The Legitimacy of a Federal Commission as a Deliberative Democratic Process

Criticisms Relating to the Commission’s Credibility

Although the final report characterized the procedures as open, fair, and inclusive, various critics and participants questioned the credibility of the Commission based on its representation, quality of deliberations, and procedures (e.g., de Varona & Foudy, 2003; Rosenthal et al., 2004; Samuels, 2003; Staurowsky, 2003a, 2003b, 2005). First, commissioner make-up largely comprised representatives of National Collegiate Athletic Association (NCAA) Division I major conference institutions (Staurowsky, 2003a, 2005). These institutions have the least number of members, yet have the most at stake with regard to attempting to weaken the law and thus enhance the revenue potential of football and men’s basketball. Division II and III institutions and high schools are significantly noncompliant with Title IX legislation in comparison with Division I institutions mainly because they are nonprofit enterprises. Thus, any changes in Title IX compliance would affect these nonprofit institutions because they have the least amount of resources to provide equal opportunities. Individuals from smaller colleges or high schools, who are also affected by Title IX legislation or experts of civil rights law, women’s sport history, and/or sociology, were underrepresented on the Commission (Bonnette & Von Euler, 2003; Osborne, 2003; Staurowsky, 2003a).

Second, those serving on the Commission (i.e., the commissioners and OCR staff acting as ex-officio members of the Commission) were criticized for not possessing adequate knowledge of Title IX legislation. During the deliberations, commissioners were notably confused about the meaning of certain components of the law and thus unable to adequately speak to enforcement guidelines (Staurowsky, 2003b, 2005). Staurowsky (2003a) stated that

the commission’s deliberations revealed a significant knowledge gap in terms of basic Title IX principles even after the commission had been together for eight months, listened to the testimony of over fifty witnesses, received public comment from hundreds of individuals, and accessed to thousands of pages of material. (p. 107)

Last, it was alleged that the public town hall hearings were dominated at a ratio of two to one by individuals advocating for a change to Title IX law (Samuels, 2003; Yiamouyiannis, 2003). Yiamouyiannis (2003) noted that of the 52 invited expert panelists, 15 were in favor of Title IX, 31 were against, and 6 were neutral.

The quality of deliberations was questioned because data presented to the Commission failed to undergo appropriate scrutiny during questioning. As well, the final report allegedly contained inaccurate information (de Varona & Foudy, 2003; Samuels, 2003; Staurowsky, 2003a). The procedural conditions also provided inadequate time for commissioners to assess information and read report drafts. de Varona and Foudy (2003) claimed, in their minority report, that commissioners were afforded unrealistic deadlines to carefully read materials, which ultimately affected the recommendations put forth as well as their ability to suitably edit drafts of the final report. In addition, the process for expressing minority viewpoints in the final report was insufficient (de Varona & Foudy, 2003). Short statements of minority beliefs were included. The brief comments, however, offered an inadequate rationale or explanation of their opposition to the recommendations. For some, the final report failed to depict a truly inclusive representation of all commissioners’ positions on each of the recommendations stated (de Varona & Foudy, 2003; Osborne, 2003). As a result, commissioners de Varona and Foudy released a minority report to fully set forth their perspective of the issues raised during the secretary’s commission. They stated that “they were compelled to issue this report because we were not allowed to include within the commission’s own report a full discussion of the issues and our position on the recommendations that have been adopted” (de Varona & Foudy, 2003, p. 1). While the minority report contained seven recommendations, many of which paralleled the final report, key differences included clarifying and correcting girls’ and boys’ participation data, defending the three-part test to determine compliance, arguing to preserve current Title IX policies, and urging educational institutions to curve spending on revenue sports and reducing men’s nonrevenue sports (Osborne, 2003).

With these criticisms in mind, this study examined the legitimacy of the Secretary’s Commission on Opportunity in Athletics as a deliberative democratic process. To adequately address this aim, the following research questions were posed:

Representative Selection: Criteria

Appropriate representation varies according to the aim of the deliberative body (Parkinson, 2006). The Secretary’s Commission on Opportunity in Athletics was driven by an information-gathering imperative, where commissioners were responsible for providing recommendations about the necessity to revise Title IX standards and potential measures to improve the law’s effectiveness (U.S. DOE, 2002a). Representatives selected to serve on the Commission were “hand chosen” by the DOE as these individuals “are on the front lines every day and know the special challenges of Title IX” (U.S. DOE, 2002f, para. 6). Town hall expert speakers were selected to provide a range of interests and perspectives of American citizens’ experiences with Title IX policies, while providing information that would assist in addressing the seven questions assigned to the commissioners. Although the State had the right to use selective representation, and exercising this right was suitable given the Commission’s mandate, the legitimacy of representation selection was weak on two main levels: (a) selection criteria and (b) selection process. First, our findings indicated that study participants were unaware of the DOE’s criteria for selecting commissioner representatives, and selection criteria were inconsistent with the Commission make-up. The informational literature released by the DOE describing the Commission’s mission and objectives failed to provide standards used for commissioner selection. Our investigations led us to one of the government’s websites that provided criteria for commission selection:

