« What's The Problem In Spain? | Main | Stop By The Carnival . . . »

Well, that's interesting. It's obviously good to have other ways to measure interest besides proportionality.

On the other hand, I gotta say that the words "web based survey" do not fill me with feelings of reliability and certainty. I think polling is a good idea; I would rather see them using time-tested methods. (If such really exist.)

I'd also note that the availability of item X can increase the interest in item X. Ask any marketer. This means... ah.

The goal "increase the number of women playing varsity sports at the college level" is not the same as the goal "provide varsity sports for all the women who currently want them."

As long as we're talking about meeting the interests of the student population re: athletic participation, please consider this: At the average Division I large state school, how many men played basketball or football in high school? Compare that to the number of positions available on the school's sports teams. We consider the needs of the male population of basketball players to be met by the one team, even if 200 men would like to play competitive basketball.

I'm all for reassessing Title IX, but I don't buy email surveys as an effective means of gauging the interests of college students. Not at all. There has to be a better way to reach the sample set.

My clients, the college coaches, and I have our hands full trying to stay involved in the news cycle but I couldn't let the Myles Brand item pass without remark. This is the same man who called for a summit with the USOC to discuss why men’s sports are disappearing – and then insisted that Title IX not be discussed at all during the meetings:
http://www.intermatwrestle.com/titleix/kocher/cael_force.aspx

The coaches have been trying to have a dialogue with the NCAA about Title IX for more than five years now and have been actively excluded at every turn. For Brand to now argue that there wasn’t enough discussion just staggers the imagination.

His complaint about the survey is just as bankrupt. Again, what easier, more accurate way could there be for a school to gauge a student’s interest in sports than by asking him or her? If schools can comply by “meeting interest,” as the law and Brand insist they can, then how shall they find out who is interested?

What’s especially galling about the NWLC’s complaint that the clarification was done behind closed doors is that that’s exactly how the three part test was implemented in the first place. Worse, the NWLC itself was behind those closed doors during a Democratic Administration helping the Department craft the wording of the test. This new clarification is simply allowing schools to comply by the rigged rules that the NWLC set up in the first place.

Brand shuts people up and then complains there's no conversation. Greenberger literally re-writes the rulebook to suit her own agenda and then whines when those rules are actually followed. Let me tell you something, that takes nerve.

doesn't the hypocrisy run both ways, Jim?

I assume that when the closed-door rules were implemented in the first place, you objected loudly that the voice of the people you represent was excluded. Now that you're in power, you turn around and do the same thing?

By the way: Did you (or anyone) litigate any APA-based claims after the three-part test was instituted?

It will also be interesting to see if schools administer this survey to all students, males and females. The Department of Education recommends surveying all fulltime undergrads. Title IX interpretation considers the interests (met or unmet) of the "overrepresented gender" irrelevant. But the public might not.

There are 30 sports listed on the model survey. One is hardpressed to find a sport on the list that is not played by both sexes today. What happens if the surveys show that the majority of unmet interest is that of males? Will schools find this kind of information inconvenient?

Watch for the people who advocate suppressing that type of information.

When the three part test was first instituted, it was done by skirting federal rule-making procedures – in other words, creating a whole new method of compliance without public debate or comment. By contrast, the Department in this case has merely clarified one of those existing tests – a procedure that does not require the same rule-making process or public comment period under federal administrative law. The third prong was vague before – it said that schools could comply by “meeting interest” – but schools were uncertain how and were often sued when they tried. The prong is clear now – schools can measure interest by asking who is interested. That’s the whole point of a clarification. Mind you, the NWLC and WSF have insisted all along that they have no problem with schools complying by meeting interest. Now that it is a working reality, however, they suddenly aren’t so smug about it.

What’s more, the idea that there was no public discussion about compliance problems or about interest surveys in particular is ludicrous. The coaches have been pressing the case for more than ten years now and various schools have been using their own interest surveys for some time. For their part, Julie Foudy et al have shouted to the rafters for the last 36 months in opposition to any and all reform proposals put forward. Believe me, no one is in doubt about their opinion on the matter. But let’s hear your answer, Ted: is there a better way to determine whether a student is interested in participating in sports than by asking her?

On your legal question, yes, the coaches have had a lawsuit in federal court since ’02 based in part on the unlawful way the three-part test was implemented. That remains the coaches’ position and they would like to see the whole three part test thrown out. But in the meantime, if schools are going to have to abide by a rigged set of rules, let’s at least make it clear how they can go about it.

