School Choice & Charters

Justices Weigh Tenn. School’s Speech Rights

By Mark Walsh — April 18, 2007 6 min read
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The U.S. Supreme Court appeared inclined today to uphold a state high-school-sports authority’s rules against recruiting, in the face of a First Amendment challenge by a private academy that was penalized over a coach’s letter to prospective students inviting them to the team’s spring football practice.

Anthony Scalia

“It was a letter from the coach. I mean, that to a young kid, that is recruiting,” Justice Antonin Scalia said during oral arguments to the lawyer for Brentwood Academy, a 780-student school near Nashville, Tenn. “That is showing an interest on the part of the person who’s going to decide who plays.”

Justice Scalia was one of at least five justices whose comments during the April 18 arguments in Tennessee Secondary School Athletic Association v. Brentwood Academy (Case No. 06-427) appeared sympathetic to the arguments of the TSSAA, the sports group whose recruiting rules are at issue in the case. The case is being watched closely by high-school-sports governing bodies and private schools across the country.

Ruth Bader Ginsburg

Justice Ruth Bader Ginsburg told James F. Blumstein, the Nashville lawyer representing Brentwood, that she found it puzzling that the academy was raising a First Amendment argument over the rules of an association it had voluntarily joined.

“Nothing in the world stops Brentwood from saying this anti-recruiting rule is a really bad rule, it is unfair to us,” she said. “But when you signed on, the First Amendment doesn’t give you license not to follow the rules that you disagree with.”

Subtle Pressure?

Earlier, Mr. Blumstein said the case was about “the regulatory overreaching of the Tennessee Secondary School Athletic Association.”

“Brentwood was severely punished … for communicating with its own incoming male students, informing them of an opportunity, spring football practice, that the students were authorized to attend under the TSSAA rules,” Mr. Blumstein said.

The academy, a sports powerhouse that through last fall had won 11 state football championships, was fined $3,000 and excluded from state football and basketball playoffs for two years because of the 1997 letter to the 8th graders from its football coach, Carlton Flatt.

The boys’ participation in spring football workouts was permitted at the time; the association has since changed its rules to prohibit such participation. But it was the coach’s letter that violated the TSSAA’s rule against using “undue influence” to “secure or retain a student for athletic purposes.”

Mr. Blumstein stressed that the 8th graders had already committed to attend Brentwood Academy in the fall, so the coach’s invitation was not the sort of improper influence or inducement that the anti-recruiting rules are designed to combat.

Justice David H. Souter noted that fact when he questioned Maureen Mahoney, the lawyer representing the association before the high court.

“OK, so they had signed up to go to Brentwood,” Justice Souter said. “Where does the recruiting come in?”

Even though the students’ parents had contracted for them to attend Brentwood Academy that fall, “the contracts weren’t binding,” Ms. Mahoney said. “Some students do sign multiple contracts. Some students do not come.”

The coach’s letter was an attempt to cement the relationship, and “that’s still a form of recruiting,” Ms. Mahoney said.

She said the school could have sent the information about the spring football practices as part of a general enrollment packet.

“But instead, the problem here was that it was sent from the coach in a personal solicitation to the students that really subtly pressured them to come to practice,” she said.

Later, Justice Souter pressed Mr. Blumstein on that point.

The coach’s letter “does sound like recruiting if you accept the proposition that the students aren’t bound to go to the school even though their parents signed up,” Justice Souter said. “It seems to me that the line that is being drawn is a line between contact which is initiated by the prospective student and proselytizing which is initiated by the school. Why isn’t that a reasonable line?”

Mr. Blumstein said the TSSAA’s rules would even prohibit some school communications in response to contact initiated by prospective students.

A General Brochure

One argument that the TSSAA made in its brief but that Ms. Mahoney did not press during the oral arguments was that the justices should reconsider their 2001 decision in the same case that the TSSAA was a “state actor.”

The court had ruled that because of its close ties to the state education system and the public high school domination of its governance, the association acted with government authority, and thus its rules were subject to constitutional scrutiny.

The justices seemed disinclined last week to revisit that ruling, despite the invitation to do so by the TSSAA and some of its allies.

The high court’s decision on the state-action question led to a further round of proceedings in lower federal courts, in which the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, ruled last year that the association’s rule against recruiting infringed on Brentwood Academy’s constitutionally protected speech. (“High Court to Hear Case on School’s Letter To Athletes,” April 11, 2007.)

The justices appeared today to be seeking narrow grounds for upholding the association’s rule against recruiting. A lawyer for the Bush administration, arguing on the TSSAA’s side, offered one possible path.

Dan Himmelfarb, an assistant tothe U.S. solicitor general, argued that the association’s rule should be viewed with deference because the TSSAA, even though it acts with state authority, offers a benefit—access to organized athletics—that the recipient is free to reject.

“Prohibiting the use of undue influence in recruiting or attempting to secure or retain high school athletes, we think, is self-evidently reasonable in light of the purposes underlying the rule, which include preventing the exploitation of children and ensuring that sports remains subordinate to academics,” Mr. Himmelfarb said.

The justices explored whether the association’s rules might go too far if they prohibited, say, any communication between schools and prospective students.

“Suppose [the school] sent out a general brochure to all the graduating grammar school students, advertising that they come up to Brentwood and so forth and so on, and the [TSSAA’s] rule prohibited that?” Justice John Paul Stevens asked Mr. Himmelfarb. “Would that rule be valid?”

When Mr. Himmelfarb suggested such a rule might be “close enough to the line that it could go either way,” Chief Justice John G. Roberts Jr. seemed surprised.

“It’s a close call whether a school can send a brochure to 8th graders that is not limited to athletics, telling them about their school?” the chief justice said.

“Well, in that situation,” Mr. Himmelfarb said, a rule prohibiting such communications “would probably be unreasonable.”

Chief Justice Roberts asked Mr. Blumstein, the Brentwood Academy lawyer, what might happen if the school offered $1,000 bonuses to attract 8th grade athletes.

“I assume that’s against the rules in Tennessee,” the chief justice said. “Would that be covered by your First Amendment right?”

No, Mr. Blumstein said.

“We would view an inducement or an incentive [such as the money] as conduct, as opposed to speech, communication,” he said.

“We, our school, strongly supports a recruiting rule that’s aimed at barring these kinds of conducts, Mr. Chief Justice, as you’ve just described,” Mr. Blumstein said. “The problem is that the association, by not recognizing that the First Amendment enters into the analysis, that they have never gone through a process of calculating the cost on speech.”

The case is expected to be decided by the end of the court’s term in late June.

A version of this article appeared in the April 25, 2007 edition of Education Week as Justices Weigh Tenn. School’s Speech Rights


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