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NCAA Division I Breakout Session
Issues Related to Complying with Title IX - Financial Aid Requirement and NCAA Caps
(Tuesday, June 16, 9:30 - 10:15 a.m.)

Charlotte West:

Good morning. I'm Charlotte West, senior women's administrator at Southern Illinois University-Carbondale. Our topic this morning is entitled, "Issues Related To Complying with Title IX Financial Aid Requirements and NCAA Caps." Our featured speaker today is Elsa Pershier Cole. Let me tell you a little bit about Elsa. She is the general counsel for the NCAA. Prior to that, she was general counsel for the University of Michigan for eight years. Previously, assistant attorney general for the state of Washington, where she was assigned to represent the University of Washington. She is the co-author of the National Association of College and University Attorneys pamphlet, How to Investigate a Sexual Harassment Claim. Recently, she edited the third edition of Sexual Harassment on Campus.

Elsa has served on the NACUA Board of Directors and is a frequent writer and lecturer in the field of higher education law. Miss Cole is listed in Who's Who in the World, Who's Who of American Women, Who's Who in American Law, Who's Who in the Midwest and soon, Who's Who in NACUA. Miss Cole received her BA from Stanford and her JD from Boston University.

Elsa Cole:

I'm not quite sure where that file came from and I'm sure you're all wondering why someone with expertise on sexual harassment is now a general counselor at the NCAA. I've worn many hats in my legal career and this is a new privilege and a new challenge. Actually, there is a lot I learned on college campuses implicable to what I'm doing now at the NCAA and it's been a pretty smooth transition.

I'm going to talk this morning about an issue that many of you in Division I schools are facing, which is how to come into compliance with the financial aid requirements of Title IX and also maintain the requirements that are in our NCAA rules regarding financial aid limitations in various sports.

Those of you who came in late, did not get a copy of a handout. Let me tell you what's on this handout for those of you who did not get it. I've listed the federal regulations and the Office of Civil Rights policies regarding financial aid awards and Title IX.

There are no cases that really go in and discuss what is needed on a college campus regarding financial aid in regard to Title IX. There is only one reported decision and it isn't of much value. The case was out of the Southern District of Iowa. All that we have in this area is the way the federal office has interpreted the regulations that they propounded.

The applicable federal regulation is found in 34CFR, Section 106.37. You need to know what it says. It says regarding student-athletic financial assistance is that to the extent that a recipient, meaning a school, awards athletics scholarships or grants-in-aid, it must provide reasonable opportunities for such awards for members of each sex in proportion to the number of students of each sex participating in interscholastic or intercollegiate athletics. Separate athletics scholarships or grants-in-aid for members of each sex may be provided as part of separate athletics teams for members of each sex to the extent consistent with this paragraph.

What does that mean? Well, what the Office of Civil Rights says in its policy guidance is that the department will examine compliance for this provision primarily by means of a financial comparison to determine whether proportionately equal amounts of financial assistance, scholarship aid, are available to men's and women's athletics programs. The department will measure compliance for this standard by dividing the amounts of aid available for members of each sex by numbers of male or female participants in the athletics program and comparing the results. Institutions my be found in compliance if the comparison results in substantially equal amounts or if a result in disparity can be explained by adjustments taken to account for legitimate non-discriminatory factors.

There's been a lot of confusion because in the same paragraph of this regulation, one point the department refers to proportionately equal amounts and a later part refers to substantially equal amounts. The latest word from the Office of Civil Rights is that substantially equal is not the standard. The standard is proportionately equal. That will become important as I go through and explain what's going on now in the investigations that are being conducted of 25 schools by the Office of Civil Rights.

In June 1997, the National Women's Law Center filed a complaint with the U.S. Department of Education's Office of Civil Rights alleging that 25 NCAA institutions were not in compliance with the regulations I just read to you. They said the financial aid awarded to female student-athletes was not proportionately equal at those institutions. In response to those allegations, several institutions claimed the NCAA's financial aid limitations in Bylaw 15.5 made it difficult to comply with Title IX financial aid requirements.

