Law & Courts

Court to Revisit Case Pitting School Against Tenn. Athletic Association

By Andrew Trotter — January 17, 2007 6 min read
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The U.S. Supreme Court has agreed to hear an appeal by a state high school athletic association over whether its rules restricting the recruitment of student-athletes conflict with the free-speech rights of its member schools under the First Amendment.

The court’s Jan. 5 decision to step into the case is the latest development in a protracted, and sometimes bitter, legal battle between the Tennessee Secondary School Athletic Association and the private Brentwood Academy near Nashville.

The TSSAA contends that the 600-student school agreed to the recruiting rules when it voluntarily joined the association, and that the rules protect an important state interest in ensuring fair athletic competition.

Brentwood Academy was hit with TSSAA penalties in 1997 for violations of the recruiting rule—most notably, a letter the school’s football coach sent to 8th grade boys inviting them to a spring football practice. The boys had already agreed to enroll at the 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.

As a penalty, the TSSAA excluded the academy from football and basketball playoffs for two years. The school, in turn, sued the association in the federal district court in Nashville.

Underlying the dispute was tension between Nashville-area public schools and Brentwood Academy, a perennial sports power in the state. The academy’s boys’ basketball team has been the state boys’ basketball champion in the TSSAA’s Division II for the past four years, as well as being ranked No. 1 in the current season; its football team was state Division II AAA champ last year. Public high schools in the Nashville area have complained of losing some of their talented student-athletes to the school.

The dispute has since bounced between various federal courts, and it reached the Supreme Court once before, in the 2000-01 term, on the question of whether the association acted with government authority when it enforced its rules. In 2001, the justices ruled 5-4 that the athletic group was in fact a “state actor” and thus subject to constitutional scrutiny for its actions.

Substantial State Interests

Tennessee Tension

The U.S. Supreme Court has agreed to review a long-running dispute between the Tennessee Secondary School Athletic Association and the private Brentwood Academy, over whether discipline imposed by the athletics governing body violated the school’s constitutional rights. Some key developments in the legal battle:

  • The TSSAA rules that Brentwood Academy violated rules against the recruitment of student-athletes by inviting 8th graders to high school football practice before they attended the school. Brentwood challenges its fine and two-year suspension from postseason playoffs in a federal lawsuit, claiming that the TSSAA violated its First Amendment free-speech rights and 14th Amendment due-process rights.
  • A federal district court in Nashville rules in a summary judgment for Brentwood that the TSSAA’s recruiting rule was unconstitutionally vague.


  • The U.S. Court of Appeals for the 6th Circuit, in Cincinnati, rules that the TSSAA was not a “state actor” and therefore its actions with respect to the school’s speech rights were not carried out “under color of law.”
    • 2001
    • The Supreme Court, in a 5-4 decision, holds that the TSSAA is a state actor because of its “entwinement” with Tennessee’s board of education and public schools, and subject to heightened constitutional scrutiny.
    • The district court, after a trial on the school’s constitutional claims, rules for Brentwood, finding the TSSAA’s penalties against Brentwood for violating the recruiting rule to be “not narrowly tailored.”
    • A 6th Circuit court panel rules 2-1 to uphold the district court.
    • The Supreme Court will review the case for a second time.

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      In March 2006, a panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, ruled 2-1 that the TSSAA had violated the academy’s First Amendment rights and its rights under the 14th Amendment to procedural due process.

      In the majority opinion, U.S. Circuit Judge Julie Smith Gibbons agreed that the TSSAA has substantial state interests in preventing the exploitation of student-athletes, but said the letter that the coach sent to the students did not further such exploitation.

      “As the district court pointed out, the students contacted by the letter and calls had already signed enrollment contracts with Brentwood Academy, and the letter and calls were directed to all male students who had done so,” the judge said.

      The appeals court also found that the TSSAA had violated the academy’s procedural due-process rights by not giving it adequate notice of the evidence it relied upon, or an opportunity to respond to that evidence, before the group imposed penalties.

      Brentwood Academy’s headmaster, Curtis G. Masters, said the appeals court decision vindicated the school and its recruiting practices.

      “In other words, you can’t accuse people of cheating in recruiting when the students have already signed a contract to come to the school,” Mr. Masters said. “We hope the Supreme Court agrees.”

      In its appeal to the Supreme Court in Tennessee Secondary School Athletic Association v. Brentwood Academy (Case No. 06-427), the association is challenging both of the findings of constitutional violations.

      “[T]his court has held that the government may impose explicit conditions on the speech of voluntary participants in government programs, simply as a product of its right to control the limits and purposes of the program,” the TSSAA said in its appeal. “Brentwood knew of this [recruiting] rule and voluntarily agreed to play by it, and the rule restricts Brentwood’s ‘speech’ only in the narrow context of its actual participation in the competitive athletic program it chose to join.”

      Overruling Sought

      The TSSAA is also asking the Supreme Court to reverse its 2001 holding that the athletic association is a state actor.

      That determination, which the justices based on the “entwinement” of government agencies and functions in the workings of the association, has confused lower courts, the TSSAA argues in its appeal to the high court by Washington lawyer Maureen E. Mahoney.

      The 6th Circuit appeals court, for instance, “looked purely at TSSAA’s overall entwinement with the state, and was unable to recognize, for example, that the specific conduct complained of here was not an exercise of sovereign power but simply implementation of a voluntary contract” with Brentwood Academy, the association argues.

      Such a focus on only the group’s status—and not on specific conduct—would undermine the ability of any voluntary association involving public schools to enforce its rules with its members, the TSSAA claims.

      The group’s brief underscores the “broad significance” of the case to high school athletic associations that organize interscholastic sports across the nation.

      “They do not have the means to engage in continuous constitutional litigation and their (often volunteer) leaders do not have the incentive to accept serious risks of personal liability for constitutional violations lurking behind every effort to enforce compliance with agreed upon rules,” the TSSAA brief states.

      The justices are expected to hear arguments in the case in April and issue a decision by late June.

      A version of this article appeared in the January 17, 2007 edition of Education Week as Court to Revisit Case Pitting School Against Tenn. Athletic Association


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