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Published in Print: February 28, 2001, as Sports Group Ruled To Be Arm of State

Sports Group Ruled To Be Arm of State

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A state high school athletic association whose membership and governance are dominated by public schools should be considered an arm of state government subject to the U.S. Constitution, the U.S. Supreme Court ruled last week.

In a 5-4 decision, the court held that the Tennessee Secondary School Athletic Association, which regulates sports for public and private high schools in that state, acts with government authority when it enforces its rules. Thus, the association cannot escape federal constitutional constraints by arguing that it is a purely private membership organization.

"The nominally private character of the association is overborne by the pervasive entwinement of public institutions and public officials in its composition and workings," Justice David H. Souter wrote for the majority in Brentwood Academy v. Tennessee Secondary School Athletic Association (Case No. 99-901).

He was joined by Justices John Paul Stevens, Sandra Day O'Connor, Ruth Bader Ginsburg, and Stephen G. Breyer.

Writing in dissent, Justice Clarence Thomas said the court had "never found state action based upon mere entwinement" between the public and private sectors.

The majority's reasoning, he said, "could affect many organizations that foster activities, enforce rules, and sponsor extracurricular competition among high schools—not just in athletics, but in such diverse areas as agriculture, mathematics, music, marching bands, forensics, and cheerleading."

Justice Thomas was joined by Chief Justice William H. Rehnquist and Justices Antonin Scalia and Anthony M. Kennedy.

State Action

The ruling was the first by the Supreme Court in a case involving the regulation of high school athletics. Because the vast majority of state athletic associations are nominally private, the court's ruling is likely to have a wide effect in confirming that most, if not all, such groups are subject to constitutional scrutiny.

But while the decision is an important interpretation of the legal status of most such associations, it will not disturb the status quo in most of the country. Most federal courts, including six federal courts of appeals, that have considered the issue have ruled that state athletic associations are "state actors" subject to the federal Constitution.

The question has come up in cases where, for example, students have sued athletic groups over their eligibility to compete or girls have sued claiming unequal sports opportunities. Even when lower courts have found the associations to be state actors, that has not guaranteed victory for the plaintiffs on the merits of their constitutional claims.

In the case from Tennessee, however, the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, had ruled that the state athletic association was not acting with government authority, and that the regulation of interscholastic athletics was not a traditional area of state concern.

The case began in 1997, when Brentwood Academy, a private school in suburban Nashville serving grades 7-12, was investigated for several alleged athletic-recruiting violations. Like many other state athletic governing bodies, the TSSAA prohibits its member schools from using "undue influence" in attracting student athletes.

As a result of the investigation, Brentwood—a perennial athletic powerhouse that has won nine Tennessee football championships—was punished for three rules violations. The principal violation involved letters written by the academy's football coach inviting several 8th grade student athletes in public schools to spring football practice. ("High Court To Referee Football Dispute," Oct. 4, 2000.)

The school sued the TSSAA in federal district court, arguing that an interpretation of the recruiting rule barring communication with prospective student athletes violated the school's First Amendment right of free speech. A federal district judge ruled that the association was a "state actor," and that its recruiting rule thus violated the academy's right to freedom of speech.

"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 wrote in 1998.

But the 6th Circuit court ruled that the TSSAA could not be sued on constitutional grounds because it is not an arm of the state. Because of that conclusion, the appeals court did not address whether the association's recruiting rule violated the First Amendment.

In his Feb. 20 opinion for the Supreme Court, Justice Souter noted that 84 percent of the TSSAA's membership consisted of public schools. The association's rule-making and administrative bodies have traditionally been dominated by public school officials, usually high school principals or assistant principals, he said.

The Tennessee state board of education first acknowledged the TSSAA's functions at the group's inception in 1925, and in 1972 the state board officially designated it to supervise and regulate interscholastic activities, Justice Souter added. The board removed the official designation in 1996 in an apparent attempt to help the TSSAA avoid liability after it was held to be a state actor in another federal lawsuit.

"The state board once freely acknowledged the association's official character but now does it by winks and nods," Justice Souter wrote.

"The close relationship is confirmed by the association's enforcement of the same pre-amendment rules and regulations reviewed and approved by the state board ... and by the state board's continued willingness to allow students to satisfy its physical education requirement by taking part in interscholastic athletics sponsored by the association," he added.

Justice Souter did not suggest whether an association could avoid state-actor status by having a lesser dominance by public schools than is the case with the TSSAA.

In his dissent, Justice Thomas argued that "the organization of interscholastic sports is neither a traditional nor an exclusive public function of the states."

"The TSSAA's board of control enforces its recruiting rule solely in accordance with the authority granted to it under the contract that each member signs," he added.

Next Steps

Reacting to the high court's decision, Marcia D. Greenberger, the president of the National Women's Law Center, said: "Athletic associations should view this as a wake-up call that they have legal obligations."

The Washington-based center, which is involved in lawsuits against state high school athletics groups over equity for girls' sports, filed a friend-of-the-court brief in the case on the side of Brentwood Academy.

Ronnie Carter, the executive director of the TSSAA, said that he was disappointed with the ruling, but that it was not the end of the game for the association's rule against recruiting.

"Other courts have ruled that we were a state actor, but then ruled in our favor on the merits of the case," he said.

The likely next step is for the case to return to the 6th Circuit court, which would then consider the federal district court's ruling that the TSSAA recruiting rule violated Brentwood Academy's First Amendment rights.

Carlton Flatt, Brentwood's football coach for 29 years and now its athletic director, said he took some personal satisfaction in the Supreme Court victory. But "it is more of a victory for the children of Tennessee," he added.

"Any organization that does not have accountability runs the risk of overstepping its bounds," said Mr. Flatt, whose battles with the TSSAA have been bitter at times.

Curt Masters, the headmaster of the 610-student school, was leading the 8th grade class's annual trip to Washington last week when the decision was handed down. Although the students were not in the courtroom for the announcement, they visited the Supreme Court building later that day. Many of the students picked up copies of the opinion involving their school.

"This was a great civics lesson for us," Mr. Masters said.

Vol. 20, Issue 24, Page 1

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