Last fall, the Office of Civil Rights contacted the NCAA alleging this as well. The statements and concerns of member-institutions led the NCAA to form an internal Title IX study group to review this issue last summer. Group members included myself, Janet Justus, Wally Renfro, Ursula Walsh, Todd Petr and Athena Yiamouyiannis. We concluded that while it is possible to comply with both NCAA rules and Title IX, NCAA Bylaw 15.5 can create difficulties for an NCAA member school, particularly if a school awards maximum amounts of grants-in-aid in football. As participation opportunities for women at member institutions increase, it appears that Bylaw 15.5 will pose a greater problem for the NCAA membership. A Title IX study group, therefore, recommended that this matter be referred to the appropriate body within the membership to study further. The information was forwarded on and they have forwarded it to the Division I Financial Aid Committee for study and review. Many of you may have seen the recommendations that have come out of that group. Charlotte will go over those with you in a moment.

We gave the Financial Aid Committee information regarding the 25 schools that are being targeted by the National Women's Law Center and their sports sponsorship information. Also, information that we've received from various colleges and universities complaining about problems that were being created by the financial aid limitations in 15.5. We gave them information we had collected from various sources including the gender equity results that came out of a NCAA 1997 study. We looked at the materials that OCR used when investigating schools.

The study group determined that, according to Division I statistics, Division I, as a whole, was awarding aid to men and women athletes in approximately the same proportion as a percentage of their participation in intercollegiate athletics, which is about 65 percent male and 35 percent female split. However, the NCAA study group noted that as most student bodies are more evenly split, female and male, it can be anticipated that as female/male athletics participation approaches 50/50, most institutions will experience difficulty in complying with Title IX's financial requirements and also complying with Bylaw 15.5.

The current situation at a member school is a good illustration of the problem. Schools sponsor six men's teams, which is, of course, the NCAA Division I minimum and nine women's teams, which is two over the minimum. If the school were to provide the maximum scholarships awards permitted by NCAA rules, they would be in violation of Title IX because they'd be providing 115 scholarships for men and only 85 for women, a difference of 30 scholarships. While their male/female student ratio was 52 percent to 48 percent. The study group found that this school did not have an isolate problem. It would exist at any school sponsoring the six most popular men's sports and the eight most popular women's sports. If they did that, there would be a 36.3 scholarship difference between the men and women student-athletes at the school.

The NCAA member school also argued to the NCAA that our rules regarding head count versus equivalency sports was part of the problem. Because a school had 113 football players and provided 85 full scholarships which is, of course, the NCAA maximum, this meant on average, that a football student-athlete was awarded three-fourths of a scholarship. The women's track, 18 scholarships, again the NCAA maximum, were divided among 43 participants. This meant, on average, a female track student-athlete at the school received about .4 of a scholarship. If the school added another women's sport, with the same allocation percentage as track, in other words, about .4 scholarship per female student-athlete, more participation opportunities would be created, but the financial aid proportion per female student-athlete would not increase.

The study group discussed several possible resolutions to this problem. Schools could provide additional scholarships to women up to the NCAA maximum for those schools who are not currently utilizing available opportunities. Schools could provide fewer scholarships than the NCAA maximum to men, but this, of course, was not a preferred solution. The NCAA could revise standardized maximum financial aid limits for sports for competitive equity purposes and to control costs. The NCAA could also review the number of head count opportunities versus equivalency opportunities for women and men who receive scholarship dollars to make sure that it's equitable. This, of course, would necessitate reviewing average squad size for specific sports and amending NCAA financial aid legislation to allow an equitable proportion, men and women, to receive scholarships, should the institution decide to award the maximum grant-in-aid permitted.

