Law & Courts

Supreme Court Rules for Athletic Association in Speech Case

By Mark Walsh — June 21, 2007 | Corrected: February 22, 2019 5 min read

Corrected: An earlier version of this story incorrectly stated the number of state football championships Brentwood Academy had won.

The U.S. Supreme Court today unanimously upheld the anti-recruiting rules of a state athletic governing body against a First Amendment free-speech challenge by a private school .

The decision was a victory for the Tennessee Secondary School Athletic Association, which has been engaged in a 10-year battle with Brentwood Academy, a private school in suburban Nashville, over whether a 1997 letter from the academy’s football coach to middle school students violated the association’s rules against recruiting.

“Brentwood’s speech rights are not absolute,” Justice John Paul Stevens wrote for the court. “It chose to join TSSAA, an athletic league and a state actor invested with a three-fold obligation to prevent the exploitation of children, to ensure that high school athletics remain secondary to academics, and to promote fair competition among its members.”

Part of Justice Stevens’ opinion in Tennessee Secondary School Athletic Association v. Brentwood Academy (Case No. 06-427) garnered only a plurality of the justices. It was joined in full by Justices David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer.

Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Antonin Scalia, and Samuel A. Alito Jr. joined most of Justice Stevens’ opinion, but they objected to a section in which he cited a 1978 decision of the court that upheld state regulation of lawyers’ in-person solicitation of clients.

In a concurring opinion for the four, Justice Kennedy said relying on that precedent in the sports case might leave open the “implication that the speech at issue is subject to state regulation” regardless of whether the private school had joined the state athletic association voluntarily.

Justice Clarence Thomas concurred only in the outcome of the case, saying in a short opinion that he continues to believe the court was wrong in 2001 when it decided, in an earlier phase of the Tennessee case, that the nominally private TSSAA was acting with state authority when it enforced its rules.

‘Hard-Sell Tactics’

Brentwood Academy, a sports powerhouse that through last fall had won 10 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.

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.”

The high court’s 2001 decision that the TSSAA was a “state actor” led to a further round of proceedings in lower federal courts. Last year, the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, held that the association’s rule against recruiting violated Brentwood Academy’s free-speech rights .

In his opinion for the Supreme Court, however, Justice Stevens noted that Brentwood had voluntarily joined the TSSAA and had agreed to abide by its recruiting rules. The association would not have unbridled discretion to impose rules that infringe its members’ rights, he said, but it may impose conditions that are “necessary to managing an efficient and effective state-sponsored high school athletic league.”

“That necessity is obviously present here,” Justice Stevens added. “We need no empirical data to credit TSSAA’s common-sense conclusion that hard-sell tactics directed at middle school students could lead to exploitation, distort competition between high school teams, and foster an environment in which athletics are prized more highly than academics.”

Justice Stevens quoted a dissenting judge on the 6th Circuit court, who said that “high school football is a game. Games have rules.”

“It is only fair that Brentwood follow them,” Justice Stevens added.

Maintaining a Balance

Gene Menees, an assistant executive director of the TSSAA, said the high court’s ruling sends a message to school sports governing bodies across the nation that “you have the power to enforce the rules as they are adopted by your member schools.”

“We’re in the education business,” Mr. Menees added, noting that only about 2 percent of high school athletes go on to play sports at higher levels. “We’ve got to maintain a balance for that 98 percent that don’t go on to play at the next level.”

Curt Masters, the headmaster of Brentwood Academy, stressed that the school supports rules against recruiting but its officials and supporters continue to believe that the TSSAA’s rule was applied harshly to the facts of the school’s case.

“We weren’t looking for license to go chase students,” said Mr. Masters. “We said you can’t have standardless discretion. That’s inconsistent with the First Amendment. If you are going to suppress speech, you have to have clear parameters.”

He said the silver lining for the academy is that the court declined to reconsider its 2001 ruling in the academy’s favor that the TSSAA acted with state authority and was subject to constitutional scrutiny for its regulation of speech.

The 10-year-old case, which knowledgeable sources have indicated has cost Brentwood Academy in the neighborhood of $3 million (and the TSSAA some $2 million), is now virtually over. There are still some pending questions before the federal trial court over whether the association violated antitrust laws by separating certain private schools into their own class.

Debra Wilson, the legal counsel of the National Association of Independent Schools, said her 1,300-member group is worried that the court’s ruling might lead to more state regulation of the speech of private schools.

If private schools voluntarily participated in a government voucher program, for example, that might lead to restrictions on communications the school could have with potential students in the public schools, said Ms. Wilson, whose Washington-based group had filed a friend-of-the-court brief on the side of Brentwood Academy.

“It’s not hard to imagine that if you’re accepting vouchers, there might be limits on the communications you could have with students in a feeder middle school,” she said.

But most observers viewed the decision as primarily an endorsement of rules against recruiting that most, if not all, high school athletic associations have.

“Every association across the country has some version of this rule,” said Richard L. Colbert, a lawyer for the TSSAA. “Private schools have flourished and managed to get their message out for a long, long time without running afoul of these rules.”


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