The NCAA as state actor: Tarkanian, Brentwood, and due process.

• Author: Potter, James

The NCAA would like the American public to believe that only a few schools ever break the rules, and it is never one of their golden programs. But other than making billions off of unpaid kids, has the NCAA ever made you confidently think they know anything about anything?

Former college basketball coach Jerry Tarkanian (1)

It almost seems impossible that, in the freest country in the world, we tolerated an organization like the NCAA. Is it because we were indifferent, intimidated, uninformed, selfish, loyal to the system, left out, or didn't know how to change a system that has failed in its mission?

Former college basketball coach Dale Brown (2)

If the NCAA and those who lead at the institutional and conference levels are unable to maintain academic values in the face of economics and related pressures, the government may be less than a proverbial step away.

Law professor Rodney K. Smith (3)

Formed one hundred years ago at the behest of President Theodore Roosevelt, (4) the National Collegiate Athletic Association (NCAA) exists today "to govern competition in a fair, safe, equitable and sportsmanlike manner, and to integrate intercollegiate athletics into higher education so that the educational experience of the student-athlete is paramount." (5) The NCAA is a private organization, made up of over one thousand active member institutions--colleges and universities representing widely divergent student bodies, educational missions, and athletic budgets. (6) Over the last three decades, due in large part to the growing popularity of college sports on television, (7) the NCAA has become increasingly powerful, such that the degree to which it now serves its own stated purpose regarding the "paramount" nature of the educational experience may be seriously questioned. (8) Because of its private status, however, NCAA enforcement proceedings are not governed by the kinds of constitutional protections to which federal, state, and local governments must adhere. No matter how ubiquitous the NCAA has become, and no matter how much is at stake in its rulings, in some ways the NCAA remains untouchable by even the most basic requirements of fairness that our legal system has embraced. This Comment asks whether, at its most fundamental level, such an arrangement makes any sense. As the opening quotations imply, the answer offered here is a resounding "no."

For a private organization like the NCAA to be bound by Fourteenth Amendment standards of due process, the organization must be deemed a "state actor" for constitutional purposes. (9) While the United States Supreme Court has explicitly held that the NCAA does not qualify as a state actor, (10) this Comment will argue that the Court's decision in NCAA v. Tarkanian warrants reevaluation, (11) and that there are a number of reasons why the NCAA should be held to the same due process standards that apply to governmental organizations. (12)

Part I traces the history of state action doctrine, from its birth in the post-Civil War era through its expansion under the Warren Court and eventual retraction during the Burger/Rehnquist years. This is not a well-settled area of the law, (13) and at least two distinct notions of how to determine what constitutes state action survive to the present day. (14) Part I further develops these dueling conceptions, examining their underlying premises to identify the interests served by each. Part II looks closely at two relatively recent Supreme Court decisions--NCAA v. Tarkanian (15) and Brentwood Academy v. Tennessee Secondary School Athletic Ass'n (16)--and argues that the line of reasoning adopted by the Court with respect to a state high school association in Brentwood should be applied to the NCAA's behavior on the intercollegiate level, and is therefore preferable to the reasoning employed in Tarkanian. Part III concludes by advancing substantive justifications for holding a private association like the NCAA to standards of fundamental fairness.

1. STATE ACTION DOCTRINE THROUGH THE YEARS

   1. A Restrictive Beginning

      The Due Process Clause of the Fourteenth Amendment to the U.S. Constitution provides, in part, that "[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law." (17) This provision came into play in the Civil Rights Cases, (18) in which the Supreme Court invalidated sections of the Civil Rights Act of 1875 (19) by expressly holding Fourteenth Amendment protections to be valid only against state actors. (20) At its most basic level, the decision shielded admittedly "wrongful" acts from due process and equal protection requirements, so long as the acts were committed by private entities, not by an arm of the government. The Court reached this decision over a stinging dissent by Justice Harlan, who asserted, inter alia, that places of public accommodation are state actors:

      In every material sense applicable to the practical enforcement of the Fourteenth Amendment, railroad corporations, keepers of inns, and managers of places of public amusement are agents or instrumentalities of the State, because they are charged with duties to the public, and are amenable, in respect of their duties and functions, to governmental regulation. (21) Despite Justice Harlan's prescient argument, which was nearly a century ahead of its time in terms of eventual Supreme Court rulings regarding public accommodations, (22) in the Civil Rights Cases the Court adhered to a restrictive conception of state action. This was arguably due at least in part to the immediate post-Civil War historical context, in which issues of federalism were particularly salient. But while the racial issues at the heart of the Reconstruction era found the Court guarding against excessive federal involvement, in the twentieth century racial discrimination would become a catalyst for the expansion of state action doctrine. (23)

   2. The Doctrine Expands

      1. "Public Function" Analysis

         In the so-called "White Primary Cases," (24) the Court prohibited political parties, and states themselves, from limiting participation in primary elections on the basis of race. While these cases more directly implicated the Fifteenth Amendment's prohibition on race discrimination in the voting context, (25) they extended Fourteenth Amendment protections as well. This is especially true of state efforts to delegate power to nongovernmental parties: after the White Primary Cases, states could no longer achieve impermissibly discriminatory goals simply by giving a private actor authority to perform a public function that is governmental in nature. By invalidating such efforts, the Court proved willing to extend Fourteenth Amendment protections even when a strict, formalist approach might have allowed for the opposite result. Subsequent cases have often turned on the question of whether a given function in a particular case was deemed to be "public" or "governmental."

         In Marsh v. Alabama, (26) the Court followed the spirit of Justice Harlan's dissent in the Civil Rights Cases by holding that the town of Chickasaw, Alabama, which was owned by a shipping corporation, could not prohibit a Jehovah's Witness from distributing religious literature, because that violated the First Amendment guarantee of religious freedom under the Free Exercise Clause. (27) In extending the public function prong (28) within state action doctrine, the Court in Marsh held that "[o]wnership does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more his rights become circumscribed by the statutory and constitutional rights of those who use it." (29) In Marsh, the Court conceptualized town ownership as a governmental function; this characterization brought First Amendment rights into play, even though the town was owned by a private corporation. This is the paradigm for public function analysis of state action: private entities that act in ways and for purposes typically associated with governmental functions are held to the same constitutional standards as government entities themselves.

      2. "State Nexus" Analysis

         Two terms after Marsh, the Court further extended its concept of state action in Shelley v. Kraemer, (30) in which Chief Justice Vinson's majority opinion held that, while it may not be unlawful for private individuals to enter into racially restrictive housing covenants, (31) the State may not enforce such covenants, because to do so would constitute state action in violation of the Fourteenth Amendment. (32) While private discrimination remained beyond the scope of Fourteenth Amendment protections, Shelley remade the dividing line between private and public, so that a private agreement, though in and of itself permissible, could become unconstitutional when enforced if the agreement in question relied sufficiently upon the government for its enforcement. That a state's mere "involvement" in a private agreement could, in some circumstances, lead to state action represented a broad extension of the doctrine. (33)

         Because of Shelley's far-reaching implications, scholars have suggested that the case cannot be read literally for precedential purposes, and that it was probably decided in such broad terms because the particular practices in the cases before the Court were especially objectionable. (34) Nonetheless, Shelley represented a further example of the Court expanding its conception of state action in order to combat discriminatory practices at the state level.

         Burton v. Wilmington Parking Authority (35) provided another such extension of the state action doctrine, this time at the local level. In Burton, a municipal parking garage in Wilmington, Delaware, leased space to a restaurant. When that restaurant refused to serve African-American patrons, a lawsuit was filed...