While the group was studying these various possibilities, the Office of Civil Rights contacted the NCAA with concerns that the NCAA financial aid limits made it difficult for NCAA member schools to comply with Title IX. The Office of Civil Rights informed the NCAA they wanted to find different ways to solve this problem. They wondered if it was possible for waivers to be granted to schools having these types of difficulties. Although the NCAA, of course, has the administrative review panel which is allowed as a body to hear waiver requests of any of its rules, we thought that was probably not a very realistic solution since there would be an impact on competitive equity should the panel make a special case for one particular school. The Office of Civil Rights indicated it wanted to continue to have the dialogue. Last May, we met with the Office of Civil Rights in Chicago to discuss further what their requirements were and what their expectations were now for these 25 schools and for other schools in Division I.

The Office of Civil Rights informed us that at this time, they had not issued any conclusions regarding the 25 schools that are under investigation. They do think they will be coming out with findings on some of these schools fairly soon. They said they would not wait until all 25 schools were investigated and had reached a conclusion with all of them before announcing their results regarding particular schools. They told us they were looking at only athletics scholarship money right now, but not looking at other money being awarded to student-athletes. They're only focusing on this investigation because the complaint was on aid based on athletics ability.

The Office of Civil Rights agreed with the NCAA that a school can be in compliance with both Title IX and the NCAA rules today, but they recognize with us that there is a possibility of more problems in the future. This is caused by schools in the wake of the decision of the Brown University case deciding that they are going to have difficulty if they can't show a continuing pattern of increasing more sports opportunities for women and they can't show to the satisfaction, potentially of a court, that they're meeting the interests and abilities of women on campus. Inevitably, they're going to be pushed into making a decision that they're going to have to offer the same amounts of athletics participation and, therefore, scholarships to men and women in proportion to their undergraduate representation on campus. In other words, a campus that is now in compliance with Title IX because they have only 35 percent of women in participation on their teams and their scholarships are now at 35 percent for women of their total athletics package, is going to have problems in the future when they're going to be forced by Title IX and other factors in society as well, to increase those opportunities for women. The idea that if you take as correct the OCR's interpretation what the interests and abilities of women are out there, that eventually, women's participation is going to equivalent to their undergraduate numbers on campus. In other words, if you have 50 percent men and 50 percent women, you're going to go to a 50 percent men participation in athletics and a 50 percent women participation in athletics.

As that starts to happen, these financial aid limitations in the NCAA rules will cause larger problems for campuses. What the NCAA did not want to happen is for schools to decide to add a sport for women merely because of the number of financial aid opportunities it presented rather than because there was an interest and ability of women on that campus to participate in that particular sport.

There was some understanding at some point that had been created that if say, you had 35 percent women participating in athletics, that if you were within five percent of that number in your scholarship money, you were okay. If 30 percent of your money went to women and 70 percent went to men and your participating was at 35 percent for women and 65 percent for men, you were okay. You were in a safe harbor at that point. The Office of Civil Rights told us they were rejecting that five percent variance. They acknowledged that, in the past, individual offices may have approved that for various schools, but that was not going to be the national standard from this point forward. It was also questioned that if you were within three percent, were you in safe harbor and in compliance with Title IX. The Office of Civil Rights told us that also was a position they were rejecting. They said that a three percent disparity was too much especially if it went on year after year. The standard was proportionately equal.

That is after they have taken into account any factors that would explain the disparity because that is part of what they are supposed to do when they are analyzing one of these situations. According to their Athletics Investigators Manual, what an investigator is supposed to do is determine the total number of participants for each team, the total number of female and male participants in the athletics program and the total number of athletes in the athletics program, determine the proportion of men to women in the program, total the athletics assistance expended in the athletics program as a whole, determine the proportion of aid awarded to men and to women, and compare the proportion of aid awarded to female athletes in proportion to the number of female athletes in the program. According to the guide, this proportion should be the same, absent a non-discriminatory justification for any difference. The example used in this manual is, if 45 percent of the participants in the athletics program are women, then female athletes should receive 45 percent of the aid. It goes on to say that participants who participate on more than one team are to be counted only once.

We talked with the Office of Civil Rights on what did that mean. A non-discriminatory justification for the difference. They gave us an example. If you had awarded your aid for the year, but at the last moment a student decided to go to a different institution, and therefore, the aid package that you created for that student was not used and you had more aid going to men than to women because it was a woman who transferred out, that would be the type of justification they would allow.