I should start by disclaiming any expertise on the subject -- I'm legitimately interested in different views on this whole thing because I really don't know much myself.

I thought that "meeting interest" was already a "working reality." The third prong has been around for awhile (how long?), and I've heard that around 70% complied using that prong. Is that wrong?

If we're merely clarifying the third prong so that everyone knows what the rules are, that's great. But if it's really just clarifying, is it really an "earthquake"?

And honestly, do you really think this new set of rules is just a "clarification"? Does it really do nothing to affect the strength (or cruelty) of the law? If your employment position makes you unable to answer, that's fine.

As far as the openness debate... yes, there's been debate in the past about it. The particular absurdity of this thing though is just that we had the debate two years ago, and the reformers LOST the public debate, and Paige-Bush backed down.

But then they just waited (till after the election) and snuck the change in. On a Friday afternoon (did you ever see that episode of the West Wing?).

If it's really a good idea, why all the cloak-and-dagger maneuvering? Why not have a notice and comment period, fight and win in the open? (And yes, that should have gone for the original implementation of the three-part test as well.)

To answer your question: Is there a better way to measure interest?

Oh, I really don't know -- again, this week is really about the first time I've thought seriously about Title IX, so I don't know what other options are even out there.

I'm at least open to the possibility that scenarios exist like the Illinois-volleyball one described in Brennan's column this morning. (But see the Sports Law Blog for a good argument to the contrary.) If there's a reasonable possibility that situations like that exist, then we probably shouldn't rely solely on surveys.

Which is all to say: I'm at least open to the argument that current expressions of interest are themselves a function of some history of discrimination. I understand that you are pretty deeply opposed to that argument. I think it's complicated and reasonably debateable.

Which is also to say: I'm open to all of the chicken-and-egg arguments that come up in all forms of affirmative action, not just Title IX. Again, I understand that you are deeply opposed to those arguments. And given their empirical and theoretical complexity, it will be pretty darn hard for either of us to make much headway with the other. So we may be stuck there, which, in my view, is fine -- it's a reasonable disagreement.

Do you by any chance know the name of the '02 case brought by the coaches?

Also (and sorry to ask so many questions) but can you tell me what is so bad about the three-part test? You think that requiring "strict proportionality" is a bad idea, but isn't compliance by "meeting interest" a good idea? And if that's one way to comply, what's the problem?

"When the three part test was first instituted, it was done by skirting federal rule-making procedures – in other words, creating a whole new method of compliance without public debate or comment."

I believe that's false.

The three-part test was originally put in place in 1979. 44 Fed. Reg. 71,413-71,423 (1979). That rule-making process was conducted as a "legislative rule" under the APA. Therefore, it was done after a notice and comment period. As the First Circuit said, the OCR implemented the three-part test "[a]fter considering a large number of public comments."

Perhaps you are talking about the January 1996 OCR "Clarification Memorandum."

Yes?

And even the 1996 Clarification was made after notice and comment.

"on September 20, 1995, OCR circulated to over 4500 interested parties a draft of the proposed Clarification, soliciting comments about whether the document provided sufficient clarity to assist institutions in their efforts to comply with Title IX."

and it apparently heard from both sides.

"OCR appreciates the efforts of the more than 200 individuals who commented on the draft of the Clarification. In addition to providing specific comments regarding clarity, some parties suggested that the Clarification did not go far enough in protecting women's sports. Others, by contrast, suggested that the Clarification, or the Policy Interpretation itself, provided more protection for women's sports than intended by Title IX. "

http://www.ed.gov/about/offices/list/ocr/docs/clarific.html

Ted raises some good points and I am going to double-check on the administrative procedure of the three-part test. But first let me clarify for Eric’s readers the nature of my “employment position” that Ted alludes to. For five years now, my PR agency has represented the College Sports Council. The CSC is a group of coaches associations, parents, athletes and fans who are pushing for Title IX reform, in the federal courts and in public discourse. I am providing them objective counsel on what is (hopefully) an effective PR effort -- but my heart is in the fight, too.

That said, I think Ted has touched on a crucial point in the debate – about whether the third prong has been viable or not. I would say that it has been vague and unworkable until now – and the proof is that schools that have tried to use it to comply have been sued or threatened with lawsuits. Using that leverage, groups like the National Women’s Law Center and even the feds themselves have been able to herd schools into using the first prong instead. That’s because schools quickly learned that proportionality is the only secure, legally safe way to comply. At least that’s our view of what’s happened and the coaches are arguing that it constitutes a de facto quota.

