded it is because I thought it really dealt

2 with prong three.

3 MS. SIMON: I know, but I \--

4 MR. LELAND: But we would rule \-- if

5 you are the assigned person for that, so we\'ll

6 move that, if that\'s your desire \--

7 MS. SIMON: Thank you.

8 MR. LELAND: \-- at least have a

9 chance to discuss it at that time.

10 MS. SIMON: Thank you.

11 MR. BATES: Ted.

12 MR. LELAND: Yes.

13 MR. BATES: Point of clarification.

14 Are you suggesting all of these will

15 be passed along as recommendations with equal

16 weight, or are we going to try and decide at

17 least what we would recommend and then include

18 all of the others as part of the discussion that

19 we looked at, rather than simply saying, we

20 recommend all of these? Is that clear or not?

21 MR. LELAND: I don\'t think that

22 Cynthia or I have a preconceived notion on what

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1 the final vote might look like.

2 I can only answer your question to

3 say that, in discussing these proposals, the

4 commissioners have asked that we put them

5 together in a way that they can make way to

6 tradeoffs, understand what the trade offs are.

7 So I don\'t think we have a

8 preconceived notion on what the final vote is

9 going to look like, I guess.

10 I could imagine us going down these

11 one by one and voting them in or out. I could

12 imagine someone saying, let\'s put them all

13 together and pass them on without comment, or

14 without support.

15 I think it is the will of the group.

16 All\'s I\'m doing is trying to be the \-- sort of a

17 traffic policeman here and say this is the way

18 we ought to do our business from, in terms of

19 what comes first, what comes second.

20 The outcome \-- so you are further

21 along than I think Cynthia and I are.

22 MR. BATES: No, no, I understand the

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1 process. I guess I\'m getting sort of ahead with

2 some concern about the outcome, is what I was

3 thinking. And I assumed that you were.

4 MR. LELAND: Okay. I understand.

5 Okay. Recommendation, then, 112.

6 This is not part of our package of potential

7 changes to the proportionality formula.

8 Recommendation 12, the Department of

9 Education to encourage the NCAA to review

10 scholarship guidelines and determine if they

11 adequately \-- excuse me \--

12 The Department of Education should

13 \-- do as I say, not as I do; it\'s one of those

14 things \-- who is that man behind the screen?

15 The Department of Education should

16 encourage the NCAA to review its scholarship

17 guidelines to determine if they adequately

18 promote athletic participation opportunities.

19 Okay; discussion?

20 MS. GROTH: Ted, I would like to make

21 just a few minor changes based on yesterday\'s

22 discussion, if instead it would read.

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1 The Department of Education should

2 encourage the NCAA to review its scholarships

3 and other guidelines to determine if they

4 adequately promote or hinder athletic

5 participation opportunities.

6 MR. LELAND: Anybody have a problem

7 with editorial changes?

8 MR. BATES: I would support that.

9 MR. LELAND: Our authors have got

10 that, I hope.

11 Any discussion? Can we pass this by

12 consensus?

13 See no objections, we\'ll consider it

14 passed.

15 Now we\'ll switch to our procedure to

16 take on one by one those issues that deal with

17 proportionality formula. We\'ll put a limit of

18 five minutes\' discussion on each one.

19 We\'ll also have time, when we come

20 back to vote on it, to discuss it again. But

21 our attempt here is to give the commissioners a

22 full flavor of all the different proposals

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1 before them today that look specifically at the

2 proportionality formula.

3 So if we could begin with 15.

4 MS. YOW: Thanks, Dan.

5 I\'m going to open by saying that the

6 proposal that we are looking at, I think it\'s

7 important that everyone understand that it

8 doesn\'t provide a financial advantage to the

9 University of Maryland.

10 We are commit to gender equity

11 through proportionality, and we have a 51/49

12 split in our male to female undergraduate

13 enrollment, and we don\'t have any projection

14 that that is going to change significantly any

15 time soon.

16 So I just want to repeat, Maryland

17 Athletics does not benefit from this proposal.

18 I\'m not going to be under less financial strain.

19 So I just ask that ask we go into this and look

20 at it, that would you \-- if you\'ve already made

21 your mind up that you don\'t like this, I\'m just

22 going to ask if you could temporarily suspend

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1 that opinion and just listen to what I have to

2 say about it.

3 Let me at least start with the

4 intent of the recommendation. The intent is to

5 go 50/50, which has no \-- it\'s wholly paradigm,

6 has nothing to do with the undergraduate

7 enrollment at any institution.

8 It\'s just looking at opportunities

9 for men and opportunities for women, saying what

10 would be fair, and what to me seems to be fair

11 would be 50/50.

12 If we had an apple and we were both

13 hungry and wanted to share that apple and we cut

14 it in half, most people would say that would be

15 fair: You take half, I\'ll take half.

16 The percentage of variance, I want

17 to remind you that when we first brought this up

18 in Philadelphia, it was a suggestion and Alison

19 will remind you that we did not know as

20 commissioners that we were going to be asked to

21 go around the room that day specifically to make

22 suggestions.

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1 So I did the best I could on that

2 day and made a suggestion of a variance of five

3 to 7 percent.

4 Since then I\'ve had a chance to go

5 home and run some numbers on what that would

6 mean in an athletic program with, say, 200

7 athletes for the men and 200 for the women and

8 the variance is too large. I\'m very open to the

9 variance being much smaller, but the idea of the

10 variance is still relevant, I think.

11 The intent of the recommendation is

12 to have available a method to meet Title 9 that

13 does the following: It would be \-- I think what

14 Bob Bowlsby called yesterday the final resting

15 point: Versus the constant moving target of

16 tying that to the undergraduate enrollment

17 ratio.

18 It would also benefit those of us

19 who are interested in going through the process.

20 We would not need interest surveys; that\'s a

21 second benefit.

22 The third benefit is readily

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1 quantifiable, and I believe is equitable, if you

2 go back to the half and half. I believe that

3 rationale also is logical. I\'ve always had a

4 logic disconnect with the comparing what we do

5 for women and men related to the undergraduate

6 enrollment.

7 In short, it provides equal

8 opportunity: 50 percent for the men, 50 percent

9 from the women.

10 The assumptions would be that there

11 is adequate interest by women and ability of

12 women to participate in sports at this required

13 level,for both purposes of participation numbers

14 and scholarship opportunities.

15 And that flies in the face of what

16 some people believe, if you look at the Mount

17 Holyoke situation as an example, the fatherhood

18 wars, education situation, or you look at what

19 current participation rates are for women in

20 high schools.

21 I\'m just going to suggest that

22 those, at least at the high school level are

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1 that way because we haven\'t had a reasonable

2 opportunity to continue to pursue those

3 opportunities.

4 I do, in fact, think there is both

5 the interest and the ability of women to meet

6 this meet.

7 The purpose of the variance, whether

8 it is 2 percent, 3 percent, it is there because

9 it assumes that there could be from time to time

10 non-discriminatory reasons that occur that

11 prohibit institutions from meeting a 50/50

12 ratio.

13 Let me give you a few of those

14 examples that those of us as AD\'s around the

15 table know exist.

16 Number one, people fail academically

17 and they are not eligible to compete, and Muffet

18 knows this as a coach as well.

19 There are transfers, people who

20 leave for all kinds of reasons, whatever that

21 might be: Want more playing time, want to be

22 closer to home. People who quit teams for all

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1 kinds of reasons. And occasionally even if

2 Imelda gets pregnant and can\'t compete, she

3 can\'t help that. She is going to take care of

4 herself and her baby and she\'ll be back later.

5 But those types of things do come

6 up, and I don\'t think an a institution should be

7 penalized for them.

8 And I\'m not going to pick on, well,

9 why would you pick two percent? Why would you

10 pick three percent?

11 MR. LELAND: One minute.

12 MS. YOW: I\'m pretty sure that there

13 is no empirical statistical data to support Bobby

14 Ox\'s civil rights. Originally pegged this as one

15 percent, plus or minus one percentage point.

16 The variance is not designed as a

17 floor; it\'s a logical common-sense

18 acknowledgement that there are occurrences

19 beyond our control which will take place.

20 Ted, I have 30 seconds left?

21 MR. LELAND: Yes.

22 MS. YOW: I think the key to it is

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1 finding an acceptable variance, whatever that

2 would be, and I don\'t pretend be an expert on it,

3 but it is an attempt to be fair and to be logical

4 about what we\'re doing and to create a situation

5 with no moving further.

6 MR. LELAND: Okay; we have about 15

7 seconds.

8 MS. COOPER: I have a question for

9 you, Debbie.

10 Within your recommendations, what

11 would you change your variance to be? I mean,

12 in much smaller; just put much smaller?

13 MS. YOW: I mean, you\'re asking me to

14 pick something out of the air, but I know that

15 1 percent is not enough. It just isn\'t. I knew

16 that through experience, so I know that two

17 percent might be a possibility, maybe 3 percent,

18 but I know that \-- I know seven \--

19 Sometimes you know that you know

20 that you know; you can\'t even explain exactly

21 why you know, but there is need for greater than

22 1 percentage point, for non-discriminatory

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1 reasons. I just listed all the \-- a number of

2 possibilities.

3 MR. LELAND: In an effort to stay

4 within our five-minute time limit, let\'s just say

5 we are done talking about this one. Now we\'ll go

6 on to 14, but if you are going to change the

7 proportion, I\'d certainly \-- let\'s have a

8 specific proposal next time we talk about it; not

9 now, because we want to \--

10 MS. YOW: I can do it now, if you

11 want to.

12 MR. LELAND: No, I think we need to

13 move on. I really do \-- I want to stay within

14 the five minutes if at all possible.

15 MS. COOPER: Recommendation 14, page

16 38, line 12. The first part of the three-part

17 test for demonstrating compliance with Title IX\'s

18 participation standard should be amended to

19 denote the current measure of proportionality as

20 part 1A, and then creating a new test denoted as

21 1B, which would allow colleges and universities

22 to establish compliance if the male-female ratio

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1 in their athletic participation is within

2 3 percent of the male-female ratio of high school

3 participation within the Office for Civil Rights

4 region for that institution.

5 MR. BOWLSBY: I would like to remind

6 the Commission first that I was 15th out of 15

7 when we were presenting these things, and was

8 scrambling hard on a morning when I was

9 relatively unprepared, as Debbie mentioned, to

10 put forth the proposal.

11 But I do think this is a

12 thought-provoking proposal that I have no pride

13 of ownership in. It was attempt to get us

14 thinking in a little different way about what

15 kind of comparison group we use.

16 I think many of us feel that the

17 comparison to the undergraduate student

18 population is a flawed entry assumption. I

19 don\'t think we go there for our student

20 athletes. I think we recruit from the

21 population at large among our citizenry and

22 really, the comparison to the undergraduate

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1 student population, as Debbie said at a previous

2 meeting, doesn\'t have any logic flow.

3 We would be just as well off

4 capturing a comparison group from any other

5 segment of the population. It seems to me that

6 the feeder system might be a logical one that we

7 would use.

8 The issue I\'ve added as I\'ve thought

9 about it was, however, there needs to be some

10 way to incentivize continued growth in the

11 feeder system, and that\'s why the percentage was

12 in there that you\'ve got to be above the

13 percentage of participation in your region.

14 I, like Debbie, am not particularly

15 wed to three percent or any particular number.

16 It was an attempt to incentivize growth in the

17 feeder system and accommodate that growth over a

18 changing schedule, timetable in the \-- at the

19 collegiate level.

20 As I say, I am not particularly wed

21 to it. Actually, recommendation 18 that Graham

22 put forward I think gets at some of the issues,

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1 as well.

2 And so I\'m not really prepared to

3 debate this at all, except just to have us all

4 think about it as an alternative for the

5 comparison to the undergraduate student

6 population.

7 MS. COOPER: Thank you, Don.

8 MR. LELAND: Discussion? We have

9 some time. Any questions?

10 MR. SPANIER: Why the Office for

11 Civil Rights region? Most of us wouldn\'t know

12 exactly which states are in our region.

13 Wouldn\'t a more appropriate \-- I

14 mean, the concept is good, as you say. It

15 overlaps somewhat with a later one that I think

16 I introduced.

17 But wouldn\'t it be more appropriate

18 to look at \-- different institutions have

19 different geographical areas from which they

20 draw. Many public universities, 70, 80, 90.

21 98 percent of their students are from a

22 particular state. In some cases it might be a

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1 three-state region and some universities are

2 completely national and their student are \-- and

3 their athletes are drawn from that kind of pool,

4 and the \-- what a civil rights region is, is not

5 relevant.

6 Would it make sense to just, instead

7 of saying from that civil rights region, just

8 say from an appropriately defined geographical

9 area for that institution?

10 MR. BOWLSBY: Yeah, I would be fine

11 with that. I actually started out with the state

12 that the institution resides within, and all the

13 states contiguous to that, but that\'s a different

14 matter for, you know, some western universities

15 than it is for people that are in more densely

16 populated areas.

17 So I just \-- the Office of Civil

18 Rights regions were pre-established, and that\'s

19 why I chose that, but I certainly would accept

20 your suggestion as appropriate, Graham.

21 MS. de VARONA: I just wanted to ask

22 Bob, you know, when we were talking about

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1 institutionalizing some number when it comes to

2 providing opportunities.

3 From my point of view, it\'s \--

4 MR. LELAND: Thirty seconds.

5 MS. de VARONA: \-- I only have 30

6 seconds? Okay.

7 So what I want to know is, as we\'ve

8 heard from the wrestlers and the swimmers one of

9 the problems is the dropping of men\'s sports.

10 When we talk about the solution, are you ready

11 as commissioners to guarantee that if these

12 changes were made, you would readopt programs

13 that have been dropped?

14 What is this solving, these numbers

15 and these solutions? It seems you are just

16 limiting, you\'re institutionalizing the system

17 that will put a barrier between equality. I\'m

18 not so sure that these solutions will open a

19 door and add men\'s minor sports.

20 MR. LELAND: That\'s all time we\'ll

21 give you. I wanted to give an overview of these

22 different proposals.

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1 Now we are onto 15A, what I\'ll refer

2 to as A. It\'s line 25 on page 38 and it says,

3 if substantial proportionality is retained as a

4 way of complying with Title IX, the Office of

5 Civil Rights shall clarify the meaning of

6 substantial proportionality as allowing for a

7 variance of seven percent in the relative ratio

8 of athletic participation of men and women.

9 Tom?

10 MR. GRIFFITH: Thank you.

11 I want to point out that the first

12 clause of that recommendation says, if

13 substantial proportionality is obtained.

14 We\'ve heard a lot, and I think

15 rightly so, in the last day or so about the

16 spirit of the law of Title IX. I\'m not too good

17 at discerning the spirit of things, and like I

18 said that means \-- let me read to you what the

19 letter of the law of Title IX says:

20 No person in the United States

21 shall, on the basis of sex, be excluded from

22 participation in, be denied the benefits of or

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1 be subjected to discrimination under any

2 education program or activity receiving federal

3 financial assistance.

4 Nothing \-- and this is a

5 continuation, now, of the law of Title IX.

6 Nothing in the law shall be interpreted to

7 require any educational institution to grant

8 preferential or disparate treatment to the

9 members of one sex on account of an imbalance

10 which may exist with respect to the total number

11 or percentage of persons of that sex

12 participating in or receiving the benefits of

13 any federally-supported program or activity, in

14 comparison with a total number or percentage of

15 persons of that sex in any community, state,

16 section or other area.

17 That is the letter of the law of the

18 Title IX. I am unalterably opposed to any

19 numeric formulas which attempt to capture the

20 spirit of Title IX, because that\'s opposed to

21 the letter of Title IX.

22 Numeric formulas violate the express

27

1 terms of the statute. They violate the equal

2 protection clause of the Constitution. They are

3 morally wrong and they are logically flawed.

4 There is no connection between

5 gender ratios in the undergraduate enrollment

6 and interest in athletics, any more than there

7 is interest in any discipline.

8 The fundamental evil Title IX

9 combats is treating individuals as members of a

10 class defined by their gender. That is, quite

11 simply, wrong. It should not be perpetuated in

12 any way, shape or form.

13 So I want to withdraw my name from

14 recommendation 15 because it fights a battle on

15 the wrong terrain. The Department of Education

16 never should have, nor should it now continue,

17 any remedy that relies on numeric formulas. It

18 is illegal, it is unfair and it is wrong.

19 MR. LELAND: Okay we have a couple

20 more minutes to discuss recommendation 15.

21 We decided earlier that just because

22 a commissioner\'s name got attached to a

28

1 recommendation, their desire to withdraw doesn\'t

2 automatically withdraw the need to take a \--

3 have a motion and a vote, which we will do now.

4 So we have a couple more minutes to

5 discuss this particular recommendation. We\'ll

6 come back and address it formally later. Yes,

7 Cary?

8 MS. GROTH: Can you explain to me how

9 do the courts uphold these percentages or

10 substantial proportionality? It goes directly

11 against what you just told us, based on those

12 eight court findings.

13 MR. GRIFFITH: Sure, I\'d be glad to

14 take a stab at that.

15 First of all, I think the courts got

16 it wrong. Second of all, the logic on which the

17 courts rely that was a doctrine in

18 administrative law that\'s referred to as Chevron

19 deference. It\'s the idea that courts will not

20 look behind the decision of agency that\'s been

21 giving authority to enforce the law if there\'s

22 any reasonable argument that can support the

29

1 agencies\' interpretation of that law.

2 So there is nothing in the courts\'

3 decision that will preclude this Department of

4 Education or any subsequent Department of

5 Education of reading the law differently.

6 MR. LELAND: One minute.

7 MR. GRIFFITH: Make it clear, I think

8 the Department of Education\'s reading of the

9 clear and express terms of the statute that

10 forbids numeric formulas \-- I think the

11 Department of Education\'s reading of that statute

12 to come up with the use of numeric formulas is

13 wrong.

14 Reasonable people differ on that. I

15 gues to be a nice person I\'d say yeah, but I

16 don\'t see how you could take the statute, the

17 clear intent of congress and in the face of that

18 come up with numeric formulas.

19 MR. LELAND: Time. Thank you.

20 MS. COOPER: 15B on page 38, line 32.

21 If substantial proportionality is

22 retained as a way of complying with Title IX,

30

1 the Office for Civil Rights should clarify the

2 meaning of substantial proportionality, to allow

3 for a variance of five percent if a relative

4 ratio of athletic participation of men and

5 women.

6 MS. McGRAW: I have also reconsidered

7 this 5 percent. I think it is way too high. I

8 would like to see a small, allowable variance,

9 but I would prefer that that number be an

10 expression of the OCR on a case-by-case basis.

11 I think the words substantial

12 proportionality has been confused with strict

13 proportionality, and I think that the way we

14 have it right now is pretty good, but I don\'t

15 think one percent is sort of understood.

16 I would like to see \-- I don\'t want

17 to put a number on it. I would like to leave

18 that to the discussion of the OCR.

19 So I\'m not sure if that means I

20 withdraw or I\'ve changed it, but definitely

21 different.

22 MR. BOWLSBY: I would not \-- I would

31

1 treat that as an amendment to, you know \-- you

2 propose this; now you are amending it. Would

3 anybody object to that?

4 MS. GROTH: When you say you wouldn\'t

5 put a numerical value on that or a percentage,

6 are you suggesting to leave it, you know, the

7 examples in the \'96 interp give us examples of

8 one percent, two percent and five percent.

9 Are you saying to leave it the way

10 it is, or are you suggesting it could go higher?

11 MS. McGRAW: Oh, I definitely don\'t

12 think it could go higher. I think leaving it the

13 way it is, is what I\'m suggesting.

14 MR. SPANIER: Just to remind us how

15 this came about \-- I mean, it is a little unfair

16 to the people whose names are attached because

17 the concepts were on the table, just the general

18 concept of how do you operationalize

19 proportionality?

20 And in the course of our discussion

21 we were all participating and came up with

22 different numbers, and somebody said what about

32

1 seven and somebody said, well, that sounds too

2 high; what about five? We ended up with both of

3 them to talk about today.

4 I think realistically there\'s a

5 fundamental issue that has just been raised and

6 that really \-- that needs to be dealt with at

7 some level.

8 But what happens ultimately is that

9 people have to operationalize this in some way,

10 if there is going to be any measure of

11 proportionality, then people want guidance as to

12 what that means. That\'s how we got into the,

13 what should the number be?

14 The only thing I\'d like to say about

15 it is that one of my concerns has been that the

16 Office of Civil Eights has been put in a

17 position, and many universities have been in a

18 position of having major arguments about how

19 close they are and what the number is, and a lot

20 of energy has been squandered in debating about

21 a school that\'s one percent off versus a school

22 that\'s two percent off or whether an institution

33

1 that\'s now three percent off needs to be at

2 1 percent and whether sports have to be cut

3 because of that, when there are dozens of

4 schools out there that are 20 and 30 percent off

5 that haven\'t been reviewed.

6 One of the things \-- and I think

7 already survived some of our recommendations \--

8 is that the Office of Civil Eights needs to pay

9 attention to the blatant violations of Title IX,

10 whether it\'s the spirit or the letter of the

11 law. There are instances out there where it is

12 not happening.

13 So I support several of these

14 recommendations, including \-- if there is going

15 to be a test of proportionality \-- some number

16 that can guide people so that people can get off

17 arguing about the nuances of schools that are

18 maybe or maybe not within striking distance and

19 deal with the hundreds of thousands of other

20 potential athletes out there that are being

21 denied opportunities because schools aren\'t even

22 following the spirit of the law, whatever that

34

1 might be.

2 I think if there is going to be some

3 test, it would be helpful to give the Office of

4 Civil Eights some guidance, if for no other

5 reason than they could say, look, the world

6 needs a little flexibility, but let\'s, then,

7 devote our time not to schools that are a couple

8 of tenths of a percent off, but let\'s really

9 sink our teeth into the larger issue and step up

10 enforcement.

11 MR. LELAND: Yes.

12 MS. SIMON: As I look at

13 recommendations 13, 14, 15 and even going on to

14 16, it seems to me that where we are is, one,

15 should we stay with the notion of substantial

16 proportionality. Tom suggested we ought to drop

17 that.

18 The second consideration issue, we

19 simply go to 50/50 percent. And the third

20 consideration is, should the variance in hours

21 \-- I hear it from the people who suggested

22 different variances.

35

1 It\'s really, I think, between two

2 and three percent. Those are, I think, the

3 essences of these various suggestions, and I

4 would suggest that after hearing about the

5 letter of the law in Title IX, I strongly agree

6 with Tom that we should do away with substantial

7 proportionality and maybe the 50/50 percentage

8 is a good one.

9 MR. LELAND: I\'m having difficulty

10 figuring out where we are in terms of the process

11 here, but I think we are still on 15B and Muffet,

12 we need to \-- do you want to change yours?

13 I mean, I think, if I understand,

14 you sort of argued to keep this alive at three

15 percent, in order to give schools more guidance

16 as one of the options.

17 I don\'t think he was necessarily

18 saying that\'s his highest choice, but that you

19 want to change this to the status quo, and then

20 I\'d question whether we even need it at all.

21 Tell me what your thinking it is.

22 MS. McGRAW: I thought he made a good

36

1 point. My only suggestion, I think there needs

2 to be a range, you know, two to three percent,

3 because I think different schools have different

4 enrollments. We are talking about a lot

5 different numbers, and that percentage could be

6 pretty different for each school. That\'s why I

7 wanted it.

8 MR. LELAND: So you would change the

9 substantial proportionality to allow for a

10 variance in the range? Right? And that\'s \--

11 MS. McGRAW: Right.

12 MR. LELAND: Rewrite this \-- we could

13 do that by the time we vote on it. Not five

14 percent; we drop the number.

15 MS. McGRAW: Yes.

16 MR. LELAND: Okay? Does anybody want

17 to object to that? Since we\'ve had the first

18 four people we\'ve assigned sort of deny

19 authorship. We\'ll try to \-- for good reasons, I

20 understand. But the \-- I know the next one is

21 mine; I\'m going to try and deny it.

22 Any other questions? We are out of

37

1 time on 15B. So we\'ll get a chance to revisit

2 it, but we will amend it per Muffet\'s

3 suggestion.

4 The next one I\'ll read, since it is

5 mine. This is recommendation 16, line 44 on

6 page 38.

7 The Office of Civil Rights should

8 consider a different way of measuring

9 participation opportunities for purposes of

10 allowing institutions to demonstrate that it\'s

11 applied for the first part of the three-part

12 test.

13 Rather than the current system in

14 which the number of participation opportunities

15 is calculated by determining the number of

16 athletes on a team on the first day of the

17 season, the number of slots to be counted for

18 each type of team would be determined through a

19 consultation process.

20 Then an institution could establish

21 that it has complied with the first part of the

22 test by showing that the available slots for men

38

1 and women as demonstrated by the pre-determined

2 number of participants for each team offered by

3 the institution is proportional to the male and

4 female ratio in enrollment.

5 This would be true whether there

6 were actually more or less than that number of

7 athletes actually participating on a team.

8 That\'s a long recommendation. Let

9 me explain to you how I got to here.

10 First of all, I look at what\'s fair

11 and what\'s equal opportunities. In my own mind,

12 I have this crazy characterization where there\'s

13 one way to look at that. We want to provide

14 fair and equal opportunity. One is if we can

15 sort of make the Tom argument that it\'s a

16 non-discrimination clause. We have to prove

17 that we\'re not discriminating.

18 The second option, I think, is to

19 provide equal opportunity. That means you

20 actually provide the equal number of

21 opportunities, and whether people take advantage

22 of those or not is sort of up to them.

39

1 And the third one is, you provide

2 equal outcome, in which you actually measure the

3 outcome, and that\'s, in my opinion, what we do

4 now. Proportional, we measure the outcome; we

5 don\'t prove we\'re non-discriminating.

6 And the proportionality clause only.

7 We don\'t prove we are providing equal

8 opportunity. We have to provide that we\'re

9 providing equal or substantially proportionate

10 outcome.

11 That system, in my opinion, causes

12 two inadvertent problems. One is that it causes

13 us, instigates, pushes us towards \-- not the

14 sole cause, but it can push us towards capping

15 men\'s sports or roster management of women\'s

16 sports. But capping men\'s sport is one concern.

17 The other concern, which is equally

18 big for me, big concern is it provides what I

19 call false opportunity. It instigates us

20 provide false opportunities for women.

21 I see an opportunity for an athlete

22 as a chance to get coaching, a chance to access

40

1 the facilities, a chance to practice with a

2 team, a reasonable access to competition, team

3 travel, et cetera.

4 We could really go down the laundry

5 list that\'s provided in supporting documents and

6 say that\'s what an opportunity is.

7 I don\'t see how, when I look at EADA

8 reports, how people can, say on a team like

9 water polo for women, when you get six athletes

10 or seven athletes in a pool at one time, you

11 probably need 13 or 12 to participate, and you

12 report that you have 55 athletes on your team

13 and that\'s okay.