The members of the Commission were selected to create a balanced representation of a wide range of interests and perspectives relating to men’s and women’s athletics. The members include representatives of the academic, athletic, government, and research communities and other persons with special expertise in intercollegiate and secondary school athletics or issues of equal educational opportunity. (U.S. DOE, 2002e, para. 12)

The criteria for commissioner selection were not covered in the literature describing the Commission’s mission or objectives. Moreover, although the term special expertise is not defined, given the importance and publicity of the Commission, and in ensuring legitimacy, it would make sense to define special expertise as well as to publicize the criteria in a more visible and/or accessible place.

Study participants also were unaware of the DOE’s reasons as to who was chosen to participate. The general sense was that commissioner selection was based on individuals’ diversity of knowledge and experience with Title IX, connection to the administration, or connection with the networks of athletic organizations. There was also a feeling that the DOE was attempting to counteract public suspicion about the Commission.

someone who had a pretty good background in the intercollegiate athletics and has some involvement in gender equity and I’ve been involved in both my conference and with NCAA . . . They also were very careful to select people who felt would have some credibility and because there was an awful lot of suspicion initially why the Commission was being formed, and I am sure they were aware of that and made every attempt to give some sort of balance. (Commissioner, October 18, 2006)

They were trying to get breadth of perspective and experience levels and the folks who could make significant contributions to such an important issue. (Town hall expert, May 23, 2007)

Despite participants’ perceptions that the DOE sought to gain a representative commission, in reality the Commission itself rendered a narrow voice (i.e., 10 of the 15 commissioner representatives were associated with NCAA Division I-A institutions—“the division with the fewest institutions and the greatest interest in obtaining exemptions for revenue-producing sports”; Staurowsky, 2003b, p. 107). As well, in conjunction with the Commissions’ guiding questions that focused on Division I intercollegiate athletics, many individuals believed that the selection process was “rigged” to support an anti-Title IX political agenda. Several Title IX supporters believed that the DOE had hand-picked commissioners who would support weakening Title IX legislation and thus benefit Division I-A athletic programs. The following quotations reflect this argument:

The problem was that it appeared the process was rigged from the start. Because the people invited to participate on the Commission, of the 15 members, it wasn’t balanced. There was no criteria that was shared as far as how they were selected and you basically had heavily weighted towards Division I institutions when we were looking at the high school level, the junior high level, junior colleges, you know Division I, II, and III, and it’s primarily Division I members on the Commission. Based on who they invited to the table, based on the questions they asked the Commission to answer, and based on the speakers they invited in, again this is the department who ultimately had the power or ability to do that, and some of the actions on the hill that looks from the start that it was a commission that was set up to basically rubber stamp a process that can weaken the law. (Town hall expert, September 18, 2006)

Unfortunately, I think we provided one voice regarding Title IX and issues that we face. There was no representation from primary or secondary schools. No one from the National High School Association or any other national organizations was represented on this Commission. I think one had come from public schools, but she had already left that post. Another man, well actually, he was Division I-A because, he was legal counsel from a Division I-A University. A professor from a Division I school. We had no one representing Division II or III of the NCAA. No one representing NAIA. No one representing high school. No one representing primary school. (Commissioner, October 25, 2006)

Contributing to the belief that the Commission had a political agenda to weaken Title IX legislation, the communicative competence of several experts was in question. While many individuals (commissioners and town hall experts) were well versed on the issue, several so-called experts failed to adequately speak to contradictory data, were unable to interpret data, or were unable to speak to the application of Title IX law. It was explained:

Shortly after the first town hall, I think Atlanta, that I started feeling that there was already an agenda with this Commission . . . The so-called experts who spoke were not experts, their information, their data were not published or accepted widely or broadly. You often wondered when you were listening to them or when you received the information prior to the meetings on who was going to speak, “who was this person, and why are they speaking, what has made them a so-called expert?” (Commissioner, October 25, 2006)

I want an outcome so I’m going to pick the people who I think are going to give me the best outcome; I’m going to get them the questions that I want them to answer; I’m going to bring in the speakers so they’re going to give a biased viewpoint on the outcome. I guess that’s the biased perspective. Their own people, they said, “Hey we want somebody from the GAO [Government Accountability Office] to come in, even some neutral parties that would give non-biased perspectives on statistics and that’s their job for the government, they wouldn’t bring those folks in. It did look a bit suspect.” (Town hall expert, September 18, 2006)

