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Friday, June 22, 2007
Supreme Court decision in TSSAA v. Brentwood Academy (Updated)

The Supreme Court of the United States today decided Tennessee Secondary Sch. Athletic Association v. Brentwood Academy, involving a First Amendment and Due Process challenges to the enforcement of a high school athletic association's anti-recruiting rule against a private school. We previously have discussed this case here, here, and here. A copy of the opinion can be downloaded here (via SCOTUSblog).

As I predicted on these pages, the Court unanimously rejected Brentwood's constitutional arguments. Justice Stevens wrote the opinion for the Court, joined by all members of the Court except Justice Thomas, except as to Part II-A of the opinion, which was joined only by Justice Souter, Ginsburg, and Breyer (see below).

I have not had a chance to read the opinion carefully yet (will do so tonight and may talk more about it). On the First Amendment issue, Justice Stevens took two approaches. The one that commanded a majority relied primarily on the fact that Brentwood voluntarily joined TSSAA and thus voluntarily agreed to abide by the anti-recruiting rule. The Court relied on precedent controlling government-employee speech, which generally gives government greater control over what its voluntary employees can say. Such rules only must be "necessary to managing an efficient and effective state-sponsored high school athletic league." The Court said it needed 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."

As for the due process claim, the Court detailed the TSSAA proceedings and found that Brentwood received all the process it was due.

There are three interesting features of the decision, notable for what they tell us about the present and future of broader constitutional doctrine:

First, Justice Thomas concurred only in the judgment, declining to join any part of Justice Stevens' opinion. Thomas argued that the Court's 2001 holding in Brentwood I, which held that the TSSAA was a state actor, was wrong and should be overruled.

Second, as noted, Justice Stevens lost his majority for Part II-A of the opinion, which Justice Kennedy, the Chief, and Justices Scalia and Alito refused to join. In that part, Stevens relied on precedent upholding limits on coercive face-to-face solicitation by attorneys and other professionals, namely Ohralik v. Ohio State Bar Assn (1978), likening personal athletic recruitment to hard-sell lawyer solicitations and arguing that both should be subject to closer regulation. That Justice Kennedy and the other three declined to join that part of the opinion suggests that some members of the Court would like to expand protection for commercial speech.

The third relates to a back-and-forth in the comments to the post about the oral arguments. There was discussion of how the speech at issue fits in the heart of the First Amendment and whether the First Amendment protects the free flow of information about Brentwood's sports teams. At the start of Part II-A (for a plurality), Stevens says the following:
The anti-recruiting rule strikes nowhere near the heart of the First Amendment. TSSAA has not banned the dissemination of truthful information relating to sports, nor has it claimed that it could.
Stevens clearly wanted to make this case about face-to-face contact and not the content of Brentwood's speech, emphasizing the "difference of constitutional dimension between rules prohibiting appeals to the public at large . . . and rules prohibiting direct, personalized communication in a coercive setting.

In other words: If Brentwood put the identical information and statements in its broadly disseminated promotional materials, it could not be subject to regulation. The fact that Justice Kennedy, et al., did not join at least that idea is a bit surprising to me.

Additional Comments and Commentary: Moved to Top

Eugene Volokh has thoughts on the decision, particularly the divide among the justices as to the applicability of Ohralik to justify a total ban on pre-enrollment communication with students. Volokh suggests that if the risk of coercion is enough to support the TSSAA rule, then a broad swath of speech--not only one-to-one, but also appeals to the public at large--could be subject to regulation, because some risk of coercion is present in much communication. Volokh also questions why Ohralik should control since the coach here communicated with the students by letter, not face-to-face. The Court has distinguished direct-mail solicitations, including targeted solicitations by attorneys, from oral solicitations. Even assuming risk of coercion or undue influence, why is the letter from a coach not more like the mail solicitation from an attorney, rather than the oral, face-to-face solicitation from an attorney?