14 Or that you have 150 women rowers,

15 who we all know at the end of the season, at the

16 conference rowing championship you send 26, 28

17 athletes.

18 I think those are what I would call

19 false opportunities, and the law, the way it is

20 presently done, allows people to play those

21 games, both roster-manage the men out of

22 opportunities and inflate the opportunities for

41

1 women, in sort of a dysfunctional way.

2 Now, I \-- this has been portrayed by

3 a lot of people as an attempt to cut back on

4 women\'s sports. We have done, on our staff at

5 Stanford, a number \-- we\'ve looked at the EADA

6 reports and then we\'ve taken side-by-side

7 measures of how my proposal would work.

8 And in almost every case, the school

9 would have to work harder to comply with any

10 proportionality ratio that it now does.

11 In other word, at Stanford, if we

12 compute it the way we compute the EADA report

13 now, we have 46 percent women athletes. If we

14 compute it the way I\'m suggesting, we would have

15 43 percent women\'s opportunities.

16 So we would in effect be required to

17 add sports or continue to add sports or continue

18 to add real opportunities, not participants.

19 And so we\'d have to work harder to

20 go with timeline and to comply with 4 Type R.

21 So this isn\'t an effort to exclude

22 women from opportunities. This is an effort

42

1 really to provide more real, genuine

2 opportunities for women.

3 But the last thing I would say is

4 that this is \-- I projected this is \-- I would

5 suggest to the secretary of education, it is

6 only the option that schools could use to reach

7 proportionality.

8 Because as I look at EADA forms and

9 I look at my calculations, there are some

10 schools that now come pretty close to being

11 proportionality formulated, that they use the

12 system I\'m suggesting would be way out of

13 compliance. It would have to add numerous

14 women\'s teams in order to comply with Title IX.

15 I think there are schools that are

16 prepared to do that. These are multi schools

17 that have said, we have big-time football and

18 we\'re going to limit the number of athletic

19 teams we have, men and women.

20 We have a broad-based program, 35

21 sports like we do. You\'re probably a little bit

22 better off on some of these calculations.

43

1 That\'s my proposal, and I apologize

2 for the wordiness of my explanation. This is

3 one of these things. I\'ve tried to explain this

4 to six different constituents and I haven\'t

5 successfully done anybody, so if you are

6 confused you are not alone.

7 So let me \-- only 30 seconds left,

8 so I apologize. She put my reading into this

9 into the five minutes.

10 Yes, Donna?

11 MS. de VARONA: I just want to ask

12 the question that I asked to Bob: Is it, is any

13 one of these solutions, is it going to open the

14 door to bring back sports that are being dropped?

15 Is it going to change the playing field, or is it

16 just \-- or are we just tinkering with civil

17 rights law in a way that really is \-- the outcome

18 really isn\'t going to make it better?

19 MR. LELAND: In the evaluation of \--

20 my professional opinion is an evaluation of the

21 eight schools that our staff did at Stanford.

22 We took two Division 3, two Division

44

1 2, two Division 1A and two Division 1, AA\'s.

2 It would not bring back men\'s sports

3 \-- it would not add men\'s sports, but you

4 wouldn\'t have to cap walk-ons. That would be

5 the difference. Most schools would have to add

6 a women\'s sport or two, to get back to where

7 they are now, in terms of their ratios.

8 MS. COOPER: Time. Just kidding.

9 MR. LELAND: What?

10 MS. COOPER: Eighteen, page 30

11 through \-- I\'m sorry. Eighteen, page 39, line

12 29.

13 Any student who is not a recipient

14 of a full or partial scholarship will be defined

15 as a walk-on or a non-scholarship student

16 athlete.

17 For the purpose of calculating

18 proportionality with the male-female ratio of

19 enrollment, in both scholarships and

20 participation, these ratios will exclude such

21 individuals. Proportionality ratios will be

22 calculated through a comparison of full or

45

1 partial scholarship recipients.

2 MR. SPANIER: Well, again, I think

3 this was another one that I volunteered to write

4 out following a lot of discussion, but I think I

5 would go back to something Bob Bowlsby said

6 yesterday, very eloquently but succinctly, that

7 capping walk-ons, capping the roster sizes of

8 your team, of men\'s teams, does not create any

9 new athletic opportunities for women. Isn\'t that

10 pretty close to what he said?

11 And I think what most of our

12 institutions have evolved to is this system we

13 euphemistically call roster management. It is

14 hard to imagine the overall scheme of things

15 that roster management is in the interest of

16 promoting opportunity for men and women in

17 athletics.

18 It also of course relates to the

19 whole proportionality issue, because one of the

20 flip sides of that is creating false

21 opportunities for women.

22 For men who want to have the

46

1 opportunity to participate with a team it seems

2 to me we should allow them to do that and not

3 deny them the opportunity.

4 Similarly, if women wish to have

5 that kind of walk-on opportunity, of course it

6 should be encouraged. I\'ve never seen much

7 merit in limiting the number of walk-ons.

8 One of the concerns \-- I think Cary

9 mentioned it early in the discussion at a prior

10 meeting \-- was that walk-ons are not entirely

11 free. There is some incremental cost to having

12 walk-ons. It would not be true to characterize

13 a walk-on as costing the institution nothing but

14 they show as having no benefit.

15 What that cost is, however, the

16 ranges at some schools from very close to

17 nothing, depending on the level of competition,

18 to something perhaps more substantial, depending

19 on how they are treated by the institution.

20 In many sports walk-ons do not

21 travel to away contests and in some cases they

22 don\'t even suit up for a home contest.

47

1 There might be some additional

2 laundry or uniform costs. Whether or not it\'s

3 de minimis, it seems to me is not that critical.

4 We ought to deal with the

5 fundamentals of this issue rather than the cost

6 side of it at this point.

7 So I think it\'s \-- this is not the

8 one solution to the larger issue of

9 proportionality. I just want to reiterate what

10 I think several have said already.

11 Several of these proposals might

12 provide an opportunity that fits better with how

13 a particular institution does business.

14 So to the extent that we are looking

15 for a little more flexibility in the system

16 while following the letter of law and meeting

17 the spirit of the law, this is one change that I

18 think should be available to institutions as

19 they are examined, as they internally look at

20 whether they are in compliance with Title IX.

21 It\'s a question for Graham and/or

22 Bob: Do you see this as unlimited in terms of

48

1 numbers? Because I think that we talked it, we

2 talked about a handful of people and allowing

3 some flexibility. I guess that\'s one thing.

4 It is another, in some sports, where

5 these numbers with pretty large. So would you

6 see this, without having any kind of cap at all

7 as to how far you go with it?

8 MR. SPANIER: Well, theoretically, it

9 is unlimited but I can\'t see, given the state of

10 intercollegiate athletics today, how it really

11 would be or could be. At some point \--

12 MR. LELAND: One minute.

13 MR. SPANIER: At some point it is

14 just too burdensome for a university to do that.

15 We have some coaches \-- we have a couple of

16 coaches of our women\'s team who will not create

17 false opportunities and they simply will not have

18 the numbers we would like to see them carry.

19 We have some coaches of men\'s teams

20 who similarly say, you know, I don\'t really want

21 any more than I need, but we do have coaches of

22 some men\'s sports who wouldn\'t mind at all

49

1 having another five or ten people at their

2 practices. That\'s what works for them in their

3 sport. And so no; I don\'t think I\'d set a limit.

4 MR. LELAND: Okay, time; we\'ll have a

5 chance to come back to this.

6 MS. COOPER: Nineteen. It is mine so

7 I\'ll read it.

8 On page 39 line 42: the Office of

9 Civil Rights should explore the possibility of

10 allowing institutions to conduct

11 scientifically-based surveys to determine the

12 actual athletic interest of its student body on

13 a continual basis.

14 The number of interested students

15 would then become the measure for determining

16 whether an institution is in compliance with the

17 proportionality requirement of the first part of

18 the three-part test. I.e., if 50 percent of the

19 interested students are female, 50 percent of

20 athletic participation opportunities would need

21 to be provided for females.

22 And I wrote down some notes. As it

50

1 stands, the regulations require schools to

2 effectively accommodate the interest and

3 abilities of male and female students. And OCR

4 has assumed that this interest is pegged to the

5 enrollment, the undergraduate enrollment.

6 And maybe this assumption is

7 accurate and maybe it isn\'t. And the only way

8 to know that is to conduct a survey that will

9 enable schools and OCR to know the interest

10 level of women and men in that institution.

11 And I know there\'s a lot of

12 discussion. They\'ll be a lot of discussion, so

13 just want to it up to any questions or

14 discussions.

15 MS. SIMON: Cynthia, I think that

16 recommendation 19 and 20 really are the same.

17 MS. COOPER: Right.

18 MS. SIMON: May I say something about

19 that?

20 MS. COOPER: Right.

21 MS. SIMON: I would say that

22 continuous surveys on a regular basis could

51

1 accurately predict and reflect men\'s and women\'s

2 interests in athletics over time.

3 In addition to that, a by-product of

4 surveys is that it would also provide

5 information and incentives for prospective

6 students to think about applying for athletic

7 scholarships.

8 The very fact that they\'re sent a

9 questionnaire in which they\'re asked about their

10 interest in athletics may in fact spur students

11 who hadn\'t thought about it to say, you know, I

12 am interested; I would like to apply.

13 So that I think the interest there

14 basically would give you, one, an accurate \-- on

15 a continual basis \-- an accurate reflection of

16 interest, and it also would encourage students

17 to think about participating in varsity sports.

18 MS. COOPER: My concern is very

19 basic. Last night I asked myself this question:

20 How could you be sure you are effectively

21 accommodating the interests and abilities of any

22 sex, male or female, if you don\'t know what their

52

1 interests are, if you don\'t ask them?

2 MS. GROTH: I think this is addressed

3 in prong three. I thought we had decided that it

4 doesn\'t belong with prong one.

5 I mean, we agree that interest and

6 ability surveys are beneficial and it\'s listed

7 as a prong three \-- as a part of prong three.

8 So I would like to say that I don\'t

9 think it belongs in proportionality, that a

10 prong one \-- it belongs in three.

11 But while it is in prong one in the

12 sense that you are tying \-- you are assuming

13 that the interest that this statement, the

14 enrollment is 56 to 44, you are assuming that

15 56 percent won\'t have the interest and abilities

16 to participate in athletics. You are assuming

17 that, so it is effectively in prong one already.

18 And the only question is whether you

19 have asked the student body whether they are

20 actually interested or not, and the only way you

21 could find that out is ask.

22 MR. BOWLSBY: In fairness to the

53

1 process, Cary, I don\'t remember us coming to a

2 consensus on that issue in prong three. I\'ve

3 heard it suggested and then I think we moved on

4 to other topics, but I don\'t remember voting or

5 coming to any consensus on surveys only being

6 viable in prong three.

7 MS. SIMON: Certainly I think that

8 you need the survey as essential for fallback,

9 say, from prongs one, two and three. Since I\'m

10 not particularly in favor of prong one in the

11 first place, I think the surveys are the measure

12 of interest and therefore should play a more

13 important role in the distribution of athletic

14 scholarships.

15 So to limit it to prong three would

16 be meaningless.

17 MR. LELAND: One minute.

18 MS. COOPER: I just have one more.

19 Debby, after hearing your

20 recommendation, I actually wouldn\'t mind. I

21 would accept your recommendation over \-- just

22 for lack of a better word \-- over my

54

1 recommendation, because I do believe that 50/50,

2 with some small variances, would help with the

3 first prong.

4 MR. LELAND: Other questions?

5 MS. YOW: I have a comment but I\'m

6 not going to make it under the time frame.

7 Later.

8 MR. LELAND: Any other questions or

9 thoughts on this one?

10 Now we need to turn to

11 recommendation 20. We talked a little bit about

12 this, but let me read it. It is on page 40,

13 line 13:

14 The Office for Civil Rights should

15 allow institutions to conduct interest surveys

16 as a way of demonstrating compliance with the

17 three-part test.

18 The Office should specify that the

19 criteria necessary for conducting such a survey

20 is a way that is clear and understandable.

21 Recommendation 20.

22 MS. SIMON: Ted, I think that what I

55

1 said as we were talking about Cynthia\'s

2 recommendation is closer to where, since I\'m put

3 down as the author of 20, and that is the

4 importance of continuous interest surveys on a

5 regular basis to predict men and women\'s

6 interests, and also to provide information for a

7 student.

8 So I would like the editors of this

9 document to take the new wording of

10 recommendation 20, if I may give it to them.

11 MR. LELAND: It is not substantial

12 change? You are just talking about continuing

13 surveys?

14 MS. SIMON: Right.

15 MR. LELAND: Is that correct?

16 MS. SIMON: And also that surveys

17 provide a second function of stimulating

18 interest.

19 MR. LELAND: Are you okay with that,

20 Mr. Authors?

21 MS. SIMON: I can give it to you if

22 you need it.

56

1 MR. LELAND: Okay. Comments or

2 questions on recommendation 20?

3 MR. BATES: Rita, I just need some

4 clarification here. This says to allow

5 institutions to conduct interest surveys as a way

6 of demonstrating compliance with the three-part

7 test.

8 Now, you don\'t mean just conducting?

9 MS. SIMON: No, that\'s why my new

10 statement, I think, is more appropriate.

11 MR. LELAND: Any other comments or

12 thoughts?

13 Hearing none, let\'s move on to the

14 next recommendation that seems pertinent to the

15 substantial proportionality formula, and that\'s

16 recommendation 22.

17 MS. COOPER: Recommendation 22, page

18 40, line 37:

19 In demonstrating compliance with the

20 proportionality requirement of the first part of

21 the three-part test, the male-female ratio of

22 athletic participation should be measured

57

1 against the male-female ratio of the

2 institution\'s undergraduate population, minus

3 non-traditional students.

4 MS. McGRAW: I\'m basing this on,

5 according to the National Center for Education

6 Statistics, in 1999-2000, only 27 percent of all

7 undergraduates were traditional students.

8 This obviously has a huge impact on

9 the community college level. We heard a lot

10 from those people in the California community

11 colleges, how they had a lot of non-traditional

12 students.

13 I don\'t think it would impact most

14 of the people in this room. It would not impact

15 high school, and I think that it would really

16 help certain schools at the community college

17 level to take the traditional student and figure

18 that into the mix.

19 MR. LELAND: Any questions, thoughts?

20 MS. de VARONA: Debby in prong three

21 already allowed for this analysis. When we get

22 into non-traditional, aren\'t you treading on

58

1 nondiscriminatory risk, in defining what a

2 nontraditional student is?

3 MS. McGRAW: I think there\'s a

4 definition of it in the section \-- in the

5 educational statistics of what a traditional

6 student is.

7 Most prominent, I think, was age.

8 From 19 to 23, I think, is the traditional

9 college student in \-- at the community college

10 level. The majority of the people were over 30,

11 and I guess a lot of them had a lot of other

12 things that would preclude them from

13 participating in athletics.

14 MR. LELAND: Any other questions?

15 MS. de VARONA: I just want to go on

16 the record that prong three already allows for

17 this analysis as it relates to this issue.

18 So are you suggesting it should be

19 in prong one, when it applies to this

20 discussion?

21 MS. McGRAW: Yes.

22 MS. de VARONA: I just wanted to

59

1 clarify that.

2 MR. LELAND: Any other thoughts and

3 questions?

4 MS. YOW: I have a comment. 50/50

5 doesn\'t look that bad right now.

6 MR. LELAND: Okay. Let\'s turn back,

7 then. We\'ll start again on proposal number 13.

8 The proposal \-- or the procedure \--

9 that Cynthia and I talked about, let me

10 elaborate on very quickly.

11 Our intention would be to try to

12 have a discussion on each one of these in order.

13 So it is 13, 14, 15A, 15B, 16, 18, 19, 20 and 22

14 in that order, and then we\'ll vote them up or

15 down.

16 I think we should \-- if it\'s the

17 will of the group, we can \-- and I think it is

18 probably appropriate to have a ten-minute

19 discussion period. Then I think it\'s time we

20 start to vote on these and start moving through

21 them. That\'s what we had in mind.

22 Graham?

60

1 MR. SPANIER: On recommendation 13,

2 here are the things I like about it.

3 MR. LELAND: Excuse me. Let me make

4 sure the procedure is clear. Let\'s talk about

5 the procedures for a second, and then we\'ll call

6 on you first. Yes?

7 MR. GRIFFITH: I\'m going to sign the

8 author of recommendation 15, just to, you know \--

9 I\'m going to propose an amendment to

10 recommendation 15 that would say the OCR should

11 not use numeric formulas in determining whether

12 an institution is in compliance with Title IX,

13 and logically speaking, if that were to carry,

14 that would affect many of the others.

15 I don\'t know if that means you would

16 want to have discussion of my proposed amendment

17 first or last, but it seems to be, logically

18 speaking, if it is the will of the commission

19 that numeric formula is not be used, then I

20 think that affects all of the others.

21 But I\'ll make that amendment when

22 the chair tells me \-- I\'ll propose that

61

1 amendment when the chair tells me to do so.

2 MR. LELAND: That\'s an interesting

3 proposal. The problem I have with it, I\'m not

4 sure that it\'s a \-- I would like to talk to

5 Cynthia about this. I\'m not sure it\'s in order.

6 MR. GRIFFITH: No, it\'s an amendment

7 to recommendation 15. What I would do is propose

8 it as an amendment to recommendation 15. It

9 would obviously need a second and discussion and

10 it would need to carry.

11 MR. LELAND: I understand about this.

12 We also discussed earlier in our process here

13 that this wasn\'t the time for new proposals.

14 I\'m wondering whether, in my own

15 mind, having just heard it, Tom, that is not a

16 new proposal. Even though it could be disguised

17 and voted in as an amendment to an old proposal,

18 I\'m not sure it\'s not so different than \-- but I

19 guess I\'m just \-- let us ponder that.

20 MR. GRIFFITH: Well, a couple of ways

21 you could do it is if it fails for lack of a

22 second, then it dies; if it gets a second we have

62

1 a discussion. You could let the commission \--

2 you could \-- if the commission is opposed to it

3 and thinks it\'s outside the bounds, they could

4 certainly vote it down. Tom?

5 Talk about process \--

6 MS. de VARONA: I just think that

7 this is the most important part of our

8 discussions, and as a Commission we\'ve been given

9 the task to deal with this. I\'m open to any

10 amendment that deals with the process of us doing

11 our job. This is all about why we are here.

12 MR. LELAND: So you would suggest

13 that Cynthia and not rule his proposal out of

14 order when we get to 15?

15 MS. de VARONA: I would suggest you

16 would not rule his proposal out.

17 MR. GRIFFITH: Let me discuss it for

18 ten minutes and we\'ll vote it up or down.

19 MR. LELAND: Any other thoughts on

20 the \-- any argument about the ten-minute time

21 limit?

22 I think we need to have more

63

1 discussion, so ten minutes means that we\'ll have

2 to keep our comments succinct. I think would be

3 very good to have a little philosophizing and a

4 lot of sort of concrete discussion about these

5 things might do about that.

6 MS. FOUDY: My only concern about

7 that is that it be a flexible ten minutes with a

8 variance on it, because I think if we start

9 saying yeah, okay, we are right in the middle of

10 something, you have 30 seconds, that really

11 doesn\'t serve us well, or the secretary.

12 So I understand the need to keep

13 moving on issues but I would request that it be

14 a little bit flexible.

15 MR. LELAND: Okay, let\'s try this:

16 We\'ll try to use our \-- Cynthia and I will try to

17 push us along and move us along, because we do

18 need to get these votes recorded.

19 We have \-- Ruth\'s got to leave at a

20 certain time. We need to be fair to the

21 commissioners; we need to get this thing done

22 and we need to act on this and be fair to our

64

1 commitment to do so.

2 But at the same time we\'ll try not

3 to cut off debate. We don\'t want to stop people

4 from feeling like they had a chance to have

5 their say on the record.

6 So let\'s begin with 13. Graham?

7 MR. SPANIER: What I like about this

8 is that it\'s unambiguous, and it would be nice to

9 have something unambiguous. I do think some of

10 the other proposals help us in that direction, as

11 well.

12 It also avoids the problem that we

13 have already been seeing, in that many people

14 who testified have indicated we are going to

15 continue to see, which is that we will be

16 shooting at a moving target any institution\'s

17 enrollment from year to year, shooting at a

18 moving target.

19 You might think you\'re in compliance

20 with substantial proportionality tests. Your

21 numbers come in, you find out you are a percent

22 off. And the idea that there needs to be some

65

1 flexibility is good.

2 What makes me nervous about it is

3 that it feels arbitrary. As fair as half the

4 apple sounds, it is an arbitrary number. It

5 happens to be half and half, but is that

6 necessarily the right number?

7 And then I do wonder about schools

8 like the Air Force Academy, which, I recall, is

9 85/15 in enrollment.

10 What about a historically women\'s

11 school that may now be 80/20 instead of 100 the

12 other way? And what about a school like Penn

13 State, where we are in compliance with a

14 proportionality on a strict proportionality test

15 right now, but for us that\'s 47 percent women,

16 53 percent men.

17 We have the nation\'s largest school

18 of engineering and we just have more men in

19 engineering, for example.

20 MS. YOW: Graham, that\'s a good

21 question, and the answer to that, in all three

22 cases that you cited would be that they would use

66

1 prong three.

2 They don\'t have to gravitate to

3 prong one. If the Air Force Academy can prove

4 that they\'ve met the interests and abilities of

5 their, whatever it is, 10 percent female

6 enrollment, just as Georgia Tech with about a 28

7 percent female enrollment, they have other

8 options that they can pursue.

9 MR. LELAND: Any other comments and

10 questions? Cary?

11 MS. GROTH: Actually in looking at

12 all of these proposals \-- and I know we\'re on one

13 specific one \-- but I feel irresponsible if we

14 were to vote on any of these proposals without

15 looking at the impact, the numbers: What does

16 three percent mean? What does 5 percent mean?

17 What does 7 percent mean?

18 I mean, what does it do to the

19 current participation rates as they are today?

20 Or if institutions were in total compliance?

21 The current 1996 interpretations \--

22 okay? \-- I\'m not going to pass them out, Ted \--

67

1 provide three examples in prong one: A one

2 percent, a two percent and a 5 percent variance,

3 depending on the size of your program,

4 institution and circumstances.

5 It is on a case-by-case basis.

6 There\'s flexibility. It\'s substantial

7 proportionality. I\'m not \-- again, I won\'t

8 request the distribution of the \'96

9 interpretations.

10 However, I think it is very

11 important to note that every proposal before us

12 are different because in fact they do establish

13 a quota that\'s numerical now, if we were to

14 approve them.

15 If we look at the recommendations

16 before us, what I think is \-- and what the

17 impact would be, no matter what the gender would

18 be, would they accept them? Would the men

19 accept these? Would the women accept these? We

20 all know that minimums become maximums. We do

21 it every day.

22 I took at look at just one example

68

1 and calculated the end result. If you look at

2 the high school female enrollment, which

3 nationally is about 50 percent \-- 49.1 \-- and

4 you use the 50/50 proposal with a 3 percent

5 variance, there would be an approximate loss of

6 305,000 opportunities for girls, assuming boys\'

7 participation stays the same.

8 You could do the numbers for college

9 athletics, as well.

10 All I\'m saying is, before we vote on

11 these \-- and I don\'t know if OCR or anyone else

12 has done the numbers \-- but I think we do this

13 in our daily lives and our businesses.

14 Before we make any recommendations

15 in our departments, we look at what the impact

16 is, the realty, and we haven\'t done that.

17 MS. YOW: I agree with that, Cary,

18 and I think you should look at it, and I will

19 remind everybody that it is a suggestion, it is a

20 recommendation to OCR to look at it. It isn\'t a

21 recommendation that they implement it.

22 Certainly we should consider the

69

1 impact. I will say this, however: I think for

2 us to continue to in the year 2002 \-- and you

3 know, I\'m with the guys a lot; you are, too.

4 So I\'m surprised to hear you say as

5 a fellow female AD that once we establish this,

6 that the minimum becomes the maximum. That is

7 not my experience with the male ADs at the

8 places like the University of Virginia, Duke

9 University, the University of North Carolina.

10 I personally do not see that in my

11 life and I am not going to stay in that old

12 paradigm and insist that if they can screw us,

13 they will. Figuratively, of course.

14 MS. GROTH: Well, Debbie, I\'m not

15 suggesting that, either, but you allude to a few

16 examples. But overall, that\'s a fact: The

17 minimums become the maximums. I \--

18 MS. YOW: It\'s not a fact; it is your

19 opinion. You can\'t back that up with empirical,

20 statistical data. That is your opinion.

21 MS. GROTH: I stand corrected.

22 MR. LELAND: Let\'s get some other

70

1 people.

2 MR. BATES: Ted, I think I read

3 someplace earlier where you indicated that if we

4 were for or against a proposal, we should

5 indicate that up front.

6 I guess I want to say that I am at

7 this time opposed to this. In the support

8 information below, it says this recommendation

9 would dramatically alter the current enforcement

10 of Title IX.

11 We have, in my view, a time-honored

12 method of arriving at the number relative to

13 proportionality, and I guess I view it as an

14 expectation and a probability model, rather than

15 what I\'ve heard people use as quotas. And so I

16 guess for me it is a time-honored method that

17 I\'m not willing to sort of quickly around this

18 table suggest that we shift from where we are

19 now to a new method.

20 MS. FOUDY: Percy, on that note, one

21 of the issues I\'ve looked into is, where did this

22 proportionality comparison come from? What\'s the

71

1 history of it?

2 If you look at basic civil rights

3 law, this is a standard of measure where you

4 take a larger population, you have a group in

5 the larger population, and you try to match it

6 to a group in a smaller population.

7 And if you can show that it matches

8 to the same extent, then it is considered

9 compliance. If it doesn\'t match to the same

10 extent as your large population, then it doesn\'t

11 mean that you are not compliant. It just means

12 that you have to show why you are non-compliant,

13 which is basically the way Title IX was set up,

14 with the three prongs.

15 If we look at going either way, if

16 you have men at 60 percent and women at 40

17 percent, I think then the men should have a

18 right to 60 percent of participation

19 opportunity, because there is more of them

20 there.

21 And if you look at universities,

22 we\'ve talked about Graham\'s issue with

72

1 universities, with large variances in student

2 bodies. I think that \-- again, because they

3 have a larger variance in the student body, they

4 should have a larger percentage of athletes

5 participating.

6 And that was the way our civil

7 rights laws were constructed. And I think to

8 tamper with that is really not the task of this

9 commission.

10 MS. SIMON: I like the simplicity of

11 the 50/50. It certainly makes everything much

12 easier.

13 But on the other hand, because I

14 believe very strongly in applying valid data in

15 helping to arrive at some of the things in these

16 decisions, I think that if you don\'t know what

17 the real interests of men and women are, as they

18 enter the university, in terms of their desire

19 to participate in varsity sports, we will be

20 doing students an injustice.

