Dusting Off the Old Play Book: How the Supreme Court Disregarded the Blum Trilogy, Returned to Theories of the Past, and Found State Action Through Entwinement in Brentwood Academy v. Tennessee Secondary School Athletic Ass'n

JurisdictionUnited States,Federal
CitationVol. 35
Publication year2000


Creighton Law Review

Vol. 35


Suppose Tom, a state employee, prohibits Mary, an antiabortion protester, from picketing outside a building located on state-owned property.(fn1) Tom's actions violate Mary's Fourteenth Amendment rights, which guarantee she will not suffer from discipline handed down by a state without adequate protection of her due process rights.(fn2) However, if Bob, a private individual, attempts to prevent Mary from conducting a similar protest outside a building that he owns privately, the United States Constitution provides no relief for Mary; Bob, not acting on behalf of the state, did not infringe on any of Mary's constitutional rights.(fn3) Each of these hypothetical situations represents an extreme end of the state action spectrum.(fn4) Most scenarios, however, fall somewhere in the middle of the spectrum, where the question of whether state action exists is blurred and the seemingly private actor appears to act on behalf of the state.(fn5)

In 1982, the United States Supreme Court defined the boundaries of state action analyses in Rendell-Baker v. Kohn,(fn6) Blum v. Yaretsky,(fn7) and Lugar v. Edmondson Oil Co.,(fn8) collectively referred to as the Blum Trilogy.(fn9) Through those cases, the Court introduced three principles by which it analyzed state action claims: the symbiotic relationshiptest, the public function test, and the state compulsion test.(fn10) Under the symbiotic relationship test, state action existed when a close nexus between the state and a private entity resulted from joint actions or an interdependent relationship that transformed the private entity's actions into actions of the state.(fn11) State action existed under the public function test when a private entity performed an action traditionally performed exclusively by the state.(fn12) The state compulsion test revealed state action when the state coerced or encouraged a private entity to engage in the challenged conduct.(fn13) Under these tests, state action only existed when a state became involved with a private party's actions.(fn14)

As time passed, the Court modified its state action tests to focus on the state's relationship with the private entity, rather than the state's involvement in the action itself.(fn15) Through its recent interpretations of the symbiotic relationship, public function, and state compulsion tests, the Court examined various factors that created state action.(fn16) The Court no longer restricted its analysis of the modified tests to an examination of factors directly related to the challenged conduct.(fn17) Nevertheless, the Court's state action doctrine still found its roots in the three tests, and state action resulted through analyses of those tests.(fn18)

In Brentwood Academy v. Tennessee Secondary School Athletic Ass'n,(fn19) the Supreme Court determined that the Tennessee Secondary School Athletic Association ("TSSAA") became a state actor when it imposed sanctions on Brentwood Academy.(fn20) In finding state action, the Supreme Court noted that its analysis did not turn on any of the three enumerated tests from the Blum Trilogy.(fn21) Instead, the Courtheld that state action existed through the pervasive entwinement that existed between the State of Tennessee and TSSAA.(fn22) The entwinement test examined the impact of the circumstances that surrounded the state's relationship with TSSAA.(fn23)

This Note will first review the facts and holding of Brentwood.(fn24) This Note will then discuss the historical progression of the Supreme Court's state action doctrine by examining the Blum Trilogy and cases decided before and after the Blum Trilogy.(fn25) Next, this Note will argue that the Court could have referred to more recent modifications of the traditional and more rigid symbiotic relationship, public function, and state compulsion tests because TSSAA was a state actor under modified versions of the state action tests.(fn26) This Note will then criticize the Court for finding state action through entwinement and argue that the Court's reliance on entwinement was not a "new" state action test, but was instead a test that marked a return to state action theories that existed prior to the Blum Trilogy.(fn27) Finally, this Note will argue that by returning to theories of the past, the Court expanded its state action doctrine and lowered the standards that plaintiffs must meet when raising constitutional claims against seemingly private entities.(fn28)


