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Published in Print: October 4, 2000, as High Court To Referee Football Dispute

High Court To Referee Football Dispute

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Brentwood Academy has won nine state football championships, more than any other school in Tennessee. The 31-year-old independent school, which has 350 students in grades 9-12, has often vanquished public schools with four or five times its enrollment.

But coaches at some of those public schools believe the private powerhouse just south of Nashville hasn't always played fair. Three years ago, they accused the academy of breaking recruiting rules set by the Tennessee Secondary School Athletic Association, the governing body for interscholastic sports in the state.

The TSSAA investigated and, in the end, punished Brentwood for three violations. It barred the academy's football and basketball teams from state playoffs for two seasons, among other penalties.

Brentwood didn't take the punishment lying down. The academy sued the association in late 1997, alleging that the TSSAA had violated its constitutional rights of free speech and due process of law.

Big-Time Sports

Next week, the U.S. Supreme Court will hear arguments on a somewhat technical but important legal aspect of the case: whether the nominally private athletic association acts under authority of state law when it enforces its rules.

Federal courts of appeals have split on that question. While several have ruled that various state athletic associations are government "actors" subject to the constraints of the U.S. Constitution, the U.S. Court of Appeals for the 6th Circuit in Cincinnati ruled in the Brentwood case that the Tennessee association was a private group. Thus, the court said, the TSSAA's rules were not subject to the constitutional objections raised by the academy.

The question holds importance for anyone who has tried to use the federal courts to challenge the actions of state athletic associations, such as students embroiled in eligibility disputes or girls challenging the equality of their sports opportunities compared with boys'.

Meanwhile, in Tennessee, where high school sports long ago took on a big-time status similar to that of college athletics, the battle between Brentwood and the TSSAA has been bitter, even personal.

"This case is not about weighty issues like school choice, free speech, or constitutional accountability," the athletic association says in its pointed Supreme Court brief. "This case is really about ... Brentwood Academy's desire to win TSSAA championships at any cost."

"We've got a huge societal problem that places a bigger emphasis on athletics than it really needs to have," said Ronnie Carter, the executive director of the athletic association and the person who led the Brentwood inquiry.

The academy responds that public school coaches are just frustrated that promising athletes from their neighborhoods are enrolling in a private school.

The TSSAA, whose membership and leadership are dominated by public schools, wants to maintain "a Berlin Wall around public school students ... inhibiting parents and students from learning about educational options they have a right to discover and embrace," the school says in its brief.

"It's not that we want to go recruit football players," said Curt Masters, the headmaster at Brentwood. "We want to communicate about our school."

Carlton Flatt, who amassed a 320-46 won-loss record as Brentwood's football coach for 29 years, puts it more bluntly.

"The public schools are fighting for their lives," said Mr. Flatt, who stepped down as coach in 1999 and is now the school's athletic director. "They want to make it so that if families don't get the information [about private school options], they won't know what's out there."

Mr. Flatt is pressing a separate libel lawsuit against Mr. Carter and others stemming from the recruiting allegations.

Spring Practice

Brentwood is a nondenominational Christian school serving children of country-music stars, recording-company executives, and other well-to-do families. The total enrollment for the grades 7-12 academy is 610 students, and tuition is $8,350 per year. But the school also doles out some $300,000 in financial aid each year, much of it to gifted athletes.

The academy stresses a "triangle philosophy" that nurtures students' bodies, minds, and spirits. In addition to a challenging academic program and regular devotional exercises, the school requires all students to participate in some form of extracurricular athletics. Seventy-two boys are on the football roster, or more than one-third of the boys in the high school grades.

The 1997 inquiry by the athletic association started out with complaints from public school coaches and officials in the 70,000-student Metropolitan Nashville-Davidson County district.

The TSSAA'S recruiting rule bars schools from using "undue influence" to attract a student for athletic purposes. The association interprets the rule as prohibiting, among other actions, coaches' communication with student athletes before they have enrolled.

While a number of alleged violations were investigated, one key infraction of the recruiting rule is at the foundation of the school's legal case.

In spring 1997, Mr. Flatt wrote to several 8th grade student athletes in public school, inviting them to spring football practice. Their participation was legal, but the letters violated the recruiting rule, the TSSAA said.

