Title IX Commission Approves Some Recommendations, But Leaves the Decision on Proportionality Until Today

By Gary Abbott/USA Wrestling

WASHINGTON, DC, Jan. 30. THE final meeting of the federal Commission on Opportunity in Athletics was hosted in the Hotel Washington in our nation’s capitol starting on Wednesday.

After more than half a year of meetings held all across the nation, it was time to finish the work of the 15-person blue ribbon panel examining Title IX.

The Commission’s task was to approve or deny specific findings and recommendations that were formed through their working meetings.

By the end of the day, all of the findings were addressed and 11 recommendations were voted on. However, the controversial discussions concerning proportionality remained for Thursday, the final session of the entire process. The big decisions are being left until the end.

The crowd was sparse at the beginning of the meeting, quite a surprise considering the amount of discussion in the public forum. Both sides of the argument held press conference activities on Tuesday and there were numerous media reports on the topic all across the nation. It almost seemed like there were more journalists than members of the general public in the seats in the meeting room.

The meeting started off with sparks right away in the opening comments of co-chair Ted Leland, the athletic director of Stanford. He directly addressed the criticisms against the Commission, its staff and the process, as publicized by the groups who oppose any change.

"This process, in my opinion, has been open and fair," said Leland. "I believe the draft has been a reflection of the consensus of the commission. Some organizations have misrepresented our work and provided the worst case scenarios. This speculation and misrepresentation has done us no good."

Right after Leland finished, the two most vocal commissioners who have fought for the status quo, came out against the fact that there will be no minority report.

Donna DeVarona immediately said that she was participating "under protest." After complaining that her understanding was that minority opinions would be published, DeVarona concluded by saying, "I don’t want to be in front of a Senate hearing about this."

Julie Foudy, current president of the Women’s Sports Foundation, also was upset about the lack of a minority voice in the recommendations. "We are missing a crucial step. We need more time. We don’t have a consensus… the minority report will not be a part of the public record. Essentially, you are putting a gag order in there for those who don’t agree with the majority."

Lisa Keegan reacted strongly against the comments by DeVarona and Foudy. "It is disingenuous to say we didn’t have a voice here," said Keegan. She commented about the endless emails that each commissioner has received daily from special interest groups that crashed their computer servers. "I resent what is being said for the record, and just to appear on the front page of the newspaper. It makes me angry."

A compromise was introduced and approved, permitting a brief paragraph of dissenting viewpoints to be included in the report when a vote is held and there is no complete agreement.

In addition, the commissioners approved the request that each commissioner receive a copy of the report before it is turned in to the Secretary of Education. Foudy and a few others attempted to allow the commissioners to continue to make changes at that point, but that request was not accepted.

The meeting got rather boring once the committee started discussing the actual document. Since the public and the media were not provided the document to review, it was impossible to know exactly what was being discussed. The committee spent the first few hours battling on the introduction and background sections, getting bogged down on wording.

Foudy and Groth made a serious attempt to change the part of the document that says that men’s opportunities have decreased. Bob Bowlsby strenuously objected, citing wrestling, gymnastics, swimming and others that have suffered considerably.

Foudy continued to push for using the 2001 GAO study that says men have gained. Rita Simon stood up strongly for using the word "decreased" when discussing men, citing a report provided by witness Jerry Kravitz during the San Diego hearing.

Ultimately, Foudy did not get what she wanted, but did get the group to agree that men’s participation rates "have not changed appreciatively."

Soon thereafter, the commission was forced to take a break when it could not agree if a minority viewpoint would be included in the background section. Ultimately, the co-chairs determined that opposing viewpoints will not be included, except in the recommendations.

It was not until 11:50 a.m. when they finally reached the findings, the statements of fact and information. These discussions went a little more quickly in comparison, although slight changes in the wording were considered in some of these findings. These are not action points, and were not controversial in most cases.

However, Foudy took issue with many points, including the exact meaning of the landmark Cohen vs. Brown case and what its effect was on Title IX enforcement. After the Cohen comments finally wrapped up, Leland asked people to work faster on the points. Graham Spanier attempted to get the commission to consider all of the findings at once as a group, but was overruled by Leland, who allowed discussion on each finding.