Second, the process for selecting town hall experts had limited legitimacy. On one hand, the procedures for selecting expert speakers at the respective town hall meetings were publicly communicated on the government’s website (U.S. DOE, 2002g), and through deliberations, the commissioners had agreed on a process for selecting town hall speakers. On the other hand, our findings demonstrated that, in reality, the process for selection and who made the selections contradicted the advertised and agreed-on procedures for choosing expert speakers. One town hall expert explained that the “members of the Commission could forward names of individuals of people who they thought would be good. But ultimately, it’s my understanding that the department (i.e., DOE) selected the individuals to invite them” (Town hall expert, September 18, 2006).

During the Commission, one of the cochairs shared his concern about the fairness of selecting expert speakers and the potential negative public image the Commission might assume. He stated, “We [the Commission] have to develop a public consensus that the process [i.e., selecting town hall speakers] has been fair” (Secretary’s Commission on Opportunity in Athletics-Colorado Springs Town Hall meeting, 2002, p. 22). One of the commissioners’ roles was to identify and select experts to speak to various issues regarding Title IX at the different town hall meetings. Several participants (commissioners and town hall experts) publicly voiced their uneasiness with the fairness of the expert selection process. They were particularly concerned with the fact that commissioners lacked input and control in decision making. For example, a San Diego town hall speaker alleged that the DOE staff had manipulated the Commission procedures by controlling who was chosen to serve as an expert and thus questioning the integrity of the selection process. The speaker stated,

[T]he Commission has rightfully, on a number of occasions, asked for certain experts to be before you, she said. It goes up the line to the White House and what comes out is not what you’ve asked for but what the Department of Education wants. What you’re left with is limited expertise applied to the problem and obfuscation of data. You’re trying to do the right thing, and the Department of Education staff is obstructing you. (as quoted in Hawes, 2002, para. 12)

The commissioners and other town hall expert speakers felt that the town hall selections required a “broader input” and more transparent selection process. On submitting names of potential town hall expert speakers, the commissioners were unaware of how or who would be selected until the expert panelists were publicly announced. At the third town hall meeting in Colorado Springs, commissioners shared their frustration in the selection process of town hall experts:

It appears to me that people are being weeded out, and I don’t know why . . . we’ve heard entrenched points of view three times from the same groups. You know what? If we don’t do that here, when it’s all over, and we don’t express majority and minority opinions, we’re going to be before Congressional hearings, every one of us, and we’re going to be discredited. (as quoted in Secretary’s Commission on Opportunity in Athletics-Colorado Springs Town Hall meeting, 2002, p. 8)

We don’t know who [town hall expert speakers] was being submitted from where, and then at some point, the e-mail comes out that says, “These are the people who are going to be in Colorado Springs.” I don’t really know how to relate to that. I’m assuming that someone sifted through and done all of what has been done, but I don’t feel as a commissioner that involved in that process. (as quoted in Secretary’s Commission on Opportunity in Athletics-Colorado Springs Town Hall meeting, 2002, p. 20)

During the Colorado Springs meetings, one of the chairs admitted that the problem partly was attributed to having two chairs (i.e., cochairs). In consultation with one of the DOE staff members, the cochairs had determined the invitees; however, the cochairs neglected to communicate the rationale for inviting certain town hall expert testimonies. The cochairs also acknowledged that the commissioners had agreed on a process for town hall expert selection, which they failed to follow due to “a very truncated time period, so we probably made a mistake in not doing that.” (as quoted in Secretary’s Commission on Opportunity in Athletics-Colorado Springs Town Hall meeting, 2002, p. 21). Furthermore, the commissioners agreed that they would attempt to follow the established selection process for the San Diego meeting as it was “imperative to get the right people in front of us” (as quoted in Secretary’s Commission on Opportunity in Athletics-Colorado Springs Town Hall meeting, 2002, p. 21).

The legitimacy problem of representative selection is emphasized in this case in three main areas. First, the DOE’s selected commissioners lacked legitimating bonds of authorization and accountability between participants and nonparticipants. Commissioner representatives were accountable to the State, and the lines of accountability were implicit to nonparticipants. Second, the agreed-on procedures by the commissioners were not followed during the Commission. The cochairs and the staff assumed power, which they did not rightfully hold, in making final expert selections, which they did not rightfully hold. Thus, the commissioners in the selection process played subordinate roles to the cochairs and the staff rather than playing primary roles. Parkinson (2006) maintained that a representative-selection approach can undermine the spirit of deliberative democracy because organizers hold power by controlling the agenda and selecting individuals who will present information that legitimizes their programs. Citizen dialogue is therefore restricted because the relationship is hierarchical.