21 If in fact the interest survey,

22 properly conducted, would show that there are

73

1 big differences in men\'s and women\'s interests,

2 and 50/50 percent meant nothing, then I think we

3 would be distorting what we are supposed to be

4 doing if we simply relied on 50/50.

5 MS. YOW: Let me say one more thing

6 about the surveys.

7 The reason I\'m nervous about surveys

8 in general is because we continually refer to

9 this primarily as interest.

10 Let me say this: If there are

11 scholarships available, there will be interest.

12 If I am choosing between working part-time or

13 being on an athletic team, and I could either

14 have a partial scholarship or work, there would

15 be lots of people who choose the scholarship.

16 So, you know, we\'re not \--

17 intercollegiate athletics, whether it was

18 Division 3 level, Division 2, Division 1, NAIA,

19 NCAA, junior college, community college, we are

20 not about creating opportunity for everybody.

21 We have intermurals, which are not

22 \-- we are not considering; we have club teams,

74

1 which we are not considering. We should be the

2 elite athletes in our respective category on

3 that institution.

4 So my concern is how you could

5 measure not just interest but ability.

6 MR. LELAND: Okay. Let\'s hear from

7 Bob?

8 MR. BOWLSBY: The reason I like this

9 proposal \-- not to the exclusion of others, but

10 just as a stand-alone \-- is because it gets us

11 off undergraduate student population.

12 Once again, our participation,

13 Division 1, 2 or 3, has not one thing to do with

14 undergraduate population.

15 And to go back to Julie\'s point, if

16 you apply the rule of thumb that has been used

17 in other civil rights legislation through the

18 years, the student population wouldn\'t be the

19 body you\'d use as a comparative group.

20 You would \-- either the percentages

21 of the population at large, which are roughly

22 50/50, or the population in the feeder system,

75

1 either one would be more logical and dependable.

2 I just cannot bring myself to remain

3 wed to something that is so flawed in its

4 original state.

5 Our programs have nothing whatsoever

6 to do with what is going on in the undergraduate

7 population. And this proposal gets us off of

8 that. These are students. They attend the

9 university. They are in classes every day with

10 people who are non-student athletes.

11 But the vast majority at all

12 divisional levels are invited to come to campus

13 and participate. And this proposal at least

14 gets us off that piece of the paradigm that is,

15 in my estimation and as \-- it really defies

16 logic.

17 MR. LELAND: Okay. We are over time

18 limits, so a couple or more of you, be quick. We

19 will go ahead.

20 MS. SIMON: I just want to respond to

21 Debbie\'s comment about interest surveys. So they

22 express interest, you won\'t need competence, you

76

1 won\'t need skill.

2 I agree with that. That\'s the same

3 notion of scholarship. You don\'t give every

4 student who is in need a scholarship, an

5 academic scholarship. You\'ve also got to pick

6 out on the basis of grade-point average, other

7 kinds of \-- SAT scores and so on.

8 Well, similarly, with the athletic

9 interest, you don\'t give everybody an athletic

10 scholarship because he or she is interested.

11 You also then look at skills and competence and

12 so forth.

13 MR. LELAND: Are there other

14 comments?

15 MS. YOW: I have to change my

16 variance, remember? I want my variance changed

17 to much smaller, and you said think about it.

18 MR. LELAND: Okay. It would have

19 been nice to do that at the start of the session

20 today.

21 MS. YOW: In the last one Ted and you

22 wouldn\'t let me.

77

1 MR. LELAND: What do you want to

2 change it to?

3 MS. YOW: No empirical statistical

4 data or what we do now with the plus or minus

5 1 percentage point in place, and \--

6 MR. LELAND: All the comments that

7 you \-- totally harmless here \--

8 MS. YOW: Two to three percent.

9 MR. LELAND: Pardon me?

10 MS. YOW: Two to three percent.

11 MR. LELAND: Two to three percent.

12 MS. YOW: Because I know one percent

13 is not enough; just experience.

14 MR. LELAND: Okay.

15 MR. GRIFFITH: Question. Point of

16 order.

17 Before we go, wouldn\'t it make more

18 sense to vote on the proposal I\'m going to make,

19 and that is not use numerical proposals at all,

20 and see the will of the commission on that; let

21 it rise or fall?

22 Because if it is the will of the

78

1 commission that numericals not be used, again, I

2 think that affects all the others.

3 So I thought I\'d \--

4 MR. LELAND: But I think we\'ve said a

5 couple times, we could have the conflicting

6 recommendations. So I think we are okay in just

7 following this procedure.

8 Go ahead; Graham?

9 MR. SPANIER: Well, I would like to

10 suggest an amendment which, if passed, I think I

11 could vote for it. If it didn\'t, I\'m not sure if

12 I could.

13 It follows to the comment you just

14 made, Ted: I think we\'re going to end up with

15 several suggestions. Some of them are written

16 as if in this month it must be that way.

17 And that\'s more than just putting a

18 few ideas on the table. It sounds too

19 conflicted to me.

20 So I would like to suggest that this

21 be reworded to say, institutions governed by

22 Title IX standards, as one approach to meeting

79

1 the standard of proportionality, maybe allot

2 50 percent, and so on.

3 I just think the way it is currently

4 worded sounds like that\'s the way it\'s got to

5 be. It is almost a mandate.

6 MS. YOW: Graham, I\'m perfectly

7 comfortable with that. It was never meant to be

8 the end-all.

9 MR. SPANIER: Okay.

10 MS. YOW: It\'s just an opportunity as

11 a way, surely; bring the amendment.

12 MR. LELAND: Graham, would you read

13 that again?

14 MR. SPANIER: Institutions governed

15 by Title IX standards, as one approach to meeting

16 the standard of proportionality, may allot

17 50 percent of their participation opportunities

18 for men and 50 percent for women. A variance of

19 two to three percent in compliance with the

20 standard would then be allowed.

21 MS. FOUDY: Question on that.

22 MR. SPANIER: Yes.

80

1 MS. FOUDY: Are you saying, Graham,

2 that the institution gets to dictate how it will

3 comply with Title IX, rather than the government

4 dictating to them the standard?

5 MR. SPANIER: Well, it just says one

6 approach to meeting the standard of

7 proportionality. I assume that what will happen

8 is that we will have three or four of these

9 approaches to approach proportionality put on the

10 table. We\'ll forward it. The Department then

11 has to figure it all out, and one reason, what \--

12 what Tom said, I think, has some validity, but

13 people still need guidance, and I think we begin

14 to accommodate, to some extent, what your concern

15 is if we put through three or four ideas on the

16 table that give guidance to schools about how to

17 get there, as opposed to one rigid measurement,

18 which, as you describe, done the way it\'s been

19 done does not seem to be very sensitive to the

20 letter of the law.

21 So that\'s why I\'m thinking a wording

22 change like this and little bit of similar

81

1 sensitivity on some other recommendations gives

2 the office guidance to go out and say to

3 schools, here\'s some different ways in which you

4 can look at doing this. It\'s your school, your

5 situation and your demographics. Now let\'s \--

6 we\'ll decide if you are being reasonable about

7 it.

8 MR. LELAND: Let\'s \-- you know, all

9 kinds of comments are welcome, but let\'s move

10 toward a vote fairly soon.

11 MS. FOUDY: Can I just comment one

12 last thing on this proposal?

13 MR. LELAND: Yes.

14 MS. FOUDY: Just to point out, so

15 that we understand, because one of the points

16 Cary made is we don\'t understand the

17 repercussions of something like this.

18 And I think, just to point out, I

19 think we should all know that what we are

20 proposing here would take, for example, a school

21 that had a 56 percent percentage of women and a

22 44 percentage of men, it would take that right

82

1 now, they would have to become substantially

2 proportionate if it dropped then potentially

3 from the 56 percentage for women down to a 47

4 percentage for women, with the variance that

5 we\'re allowing, which is a nine percent

6 difference.

7 And I just want people to understand

8 what we\'re actually putting out there.

9 MR. LELAND: Let\'s go to Tom and then

10 Graham; just a quick followup to yours.

11 MR. GRIFFITH: I think you are right.

12 I think \-- as opposed to where we are now, giving

13 a range of options \-- and I think the commission

14 has expressed that interest already \-- that

15 options two and three ought to have more life to

16 them than they have, but nevertheless I think \--

17 I\'m still opposed to giving schools the option of

18 using numeric formulas. That shouldn\'t be one of

19 the options that they\'re given. It is contrary

20 to the letter of the law; it is unfair.

21 So I\'m not certain where I\'ll be on

22 the amendment. Give me 30 seconds to think

83

1 about that.

2 But I appreciate the sentiment that

3 there ought to be more options that are given to

4 schools.

5 MR. BATES: I\'ll be quick, but I

6 guess, in listening to this, I think one would

7 have to assume that prong one is broken, and I

8 guess, in my mind, I\'m still not convinced that

9 it\'s broken, and talked a lot about trying to do

10 something with two and three.

11 And to modify one before we are

12 assured that we are doing something with two and

13 three, I guess, just seems to me to be getting

14 the cart ahead of the horse.

15 And so, I guess I wanted to say that

16 before we took a vote on this and started down

17 this road.

18 MS. YOW: Percy, I just want to

19 follow up.

20 I was just reminding everybody that

21 we are not telling the Office of Civil Rights to

22 do this. We are going to end up give them all

84

1 kinds of recommendations and none of them, as I

2 understand it, are going forward with a mandate

3 from us that this is what you must do, should

4 do, and if you don\'t do this, then, you know,

5 you don\'t know what you are doing.

6 There are going to be contradictory

7 recommendations going to them.

8 MR. LELAND: In other \-- Donna?

9 MS. de VARONA: Tom mentioned his

10 objection to the numerical standards as it

11 relates to the civil rights laws, and I am very

12 concerned that when we forward any kind of

13 recommendation in tinkering with the guidelines

14 that we were entrusted to strengthen, and give

15 the Office of Civil Rights direction, that we

16 don\'t force it, that we do not, when we do

17 suggest whether, you know, this passes or not,

18 the impact of what we are asking.

19 Not the numerical impact of what the

20 result in a 50/50 formula with a variance,

21 because the numbers will be impacted with

22 participation.

85

1 I don\'t know what they are, but I

2 think we should be responsible enough to, when

3 we are looking at GAO reports and statistics in

4 other areas, to know where we\'re going.

5 I\'m not so sure we are going to

6 solve \-- we\'re solving the problems that were

7 presented to us, as it relates to men\'s minor

8 sports. I just heard that if we changed it, we

9 are not going to get our wrestling programs back

10 or our swimming programs back.

11 So you know, I am very uncomfortable

12 with forwarding something to the office, the

13 secretary\'s office what we feel the impact would

14 be.

15 MS. YOW: I appreciate that, Donna.

16 I really do. I just \-- I don\'t know how to find

17 out what the impact would be if we don\'t forward

18 it. I think it\'s a good thing we have the

19 opportunity to, and I just want to go on record

20 to say that I really do believe the 50/50 has

21 merit in terms of the American way, what\'s equal,

22 sharing equitably.

86

1 And I have to also say my goal, my

2 number-one goal here is that equity in athletics

3 for women, not reinstating men\'s teams.

4 If there are men\'s teams that are

5 reinstated, I think that\'s fantastic. I have

6 not cut a team at Maryland, a men\'s team, don\'t

7 plan on doing that, but it is not my primary

8 goal.

9 MS. SIMON: I want to say that I\'m

10 very troubled at the idea that we have come up,

11 as a commission, with contradictory

12 recommendations. It seems to me that one of the

13 things we should do is come up with consistent

14 recommendations and then, as we take the vote on

15 these things and we see how much agreement and

16 how much consensus there is, those people who

17 disagree, their position could also be reflected.

18 But on the whole, I think that as

19 commissioners, we should come up a series of

20 consistent recommendations.

21 MS. COOPER: Let\'s take a vote.

22 MR. SLIVE: Ted, before we vote,

87

1 would it make some sense to hear Tom\'s amendment

2 and to see what impact that would have on this

3 discussion.

4 And also, to figure out a way to

5 mandate with the secretary that these are just

6 proposals for him to think about, that it be

7 mandated in terms of whatever decision he makes,

8 by this commission, that he justify by

9 statistics that anything that he recommends will

10 not in any way impact the progress we\'ve made in

11 women\'s opportunities.

12 I think that Donna made the point

13 that she doesn\'t know what it means. Debbie\'s

14 made the point that she know what it means.

15 I\'m not sure we know exactly what

16 each of these statistical impacts will be.

17 On the other hand, we are all

18 trying to get to something that\'s fair and

19 equitable and non-discriminatory. We are trying

20 to find vehicles; we\'re trying to get out of a

21 circle that seems to presented to all of us, and

22 we would all like to be somewhere else this

88

1 morning.

2 But I am concerned. I would like

3 for the secretary to entertain options that

4 think about it, but I would like for him to

5 prescribe, in considering those options, in

6 guaranteeing this commission that we continue

7 the progress we\'ve made for women in athletics.

8 MR. LELAND: Mike, I was under the

9 impression we did that under recommendation four

10 yesterday, just what you said. And maybe we

11 didn\'t; maybe it\'s distorted in some way, but I

12 thought we said that we didn\'t want to take a

13 step backwards in the course of the time line, in

14 terms of providing women\'s opportunities.

15 I thought we are on record as doing

16 that; do you disagree? You do?

17 I mean, you know, I\'ve chaired a lot

18 of commissions and committees and you guys, I

19 mean, we have got to move forward. There is a

20 sense you need to help the chair move this thing

21 along.

22 You have to be a little bit of

89

1 disciplined here. We\'ve talked about these

2 issues over and over. We are not gagging

3 anybody; we\'ll vote past ten minutes; we are now

4 on 35 minutes on this discussion, and we\'re just

5 trying to get a vote.

6 I don\'t understand why people can\'t,

7 after all the work we have done, can\'t put their

8 hand up immediately in favor or not in favor of

9 a proposal that\'s been before us for over a

10 month.

11 So I \-- I mean, where the chairs,

12 where we could do a better job of moving this

13 thing along. I feel like it\'s a simple

14 commitment to the Communist party; I\'m not \-- I

15 mean, we can\'t get anything \-- I want to write

16 to the Olympic Committee people here to run this

17 thing.

18 I mean, I hope you could understand

19 that the level of frustration that we have as we

20 stand up here and we can\'t even agree to stop

21 debate after ten minutes.

22 MS. de VARONA: Ted, what do you

90

1 expect? This is the most important discussion

2 we\'ve had.

3 MS. COOPER: There is no question

4 about it. But there\'s no question that\'s

5 important. I think everyone around this table,

6 everyone\'s here, we all know it is important, but

7 we are all intelligent people and we have a

8 process and we\'ve discussed this.

9 But we\'ve played the role in the

10 ground and it is time to vote. It is simple; it

11 is not even complicated. We have discussed

12 three months, four months; we\'ve been here.

13 We\'ve talked about, we have discussed it,

14 everyone has voiced their opinion. Let\'s vote.

15 MR. BOWLSBY: Ted and Cynthia, to

16 Mike\'s point, I think the proposal that Tom

17 forwarded yesterday and that we approved

18 regarding making sure the changes in management

19 of this whole Title IX environment go through the

20 process that was prescribed, also gets at

21 directly what you were talking about, Mike.

22 These are recommendations. I agree

91

1 with what both our chairs have said. We have

2 got to get on down the path. And we\'ve got

3 people who do this for a living and work at it

4 every day that are going to take it from our

5 recommendations through to fruition, one way or

6 another, and we have to go down the path.

7 MR. LELAND: I\'m about ready to hit

8 my forehead on the table if we can\'t get somebody

9 to agree to follow some procedure.

10 MR. GRIFFITH: I think we are going

11 to \-- Facing a church and state here; I

12 apologize.

13 We have a proposal before us now.

14 It\'s been amended to change the variance and

15 also to change the first sentence in the way

16 that Graham indicated.

17 Is there any other questions on the

18 substance of the vote?

19 Okay; all those in favor of \--

20 MR. GRIFFITH: Can we read it?

21 MR. SPANIER: I\'d be happy to read

22 it.

92

1 Institutions governed by Title IX

2 standards, as one approach to meeting the

3 standard of proportionality, may allot

4 50 percent of their participation opportunities

5 for men and 50 percent for women. A variance of

6 two to three percent, in compliance with the

7 standard, would then be allowed.

8 MR. LELAND: Any other questions?

9 All those in favor of supporting

10 this recommendation, raise your hand?

11 MS. PRICE: Seven in favor.

12 MR. LELAND: Opposed?

13 MS. PRICE: Seven.

14 MR. LELAND: Oh, my goodness.

15 MS. PRICE: In the case of a tie

16 vote, the commission would have the

17 recommendation in the report with a comment that

18 this recommendation received a tie vote; the

19 commission neither supports nor opposes it.

20 Any recommendation that received a

21 tie vote would be listed separately at the end

22 of the recommendation for that location.

93

1 MR. LELAND: Next. Okay.

2 Recommendation 14.

3 MS. COOPER: Do I need to read

4 recommendation 14 again? Do we need to discuss

5 it for ten minutes?

6 Any questions, comments?

7 MR. SPANIER: I suggested an

8 amendment to 14, which said that in place of the

9 words, within the Office for Civil Rights regions

10 \--

11 MS. COOPER: Is it just the line that

12 isn\'t?

13 MR. SPANIER: The line is 17 on page

14 38, replacing those seven words, with, within an

15 appropriately defined geographical region.

16 MS. FOUDY: Can I comment on this?

17 Bob, I totally agree with you in

18 that we need to incentivize the feeder systems,

19 and in terms of becoming more compliant by

20 participation numbers, where I think this

21 recommendation is inherently flawed is that we

22 are assuming \-- we are going assume that the

94

1 feeder system dictates our percentage rates in

2 that we are assuming that the feeder system is

3 already in compliance.

4 So in a situation where the

5 proportionalities are not in compliance and

6 where your numbers are not in compliance, you\'re

7 still going to be passing on those numbers into

8 the collegiate system.

9 So in essence, if you have

10 discrimination at the feeder system level, you

11 are then having it at the collegiate level, as

12 well, because you are basing those numbers on

13 the collegiate system.

14 And so I agree with you that we need

15 to incentivize the feeder system and make them

16 more responsible for Title IX, but at the same

17 time to lock discrimination into place.

18 MR. BOWLSBY: I think I earlier said

19 that this was an option that I thought the

20 secretary and the staff ought to look at.

21 I certainly understand the impact of

22 it, but I think from a logical standpoint it

95

1 does make more sense, and the incentivization of

2 it is certainly critical in my mind too, Julie.

3 So I don\'t \-- I think this is one

4 that I don\'t feel particularly strongly about

5 but I do think it\'s an alternative that the

6 Department of Education staff ought to take a

7 look at.

8 It is also one where, to go to the

9 point that several of you have made, you would

10 want to take a very close to look at what

11 happens with the numbers before you consider the

12 matter.

13 So I don\'t think there is any harm

14 in forwarding it on. It\'s one of the ways in

15 which this topic ought to be considered.

16 Having said that, there are

17 obviously some numerical things that need to be

18 considered, and I wouldn\'t say it\'s a

19 non-starter, necessarily, but it certainly is

20 different than some of the other proposals.

21 MR. SPANIER: Just a point in

22 clarification, Bob, based upon what you\'ve said

96

1 and what Debbie said earlier, do we need to vote

2 this up or down, or it sounds like this is one

3 that could be put somewhere in the report for the

4 secretary to see without either support or

5 nonsupport of the commission.

6 MR. BOWLSBY: Yeah, that would be

7 fine with me. I just think it\'s something we

8 ought to take a look at.

9 MS. FOUDY: How about rewording it so

10 that quickly, so that it calls more to the

11 incentivization, if that\'s a word, in high

12 schools instead of drawing off those numbers,

13 instead of trying to say whatever numbers are in

14 high school, we are going to carry them on to

15 college.

16 I mean, the point is that we want to

17 get the high schools to come up with their

18 numbers, not that we want to necessarily use

19 them as a basis for collegiate participation, if

20 those numbers aren\'t \--

21 MS. GROTH: My concern that I have

22 with this is, all across the country the

97

1 percentages vary across by state. Some states

2 are at 70 percent male, 30 percent female, and

3 then there are some states it\'s almost 50/50. So

4 it\'s such a wide variance of participation.

5 MR. BOWLSBY: I think that\'s what

6 Graham was trying to get at with his amendment,

7 using some pre-determined \-- it wouldn\'t be state

8 by state, but some regional or feeder system.

9 You know, I don\'t know exactly how

10 it would be accomplished at a national

11 university that routinely draws student from all

12 50 states, and there are some of those.

13 But that would be something that the

14 Department of Education would have to pursue and

15 consider it, determine if it was viable at all.

16 MS. COOPER: Donna?

17 MS. de VARONA: This is going to be

18 short, Cynthia.

19 I think one the things we are

20 missing in this statistic, if you want to look

21 at it that way, are all the club programs that

22 women athletes participate in because the sport

98

1 isn\'t offered in the high school.

2 For instance, soccer, which has, you

3 know, 8 million young girls playing across the

4 country, so to use this as a standard, I think,

5 is flawed.

6 So that\'s why I have a problem with

7 the proposal.

8 MS. McGRAW: My concern is that all

9 these proposals deal with how to see Title IX at

10 the college level, and how do we measure it at

11 the high school level? We\'re going to go to the

12 middle schools to determine that?

13 I think we need to have an all-

14 encompassing idea that we can use at every

15 level.

16 MR. BOWLSBY: Well, I\'m comfortable

17 not having this as something we act upon and just

18 send it forward to the secretary as something

19 that ought to be considered.

20 I don\'t think it is necessarily an

21 option as a stand-alone venture. I think it\'s

22 just that \-- what Muffet just said is a real

99

1 good point: How do we measure at the

2 high-school level? How do we measure in the

3 feeder system?

4 It isn\'t just high school programs;

5 that\'s exactly right. I don\'t know that that\'s

6 something that\'s necessarily within the province

7 of this group to try and figure out. I think we

8 have to allow somebody else that\'s got more time

9 and staff to do it.

10 MS. SIMON: Why don\'t we vote on

11 that? Why don\'t we make a motion and vote on

12 that?

13 MS. COOPER: Okay. You made a

14 motion; I second it.

15 MS. SIMON: Good; terrific.

16 MS. COOPER: All in favor of

17 recommendation 14 just to pass along with the

18 amendment that Graham made?

19 MS. FOUDY: It is either we are

20 passing it along as a recommendation as it

21 stands, and we have to take ownership of it; it

22 can\'t just be oh, here are a few we\'re going to

100

1 pass along everything.

2 MS. COOPER: We\'re going to vote on

3 passing it along as a recommendation.

4 MR. LELAND: Yeah, I think what she

5 is suggesting was something that Percy had

6 suggested, correct? Rita \-- I want to call her

7 Rita, on days like today.

8 MS. COOPER: So we are voting on it

9 as recommendation 14.

10 MR. LELAND: I don\'t see a way that

11 we could just pass this along without acting on

12 it. I don\'t know what \-- I don\'t know how that

13 looks. I don\'t know what that looks like. It is

14 really before us as a recommendation. It\'s not

15 \-- I think we have all agreed it doesn\'t have to

16 be mutually exclusive. It\'s not \-- we\'re not

17 telling the secretary that they have to do; we\'re

18 just suggesting this as an option to be looked

19 at.

20 So I think it is still before us.

21 So let\'s \--

22 Yeah, just quickly. The reason I

101

1 said that \-- in listening to Bob we are treating

2 these all as though they are equally weighted,

3 and hearing him, it sounded to me as though he\'s

4 saying, I\'m not that wedded to this, and then I

5 was really saying if that\'s the case then

6 perhaps it should be in the report, but not

7 necessarily carrying the same weight as other

8 recommendations that we are going to pass along.

9 That was the spirit in which I was suggesting

10 it.

11 MS. SIMON: I don\'t think you want to

12 withdraw it.

13 MR. BOWLSBY: That\'s exactly right.

14 I\'m more than comfortable withdrawing it, if

15 that\'s easier for the group.

16 MS. SIMON: Okay; do it, then.

17 MR. BOWLSBY: I just think there is

18 some meat in there that somewhere ought to be

19 considered.

20 MR. LELAND: But let me ask you a

21 question, then, and I guess we\'ll have to vote on

22 it, Bob.

102

1 Where, then, in the recommendations

2 do we deal with your interest in what you called

3 earlier the flawed entry assumption, you know,

4 about measure?

5 I saw this as a recommendation that

6 would be \-- give the secretary some instigation

7 or some momentum to look at the whole entry

8 level assumption that you\'ve been concerned

9 about.

10 I\'m not sure I\'m in favor of this

11 proposal myself, personally, so I\'m not trying

12 to keep it alive. I just want to accommodate

13 your interest. I don\'t know where else we are

14 going to be able to accommodate your interest

15 and vote on it.

16

17 MR. BOWLSBY: Well, remember, that

18 was the proposal that came out of being last on

19 the rotation.

20 But having said that, I think the

21 proposal of recommendation number 13 does some

22 of that and I guess we\'ll get into it as we

103

1 discuss Tom\'s proposal.

2 MR. LELAND: He\'s willing to withdraw

3 it. Are \-- do we need a vote to withdraw it

4 or \--

5 MR. SPANIER: I think we should vite

6 it down because a lot of \-- we don\'t want to be

7 in that position with other recommendations,

8 because many of them emerged from discussion with

9 several people contributing, even though this

10 one \--

11 MR. DE FILIPPO: Okay; I\'d agree with

12 that. Is Bob going \-- are you going to withdraw

13 that, make a motion to withdraw?

14 MR. LELAND: Let\'s vote it up or

15 down. The technique we\'ll use is to vote it up

16 or down. Are we ready to vote on recommendation

17 14?

18

19 MR. LELAND: Okay. All those in

20 favor of recommendation 14, raise your hand.

21 All those opposed?

22 MS. PRICE: I\'m not counting; 14 to

104

1 zero.

2 MR. LELAND: Do you want me to do

3 recommendation 15?

4 MS. COOPER: Go ahead.

5 Fourteen to zero.

6 MR. LELAND: Okay, we\'re now into

7 15A, which we understand Tom is going to amend.

8 MR. GRIFFITH: Right.

9 First of all, I want to thank Donna

10 for her support in allowing me to do this, and I

11 think that says something, and I\'m going to

12 speak to the media for a second.

13 I\'ve been reading some reports that

14 have talked about acrimony. Now, the acrimony

15 that I see is going on outside the commission. I

16 want to commend my fellow commissioners. I

17 think Donna and I probably disagree on the value

18 of substantial proportionality, but I think she

19 know that I don\'t question her motives and I

20 don\'t think she questions mine.

21 I wish that could be said for those

22 who are agitating on the outside. I wish people

105

1 could approach this as an issue about which

2 reasonable people can differ.

