Brentwood Academy v. Tennessee Secondary School Athletic Assn. (02/20/2001)

By: Holly Sanders, Medill News Service

Questions presented

Does the regulatory conduct of a nominally private secondary school athletic association, which ""establishes and enforces all of the rules by which high school teams and players, at both public and private schools, compete throughout the state of Tennessee,"" and whose ""membership consist(s) entirely of institutions located within the state, many of them public institutions created by the same sovereign,"" constitute state action under the 14th Amendment and under the federal civil rights act, 42 U.S.C. Section 1983?

Brief

With nine state football title trophies in its display case, Brentwood Academy has long been considered an athletic powerhouse among Tennessee high schools.

For years, the schools success on the football field seemed almost too good to be true. And, according to some rival coaches, it was. In 1997, they accused the private Christian school of violating recruiting rules.

The Tennessee Secondary School Athletic Association -- the states governing body for high school athletics -- investigated charges that Brentwood coaches had, among other things, provided free tickets to prospective players and invited them to off-season practices.

At issue was whether the coaches had violated the TSSAAs recruiting rule, which reads: ""The use of undue influence on a student (with or without an athletic record), the parents or guardians of a student by any person connected, or not connected, with the school to secure or retain a student for athletic purposes shall be in violation of the recruiting rule.""

The organization found that the schools coaches had improper contact with four middle school athletes. Brentwood was fined $3,000, placed on probation for four years and barred from the state playoffs for two seasons.

After numerous appeals to the TSSAA, Brentwood filed a federal suit against the organization. Since then, the two sides have fought over whether the TSSAA is a ""state actor.""

The school claims that the TSSAA is a state actor, and as such, the organization could not limit the 1st Amendment right to free speech by telling coaches how and when they should talk with prospective players.

But the TSSAA, which has about 375 member schools, argues that it is an independent organization free to impose its own rules and regulations.

In 1998, the district court declared the TSSAA a state actor and enjoined it from enforcing its broadly worded recruiting rule.

A unanimous 6th Circuit Court of Appeals panel reversed, holding that the TSSAA was not an arm of the state because it receives no state funding and schools may withdraw their membership at any time. It also found that the organization is not ""so intertwined with the government that its actions should be considered as those of the state.""

The decision, which quoted from a 5th Circuit Court of Appeals opinion, stated: ""Questions about eligibility for competition may loom large in the eyes of youths, even parents. We do not disparage their interest in concluding, as here, that these issues are not of constitutional magnitude.""

The 6th Circuit also denied Brentwood Academy's motion for en banc review. But in a strong dissent to the denial, Chief Judge Gilbert Merritt argued that the ruling conflicts with earlier circuit court decisions and allows high schools to arbitrarily determine athletic eligibility.

He also stressed the importance of the majority's opinion. ""This is an important case because all high school interscholastic athletic contests in the states of the 6th Circuit and in almost all other states in the country are conducted in similar fashion by athletic associations like the TSSAA.""

In criticizing the majority's conclusion that the TSSAA is not a state actor, Judge Merritt argued that such associations could maintain segregated athletic programs.

""[The] TSSAA could rule ineligible for competition high school athletes on the basis of race, gender, national origin, or religion,"" Gilbert wrote. ""It could disqualify, suspend or otherwise punish high schools and their students without notice and without a statement of reasons or a hearing or the other procedural protections provided by the due process clause.""

On Feb. 22, 2000, the U.S. Supreme Court granted certiorari, and allowed the Memphis University School, et al. to file an amicus brief in the case.

On Aug. 28, the Court allowed the U.S. Solicitor General toparticipate in oral arguments as amicus in the case.

Also filing amicus briefs in the case are: the U.S. Solicitor General for the United States, National Votings Rights Institute, National Women's Law Center, Southeastern Law Institute, Tennessee Lawyers' Association for Women, Kentucky High School Athletic Association, Florida High School Activities Association, Inc., and the Interscholastic Associations.