Sports-recruiting case returns to high court
WASHINGTON — The authors of the First Amendment’s freedom-of-speech clause
might be surprised to learn that in the 21st century, it is being invoked to
protect a private school football coach from being punished for recruiting
eighth-grade boys from other schools for his team.
But the 6th U.S. Circuit Court of Appeals did just that in a Tennessee case
involving the Brentwood Academy, located near Nashville, Tenn., and its coach.
On Jan. 5, the Supreme Court agreed to review the 6th Circuit’s ruling. The case
Secondary School Athletic Association v. Brentwood Academy could be the
next in a series of decisions in which the new Roberts Court re-examines the
scope of First Amendment protections.
It will be the second trip to the high court for the dispute between the
academy and the Tennessee Secondary School Athletic Association (TSSAA), which
established the recruiting rules that Brentwood’s coach violated in 1997 by
writing letters to eighth-graders who had already agreed to attend Brentwood the following fall. The
association is taking the unusual step of asking the Supreme Court to reconsider
its first Brentwood ruling, issued in 2001.
In that 2001 decision, the Court ruled 5-4 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. The high court did not rule
on the merits of the dispute over recruiting rules. But because the First
Amendment only protects against government infringement of free speech, that
“state actor” determination was a threshold win for Brentwood.
The academy returned to the 6th Circuit to argue that the TSSAA’s punishment
for its recruiting tactics violated its First Amendment rights. The 6th Circuit
agreed and struck down the $3,000 fine and four-year probation levied
against the school by the association.
Now, TSSAA and its Washington, D.C., attorney, Maureen Mahoney, are back
before the Supreme Court asking the justices to reverse the “state actor”
ruling, which she says has been found to be “unworkable” and has been criticized
by commentators and judges.
“Lower courts have been confused by [the first Brentwood ruling’s]
‘entwinement’ doctrine, describing it as ‘labyrinthine,’ ‘nebulous,’ ‘vague,’
and a ‘freewheeling gestalt analysis,’” Mahoney wrote in her petition. Because
the first Brentwood ruling was so recent, was decided by such a narrow margin,
and has not been relied upon extensively, Mahoney said normal deference to
precedent should not keep the Court from reconsidering its new “state actor”
Asking the Court to reverse itself is usually a long-shot gamble. But
Mahoney, a veteran high court advocate, may not have risked too much by asking
in this case, for one reason: The composition of the Court has changed since
2001. The four justices who dissented in the 2001 ruling were on the
conservative end of the spectrum: the late Chief Justice William Rehnquist,
Justices Antonin Scalia, Clarence Thomas and Anthony Kennedy.
With conservative John Roberts Jr. replacing Rehnquist and conservative
Samuel Alito Jr. replacing the moderate Sandra Day O’Connor, the chances of
picking up a vote and reversing the earlier ruling are good. The fact that the
Court agreed to add TSSAA’s appeal to its docket means that at least four
justices think reversal is worth considering. The vote of four of the nine
justices is needed to grant review of a case.
The Court under Roberts has already tightened and redefined — if not reversed
— earlier First Amendment doctrines. In Garcetti
v. Ceballos in 2006, it narrowed First Amendment protection for
government employees who speak out. And in Rumsfeld
v. FAIR, also last year, the Court re-examined several precedents on
compelled speech, expressive conduct, and freedom of association. Mahoney’s
brief mentioned both cases in asking the Court to look again at the first
For its part, Brentwood Academy urged the high court not to accept the case,
and not to reconsider its “state actor” doctrine. In its brief written by
Nashville lawyer H. Lee Barfield II, the academy criticized Mahoney’s strategy
of seeking reversal.
“Since no subsequent change of law has taken place … one is left to the
natural inference that TSSAA is appealing to the two newly appointed justices to
reconsider a recent precedent in the context of that very case,” Barfield wrote.
He quoted the late Justice Potter Stewart, who said that if the Court changes
its doctrine for no other reason than a change in the Court’s membership, it
will feed “the popular misconception that this institution is little different
from the two political branches of the government.”
On the merits of the case, TSSAA argues that even if the First Amendment
applies to the dispute, the Court should use a standard that is deferential
toward the association, because Brentwood volunteered to join the association
and knew the rules when it joined. Allowing the 6th Circuit ruling to stand
would “unleash a wide array of litigation over rules that limit speech in the
context of athletic or other competition,” the association asserts.
Brentwood Academy argues that the letters from then-coach Carlton Flatt were
“harmless communications to non-matriculated students” inviting them to spring
practice — which was legal under the regulations. “TSSAA has fought a
scorched-earth battle to suppress [the academy’s] harmless speech that informed
students of an authorized athletic opportunity.” The academy’s brief also argues
that because the TSSAA has been designated as “the state’s regulator of
interscholastic athletics,” it is a state actor whose regulations should be
scrutinized under First Amendment standards.
The case will be argued this spring, with a decision likely before the end of
the Court’s term in late June.