But the NWLC has always proclaimed publicly that prong three was a perfectly acceptable way to comply and that schools did it all the time (their legal threats and actions to the contrary notwithstanding.)

Now they are in the rather awkward position of arguing that prong three is acceptable (“meeting interest”) but that detailing how to do it (“measuring interest”) is somehow not. That’s why they are raising the red herring complaints about emails and methodology. It is not that they are poor debaters (far from it) they are simply painted into a rhetorical corner.

I’m not sure that it is a stronger argument to say that, “current expressions of interest are themselves a function of some history of discrimination.” Even if that were true – that past discrimination prevented college women from realizing that they wanted to participate in sports – there is nothing in Title IX that obliges a school to rectify that situation. I’m also dubious about whether “raising consciousness” argument or the anti-email argument are going to be persuasive in PR terms, but I suppose we’ll see. (Geena Davis, please come to a white courtesy phone.)

Info on the coaches’ legal actions and other bkgd can be found at their website: www.collegesportscouncil.org

I would like to address some of your other specifics, Ted, so I’ll revisit the comments a little later in the evening…

excellent. And by alluding to your employment position, I wasn't trying to imply any smear or bias. I just didn't know if you were a lawyer or some sort of fiduciary in a role that prohibits you from making any statements adverse to your clients' interest.

I see your point about the third prong being unworkable if it was so vague that schools always lived in fear of lawsuits. On the other hand, if 70% of schools ultimately complied using the third prong, then it must have been at least somewhat workable.

But then -- I've never talked to anyone in compliance at schools, so I don't know what it's like. Would be interesting to get that perspective.

It's the contention of people like Jessica Gavora that the three-prong test turned into a one-prong test (as Jim knows too well from his work).

The three prongs were supposed to be proportionality; or if one gender is under-represented, show progress; or demonstrate the interests and ablities of the underrepresented sex have been fully and effectively accommodated by the present program.

As Jim as alluded to above, through lawsuits or threats of lawsuits, the de facto standard has been strict proportionality. Regulation and the way regulation has been interpreted also played a role. Bottom line: If you had 55% women and 45% men, you better create enough billets for 55% of the women on campus--and no more than enough for 45% of the men--regardless of whether that proportion of women showed interest in participating.

Oddly enough, this standard was never applied to college admissions itself. The fact that fewer men than women have been applying to college for years has never been interpreted as something that required a law as remedy, or a sign that men had been socialized out of a desire for college. Nor are other parts of student life where women dominate subject to the "strict proportionality" test.

What the Dept. of Education has done is to try restoring one of the prongs--expressed interest. I am surprised about the method, however. Internet surveys seem especially vulnerable to gaming--how hard will it be for activists to organize survey spamming?--and at first blush I'm skeptical that it would generate a statistically valid sample even absent gaming. Perhaps if it's advertised properly and there's an effective method for students to ID themselves.

(fwiw I met Jim when I was blogging about this a couple years ago)

Ted hits on some key points – and deserves kudos for the quick and worthy legwork. That’s Dee Brown-style blogging.

So, here is the basis for my admin law argument and I beg forgiveness at the outset for the length. It is important to understand that the three-part test was conceived as a way to build a sort of legal activism – an affirmative action program, as Ted rightly describes it – on top of what was a very straightforward prohibition against discrimination. The bureaucrats at the then-Dept. of H.E.W. intended from the start to make proportionality the centerpiece of that program -- and enlisted the help of activists Marcia Greenberger (NWLC) and Donna Lopiano (WSF) to help them craft the language.

In other words, they rigged the wording so that prong one would be clear and immutable while prong three was intentionally vague and thus vulnerable. (Prong two is simply a forced march toward proportionality.)

The core points on how they did an end-run on administrative law are that:

• The mere fact that an agency accepts public comment on an interpretive rule or general statement of policy does not elevate the process into notice-and-comment rulemaking.
(For legal beagles: National Tour Brokers Ass’n v. U. S., 591 F.2d 896, 899 & nn.8-10 (D.C. Cir. 1978); McLouth Steel Products Corp. v. Thomas, 838 F.2d 1317, 1323 (D.C. Cir. 1988) (“agency may not introduce a proposed rule in this crabwise fashion”).