They also spoke about the fact that in the regs themselves, there are two situations that are justifications that are acceptable. The higher cost of tuition for students from out of state may, in some years, be unevenly distributed between men and women's programs. Those differences would be considered non-discriminatory if they are not the result of policies or practices which proportionately limit the availability of out-of-state scholarships to either men or women. In other words, if the disparity is caused because you have tuition waivers you are able to grant to out-of-state students and, for whatever reason, you have more in one group than in another, but it's not because of the fact you have recruited more men from out of state, that's okay. If you have a pattern, however, of going only out of state to recruit for men's teams and not for women's teams, the fact that if you had a larger package of financial aid for the men than the women athletes, they would say that was a violation of Title IX.

The other situation is when there is a decision made regarding awards for program development purposes. For example, if you were developing and bringing in a new sport, Title IX regulations allow you to spread scholarships over as much as four years of student-athletes in order to build the team in a certain way. Even though that might result in fewer scholarships in the first few years, this is recognized as necessary to create the team and that's an exception under Title IX.

Those three I just went over are, basically, the only three the Office of Civil Rights offered up to us as exceptions they would accept as to why your numbers were not absolutely equal to your participation. The reason they were going to this standard was they felt that after 25 years, schools should be in compliance. They felt financial aid was one of those things over which schools had a great deal of control, therefore, there was no good reason, except for those three, why they would not be proportionately equal.

I asked if there was any variance they would accept at all. Their answer was if there is one, it will be very small. I asked them to define very small. They said they were having difficulty doing that because, philosophically, they could not think of a reason why it would not be equal in numbers. They could not think of a reason why any deviation of strict equality would be acceptable. There was a dialogue going on between the Office of Civil Rights and various regions around the country as to what would be an acceptable definition. They could not yet come up with one in which they had consensus. However, I did request that when they do reach this consensus, it was an important principle and they needed to publicize it widely because we need some guidance as to what they will find acceptable. They promised they would do this, but did not give me any date for this.

We talked about the Z and the T test. In the old guidance, it said that once you had done this little test I just went through of what you need to think about whether you're proportionate or not, determine if the proportion of athletics aid awarded to male and female athletes is substantially proportionate to the participation rates of men and women in the athletics program. Conduct a Z test and a T test to determine whether any difference in the proportion of aid or average awards that are statistically significant, and thereby, constitute a violation absent non-discriminatory justifications for any differences.

We talked about those tests with the Office of Civil Rights. They told us they decided people were using the Z test and the T test inappropriately. Some schools had come to the conclusion that they ran that test on their numbers and they were within the appropriate numbers and were in a safe harbor. Again, the Office of Civil Rights felt that, first of all, people had misunderstood the Z and T test. That was supposed to be used by an investigator who thought a school might be out of compliance to test to see if, in fact, statistically they were out of compliance. It was never meant to show the opposite, that if you were within the number, you were in compliance. It was a test to show whether you were out of compliance. The Office of Civil Rights has decided they are not going to continue to use the Z or the T test because it's been misused. Also, because they, again, believe there would be no reason at this time for a school to be out of proportionately equal compliance in this area of the law.

I'm here to tell you that five percent away is not a safe harbor. Within three percent is not a safe harbor. I cannot get them to agree that one percent away was a safe harbor, nor if you are in compliance if you are using the Z and the T test. Are you today within safe harbor according to the latest interpretation of this regulation of the Office of Civil Rights?

That's the bad news. The good news is that we've had this hard working committee that has been looking at what we can do to help you out there to give you more flexibility than exists currently under 15.5 to come into compliance with the proportionate quality that the Office of Civil Rights is coming down pretty hard on. I'm going to ask Charlotte to take a few moments now and explain what the results have been so far on the committee's work. I believe if you've been following this in the NCAA News, you'll see that her committee has come out with a report. After she concludes, I'll take questions.