Mr. Flatt said the students had already committed to attend Brentwood in the fall, so no inducement was involved. But under the association's rule, no contact from the coach was allowed until the students had attended the school for three days.

After various procedures and appeals, Brentwood was punished by the association's board of control with four years' probation for its entire athletic program, a $3,000 fine, and exclusion from participation in the football and basketball playoffs for the two seasons. (The teams were made eligible for the second season by a court order.)

Mr. Carter defended the association's recruiting rule and the sanctions against Brentwood. "The recruiting rule says you can't single out people," he said. "You can't treat individual kids differently because they are athletes."

Brentwood sued in U.S. District Court in Nashville, contending that the recruiting rule violated the school's First Amendment right to free speech. It sought an injunction against the rule. The academy says it is not opposed to restricting conduct designed to induce student athletes to enroll, such as offering gifts or transportation. But the association's ban on communication is too restrictive, it says.

The TSSAA argued that the case did not even belong in federal court because the association does not act with government authority. Brentwood and other schools agree to abide by the rules as voluntary members of the association.

U.S. District Judge Todd J. Campbell ruled in favor of the school in 1998. As an initial matter, he held that the TSSAA was a state actor for the purposes of constitutional scrutiny. He noted that, among other factors, the state board of education had designated the association to regulate interscholastic athletics in Tennessee as early as 1925.

He also cited a 1988 Supreme Court decision holding that the National Collegiate Athletic Association was not a government actor because it was a national organization and its actions were not attributable to any single state. But in a footnote to that opinion, NCAA v. Tarkanian, the high court suggested that an athletic association made up of many public schools from the same state would be considered a state actor.

Judge Campbell went on to rule that the TSSAA's recruiting rule violated the academy's free- speech rights. "It is simply not the business of the state to stifle competition among schools for students, whether those students are athletes, musical prodigies, or math geniuses," the judge said.

A three-judge panel of the 6th Circuit court unanimously reversed the judge last year, ruling that the TSSAA was not a state actor. The regulation of interscholastic sports is not a power "traditionally exclusively reserved to the state," the court said.

Because of that conclusion, the appeals court did not reach the question of whether the recruiting rule violates the First Amendment.

In its appeal to the Supreme Court, Brentwood noted that the 6th Circuit's ruling appeared to conflict with rulings of six other federal appeals courts that have held state athletic associations to be state actors. The high court granted review, and the case, Brentwood Academy v. Tennessee Secondary School Athletic Association (Case No. 99-901), is to be argued Oct. 11.

School Pride

In the Supreme Court, the Clinton administration and groups concerned about discrimination against girls in athletics have filed friend-of-the-court briefs in support of Brentwood Academy. The administration says that because of its obligation to enforce civil rights laws, it is concerned about any case that helps define whether a private group is engaged in state action.

Shielding associations such as TSSAA from constitutional challenges would allow them "to engage in practices that blatantly discriminate on the basis of race or sex," the administration argues.

But athletic associations from 17 other states joined briefs siding with TSSAA. Despite the importance of interscholastic athletics, its regulation is not a traditional government function in which the states have delegated authority to associations, the group's brief maintains.

Mr. Carter said he fears that if the TSSAA loses the state-authority question and the recruiting rule is ultimately struck down, students will be the losers because they will be treated more as athletic commodities.

"We do not see kids at the middle school level the way colleges see high school seniors," he said.

At Brentwood, meanwhile, school officials appear to await the outcome of the legal case as eagerly as they anticipate Friday-night football games. The school produced a 24-page brochure defending itself against the TSSAA, and the alumni magazine includes regular updates on the case.

But nothing beats pride on the football field, where the school hasn't won the state title since 1996.

At an afternoon pep rally before a home game last month, football co-captain Taylor Bourgeois reminded the assembly that the evening's opponent, Christian Brothers High School of Memphis, "whipped us" twice last season and had pronounced Brentwood's team "overrated."

"That sticks in my mind—'overrated,' " he told his fellow students. "We're going to take Christian Brothers tonight, and we're going to go on and win the state championship."

Brentwood won the game, 19- 0.

Vol. 20, Issue 5, Pages 1,26-27

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