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Published in Print: April 10, 2002, as High Court Declines Second Look At Athletic-Recruiting Case

High Court Declines Second Look At Athletic-Recruiting Case

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The U.S. Supreme Court declined last week to step back into a lengthy court battle between an athletically powerful private school and Tennessee's high school sports authority over recruiting violations.

Brentwood Academy, a suburban Nashville school that has won nine state football championships, won an important legal round last year when the Supreme Court ruled that the Tennessee Secondary School Athletic Association acts with state authority when it enforces its rules on member schools.

But the 5-4 ruling in February 2001 amounted to only a halftime lead in the 350-student school's fight with the athletic association. The case was returned to a federal appeals court to decide the underlying issue of whether the association's rule against athletic recruiting violated the private school's right of free speech.

The U.S. Court of Appeals for the 6th Circuit, based in Cincinnati, largely ruled against Brentwood Academy on that question last July. A panel of the court held 3-0 that the recruiting rule was content-neutral and thus was easier to uphold under the First Amendment.

But the appeals court said the case would have to go back to a federal district court in Nashville to decide whether the rule was narrowly tailored to the athletic association's interests.

The Supreme Court on April 1 declined without comment to hear the private school's appeal of the July appellate-court decision in Brentwood Academy v. Tennessee Secondary School Athletic Association (Case No. 01-1117).

The case began in 1997, when Brentwood Academy was investigated for several alleged recruiting violations. Like many other state athletic governing bodies, the Tennessee association prohibits its member schools from using "undue influence" to attract student athletes.

Brentwood ultimately was punished for three rules violations, with the principal one involving letters written by its football coach inviting several 8th grade student athletes in public schools to visit spring football practice. The letters violated the recruiting rule, and Brentwood's football and basketball teams were barred from the state playoffs for two seasons, among other penalties.

The school went to court, and a federal district judge ruled in 1998 that the recruiting rule violated its right to free speech. But in its first ruling in the case, the 6th Circuit court held in 1999 that the TSSAA was not acting with state authority when it enforced its rules. It ordered Brentwood's case dismissed.

The Supreme Court took up the school's first appeal to decide only the question of whether state athletic associations act with government authority. The high court held that an athletic association such as Tennessee's, whose membership and governance are dominated by public schools, acts with government authority and thus its rules must comply with the U.S. Constitution. ("Sports Group Ruled to Be Arm of State," Feb. 28, 2001.)

A Second Appeal

The high court sent the case back to the 6th Circuit court to proceed to the First Amendment issue. In its decision last July on that question, the appeals court said the rule against recruiting middle school students did not amount to a total ban on communication between secondary schools and prospective athletes from feeder schools.

Brentwood could still advertise its academic and athletic programs and could send out general letters about its school to all middle school students, the appellate court said. The rule was designed only to prohibit targeted communication with athletic prospects, the 6th Circuit court said.

But the appeals court said it could not decide on its own whether the recruiting rule was "narrowly tailored" to meet the interests put forth by the athletic association: keeping athletics subordinate to academics, protecting student athletes from exploitation, and maintaining a level playing field among its member schools.

The appeals court said the district court would have to take the first crack at deciding whether those interests of the association were in fact legitimate. With the Supreme Court's refusal to get involved yet again, the long-running case will now return to the district court.

Vol. 21, Issue 30, Page 22

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