Charlotte West:

Thank you Elsa. As chair of the Financial Aid Committee, I thought the February meeting was going to be the end of my rein. I was rejoicing until we received this task referred to us from the Management Council. I think Elsa has laid out for you the problem in full detail. I don't think I've ever served on a committee where I've been more frustrated in that trying to resolve one issue, you create another issue. It becomes very complex depending on your menu of sports offerings and your Division I classification, i.e., whether you have football or you do not have football. It was a difficult assignment, to say the least.

You're familiar with the recommendations from the Financial Aid Committee. They've been well publicized in the NCAA News and we followed with hearings in Chicago on May 12, the day after we had met with the Office of Civil Rights. Our committee listened very attentively to the people that took the time and came to the hearings and explained how the different recommendations at that time would affect their programs. So, we heard from some large, well-funded programs that had a large number of men's and women's sports urging us to increase the scholarship limitations in several of our women's sports to enable them to come into compliance without having to add additional sport to their already broad program.

Certainly, in listening to their testimony, you were inclined to think we were able to make some adjustments to a variety of sports that would ease their problem. Concurrently, we heard from our Division I-AAA members who are currently, in many instances, over-awarding women based on the number of participants. Any increase in the maximums allowed for women create serious problems for them in that they would continue to over-award women or lose their competitive equity within Division I. They would not be able to give the maximum number of scholarships to their women and some of them have, as you know, some high nationally competitive programs. There's a problem about what is right and what is a balance. That is an extremely difficult problem to resolve.

As indicated, our committee attended to those responses in the hearing. We went back and we've come forth with a series of recommendations that will be presented through the Academic Eligibility Cabinet to the Management Council for review by the membership. The membership can decide which of these recommendations are the most palatable. We looked at data, data and more data, participation numbers for men and women's sports as we currently have them in Division I, looking at the financial aid limit, discussing head count versus equivalency, the number of athletes to fill the team, how many, not just starters, but how many substitutes were a reasonable number, the number of schools sponsoring a sport, injury rate, national interests in sports. We had a tremendous amount of data available to us and we wanted to consider, certainly, diversity and minority opportunity issues as we looked at the number of participants, who they were and the number of high school athletes that were eager to participate in college sports. We certainly were well informed.

Here are the recommendations that are before your cabinet and your Management Council. I would simply say, look at these very carefully. I was somewhat disappointed in the hearings that we did not hear from a wider group of institutions, but that may well be a function of our new structure and everybody not having the message all the way down the line. Consider these today and provide input to the people on the Management Council that represent you.

The change in the wording and intent of our regulation that controls the minimum amount of scholarship that a Division I must give. As you know, we have three sections in that area. I'll use one example. You can meet that minimum criteria by giving 50 full scholarships. This is excluding men's and women's basketball and football. At least 25 to women and 25 to men. We've protected the minimums for women, but have allowed you to go well over those minimums for women. It would now read, a minimum of the 50 full grants, 25 of women's sports, exclusive of grants awarded in football and men's and women's basketball. In the same area, where we'd say the maximum number of dollars that you must spend next year in your financial aid is $670,000. At least $335,000 must be for women. That gives institutions flexibility. It does not give them direction of how they want to spend, but they can spend, exclusive of basketball and football, a greater percentage of those dollars to women than were allowed in the past. The same approach in our 14-sport sponsorship, we're proposing rewording, that you must offer a minimum of 14 sports, at least seven of which must be for women.

We looked at the football area and we have two recommendations, A or B. A would be the recommendation that was publicized in the News where there would be 10 less scholarships, but still could give them to 85 football players. Seventy-five full rides to 85 football players. That would be one approach. The other approach, B, would be to maintain the 85 full rides for 85 football players, but to give the school an opportunity to cut down 10 scholarships and give 75. As an incentive to do that, allow them to be given to spread out to 95 football players. That could be a choice of an institution and they would declare ahead of the season which of those two approaches they were going to use. The current one, or reduce the 10 scholarships to 95 players. For Division I-AA, it would be 55 instead of the current 63 to 85 football players.

