Supreme Court hears oral arguments in Tennessee Secondary School Athletic Association v. Brentwood Academy
The U.S. Supreme Court has heard oral arguments in Tennessee Secondary School Athletic Association v. Brentwood Academy, Docket No. 06-427, which involves the issue of whether the Tennessee Secondary School Athletic Association (TSSAA) violated the free speech rights of a member private school by sanctioning the school for violating rules against recruiting athletes. The case pits the TSSAA against Brentwood Academy, a private school in the Nashville area. Brentwood ran afoul of 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 coach could not communicate with them until they had attended the school for three days. When TSSAA excluded the academy from football and basketball playoffs for two years, the school sued. This marks the second time this case has been heard by the Supreme Court. The Court ruled in the school's favor in 2001, affirming a lower court ruling that said the athletic association was a "state actor," a designation that gives Brentwood Academy a higher level of First Amendment protection. 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.
The National Collegiate Athletic Association, the National School Boards Association, and the National Federation of State High School Associations have filed briefs supporting TSSAA, arguing broad powers are needed to protect students by enforcing recruiting rules. The federal government also argued in support of the association, urging the high court to reverse the lower court decision. Brentwood Academy has the support of the National Women's Law Center, which is worried about holding government accountable for gender discrimination. The Association of Christian Schools International and the National Association of Independent Schools also have sided with Brentwood.
During the oral arguments, Brentwood Academy’s attorney contended that prohibiting a coach from inviting incoming students to football practice is a violation of free speech rights. “Brentwood (Academy) was severely punished ... for communicating with its own incoming male students,” said Vanderbilt University Law School professor James Blumstein, pointing out to the Court that the students had already signed contracts to attend the school. Maureen Mahoney, TSSAA’s attorney, said the fact the students had signed contracts was immaterial because not all students who sign contracts end up enrolling. She told justices that participation in state athletic organizations is voluntary and that the school forfeited some of its free speech rights when it joined the athletic association and agreed to abide by the group's anti-recruiting rule. “Brentwood (Academy) cannot escape the contractual bargain it made,” Ms. Mahoney said. “This was a form of recruiting. Coach-initiated contact with students enrolled in another school should not happen.” She noted that the problem was not that the students were notified of the practice, but that the invitation came from the school's coach.
Justice Antonin Scalia also made note of this fact. “It was from the coach," he said. "That, to a student, is recruiting.” Justice David Souter questioned Mr. Blumstein about the small percentage of students who sign the enrollment contracts but then go to other schools. He asked if TSSAA does not have a legitimate interest in preventing recruiting among those students. Justice Stephen Breyer echoed this concern. Attorney Dan Himmelfarb of the U.S. Department of Justice ,who argued in support of TSSAA, said a state athletic association must “be able to decide its own rules, what is allowed” if it is to prevent exploitation of children and make sure academics are not overshadowed by athletics, two reasons cited for the anti-recruitment rule. Chief Justice John Roberts appeared skeptical of Brentwood’s argument and questioned whether letters informing students of dates for spring practice could be seen as permissible speech.
Tennessean
By Malia Rulon (Gannett News Service)
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Bay News9
By Associated Press
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[Editor’s Note: For background on the case, including a link to NSBA’s brief, see below.]
[NSBA School Law pages on TSSAA v. Brentwood Acad.]