Federal appeals court rules athletic association is private — not state — actor

Wednesday, June 23, 1999

(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 appeals court has rejected a Tennessee private high school’s First Amendment challenge to the recruiting rule of a voluntary association of secondary schools, saying that the association does not qualify as a state actor.

Brentwood Academy contended that the Tennessee Secondary School Association (TSSAA) — a statewide association of public, independent and parochial secondary schools — was sufficiently connected to the state to render it a government actor.

The designation as “state actor” is crucial because the U.S. Constitution, including the First Amendment, protects individuals from government only, not from private entities.

Brentwood Academy sued the TSSAA in 1997 after the association charged the academy with violations of its recruiting rule, which was designed to prevent school officials from exerting “undue influence” on prospective high school athletes. The association alleged 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.

In its lawsuit — Brentwood Academy v. Tennessee Secondary Schools Athletic Association — the academy contended that the recruiting rule “undermines the basic tenets of the First Amendment by restricting expression based on content” and “depriving young people and their parents of information about other educational opportunities.”

Last July, a federal district court judge ruled in favor of Brentwood Academy’s motion for summary judgment, finding that TSSAA was a state actor and that the rule violated the First Amendment.

“The connections between the TSSAA and the State are still pervasive and entwined,” the federal district court judge wrote.

On appeal, the 6th Circuit reversed, finding that TSSAA was not a state actor. “The state of Tennessee’s interaction with TSSAA has been minimal,” the appeals court wrote.

The 6th Circuit also determined in its June 21 opinion that there was not a sufficiently close nexus or “symbiotic relationship” between the state and the TSSAA to find state action.

Because the appeals court determined there was no state action, the court ruled that it had “no need to reach the merits of Brentwood’s claims under the First Amendment.”

The court noted that Brentwood Academy had made “strong arguments that the rule is vague and not well-tailored.” However, the court said that such complaints “are to be resolved among the membership of the TSSAA, not in the federal courts.”

Vanderbilt constitutional law professor James Blumstein, who argued the case for Brentwood Academy before the 6th Circuit, said the appeals court panel was “not correct in its analysis of the state action issue.”

“The state has implicitly delegated authority to the TSSAA,” Blumstein told freedomforum.org. “The 6th Circuit failed to deal with the composition of the TSSAA in its analysis of the state action issue.”

A call to Richard Colbert, one of the attorneys for TSSAA, was not returned.

Blumstein said a decision would be made “early next week” on whether or not to appeal the ruling.