Athletic association’s recruiting rule violates First Amendment, rules federal judge

Thursday, July 30, 1998

(Editor's note:
On Aug. 23, 2001, the 6th U.S. Circuit Court of Appeals reversed U.S. District Judge Todd Campbell's ruling, which had granted summary judgment to Brentwood Academy. The appeals panel sent the case back to Nashville, Tenn., federal court and ordered Campbell to re-examine Brentwood Academy's First Amendment claims to determine if the TSSAA can justify its recruiting rule under a lower constitutional standard.)

A federal judge ruled yesterday that the Tennessee Secondary School Athletic Association violated the free-speech rights of Brentwood Academy, a private school, by sanctioning the school for alleged violations of the association's recruiting rule.

The judge found the recruiting rule, which bars high school officials from engaging in any contact with prospective students prior to enrollment, violated the First Amendment.

The TSSAA charged the private school with several violations of the recruiting rule, which was designed to prevent school officials and others from placing “undue influence” on prospective high school athletes.

The association suspended the academy's boys' basketball and football teams from postseason play for two years, finding that the school violated the rule by giving tickets to a middle school coach who then took several of his star athletes to a Brentwood Academy football game.

Brentwood Academy, which has fielded dominant high school football teams over the years, fired back with a federal lawsuit, Brentwood Academy v. Tennessee Secondary Schools Athletic Association, contending that the association's recruiting rule “undermines the basic tenets of the First Amendment by restricting expression based on content.”

The recruiting rule states: “The use of undue influence on a student (with or without an athletic record) [or] his or her parents or guardians of a student by any person connected, or not connected, with the school to secure to retain a student for athletic purposes shall be a violation of the recruiting rule.”

However, Brentwood Academy argued that the rule, rather than preventing “undue influence,” had the effect of depriving young people and their parents of information about other educational opportunities.

Attorneys for the TSSAA — an association of public, independent and parochial secondary schools from across the state of Tennessee — argued not only that the recruiting rule did not violate the First Amendment, but also that the First Amendment did not even apply in this case because the TSSAA is a private entity, not an arm of the state. The First Amendment protects individuals only from government, not private, abridgments of speech.

Federal District Court Judge Todd Campbell disagreed with the TSSAA, finding that the association was sufficiently connected with the state to qualify as a state actor. Campbell wrote that “the connections between the TSSAA and the State are still pervasive and entwined.”

Campbell also found that the recruiting rule on its face violated the First Amendment. According to the judge, the rule was worded far too broadly to comply with the constitutional requirement that laws restricting the content of speech must be narrowly drawn.

Campbell first determined that the recruiting rule was content-based, “because the interests asserted by the Defendants [TSSAA] to support the ban focus on the content of the message and the effect of the message on the listener.”

Under First Amendment jurisprudence, a content-based law must serve a legitimate, compelling governmental interest and be narrowly drawn.

Campbell determined that the TSSAA had such an interest in preventing student-athletes from being unfairly advantaged or disadvantaged, or harassed by recruiters, but that the rule went too far.

The judge wrote: “The ban is simply not the 'least restrictive means' for preventing harm to student-athletes. The TSSAA needs to go back to the drawing board and start over.”

Campbell reasoned that “certainly, the TSSAA's legitimate interest in preventing harm to student-athletes can be better served by means less intrusive than the Recruiting Rule.”

Vanderbilt constitutional law professor James Blumstein, an attorney who represented Brentwood Academy, said: “This was a strong opinion. Judge Campbell really paid attention, did his research and reached the same analysis and conclusion that we did.

“The TSSAA's case really hinged on the state action question,” Blumstein said. “The arguments made by the TSSAA on the First Amendment issues were not strong. This is an issue that has been waiting to come up for many, many years.”

TSSAA attorney, Richard Colbert, told The Tennessean: “When you try lawsuits, you don't always win. Sometimes you lose when you're right and that may be what happened here. That's why they have courts of appeal.”

Attorneys on both sides indicated the decision could have a far-reaching impact, because many other state athletic associations have similar recruiting rules.