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Sunday, April 15, 2007
The Constitutionality of Regulating High School Sports

This Wednesday, the Supreme Court of the United States will hear oral argument in Tennessee Secondary Schools Athletic Ass'n v. Brentwood Academy.

Brentwood Academy, a private school in Tennessee and a TSSAA member, was sanctioned for violating the prohibition on recruiting student-athletes through the exertion of "undue influence." Brentwood's football coach sent a letter to twelve eighth graders who planned to attend Brentwood the following fall; the letter informed them that they were eligible to participate in spring practice and, although they did not have to, it would be to their "advantage" to do so. Brentwood sued, arguing that the enforcement of the recruiting rule against it violated the school's free-speech and due process rights.

This is the second trip to the Court for these parties. In 2001, the Court held that the TSSAA--which is not an official state agency, but a private membership organization comprised of public and private schools whose regulatory authority over interscholastic athletics long has been recognized by the Tennessee State School Board--is a state actor and thus subject to constitutional limitations. The Court now will consider whether the TSSAA's rules against recruiting student-athletes are constitutionally valid.

The court of appeals held that the anti-recruiting rule was unconstitutional as applied to Brentwood for two reasons. First, the letter to the prospective student-athletes did not impose undue or unfair influence on them, because neither the students nor their parents felt imposed upon and, in fact, welcomed, the information from the school. Second, TSSAA's desire to ensure a level competitive athletic playing field (by preventing some schools, particularly private schools, from stockpiling talent by enticing, pressuring, or convincing talented athletes to attend) was not a substantial governmental interest that justifies limitations on free expression such as the anti-recruiting rule.

The latter point is potentially far-reaching, since organizations such as the TSSAA (or, for that matter, the NCAA, which filed an amicus curiae brief in support of the TSSAA) exist specifically to ensure competitive balance in interscholastic athletics. If that interest does not justify some limitations on expression (such as recruiting contacts between schools and student-athletes), the organization no longer can perform its regulatory function, at least with respect to private schools.

The other issue floating here is the argument (emphasized in the NCAA's amicus brief) that the Court should overturn its earlier ruling that the TSSAA is a state actor (which would, of course, eliminate the need to resolve some tricky First Amendment issues). The 2001 decision was 5-4 and two seats on the Court have changed since then, including the replacement of Justice O'Connor (who joined the majority) with Justice Alito.

I wrote a short essay on the case for the ABA's Preview of United States Supreme Court Cases, which I hope to be able upload prior to Wednesday. My quick prediction is that the Court will not overturn its earlier state-action ruling, but that it will reverse the lower courts; I do not see the Court recognizing, in essence, a right of schools to recruit student-athletes.

And I predict a lot of sports puns, metaphors, analogies, and stories in the argument and the opinion; the parties and the Court cannot help themselves when sports are at issue.

UPDATE # 1: I neglected to mention that Michael discussed this case when the Sixth Circuit's decision came down last May. I largely agree with his analysis, particularly the notions that letters such as the one from Brentwood's coach obviously affected the twelve student-athletes (all twelve--surprise, surprise--showed up for spring practice) and that if such letters cannot be restricted, then high school sports becomes the unregulable wild west. All the more reason to believe the Sixth Circuit opinion will not stand.


Why didn't the TSSAA moot this issue by banning spring practice altogether?

Anonymous Anonymous -- 4/16/2007 4:29 PM  

The TSSAA did change the spring practice rules by preventing non-students from participating (while continuing to allow spring practice). But that does not moot the case because a) Brentwood is challenging a previously imposed punishment, rather than challenging the existence of the rule ad b) Brentwood is seeking monetary damages, which cannot be mooted by defendant's change of policy.

Blogger Howard Wasserman -- 4/16/2007 8:55 PM  

Thanks for the case links, the distinctions drawn between Brentwood and Tarkanian are interesting.

Blogger Mark -- 4/16/2007 11:24 PM  


I'm not following this case as closely as you are, but regarding your comment above, how has Brentwood been damaged monetarily? And if they have been, then how are the damages to be calculated?

Blogger Rick Karcher -- 4/19/2007 11:07 AM  

Brentwood was placed on probation for four years and the football team was barred from tournament play for a year or so, so it probably can show some monetary loss as a result of that. There may be some loss of reputation as a result of the penalty, which gets calculated the same way courts calculate non-economic damages in tort cases.

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