Law & Courts

Sports Group Ruled To Be Arm of State

By Mark Walsh — February 28, 2001 6 min read
  • Save to favorites
  • Print

A state high school athletic association whose membership and governance are dominated by public schools should be considered an arm of state government subject to the U.S. Constitution, the U.S. Supreme Court ruled last week.

In a 5-4 decision, the court held that the Tennessee Secondary School Athletic Association, which regulates sports for public and private high schools in that state, acts with government authority when it enforces its rules. Thus, the association cannot escape federal constitutional constraints by arguing that it is a purely private membership organization.

“The nominally private character of the association is overborne by the pervasive entwinement of public institutions and public officials in its composition and workings,” Justice David H. Souter wrote for the majority in Brentwood Academy v. Tennessee Secondary School Athletic Association (Case No. 99-901).

He was joined by Justices John Paul Stevens, Sandra Day O’Connor, Ruth Bader Ginsburg, and Stephen G. Breyer.

Writing in dissent, Justice Clarence Thomas said the court had “never found state action based upon mere entwinement” between the public and private sectors.

The majority’s reasoning, he said, “could affect many organizations that foster activities, enforce rules, and sponsor extracurricular competition among high schools—not just in athletics, but in such diverse areas as agriculture, mathematics, music, marching bands, forensics, and cheerleading.”

Justice Thomas was joined by Chief Justice William H. Rehnquist and Justices Antonin Scalia and Anthony M. Kennedy.

State Action

The ruling was the first by the Supreme Court in a case involving the regulation of high school athletics. Because the vast majority of state athletic associations are nominally private, the court’s ruling is likely to have a wide effect in confirming that most, if not all, such groups are subject to constitutional scrutiny.

But while the decision is an important interpretation of the legal status of most such associations, it will not disturb the status quo in most of the country. Most federal courts, including six federal courts of appeals, that have considered the issue have ruled that state athletic associations are “state actors” subject to the federal Constitution.

The question has come up in cases where, for example, students have sued athletic groups over their eligibility to compete or girls have sued claiming unequal sports opportunities. Even when lower courts have found the associations to be state actors, that has not guaranteed victory for the plaintiffs on the merits of their constitutional claims.

In the case from Tennessee, however, the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, had ruled that the state athletic association was not acting with government authority, and that the regulation of interscholastic athletics was not a traditional area of state concern.

The case began in 1997, when Brentwood Academy, a private school in suburban Nashville serving grades 7-12, was investigated for several alleged athletic-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 championships—was punished for three rules violations. The principal violation involved letters written by the academy’s football coach inviting several 8th grade student athletes in public schools to spring football practice. (“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. A federal district judge ruled that the association was a “state actor,” and that its recruiting rule thus violated the academy’s right to freedom of speech.

“It is simply not the business of the state to stifle competition among schools for students, whether those students are athletes, musical prodigies, or math geniuses,” the judge wrote in 1998.

But the 6th Circuit court ruled that the TSSAA could not be sued on constitutional grounds because it is not an arm of the state. Because of that conclusion, the appeals court did not address whether the association’s recruiting rule violated the First Amendment.

In his Feb. 20 opinion for the Supreme Court, Justice Souter noted that 84 percent of the TSSAA’s membership consisted of public schools. The association’s rule-making and administrative bodies have traditionally been dominated by public school officials, usually high school principals or assistant principals, he said.

The Tennessee state board of education first acknowledged the TSSAA’s functions at the group’s inception in 1925, and in 1972 the state board officially designated it to supervise and regulate interscholastic activities, Justice Souter added. The board removed the official designation in 1996 in an apparent attempt to help the TSSAA avoid liability after it was held to be a state actor in another federal lawsuit.

“The state board once freely acknowledged the association’s official character but now does it by winks and nods,” Justice Souter wrote.

“The close relationship is confirmed by the association’s enforcement of the same pre-amendment rules and regulations reviewed and approved by the state board ... and by the state board’s continued willingness to allow students to satisfy its physical education requirement by taking part in interscholastic athletics sponsored by the association,” he added.

Justice Souter did not suggest whether an association could avoid state-actor status by having a lesser dominance by public schools than is the case with the TSSAA.

In his dissent, Justice Thomas argued that “the organization of interscholastic sports is neither a traditional nor an exclusive public function of the states.”

“The TSSAA’s board of control enforces its recruiting rule solely in accordance with the authority granted to it under the contract that each member signs,” he added.

Next Steps

Reacting to the high court’s decision, Marcia D. Greenberger, the president of the National Women’s Law Center, said: “Athletic associations should view this as a wake-up call that they have legal obligations.”

The Washington-based center, which is involved in lawsuits against state high school athletics groups over equity for girls’ sports, filed a friend-of-the-court brief in the case on the side of Brentwood Academy.

Ronnie Carter, the executive director of the TSSAA, said that he was disappointed with the ruling, but that it was not the end of the game for the association’s rule against recruiting.