Justice Kennedy's objection to Stevens' reliance on Ohralik reflects an effort to tie the decision more firmly to the voluntary-association rationale and to make clear that the TSSAA could not impose the recruiting ban as a free-standing rule against all schools in the state, including non-TSSAA members. Kennedy argues that Ohralik undermines the understanding that, absent Brentwood's consensual and voluntary membership in the TSSAA, the speech by the head coach was entitled to First Amendment protection. This explains why Justice Kennedy did not sign on to Steven's distinction between face-to-face solicitation and broader general dissemination. For him, the only distinction driving the case was between regulation of voluntary members of an organization and general regulation of a segment of the general public. The attorney regulation cases potentially implies that this case could apply outside the membership/contractual context to a host of face-to-face contact; Kennedy (plus three, plus Thomas) rejected that expansion.

Note the unanimity among the eight justices (put Justice Thomas to the side for now) on an underlying point: The substance of the letter--information about Brentwood's football team and the eligibility (and benefit) of committed pre-enrolled students to participate in spring practice--was generally within the ambit of the First Amendment. What took the speech in this case out of that realm was the context: a) Targeted and potentially coercive and made by a member of a voluntary organization (Stevens and three), b) made by a member of a voluntary organization (Kennedy and three).

Further Update 6/23:

Another take on the case from Tony Mauro at the First Amendment Center.


I'm surprised at the lack of commentary on this one. I read the decision and it seemed to be one of the most succinct S.Ct. decisions I have ever read.

Anonymous Anonymous -- 6/22/2007 8:26 AM  

I think this was an "easy" case in many respects. There certainly is value to the information contained in the letter and value in that information being disseminated, such that th First Amendment is in play. But no one seriously thought the Court was going to recognize an unlimited liberty to recruit student-athletes, with the potential for coerciveness.

So the dispute between Stevens and Kennedy can be seen as an attempt by the latter to keep the decision as narrow as possible.

I think Justice Thomas may agree with you that the speech issues should not have been dealt with so succinctly. That is why he fell back on the state-action issue: There is no way within existing doctrine to hold this speech unprotected, unless the regulating authority is not bound by the First Amendment.

Blogger Howard Wasserman -- 6/22/2007 9:39 AM  

In the last 3 months there have been two major decisions by the Supreme Court involving high school sports: this one and the refusal to grant cert. to the Michigan high school athletic association who has battled (for about a decade) Title IX issues related to its holdout position regarding boys/girls sports seasons being different.

Anonymous Anonymous -- 6/22/2007 12:23 PM  

I agree, It has been an interesting couple of months.

As for the Communities for Equity v. MHSAA case refferenced by the previous poster, The Supreme Court's denial of cert was certainly justified. The "battle" reffered to was completely in the face of Title IX, and involved not only different seasons but scheduling of girls sports in non-traditional (read less- advantageous) seasons. This impacts college recruiting, scholarships, recognition for awards, as well as other opportunities.
refusing to reconsider the Sixth Cir decision delivered a well deserved win for Communities for Equity.

Blogger Jimmy H -- 6/22/2007 2:21 PM  

You mean, "a loss for all involved"--another reason where Title IX should've been repealed or changed. When in the calendar a season is played should make no difference at all; it is not the same as equal facilities--if anything, if the high school season is played at a different time from the college season, college coaches should be able to make recruiting trips without disrupting their own season.

Anonymous Anonymous -- 6/23/2007 2:16 AM  

To Anon 2:26 am: In reference to your distaste with the Michigan Title IX decision, note that the MHSAA lost at every level, every time, every claim, every appeal for 10 years. Michigan is the last hold out state (other than Hawaii) to have separate girls and boys seasons. While this particular posting focuses on TSSAA and not MHSAA, you really ought to consider that while many agree that Title IX has gone way over the edge like a runaway train, that the MHSAA decision is clearly the correct one both legally and morally even if you feel (as I do) that Title IX has been used as a weapon to hurt boys/men's sports.

Anonymous Anonymous -- 6/23/2007 9:12 AM  

Anonymous 2:16am,

Would you still feel that when a season is scheduled makes no difference if a district decided to schedule football in the months of Jan-May, effectively robbing the athletes of opportunities to compete for college scholarships or roster spots? most college football teams would have allready used all their scholarship spots by the time that district was a couple of games into their season. Thats not a dissadvantage? The main point in the MHSAA case is that ONLY the girls sports were scheduled in non-traditional seasons, putting it well within the reach of Title IX as discrimination based on gender. And the courts seem to agree on that point!

Blogger Jimmy H -- 6/23/2007 1:06 PM  

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