3 Our goals are all the same, and

4 that\'s to increase opportunities in athletics,

5 and as I in the San Diego April meeting, I

6 bitterly resent the suggestion by those who have

7 spoken to the media long and loud about this,

8 that somehow those who disagree with their

9 position on the proportionality issue are driven

10 by some venal or malignant motives.

11 So Donna, thank you very much. I

12 appreciate it, and I imagine you\'re going to

13 vote against it, but thanks.

14 First of all, in response to \-- in

15 further response to the big question that Cary

16 asked to my earlier speech about, well, what do

17 you do with the fact that you have eight circuit

18 courts who\'ve upheld substantial

19 proportionality?

20 Let me give a more fulsome response

21 to that.

22 First of all \-- I said this before

106

1 and I got some titters from the crowd \-- I for

2 one don\'t believe in the infallibility of the

3 judiciary. Maybe some do; I don\'t.

4 My arguments for that are two cases,

5 Dredd Scott and plus E. B. Ferguson. Those were

6 cases where courts decided something and we all

7 agreed they\'re wrong.

8 The courts here weren\'t saying that

9 the use of numeric formulas was required by

10 Title IX. All they were saying was that that

11 was a reasonable interpretation among many

12 interpretations the Department of Education

13 could have used.

14 They said it was reasonable, not

15 required. Now I disagree with that. I think

16 they were wrong, given the plain language of the

17 statute.

18 Numeric formulas are unfair. I

19 think each of us feels that, and my guess is

20 each of the athletic directors here know that.

21 And they know that from personal experience.

22 They know that and they associate that concept

107

1 with names and individuals who are treated

2 unfairly because they were on the wrong side of

3 the numeric formula.

4 We have a chance to do the right

5 thing here, and I urge you to vote against the

6 perpetuation of this fundamentally unfair way of

7 going about remedying discrimination.

8 Numeric formulas are wrong, so

9 here\'s \-- I would move to strike recommendation

10 15 and amend it as follows:

11 The Office of Civil Rights should

12 not use numeric formulas to determine whether an

13 institution is in compliance with Title IX.

14 MR. REYNOLDS: Now, Tom, when you say

15 numeric formulas, would you include the use of an

16 interest survey?

17 MR. GRIFFITH: I think interest

18 surveys are fine. I\'m not certain \-- what would

19 be the connection between the two?

20 MR. REYNOLDS: Okay. Because when I

21 listen to you, it is not clear to me that you

22 want to get rid of the proportionality standards

108

1 under all circumstances or whether, if it was

2 amended, and the fix that I\'m thinking about is

3 tying proportionality to quantified interests

4 through the use of surveys.

5 MR. GRIFFITH: I think that\'s

6 entirely legitimate, if we can determine what the

7 interests and abilities of the student body

8 population is through the types of surveys that

9 Rita is discussing.

10 Then I think it\'s entirely

11 appropriate to use that to determine whether

12 those interest and needs are being met.

13 MS. FOUDY: Tom, if you don\'t have

14 any quantifiable goal in this and the goal of

15 Title IX is to prevent discrimination, then how,

16 in effect, do you do that without some measure?

17 MR. GRIFFITH: Well, you look for

18 equality of opportunities under equal

19 opportunities. Has someone been discriminated

20 against because of their gender? What I

21 understand that to mean is, has a decision been

22 made arbitrarily that someone is not allowed an

109

1 opportunity because of their gender.

2 So the practical impact of this is

3 \-- the chair has been good at urging us to be

4 practical \-- I think the practical impact of

5 this means that you would go largely to the

6 interest and needs of prong, that it\'s incumbent

7 upon schools, in an effort to provide equal

8 opportunity, to determine what the interests,

9 what the abilities are of the population.

10 MR. LELAND: Debbie?

11 MS. YOW: So I think that

12 philosophically there would be a number of people

13 in the room who would agree with you, as you

14 referred to being on the wrong side of the

15 numerical formulas, which by the way is why I

16 suggested 50/50.

17 But never mind that right now.

18 But the problem with it is this:

19 There is a major trust issue.

20 Those of us who have come through

21 the rank in athletics, first as athletes,

22 coaches, administrators, know that even when we

110

1 can identify discrimination, the process you

2 have to go through to ever, ever remedy that is

3 so cumbersome, takes so much time and there is

4 so many problems, is fraught with problems just

5 to get those things taken care of, that when we

6 look at in the aggregate and think about what

7 it\'s really been like, we gravitate toward \-- or

8 I do; maybe I just should say I gravitate toward

9 a numerical formula. So that I know what the

10 target is, I know if I don\'t hit the target then

11 I have a problem.

12 And I also guarantee, via that

13 numerical formula, that that\'s where women will

14 be. You can\'t do less than that and get away

15 with it.

16 Because it\'s so readily \-- you can

17 see it. You know it when you see it.

18 So it\'s just a trust issue.

19 MR. GRIFFITH: I understand.

20 There is no question \-- and I don\'t

21 dispute that numeric formulas are more efficient

22 \-- they are very efficient \-- but I don\'t think

111

1 efficiency is the value here. Fairness is the

2 value here. Equality of opportunity is the

3 value here.

4 And I think when we slip into

5 numeric formulas we compromise fairness for

6 efficiency, and I do not think that is something

7 that we should allow to continue.

8 MR. LELAND: Let me call on myself

9 here, Ted.

10 I will vote against this. I\'m

11 concerned that right now, with numerical

12 numbers, it is sort of like the institution has

13 to prove they are innocent, and I think there\'s

14 some complications with that and some of us are

15 uncomfortable with that.

16 The problem I have with no

17 numericals, it seems to me we put the burden of

18 proof on the student. Now they have to prove

19 they\'ve been wronged, and I think that\'s \-- I

20 would rather have the a burden on us to deal

21 with a messy, complicated formula than put the

22 burden on female students who come to school and

112

1 all they want to do is play their sport and go

2 to school, and all of a sudden they are involved

3 in this set of issues.

4 So I\'m also for the \-- ditto, for

5 some of the reasons that Debbie talked about in

6 terms of, we love targets and I like to get the

7 target. So I\'m going to vote against this here.

8 MR. GRIFFITH: I think Gerry\'s point

9 perhaps addresses that, addresses that, that

10 numeric values would be used but they would be

11 used once you could determine what the interests

12 and needs are.

13 I think that\'s \-- again, as I said,

14 that\'s the practical impact of this, is you move

15 to putting a lot of emphasis on interests and

16 needs.

17 MR. LELAND: Okay. Julie?

18 MS. FOUDY: Tom, one of the issues I

19 have with surveys, if that\'s going to be your

20 basis for determining whether they\'re meeting the

21 interests or whether they\'re not discriminating,

22 is if you were to take a survey back when Title

113

1 IX was passed in the early \'70\'s on how many

2 women were interested in sports, you know, you

3 would have gotten maybe eight or nine percent.

4 And in essence, if you took those

5 surveys and then locked them into numbers, we

6 would still be at eight or nine percent.

7 MR. GRIFFITH: Sure.

8 MS. FOUDY: And so that is the

9 problem with surveys, is, you are freezing

10 discrimination into place. And so to base your

11 system for athletics at every level on interest

12 surveys is fundamentally flawed.

13 MS. SIMON: Julie, you\'re not locked

14 in. You do continue a survey on a regular basis.

15 So of course you don\'t use a one-time survey. Of

16 course we recognize that things change, attitudes

17 change, and so on.

18 It\'s continuous surveys that are

19 important.

20 MR. DE FILIPPO: Mr. Chair, I too am

21 against this for reasons that you spoke about and

22 Debbie, but it \-- would it be in line to call the

114

1 question and end this debate and let\'s vote?

2 I think we\'ve heard from all sides.

3 MR. LELAND: Okay; any other \--

4 any \-- questions been called? Any objections?

5 We now have our tiebreaker here.

6 Okay, we have before us a substitute

7 motion 15. Does it need to be read again? Do

8 you think everybody understands it? Do you need

9 to hear this?

10 MR. GRIFFITH: It\'s a motion to

11 strike recommendation 15 and replace it with the

12 following language:

13 The Office of Civil Rights should

14 not use numeric formulas to determine whether an

15 institution is in compliance with Title IX.

16 MS. KEEGAN: I\'m sorry, Mr. Chairman.

17 I\'ve been talking to people sort of about it.

18 No, we can go ahead; we can go ahead and vote.

19 MR. LELAND: Are you sure?

20 MS. KEEGAN: Yeah, I\'m sure.

21 MR. LELAND: Okay; let\'s vote.

22 All those in favor of the substitute

115

1 motion 15 that Tom just read, raise your hand.

2 MS. PRICE: Four.

3 MR. LELAND: Opposed?

4 Eleven opposed; four for.

5 MS. PRICE: Eleven opposed; four for.

6 MS. COOPER: It\'s defeated; we\'ll now

7 take a break.

8 I would say to the commissioners,

9 though, if I thought having an emotional break

10 down would get us moving like it did, I would

11 have tried that at an earlier meeting.

12 MS. SIMON: Ted, Ted.

13 MR. LELAND: Yes.

14 MS. SIMON: I\'ve lost every time I\'ve

15 made this suggestion, but I leave here, no matter

16 what happens, in 45 minutes.

17 MR. LELAND: Do you want to just

18 continue on?

19 MS. SIMON: No, but could we probably

20 move and look at the interest survey

21 recommendations 19 and 20.

22 MR. LELAND: That\'s a sort of a

116

1 motion to reorder so that Rita has a chance to

2 talk about what\'s she\'s interested? I\'m fine

3 with that.

4 Let\'s do it this way, though. If

5 someone has to leave for a break, get our

6 attention and we\'ll try to make sure you\'re back

7 for the vote, okay?

8 Because I \-- the other day, I guess

9 I want to say it might be okay if someone misses

10 a little bit of the debate to take care of

11 biology, but if you have \-- let\'s not miss any

12 votes. So let us know when you are gone.

13 We are on number \-- Rita, was it 18

14 first?

15 MS. SIMON: No, it was 19 and 20.

16 MS. COOPER: 19 and 20.

17 MS. de VARONA: I am going to excuse

18 myself.

19 MR. LELAND: You don\'t have to

20 publicly announce it; just give us \--

21 Do you want me to read this?

22 MS. COOPER: Oh, I\'ll read it.

117

1 Recommendation 19 \-- now am I

2 getting the right \-- are we putting 19 and 20

3 together, or are we \--

4 MR. LELAND: No; do them one at a

5 time.

6 MS. COOPER: Okay; we\'re doing them

7 one at a time.

8 Recommendation 19, page 39, line 42:

9 The Office for Civil Rights should

10 explore the possibility of allowing institutions

11 to conduct scientifically-based surveys to

12 determine the actual athletic interest of its

13 student body on a continual basis.

14 The number of interested students

15 would then become the measure for determining

16 whether an institution is in compliance with the

17 proportionality requirement of the first part of

18 the three-part test, i.e., if 50 percent of

19 interested students are female, 50 percent of

20 athletic participation opportunities would need

21 to be provided for females.

22 MS. SIMON: Cynthia, I\'m going to

118

1 vote against this, I think, not because I\'m not

2 interested in and don\'t want the interest

3 surveys, but I think the interest surveys have to

4 be used as one measure of the granting of varsity

5 scholarships that, as Debbie pointed out awhile

6 back, you also have to look at skills, competence

7 and so forth.

8 And I would say that we should use

9 the interest surveys as a way of finding out the

10 relative interest and abilities of \-- and then

11 also look at abilities of the male and female

12 students.

13 I also urge that on a continuous

14 basis, we could see change in the development of

15 interest, and my guess is the surveys themselves

16 will stimulate interest on the part of both men

17 and women to consider varsity sports.

18 MS. COOPER: Well, I do agree that

19 this recommendation should include ability and

20 athletic interest and ability of its student

21 body, I do agree this recommendation should

22 include that.

119

1 But I just can\'t imagine us assuming

2 whereas at other times we don\'t want to assume.

3 You know, i.e., the high school situation, we

4 don\'t want to assume that the feeder system, et

5 cetera, et cetera.

6 Here we want to assume. We want to

7 assume that this student body, the undergraduate

8 enrollment is the target and we should measure

9 the interest by just assuming that they, you

10 know, they want to participate in sports,

11 especially in varsity sports.

12 I just might add, most varsity

13 athletes are recruited, whether they\'re walk-ons

14 or not. They know what they are going to

15 college for.

16 Just as academic students that

17 receive academic scholarships, you know, they

18 know why they are going to that school.

19 MS. SIMON: Well, could we then,

20 Cynthia, fold in recommendation 20 into

21 recommendation 19. Recommendation 20, as it\'s

22 been revised, is the Office of Civil Rights

120

1 should allow \-- and I would say encourage \--

2 institutions to conduct continuous interest

3 surveys on a regular basis as a way of allowing

4 schools to accurately predict and reflect men\'s

5 and women\'s interest in athletics over time and

6 also to stimulate student interest in varsity

7 sports.

8 Could we just \-- I don\'t see why we

9 need these two separate proposals. I think if

10 we fold 20 in with 19, we\'ve got the

11 recommendation on the importance of regular,

12 continuous surveys by the institutions.

13 MR. LELAND: I think, Rita, one

14 difference I would say is proposal 19 is

15 specifically \-- sort of pushes someone to \-- the

16 Department of Education to consider interest

17 surveys as they relate to the proportionality

18 formulas. That\'s something I\'m not comfortable

19 with.

20 Recommendation 20 talks about

21 meeting the three-part test, and I\'m comfortable

22 saying that somewhere in thee-part test interest

121

1 surveys might work. I wouldn\'t see it for

2 proportionality; that\'s my \-\--

3 MS. SIMON: Cynthia, would you \-- I

4 agree with Ted. Would you consider it for all

5 three prongs?

6 MS. COOPER: Sure; sure. But no \-- I

7 agree with Ted in the sense that they are two

8 separate things.

9 MR. LELAND: Yeah.

10 MS. COOPER: I\'m saying the

11 undergraduate population, that you need to survey

12 them to say, to ask them if they are interested

13 in SPORTS.

14 And I think you\'re saying in 20 that

15 surveys needs to be used as part of, you know,

16 the third prong of the three-part test.

17 MS. SIMON: No, I\'m saying it should

18 be used in all three prongs.

19 MS. COOPER: There you have it.

20 MR. LELAND: Okay. So I think there

21 is a difference between the two proposals, 19 and

22 20.

122

1 Any other discussion on 19 that\'s

2 before us now? Cary, and then Tom?

3 MS. GROTH: I disagree. I think

4 surveys, again, belong in prong three. It

5 already allows schools to make the showing with

6 the surveys, and to import it into prong one

7 would violate, in my opinion, basic civil rights

8 principles by requiring women that they were

9 entitled to equal opportunity before they can be

10 awarded it.

11 And I want to cite an example, what

12 we were told in Chicago by the Executive

13 Director of staff of the Illinois State High

14 School Association.

15 When Illinois decided to add women\'s

16 volleyball or girl\'s volleyball as a state

17 championship opportunity, after that decision

18 was made, after the opportunity was afforded,

19 over 400 high schools in the State of Illinois

20 then offered volleyball as a sport.

21 Had a survey been taken earlier that

22 year, I\'m not so sure that survey would have

123

1 provided the results such offering the sport of

2 volleyball, and then those individual schools

3 offering that sport. I\'m not so sure that we

4 can rely just on surveys.

5 MR. LELAND: Okay. Other discussion?

6 Julie?

7 MS. SIMON: We don\'t have to rely

8 just on surveys.

9 MR. LELAND: And we come up with the

10 question of \--

11 MR. GRIFFITH: I\'m sorry; you may

12 have said this before and I just missed it.

13 How does the survey work on prong

14 one? I don\'t \--

15 MS. SIMON: I\'m saying it should be

16 used to replace prong one.

17 MR. GRIFFITH: I see; okay.

18 MS. COOPER: I\'m not saying that it

19 should replace prong one; I\'m saying that right

20 now, OCR has been assuming that the undergraduate

21 enrollment \-- they said if it\'s 56 to 44, then

22 56 percent women \-- we\'re just assuming that they

124

1 are interested in playing varsity sports.

2 And I\'m saying use a survey to find

3 out if they are interested and if they have

4 ability to participate in varsity sports.

5 MS. SIMON: I agree with that,

6 Cynthia.

7 MR. LELAND: Yeah, and the language

8 police reflect that.

9 MS. de VARONA: Cynthia, question:

10 MS. COOPER: Yes.

11 MS. de VARONA: When you ask for

12 surveys, are you going to survey the men, too, on

13 campus?

14 MS. COOPER: Absolutely; you survey

15 everyone.

16 MS. FOUDY: I just want to comment \--

17 MR. LELAND: A couple more questions;

18 then we can call the question.

19 MS. FOUDY: I wish we lived in a

20 world where you could say that opportunities have

21 been created from the time you were born, for

22 both men and women.

125

1 I wish you could say that we live in

2 a world where opportunities were given equally,

3 at least offered; whether they were taken or

4 not, offered equally between men and women when

5 you were born.

6 But unfortunately, that is not the

7 history that we are dealing with, and to try and

8 then say that we would \-- to try and recommend

9 to the secretary to use surveys instead of

10 proportionality in prong one would be in essence

11 saying to, if he proposed it to the Office of

12 Civil Rights, we want you to use an instrument

13 that every court has found to only freeze

14 discrimination into place, to use that

15 instrument against Title IX.

16 The irony in it is \--

17 MS. COOPER: I\'m not using any

18 instrument against Title IX, first of all.

19 And we\'re not talking about the law

20 of Title IX. The law of Title IX stays as is.

21 We are talking about the three-prong

22 test and we\'re talking about, you know, I don\'t

126

1 understand why everyone is so afraid to ask a

2 very simple question: Do you want to play

3 sports?

4 MS. FOUDY: Because, Cynthia \--

5 MS. COOPER: No, wait; no, wait; no,

6 wait.

7 Do you want to play sports? That\'s

8 pretty simple; it is pretty basic. Are you

9 attending this university to participate in

10 sports? If you are not, why should you then be

11 counted as part of the proportionality prong and

12 \-- I just think you complicate \--

13 MS. FOUDY: Let\'s not forget that

14 Title IX applies to more than just colleges.

15 So now when you ask a seven-year-old

16 whether she\'s interested in playing sports, at

17 seven years old, if says no, then you are

18 assuming then that your numbers are tied into

19 that.

20 And if you looked at \-- I mean,

21 let\'s take it if you looked at \-- just to make

22 an analogy; I\'ll only make one \-- if you looked

127

1 at airline pilots, 3 percent, I just read, are

2 Black, right?

3 So is that then going to say that

4 Blacks are afraid of flying because only 3

5 percent are pilots?

6 MS. COOPER: They may very well be

7 afraid of flying, but ask them: Are they afraid

8 of flying?

9 You don\'t just assume by the

10 percentages that they are afraid of flying.

11 They might just not want to be pilots. So you

12 ask them.

13 MR. LELAND: I mean, could I call the

14 question on \--

15 Okay; let\'s go here first and then

16 we\'ll do Tom.

17 MR. REYNOLDS: Cynthia brings up a

18 very important point. It makes no sense to

19 assume that \-- why rely on an assumption when you

20 have the capability Of assessing that assumption

21 to see if it is accurate. It makes no sense.

22 There is nothing \--

128

1 MR. GRIFFITH: Furthermore, the

2 assumption you are relying on is one you are

3 forbidden to rely on. You are assuming that

4 because of someone\'s gender, that they have

5 certain interests.

6 Well, that\'s exactly the evil that

7 Title IX was designed to combat. That\'s sort of

8 stereotyping, and it is just ironic that we are

9 now using that same stereotyping for laudable

10 goals, laudable goals.

11 But no question, the goals are

12 laudable, but the means are strictly forbidden

13 to do so.

14 Now, if there were arguments that

15 dealt with the methodology, if there were

16 reasons why surveys were inappropriate

17 instruments to use to assess the interest of men

18 and women on campuses, then we should not do it.

19 But I haven\'t heard any of those

20 arguments yet.

21 MR. LELAND: Okay. A couple more and

22 then we\'ll end \-- Lisa and then \--

129

1 MS. KEEGAN: I just want to speak in

2 favor of Cynthia\'s proposal and what she just

3 said, and also, Rita\'s point about surveys over

4 time.

5 Time has changed us incredibly. It

6 seems to me you would want the information. At

7 seven years old, Annie, my baby, was not playing

8 sports. Now, quite frankly, ladies and

9 gentlemen, she is the best goalkeeper in

10 America.

11 She would have said no, but I

12 wouldn\'t have been interested in the things I\'m

13 interested in later on. It would be fascinating

14 to know that young men and women, is it still

15 evolving? Is there a point at which it goes

16 static?

17 Is \-- does it \-- at some campuses

18 because there is greater marketing of sports,

19 does it go up?

20 I got to tell you guys, it really

21 bothers me to assume that the be-all and end-all

22 of the university experience and what Title IX

130

1 is meant to do is to enhance varsity sports.

2 Are we going to do this in

3 engineering? Are we going to make sure there\'s

4 50 percent of, a reflective proportion of women

5 in engineering?

6 How about in math, science? How

7 about we start dis-aggregating and make sure

8 that every group is equally represented in

9 perspective to how they are in the university.

10 Title IX is not solely about sports,

11 and I just think we need to be consistent in

12 discovering what it is that young men and women

13 want about sports and not assuming that

14 everybody wants it and it is just about where we

15 put the barrier.

16 MS. FOUDY: I don\'t disagree with

17 you, Rita, that there\'s a use for surveys. But I

18 believe we already have in prong 3.

19 If you are not meeting

20 proportionality, you have a right to show it in

21 prong 3, why you\'re not meeting it, and there is

22 where surveys can be very valuable.

131

1 And they could probably use some

2 feedback in how they could be used more

3 effectively.

4 But to use it to tie in your numbers

5 initially is where I have a problem. But there

6 is a purpose for them, and that\'s why they are

7 used in prong three.

8 Because if you are not at

9 compliance, then you have a great way of showing

10 why not, and if you could show that it\'s not

11 through actions of discrimination through your

12 surveys, then you are in compliance for prong

13 three.

14 MS. SIMON: Julie, this doesn\'t

15 directly go to your point \-- I will in a minute

16 \-- but I just want to assure people if there\'s

17 any doubt or question about it, one of the few

18 things that social scientists and particularly

19 sociologists know how to do is to run surveys.

20 We really do know how surveys that

21 are impartial, that will provide you with valid

22 and reliable data.

132

1 So I think that, given an impartial

2 group like National Opinion Research Survey or

3 the center at the University of Chicago or Johns

4 Hopkins University has a survey research outfit

5 or individual sociologists could advise you \--

6 we know how to run surveys that will give you

7 valid and reliable data.

8 And the other thing \-- this is

9 partially in response to Julie \-- I\'m not saying

10 that we should use surveys on seven-year-olds.

11 I\'m saying that we should use the surveys for

12 people who are entering universities.

13 MR. LELAND: Okay. Let\'s \-- I think

14 people pretty well know how they are going to

15 vote on this. So let\'s keep the discussion

16 going, but Cary?

17 MS. GROTH: My comments were covered

18 by Julie\'s.

19 MR. LELAND: Julie and Rita? Do you

20 have any more?

21 MS. FOUDY: I was just going to

22 respond to that. I think that\'s wonderful and I

133

1 think we can use that in prong three, Rita, and

2 you could help them devise something that would

3 help show the interests in prong 3.

4 MS. de VARONA: I\'ll make it short.

5 I agree under prong three and I

6 agree with Rita\'s desire to conduct tests as

7 long \-- as well as Cynthia.

8 However, I think one thing we

9 haven\'t discussed in this assessment of

10 scientific research is that we also have to look

11 at how the school recruits athletes, women

12 athletes: What programs are available within

13 that context, if we are looking at interest?

14 How open was the university? What did they

15 offer? Where do they recruit from? What kind

16 of programs in coaching did they give, and what

17 kind of support?

18 Because then I think only interest,

19 only are you interested is not a valid measure.

20 MR. LELAND: Okay. Percy, and then

21 I \--

22 MR. BATES: I just wanted to move

134

1 that we close debate on this item.

2 MR. LELAND: Thank you, Percy.

3 Anybody disagree with the idea of coming to a

4 vote?

5 MS. SIMON: Ted, are we voting on 19

6 and 20 combined?

7 MR. LELAND: No, just 19.

8 MS. de VARONA: Could we move this

9 one as an amendment to 20? Could we vote on

10 that?

11 MR. LELAND: No, I think we decided

12 earlier that they\'re separate issues.

13 MS. de VARONA: I\'m sorry. I was in

14 the \-- I was on the phone.

15 MR. LELAND: Hand signals, Donna.

16 Okay. Proposal 19 is before us.

17 It\'s as written. No more discussion.

18 All those in favor of recommendation

19 19, raise your hand.

20 MS. PRICE: Seven in favor.

21 MR. LELAND: All those opposed?

22 MS. PRICE: Eight opposed.

135

1 MR. LELAND: Okay. It\'s defeated.

2 Now we\'re on to recommendation 20.

3 This is Rita again.

4 MS. SIMON: I think we can just vote

5 on it. I think we\'ve discussed these issues when

6 we were talking about 19. I suggest we just vote

7 on it.

8 MR. LELAND: Okay. Call for

9 question. Any concern about that? Go ahead.

10 MS. FOUDY: What if you amended it

11 for prong three? I mean, we\'ve agreed that we

12 need more education about prong three and we want

13 to strengthen prong three and give more weight to

14 two and three. So what if you amended it to

15 something that would educate institutions about

16 the use of interest surveys, specifically for

17 prong three?

18 MS. SIMON: I don\'t accept that as a

19 friendly amendment.

20 MR. SPANIER: Could I suggest a

21 slightly different amendment? That we say

22 demonstrating compliance with Title IX.

136

1 The three-part test is a construct

2 that has evolved and could very well change.

3 There could be a five-part test by the time we

4 are done with this \--

5 MS. SIMON: I agree; right.

6 MR. SPANIER: \-- and so I don\'t even

7 like the argument whether it\'s a prong one or

8 prong three thing.

9 MS. SIMON: Right; I agree with that.

10 I would accept that.

11 MR. LELAND: We are still on 20; it\'s

12 been amended. Yes?

13 MR. DE FILIPPO: I just wanted to

14 second that, because we said yesterday that we

15 need more clarity and definition in prongs 2 and

16 3. I mean, we made that clear and we wanted to

17 make it that the Office of Civil Rights would

18 give us at least three safe harbors, one, two and

19 three.

20 So Graham is exactly right: This

21 could change, and I would feel a lot more

22 comfortable in saying Title IX with how many

137

1 prongs that we are going to have? And I would

2 second that.

3 MR. LELAND: I don\'t think there is

4 an objection to it.

5 MS. SIMON: Fine.

6 MS. GROTH: I don\'t object to that,

7 as long as interest surveys are not tied to

8 proportionality.

