Private school argues athletic recruiting rule violates First Amendment

Friday, July 17, 1998

Attorneys for perennial athletic power Brentwood Academy and the Tennessee Secondary Schools Athletic Association argued in federal court in Nashville yesterday over the constitutionality of the association's recruiting rule that bars school officials from contacting prospective students before their enrollment.


The controversy arose after TSSAA officials charged Brentwood Academy, a private school, with several violations of the recruiting rule, which is designed to prevent “undue influence” being exerted on prospective high school athletes.


The school fired back a federal lawsuit in Brentwood Academy v. Tennessee Secondary Schools Athletic Association, contending TSSAA officials violated their free-speech and due-process rights.


In its brief, the school argued that the recruiting rule “undermines the most basic tenets of the First Amendment by restricting expression based on its content” and represents an “assault on core First Amendment values of free expression”


Section 21 of the TSSAA Bylaws 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 or to retain a student for athletic purposes shall be a violation of the recruiting rule.”


However, Brentwood Academy argues that instead of prohibiting “undue influence,” the rule actually limits opportunity by depriving young people of information about other educational opportunities.


The school wrote in its court papers: “Clearly, the TSSAA's entire mind-set and the superstructure of the Recruiting Rule assume that it is appropriate and desirable to establish and maintain a Berlin Wall around public school students, ostensibly protecting them against the undefined use of 'undue influence.' In reality, the Recruiting Rule inhibits parents and students from learning about independent school educational opportunities that they have a constitutional right to learn about and to embrace.”


According to Brentwood Academy, the TSSAA has taken a world view of freedom of expression that is “more associated with Chicken Little than [former U.S. Supreme Court] Justice Hugo Black.”


The issue for the court to decide before it can even reach the First Amendment arguments, is whether TSSAA is a private or state entity. The Constitution protects individuals from state action, not private conduct.


Vanderbilt law professor James Blumstein, one of the school's attorneys, told freedomforum.org: “The First Amendment claims all hinge on whether the TSSAA is a state actor or acted under color of state law.”


Charles Hampton White, lead attorney for the TSSAA, argues that the First Amendment claims are superfluous because the association is not a state actor. “The TSSAA is not a state actor; thus, there is no governmental action and no First Amendment issue,” he said.


In the 1989 case National Collegiate Athletic Association v. Tarkanian, the U.S. Supreme Court determined that the NCCA, an association of more than 900 public and private universities, did not qualify as a state actor.


However, in a footnote the high court wrote: “The situation would, of course, be different if the membership consisted entirely of institutions located within the same State, many of them public institutions created by the same sovereign.”


Blumstein argues this statement by the court shows that the TSSAA, composed entirely of secondary schools in the state of Tennessee, qualifies as a state actor.


“In nearly every case, these associations have been found to be state actors and in every case decided since the Tarkanian decision, courts have determined these secondary associations are state actors,” Blumstein said.


Federal district court Judge Todd Campbell is expected to rule by Aug. 1 on Brentwood Academy's constitutional arguments.