Representation: Broad Versus Scale

Parkinson (2003) argued that “legitimacy is enhanced by numerous deliberative forums interacting in a wider deliberative system” (p. 188). In this case, the national reach of the Commission in the format of organizing four town hall meetings in different geographical locations was an attempt by the State to augment broad representation, specifically a diversity of citizen viewpoints about the policy issue from around the country. Although the communicative competence of representatives was in many instances weak (e.g., understanding of clarification of the three-part test to assess an institution’s compliance with Title IX in intercollegiate athletics, inability to speak to contradictory data), the national reach and scale of representation (more than 300 participants) enhanced the number of viewpoints to be presented and counteracted the skewed representative scale of the Commission and town hall experts (Pemberton, 2003). One town hall expert explained,

Right from the start, we were concerned about the composition of it [the Commission], but, the viewpoint of having four different hearings and allowing people not only who were selected to testify but the general public people could come. Moving it around the country, was a good move. Because you can’t say that although people tend to look at things on a national scale, there might be things regionally that are different. (Town hall expert, April 18, 2007)

Within deliberative institutions, there is a need to scale the number of participants involved in conversations with a representative population that can have their “preferences transformed in the face of a better argument” (Dryzek, 2000, p. 2). The restrictions placed on these institutions are necessary to prevent the prospect of speechmaking and rhetorical appeals (Parkinson, 2006, p. 4). However, in this study, despite the national reach of the Commission, the established procedures directing the public testimonies resulted in rhetorical appeals. A commissioner (September 30, 2006) stated that “There weren’t many arguments so much as just people coming to the microphone sharing their experience.”

The public testimony format at each of the town hall meetings allowed each citizen 5 min to speak before the Commission with a personal statement about their experience with Title IX. Participants provided emotional pleas of either how Title IX was hurting their opportunity to participate or assisted in their opportunity to participate. The public testimony format undermined the Commission’s deliberative communications, illustrating Parkinson’s (2006) argument that public testimony that omits questioning results in more people performing listening roles rather than speaking roles. Although rhetorical claims have merit in democratic deliberations (Gutmann & Thompson, 2004; Young, 2000), these types of claims also require rational justification (Dryzek, 2000). Restructuring the Commission to provide time for questioning and answering would have increased the legitimacy of the citizen testimonies. However, making such a change would have likely resulted in less citizen participation. The challenge in meeting the standards for inclusion becomes a balance between the scale of representation and reciprocity. The structure of the Commission procedures affected the overall quality of deliberations, which is further discussed in the section titled “Fairness/Unfairness of Commission Procedures.”

Quality of Deliberations

Within deliberative institutions, the precepts of publicity and reciprocity underpin the soundness of discussions (Gutmann & Thompson, 1996; Habermas, 1996). Publicity “establishes communicative links between insiders and outsiders such that those outside are exposed to the arrangements that are made inside a deliberative forum” (Parkinson, 2006, p. 99) and thus positively affects deliberations because democratic mechanisms are in place that require participants to provide public rationale justifications (Chambers, 2004). Parkinson (2006) argued that the public nature of deliberative proceedings serves as a foundation where only justifications and agreements that are put forth in deliberative moments can be considered mutually binding. The deliberative quality of the Commission was affected by the public nature of the procedures and limited perspective taken by representatives. In this study, the open public meetings permitted citizens to hold the commissioners and town hall experts accountable while raising citizen expectations about their deliberative performance. A town hall expert (April 18, 2007) stated, “They knew people were watching, so it hopefully allowed the Commission to do a better job, knowing that people were paying attention.”

In spite of the publicity raising the expectations of representative performances, at the same time the publicity and political nature of the topic had a deleterious effect on deliberations because it limited the type of questions asked and led to public scrutiny.

The public nature of it and I always say “the good news or the bad news”—the good news is that we cannot go undercover and conspire with each other, the bad news is you do not have an opportunity to really talk openly and to try to convince people back and forth about why their position ought to be something else. (Commissioner, October 18, 2006)

Commission members felt that they were unable to ask certain questions in fear of being publicly labeled “for” or “against” Title IX, or felt uncomfortable challenging their colleagues in public. The media’s reporting of commissioners’ questioning perpetuated the labeling and ultimately restricted the nature of questions posed and the quality of reason giving. It was explained:

Even if you sometimes wanted to ask a question, you had to measure it as to whether or not I need to ask that here, how will it be perceived? I know that from some of the commissioners, there was this feeling, “If I ask this question, somebody’s going to assume that I am opposed to this.” The Sports Illustrated for Women did their checklist . . . a little report card on every commissioner whether they were for or against Title IX. (Commissioner, October 18, 2006)

Similarly, during the deliberative recommendation and voting stages in developing the final report, it became apparent that the public was “keeping score” on how each commissioner voted on a specific topic (Commissioner, October 18, 2006).