9 MR. GRIFFITH: No. That restriction

10 is not in here.

11 MR. SPANIER: Let me just, you know,

12 say for clarity\'s sake.

13 Demonstrating compliance with Title

14 IX, I would substitute for the words three \--

15 and I would be happy to make that a formal

16 motion, if there\'s any \--

17 MR. LELAND: No, I think we are okay

18 with that, Graham. I think that substitution is

19 done. I just think \-- clarity here \--I think as

20 chair I have to agree with Tom that the

21 prohibition on using \-- there is no prohibition

22 in this proposal right here on using interest

138

1 surveys to relate to prong one.

2 I would say, however, that we just

3 didn\'t support one that specifically \-- a

4 recommendation that specifically asked for that,

5 so I think \-- you know, the way I\'m interpreting

6 this is that this wouldn\'t require that it be

7 used for prong one, but it would, somewhere down

8 the road, may allow for that.

9 We\'re not \-- we specifically didn\'t

10 support that initiative right before though, and

11 this is all public record. So that\'s where we

12 are.

13 MS. SIMON: Ted, you\'re the one that

14 said our recommendations don\'t have to be

15 consistent.

16 MR. LELAND: That\'s right \-- so I

17 think \-- that\'s where we are. Someone may want

18 to amend this and say I\'d like specifically to

19 prohibit this from being in the three-prong test;

20 but right now it\'s not \-- it\'s not in there.

21 Yes?

22 MS. de VARONA: I really want to vote

139

1 for this, but, you know, I\'ve learned a lot by

2 going this Title IX exercise and the three-part

3 test.

4 And we\'ve all talked about

5 strengthening the other two parts, and the prong

6 that talks about needs and interests does

7 support interest surveys; it always does.

8 But I think the Office of Civil

9 Rights has to perfect that system and come up

10 with better tests, more comprehensive tests.

11 So I want to vote for it but I can\'t

12 vote for it if it is just blanket, because we\'ve

13 already had that in the guidelines; we already

14 have interest surveys.

15 MR. LELAND: I understand.

16 MS. FOUDY: Just a point: The

17 rationale under it talks about the third part of

18 the three-part test twice, so are we saying now

19 that it\'s not \-- it doesn\'t necessarily say prong

20 three in the recommendation, but now we are

21 saying that it\'s going to be for all three

22 prongs.

140

1 MR. LELAND: It could be. It doesn\'t

2 have to be; it could be.

3 MS. FOUDY: I would feel more

4 comfortable if we put something specifically in

5 that first \-- the third test, the test three,

6 prong three.

7 MR. LELAND: Okay. So you want to

8 put something in there that says it relates only

9 \-- demonstrates compliance with Title IX, prong

10 three?

11 MS. FOUDY: We need an amendment to

12 that, right?

13 MR. LELAND: We need an amendment,

14 yean, don\'t you think? I mean, to me this is an

15 issue that we ought to \--

16 MS. SIMON: We have to vote on that

17 because I don\'t accept that as a friendly

18 amendment.

19 MR. LELAND: Correct.

20 MR. BATES: Was that a motion?

21 Because I would second the amendment.

22 MS. FOUDY: Yes, but can we get the

141

1 wording right, so that we know what we are voting

2 on?

3 MR. LELAND: Yes, do you want to give

4 us that?

5 MS. FOUDY: I have something to the

6 effect of the Office of Civil Rights, because

7 again, the point is that we are going to

8 strengthen prong three.

9 Should educate institutions about

10 the interest surveys as a way of demonstrating

11 compliance with prong three.

12 MS. YOW: And I want to add to what

13 Julie is saying, respond to Donna.

14 In view what the differences and the

15 value is, if you add her sentence about the

16 education part and you look at sentence two,

17 where you \-- where we asked the Office to

18 specify criteria necessary for conducting a

19 survey in a way that\'s clear and understandable,

20 I think there\'s some value there, too.

21 MR. BATES: I second that.

22 MR. LELAND: Okay. We now have \--

142

1 before us, we have a proposed amendment, right,

2 for recommendation 20.

3 Do you want to read it again, Julie?

4 Read it again, please?

5 MS. FOUDY: The Office of Civil

6 Rights should educate institutions about the

7 permissible use of interest surveys as a way of

8 demonstrating compliance with prong three.

9 MR. LELAND: That\'s a substitute.

10 MR. SPANIER: I\'m going to vote for

11 the motion, but against the amendment because I

12 just see it as too limiting.

13 I believe that there is an important

14 function for surveys, because information is

15 good. Data are good and helpful to achieving

16 objectives, and I\'ve always been frustrated with

17 the assumption of a lot of folks that we will be

18 unalterably wedded to this particular three-part

19 test for eternity.

20 Part two will have to disappear at

21 some point, in my opinion, sooner rather than

22 later, we hope.

143

1 So to say that surveys can only be

2 helpful and to water it down by saying educating

3 people with regard to part three, as we

4 currently know it, it just seems too limiting to

5 me and it \-- it downgrades the possibility that

6 getting even better information than we have

7 today could help us achieve our goals here.

8 So I will vote for this no matter

9 how it turns out. I just don\'t think this

10 amendment is a good amendment.

11 MS. SIMON: I very much agree with

12 that. I think that we shouldn\'t be afraid of

13 data. We should seek it out and use it as much

14 as possible.

15 And of course it will be used for

16 part three or part six or how many other prongs

17 we may end up having at some point. It should

18 be used to help implement Title IX.

19 So I hope you vote for the

20 recommendation and not for the amendment.

21 MR. LELAND: We are still discussing

22 the amendment. Cary?

144

1 MS. GROTH: My concern once again is

2 that down the road it may be tied to

3 proportionality.

4 MS. YOW: I hate to sound not with

5 it, but I know there is a fear factor and I\'m \--

6 I can\'t decide how to vote because I don\'t

7 understand what the fear factor is. Cary, help

8 me. The three versus the one, and \--

9 MS. GROTH: Well, I think we are

10 getting back to the previous recommendation. I

11 mean, if we keep it open-ended \-- and I would

12 agree with Graham.

13 Right now it is in prong three. If

14 we rename that prong C or whatever we do down

15 the road or the Department of Education, as long

16 as it is not tied in to proportionalities, that

17 interest surveys then dictate the percentages

18 that institutions need to comply with,

19 proportionality-wise.

20 And it goes back, again, to the

21 recommendation we just voted down.

22 MS. SIMON: Let\'s vote.

145

1 MR. LELAND: Okay. Were the

2 amendments before us now? Does anybody need

3 Julie to read it again? I think not?

4 Okay. All those in favor of Julie\'s

5 amendment to recommendation 20, raise your

6 hands.

7 MS. PRICE: Six.

8 MR. LELAND: All those opposed?

9 MS. PRICE: Nine.

10 MR. LELAND: Okay. The \-- it is

11 defeated. The recommendation as amended by

12 Graham earlier is now before us. Is there any

13 need for more discussion?

14 Okay. All those in favor of

15 recommendation 20 as amended, raise your hand.

16 MS. PRICE: Ten.

17 MR. LELAND: All those opposed?

18 MS. PRICE: Five.

19 MR. LELAND: Okay; it passes as

20 amended.

21 Move back now to 15, proposal 15B,

22 which is on page 38, line 32, and my

146

1 understanding is we amended this earlier to, in

2 effect, say if substantial proportionality is

3 retained as a way of complying with Title IX,

4 the Office of Civil Rights should clarify the

5 meaning of substantial proportionality, but

6 leave the appropriate, the permissible as they

7 are presently interpreted.

8 Is that the right way to say it?

9 Probably not the right way to say it but that \--

10 is that what you meant?

11 So in effect we\'ve changed it to,

12 from allowing a 3 percent variance on

13 substantial proportionality to saying that the

14 variance would remain as it is now in the \'96

15 letter, I guess.

16 A VOICE: Ted, would you repeat that,

17 please? I don\'t understand.

18 MR. LELAND: I don\'t, either.

19 In the ten-minute discussion period

20 we had, Muffet indicated that she was \--

21 regretfully had been assigned this as the

22 author, so we\'ll say for whatever reason we

147

1 attached her name to this and she suggested that

2 we change the \-- change it in way that removed

3 the 3 percent relative ratio, and I would like

4 participation to support the status quo. Did

5 you do \--

6 MS. McGRAW: I think what I mean is,

7 can we just keep it the same? Can we vote it

8 on \-- can we keep it the same?

9 MR. LELAND: That\'s what I meant; I

10 think that\'s what I\'m trying to say.

11 MR. DE FILIPPO: So what would the

12 percentage be?

13 MR. LELAND: The same as it is now;

14 not the same as it is on paper.

15 MR. SPANIER: How would the wording

16 be changed?

17 MR. LELAND: Could somebody read us

18 the \--

19 MR. SPANIER: Instead of five

20 percent, what \-- what do the words say?

21 MS. McGRAW: Leave prong one alone?

22 I don\'t know. That\'s what I mean; I don\'t know.

148

1 A VOICE: We should vote on it and

2 have them mutually exclusive.

3 MR. LELAND: I guess we could reword

4 this to say if substantial force values are

5 retained, it will remain as presently

6 interpreted, or something, I guess.

7 MS. de VARONA: And we direct the

8 Office of Civil Rights to inform and educate our

9 schools as to how they can comply with all three.

10 It\'s elsewhere.

11 MR. LELAND: It is an amendment to

12 the former proposal, Gene.

13 I mean, we\'re \-- on second thought,

14 the people didn\'t want to support the five

15 person variance and they would rather substitute

16 for that what we presently have.

17 MS. YOW: Is what we presently have

18 plus or minus one percentage point?

19 MS. GROTH: No, no that\'s not true.

20 That\'s not true. What we presently have is the

21 \'96 interpretation, and they give clear examples

22 of a 1 percent variance, a 2 percent variance and

149

1 a 5 percent variance.

2 And I think, Debbie, you just said

3 something that has been a concern for all of us

4 all across the country throughout this whole

5 process, is there\'s not a clear understanding of

6 part one as it\'s stated in the 1996

7 interpretations.

8 The one percent keeps coming up; I

9 agree with you. But they give us concrete

10 examples of a 1, 2 and 5 percent.

11 MS. YOW: I mean, we\'re not handing

12 them out here, but can I have one of those,

13 please?

14 MR. DE FILIPPO: You know, we have

15 Jerry Reynolds right here, Mr. Chairman. He

16 ought to be able to answer what it is. He deals

17 with it on a day-by-day basis.

18 MR. LELAND: Okay; that\'s what you

19 get for napping. Can someone give me the OCR

20 question once again?

21 MS. de VARONA: What is the

22 percentage \-- in Title IX?

150

1 MR. REYNOLDS: Oh, it\'s actually not

2 a percentage. The example that\'s given,

3 basically, you have to count the number of the

4 underrepresented sex, and if that number can

5 field a team, then you are out of compliance, and

6 if you don\'t have enough individuals to make up a

7 team, then you are in compliance.

8 So it\'s not a percentage.

9 MS. de VARONA: But isn\'t there a

10 range of variance where you could still comply

11 with prong one, arrange it with \-- given in these

12 examples from one to five percent, depending on

13 the institution and the circumstances so there\'s

14 flexibility and there\'s proportionality?

15 MR. REYNOLDS: There\'s flexibility.

16 Whether it is enough flexibility to constitute

17 substantial proportionality or strict

18 proportionality is another matter.

19 And that\'s for, again, percentages,

20 I do know that some people, as a rule of thumb,

21 use three percent. I also know that some people

22 use one percent.

151

1 But if you are talking about what\'s

2 in the letter, it is not a percentage; it\'s not

3 a percentage. If you follow the instructions,

4 it\'s not a percentage.

5 MS. GROTH: There is not a set

6 percentage. It\'s based on institutional basis. I

7 mean, per institution.

8 So you are absolutely right; there\'s

9 not a set percentage. But you have the

10 flexibility within prong one \-- not much, but it

11 gives examples of that.

12 It also provides the larger schools

13 and the smaller \-- there is a difference, and in

14 our recommendations when we just put out a flat

15 five percent or three percent, it doesn\'t take

16 into account the smaller school situations or

17 the larger school issues that we deal with,

18 whereas the current prong one does do that.

19 MR. LELAND: Let me ask a procedure

20 question: Does anybody want to support what

21 we\'re trying to figure out here?

22 What I worry about is, we\'re going

152

1 to address this thing for the next 45 minutes

2 and then nobody is going to be in favor of it.

3 Do we want to have something that

4 says, you know, support the status quo? Okay.

5 Then are we condemning ourselves to years of

6 confusion, here?

7 A VOICE: I would second that.

8 MR. SPANIER: Yeah, I am, at least.

9 I think that\'s the problem, that just \-- there

10 aren\'t very many people who know more about this

11 than we around this table who\'ve spent the last

12 eight months immersed in it, reading 8,000 pages

13 of materials, having detailed briefings from

14 attorneys.

15 What we are demonstrating is that

16 there is confusion out there about concepts

17 strict proportionality, substantial

18 proportionality, proportionality. Even you go

19 to that letter, one, three, five, what does it

20 all mean? Who qualifies for what?

21 It is confusing. A lot of people

22 have asked us to give some guidance about it.

153

1 Now, we could take the position and

2 just say, don\'t change a thing. Whatever messy

3 thing that people are confused about now is

4 there; let\'s keep it that way.

5 On the other hand, people would say,

6 well, just to come up with some new arbitrary

7 percentage is not right, either, because people

8 think you\'re up to mischief-making. Whatever

9 percentage you come up with, people multiply it

10 by how many have assumed that the worst-case

11 scenario and come up with a number and, you

12 know, things will happen.

13 I think this commission could be

14 helpful by giving some guidance on this entire

15 issue. Obviously the lawyers and the Department

16 of Education, the policymakers are going to have

17 to get real specific about it, and maybe we need

18 a better letter than the one from \'96 that

19 people are still confused about.

20 Now there are a lot of people who

21 don\'t think they\'re confused about it, but, you

22 know, there are not ones in the Office of Civil

154

1 Rights implementing the law. They are not the

2 athletic directors and presidents trying to

3 figure out what to do.

4 So I don\'t think we\'re being

5 responsible if we just say, don\'t change a

6 thing. Maybe we are not being responsible if we

7 pick an arbitrary number and vote that up or

8 down, but, you know, I would like to see us

9 support the reality that every school has

10 different circumstances, that we are shooting at

11 a moving target, that it is very hard \-- you

12 have athletic budgets of millions or even tens

13 of millions of dollars, in some cases, at stake

14 and we\'ve got to allow people to support Title

15 IX and manage their institutions properly at the

16 same time.

17 So there needs to be some

18 common-sense approach that includes flexibility,

19 and I don\'t know if that\'s a particular

20 percentage, but to say no flexibility, don\'t

21 change anything doesn\'t seem entirely

22 responsible, either.

155

1 MR. REYNOLDS: Well, what we could

2 do, and the path speaks to the right to use a

3 statistical method called Z test. It\'s in the

4 1990 investigators manual.

5 And the purpose of that statistical

6 test is to basically factor out

7 non-discriminatory factors that would explain

8 the variance.

9 We\'ve used it in the past and I know

10 that with respect to larger schools it is pretty

11 accurate. It won\'t give you a set percentage.

12 It will fluctuate, depending on a number of

13 factors. But that\'s an approach and it\'s been

14 used before.

15 MS. de VARONA: What would the

16 percentage of variance be under the Z formula?

17 MR. REYNOLDS: It fluctuates, so \--

18 MS. de VARONA: Could you give me a

19 range?

20 MR. REYNOLDS: Actually, no.

21 MS. de VARONA: Would it be much

22 different than the flexibility reflected in the

156

1 proportionality cases reflected in that document?

2 MR. REYNOLDS: I suspect that it

3 would probably go lower and higher, depending on

4 the factors, anywhere in between \--

5 MR. LELAND: Let me try something

6 here, since there is no proposal in front of us

7 dealing with the Z test. We are just going to

8 confuse everybody.

9 Let me try a way to word this in a

10 way that those people \-- and I think there is a

11 group that would like to see something like the

12 following:

13 If substantial proportionality is

14 retained as a way of complying with Title IX,

15 the Office of Civil Rights should clarify the

16 meaning of substantial proportionality. It

17 maintains the ratios present in the \'96 letter.

18 Not the current language, but the

19 current requirements contained in the \'96

20 letter.

21 That gets us to take care of a

22 little bit of what President Spanier talked

157

1 about in terms of, let\'s make it clear; even

2 though people say it\'s clear, it is not clear to

3 a lot of people. It may be clear to a few but

4 it\'s not clear to a lot.

5 And yet at the same time, people who

6 don\'t want to retreat from that standard, that

7 may confuse people but people are comfortable.

8 They won\'t take a step backwards in terms of

9 lowering the proportionality requirements.

10 That\'s a reasonable position for

11 people to take. I think people have taken it

12 around this table, and I think that\'s what

13 Muffet would like to see in this; is that

14 correct?

15 Let\'s talk about that for awhile.

16 MS. FOUDY: Can I just make one

17 comment on that?

18 In regards to Graham\'s comment on

19 allowing universities the flexibility, because

20 everyone does have different situations and

21 different athletic department sizes and a

22 different number of student athletes, et cetera,

158

1 and one of the confusions caused in prong one

2 is, case in point, that we don\'t know what the

3 percentage is: Is it plus or minus one percent;

4 is it plus or minus two percent?

5 And in the flexibility allowed by

6 the language of the clarification letter of

7 1996, which we could read from, the reason no

8 strict percentage is given is because each

9 university is different. You have different

10 enrollment rates; you have different dropout

11 rates; you have some of the factors that Debbie

12 mentioned in her recommendation 13.

13 And so that flexibility, in itself,

14 is given in that clarification letter, and

15 that\'s why you can\'t give a percentage, because

16 everyone\'s different.

17 If you have a junior college, that

18 has two teams, total, in their entire athletic

19 department, and they are going to come under

20 different percentage rates than at Stanford

21 University, who has almost all of their teams

22 fielded.

159

1 And so the flexibility is inherent

2 and what the problem is, is people don\'t

3 understand what that flexibility is.

4 And so maybe the issue is, we

5 clarify the flexibility. We add more examples.

6 We give more hypotheticals like they in Norma

7 Canty\'s letter of \'96 that said if you have

8 such-and-such university, you could have this,

9 in terms of flexibility, if you have this type

10 of university.

11 Because the issue isn\'t that it\'s

12 not flexible. The issue is people who don\'t

13 understand its flexibility.

14 MS. FOUDY: Lisa?

15 MS. KEEGAN: Just really quickly,

16 Julie.

17 Then 15 percent\'s okay, ten

18 percent\'s okay? I mean, that\'s almost Tom\'s

19 proposal: Don\'t use numbers.

20 MS. FOUDY: Well, it\'s dependent on

21 the university, because if you have a small

22 university your percentage variance would go up,

160

1 and that\'s why it\'s hard to say across the board

2 what it would be.

3 MR. LELAND: Ready to vote on this?

4 Rita needs to go. I think \-- Rita, would you

5 like to vote on this one? Are you \--

6 MS. SIMON: Yes.

7 MR. LELAND: Okay.

8 If substantial proportionality is

9 retained as a way of complying with Title IX,

10 the Office of Civil Rights should clarify the

11 meaning of substantial proportionality.

12 That\'s reading from the old one,

13 quite frankly, making clear the current

14 interpretations of the 96 letter, with the

15 purpose of maintaining the proportionality

16 requirements.

17 MR. GRIFFITH: I understand this to

18 be, Muffet\'s intent is pretty much status quo,

19 but clarify.

20 So if you are satisfied with the

21 status quo, you would vote in favor of this.

22 If, like I am, you would be opposed to

161

1 substantial proportionality the way it is being

2 used, you would vote against it.

3 MS. YOW: And I would also encourage

4 people if you\'re voting on it because you think

5 the clarification letter of \'96 takes care of

6 this, then I caution you; I just reread it.

7 Thank you, Cary, for letting me read

8 it again. I think if we had the time, which we

9 don\'t, there would be number of us who disagree

10 with some of the clarifications in there.

11 MS. FOUDY: But that\'s the point is

12 that it needs more clarification. I mean, that\'s

13 the point, that that status quo right now, with

14 what we have, is confusing to people. We are not

15 saying that\'s a good thing. We\'re saying, add to

16 it but don\'t change the fact that it\'s going to

17 be successive.

18 MR. LELAND: My intention will be to

19 vote for this because I think it is an active \--

20 I think we are doing something; we are asking for

21 clarification, which we haven\'t had.

22 Yet at the same time we\'re trying to

162

1 give a message that we would like not to retreat

2 from the higher proportionality standards we are

3 now \--

4 MS. YOW: I misunderstood. I thought

5 we were voting to accept the status quo, I think

6 is how we used \-- the terminology was used.

7 MR. SPANIER: Could I suggest some

8 alternative wording?

9 MR. LELAND: Yes, sir; thank you.

10 MR. SPANIER: If substantial

11 proportionality is retained as a way of complying

12 with Title IX, the Office of Civil Rights should

13 clarify the meaning of substantial

14 proportionality and allow for reasonable variance

15 in the relative ratio of athletic participation

16 of men and women while adhering to the tenets of

17 Title IX.

18 MS. GROTH: What would be the

19 reasonable variance? Based on institutional,

20 what it is now?

21 MR. SPANIER: I put the word

22 reasonable in there instead of a percent because

163

1 I think that whatever it turns out to be and

2 whatever revisions there might be, that letter

3 needs to be studied and subject to the rulemaking

4 process, and so on.

5 I don\'t think we in a sentence or

6 two can do that unless we want to be arbitrary

7 about it and come up with a percentage like the

8 two variations did, and that seemed unpalatable.

9 So \--

10 MS. FOUDY: But what if we changed

11 reasonable to nondiscriminatory?

12 MR. SPANIER: I don\'t know what

13 nondiscriminatory variance manes. I\'m not

14 familiar with that concept.

15 I think if we said nondiscriminatory

16 and reasonable \-- what I\'m trying to capture in

17 there is not \-- is the idea that in the normal

18 course of conducting business in any athletic

19 program or university, there are several

20 variables at work at any moment related to

21 proportionality that can move your numbers

22 around.

164

1 There needs to be some standard of

2 reasonableness. That\'s a term lawyers can

3 handle. There needs to be some standard of

4 reasonableness that takes into account that in

5 any given year you don\'t exactly how many new

6 freshmen are showing up on your campus, what

7 your attrition rates are, how many athletes have

8 left the team, how many are on scholarship or

9 not.

10 MR. LELAND: Okay. We\'re \-- Are we

11 okay with this \-- his suggestion.

12 MS. COOPER: Okay; let\'s vote.

13 MS. FOUDY: What is the language?

14 MR. LELAND: It says allow for

15 reasonable variance. Instead of maintaining the

16 status quo, we\'re trying for more clarification,

17 but instead of maintaining the status quo as it

18 relates to the ratios, we are now amending this

19 thing to say, allow for reasonable \--

20 MR. SPANIER: To allow for reasonable

21 variance in the relative ratio of athletic

22 participation of men and women, while adhering to

165

1 the tenets of Title IX.

2 MS. COOPER: If you want to vote for

3 it, fine. If you don\'t let\'s vote it down.

4 Let\'s vote.

5 MR. LELAND: Let\'s vote on the

6 amendment first. Right now we have \-- poor

7 Muffet \--

8 MS. GROTH: Graham is there any place

9 where we could add Julie\'s words,

10 non-discriminatory? I mean \--

11 MS. FOUDY: Why not say

12 nondiscriminatory and reasonable?

13 MR. SPANIER: I think we covered the

14 non-discriminatory part somewhere else, and I

15 don\'t want to lose the understanding of the

16 concept, why the word variance is in there.

17 MS. McGRAW: Ted, can I accept that

18 as my amendment, or as a \--

19 MR. LELAND: I think so. We\'ve been

20 working on consensus. Now, there might be some

21 people who \--

22 MS. FOUDY: Graham, my only issue is,

166

1 I completely agree with you. I completely agree

2 that we need to allow for all those different

3 variances, but if you leave it open to

4 reasonable, does that create in itself a problem?

5 Is that another point of confusion? I mean, are

6 we just compounding the problem.

7 If we could say that we\'re going to

8 add clarity \--

9 MS. KEEGAN: Could we put

10 nondiscriminatory tenets?

11 MR. LELAND: So can we call the

12 question now? Do we know what we\'re voting on?

13 And this is a substitute motion for

14 15A \-- 15B, excuse me. Thank you; somebody\'s

15 awake.

16 All those in favor of the

17 recommendation as amended, raise your rand.

18 MS. PRICE: Fifteen.

19 MR. LELAND: Okay; thank you.

20 Now we\'re on to \-- you know, we need

21 finish today. We are going to finish today and

22 we really need to limit debate. I know

167

1 everybody, it\'s the old political thing,

2 everything\'s been said, just not everybody\'s had

3 a chance to say it.

4 You really need to tell us if you

5 are going to be in favor or against, and we need

6 to hold pontificating to a lower level than we

7 have, because we still have a number of

8 recommendations some of which have substantial

9 issues associated them that people are going to

10 want to talk about.

11 So recommendation 16. I\'ve taken

12 some of the verbiage out of this so the two

13 authors could listen to this, but basically keep

14 the first sentence,the Office of Civil Rights

15 should consider a different way of measuring

16 participation opportunities for purposes of

17 allowing an institution to demonstrate that it

18 has complied with the first part of the

19 three-part test.

20 Then I skip down, take out the next

21 sentence and begin on line three of page 39:

22 An institution could establish that

168

1 it has complied with the first part of the test

2 by showing that the available slots for men and

3 women, as demonstrated by a pre-determined

4 number of participants for each team offered by

5 the institution is proportional to the male and

6 female ratio in enrollment.

7 If I just took out the middle

8 sentence and the last sentence and changed the

9 \-- because those two sentences didn\'t really \--

10 is there any \-- this is the much-misunderstood

11 and maligned Leland proposal.

12 So let\'s have at it. Yes.

13 MS. FOUDY: I think I talked about

14 this in Philly, and one of my problems with this

15 is that you are looking at recruiting budgets

16 that are not equivalent, and if you are talking

17 about, I think, the current NCAA statistic puts

18 it at 32 percent spent on women\'s recruiting

19 budgets, then to then go in and count those empty

20 slots, given that they haven\'t been receiving the

21 same amount of attention and recruiting and

22 funds, I think it\'s an inherent problem in this

169

1 one.

2 MR. LELAND: My answer to that: On

3 our campus that wouldn\'t be a problem.

4 MS. FOUDY: God bless Stanford

5 University.

6 MR. LELAND: No, no, no, I don\'t mean

7 it that way.

8 Just because football and men\'s

9 basketball spend opulently, there is no

10 difference in the spending in women\'s tennis

11 recruiting and men\'s tennis; men\'s soccer,

12 women\'s soccer, across the board.