“Other courts have ruled that we were a state actor, but then ruled in our favor on the merits of the case,” he said.

The likely next step is for the case to return to the 6th Circuit court, which would then consider the federal district court’s ruling that the TSSAA recruiting rule violated Brentwood Academy’s First Amendment rights.

Carlton Flatt, Brentwood’s football coach for 29 years and now its athletic director, said he took some personal satisfaction in the Supreme Court victory. But “it is more of a victory for the children of Tennessee,” he added.

“Any organization that does not have accountability runs the risk of overstepping its bounds,” said Mr. Flatt, whose battles with the TSSAA have been bitter at times.

Curt Masters, the headmaster of the 610-student school, was leading the 8th grade class’s annual trip to Washington last week when the decision was handed down. Although the students were not in the courtroom for the announcement, they visited the Supreme Court building later that day. Many of the students picked up copies of the opinion involving their school.

“This was a great civics lesson for us,” Mr. Masters said.

Related Tags:

A version of this article appeared in the February 28, 2001 edition of Education Week as Sports Group Ruled To Be Arm of State

Events

Classroom Technology Webinar How Pandemic Tech Is (and Is Not) Transforming K-12 Schools
The COVID-19 pandemic—and the resulting rise in virtual learning and big investments in digital learning tools— helped educators propel their technology skills to the next level. Teachers have become more adept at using learning management
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Data Webinar
Using Integrated Analytics To Uncover Student Needs
Overwhelmed by data? Learn how an integrated approach to data analytics can help.

Content provided by Instructure
School & District Management Live Online Discussion Principal Overload: How to Manage Anxiety, Stress, and Tough Decisions
According to recent surveys, more than 40 percent of principals are considering leaving their jobs. With the pandemic, running a school building has become even more complicated, and principals' workloads continue to grow. f we

EdWeek Top School Jobs

Teacher Jobs
Search over ten thousand teaching jobs nationwide — elementary, middle, high school and more.
View Jobs
Principal Jobs
Find hundreds of jobs for principals, assistant principals, and other school leadership roles.
View Jobs
Administrator Jobs
Over a thousand district-level jobs: superintendents, directors, more.
View Jobs
Support Staff Jobs
Search thousands of jobs, from paraprofessionals to counselors and more.
View Jobs

Read Next

Law & Courts Critical Race Theory Law Violates Teachers' Free Speech, ACLU Argues in New Lawsuit
The lawsuit alleges Oklahoma's law harms students of color and weakens what all students learn about the state's history.
4 min read
Oklahoma Gov. Kevin Stitt, above, is named in a new lawsuit alleging that the state's recent law restricting teaching on race and sex is unconstitutional.
Oklahoma Gov. Kevin Stitt, above, is named in a new lawsuit alleging that the state's recent law restricting teaching on race and sex is unconstitutional.
Sue Ogrocki/AP
Law & Courts Parkland Victims' Families Reach $25M Settlement With Broward School District
The largest payments will go to the 17 families whose children or spouses were killed in the mass shooting at Marjory Stoneman Douglas High.
Scott Travis, South Florida Sun-Sentinel
3 min read
In this Feb. 15, 2018, file photo, law enforcement officers block off the entrance to Marjory Stoneman Douglas High School in Parkland, Fla., following a deadly shooting at the school.
In this Feb. 15, 2018, file photo, law enforcement officers block off the entrance to Marjory Stoneman Douglas High School in Parkland, Fla., following a deadly shooting at the school.
Wilfredo Lee/AP Photo
Law & Courts Justice Sotomayor Denies Bid to Block Vaccine Mandate for New York City School Employees
The Supreme Court justice's refusal involves the COVID-19 vaccine requirement in the nation's largest school district.
2 min read
In this Wednesday, Aug. 5, 2020 file photo, senior Clinical Research Nurse Ajithkumar Sukumaran prepares the COVID 19 vaccine to administer to a volunteer, at a clinic in London. British scientists are beginning a small study comparing how two experimental coronavirus vaccines might work when they are inhaled by people instead of being injected. In a statement on Monday, Sept. 14, 2020, researchers at Imperial College London and Oxford University said a trial involving 30 people would test vaccines developed by both institutions when participants inhale the droplets in their mouths, which would directly target their respiratory systems.
U.S. Supreme Court Justice Sonia Sotomayor on Oct. 1 denied a request to block a COVID-19 vaccine mandate for employees of the New York City school system.
Kirsty Wigglesworth/AP
Law & Courts Here Are the Upcoming Supreme Court Cases That Matter for Schools
Major cases on school choice and religious schools will be heard, along with a case on whether school boards can reprimand outspoken members.
9 min read
In this June 8, 2021 photo, with dark clouds overhead, the Supreme Court is seen in Washington.
The U.S. Supreme Court's new term opens in early October with several cases that could impact K-12 schools.
J. Scott Applewhite/AP