Supreme Court has agreed to review Tennessee Secondary School Athletic Association v. Brentwood Academy
The authors of the First Amendment’s freedom-of-speech clause might be surprised to learn that in the 21st century, it is being invoked to protect a private school football coach from being punished for recruiting eighth-grade boys from other schools for his team. But the U.S. Supreme Court has agreed to review Tennessee Secondary School Athletic Association v. Brentwood Academy, Docket No. 06-427, a case in which the 6th U.S. Circuit Court of Appeals did just that. The case pits the Tennessee Secondary School Athletic Association (TSSAA) against Brentwood Academy, a private school in the Nashville area. TSSAA contends the 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 ran afoul of the TSSAA rules in 1997 when its football coach sent a letter to 8th grade students inviting them to a spring football practice. The students had already agreed to enroll at the school the following fall, but under the 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 2001 the suit ended up before the U.S. Supreme Court, which ruled 5-4 that the TSSAA is a "state actor," even though it is a voluntary membership organization that receives no state funds, because most of its members are public schools and there is "pervasive entwinement" of state officials in the association. The Court did not rule on the merits of the dispute, but because the First Amendment only protects against government infringement, the "state actor" determination was a threshold win for Brentwood.
The case returned to the district court, which ruled in favor of Brentwood on its free speech and due process claims. The U.S. Court of Appeals for the Sixth Circuit affirmed. In addition to asking the Supreme Court to reverse the Sixth Circuit’s ruling on the free speech and due process claims, TSSAA is also asking the Court to overturn its own 2001 decision that the athletic association is a state actor. According to Maureen Mahoney, TSSAA’s attorney, "Lower courts have been confused by [the first Brentwood ruling’s] ‘entwinement’ doctrine, describing it as ‘labyrinthine,’ ‘nebulous,’ ‘vague,’ and a ‘freewheeling gestalt analysis.’"
First Amendment Center
By Tony Mauro
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Education Week
By Andrew Trotter
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