13 Just because men\'s and women\'s

14 sports \-- men\'s football and basketball spend so

15 high on recruiting would not limit opportunities

16 or interest on our campus for women to fill

17 these slots. It just wouldn\'t \-- that just

18 wouldn\'t happen. That is such a \-- wouldn\'t \--

19 and my impression is that in other schools that

20 would be a real sort of an intellectual stretch

21 to say that that would have an affect.

22 Because the difference between the

170

1 spending is in the men\'s and women\'s \-- men\'s

2 football and basketball.

3 MR. BOWLSBY: Ted, I guess this is on

4 your motion and it\'s a general statement on

5 walk-ons that I can\'t find a better place to put

6 than right here. Is it permissible for me to

7 make it at this time?

8 MR. LELAND: Go ahead.

9 MR. BOWLSBY: On our campus and on

10 campuses across the nation, the number of men on

11 sports rosters is larger than the number of

12 women. Like what you just said, you go down the

13 comparisons of tennis and golf and swimming and

14 gymnastics and track and field, cross-country,

15 the budgets are the same, the opportunity for

16 allocation of those moneys for recruiting

17 purposes are the same.

18 We are being asked to assume that

19 differences are due solely to discrimination,

20 and I\'m not prepared to accept that premise.

21 We\'ve been asked to accept that it

22 is the responsibility of individual institutions

171

1 of higher education to correct and

2 counterbalance whatever societal differences and

3 discrimination there may be in the feeder

4 system.

5 While I believe that our educational

6 institutions bear responsibility for societal

7 evolution, I do not believe individual

8 institutions can be reasonably expected to fully

9 shoulder the burden of what stereotypes society

10 may impose on our young boys and girls.

11 We have not done our work if we do

12 not recognize that practices seek to force

13 institutions to both re-engineer societal

14 tendencies and to accommodate for whatever real

15 discrimination there is in the feeder system.

16 There is no way to avoid \-- there is

17 a way to avoid capping teams for either gender,

18 and it is my opinion we should seek whatever

19 means we can to avoid it.

20 As I said yesterday, these kinds of

21 cappings and restrictions create no opportunity

22 for anybody at any level, and it is one of the

172

1 most contentious issues of Title IX. It is one

2 that has been very divisive and

3 counter-productive, and it seems to me whether

4 we adopt this proposal or some other that takes

5 into consideration what \-- I\'m certainly not

6 assigning reason for this, but I can tell you,

7 on our campus the resource issue is not the

8 factor in comparing these rosters, but you look

9 at them right across the board and the men\'s

10 rosters have somewhere between 30 and 50 percent

11 more head count than the women\'s rosters do in

12 the comparison sports. And I would suggest to

13 you that that is true across this nation.

14 We aren\'t here to determine why it

15 occurs. If there\'s discriminatory factors, we

16 ought to identify them and fix it. If there are

17 other differences, we ought to seek to try and

18 research that and identify it, as well.

19 But the way we have proceeded is

20 counterproductive, divisive and it doesn\'t

21 create any real opportunity for anybody.

22 MR. SPANIER: Number 18 deals with

173

1 that.

2 MR. BOWLSBY: Yeah, it does in two

3 different ways, I think. One establishes, as I

4 understand it, a target number and the other

5 exempts.

6 MS. GROTH: I\'m opposed to this

7 recommendation and I feel very strongly about the

8 costs associated with walk-ons. Perhaps Iowa and

9 some other institutions can afford participation

10 at any level they want to have.

11 However, walk-ons do cost money, not

12 only for uniforms and travel, if they do travel,

13 but you also have support units, whether they be

14 athletic training or academic support, and those

15 are real dollars that are spent on walk-ons, as

16 well.

17 And we have to get to a point as to

18 what we can afford, because we can go right back

19 to the center of all these discussions, and that

20 is money.

21 I mean, would we rather spend our

22 money on an endless amount of walk-ons or try to

174

1 retain some of our men\'s programs or add

2 additional programs?

3 And I know that\'s philosophical

4 question but I have a problem with not counting

5 walk-ons.

6 Further, my second point is we

7 roster cap or roster manager at Northern

8 Illinois University, not because of Title IX.

9 As a matter of fact, for the opposite reason,

10 and that is, we roster management on what we can

11 afford; you know, what our budget allows, what

12 is safe, what is the player-coach ratio.

13 I mean, there is other reasons that

14 institutions are doing some roster management,

15 other than strictly Title IX.

16 MR. BOWLSBY: Well, as a

17 clarification, we and a lot of other institutions

18 are spending exactly the same amount of money on

19 the program, whether we have 50 student athletes

20 in track or 35.

21 The men\'s and the women\'s budgets

22 are exactly the same, and so one could logically

175

1 argue that the quality of life for the female

2 student athlete is higher than that for the

3 male, because it\'s being divided fewer ways.

4

5 MS. GROTH: And also, your have in

6 your amendment \-- I mean, in our proposal, Ted \--

7 a predetermined number of slots. It is not an

8 endless number of walk-ons. There would be some

9 methodology to establish what would be reasonable

10 for a number of the slots \-- the number of slots

11 on any team, male or female, correct?

12 MR. LELAND: Yeah, but I think the

13 assumption that Bob and I are working under is if

14 the coach chose to \-- if you said you had 20 male

15 slots in soccer and 20 female slots, if one of

16 the coaches decided to keep more or keep less,

17 that would be in their purview to do that.

18 And I agree with Bob on the

19 budgeting. We don\'t \-- walk-ons at our place.

20 We give the coaches the same amount. If they

21 choose to carry the same number of uniforms,

22 same number of lockers, if they choose to carry

176

1 a few more athletes, they get to do that.

2 MS. YOW: But it wouldn\'t keep

3 another institution from not doing that, if they

4 so chose? If they didn\'t have the financial

5 support to do so, or whatever?

6 MR. LELAND: Right, they could

7 choose. But at least if they chose \-- Northern

8 Illinois chose to limit walk-ons, they couldn\'t

9 blame it on the women. They\'d have to say, the

10 law allows me to let you on this. The women

11 allow me. I\'m doing it because I don\'t have any

12 money.

13 MS. COOPER: Ready to vote?

14 MS. FOUDY: Can I just say one more

15 comment?

16 When I brought up the point about

17 the differences in recruiting dollars and how

18 that clearly is a factor in many women you are

19 getting into your university versus men, and I

20 think you said \-- and I think Bob may have said

21 something about it \-- was that in actuality,

22 Stanford wasn\'t like that.

177

1 But could you say that \-- I mean, I

2 wish that a lot of schools were in that

3 situation, where they are spending equal amounts

4 on both the men and the women to come to their

5 universities \-- could you say that that is

6 something that is typical: Your university

7 across all three divisions?

8 I mean, because you\'re looking at

9 the NCAA numbers of 32 percent. They speak

10 differently, and that\'s my problem with this one

11 is, if you had equal numbers that you were

12 recruiting and you could say okay, but they\'re

13 still not coming.

14 Okay, then, but we are not spending

15 the same amount of money recruiting the women.

16 MR. BOWLSBY: I think what you would

17 find, Julie if you \-- and this is one of the

18 significant flaws of the EADA report \-- if you

19 would go back and break that down, you\'d find

20 that those average numbers are very significantly

21 skewed but the recruiting costs in football and

22 men\'s basketball.

178

1 And if went down through and made an

2 assessment of tennis, track, soccer, gymnastics

3 and comparable sports, mirror-image sports, I

4 would be very surprised if you found wide

5 variations in operational dollars on most

6 campuses.

7 MR. LELAND: You also sort of \-- in

8 my opinion you sort of, under the law, have an

9 additional protection here for what you are

10 concerned about, and that\'s that when you get to

11 the laundry list of services and goods and

12 services you are to provide, you are to provide

13 those equally.

14 So it\'s even separate from the

15 proportionality issues. You can\'t have a big

16 locker room for men and no locker room for

17 women. I mean, you just can\'t do \-- you have

18 another set of protections that protect the

19 quality of the experience the student has.

20 I want to say one other thing. This

21 is not about, for me, only 30, 40 percent of

22 this is about male walk ons. Seventy or 80

179

1 percent of it is about the false opportunities

2 for women, which I see all the time and no one

3 \-- very few people seem to be concerned about,

4 where people just pump their numbers up by

5 having a huge roster the first day of

6 competition and then they can\'t accommodate

7 those female students. The kids get left out;

8 they don\'t get to practice. They don\'t get a

9 uniform. They don\'t get anything but they are

10 on the list, and you do it because the law made

11 this and then forced you to do it, but it

12 instigates, pushing you towards doing that.

13 This is another way to do that,

14 because I think, just as bad as keeping three or

15 four extra men soccer players might be to gender

16 equity, I think having 140 women on the rowing

17 team when you\'re only going to have 25 or 28 or

18 30 in competition is just as bad.

19 MS. FOUDY: But wouldn\'t that call

20 for just changing your times of when you\'re

21 actually counting these numbers?

22 I mean, couldn\'t that be solved by

180

1 saying, okay, instead of counting them on the

2 first day of season, it\'s the first day of

3 competition?

4 MR. LELAND: I suppose it could, but

5 my way solves it also, and also solves the other

6 problem.

7 MS. COOPER: Okay. So basically

8 what \--

9 MR. GRIFFITH: Can you educate me \--

10 I\'m sorry.

11 How do you get the predetermined

12 number of participants for each team?

13 MR. LELAND: Well, the statistics

14 I\'ve used, the average number of athletes on a

15 Division 1 squad.

16 So we went to the NCAA manual and we

17 said how many are on the average women\'s team

18 and how many on the men\'s soccer team, and we

19 sort of came to an average.

20 John \-- a friend of mine who\'s an

21 instigator, John Perry from Butler, thinks we

22 all ought to sit down as experts.

181

1 MR. SPANIER: The point is, there

2 would have to be a process.

3 MR. LELAND: This isn\'t a proposal;

4 it\'s just an idea.

5 MR. SPANIER: It\'s just an approach

6 to consider.

7 MS. COOPER: Okay; I move to vote.

8 MR. LELAND: All those in favor of

9 proposal 16, as amended, which took out those two

10 sentences, raise your hand.

11 MS. PRICE: Ten.

12 MR. LELAND: Opposed?

13 MS. PRICE: Three.

14 MR. LELAND: Okay.

15 We\'re now on to recommendation 18,

16 since we said we would take the ones that dealt

17 with proportionality firs,t, and now we are at

18 18 \--

19 MS. COOPER: Yeah, I\'ll read 18, and

20 then I\'m going to move to vote right after I read

21 it.

22 MR. SPANIER: I don\'t think it\'s been

182

1 changed, so you don\'t need to read it; I mean, we

2 all have it.

3 MS. COOPER: Well, I\'m going to \--

4 quick. Here we go.

5 Any student who is not a recipient

6 of a full or partial scholarship will be defined

7 as a walk-on or a non-scholarship student

8 athlete for the purpose of calculating

9 proportionality with the male female ratio of

10 enrollment in both scholarships and

11 participation. These ratios will exclude such

12 individuals.

13 Proportionality ratios will be

14 calculated through a comparison of full or

15 partial scholarship recipients.

16 MR. LELAND: Move the question.

17 MS. COOPER: Oh, I\'m sorry. I move

18 to vote.

19 MR. SPANIER: Second.

20 MS. FOUDY: Wait. Anybody up for

21 discussion, because I don\'t even think we came to

22 an agreement on what walk-on \-- how you define

183

1 walk-on yesterday.

2 MR. LELAND: Procedurally there\'s a

3 motion and a second that we vote; there needs to

4 be a discussion of whether we are going to vote

5 note, and then a vote on whether we are going to

6 vote. That would cut off debate.

7 First we have to vote on whether we

8 want to vote. All right? So you\'re voting on

9 whether you want to have a debate or not.

10 If you vote in favor of the question

11 then \-- right now \-- then you are saying you

12 don\'t want to debate this. If you are opposed

13 to this question, then you are saying that you

14 don\'t \-- you do want to debate it.

15 MS. FOUDY: Have we been doing that

16 all along?

17 MR. LELAND: No, but it\'s a normal

18 procedure; it\'s a normal procedure. Somebody can

19 call a question at any time they want during a

20 parliamentary procedure.

21 Yeah; is there an objection to

22 closing debate?

184

1 MS. FOUDY: Yes.

2 MR. LELAND: Okay. So now we have to

3 vote on it.

4 All those in favor of the question,

5 raise your hand to close debate. Call the

6 question, yeah.

7 MS. PRICE: Five in favor of closing.

8 MR. LELAND: Okay; opposed?

9 MS. PRICE: Eight opposed to closing.

10 MR. LELAND: We are now having

11 debate. Okay? Yeah, Cary?

12 MS. GROTH: Graham, I would just like

13 us to use the definition that the NCAA provides

14 with walk-on, and that was my recommendation with

15 the glossary, as well.

16 MR. SPANIER: That\'s fine with me. I

17 don\'t \-- I was trying to capture it in one of the

18 previous discussions because someone asked for

19 that clarification, so that was partial; any full

20 scholarship, partial scholarship \-- if they have

21 a different definition, that\'s fine.

22 MS. GROTH: There is a recruiting

185

1 walk-on, but if we could keep it clean and just

2 always refer to that, and I think that was our

3 recommendation. I don\'t know if it ever passed

4 with the glossary, but to use the definition that

5 the NCAA \--

6 MR. SPANIER: What is that

7 definition?

8 MS. YOW: I agree with what Cary\'s

9 saying because we do know there are recruited

10 walk-ons.

11 MR. GRIFFITH: Are they part of the

12 NCAA definition?

13 MR. LELAND: Yes. It has to do with

14 the number of phone calls, the kind of letter,

15 the kind of contact. It\'s a very complicated \--

16 they either qualify as a recruited student

17 athlete or they don\'t, if they\'re non-scholarship

18 and they\'re on your team.

19 MR. SPANIER: Cary, are you

20 suggesting \-- and this is frankly a nuance I

21 hadn\'t thought of \-- that if you\'re a recruited

22 walk-on, then you\'re really the same as a

186

1 scholarship athlete for calculations? Is that

2 the intent of your suggestion?

3 MS. GROTH: Yes. Perhaps what we

4 could do is any student who does not meet the

5 definition of an NCAA \-- well, I think we need to

6 work on this a little bit, but I think that

7 what\'s important is that a walk-on is not related

8 just to scholarship dollars.

9 MS. YOW: All you have to do is just

10 add, \"or is a recruited walk-on.\"

11 So you\'ve covered people who are

12 partial scholarship people count; full

13 scholarship student athletes count and recruited

14 walk-ons count. Correct? I think that\'s what

15 Cary\'s intent is.

16 MR. SPANIER: I have to ask the ADs.

17 I have no idea what proportion of walk-ons are

18 recruited walk-ons. I would think most of them

19 are, at least at Division 1A schools.

20 MS. YOW: It varies depending on your

21 definition of partial. Part depends on the sport

22 and also on your scholarship funding.

187

1 I mean, I have a men\'s tennis team

2 that has one-half of a scholarship, so all the

3 guys that play for us are recruited walk ons.

4 That\'s how we have a team.

5 So even if you are fully

6 scholarshipped, you are going to count their

7 scholarship recipients and you probably aren\'t

8 going to have as many recruited walk-ons in that

9 sport, but all the other people are going to

10 court.

11 So it doesn\'t \-- if it\'s not \-- it\'s

12 a good thing. It is reasonable to count

13 recruited walk-ons.

14 MR. LELAND: Yes, I would agree. It

15 should be, because the institution has put some

16 time and effort to make sure that student was

17 there to play that sport, so they ought to count.

18 Where we have been concerned about a

19 team, to be sort of philosophic, is a student

20 who just, on their own volition, decides they

21 want to try out for a team, not one that\'s been

22 brought all the way across the country with a

188

1 promise of a scholarship as a sophomore and all

2 that stuff. I mean, we don\'t \--

3 MR. SPANIER: I\'m ready for a vote,

4 but I would like Bob to just weigh in on that,

5 because this was in part \-- I mean, he had a role

6 in this particular one.

7 Bob we are asking the question in

8 number 18 about walk-ons: Should recruited

9 walk-ons be treated the same as scholarship,

10 full or partial scholarship athletes?

11 If you are exempting walk-ons from

12 the calculations, do you exempt all walk-ons or

13 just non-recruited walk ons?

14 MR. BOWLSBY: I don\'t think there are

15 many of the latter involved in programs. I think

16 most of the time there has been some contact with

17 the student, with the prospect that would be

18 triggered recruitment, as defined by the NCAA.

19 I think we have very few people on

20 campuses like yours and mine where people just

21 show up on campus and decide to go out for

22 baseball. Usually somebody has been in touch

189

1 with them and encouraged them one way or the

2 other.

3 MR. SPANIER: I guess my thinking

4 originally was that the major thing that is

5 looked at here is scholarship support and the

6 financial support that goes to men\'s and women\'s

7 athletes.

8 So I never made the distinction

9 between recruited and non-recruited walk-ons,

10 because they\'re not getting any financial

11 support, and a lot of those extra players that

12 you see on wrestling teams, gymnastics teams,

13 men\'s volleyball teams, swimming teams, track

14 and field, down the line are walk-ons, and those

15 are the folks that we are keeping out through

16 roster management.

17 MR. BOWLSBY: Exactly right.

18 MR. SPANIER: And I think some of

19 them, apparently, are recruited walk-ons. The \--

20 even the folks \-- I mean, we heard testimony from

21 some folks who were cut, and I think they would

22 fit the definition of recruited walk-ons. So I\'m

190

1 not sure I would want to exempt \--

2 MR. BOWLSBY: I think most teams are

3 making some cuts. I don\'t think the baseball

4 coach at Penn State is probably allowing

5 everybody that wanted to come out, to come out.

6 And when you say retrigger and

7 recruitment, it may be nothing more than a

8 telephone call saying, if you are headed to

9 college, you might want to get involved in our

10 program.

11 But it seems to me the line of

12 demarcation is full or partial scholarship,

13 rather than either versions of walk-ons.

14 As I said, I think the recruited

15 walk-on is the majority.

16 MR. LELAND: Okay, we need to \--

17 let\'s clarify what the proposal is, and we need

18 to move this thing along; that is minor.

19 MS. FOUDY: But this is a very

20 important debate, because essentially what you\'re

21 saying, if you allow a recruited walk-on to not

22 be counted, then you could be a full time

191

1 participate \-- you could be a starter on your

2 team and simply because you\'re not receiving a

3 scholarship \-- you could have been recruited.

4 You could be enjoying all the benefits of \-- and

5 amenities of being a full-time student athlete,

6 and yet you wouldn\'t count in the participation

7 numbers.

8 MR. LELAND: I\'m not saying we should

9 abandon it. I\'m saying we should decide, are

10 walk-ons in here or not, are recruited walk-ons

11 in or not, and then vote it up or down.

12 The issues aren\'t that complicated.

13 Let\'s get it \-- let\'s get it and let\'s vote it.

14 So are \-- we have it defined as

15 walk-on or non-scholarship student athlete. Do

16 you want to differentiate between recruited

17 walk-on and walk-on or just all \--

18 MS. GROTH: Well, there is another

19 issue here, too, Ted, and that is, what do you do

20 for Division 3? I mean, Division 3 doesn\'t give

21 scholarships, so \--

22 MR. SPANIER: We\'re talking here

192

1 about \-- I mean, for many institutions, whether

2 you\'re in compliance with Title IX has to do with

3 your scholarship support.

4 We do \-- in our reports we do

5 calculations of scholarship reports. That\'s an

6 important indicator of whether you\'re in

7 compliance or not.

8 It is not just participation.

9 MR. BOWLSBY: Ted, I understand what

10 we are trying to do, but it\'s the confusion along

11 the lines of the definition that\'s creating a

12 problem for me, and I guess I would have to vote

13 against this.

14 MR. LELAND: Okay. Because right now

15 it stands as it reads; nobody has made an

16 amendment to it. Right? It\'s as it reads.

17 And if somebody wants to make an

18 amendment, let\'s make an amendment; if somebody

19 doesn\'t want to make an amendment, let\'s no.

20 MS. FOUDY: The amend to treat a

21 walk-on as an NCAA walk-on was Cary\'s amendment,

22 that it wouldn\'t be a recruited walk-on.

193

1 MR. LELAND: Right now, I mean, the

2 chair is ruling it\'s not in there. If you want

3 to put it in there, let\'s make a motion; let\'s do

4 it.

5 If you don\'t, let\'s move on.

6 MS. GROTH: Would you accept that

7 amendment, that a walk-on is defined as the NCAA?

8 MR. LELAND: Non-recruited walk-on,

9 right.

10 MS. GROTH: Non-recruited.

11 MR. LELAND: Your only definition

12 would be a non-recruited walk-on?

13 MR. SPANIER: I think your suggestion

14 was just to accept the NCAA definition of

15 walk-on.

16 Maybe what we need is just to vote

17 up or down a separate amendment on whether to

18 add in here non-recruited walk on.

19 MR. LELAND: Recruited walk on.

20 MR. SPANIER: Right. Let\'s vote that

21 up or down and then we could vote \--

22 MR. LELAND: In addition to walk on

194

1 there would be recruited walk-on, or would it be

2 substitute for walk-on?

3 They would be defined as a recruited

4 walk-on or a non-scholarship athlete or do you

5 want \-- I\'m just trying to get it \-- I think

6 people know how they want to vote. I think

7 people know it but we have to get it in front of

8 them.

9 MS. GROTH: Well, my recommendation

10 with using the NCAA definition; includes

11 recruited walk-ons.

12 So Graham either accepts that or we

13 vote the recommendation as is.

14 MR. SPANIER: Any student who is not

15 a recipient of a full or partial scholarship or

16 is a non-recruited walk-on will be defined as a

17 walk-on.

18 The wording can be cleaned up but I

19 think the intent is clear. Maybe go on to the

20 next one; I\'ll fix the wording.

21 MR. LELAND: Okay; that\'s a good

22 idea.

195

1 We\'ll move on to the next one, which

2 is 22. We are still trying to work on ones that

3 deal with proportionality.

4 22. In demonstrating compliance

5 with the proportionality requirement of the

6 first part of the three-part test, a male female

7 ratio of athletic participation should be

8 measured against the male-female ratio of the

9 institution undergraduate population, minus

10 non-traditional students.

11 MS. McGRAW: Again, I just put this

12 in for the community college level. I don\'t know

13 that it has a big impact on us. I don\'t know

14 that we need to discuss it. It\'s not quite as

15 important as some of the other ones.

16 MS. FOUDY: The only thing is that

17 prong three takes care of them at the community

18 college level because \-- and they have said this

19 \-- because they come in, a lot of them come in as

20 part-time students, which wouldn\'t count as a

21 traditional student. They would then become

22 non-traditional.

196

1 But they also have traditional

2 students that are 40; I mean, they have a lot of

3 full-time students that are over 30.

4 MS. FOUDY: In the same breath it is

5 hard to make athletes of some who are not

6 interested, regardless of age or regard less of

7 whether they have kids or anything.

8 MR. GRIFFITH: Hard to make interest

9 based on age but not on gerund.

10 MS. FOUDY: We have surveys in three

11 to determine that.

12 MS. McGRAW: I move we vote.

13 MR. LELAND: All right. The question

14 has been called.

15 All those \-- there\'s no objections

16 \-- all those in favor of recommendation 22 raise

17 your hand.

18 All those opposed?

19 MS. PRICE: Eight with Gene.

20 MR. LELAND: Okay; opposed?

21 MS. PRICE: Four opposed.

22 MR. SPANIER: Okay, I think I\'ve got

197

1 this.

2 MS. COOPER: Nine to four; it passes.

3 MR. SPANIER: Yeah, on 18. I\'ve tried

4 to make this real simple.

5 For the purpose of calculating

6 proportionality \-- I\'d eliminate the first

7 sentence and start, For the purpose of

8 calculating proportionality with the male female

9 enrollment in both scholarships and

10 participation these ratios will exclude walk-ons

11 as defined by the NCAA. Proportionality ratios

12 will be calculated through a comparison of full

13 or partial scholarship recipients and recruited

14 walk-ons.

15 MS. COOPER: I move to vote.

16 MR. BATES: I have question for

17 Debbie.

18 When you use example of your tennis,

19 how do you differentiate there, because

20 obviously the team is made up of people who are

21 not receiving scholarships.

22 MS. YOW: They would all count in

198

1 this proposal because they would all be recruited

2 walk-ons, because we don\'t have the scholarships

3 for the team. We spent a lot of time recruiting

4 them. So they would count.

5 MS. FOUDY: Can I make one point.

6 And I have tremendous sympathy for

7 walk-ons because I had friends at Stanford, male

8 and female, who didn\'t make a team and \-- but

9 I\'m a strong believer in that at some point, you

10 can\'t \-- I mean, if we had, for example, the

11 U.S. women\'s national team, soccer team, my

12 team, I mean, everyone could want to go to the

13 Olympics to get a gold medal, but we can\'t allow

14 everyone on the team.

15 And at some point \-- I mean,

16 especially with our resource issue in such dire

17 straits at the collegiate level \-- and we\'ve

18 talked about that a lot \-- at some point you

19 have to put some type of restraints on teams.

20 And I love Rudy, I love the movie,

21 but to base a recommendation on that idea,

22 there\'s got to be a point at some time where we

199

1 say, not everyone can go to the Olympics. Not

2 everyone can compete for a gold medal.

3 And great that you want to and it\'s

4 great that you\'re interested, but there is

5 intermurals and there\'s Jr. Varsity and there\'s

6 other levels that they could compete and still

7 fulfill that expectation.

8 So at some point I think we need to

9 recognize that our resources are limited and

10 this is also \-- this is another issue that goes

11 into that, into that pie that is so finite.

12 MR. LELAND: Any other comments?

13 MS. YOW: The only comment I have

14 about that, and I think that Julie\'s point is

15 valid, is that nothing about this amendment

16 precludes any individual institution from making

17 those determinations for themselves.

18 MS. FOUDY: I think my last comment

19 is, my other worry is that these walk-ons now

20 could possibly replace the money needed. Cary

21 said it costs her money.

22 That money that we are using on

200

1 these extra walk-ons could now be the money

2 we\'re using to keep that wrestling team or to

3 keep that men\'s swimming team.

4 And so is there a tradeoff in that?

5 I mean, are we going to be losing more men\'s

6 minor sports by doing this?

7 MR. LELAND: Any other comments and

8 questions?

9 MS. COOPER: I move to vote.

10 MR. LELAND: Any objection? Call the

11 question?

12 Okay. Hearing none, we have

13 recommendation 18 as amended in front of us.

14 Everybody\'s heard it, I think.

15 All those in favor of 18 as amended,

16 raise your hand.

17 MS. PRICE: Eight.

18 MR. LELAND: All those opposed.

19 MS. PRICE: Five. Seven for, five

20 against.