Brentwood Academy, a private college-preparatory school located just outside Nashville, dominates the Tennessee high school football scene.(fn29) While compiling a 310-43 record in twenty-eight years, Brentwood Academy's football team won at least seven Tennessee Secondary School Athletic Association ("TSSAA") high school championships and achieved national rankings in USA Today.(fn30) Brentwood Academy maintained a voluntary membership to TSSAA, a non-profit organization that organized state high school athletic tournaments.(fn31) Thus, Brentwood Academy conducted its athletic programs as directed by TSSAA.(fn32)

Organized under Tennessee state law, TSSAA exists to stimulate and regulate the athletic relations among Tennessee's secondary schools.(fn33) TSSAA's membership includes 290 public schools and 55 private schools; public schools account for 84% of TSSAA's voting membership.(fn34) A nine-member Legislative Council comprised of high school principals and superintendents from member schools enacts and regulates high school athletics on behalf of TSSAA.(fn35) Specifically, the Legislative Council regulates its members' recruiting activities.(fn36) Although TSSAA's staff members do not receive a paycheck from the State of Tennessee, the state provides for their membership in a public retirement fund established for state employees.(fn37)

In 1925, the Tennessee State Board of Education ("Board of Education") officially recognized TSSAA by providing regulations, standards, and rules for interscholastic competitions that involved Tennessee's public schools.(fn38) In 1972, the Board of Education officially designated TSSAA as an organization established to supervise and regulate interscholastic secondary school athletic activities in Tennessee's public schools.(fn39) Later that year, the Board of Education approved TSSAA's rules and regulations but reserved the right to amend the official designation in the future.(fn40) The Board of Education revoked the official designation in 1995 and therefore merely recognized TSSAA's role as an organizer of high school athletic events.(fn41) The revision authorized public school membership in TSSAA but did not require membership among Tennessee's public schools.(fn42)

On August 23, 1997, TSSAA determined Brentwood Academy had violated section 21 of its Recruiting Rule ("Recruiting Rule 21"), which prohibited schools from unduly influencing prospective students in order to retain the student for athletic purposes.(fn43) TSSAA accused Brentwood Academy of violating Recruiting Rule 21 by waiving the admission fees charged to student-athletes from other schools at athletic contests, writing letters to prospective students, and conducting off-season football practices.(fn44) Accordingly, TSSAA placed Brentwood Academy's entire athletic program on a four-year probation.(fn45) TSSAA also declared the boys' football and basketball teams at Brentwood Academy ineligible for post-season play for two years.(fn46) Finally, TSSAA imposed a $3,000 fine on Brentwood Academy.(fn47)

Brentwood Academy responded by suing TSSAA and its director, Ronnie Carter, in the United States District Court for the Middle District of Tennessee.(fn48) Brentwood Academy alleged that Recruiting Rule 21 violated the school's First Amendment right of free speech.(fn49) Brentwood Academy's action also alleged that TSSAA had violated Brentwood Academy's Fourteenth Amendment substantive and procedural due process rights as well as federal antitrust laws.(fn50) Finally,Brentwood Academy's action included allegations that TSSAA had violated Tennessee state law in an unfair, unreasonable, and random manner.(fn51) Brentwood Academy raised such allegations pursuant to 42 U.S.C. § 1983 ("Section 1983"),(fn52) which requires that allegations of federal law violations contain references to action conducted under the color of state law.(fn53) On June 1, 1998, Brentwood Academy moved for a permanent injunction and partial summary judgment, asserting that Recruiting Rule 21 violated the First and Fourteenth Amendments.(fn54) Twenty-eight days later, the district court denied TSSAA's subsequent motion for summary judgment on constitutional claims.(fn55)

In reaching that decision, the district court noted that a symbiotic relationship existed between TSSAA and its member schools.(fn56) The court reasoned that in Tennessee, only TSSAA organized high school athletic events and provided such services to the public.(fn57) Additionally, the district court noted that TSSAA maintained the power to select officials for contests between TSSAA members.(fn58) The district court noted TSSAA's ability to sanction schools that...

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