The U.S. Supreme Court last week delved into the regulation of high school sports for the first time as it considered whether a state athletic association acts with government authority in enforcing its rules.
The case involves Brentwood Academy, a private Christian school near Nashville, Tenn., that is pressing a constitutional challenge over the recruiting rules of the Tennessee Secondary School Athletic Association. The question before the high court is whether the TSSAA is a “state actor” whose actions are subject to scrutiny under the U.S. Constitution.
“There is nothing really private about this organization. It is controlled by public schools,” the school’s lawyer, James F. Blumstein, contended during the Oct. 10 oral arguments in Brentwood Academy v. Tennessee Secondary School Athletic Association (Case No. 99-901).
But the lawyer for the TSSAA argued that the association is a private group regulating an activity—interscholastic sports—that is not a core function of the state education system.
“Brentwood made a private choice to join the TSSAA,” Richard L. Colbert, the association’s lawyer, told the court. “Now it doesn’t want to follow the rules.”
But several justices appeared skeptical of the view that the TSSAA is a purely private group.
Justice Ruth Bader Ginsburg noted that students can get high school course credit for participation on sports teams. Justice David H. Souter said that interscholastic athletics “are part of the educational scheme.”
And Justice Anthony M. Kennedy pointed out that the association’s legislative council is chosen by the principals of member schools, a majority of which are public schools.
“Isn’t the principal, when casting his vote, acting in a state capacity?” he suggested to Mr. Colbert.
Constitutional Gap
The case began in 1997, when Brentwood Academy was investigated for several alleged 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 championship —was punished for three rules violations. (“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. Brentwood won in district court, but the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, ruled last year that the TSSAA could not be sued on constitutional grounds because it is not a state actor.
Brentwood was joined in its Supreme Court appeal by the Clinton administration.
“When a group of public schools—all state actors—joins together to run a program, that association is a state actor, too,” Barbara D. Underwood, a deputy U.S. solicitor general, told the justices last week.
“If this association is not a state actor, then a gap will open in constitutional coverage of school programs,” she added.
Brentwood has also been joined by advocates of girls’ participation in school sports, who filed a friend-of-the-court brief expressing concern that they could lose the ability to sue state athletic associations over alleged unequal opportunities for girls.
Justice Ginsburg, who was active as a women’s rights advocate in her earlier legal career, appeared sympathetic to those arguments. If state athletic associations are not state actors subject to the Constitution, “schools could decide, ‘We aren’t going to have any teams for girls,’” she said.
“But an individual public school could not do that,” Mr. Colbert replied. He noted that even if a state athletic association could not be sued on constitutional grounds, the public schools themselves could be sued for any constitutional violations.
According to a friend-of-the-court brief filed in support of the TSSAA by several other state associations, 45 states have athletic governing bodies that are nominally private. Besides the District of Columbia, only the athletic governing bodies in California, Delaware, Maryland, New York, and Nevada are operated or controlled by the state department of education or some other state agency, according to the brief.
The case is expected to be decided by next summer.
Board Cases Denied
Separately last week, the justices:
•Heard arguments Oct. 11 in Board of Trustees of the University of Alabama v. Garrett (No. 99-1240), a case that will determine whether Congress exceeded its constitutional powers in making several key provisions of the Americans with Disabilities Act applicable to the states and local governments.
•Declined without comment on Oct. 10 to hear an appeal from the members of the Portsmouth, Ohio, school board of lower federal court decisions that board members do not have legislative immunity for their actions. The board members argued in their appeal in Apel v. Canary (No. 00-176) that those decisions conflict with a 1998 Supreme Court ruling that municipal legislators are immune from lawsuits over their official actions.
•Refused to hear the appeal of an Essex Junction, Vt., school board member who argued that his right to due process of law was violated when other board members voted to censure him. According to court documents, colleagues of board member Stanley LaFlamme found him difficult to work with. Their censure motion called on Mr. LaFlamme to follow principles of “good boardmanship.” Mr. LaFlamme said the censure had made him an “outcast” and led to his defeat for re-election. His appeal was LaFlamme v. Essex Junction School District (No. 00-173).