• When an agency omits notice-and-comment rulemaking, the test for lawfulness hinges on whether the prior agency action bound the agency and whether the new action changes the prior action (as opposed to merely clarifying a previously unclarified issue).
Paralyzed Veterans of America v. D.C. Arena, L.P., 117 F.3d 579, 586 (D.C. Cir. 1997) (agency must undergo notice-and-comment rulemaking to change interpretation of its own regulations); Alaska Prof’l Hunters Ass’n v. FAA, 177 F.3d 1030, 1034 (D.C. Cir. 1999) (same); Syncor Int’l Corp. v. Shalala, 127 F.3d 90, 94 (D.C. Cir. 1997) (with policy statements, agency “retains the discretion and the authority to change its position – even abruptly – in any specific case because a change in its policy does not affect the legal norm”).

• 1979 and 1996 changed the prior regulations; 2005 did not.
Thus, while it certainly is true that the agency accepted comments in 1979 and 1996, it hardly matters. In both cases, the agency did not expressly set out to issue a legislative rule, so the fact that they took comment is purely disingenuous. Because the agency purported to interpret, but actually amended, the then-current regulations, the agency action is both irresponsible and void. What’s more, since the agency ignored substantive comments on its legal authority for the Three-Part Test in both 1979 and 1996, it would be more than a little odd to credit the agency with following the APA.

In short, the 1979 and 1996 actions needed an APA rulemaking, but merely feigned one. That is not good enough and it served to conceal an activist social engineering agenda. By contrast, the 2005 clarification did not need (and did not have) an APA rulemaking.

What the current Department of Ed has done is not to roll back nor eliminate nor alter the letter or spirit of prong three. They have instead made it legally definable for schools to comply. Objectively speaking, that strengthens the law, does it not?

So to argue that Carter and Clinton’s people had no ulterior motives while the Bushies are playing “cloak and dagger” is more than a stretch if you ask me.

One more quick point -- I'd like to concede error in saying that there was no public comment. There was -- although it was irrelevant and disregarded for a preordained outcome. Nevertheless, I oversimplified. That's a two-shot foul.

Christopher --

what you say makes no sense to me at all. You say that the de facto standard has been strict proportionality. But even before last week, 70% of schools reached compliance through the third prong.

In other words, 70% of schools were deemed to comply with Title IX not by reaching strict proportionality, but by showing that opportunities matched interest.

The threat of lawsuits may have made the third prong less workable and less good than it should have been, but it still worked well enough for 70% of schools to use it.

So what are you talking about?

Jim --

thanks for all the response and the cites.

I'm all for clarity. If the third prong was previously vague, then clearing it up is to the good. Of course, they did more than just clear it up -- e.g., saying that nonresponses count as "not interested" wasn't just clearing up the prior standard. It cleared it up in a way that helps your side. So it's not like it was some neutral clarification.

I have never said that Clinton/Carter had no ulterior motives. I'm fully open to the possibility that they used some cloak and dagger shadiness as well.

But --

you say: the mere fact that you have notice-and-comment doesn't elevate it to legislative rulemaking. But that doesn't really answer: was the 1979 decision legislative rulemaking or not? Did they comply with the APA or not? Was this point litigated, and what was the result?

in '96, i get the sense that they didn't comply with the APA, but rather did some voluntary and informal (non-APA) notice-and-comment. Maybe they just did it as a sham and didn't listen to your side. Is that better or worse than taking no comments at all? I don't know. Both are bad.

But basically I'm with you. I'm no APA expert, but I believe in its importance. I don't apply it differently to Clinton, Carter, Bush. Serious changes to these rules should be done ONLY in accordance with the APA, regardless of whether the changes make Title IX stricter or looser.

Here's the one part where you really lose me: "1979 and 1996 changed the prior regulations; 2005 did not."

Perhaps here you're just anticipating litigation and APA challenges. Perhaps here is where you really can't speak freely because it would adversely affect your clients interest.

Because it seems pretty clear to me that last week's move DID change the prior regulations.

Ignore everything about the survey -- that is, as Greg Sports Law Blog has said, probably a red herring. The real issue are the new burdens and standards. The new rules shift the burden to women by creating the "presumption of compliance" -- that's new. That presumption can only be overcome by "very persuasive" evidence -- that's new too.