Our findings suggested that publicity not only affected deliberations relative to the depth of reason giving but also restricted the type and depth of questions posed. In this study, the political pressure and concern to adhere to a professional code of conduct (i.e., being unable to ask unpopular questions and/or challenging one’s peers) illustrated the human side of dealing with deliberative procedures and resulted in reasoners only being required to provide minimal justifications. Chambers (2004) suggested that publicity may lead to plebiscitary reasoning—artificial reasoning where people will still ask what they believe are thoughtful questions. However, under the glare of publicity, these questions are in reality shallow or poorly formed. While publicity’s effect on the quality of deliberations is not a new phenomena, the tension exposed for deliberative theorists is determining in practice what is the appropriate balance between public and private reasoning that will achieve high-quality justifications (Elster, 1995).

Ideal-role taking is one standard that contributes to realizing the principle of reciprocity (Habermas, 1996). Habermas maintained that during discourse, participants are expected to take the perspective of everyone else and respect opposing points of view. Study participants felt that the commissioners were open to hearing opposing arguments, which was evident through their questioning and body language. The following is a representative quotation:

By the questions that they asked afterwards when someone made a statement or presented a point of view. It wasn’t just ignored and we went on to another topic. There were questions and discussions about the point that the speaker had just made. There was a good deal of respect for differences of opinion. (Commissioner, May 1, 2007)

When asked “How does one measure respect in that sense?” the commissioner explained,

Tell me more about what you’re thinking. How do you defend what you’re saying? Do you have any data to back up what you were saying? These were the kinds of questions that were asked. There were no ad hominem attacks on anyone. There were no attacks on someone’s political, larger views or anything like that. (Commissioner, May 1, 2007)

It was also disclosed that several commissioners did not necessarily enter the hearings with an open mind.

I think we were supposed to come in with an open mind, which you’d like to think you are but I mean I was pro-Title IX, I wasn’t going to let anybody talk me out of that probably. If somebody was against it, they probably felt the same way. (Commissioner, October 18, 2006)

The information presented and the nature of the justifications offered also contributed to these individuals feeling that it was unnecessary to change their position on the policy issue. The data presented for and against Title IX were viewed as “old” arguments and thus did not present any new insights relating to policy deliberations (Commissioner, October 18, 2006). Research indicates that individuals who feel greater accountability for their decisions are more likely to be objective and unbiased (Tetlock, 1983, 1985). Moreover, individuals who represent the majority generally enter deliberative forums ready to reject opposing viewpoints whereas those who represent the minority are more open to hearing opposing points of view (Levine & Russo, 1995; Zdaniuk & Levine, 1996). This study demonstrated that participants held informal accountability lines to their constituents, which suggested that commissioners would lean toward displaying subjective and biased attitudes. In addition, perspective taking was also influenced by the nature of the data and quality of reason giving, thus emphasizing the necessity to include representatives that possess the knowledge and expertise to present fresh perspectives into policy issues that have an extensive history, like Title IX legislation.

Dispositional requirements in achieving legitimacy are also difficult to measure. Legitimacy in deliberative democracy is more than instituting procedures to secure inclusiveness, equity, and fairness (Chambers, 2002). Chambers (2002) argued that although people may have the opportunity to speak, representatives are not required to listen or attempt to understand the other’s viewpoint; therefore, procedures alone are insufficient to claim legitimacy. As mentioned above, the scale of representation is important to ensure that multiple sources of data are collected to ensure that a range of viewpoints about the policy are heard.

Fairness/Unfairness of Commission Procedures

The Commission procedures displayed strong and weak legitimacy claims. Several procedural issues were evident in terms of the changing Commission mandate, lack of authority to revise procedures, and time restrictions placed on deliberations. The identified weaknesses in the procedures were subtle. Nevertheless, these issues affected the quality of deliberations. First, during the course of the procedures, the Commission’s mandate varied in its focus, which affected claims to representative legitimacy—those most affected by the policy. Initially and in the final report, the DOE stated that the Commission’s purpose was centered on measuring equal opportunity for men and women and boys and girls to participate in athletics under Title IX (U.S. DOE, 2002b, 2002c). The original mandate was broad based and included youth, high school, intercollegiate athletics, and Olympic athletes. As the Commission progressed, the mandate shifted its focus more toward issues of Title IX in the intercollegiate athletic context. This shift was illustrated in at least two instances: (a) After the town hall meetings, one of the Commission cochairs indicated that the policy agenda was determining fairness in intercollegiate athletics and (b) the government’s website stated that the Commission’s directive was to collect information, make recommendations, and advise the State on how to “strengthen enforcement and expand opportunities to ensure fairness for all college athletes” (U.S. DOE, 2002d, para. 1). The seven guiding questions also supported the focus on intercollegiate athletics because the majority of the questions posed were related to issues in Division I-A sports. The focus on intercollegiate athletics, the seven guiding questions, and Commission make-up assisted in supporting the pro-Title IX “conspiracy theory” that the DOE’s agenda was to weaken Title IX policies to support major NCAA Division I-A institutions.

