Tennessee Secondary School Athletic Assn. v. Brentwood Academy (06/21/2007)

Questions presented: Whether the 6th Circuit correctly held that the association violated the 1st Amendment and due process rights of Brentwood Academy when it imposed contractual penalties for recruiting violations that Brentwood agreed to follow?

BY JONATHAN WEINSTEIN, MEDILL NEWS SERVICE

High school sports are often associated with significant constitutional questions. However, the Supreme Court has agreed to consider whether a Tennessee high school athletic association violated the First Amendment and due process rights of a private school by barring communication with prospective athletes.

The Tennessee Secondary School Athletic Associaion is the high school sports governing body in the state of Tennessee with 290 public school and 55 parochial school members. Brentwood Academy, a voluntary member of the TSSAA, is a private school with 520 students in grades 6 through 12.

Brentwood Academy alleges that its First and Fourteenth amendment rights were violated by the TSSAA.

This is the second time the case has appeared before the Court. This time around the Supreme Court has been asked to answer the fundamental question of whether restricting contact between a high school sports program and a prospective student is protected by the First Amendment. The 6th U.S. Circuit Court of Appeals found that it does.

In his dissent, Circuit Court Judge John Rogers wrote about the importance of protecting First Amendment rights. But he wrote that this case and the finding in the sixth circuit "trivializes" freedom of speech rights.

Ed Sikorski, the attorney for the Michigan High School Athletic Association, strongly agrees with Judge Rogers dissent.

"On the first day of constitutional law [class], you discuss the issue of what is a justifiable issue, what is an issue that can come before the court that they can decide on.," Sikorski said. "They might as well decide what you can name your dog, if they want to have jurisdictional reason to do it."

Sikorski filed an amicus brief in this case supporting the TSSAA. Sikorski said this issue should never have come before the court. And even worse in his opinion, the courts have ruled in a way that could fundamentally change high school athletics.

"I can't imagine what is going to happen," Sikorski said. "They would have to shake the foundation of everything."

This case started out being something much simpler than a constitutional question of first and fourteenth amendment rights. Carlton Flatt, head football coach at Brentwood Academy, just wanted to be able to send a letter to student-athletes who had already enrolled at his school. And Flatt even tacitly supports the TSSAA's premise and Sikorski's point of view.

"We do not want coaches in high school to be able to recruit players," Flatt said.

The TSSAA's original complaint said that Flatt and Brentwood Academy violated their rules that regulate contact between high school coaches and potential athletes. The first violation was that Flatt sent a letter to 12 players who had enrolled at Brentwood but had not yet started classes. The second violation involved two players receiving free tickets to one of Brentwood's games.

All of this occurred back in 1997. The case has been kicked around the courts for the past nine years.

In its first stop at the Supreme Court, the justices found that the TSSAA was in fact a state actor. The court said "the association's regulatory activity may and should be treated as state action owning to the pervasive entwinement of state school officials in the structure of the association."

More simply put, the TSSAA is an organization that is held to the same standard as a state and federal governmental body is. Because of this the TSSAA is not allowed to violate the federally guaranteed rights of individuals and organizations.

After being affirmed as a state actor, the case was remanded back down to the district court to decide the first and fourteenth amendment issues. But because this same case has made its way back to the Supreme Court there is a chance that the state actor issue can be re-examined.

Ronnie Carter, the executive director of the TSSAA, said that he thinks there is a chance the court could change its mind on the original case.

"They've got two new people there," Carter said. "And it's our hope that they will think we're not state actors."

Sikorski agrees and thinks this is the real fundamental issue of the case and hope the new court will re-examine the issue.

But Carter is also just grateful that the Supreme Court has accepted his organization's appeal on the merits of the first amendment issue.

The TSSAA believes that high school sports serve to further the academic goals of their member institutions. And fundamental fairness and a level competitive playing field are key points that will be argued before the Supreme Court.

Brentwood says that they shouldn't be punished for what they did because it wasn't really recruiting. They have said consistently in their briefs before the various courts that they have a right to talk to students who will be playing for their team in the future.

Numerous state high schools athletic associations have joined with the TSSAA and hope to prevent any appearance that recruiting in high school sports will be allowed.

Both Flatt and Carter have had to interact over the past 9 years while this case was being litigated. And both of the parties say they have the utmost respect for each other.

Flatt said he will be retiring in July.

Carter continues to stay very involved with the case and he said the outcome will be critically important to his organization. He has tried to separate his personal feelings from his responsibilities as the executive director.

This case has evolved so much from where it began. A $3,000 fine and probation was levied against the Brentwood Academy. Now, the future of how high school sports are conducted are hinging on these two parties. Sikorski said that the future of competitive balance in high school sports is at risk and he gave a dramatic example of exactly what the dangers are.

"I guess you can steal all of my players, you can come to the football game with brass knuckles," Sikorski said.

That might be a dramatic example but the consequences of this case could be far reaching.

First Amendment issues in high school recruiting? Not a question that is often raised, but one that will be argued before the Supreme Court.