Those things aren't mere clarifications. They change the rules of the prior agency actions. They do, as you well know, make compliance a little easier, and make challenges a little harder.

I'm pretty agnostic on the substantive question -- maybe that's all a good idea, maybe compliance should be a little easier and challenges a little harder. But don't tell me nothing has changed.

And one last thing.

The APA requires notice and comment for rule changes. It's a good law -- it brings not only comment to the agency, but also the opportunity for press, Congressional attention, and other forms of public input.

At the end of the notice-and-comment period, the agency makes a decision. Often the decision adversely affects someone's interest. That someone always says: "the notice and comment was a sham, it was disingenuous, you didn't really listen, you disregarded everything I said and went ahead with your preordained outcome."

But that is, in a sense, irrelevant for the question of APA compliance. The APA doesn't guarantee you a result; it just guarantees you a process.

My biggest question right now is: were the 1979 and 1996 and 2005 "clarifications" made in accord with the APA-mandated procedure? If not, why not?

I think that the legalese distinction between what a “rule” means/requires and what a “clarification” means/requires may be where we are getting hung up. I want to give you a substantive answer to your queries but I should double-check my facts on that first, if you will indulge me.

A few quick thoughts in the meantime. The clarification last week did not change the prior regulations. “Meeting interest” is still the standard. Some may be disappointed that schools can now safely do that, as opposed to proportionality, but the prong itself and the law itself was not altered. Heck, the guideline before was that schools could determine interest in any way they thought “reasonable.” That is technically a lighter burden although it didn’t stop the lawsuit piñata party when schools attempted it.

I submit that they idea of a survey is what truly offends the NWLC. I believe they fear it will reveal gender differences in participation interest – which runs contrary to their central philosophy, that men and women have exactly the same interest in participation. That is what proportionality assumes, after all. Never mind that many women’s teams have trouble filling rosters while men are lined up to participate outside a barred door. The NWLC isn’t opposed to this survey, they are opposed to any survey.

I am putting some hard thought to the “presumption of compliance” and the “burden shift” arguments. They seem a bit esoteric – and I, too, sense the germination of federal litigation. That said, aren’t women bringing suits against schools over non-compliance all the time as it is? If schools are meeting interest, or foregoing expenditure in a precisely measured way hinged on lack of interest, why shouldn’t they be presumed to be in compliance?

Also, if a school goes to every length to get students to participate in the survey and the student won’t respond, I fail to see why that shouldn’t be interpreted as a lack of interest. I also can’t understand why that helps men’s athletics per se. How is it that women are less capable or apt to take a survey than men?

Okay, so all for the moment for me. It's double-OT here inside the Beltway. You are absolutely right on the virtue of the dialogue – let’s keep it going…

Yeah, APA-wise, the legal distinction is between "legislative rules" (which require notice and comment) and "interpretive rules" (which don't). The distinction is very difficult to draw.

I quoted Posner yesterday on this point. "Distinguishing between a 'legislative' rule, to which the notice and comment provisions of the Act apply, and an interpretive rule, to which these provisions do not apply, is often very difficult--and often very important to regulated firms, the public, and the agency."

It is very difficult, and courts often have a hard time doing it. I think what it comes down to is: if the courts think it's a big change, they call it legislative; if they think it's a small change, they call it interpretive.

In most contexts, the agency wants to avoid the APA (it is, after all, costly, slow, and a general pain in the butt). So the agency ALWAYS wants to say that it's "interpretive."

Federal agencies, therefore, often call things "clarifications." Last Friday's action was a "clarification." So was the 2003 action. So was the 1996 action. None of them changed the standard, in the sense that "meeting interest" has always been the standard -- the language of the third prong has never changed.

But that doesn't really tell you whether it was a big enough change that the APA should have applied.

Burden shiftings are far from esoteric. They matter a great deal, especially in litigation costs. The party that bears the burden is the party that must produce the initial facts at trial (to survive a pre-trial summary judgment motion). In other words, the party that bears the burden is the one that has to spend the most money, especially up front.

Now maybe the women should bear the burden, maybe they shouldn't. But the shift to them is a pretty significant change.

Ted deserves a lot of credit for looking into the backstory on how the three-part test evolved – and for his good faith effort to shine more wattage on the issue. It is important no matter which side of the debate you come down on.