We have made a series of proposed adjustments in the sports and I can go through these quickly. Soccer for women, from 12 to 14; lacrosse, from 12 to 14; and field hockey, from 12 to 14. So, soccer, lacrosse and field hockey are increased by two each. Softball is 12 to 13; swimming, 14 to 15; and gymnastics, from 12 to 13. In crew, the past proposal we had that you've seen is to go to 30. We've come back and said or, depending on what the schools want, 25. The new one, the water polo scholarships for women as these teams are being added rather rapidly, nine scholarships versus eight. In the track and field area, and we certainly did hear a significant amount of testimony from the track and field community, presentations of the very large number of track and field high school athletes, we are proposing that where you do not have track and field and you just have cross country for women, you would be able to give eight instead of six. Like football, there is an A or B approach. The A approach saying that the current 18 scholarships for women could be raised to 22. Or, the B approach is one where there would be an adjustment in the number of track and field scholarships for men where it would be increased to 16, 3.4 more than the current 12.6. If that was done, than an increase of six, up to 24 for women.

One other recommendation we made is to ask the sports committees to look at how they score in their individual sports to see if there's some way to meaningfully increase participation of women. I'll use cross country as an example where seven participants can enter and you score the top five. If the committee might be amicable to increasing those numbers and, therefore, providing more rationale for increased scholarships, and certainly, participation by women.

I want to stress that, myself included, some members of the committee are not in support of these recommendations. It was not an individual, what is good for our institution or what is good for us individually, but to provide recommendations to the membership for them to make the choice of what approaches are the best and still be able to keep into this new tight interpretation of scholarship compliance with Title IX.

Thank you.

Elsa Cole:

Thank you Charlotte. Charlotte didn't know she was going to do this until about three minutes before I began speaking, so I appreciate her quick synopsis.

Basically, the rules under which many of our schools thought we were operating changed. The ability to be within several percentage points and still be in compliance appears now with this new Office of Civil Rights interpretation, to be diminishing opportunity. Hopefully, we will have some written explanation from the Office of Civil Rights soon as to exactly what this new standard is, but the basic message here is that if you are going to be not in strict compliance, you better be very, very close.

Ian McCaw:

My name is Ian McCaw. I'm the athletics director from Northeastern University. We're one of the 25 institutions that had the National Women's Law Center litigation. We've asked the acceptable variance question, the five percent, three percent as you did and we were told the acceptable variance was zero percent. You need to be exact.

The other difficulty we had related to allocated versus expended athletics financial aid. I'll ask you the hypothetical question. If an institution had 50 percent male participation and 50 percent female and you allocated $1 million to men and $1 million to women in terms of financial aid, some of the women's coaches did not expend those dollars and you had more dollars expended on the men's side than the women's side, would you be in compliance?

Elsa Cole:

I'll have to go back and look at the rates. Did you ask this question to the Office of Civil Rights and did they give you an answer? Do you want to see if I'm going to be the same? Don't do that to me.

Ian McCaw:

They told us it was dollars expended not dollars allocated. That presents some of the difficulty in this issue. It's very hard to anticipate your expended dollars at the end of the year when you may have students transfer, you may have coaches decide not to offer some of the scholarships available, so from a practical standpoint, it presents some very great administrative challenges.

Elsa Cole:

I'm not surprised at what they said. To me, the question is, is your explanation as to why the dollars you allocated that you didn't expend would meet their standard of a non-discriminatory justification for the difference? It seems to me you'd have a good case in the situation you just described where things changed. They recognize that things change at the last minute and that we don't have complete control down through all segments of the program. That's where you're going to have to build your case.

Charlotte West:

This was a really critical area for me because as much as I spent my life in promoting opportunities for women, certainly, wanting them to have their fair share of the scholarships, being the person that administers the scholarship aid for men and women on our campus, I know how fluid your scholarship lists are and to say that you have to be within one scholarship, makes no sense.