21 MR. LELAND: It passes.

22 MS. COOPER: Seven to four?

201

1 A VOICE: Seven to five.

2 MS. COOPER: Seven to five.

3 MR. LELAND: Now it looks as though,

4 I think, if Debbie and Cynthia and I have added

5 these up right, that we have, what, four more to

6 go, beginning with number 17. We are going back

7 now and taking on those that don\'t deal with

8 proportionality.

9 MS. FOUDY: Can I just make one

10 comment?

11 I\'m uncomfortable with us just

12 rushing through and asking for a vote. If we

13 have to stay a little longer than one o\'clock to

14 at least \-- to discuss this to some degree, I

15 think that\'s important; I think we owe that to

16 the public, after the time we spent on this, not

17 to just rush through these last four.

18 MS. COOPER: I don\'t think we are

19 rushing through anything. We\'ve been here, we\'ve

20 discussed them, we have heard from everyone and

21 we have heard several different points of views

22 several times, and I don\'t think we are trying to

202

1 rush it but we are trying to move forward.

2 MS. FOUDY: And I understand trying

3 to move forward but I\'m just saying, if it takes

4 us a little longer than one o\'clock, I would

5 appreciate just having the time; not to say it\'s

6 one, then we\'re out.

7 MR. LELAND: No, I think we are

8 committed to doing that procedurally. I think

9 we\'ll stay in session as long as we have a

10 quorum.

11 But at the same time, Julie, you

12 have the right to object. When somebody asks,

13 calls a question, you have the right to object

14 and so you have every right that everybody else

15 has.

16 MR. LELAND: Recommendation 17, we\'ve

17 got your name attached to this.

18 MS. COOPER: I\'ll read it if you want

19 it.

20 MR. LELAND: Yeah, read it.

21 MS. COOPER: I\'ll read it.

22 Recommendation 17, page 39, line 18:

203

1 In providing technical assistance,

2 the Office for Civil Rights should advise

3 schools as necessary that walk-on opportunities

4 are not limited for schools that can demonstrate

5 compliance with the second or third parts of the

6 three-part test.

7 MR. LELAND: Okay. Questions,

8 discussion?

9 Hearing none, are we \-- we are minus

10 a few of our \--

11 MS. FOUDY: Just to explain this one.

12 This was simply as we talked about

13 Philadelphia, one of the things we talked about

14 was providing more weight to prongs two and

15 three and educating people more on some of the

16 value of two and three.

17 MR. LELAND: Okay. Bob?

18 MR. BOWLSBY: I\'m voting yes.

19 MR. LELAND: Oh, you\'re already

20 ahead.

21 Is anyone \-- just \-- is anyone \--

22 yeah, I think we\'ll \-- I\'m just worried we have

204

1 some people out here, and if it\'s a close vote

2 \-- is there a consensus? Good idea. Is there a

3 consensus for this one? Legal pass by con sense

4 sun recommendation two is and.

5 Okay. Passed by consensus; thank

6 you.

7 All right, recommendation 21, we

8 have President Spanier sign this one, but let\'s

9 read it and begin the discussion.

10 MR. LELAND: The Office of Civil

11 Rights should study the possibility of allowing

12 institutions to demonstrate that they are in

13 compliance with the third part of the three-part

14 test by comparing the ratio of male and female

15 athletic participation at the institution, with

16 the demonstrated interest and abilities shown by

17 region, state, national or high school

18 participation rates, or by the interests levels

19 indicated in surveys of prospects or enrolled

20 students at that institution.

21 MR. GRIFFITH: This is simply the

22 study, right?

205

1 MS. de VARONA: It still leaves out

2 other organization that promote and support

3 sports opportunities for athletes outside of the

4 school system, which is where we get a lot of our

5 athletes.

6 MR. LELAND: Would you like to add

7 some more organizations or \--

8 MS. de VARONA: I think we\'ve already

9 covered this in an earlier recommendation, so I\'m

10 not going to support this one.

11 MR. LELAND: I thought this was

12 already the case. I\'m surprised but I\'m

13 perfectly willing to vote for it.

14 MS. de VARONA: If you vote for it

15 then I would like to amend it by adding that

16 surveys also include participation numbers in

17 national governing bodies that offer

18 opportunities outside the school system.

19 MR. LELAND: We\'ll take that as a

20 friendly, don\'t you think?

21 I don\'t hear any opposition to this,

22 so could we do this by consensus?

206

1 MS. McGRAW: My only concern is the

2 same as I said earlier: If you keep looking at

3 the high school numbers, how do you determine

4 when the high schools are in compliance?

5 You know, if you\'re talking about

6 looking at the high schools and the lower

7 levels. It\'s a university, right? I mean, how

8 do you determine if the high schools are in

9 compliance? Do you go down lower than that?

10 MR. LELAND: No, but this deals

11 specifically with third part of the three-prong

12 test, so I\'m assuming that this deals with

13 colleges and universities. I may be wrong, but

14 I\'m assuming that it does.

15 MS. de VARONA: I just thought that

16 our earlier recommendation covered this. I don\'t

17 know why we\'re doing it again.

18 MS. FOUDY: This is actually prong

19 three \--

20 MS. de VARONA: Yeah, yeah.

21 MS. FOUDY: \-- and the earlier one

22 was prong one, correct?

207

1 MR. LELAND: Sort of Title IX;

2 remember Title IX.

3 MS. FOUDY: Pardon me?

4 MR. LELAND: We changed the prongs to

5 Title IX, I think, didn\'t we?

6 MS. FOUDY: You know, that was \-- but

7 aren\'t we talking about when we covered this was

8 in Bob\'s previous proposal, which was comparing

9 the high school\'s rates, and that was

10 specifically comparing them for prong one

11 purposes. This is comparing them for prong three

12 purposes.

13 MR. LELAND: So is anybody going to

14 vote against this? Muffet, are you? I mean,

15 could we do it by consensus?

16 All those in favor of \-- well, don\'t

17 nod your head or anything \-- with the amendment,

18 we\'ll just take it, it\'s passed by consensus.

19 Thank you.

20 Now we are on to recommendation 23.

21 I\'ll read it.

22 The designation of one part of the

208

1 three-part test as a \"safe harbor\" should be

2 abandoned in favor of a way of demonstrating

3 compliance with Title IX participation

4 requirements that treats each part of the test

5 equally.

6 Additional ways of demonstrating

7 equity beyond the existing three-part test

8 should be explored by the Department of

9 Education.

10 In addition, the evaluation of

11 compliance should include looking at all three

12 parts of the test in aggregate or in balance, as

13 well as individually.

14 Okay, comments and discussion.

15 Anybody object to this?

16 Go ahead. Cary?

17 MS. GROTH: I think part of my

18 recommendation was to ensure that educational

19 institutions knew that prongs two and three were

20 safe as well.

21 So somewhere in here there should be

22 a sentence that reads, OCR should educate

209

1 educational institutions that all three prongs

2 are safe options.

3 I don\'t know if that is exactly the

4 language, but I remember this discussion where

5 we\'re just \-- you know, there are three prongs

6 to comply and I think that language needs to be

7 in there.

8 And I\'m not comfortable \-- or maybe

9 this was Graham\'s \-- but additional ways of

10 demonstrating equity beyond the existing

11 three-part test should be explored by the

12 Department of Education. That\'s where you are

13 getting into prongs four, five \--

14 MR. SPANIER: Yeah, I think one of

15 the problems we\'ve had \-- well, we\'ve talk about

16 all those things before, but we \-- I think we

17 have been very weak on Title IX enforcement

18 generally. No school has really ever been

19 punished in the end, and I think a lot of the

20 frustration that we have had around it is that

21 you have to pick one part or one number or one

22 survey \-- whatever it might be \-- and pin your

210

1 whole case on that, and the realty is that there

2 are a lot of different aspects to this.

3 And I think the notion of one prong

4 being the safe harbor just doesn\'t seem right

5 for a lot of reasons we\'ve talked about.

6 The schools could be making some

7 degree of progress but maybe not enough that

8 that would be a \-- this whole thing you\'re doing

9 \-- I think in the real world you look at the

10 whole balance and you encourage people to make

11 progress on all the different areas at once.

12 So I just \-- and there may be some

13 additional ways, coming out of this commission,

14 that you demonstrate compliance with Title IX,

15 and I would hope that the making progress part

16 of it, at some \-- within a few years, that

17 shouldn\'t be an excuse for not being there. And

18 that may not be a prong any more.

19 So I think all of those things are

20 collected in here, and the part about further

21 education, which is part of some of the

22 amendments you made before, I do think we \-- I

211

1 don\'t think we need another sentence here

2 because we have adequately said that in some

3 other recommendations.

4 MR. LELAND: Okay; other comments?

5 MS. FOUDY: Yes.

6 The safe harbor issue \-- and Tom and

7 Mike can probably speak to this better \-- but

8 the safe harbor is a protection for the

9 institutions, correct, in that once you get to

10 those numbers, someone \-- for example if you

11 were at proportionality and a woman comes to see

12 you and says hey, but I\'m interested; I want to

13 \-- I want you to start a program. I\'ve got 15

14 women that want to play who are interested at

15 this university.

16 You are protected because you have

17 reached that safe harbor. So its terminology

18 comes from protecting universities and saying,

19 we are allowing you this safe harbor, and if

20 more people come to you with interest you will

21 not have to fulfill that interest because you

22 are already not discriminating.

212

1 Is that correct?

2 MR. GRIFFITH: I think that\'s how it

3 practically works and I\'m not comfortable with

4 that.

5 I think my university, if they\'re

6 approached that way, ought to consider it. I

7 don\'t think they ought to rely on, well, we\'ve

8 reached some, you know, numeric balance and we

9 don\'t need to consider your interest \-- I think

10 that actually demonstrate the problem with

11 relying on numeric formulas.

12 MS. FOUDY: I should have known,

13 right. I forgot that; short-term memory lapse

14 again.

15 MR. SLIVE: Anybody who represents

16 himself has got a fool for a client, so.

17 My position is that we want to

18 create more of a safe harbor in prong three.

19 That\'s one of goals here.

20 And the more we can do, to do that,

21 Julie, the better off we are, and the sooner we

22 can do that the better off we are.

213

1 MS. FOUDY: And does that say that

2 here? This language, I think, is what I have

3 problems with. I don\'t like the second sentence

4 as well.

5 MS. GROTH: Julie, I think it does in

6 the first sentence, where it says compliance with

7 Title IX\'s participation requirement to treat

8 each part of the test equally. That takes care

9 of one of the issues.

10 MR. BOWLSBY: I think also as an

11 assignment, it\'s not just pertinent to this item,

12 but the secretary, as I understand our process,

13 is not duty-bound to embrace any of these things

14 we forward, nor is this an all-inclusive group.

15 I think the secretary and Department

16 of Education staff have the opportunity to do

17 sentence number two, whether it is in there or

18 not.

19 MS. FOUDY: I would feel more

20 comfortable if we kept in one and three and took

21 out two, the second sentence.

22 MR. LELAND: Additional ways of

214

1 demonstrating; that sentence?

2 MS. FOUDY: Yes, because in essence

3 the idea is we want it like Mike said: Make

4 three more palatable and stronger, and we can do

5 that without the second sentence.

6 MR. LELAND: I don\'t take that as a

7 friendly, but that changes the substance so we

8 have to have that as an amendment.

9 Is there a second?

10 MR. SPANIER: I\'ve been trying to

11 encourage creativity in the sense of maybe

12 there\'s some other ways to promote gender equity,

13 get credit for it, be able to demonstrate it. I

14 Haven\'t been able to think enough about what

15 those specific things are. I would have

16 suggested them.

17 But I just don\'t think there\'s any

18 merit in closing off the possibility that there

19 are other ways to get from here to there.

20 Particularly ten or twenty years

21 from now. Maybe now we look, we have to look at

22 this narrowly. But, you know, where we are now

215

1 is very different than what a lot of people were

2 thinking 10, 20, 30 years ago.

3 MS. FOUDY: But don\'t we \--

4 MR. LELAND: Julie suggested an

5 amendment; is there the second to the amendment?

6 MS. GROTH: I second.

7 MR. LELAND: All right; it\'s moved

8 and seconded. Let\'s discuss the amendment. Now

9 we are going to remove there-going to remove the

10 second sentence if this passes.

11 MS. de VARONA: I would like to

12 remove the second sentence in this, and I don\'t

13 know if this is possible to indulge this, but I

14 think one of the time constraints of this

15 commission has not let us think outside the box

16 or have a solution panel so that we can address

17 other ways in which we can think outside the box

18 and accommodate more programs and pool more

19 resources.

20 So that\'s why I would favor voting

21 for removing the second sentence.

22 MR. LELAND: Okay. Other talk about

216

1 removing the second sentence?

2 MS. GROTH: One last comment.

3 Graham, I\'m in favor of removing the

4 second sentence because I think it is a stronger

5 recommendation without it.

6 It hits to the point that we have

7 been talking about over and over that the other

8 two prongs are not perceived as a safe harbor.

9 There might be another place for

10 this, but this was one of my recommendations. I

11 think they combine the two of them, yours and

12 mine.

13 And I just don\'t think it belongs in

14 this one.

15 MR. SPANIER: I just see it as

16 limiting to take it out. I mean, Donna is

17 saying, you know, we need \-- we haven\'t had the

18 time in this commission; we should be thinking

19 outside the box.

20 Well, sentence two says, let\'s think

21 outside the box.

22 So I think we just vote. I mean,

217

1 it\'s not earth-shattering one way or another so

2 I think we just vote on that.

3 MR. BATES: But I don\'t see why we

4 couldn\'t do it as two separate, because it seems

5 to me sentence one actually is a very succinct

6 recommendation, that the, I guess, opens it up a

7 little bit more.

8 MR. SPANIER: I think that\'s an

9 excellent suggestion. I mean, if we \-- that\'s an

10 excellent suggestion, in light of the positive

11 comments about sentence two, about taking it out.

12 I mean, I think now we should vote

13 on them separately and have sentence two be a

14 separate recommendation.

15 MR. LELAND: Well, why don\'t we \--

16 we\'ll vote this way. We\'ll vote on this \--

17 MR. SPANIER: Could we have that as a

18 separate thing. I would be very happy voting on

19 23 without that sentence.

20 MR. LELAND: So what we are looking

21 is \-- hopefully there will be a consensus here \--

22 that we take the second sentence out and set it

218

1 alone as, let\'s say, recommendation 25 or 23A or

2 whatever it is, and then we act on 23, as it then

3 would be written, and there might be a consensus

4 to do both those things: pass 23 and 23A as a

5 separate \-- are we okay with that?

6 MR. BATES: Yes.

7 MR. LELAND: So before us is a motion

8 to pass recommendation 23, minus the second

9 sentence, and the second sentence would become an

10 individual recommendation by itself; we\'ll number

11 it later.

12 Any questions or concerns about

13 that? Is there a consensus?

14 A VOICE: Yes, thank you.

15 MR. LELAND: Okay, great. Thank you.

16 Now we are down to 23A, then,

17 additional ways of demonstrating equity between

18 the existing three-part test should be explored

19 by the Department of Education.

20 Excuse me for doing that so fast.

21 Okay. Discussion now before us?

22 Ready to vote?

219

1 MS. GROTH: Can we just make it 24 or

2 25? 23A, it makes it, again, part of that

3 recommendation where I don\'t think it belongs.

4 MR. LELAND: Okay, we\'ll make that \--

5 and we can number it later, but we\'ll do it that

6 way.

7 Okay. We now have a

8 separately-numbered recommendation. Donna?

9 MS. de VARONA: Could we just add,

10 additional ways of demonstrating equity and

11 providing more opportunities that meet the needs

12 and interests of the students should be explored

13 by the Department of Education?

14 MS. GROTH: Would it be simpler to

15 say compliance with Title IX?

16 MS. de VARONA: Okay. I just think

17 \-- I want to get the idea in there with some

18 words in the thing, that we want to provide \-- we

19 want to pool resources and expand opportunities.

20 MS. FOUDY: Is that opportunities for

21 the underrepresented gender, which is the

22 language.

220

1 MR. LELAND: Additional ways of

2 demonstrating equity beyond existing three-part

3 tests should be explored by the Department of

4 Education. Very simple. How do you want to

5 change this?

6 I\'m not gagging anybody; how do we

7 want to change this?

8 MS. de VARONA: I just want to find

9 ways that we can, you know, think outside the box

10 and provide more opportunity.

11 MS. FOUDY: Maybe additional ways of

12 demonstrating equity or offering participation

13 opportunities for underrepresented gender beyond

14 the existing three-part test?

15 MR. LELAND: We sort of said that we

16 were going to \--

17 MS. de VARONA: Let\'s just vote on

18 it. It\'s fine with me; let\'s move it.

19 MR. LELAND: So the proposal

20 separately numbered whatever it is, is now before

21 us and it is written the way it is written.

22 MS. de VARONA: Okay; let\'s go for

221

1 it.

2 MR. LELAND: Is there consensus or do

3 you want to vote.

4 MS. FOUDY: I would like to vote.

5 MR. LELAND: Vote? Okay.

6 All those in favor of the

7 newly-numbered recommendation, raise your hand.

8 MS. PRICE: Twelve.

9 MR. LELAND: All those opposed?

10 MS. PRICE: Twelve to one.

11 MS. FOUDY: Is it possible just to \--

12 because it\'s important. I\'m comfortable with the

13 idea of thinking outside of the box and I\'m

14 comfortable with that idea. I\'m not comfortable

15 with it if we are not staying within the tenets

16 of Title IX.

17 MR. SLIVE: Julie if we could just

18 substitute the words, compliance with Title IX

19 for equity, don\'t you get the \--

20 MS. FOUDY: Yeah, but we didn\'t do

21 that.

22 MR. SLIVE: We should have.

222

1 MS. FOUDY: Let\'s do that.

2 MR. SPANIER: Let\'s reconsider.

3 MR. LELAND: There is a motion to

4 reconsider. All those in favor of

5 reconsideration, raise your hand? Aye? Any

6 no\'s?

7 Okay. Now you want to call the

8 question on the amendment?

9 MR. GRIFFITH: The amendment will be,

10 we will replace the word equity with compliance

11 of Title IX.

12 MR. LELAND: That takes care of

13 Julie\'s and others\' concerns.

14 We can assume that by consensus?

15 The amendments made in the total

16 recommendation passes by consensus.

17 MR. GRIFFITH: Can I read the

18 question? Julie said she wanted to make a

19 statement on the record about her dissent.

20 I\'m assuming that the rules that

21 we\'re following is that if you \-- if we lost,

22 that there will be an explanation. I mean,

223

1 that\'s what we\'ve done, or talked about

2 yesterday.

3 So all those where I lost, I mean,

4 there\'s going to be an explanation given.

5 MS. de VARONA: And we\'ll get to look

6 at those.

7 MS. COOPER: Recommendation 24.

8 MS. FOUDY: Let\'s discuss that at the

9 end, though, right? We are going to have that

10 discussion?

11 MR. LELAND: Yeah, I think we need to

12 because we have perplexed looks from our authors.

13 So I have to make sure that we\'re

14 comfortable. That was an issue when we first

15 started yesterday, to make sure that we gave

16 dissent its proper due, and we all agreed we

17 would do that, so let\'s make sure we are going

18 that.

19 Recommendation 24.

20 MS. COOPER: Page 41, line 20.

21 The Office for Civil Rights should

22 be urged to consider reshaping the second part

224

1 of the three-part test, including by potentially

2 adding a sunset provision designating a point at

3 which a school can no longer establish

4 compliance through this part.

5 MR. GRIFFITH: Why \-- it reads

6 awkwardly. Why do we have by potentially in

7 there, Gerry? Why don\'t we just say, by adding.

8 I think that\'s \--

9 MR. REYNOLDS: I can\'t take the blame

10 for the phraseology.

11 MR. SPANIER: I can. I think that

12 was my doing, and yea, I don\'t think \--

13 potentially could come out.

14 MR. GRIFFITH: I think it would just

15 be strike five potentially, including adding a

16 sunset provision. That would leave other

17 opportunities to reshape it.

18 MS. FOUDY: I have question on

19 conceptually on this, and you guys would know

20 better than me, but what happens if you have, for

21 example, an institution or high school that is

22 changing conferences or is adding football or

225

1 they\'re changing their competitive divisions.

2 I mean, how do you allow for that,

3 because they\'re going to need some time in the

4 interim to adapt to those changes.

5 Are we in essence hurting a lot of

6 institutions by not allowing them that lag time?

7 MR. SPANIER: Again, I think, if this

8 gets adopted, you know, there has to be, again,

9 some standard of reasonableness here.

10 But Title IX\'s been in operation for

11 30 years now and there\'s been tremendous

12 progress, and I think most of us around the

13 table would agree that there will be some more

14 progress in the next few years.

15 But if you think ten years out, now

16 schools have not only had 30 years of the whole

17 gearing-up process but they\'ve had ten years

18 between now and then when this got a lot of

19 attention and everything is going to be

20 clarified very nicely by the Office of Civil

21 Rights and there shouldn\'t be an awful lot of

22 doubt left about what you have to do, to get

226

1 from here to there, and I would see some point

2 in the future at which you say, you know, that

3 is just not a good excuse any more.

4 You added volleyball three years

5 ago, soccer 11 years ago, so you say you made

6 normal progress but you\'re still at 75/25, no we

7 don\'t buy it.

8 At some point you have got to be in

9 compliance for good conceptual and factual

10 reasons, and the fact you are making progress

11 just doesn\'t cut it at some point.

12 We don\'t do that in a lot of other

13 areas of law.

14 So that\'s the intent there, and the

15 sunset clause was just \-- it is one possible way

16 of making that happen. I guess the word

17 potentially is in there because maybe

18 technically that\'s not the best way.

19 But maybe different institutions are

20 given different dates by which they have to do

21 it, as opposed to sunset sounds like the whole,

22 you know, everybody has done it at some point.

227

1 So that\'s why I said it.

2 MR. REYNOLDS: Julie makes a very

3 good point, I think, that we should be careful.

4 After thinking about this sunset

5 provision, I think the first order of business

6 is coming up with a set of rules that are

7 logical, rational and reasonable, and that needs

8 to be done before we start talking about taking

9 away the ability to come into compliance with

10 prong two.

11 MR. LELAND: Okay. Other comments

12 and questions that \--

13 MS. YOW: I just want to point out

14 that Jerry and Julie have agreed on something.

15 Would someone mark the time and date?

16 MR. GRIFFITH: I move that we all

17 hold hands and sing Cumbaya together now.

18 MS. YOW: And then I\'d like to

19 support what Graham said.

20 Those of us in the industry know

21 that the majority of institutions have never

22 been reviewed. We also know anecdotally the

228

1 majority of them, or many of them have been

2 hanging their hat on continuing expansion and

3 they\'ve got this all worked out: How many years

4 between adding sports can I get away with et

5 cetera, et cetera, et cetera.

6 So we do \-- it\'s way past time that

7 we deal with this one.

8 MS. GROTH: You know, I agreed

9 initially but Julie just brought up a really good

10 point: What if you take Institution X that\'s in

11 compliance with Title IX for prong one that does

12 not have a football program, but enters a

13 conference that requires football.

14 Now that institution doesn\'t meet

15 Title IX with prong one nor with prong three.

16 So what\'s the other option for that institution

17 for that change?

18 MS. YOW: The sunset, the sunset.

19 They\'ll have a discussion with OCR; there\'ll be a

20 reasonable time frame developed and they\'ll have

21 the chance to get it together.

22 MR. SPANIER: Let me ask if this

229

1 helps.

2 What if we took out the words, the

3 five words, \"potentially adding a sunset

4 provision.\" Then we would be saying, including

5 by designating a point at which a school can no

6 longer establish compliance.

7 That allows for the possibility that

8 it would be different, depending an a school\'s

9 situation, as opposed to, prong two is gone for

10 the whole world at a fixed point in time.

11 Does that do it?

12

13 MS. COOPER: Yeah. So any more

14 discussion, notes, vote, consensus? Do we have a

15 consensus?

16 If not, do we need to vote? Yes?

17 Consensus; passed by consensus.

18 MR. LELAND: Good. Holy cow.

19 We are done with the recommendations

20 now. Is there other business \-- we may have a

21 couple announcements here \-- is there other

22 business? We said we would talk a little bit

230

1 about the dissent issue. I don\'t know how else

2 to say it.

3 MS. PRICE: I want to make one

4 announcement for the public.

5 When we had the vote \-- because I

6 know that some of you are keeping track of the

7 vote \-- on recommendation 18, the vote was 8-7.

8 When I then announced it \-- I mean 8-5; I said

9 7-5. I just want to make clear it was 8-5. It

10 doesn\'t make any difference in the outcome of

11 the vote; I just said it wrong, and it is in the

12 transcript, to check it.

13 MR. LELAND: Yes, Julie?

14 MS. FOUDY: One thing we missed was

15 the introductory comments for the recommendations

16 section. We said we\'d go back there.

17 MR. LELAND: You are right; thank

18 you. Which is on page what, Julie?

19 MS. FOUDY: I can\'t find it,

20 actually.

21 A VOICE: We are on page 34.

22 MR. LELAND: Thirty-four. So I think

231

1 we\'re all \-- and we said we were going to come

2 back now and adjust this in a way that reflects

3 the will of the group.

4 So let\'s start.

5 MS. FOUDY: I have a comment on

6 sentence number two.

7 All of these recommendations are

8 designed to strengthen and improve Title IX

9 enforcement. Since we are not certain of the

10 impact of a lot of these recommendations and are

11 not sure what the impact will be, if it were in

12 fact strengthened or weakened, Title IX, I don\'t

13 feel comfortable with that sentence.

14 MR. GRIFFITH: Well, but, could you

15 modify it to say it is the intent?

16 I mean, I think what we are saying

17 here is that I presume it\'s the intent of every

18 commissioner, in whatever proposal he or she

19 made, to strengthen Title IX. I think that\'s

20 what it\'s getting at.

21 Now whether it will accomplish that,

22 you\'re right, is not clear.

232

1 MS. GROTH: I agree with Julie. I

2 don\'t think we need to have it in there. I think

3 we make our case throughout the document, in the

4 beginning about our intent not to compromise the

5 integrity of Title IX, and it just doesn\'t

6 belong. If we could just remove that?

7 MR. LELAND: Any other comments?

8 We\'re talking about the second sentence, all of

9 these recommendations \-- go ahead, Tom.

10 MR. GRIFFITH: One the \-- I mean, the

11 idea of the intent, I think, is important because

12 we voted on a series of different concepts.

13 If those concepts turn out to bring

14 us in the wrong direction, then I would not \-- I

15 would have reversed my vote if I had known that.

16 So what I want to say, Julie, here,

17 is that these recommendations, at least for me,

18 are designed to strengthen Title IX, provide

19 more opportunities for equal participation.

20 So I would be in favor of saying

21 that\'s the intent, and if the data and the

22 thinking outside the box on any one of these

233

1 proposals is contrary to that then I think those

2 of us who voted in favor of it would not be in

3 favor of it.

