Tennessee Secondary School Athletic Association v. Brentwood Academy, No. 06-427 (U.S. S.Ct. June 21, 2007)
The U.S. Supreme Court, in a 9-0 vote, has held that the Tennessee Secondary School Athletic Association’s (TSSAA) enforcement of its anti-recruitment rule against a private school member does not violate school’s First Amendment free speech rights. Brentwood Academy ran afoul of TSSAA rules in 1997 when its football coach sent 8th grade students a letter 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. In the first case, 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 gave Brentwood Academy 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.
In reviewing the Sixth Circuit’s decision, the Supreme Court found that TSSAA’s anti-recruiting rule struck "nowhere near the heart of the First Amendment." Relying in large part on its previous rulings in attorney advertising/solicitation cases, the opinion authored by Justice John Paul Stevens concluded that "the dangers of undue influence and overreaching that exist when a lawyer chases an ambulance are also present when a high school coach contacts an eighth grader." It pointed out that while the rule prohibited direct solicitation of student/athletes, TSSAA members are still free to send brochures, post bill boards, and otherwise advertise their athletic programs. Noting that Brentwood had made a voluntary decision to join TSSAA and abide by the rules, the Court also analogized the situation to its employee speech jurisprudence, finding that, like an employer, the athletic association’s interest in enforcement of its rules "may warrant curtailing the speech of its voluntary [members]." It acknowledged that TSSAA does not have unfettered authority to condition membership on surrender of constitutional rights and can only impose those conditions necessary to the effective and efficient management of a state interscholastic athletic league. However, the Court found that the necessity was obviously present here. It stated: "No empirical data is needed to credit TSSAA's commonsense 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. TSSAA's rule discourages precisely the sort of conduct that might lead to those harms, any one of which would detract from a high school sports league’s ability to operate efficiently and effectively."
The Court also disposed of Brentwood’s due process claim, finding that TSSAA had provided Brentwood with ample opportunity to present its case. It concluded that, even if it accepted the Sixth Circuit’s questionable holding that TSSAA’s closed door deliberations were unconstitutional, any due process violation was "harmless beyond a reasonable doubt."
Tennessee Secondary School Athletic Association v. Brentwood Academy, No. 06-427 (U.S. S.Ct. June 21, 2007)
[Editor’s Note: As noted above, the case has a lengthy history in the courts, which includes a previous U.S. Supreme Court decision. For additional background on the litigation, see first link below. The amicus brief filed by NSBA in the case is at the second link. In the brief, written pro bono by a team that included Pamela S. Karlan and Jeffrey L. Fisher of the Stanford Law School Supreme Court Litigation Clinic, Amy Howe and Kevin K. Russell of Howe & Russell P.C. of Washington, D.C., and Thomas C. Goldstein of Akin, Gump, Strauss, Hauer, and Feld, LLC, also in Washington, D.C., NSBA urged the Court to accord educational authorities the discretion to set rules related to school sports that are in keeping with their educational mission and their interest in ensuring student safety.]
NSBA School Law pages on TSSAA v. Brentwood Academy
NSBA brief in TSSAA v. Brentwood Academy