I went to the meeting with them with a list of all of the things that can cause your scholarship dollars to change one way or the other. Throughout, they were sincere in listening to those, but the challenge would be, once again, it's what you spend, that's clear. If you've spent more for men than women, once you've allocated a fair proportion, then you have to say why the coaches of the women's teams didn't recruit as many out-of-state athletes, so the dollars shows. We sent out the contract, it was signed and they didn't show up. I went with a list of about seven or eight of these things that could change the proportion of aid you had planned for. They said those would be legitimate reasons why you were not spending in the same proportion that you were budgeting, but you would have to explain it.

Elsa Cole:

This session we had with the Office of Civil Rights was the Financial Aid Committee. Certain members from the office staff met with two representatives. That's what they said in that meeting and I would like to rely on that absolutely, but until we get a firm commitment from them in writing, all of these things are subject to change because they are being negotiated among the regional offices right now. We use it as an opportunity to educate them as well as to learn from them. I always try to learn more than tell more. We did use this opportunity to present the cases you've mentioned and how hard it is to come in with absolute equal dollars.

Valerie Bonnett:

My name is Valerie Bonnett and I worked for 15 years in the headquarters of the Office of Civil Rights. I don't have a question, but I did want to say a couple of things. I wrote the words that you were reading from the Investigator's Manual for the Office of Civil Rights and I do know the intent of the language.

OCR has used these proportions for approximately 20 years in enforcing the financial assistance provisions of the Title IX legislation. They adopted the T test for averages somewhat later. Attorneys within the headquarters of the Office of Civil Rights decided to make sure those statistical tests were reasonable instruments to use because they were influenced by Supreme Court dicta talking about two to three standard deviations being permitted as to what constitutes substantial proportionality.

The Z test tolerates two standards deviations, the Z test used by the Office of Civil Rights. Now, OCR didn't really want to publicize how much of a deviation was tolerated by those tests, but when I left the agency four years ago and was asked by the NCAA to draft Title IX basics for the Achieving Gender Equity Guide, one of the things I wrote in that guide was that those things tolerate a three percentage point difference, and actually, greater at smaller programs, such as Division II.

The tests are OCR's written policy. This new interpretation they're putting on how they're going to determine compliance for financial assistance is a new interpretation. This is new policy. The individual who works with me, Mary von Mueller, who was an attorney in the Office for Civil Rights headquarters and was a manager, have discussed this. Her interpretation of a federal agency attempting to apply a standard that differs from its written policies is that it is of questionable legality. Personally and professionally, I think the three percentage point difference tolerated by the Z test is too much. At the huge Division I-A programs, we're talking about $180,000 potentially as a difference. If tuition is $10,000, you can figure out how many scholarships that will be. That's too much.

I think they need to change their policy. I hope they change their policy, but they also need to put it in writing because this new interpretation which you've been talking about counters their written policy. They do need to change it. We will be working with one of the 25 institutions and I'll be as interested as anyone to see how it turns out. I'm hoping that OCR will put their policy in writing, as you said Elsa.

Elsa Cole:

The next time I speak on a set of rules, I think I'll first ask if the drafter is in the audience and would like to make any comments before I start to interpret them. Thank you for not coming up with an interpretation exceedingly different from mine.

Todd Turner:

I'm Todd Turner from Vanderbilt and we're one of the 25. I have a few questions, first for Charlotte and her committee. Having worked at three state universities and now a private university, there is significant difference in scholarship allocations that if you go to some type of equivalency base in football, for instance, or any sport, really puts us at a significant economic disadvantage and we would deny a number of students an opportunity to come to a school like Vanderbilt simply on economics reasons. At Vanderbilt, 50 percent of those scholarships would be many times greater than a 50 percent scholarship at a state university. I know you've probably dealt with that, but competitively, it really puts the private institutions in a very difficult spot. I'm not sure how you'll resolve that or whether you've discussed it.

Charlotte West:

You had a representative at the hearings that presented that issue to us and yes, we did talk about it. With you meeting the minimum scholarships, you have some choices there. It doesn't impact you negatively because it's a fixed dollar amount for all schools regardless of what their scholarships cost. If there's some reduction in football, that's where you had a concern. Is that right?