Second, commissioners held limited, if any, agenda-setting power and lacked the authority to change procedural conditions when deemed necessary. Stability is an essential requirement of legitimacy (Flathman, 1972; Parkinson, 2003), as people need to learn the rules of engagement to effectively participate in policy discussions. However, within deliberative moments, a balance must exist between feeling secure, that is the rules will remain stable as well as the rules being redeemable were deemed appropriate (Flathman, 1972). Several commissioners felt that the preestablished questions failed to suitably address the initial mandate and requested that either additional questions be developed or the assigned questions be revised. A commissioner (September 30, 2006) explained,

The questions led us in a [wrong] direction that we didn’t want to go and there wasn’t really an option to choose, keep it where it is. It was always about “why should we change this, how should we change this, how should we change that?” I didn’t feel like it was, it was kind of skewed—we got to change it.

When asked what was meant by the wrong direction, the commissioner stated,

I personally felt like the way they were doing it [the procedures] was not as open as I anticipated it would be. Maybe “the wrong direction” is a bad choice of words, but I didn’t feel like it was encompassed all of the possibilities. (Commissioner, September 30, 2006)

Commissioners were not given autonomy to revise or add questions to address deficiencies in the seven questions posed by the DOE and that would suitably address the issues related to Title IX interpretations and its application. A commissioner stated,

In our first meeting, we talked about the questions and where they came from. And it was made very clear to us that those questions would not be changed. They’re not even worded very well, posed very well. (Commissioner, October 25, 2006)

In the drafting of the final report, commissioners were also not afforded the authority to include a minority view, and believed their feedback was insufficiently incorporated into the final draft. The DOE staff were perceived to hold too much power in deciding the content in the final report. As a result, several commissioners did not support the final report.

In our last meeting, we generated our recommendations. We voted on those recommendations. Those are documented in the reports. The majority felt that we should also include our minority view. We were told that was not going to happen by staff. That this was not going to include a minority report or minority view. The first draft was written by the staff. We were asked to provide feedback. I provided a lot. I know that there were 3 or 4 of us who provided feedback. Often times, if not all the time that feedback was not incorporated into the next draft. The draft didn’t change very much, that’s what I’m saying. (Commissioner, October 25, 2006)

The extent of the DOE staff’s participation was also questioned during the meeting deliberations. DOE representatives on the Commission held either ex-officio roles or served as staff members. Typically, state officials serve in these two different capacities during federal advisory committees. The ex-officio members asked questions during the panel discussions at the town hall meetings. Although, the ex-officio members had a right to participate in the deliberations because they represented the DOE, the nature of their questioning seemed to “influence the commissioners” (Town hall expert, October 6, 2006) and appeared to represent the perceived DOE’s preset agenda. Furthermore, it was argued that staff insufficiently fulfilled their role in communicating information and failed to distribute pertinent documents to the commissioners to assist in enhancing their understanding of the issues. These legitimacy claims are important because the activities influenced the degree of fairness achieved within the proceedings, in terms of assessing how much participation the State should assume during a federal advisory commission.

Last, the format of the procedures in terms of the time restrictions and voting structure affected the quality of deliberations. The town hall meetings were organized to provide three panels to hear expert testimonies. Each panel was composed of four invited speakers who made statements on the various topics addressed in the Commission’s charter. Each testimony speaker was allocated 10 min to present his or her case. After the four panelists spoke, the commissioners engaged in a 15-min question-and-answer session. Following the panels, public comments of 5-min increments were heard but were not subject to questions. What separates deliberative democracy from mere “talk” are the deliberations where reasoning giving occurs between people (Parkinson, 2006). Reasoning is an act of the giving, weighing, and accepting or rejecting reasons. Although town hall experts were provided adequate time to present their viewpoint, the short period of questioning and answering in combination with the limited communicative competence of the experts restricted the commissioners’ abilities to effectively engage in conversations where they could clarify the presented information or gauge the soundness of justifications. The following quotations illustrate this point:

A lot of times we were rushed through things and, we didn’t spend the time, the appropriate time on the things that needed to be addressed . . . when you have time limitations like that and you have a structure that doesn’t really fit the goals and objectives of what you’re trying to achieve on the commission, you couldn’t really interact with one another in good dialogue. (Commissioner, October 25, 2006)

