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Published in Print: February 19, 2003, as Law Update

Law Update

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Brentwood Wins Latest Round In First Amendment Battle

Brentwood Academy, a powerhouse private school near Nashville, has scored a touchdown in its lengthy legal struggle with the Tennessee Secondary School Athletic Authority. But the seesaw contest is far from the final gun.

A federal district judge in Nashville ruled last month that the athletic authority's application of its anti-recruiting rule to Brentwood over a 1997 incident violated the private school's First Amendment right of free speech.

At issue was a letter to 8th grade boys inviting them to a spring football practice. The boys had already agreed to enroll at the 600-student school the following fall. But under the athletic authority's rules, the football coach could not communicate with them until they had attended the school for three days.

Brentwood, a perennial gridiron standout that was resented by some Tennessee public schools, was slapped with penalties that included exclusion from football and basketball playoffs for two years. The academy sued the Tennessee authority in 1997; the central issue was that the regulatory body's rule against recruiting infringed on the school's right of free speech.

The case went to the U.S. Supreme Court in its 2000-01 term on an important side issue: whether the athletic authority acted with government authority when it enforced its rules. The justices ruled 5-4 that the athletic group was in fact a "state actor," and thus its actions were subject to constitutional scrutiny.

That was a major victory for Brentwood, but the school lost the next round, when the U.S. Court of Appeals for the 6th Circuit held in 2001 that the rule against recruiting was not unconstitutional on its face. In December, the academy's case finally went to trial in U.S. District Court in Nashville over whether the recruiting rule was unconstitutional as applied to the 1997 Brentwood letter about spring football practice. Both sides brought in a number of expert witnesses, such as school choice advocates, scholars in sports ethics, and former congressman and basketball pro Tom McMillen.

On Jan. 13, U.S. District Judge Todd J. Campbell ruled in Brentwood's favor. The judge said the association had legitimate reasons for its rule against recruiting, such as preventing the exploitation of student athletes. But the letter was "harmless informational speech about a permitted athletic practice," he said.

The authority's application of its rule held up even less, in the judge's view, in light of the fact that the rule allows public high schools to communicate with students in its feeder middle schools.

"There is no legitimate reason to permit speech in a feeder pattern but prohibit the same speech by Brentwood Academy to its incoming students," the judge said.

Ronnie Carter, the authority's executive director, said last week that the decision has been appealed to the 6th Circuit court. The ruling undermines the association's recruiting rule and puts "federal judges, not educators, in the position of deciding what is best for school sports," he said.

Waldorf Schools

A federal appeals court last week reinstated a lawsuit that challenges several public Waldorf schools as violations of the First Amendment's prohibition against a government establishment of religion.

People for Legal and Nonsectarian Schools, a group in Grass Valley, Calif., sued two California school districts in 1998 in federal district court in Sacramento. The 53,000-student Sacramento city system operates a magnet school using Waldorf methods, while the 1,800-pupil Twin Ridges Elementary School District has sponsored seven charter schools based on the approach.

Waldorf education, founded in Germany in 1919 by Rudolf Steiner, stresses the arts and incorporates storytelling and the reading of myths and legends. Critics, including People for Legal and Nonsectarian Schools, contend that Waldorf education is closely connected to a spiritual movement known as "anthroposophy," which they view as a New Age religion. ("The Spirit of Waldorf Education," June 20, 2001.)

People for Legal and Nonsectarian Schools argues that the two districts' support of Waldorf schools amounts to a government establishment of religion. The Sacramento district, for example, provided $188,580 in government funds to the John Morse Waldorf Methods Magnet School. The school's teachers also received training in Waldorf methods from Rudolph Steiner College, the suit said.

The federal district court ruled last year that People for Legal and Nonsectarian Schools lacked legal standing to challenge the Waldorf schools. The group could not show that the district's adoption of the Waldorf philosophy required additional funding above normal operating expenses, the district court held.

But in its Feb. 10 ruling, a three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, unanimously reinstated the suit.

The plaintiff organization was not limiting its challenge to a particular program, the appeals court said, but was arguing that the comprehensive curriculum of the schools was permeated by a religious philosophy. That was sufficient to give the group taxpayer standing to challenge the program under the establishment clause, the court said.

—Mark Walsh

Vol. 22, Issue 23, Page 10

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