School Choice & Charters

High Court to Hear Case on School’s Letter To Athletes

By Mark Walsh — April 10, 2007 6 min read

The U.S. Supreme Court next week takes up another dispute involving high schools and free speech, but this one is far removed from the case the justices heard last month over a student’s discipline for displaying a “Bong Hits 4 Jesus” banner.

The speech at issue in the new case comes not from a student but from a private high school, and the question is what happens when the school’s communication to incoming student-athletes runs afoul of a state scholastic-sports association’s rules of conduct.

Brentwood Academy, an independent school in suburban Nashville, Tenn., has been embroiled for nearly a decade in a bitter legal battle with the Tennessee Secondary Schools Athletic Association, the governing body for public and private high school sports in the state.

The case stems from a 1997 letter that Brentwood’s football coach sent to a group of 8th grade boys inviting them to spring football workouts. The boys’ parents had already agreed to enroll them in the private school that fall.

The coach’s letter was deemed by the association to run afoul of its rules against the recruitment of student-athletes, and Brentwood was penalized by being excluded from football and basketball playoffs for two years.

Brentwood sued the TSSAA, alleging that the association’s enforcement action violated Brentwood’s First Amendment right of free speech to communicate about the school.

“We’re not asking to change the rules so we can go get athletes for our school,” said Curt Masters, the headmaster of Brentwood Academy, which has 780 students in grades 6-12, with about 470 in the high school grades. “We’re asking that the rule not be applied in such an egregious way that we can’t communicate with students who have committed to come to our school.”

Ronnie Carter, the executive director of the TSSAA, counters that the member schools join the group voluntarily and agree to abide by its rules, including a rule against using “undue influence” to “secure or retain a student for athletic purposes.”

“Do we want high school coaches going out and contacting people—to tell the story of the school—in the name of athletics?” Mr. Carter said. “We have already in our society placed way too much importance on athletics. You don’t have to be a genius to figure that out.”

Justices Revisit Case

On April 18, the Supreme Court will consider the central free-speech question in Brentwood Academy v. Tennessee Secondary School Athletic Association (Case No. 06-427). In 2001, the justices took up the case to decide an important preliminary question: whether the nominally private TSSAA was a “state actor” that effectively had government authority to enforce its rules.

The high court held, 5-4, that because the association was heavily made up of public schools and had a close association with the state board of education, it was a state actor.

That ruling hardly settled the case, however. Brentwood and the TSSAA were in for several more years of legal proceedings in a federal district court in Nashville and the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, over the central question of whether the school’s free-speech rights had been violated.

With the state-actor question settled by the high court, the 6th Circuit court went on to find that the TSSAA’s recruiting rule was not unconstitutional on its face. But it sent the case back to the district court for a trial on whether the rule as applied to Brentwood’s 1997 letter violated the school’s free-speech rights. The district court ruled that it did. In a 2-1 ruling last year, a panel of the 6th Circuit court agreed with the district court.

The majority rejected the TSSAA’s argument that because the school had voluntarily joined the association, and signed a contract promising to abide by its rules, the school had waived its right to question the constitutionality of the recruitment rule.

Both sides have attracted a barrage of friend-of-the-court briefs in the Supreme Court.

Brentwood Academy has the support of private school groups such as the National Association of Independent Schools, based in Washington, and the Association of Christian Schools International of Colorado Springs, Colo.

Those and other briefs on Brentwood Academy’s side suggest that there is a conflict between the traditionally strict rules that state athletics governing bodies enforce against recruitment—including communications with prospective student-athletes—and the modern school choice movement, which involves more frequent transfers of students between regular public schools and charter schools or private schools than in the past.

“The government’s role in regulating interscholastic sports cannot justify abridging the long-standing right of schools, students, and parents to share truthful information about education,” says the brief on Brentwood’s side by the Christian schools’ group. It was written by Floyd Abrams, a New York City lawyer and famous First Amendment advocate.

Mr. Abrams argues in his brief that most public schools have advantages over private schools in competing for students, such as that they don’t charge tuition and that they have networks of feeder middle schools.

“When regulators effectively preclude schools from speaking to prospective students about school programs and financial aid, private schools suffer in a way that their public brethren do not,” Mr. Abrams says in his brief.

The TSSAA has plenty of supporters on its side, including the Bush administration, the National School Boards Association, the National Federation of State High School Associations, and, in a joint brief, the state scholastic-sports governing bodies in nine states.

10 Football Titles

James B. Gessford, the lawyer for the Nebraska School Activities Association, said that if the Supreme Court upholds the lower-court rulings in favor of Brentwood, the result could be the exclusion of private schools from state high school sports associations. He argues in the brief for the nine state sports associations that private schools alone would be able to challenge all manner of state athletic associations’ rules on constitutional grounds, while public schools could not because they are not private parties.

State high school activities groups “will continually be threatened with litigation over the enforcement of their rules,” Mr. Gessford says in his brief. But even excluding private schools from membership would invite lawsuits, because some courts have required athletic associations to admit them, he says.

Mr. Carter of the TSSAA stresses that the association is made up of schools that have come together voluntarily, and that they collectively establish the rules of conduct.

For Brentwood Academy, the harshness—in its view—of the penalty over a seemingly technical violation of the recruiting rule based on the spring football letters has fueled the lawsuit. Brentwood’s advocates have long suggested that the public school-dominated TSSAA leadership was resentful of the private school’s athletic prowess.

“We had kids who had already made a decision” to attend the school, said Mr. Masters, the Brentwood headmaster. “The parents had made a decision to come. The activity [spring football practice] was allowed [under the TSSAA’s rules]. When the students were given information about a legitimate permitted activity, the school was censured for contacting those students.”

Carlton Flatt, the Brentwood football coach who sent the 1997 letters about spring practice, retired from coaching to become the school’s athletic director. A few years ago, he returned to the head coaching position. Last fall, Brentwood Academy won the state football championship for its division, its 10th such title. Mr. Flatt announced his retirement for good after that game.

Asked about how much the legal battle has cost, both Mr. Masters and Mr. Carter hesitated. Brentwood Academy has apparently spent more than $3 million, while the TSSAA’s legal bill may have reached some $2 million, the men suggested.

“This is eventually going to be over,” Mr. Carter said of the decade-old case. “When it finishes, anyone who would think TSSAA or Brentwood is the winner would be wrong. We’re both losers. The only people who have really won are the attorneys.”

A version of this article appeared in the April 11, 2007 edition of Education Week as High Court to Hear Case on School’s Letter to Athletes


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