It did provide an opportunity to present information, because of time constraints there was very little interaction between the commission and participants. I wasn’t sure that there was a good opportunity for discussion about some of the issues. (Town hall expert, April 3, 2007)

It was really hard to get a complete picture because somebody would come up and say one thing and then somebody else would say the complete opposite. There wasn’t anybody there to say that’s not true, but that is true. There was a huge problem with people just coming up, and even the people they asked to come. There was a ton of statistics and you can kind of skew them in a lot of different directions. There was never a point where they said “here’s the facts, this is what we know is true,” it was more like listening to people and kind of being persuaded by their argument “oh wow, I didn’t know that” you know and then somebody else would say but you know, at Division II, we have this problem. (Commissioner, October 18, 2006)

In addition, the structure of the public meetings created a sense of adhering to the “clock” rather than conducting quality deliberations about the complexities of the policy issue. Consequently, several discussions were incomplete including the interest surveys, ⁵ the Equity in Athletics Disclosure Act, ⁶ the reports on gender equity, and discussions in deciding final recommendations.

Similar to the limited time for questioning, during the recommendations and final voting stages, participants felt that they were rushed in their deliberations and voting, raising doubts about the credibility of the procedures for developing the final report. The commissioners were held to a strict timeline in submitting their final report, which led to people feeling frustrated because they were inadequately presenting the final recommendations. Restricting the length and depth of discussions was deemed by advocates of Title IX as another strategy for the State to further their agenda in weakening the Title IX policy.

There was limited ability to ask questions on the part of the commission. There were time frames where commissioners had to simply take positions without having seen things and take votes without understanding because they couldn’t see the things in writing what the implications were going to be; that they were given reports with very, very unrealistically short turnaround times; to vote on their positions then as locked in stone. It was a process that was attempting to railroad the commission into a result. (Town hall expert, May 22, 2007)

Deliberations must have an ending point, yet deliberative moments ought to take place longer than the 15 min allocated. In consultation with the DOE, the commissioners should have possessed the authority to revise the timeline.

Whereas a strong argument existed to suggest that the Commission was anything but fair, open, and inclusive, formidable claims to procedural fairness were also stated.

The procedures went very well. Everybody had an opportunity to say what was on his or her mind. Everyone had a chance to put his or her position on the table and they were listened to carefully by the other commissioners. I thought things worked very well. (Commissioner, May 1, 2007)

I didn’t feel like any of the commission members when asking questions of me or any of the other people testifying at the one I went to, didn’t appear to be trying to advance a political agenda or skew any sort of response or anything like that. I never felt like that when I was answering questions after my testimony. (Town hall expert, May 23, 2007)

These statements indicated that the public had an opportunity to share their points of view, their points of view were respected, commissioners were open minded, and the amount of time allotted for town hall experts to present was appropriate. The procedural outcomes (i.e., the final report) were deemed fair by some citizens and commission participants because it was perceived that the report reflected the information gathered through the various hearings and consequently that Title IX legislation should remain as written. Although the participants raised concerns about having to hold the State accountable for their decision making throughout the proceedings, the end result was deemed acceptable. One town hall expert stated,

What seemed to be relatively fair was the outcome. The outcome were based on the evidence, even though the arms had to be twisted every step along the way—or you know their action had to be questioned in order to try to get them to do the right thing, try to bring in more balanced speakers at the next session, etc. They came out with a very positive end product, which was basically to say “the rules are working as intended and we need to step up and do a better job of enforcement.” The end product looked like it was good. (Town hall expert, September 18, 2006)

This perception of fairness contradicted the authors of the minority report and some of the participants. These commission participants believed that the final report was flawed as it was based on inaccurate data, an illegitimate process, and failed to present the minority voice. The final requirement for deliberative institutions regarding legitimate procedures is that the outcomes need to provide for binding decisions that are deemed credible (Parkinson, 2006). The procedures must be fair in the eyes of those affected through the decision-making process. What was interesting about the outcome of the Secretary’s Commission on Opportunity in Athletics was the different perspectives that existed about the legitimacy of the process and the credibility of the outcome. This highlighted the need for further research to examine what level of citizen disagreement about the process is acceptable to claim the legitimacy of a federal commission.

