Quick look at Tennessee Secondary School Athletic Assoc. v. Brentwood Academy
Background: This is the second time the Supreme Court has ruled on a
dispute between Brentwood Academy, a private school, and the Tennessee Secondary
School Athletic Association. The association established the recruiting rules
that Brentwood’s coach violated in 1997 by writing letters to eighth-graders who
had already signaled their intention to attend Brentwood the following fall. In
2001, the Supreme Court ruled that the TSSAA is a “state actor” — even though it
is a voluntary membership organization that receives no state funds — because
most of its members are public schools and there is “pervasive entwinement” of
state officials in the association. Once that was established, the academy
returned court to argue that the TSSAA’s punishment for its recruiting tactics
violated its First Amendment rights. The 6th U.S. Circuit Court of Appeals
agreed and struck down the $3,000 fine and four-year probation levied against
the school by the association.
Ruling: The Supreme Court unanimously ruled that even though the academy does enjoy First Amendment rights, the anti-recruitment rule is a reasonable regulation, because Brentwood voluntarily joined the association and agreed to abide by its rules. The association does not have unbounded authority to restrict the academy's speech, but can impose rules that are “necessary to managing an efficient and effective state-sponsored high school athletic league.” Significantly, five justices rejected a part of the main opinion that would have justified the regulation on the separate grounds that Brentwood's recruiting was done one-on-one in a coercive setting. In the 1978 decision Ohralik v. Ohio State Bar Association, the Court said regulation of lawyer solicitation of clients was constitutional for that reason, but in the Brentwood case, a five-justice majority refused to extend that doctrine beyond the lawyer-solicitation context.
Verbatim: “The First Amendment protects Brentwood's right to publish truthful information about the school and its athletic programs. It likewise protects the school's right to try to persuade prospective students and their parents that its excellence in sports is a reason for enrolling. But Brentwood's speech rights are not absolute… . The First Amendment does not excuse Brentwood from abiding by the same antirecruiting rule that governs the conduct of its sister schools. To hold otherwise would undermine the principle … that '[h]igh school football is a game. Games have rules.'… It is only fair that Brentwood follow them.”
Lineup: Justice John Paul Stevens wrote the opinion, and all eight other justices agreed with the result. But several other justices wrote separate concurring opinions, including Justice Clarence Thomas, who said the Court should have overturned its 2001 ruling that established the TSSAA as a state actor. Justice Anthony Kennedy wrote a separate opinion in which he said he would not extend Ohralik to the private school context. Chief Justice John Roberts Jr. and Justices Antonin Scalia and Samuel Alito Jr. joined the Kennedy opinion, and Thomas indicated agreement with Kennedy in his own separate writing. Only Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer joined Stevens on the Ohralik issue.
First Amendment impact: The case may have limited impact because it pertains to the unusual context of recruitment rules set by a quasi-public state athletic association. But it also may be viewed as an erosion of free-speech rights, because it offers yet another context, albeit limited, in which state actors can limit the speech of individuals. The Stevens opinion drew an analogy to recent workplace rulings in which the Court has allowed restrictions on the speech of public employees. But the fact that five justices also went out of their way to limit the rationale of Stevens' opinion indicates that a majority of the Court did not want the Brentwood case to represent a major new expansion of state power to restrict speech.