What amazes me is the sheer effectiveness of the legal mechanics that went into the process in years past. The activists were able to engineer a social-outcomes regime that would be tolerated nowhere else in American public life. Imagine the federal government demanding proportionality, for instance, in police forces or for employees of federal contractors. If the feds forced proportionality on the sports sections of American newspapers, believe me you would hear a different tune from them.

Okay, so, to Ted’s questions on the legal procedures that took place:

“Was the 1979 decision legislative rulemaking or not? Did they comply with the APA or not? Was this point litigated, and what was the result?”

-- HEW did not conduct the 1979 action as legislative rulemaking. Thus, to the extent that 1979 changed the prior rules, for example narrowed schools’ options for compliance, omitted the requirement to assess men’s interest, the 1979 action is invalid under the APA.

-- No one ever has litigated the APA procedural issue against 1979, 1996, or 2005, but the litigation brought by the coaches seeks to do so with regard to the earlier two.

Ted asks, “In '96, i get the sense that they didn't comply with the APA, but rather did some voluntary and informal (non-APA) notice-and-comment. Maybe they just did it as a sham and didn't listen to your side. Is that better or worse than taking no comments at all?”

That’s a good question, but there is no legal distinction between a sham public process and a denied public process. I appreciate that the other side here would like to have had the opportunity for more public airing of the issue prior to the clarification. Given that they shut our side out of the Title IX Commission and spent 30 years rigging the system, it’s a bit of a knee-slapper – but I understand it. The Department was not legally required to and – given all the ad hominem attacks they heard after the Commission recommendations, labeled “Bush’s war on women,” I can’t say that I blame them.

The only legally relevant issue is whether the new action changed the old interpretations: if so, APA requires notice and comment; if not, the APA does not require any public process. The latest clarification did not change the regulations and I just don’t buy the idea that the Department is obliged to seek approval from the NWLC or anyone else in order to make the rules easier to understand.

Ted also points out: “Here's the one part where you really lose me: "1979 and 1996 changed the prior regulations; 2005 did not." Because it seems pretty clear to me that last week's move DID change the prior regulations.”

Again, I suppose I would ask how exactly did 2005 change the prior regulations? I don’t see where this action fundamentally changed past interpretations or regulations.

The agency has to respond to comments – for rule-making -- and a reviewing court can assess the adequacy of the agency’s response. If the response indeed is inadequate, the court can vacate the action or remand for further agency action. But the ’05 action does not rise to that level.
None of the three actions (1979, 1996, 2005) followed the APA’s notice-and-comment rulemaking procedures.

To look at it from another angle, the relevant question is whether any of these actions changed prior interpretations or regulations. In our view, only the 2005 action survives that analysis:

o If you believe that HEW intended the 1979 action to be prospective (as opposed to merely a proposal for possible future action), the 1979 action narrowed school’s flexibility for assessing interest and eliminated men’s right to have their interests assessed and considered.

o Whatever the intent in 1979 (and the internal HEW record creates room for debate), the 1996 action clearly purports to create a prospective three-part test, which is inconsistent with the regulations for the same reason that 1979 was inconsistent if HEW intended it o have prospective effect. Further, the 1996 action purports to allow cutting and capping solely to meet a quota and elevates prong one to a “safe harbor,” which clearly constitute legislative acts;

o The 2003 action purports to create safe harbors in prongs two and three, another legislative action;

o The 2005 action does not appear to conflict with any prior HEW or Education interpretive rule or regulation. If you disagree, identify the action and I would be glad to hear that argument. I am not aware that it does.

To be fair, there is disagreement over whether ’79 and ’96 were appropriate or proper – but ultimately that will be adjudicated. My own interpretation here is far from the definitive word on the matter. Again, Ted makes some important, salient points and I am happy to address them. By contrast, the NWLC arguments on the matter sound like someone with a mouthful of New York cheesecake angrily demanding that everyone else at the table go on a diet.

The coaches have been trying to have a dialogue with the NCAA about Title IX for more than five years now and have been actively excluded at every turn. For Brand to now argue that there wasn�t enough discussion just staggers the imagination.

His complaint about the survey is just as bankrupt. Again, what easier, more accurate way could there be for a school to gauge a student�s interest in sports than by asking him or her? If schools can comply by �meeting interest,� as the law and Brand insist they can, then how shall they find out who is interested?

Thanks for signing in, .

(If you haven't left a comment here before, you may need to be approved by the site owner before your comment will appear. Until then, it won't appear on the entry. Thanks for waiting.)