Reflections and Recommendations

Attaining legitimacy in deliberative democratic models requires that collective policy making be a result of arranging procedures to allow rational and fair deliberations among free and equal citizens. The closer deliberations reflect this collective decision-making model, the stronger the claims of legitimacy. Based on these standards, the Secretary’s Commission on Opportunity in Athletics can certainly claim legitimacy. All those affected by the policy were represented, deliberations were reflexive and public, and the procedures were stable and legal. At the same time, the findings also illustrated that in several instances, legitimacy claims were weak. In this case study, legitimacy claims arguably came under the guise of meeting standards of representation, quality deliberations, and credibility; yet, in reality the powerful elites of the DOE had too much control over the process and decision making, which affected the quality of deliberations. Our findings supported Sanders’s (1997) criticisms of deliberative democracy in that, in such cases, citizens believe that the rules of the game are rigged, which restricts who gets to participate and what discourses are heard, while, simultaneously, the bureaucratic elites feel good because citizens are involved in resolving policy issues.

This study contributed to our practical understandings of the tensions that may arise when assessing what standards should be met by the State to claim legitimacy in broad deliberative democratic policy discussions. First, representative legitimacy issues were most pronounced in relation to who was invited to participate, the criteria for selection, and who had the right to invite participants. The purpose of a deliberative body is to determine who has the right to be selected to participate in specific policy discussions and who has the right to select those who partake in discussions. The Commission had an information-gathering imperative to provide recommendations about the effectiveness of the Title IX policy. The Commission was broadly represented, and all those affected by the Title IX policy were involved to some capacity in the deliberations. At the same time, those who served on the Commission and testified as experts did not represent all viewpoints; some lacked communicative competence and possessed limited dispositional requirements to hear opposing points of view. Furthermore, although the predetermined agenda did raise issues about Title IX and its application, the questions posed failed to address the complexity of the policy. In addition, the lack of communicative competence of so-called experts raises questions about how their incompetence can influence a political agenda, which warrants future research. The tension surrounding external obstacles of deliberation (i.e., who set the agenda and who was invited to participate) returns us to Sanders’s (1997) criticisms of the contradictions evident in the application of deliberative democracy theory. The State should not be the main designer of a commission. Kadlec and Friedman (2007) argued that, ideally, various partisan deliberative representatives should oversee the design of deliberative forums. Quality design also includes paying attention to the processes and structures of deliberation (Kadlec & Friedman, 2007). The limited time assigned to questioning and discussion of recommendations restricted the quality of deliberations and led to citizen frustrations. Understandably, the DOE had a timeline to conduct the commission and receive their report, but their timeline was impractical and undermined the deliberative process. To enhance the integrity of the process, commissioners should have possessed more power and authority in selecting participants as well as revising the agenda and the structure of procedures as deemed necessary. When the staff overstepped their official capacity during the Commission proceedings, the commissioners should have held them accountable. In future, Commission guidelines that delineate the roles and responsibilities of Commission members and how to hold individuals accountable for failing to fulfill their role or stepping outside their role might be a helpful tool for future commissioners. Furthermore, future research that examines commissions from a structural or symbolic and/or ritual activity and the time required to allow quality deliberations to occur could provide some interesting insights on the deliberative process.

Second, citizen satisfaction with deliberative forums is based on selecting suitable procedures (Mansbridge, 1983). The unanimous voting process for developing recommendations for the final report was not the appropriate procedure. This process reflected a unitary democracy, which primarily suits deliberative situations where a correct solution is viable. Unitary democracy allows for minority viewpoints, and participants share underlying interests and social bonds (Mansbridge, 1983). While deliberative forms ideally aim at arriving at a rationally motivated consensus, in this case, a unanimous voting process was not an appropriate means for gaining agreement as it allowed the minority to control the voting procedures. Commissions address complicated public policy issues, and even under the best deliberative conditions, there is no promise a consensus can be reached (Cohen, 1989). An adversarial democracy model—where various solutions are possible and majority rule is sought—is more appropriate for gaining agreement and incorporating minority viewpoints in the context of a commission.

In conclusion, the Secretary’s Commission on Opportunity in Athletics demonstrated several defining characteristics of deliberative democracy in assessing the legitimacy of a federal commission. Our case study by no means provides a full delineation of a deliberative system but provided a lens to examine deliberative democracy at work in a national policy issue. First, tensions created by using representative selection in a deliberative model were highlighted. Scaled representation does appear to be one solution to counteracting narrow representation. Second, quality of deliberations can be affected by publicity in terms of the questions posed and limited perspective taking by participants. Deliberative practitioners are challenged with incorporating public and private deliberative moments into commissions as well as assessing the dispositional attitudes of participants. Third, the format of the procedures can limit the depth of deliberation, and therefore, when required, participants should be afforded the authority to revise the format. Last, despite the legitimacy issues raised in the secretary’s commission, the outcome on the whole was accepted by those most affected by Title IX policy. Future investigations of deliberative outcomes will hopefully enhance our understanding of what degree of legitimacy is required to claim a legitimate outcome.