Todd Turner:

I really have it in all sports. Wherever we have an equivalency-based scholarship number, half a scholarship at our university is going to cost many times more than at another. For instance, in football, if you're going to have 75 scholarships spread over 85 people, then we're going to ask some percentage of our football players to pay the difference and it's going to be considerably more than at our state universities. That's a real problem for us and it's not a small amount of money. If you add women's scholarships, every scholarship event builds $31,000. If you add 10, that's $300,000 and that's a lot of money.

I just want to make sure that the committee thoroughly evaluated that because it's a problem.

Charlotte West:

We thoroughly evaluated it. I have the same concern, not with the $31,000 scholarship, but at Southern Illinois University, with more like a $7,500 scholarship, what financial impact these increases on our university. You have that same problem right now when you spread out your aid in track and field. It magnifies that problem.

Todd Turner:

Not in the current headcount sports and you're talking about football. You're talking about putting Vanderbilt at a significant competitive disadvantage in football by reducing the number of scholarships to 75. I'd rather have it at 85 for 85 guys. We play in a competitive football league. That's a problem for us.

How would Title IX interpret scholarships if they were all need-based?

Elsa Cole:

They told us they were only looking in this particular review at those that are awarded based on athletics ability. They were not looking at need-based scholarships at all and that would not be part of this particular effort. They would look at need-based scholarships as they're distributed across campus to all students making sure that all women students have chance to get equitable opportunities as male students, but not limiting it to athletes.

Valerie Bonnett:

You're right on that. Need-based aid is covered by Title IX, but they rarely look at it because need-based aid is essentially awarded through another office within the Department of Education. It would be as if the Office of Civil Rights is reviewing the practices and policies of the Office of Student Financial Assistance. It's rarely a compliance problem. You should just focus, as Elsa is suggesting, on the athletics aid.

Todd Turner:

My reason for asking is that in trying to set standards for the association that competitively balance things, did the committee talk about some formula that would include some need-based aid?

Charlotte West:

No. We certainly asked the question of the OCR reps. Athletics dollars are a given to the scholarships. They probably would not look other places unless there was some allegation that need was distributed in a discriminatory manner.

Elsa Cole:

If you were trying to make up the difference in scholarships and you only used departmental money to make up the need-based difference for male athletes and not at all for female athletes. Let's use this extreme example. If you are using it in ways that are substantial equal again to their numbers, you're probably home free. I'm not sure of that.

Todd Turner:

We're talking about merit scholarships. Would athletics be incorporated into the entire university's commitment to merit-based scholarships and be evaluated? In other words, could you find relief in other places on campus if merit-based scholarships were offered?

Elsa Cole:

I don't know why not. It's again, whether the opportunities are equal for men and women.

Todd Turner:

I'm just trying to see if there's a way to spread out the institutions dealing with Title IX. We're proportional. We meet the Z and T tests. We're fully scholarshiped in all of the women's sports that we provide, yet we're being told that the rules are changing and now you're out of compliance. We're also playing in the Southeastern Conference and for us, competitively, it's a very difficult thing.

Elsa Cole:

When I started my remarks, I commented on the fact that we don't have any case law out there to help us. We are relying on how one agency is interpreting this law. At some point, there may be some school that will challenge that interpretation and say that isn't the way the law intended it to be interpreted. Use your judgment if you think that OCR is interpreting it right. But, until someone does that or the court changes that, unless someone goes that far, we're simply going to have to continue on what these agencies say.

Todd Turner:

I'm really appealing to the NCAA body to try to be creative, even more so than maybe the committee has been, in trying to find ways to allow institutions that have problems like we do to comply. That's why I asked about need-based. I think some need-based formula included in the head count is worth studying.

Charlotte West:

The Board of Directors, in their last meeting, has indicated they were referring back down for the hundredth time another study on need-based aid. That may well be one of the reasons.

Elsa Cole:

We've gone beyond our time. I appreciate all of you staying. That was very kind of you. We're at the NCAA trying to deal with all of this and we appreciate your comments on how we can help you. Thank you.