Lunch was delayed 30 minutes, and was shorter than normal. A very small group of women marched outside two doors of the hotel at this time, holding up signs and chanting "Save Title IX."

Also during the break, the College Sports Council held a press conference at the National Press Club. The speakers were a collection of leaders from the Olympic sports family, as well as groups seeking change in Title IX.

Those who spoke at the podium included Eric Pearson of the College Sports Council, coaches Dan Gable (wrestling), Tim Powers (swimming), Ron Galimore (gymnastics), plus College Sports Council lawyer Larry Joseph and Charlotte Hays of the Independent Women’s Forum. Some reporters attending the hearings came over for lunch and discussion on Title IX.

"We are looking for a fair and reasonable interpretation that protects women without hurting men," said Moyer.

In response to a question concerning interest in sports, Tim Powers said, "There has been no effort to go to each school to find out what the interest there really is. Without accurate numbers, how do you know?"

After lunch, the tone of the hearing was more subdued, and the activity went faster. The rest of the findings were quickly passed, except one about student interest, which was deleted. The finding rejected, which had been initially forwarded by Foudy and DeVarona, was "A one-time survey of student interest would not adequately reflect women’s interest, since interest levels can change over time."

The more important part of the discussion came at 1:10 pm. when the group went into votes on the recommendations. With slight adjustment, the first three recommendations were approved without much debate. A proposal offered by Tom Griffith, requiring the OCR to follow the "normal federal rulemaking process," was brought to a vote, with 12-1 in favor, and only Foudy voting no.

Recommendation four, which was written by Foudy and Muffet McGraw (who was not there), received considerable attention. A number of the commissioners felt that the wording would be an endorsement of the status quo. A number of different suggestions were made, and the recommendation was tabled until a new draft could be formed. The changes that were finally made took out the clause "the spirit and purpose of existing interpretations" which was in Foudy’s original suggestion.

Recommendation five was tightened to read: "The Office of Civil Rights should make clear that cutting teams in order to demonstrate compliance with Title IX is a disfavored practice."

DeVarona added wording in the description that goes with this recommendation to say that student-athletes should be given an explanation and adequate time when a program is cut, which was also approved.

Recommendation eight involved the discussion of encouraging the reduction of "excessive expenditures" in college athletics, particularly football and men's basketball. Although the recommendation was reduced in size, it did include the clause that suggested the possibility of seeking "an antitrust exemption for college athletics." The vote went 12-1 in favor of the recommendation, with only Tom Griffith opposing the possibility of an antitrust exemption.

There was an active discussion about the Equity in Athletics Disclosure Act. Two conflicting recommendations were presented. One was to change the EADA forms to include information on compliance with prongs two and three. The other proposal was to request the repeal of the EADA report requirement. Discussion went back and forth as whether the report could be simplified, or just should be scrapped. Graham Spanier was the biggest advocate of eliminating EADA reporting, calling it "wasteful and inefficient."

In an 8-6 vote, the proposal to eliminate the EADA report requirement failed. From there on, a discussion dragged on about how to make the reporting more efficient and meaningful. A revised recommendation was passed that said that the EADA should be redesigned "so that it provides the public with a relevant and simplified tool to evaluate the status of Title IX compliance." The suggestion to use the EADA on the high school levels was rejected, however.

The final argument was also quite spirited, concerning the private funding of sports. DeVarona made the original recommendation, but wanted it amended to require all schools to use those funds within Title IX regulations. OCR Director Gerald Reynolds stood up for flexibility in this area. Foudy was strongly against changing anything regarding how private funds are currently being handled.

In the final vote, both sides got what they wanted. DeVarona was able to change her recommendation, but Reynolds also received the ability to consider flexibility in this area.

What was expected to be a lively and spirited session was tame in comparison to all the hype. The ultimate legacy of this commission was put off for another day. Thursday morning is when the final act of this six-month drama will finally be performed. Stay tuned.

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