4 MS. FOUDY: What would your language

5 change be, Mike?

6 MR. SLIVE: Well, it would be a

7 tentative recommendation, is to strengthen Title

8 IX and to strengthen opportunities for equal

9 participation, and obviously if you strengthen

10 the opportunities for women to compete in

11 intercollegiate athletics.

12 MS. FOUDY: I\'m comfortable with

13 that.

14 MR. BATES: I had.

15 MR. LELAND: Tom, did that take care

16 of what you were thinking?

17 A VOICE: I have some questions on

18 number three.

19 MR. LELAND: Well, are we done with

20 sentence number 2? Are we okay with \--

21 MS. FOUDY: What did we decide on,

22 something similar to what Mike said?

234

1 MR. LELAND: I think so, right.

2 I\'m looking at our offers; are we

3 okay with that?

4 In effect, you are taking out the

5 designed to and in the intended to and then

6 adding a little bit at the end of the sentence

7 regarding, you know, providing equal opportunity

8 and some other things that Mike talked about.

9 MR. GRIFFITH: I would suggest we

10 strike the next sentence, though. I don\'t

11 think \--

12 MR. LELAND: Let me just over here to

13 Percy. He was patient today and he has the next

14 sentence in mind.

15 MR. BATES: Well, yes, I \-- if you

16 recall, when we started this I raised this

17 question about our indicating that some of these

18 may prove not to be feasible, and my assumption

19 was that what we put forward, where they all

20 portended to be feasible, so I didn\'t really like

21 that statement.

22 MS. COOPER: Yeah, let\'s take it out.

235

1 MR. SLIVE: You know, they may not

2 turn out to be feasible.

3 I mean, I think that part of what

4 I\'m trying to say is that if some of these

5 recommendations turn out not to be feasible

6 because they don\'t accomplish our intent and

7 purpose, th, you know \-- then we ought to be

8 instructors.

9 So that\'s not what we intended.

10 MR. BATES: And I think that\'s okay,

11 but I just don\'t think we need to say it up

12 front. I mean, if it turns out that way, that\'s

13 fine. That was my concern.

14 MR. GRIFFITH: The way it reads now

15 is, if we have really stupid ideas, we still want

16 you to think about this.

17 MR. LELAND: And I don\'t think we

18 want to say that. I think that\'s a kind of an

19 odd way to begin a document, I think.

20 So what kind of changes do you want

21 in that sentence, Tom?

22 MR. GRIFFITH: I would recommend just

236

1 dropping that.

2 MR. LELAND: I\'m sorry; the whole

3 thing?

4 From the Commission, all the way

5 through the study.

6 MR. GRIFFITH: That\'s right.

7 MR. BOWLSBY: Or how about leaving

8 the Commission in and striking, \"recognizes that

9 some of these recommendations not be feasible,

10 but\" and leave in, \"urges the Department to give

11 them serious consideration and study.\"

12 It is a simple statement of fact.

13 Is there a consensus for that?

14 MR. LELAND: Yea.

15 MR. BOWLSBY: Are you okay with that?

16 MR. LELAND: Any other comments or

17 concerns about that?

18 Okay. Any other unfinished

19 business?

20 I guess \-- it seems to be on the

21 fine \-- how does the sound? Are we \-- do people

22 feel that their voice of dissent was adequately

237

1 captured in the findings?

2 I think we went through the

3 spectrum, the background, the appendix, but in

4 the finding, I thought there was plenty of

5 opportunity, at least \-- I\'m not sure they\'re

6 there, for the people who didn\'t agree with

7 those too, ought to sort of throw their two

8 cents in.

9 That\'s probably demeaning, isn\'t it,

10 but is there anyone who would disagree with that

11 position?

12 MS. FOUDY: My \-- when we talked

13 about this yesterday, the point of adding in a

14 voice for the actual report, regardless of who

15 the minority voice is, that is crucial to the

16 process and we agreed that it was going to go in

17 there.

18 Now, my concern is with the net,

19 that we are not meeting again.

20 MR. LELAND: Let me finish with the

21 dissent issue. I know you may be concerned about

22 the missing. I almost forgot about the dissent

238

1 issue.

2 I mean, I\'m trying to organize this

3 in a way we can \-- are we comfortable the

4 dissent orders, comfortable that they\'re what we

5 call maybe minority opinion is adequately

6 captured in the recommendations \-- I mean, in

7 the findings.

8 MS. de VARONA: What I don\'t

9 understand is, where are you going with this

10 question? Are you asking this question as a

11 substitute for the verbal dissent that we

12 expressed during the process?

13 MR. LELAND: No, I\'m trying to figure

14 out \-- the verbal dissent you\'ve expressed during

15 the process.

16 MS. de VARONA: \-- will be reflected

17 in the report?

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

19 trying to \--

20 MS. de VARONA: It\'s very important.

21 MR. LELAND: Let me finish my

22 sentence. It is going to be reflected in the

239

1 minutes, okay? I mean, it is going to be

2 reflected in the transcript, all right? But \--

3 MS. de VARONA: Okay. I want to hear

4 the end of your sentence.

5 MR. LELAND: It is hard to talk to

6 somebody who is doing this.

7 MS. de VARONA: Okay.

8 MR. LELAND: Not impossible, but it\'s

9 not \--

10 Now, what I was hoping was that

11 during the findings, that the dissent, when and

12 if there was dissent, if it was to a point where

13 there was a vote \-- in other words, we didn\'t do

14 this by consensus \-- if we do it by consensus I

15 have trouble thinking we are going to go back

16 and add a lot of dissent.

17 I\'m just throwing this out as a way

18 to work our way through this. I\'m not sure I\'m

19 right. I\'m just saying this is a way to do.

20 MS. de VARONA: Yes.

21 MR. LELAND: So I was thinking, we

22 could go back through the findings and ask

240

1 people, you know, which ones did we vote on and

2 if they were consent we wouldn\'t worry about

3 those, but if there was votes, we would say to

4 those people who voted against the group that

5 gosh, would you like to add something here, or is

6 \-- can you read what we have now and decide

7 whether it is appropriate for you? I mean, does

8 it adequately represent what you want to say?

9 And then we would do the same thing

10 for the recommendation. And those were

11 recommendations. It seems to me if we voted by

12 consensus there wouldn\'t need be a lot of

13 verbiage in here \-- and there\'s not a lot in the

14 recommendations, anyway.

15 But then we\'ll go back and look at

16 those that we had voted on and the people had

17 dissented and it got passed anyway, would have a

18 chance to make sure that that part of the report

19 reflected their concerns.

20 MR. GRIFFITH: I would recommended

21 that the STRAF draft an explanation for each of

22 the votes, saying, this was the majority, this

241

1 was the minority, let the minority see it and

2 work with the staff to come up with a finding.

3 I think the agreement that we had

4 was that it was going to be succinct, right.

5 For example, I will not put my whole speech in,

6 you know, about numeric \-- the problems of

7 numeric formulas.

8 But staff will come up with a short

9 description of that and I presume as a courtesy

10 they\'ll run it by me to see if \--

11 MS. PRICE: In every case where we

12 had a vote, we have a recorded vote with a vote

13 count.

14 We can add an additional section to

15 the report, giving a record vote analysis or

16 however you want to call it. That\'s what \-- I

17 worked in the Senate forever; that\'s what we

18 called it.

19 Those documents gave the number of

20 the \-- identified what the vote was, what the

21 question was, what the vote count was, and then

22 said, states, \"those voting in support of this,\"

242

1 and then briefly describes that \-- I don\'t want

2 to use the word argument, but that argument.

3 \"Those voting in opposition,\" and

4 you state that argument and you \-- you know, you

5 can consolidate that into basically a paragraph

6 and get those.

7 So that even in the case where we

8 had a 12-1 or whatever vote, Julie\'s vote would

9 be recorded, and those voting in opposition, and

10 it gives that paragraph.

11 Now in \-- you know, in the \-- that\'s

12 generally the best way to go about doing it and

13 there is a section of the report clearly stating

14 what the vote was.

15 MS. COOPER: Donna, Donna, is that

16 what you want? That\'s what you asked for.

17 MS. de VARONA: Fist of all, I want

18 to thank the chairs for allowing dissent and the

19 ability for us to express it explicitly.

20 MS. COOPER: You\'re welcome.

21 MS. de VARONA: I think it was very

22 important to the process and the trust issue.

243

1 What I envisioned \-- I don\'t know

2 whether \-- I think this is a question of

3 understanding what you\'re trying to say to me

4 and I\'m trying to say to you \-- it was my hope

5 that after each recommendation or finding, below

6 that specific one, not at the end of the chapter

7 but as the secretary goes through it, you

8 demonstrate the votes, you report the votes and

9 then you \-- if it passed; I\'m not so sure \--

10 you\'d explain why it passed and then the dissent

11 is, you know, explicitly explained right below

12 that.

13 So it is embedded in the process,

14 not at the end of the report, with the vote

15 tally.

16 MS. COOPER: That\'s what you just

17 said, right?

18 MR. LELAND: That\'s what I said.

19 MS. de VARONA: That would be

20 something I\'d prefer. Now the question is, how

21 do we accomplish that?

22 MR. DISKEY: Now are you saying this

244

1 goes for recommendations that passed and failed?

2 The dissent yesterday was talked

3 about in a \-- because it\'s not a recommendation

4 if it failed.

5 MS. de VARONA: No, if it failed, we

6 don\'t \--

7 MR. DISKEY: So if it didn\'t fail, if

8 it set, for example, I think Tom, recommendation

9 five, if that failed \-- so that\'s what we need to

10 know.

11 MS. PRICE: Let me make one point.

12 What Donna just explained is

13 certainly something that can \-- we can do, and

14 talking through the recommendations and that

15 part.

16 I do think it is also important

17 historically, because some failed, some passed,

18 to have a separate section stating the vote,

19 stating the count, and the same with the

20 recommendation with stating that count, whether

21 it passed or failed, and giving \-- and stating

22 what those two arguments are.

245

1 That way, it doesn\'t have to be a

2 separate thing. It is almost like \-- it could

3 almost be an appendix on recorded votes, and

4 then you just, you know, it is just a brief

5 explanation so the report, you could clearly see

6 all the votes we took, what they were, what the

7 vote count the opposing side, you could you say.

8 MS. FOUDY: But that\'s in addition

9 to \--

10 MS. PRICE: After you have the

11 recommendation then you have the rationale and

12 then you have the dissenting \--

13 MS. de VARONA: Do we have to vote on

14 this?

15 MS. FOUDY: But the dissenting voice

16 is in the actual report?

17 Okay. My next question is \--

18 MR. LELAND: I\'m uncomfortable that

19 that\'s settled yet. I know you want to move on

20 to the next thing, but give me a chance here.

21 I am \-- we have worked for the last

22 day and a half and reviewed this particular

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1 draft, and to create a whole new section now \--

2 which is what I\'m understanding we are going to

3 do for people who voted no \-- I had more

4 envisioned what Donna said, what I thought Donna

5 said, which was we would take exactly what we

6 wordsmithed here, and in those areas where we

7 had a vote, where there wasn\'t consensus, we had

8 a vote, we would give the people that voted in

9 the minority a chance to read that, what we have

10 written, and if they don\'t think that adequately

11 captures their concerns we\'d give them a chance

12 to work with the authors to re-do it.

13 But it\'s right in the middle. So

14 recommendation one on page 34 looks exactly like

15 this, if it\'s passed by consensus.

16 And if recommendation two wasn\'t

17 consensus but it passed ten to four, we give the

18 people that were concerned enough to vote

19 against it, make sure they get a chance to look

20 at this and maybe add a paragraph if they so

21 choose.

22 They don\'t necessarily \-- they have

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1 to do it, author it with these guys and we\'ll

2 have to take a look and make sure it\'s all

3 approved in the end.

4 That\'s \-- I mean, because I don\'t

5 want to redo all this wordsmithing we\'ve done

6 but I do want to give \-- make sure that the

7 people that \-- and we committed at the beginning

8 of this, people that had dissent would get a

9 chance to throw their \--

10 MR. GRIFFITH: The only thing I would

11 suggest as well is that on the losing

12 propositions, as Debbie said, we make a

13 historical record, that that be included as well.

14 I think there were not many.

15 MR. DISKEY: Ted, and the approach

16 would be to tackle that in the appendices \-- one

17 of the appendices?

18 MR. LELAND: Yeah, well I think \--

19 there are two issues.

20 MR. DISKEY: That keeps it out of the

21 body of the record.

22 MR. LELAND: We could do what she

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1 suggested, have a short appendix that would say,

2 you know, these were the defeated recommendations

3 \-- these were draft recommendations that were

4 defeated.

5 MS. PRICE: In that case, it really

6 is \-- I mean, if you do that for some of those,

7 you really should do that for all.

8 And it isn\'t \-- it would be

9 inappropriate to have an index on recorded

10 votes. It is such a standard document in most

11 institutions that do votes, to do something like

12 that. That way \-- because \--

13 MS. FOUDY: My point for the defeated

14 documents at the end, if they\'ve gotten defeated,

15 the point is so that they don\'t go into the

16 report. Now they\'re going in the report.

17 MS. PRICE: Okay.

18 MS. FOUDY: So why do we need that?

19 I think should stick with the rationale and then

20 the dissenting voice underneath.

21 MS. PRICE: Okay.

22 MS. FOUDY: And maybe you would just

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1 put a vote tally right next to the

2 recommendation. Why do you need an appendix for

3 that?

4 MR. GRIFFITH: I think it was a \--

5 because you are creating historical records. You

6 are not making a recommendation but you\'re saying

7 this was discussed by the commission and it went

8 down in flames.

9 MR. BOWLSBY: Why is the dissenting

10 voice of a defeated not as valid as the

11 dissenting voice on a passed recommendation?

12 MS. FOUDY: So you are going to put

13 that where?

14 MR. LELAND: We\'ll have an appendix.

15 I think what we\'re working on \-- this is a work

16 in progress, but the idea might be that an

17 appendix, or an appendix at the end could be

18 labeled as, you know, non-approved, non-forwarded

19 motions, or whatever you want to call it, and

20 that gives us a chance to use an appendix, right?

21 MS. FOUDY: And you give the vote

22 tally on the \--

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1 MR. BOWLSBY: Could we all agree

2 here, leaving here, though, that what goes in as

3 the dissenting voice after each of these

4 proposals that we\'re forwarding is, as Tom said,

5 succinct, captures the essence of what it is, but

6 it isn\'t intended to flesh out an argument.

7 And I think we need to be vigilant

8 about that one.

9 MS. FOUDY: Can I just bring up my

10 point?

11 MR. LELAND: ARe we okay on how we

12 are going to handle dissent, at least to this

13 point in time?

14 MS. FOUDY: No, well, that\'s what my

15 question\'s about.

16 The dissenting voice, how we are

17 going to handle it, fine with it. The context

18 of it and the content and what goes in there,

19 how, if we cannot give by law, I thought,

20 without meeting \--

21 MS. PRICE: I can answer that easily

22 for you. I can tell you exactly what you do when

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1 you work in the House or the Senate and you write

2 a record vote analysis.

3 What you go is you take the text of

4 the debate and you actually \-- I mean, you

5 generally take actual sentences from the debate

6 that define the debate and put them in a

7 paragraph that makes sense. You might have to

8 edit a few words to make it grammatically

9 correct, but you take that from the text of the

10 debate.

11 So there \-- it isn\'t a matter of \--

12 it isn\'t all that different from what we did

13 with our Philadelphia meeting. We discussed the

14 recommendations and often you listed Bill and

15 Jay and said you could put that into a

16 recommendation, all those thoughts. They said

17 yes and we did it.

18 It\'s not all that different than

19 that, but it reflects \-- you know, it\'s just \--

20 MS. FOUDY: Something that was

21 already on public record?

22 MS. PRICE: Yeah, it\'s already on

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1 public record.

2 MS. FOUDY: Okay. So my part B to

3 that will be, do we get to choose? If we don\'t

4 like \-- I mean, there was a lot said. If we

5 don\'t like what was reflected in there do we have

6 an opportunity to say, of things we said off

7 public record, I would rather have this in there,

8 to make my point. more clear.

9 MS. PRICE: Okay. What we can do is

10 \-- Bill\'s eyebrows just did one of those things

11 \-- when we send the document out, it will go out

12 for your comments for editing, and certainly that

13 section will be edited.

14 All 15 of you will make edits and

15 comments on it. Some may edit 20 \-- ten

16 different ways on one sentence. We will have to

17 consolidate those edits.

18 But that will be \-- yes. Basically

19 the answer is yes, but in light of the fact that

20 15 people will give their opinion on it, there

21 does need to be a point of consolidation when

22 that \-- and that generally is the prerogative of

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1 the co-chairmen of the committee to assess that.

2 MS. FOUDY: But if it is a dissenting

3 voice, shouldn\'t that dissenting voice, whoever

4 it is, decide on what it is?

5 It shouldn\'t be something that\'s

6 left open to the debates.

7 MS. PRICE: You most likely will be

8 the ones that have comment on that section and

9 that would be taken more serious.

10 You know, if \-- and for example if

11 you were the only dissenting voice on that one

12 votes, for everybody else to say, oh, no, Julie

13 meant this \--

14 MS. FOUDY: Let\'s go to one where

15 there was, you know, maybe three of us

16 dissenting, and what we want in there the rest of

17 the group doesn\'t agree with? What\'s the process

18 for that?

19 MR. GRIFFITH: Well, you know, I

20 think realistically it is not going to happen.

21 Staff is going to take the first crack at it, and

22 they are going to be fair, right?

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1 MS. PRICE: Yeah.

2 MR. GRIFFITH: And then you are going

3 to get to look at it, and if you don\'t like it,

4 you are going to work with them to wordsmith it.

5 It\'s \-- you know, no one\'s going to

6 pull a fast one here.

7 MS. FOUDY: We are allowed to make

8 substantive changes to it.

9 MR. GRIFFITH: Recommendations to

10 staff.

11 MS. FOUDY: Not just grammatical \--

12 MR. GRIFFITH: They\'re going to get

13 it right.

14 MS. PRICE: I mean, for example \-- I

15 can\'t even think of an example \-- there\'s a vote.

16 Four people opposed it, we send it out and then,

17 best intentions summarized but missed the most

18 important part of one of the four people and they

19 said oh, I really wanted this aspect of it in

20 there, we\'ll put it in.

21

22 MR. GRIFFITH: I don\'t know if you

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1 want to \-- I think if you have a particular

2 portion of the proceedings you feel strongly

3 about in your dissent, you could let it \-- you

4 could let them know and work with them from the

5 very beginning: Gee, this number six was the one

6 that bugged me the most, and let me tell you what

7 I want to say.

8 MS. PRICE: It generally works out

9 actually quite well. When you look at the actual

10 debate, it\'s not \-- I\'m sorry \-- it\'s not rocket

11 science. It usually comes together pretty well.

12 But I would imagine there would

13 probably be some \--

14 MS. FOUDY: Okay.

15 My second question is, the entire

16 draft isn\'t the entire draft.

17 Some of these things we never got

18 back to. We never got back \-- I don\'t believe;

19 I could be wrong. I\'ve been known to be wrong

20 before \-- the Cohen case language, we never got

21 back the Smith College numbers, and we never got

22 back the language at the end of the background

256

1 section about decrease versus increase in

2 numbers, which I think is a very important point

3 that we debated on.

4 So when we get this draft back, I

5 know because we can\'t meet, and we are not

6 meeting again, that all we can give is

7 grammatical changes; nothing of substance,

8 correct?

9 And how \-- I think \-- I feel like

10 there \-- that we are walking away from this and

11 it\'s like, wipe your hands clean; okay, it\'s

12 done.

13 I feel uncomfortable because I

14 haven\'t seen, and because I haven\'t seen it, I

15 can\'t make changes to it because we have no form

16 to do that, and I feel uncomfortable without

17 having a form to do that, signing my name to it

18 without seeing it; you know what I\'m saying?

19 Without that step.

20 MR. LELAND: Well, I think we are

21 going to try to get you a copy of the next draft

22 and ask you make comments on it and I think we\'ll

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1 probably accommodate \-- well, we will. We\'ll

2 accommodate as many of those comments as we can.

3 If we can\'t accommodate them, I

4 think it will be up to Cynthia and I to sort of

5 adjudicate that and we\'ll try to give you a call

6 or we\'ll work with you on what the issues are.

7 I don\'t think we want to hand in

8 anything that, you stand up publicly and say no,

9 I disavow this. That doesn\'t move equal

10 opportunity forward at all.

11 So we\'re going to try to be as fair

12 as we can, but we don\'t have the dates and stuff

13 right now, because we have a lot of work to do.

14 MS. FOUDY: And I understand your

15 point, but my point is, I can\'t make comments.

16 Legally, I can\'t make comments because we are not

17 in a public forum.

18 I thought you said we couldn\'t make

19 any substantive changes to it without the

20 agreement from the rest of the group.

21 MS. PRICE: What we will be talking

22 about here will be regarding the Cohen case, the

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1 four points that you made; the fellows will draft

2 up those pieces.

3 We can e-mail you those in context

4 so you can see how it flows.

5 Those specific ones an continue on

6 with the draft, get that done and over, get your

7 all to sign off on that language.

8 We may wordsmith it a tad, but I

9 don\'t think that would \-- I mean, we know what

10 \-- we had talked with the transfers. We talked

11 those issues about what the desire for those

12 section to be. I don\'t think that that is

13 inappropriately making substantive changes.

14 That is responding to the dialogue

15 that\'s occurred here occurring today.

16 So we can send those changes out.

17 If you have edits to those changes \-- I don\'t

18 think those areas are a problem, Julie, is what

19 I\"m saying, because we\'ve got the dialogue, we

20 see the direction that you-all went.

21 MR. LELAND: Other questions?

22 MS. GROTH: I would like to reiterate

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1 what Julie just said, and I appreciate your

2 bringing up those \-- the Cohen case and those

3 others, because those are very important to this

4 document.

5 So we are going to be \-- I\'m trying

6 to reiterate what you just said \-- you are going

7 to finish those or prepare those, send them out

8 to the commission members, all of us.

9 MS. PRICE: And you all will quickly

10 get back. I mean, send them out so, you know, we

11 can back with those within two business days or

12 whatever. They\'ll be short piece so they won\'t

13 take a lot of reading.

14 MR. LELAND: Let\'s just answer the

15 questions and then we\'ll go.

16 MS. de VARONA: I just have a problem

17 with two business days, because when this report

18 was written, it got to me at a time when I\'m on

19 \-- when I was on assignment, and I was only then

20 allowed to participate in edits and not

21 substantive stuff in writing it, so I never

22 really wrote \-- was part of the writing of this

260

1 document.

2 So I\'m concerned about the other

3 end, that I might miss, you know \-- I think we

4 need a little more time.

5 MS. PRICE: We will take that into

6 consideration when we make any of those kinds

7 of \--

8 MS. FOUDY: Well, especially since

9 the things that we need to look at are limited in

10 number.

11 I mean, there was the edit of NCAA

12 numbers. I wanted to be put in the background;

13 the disparities fill the gap.

14 And can we get those within, like,

15 five days, so that we have time? Can we say

16 that so we are not getting it right at the end?

17 MS. PRICE: Yeah, no. We can get

18 those \-- seven days. Bill is moving

19 cross-country this weekend and he\'s been working

20 from laptops.

21 MS. GROTH: Once all the changes are

22 made and the document is put together, the final

261

1 document, how do we approve that? I mean, what

2 happens next? I mean, if \--

3 MS. PRICE: Well, I mean, is this it?

4 MR. GRIFFITH: This is it.

5 MR. LELAND: Let me tell you what I

6 think\'s going to happen, okay?

7 We no longer have a quorum so we are

8 just talking, right?

9 What I think is going to happen is

10 that we are going to work like crazy with the

11 authors over the next seven or eight or ten days

12 and try to get another draft of this document

13 done that reflects, as best as possible, the

14 will of the group.

15 It\'s not going to be perfect, but

16 we\'ll do the best that we can. That\'s what we

17 have done.

18 Then we\'re going to send it out to

19 all of you and give you as many business days as

20 we possibly can for you to make comments and

21 changes in it.

22 We\'d appreciate if those wouldn\'t be

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1 substantial changes like new proposals or

2 anything like that, but we to make sure and we

3 won\'t have to spend \-- have special awareness at

4 that time that those that dissented would have

5 appropriate \-- feel good about the reflection of

6 their dissent, all right? In the document.

7 Then you would send it back to us.

8 And then, in effect, Cynthia and I will oversee

9 the final document.

10 When it is done, it will be done, it

11 will be printed, and Cynthia and I will deliver

12 it to someone.

13 I think that\'s what\'s going to

14 happen next. So we\'ll all get together again

15 and sign it? No, I don\'t think so.

16 MS. YOW: So we could make

17 suggestions but that\'s what they are, and we will

18 not dictate what actually the final version,

19 because you and Cynthia as co-chairs will take

20 care of adding \--

21 Would the document that you send us,

22 will it be confidential? Would it be the kind

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1 of document that if we have an issue we\'d like

2 to tell you instead of someone else?

3 MS. PRICE: The document is

4 confidential until it is handed to the Secretary.

5 And obviously 99.89 percent of it is

6 known.

7 MR. LELAND: We\'re going to just stay

8 here all day.

9 MS. FOUDY: No, we\'re not. And

10 you\'ve heard my last comment about this.

11 But I just feel like in the future

12 that we should have added. I mean, this is too

13 late, but we should have had another meeting to

14 at least go over a final copy, and then \-- I

15 mean, there\'s going to be changes, and how much

16 we have to say in that is going to be left to be

17 determined, and I know we\'ve gone over a lot of

18 it before, but it just seems to me that the

19 process is flawed a bit and that we don\'t have

20 one more small step in there that says okay;

21 we\'ve done all these things; here\'s our final

22 draft; let\'s look at it and sign off and we are

264

1 done.

2 MS. PRICE: But Julie, you do realize

3 that you did vote or have consensus on every, or

4 almost every aspect of the document except for

5 the four pieces that you mentioned, and I think

6 there was a question on the definition.

7 Anything that we signed off on today

8 doesn\'t get changed.

9 MR. LELAND: I would \-- and since we

10 are all talking, I would agree with you. It

11 would be nice to have, because we have done a lot

12 of wordsmithing. It would be nice to make sure

13 all the wordsmithing that was done really works

14 and that the words work together the way we hoped

15 they would and the thing flows, because I think

16 we\'ve done a lot of good work with this

17 wordsmithing.

18 I think we are going to have to do

19 it electronically from here. We\'re just going

20 to have to get your comments back, and get them

21 back and put them in binders.

22 But I agree with you: It would be

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1 nice if the world were perfect, if we could all

2 get together again here and go through it page

3 by page and make one final set of drafts.

4 MS. de VARONA: Thank you.

5 (Off the record 1:25 p.m.)

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