Signed, Your Coach: Restricting Speech in Athletic Recruiting in Tennessee Secondary School Athletic Ass'n v. Brentwood Academy - Brian Craddock

• Jurisdiction: United States,Federal,Tennessee
• Publication year: 2008
• Citation: Vol. 59 No. 3

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Signed, Your Coach: Restricting Speech in Athletic Recruiting in Tennessee Secondary School Athletic Ass'n v. Brentwood Academy

I. Introduction

In Tennessee Secondary School Athletic Ass'n v. Brentwood Academy ("Brentwood IF'),¹ the United States Supreme Court unanimously held that an athletic association may enforce its anti-undue-influence recruiting policy, restricting the speech of its voluntary member schools, to avoid undue influence on young student athletes during the recruitment process.² In reaching its holding, the Court extended two lines of First Amendment jurisprudence. First, the Court extended the application of Ohralik v. Ohio State Bar Ass'n³ to a context other than attorney-client solicitation for the first time.⁴ In doing so, the Court held that the possibility of undue influence in athletic recruiting was analogous to that in attorney-client solicitation and harmful enough to justify speech restriction.⁵ Second, the Court extended the application of the Pickering v. Board of Education⁶ balancing test beyond the context of government employment, weighing the interests of Brentwood Academy ("Brentwood") against those of the Tennessee Secondary School Athletic Association ("TSSAA").⁷ Ultimately, the Court held that the TSSAA's interest in enforcing its rules and restricting the speech of its voluntary members outweighed Brentwood's interest in recruiting speech.⁸

The decision in Brentwood II sets a precarious standard. The First Amendment doctrines used by the Court to support its holding were removed from their contexts and greatly extended. While the decision in Brentwood II is unanimous, the concurring Justices did not concur in the judgment because they supported the reasoning adopted by the majority. Rather, the concurring Justices in Brentwood II did so for the same reasons that they dissented in Brentwood Academy v. Tennessee Secondary School Athletic Ass'n ("Brentwood I"),⁹ arguing that Brent-wood was not entitled to First Amendment protection because TSSAA's actions were private and not state actions.¹⁰ Further, the Court established a nebulous practical standard for recruiting that does little to clarify the boundary between appropriate recruiting measures and inappropriate ones.

II. Factual Background

The TSSAA is a not-for-profit corporation that provides standards, rules, and regulations for interscholastic athletics among its members. Membership is voluntary and includes approximately 290 public high schools and 55 private high schools in the state of Tennessee. Brentwood is one of the private school members.¹¹

Since the 1950s, the TSSAA has maintained a policy that prohibits high schools from imposing "undue influence" on middle school student-athletes in the process of recruiting for high school athletics. In April 1997 the head football coach at Brentwood mailed letters to a number of eighth-grade football players who had signed letters of intent, which are contracts indicating their intent to attend and play football at Brentwood. The letters from the football coach, which were also sent to the parents of the student athletes, invited the student athletes to the school's spring football practice sessions.¹² The letters also informed the rising freshmen that equipment would be distributed at these practices and that "getting involved as soon as possible would definitely be to [their] advantage."¹³ The letter was signed "Your Coach."¹⁴ All of the recipients of the letter attended all or some of the spring practices.¹⁵

The TSSAA declared the letters violative of the TSSAA anti-undue-influence recruiting policy, which led to an investigation of recruiting practices at the school by a three-member panel known as the TSSAA Board ofControl. During this investigation, Brentwood was given ample notice that it had violated the TSSAA anti-undue-influence recruiting policy. Regular correspondence and meetings between TSSAA and Brentwood regarding the investigation ensued. This correspondence included a hearing before the TSSAA Board of Control and a de novo review by the entire TSSAA board ofdirectors. At these proceedings, the school was represented by counsel and given the chance to introduce evidence to both of the boards, but each time, the school elected not to present evidence. As a result of these hearings, the TSSAA Board of Control found that Brentwood violated TSSAA's policy prohibiting undue-influence in the recruiting of student-athletes and sanctioned Brentwood accordingly. The board placed Brentwood's athletic program on a four-year probation, prohibited the Brentwood boys' football and basketball teams from competing in playoff tournaments for two years, and fined the school $3,000.¹⁶

In 1998 after the TSSAA enforcement proceedings, Brentwood brought suit in the United States District Court for the Middle District of Tennessee against the TSSAA under 42 U.S.C. Sec. 1983,¹⁷ challenging the athletic association's prohibition of undue-influence recruitment of middle school students for athletic programs. Brentwood alleged that the TSSAA's sanctions were state actions that violated the school's First Amendment¹⁸ and Fourteenth Amendment¹⁹ rights. The district court entered summary judgment for Brentwood on its First Amendment claim and enjoined the TSSAA from enforcing its anti-recruiting policy.²⁰ on appeal, the TSSAA alleged the district court erred in holding that the TSSAA's actions constituted state actions.²¹ The United States Court of Appeals for the Sixth Circuit reversed the decision of the district court, holding that the actions of the TSSAA did not constitute state actions but instead constituted private actions from which Brentwood was not protected by the First or Fourteenth Amendments.²²

The United States Supreme Court granted certiorari and reversed the ruling of the Sixth Circuit, holding that the TSSAA was a state actor.²³ In so holding, the Court stated that the TSSAA met the entwinement exception to the state action doctrine.²⁴ The Court reasoned that state government was entwined in the operations of the TSSAA from the "bottom up" and the "top down," which rendered the nominally private entity a state actor.²⁵ The state government was entwined from the bottom up because 84% of the TSSAA's members were public schools in which athletics played a vital role in student education.²⁶ In addition, half of the TSSAA meetings were at public schools during regular school hours, and the financial support for the TSSAA came from the member schools.²⁷ Regarding top-down entwinement, the Court held that state employees were selected to serve as members of the TSSAA's Board of Control, and the TSSAA's ministerial employees were treated as state employees for state retirement benefits.²⁸ Having resolved the state action issue, the Court remanded the case for adjudication on the First and Fourteenth Amendment claims.²⁹ on remand, the Sixth Circuit held that the TSSAA's policy did not facially violate Brentwood's First and Fourteenth Amendment rights, and the case was further remanded to the district court for trial on those claims.³⁰ The district court ruled for Brentwood again, finding the school's First and Fourteenth Amendment rights were violated by the TSSAA's enforcement of its recruiting policy. An appeal followed, and the Court of Appeals for the Sixth Circuit affirmed the decision of the district court, holding that Brentwood's free speech rights were violated.³¹ Granting certiorari a second time, the Supreme Court unanimously reversed and remanded the case, holding that: (1) the TSSAA's enforcement of its anti-undue-influence recruiting policy did not violate Brentwood's First Amendment rights and (2) any procedural due process violation under the Fourteenth Amendment regarding the TSSAA proceedings was harmless beyond a reasonable doubt.³²

III. Legal Background

A. The First Amendment, Fourteenth Amendment, and Incorporation

The First Amendment³³ provides, in relevant part, that "Congress shall make no law . . . abridging the freedom of speech."³⁴ over the years, the Supreme Court has extended the First Amendment to apply to the Federal judicial and executive branches in addition to the United States Congress. However, the Court has extended the First Amendment's protection further. The Fourteenth Amendment³⁵ provides, in relevant part, that "[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."³⁶ Because freedom of speech is a privilege of citizenship of the United States, the Court has interpreted this clause of the Fourteenth Amendment to broaden the protection of the First Amendment and protect individuals from the speech restrictions of state actors in addition to federal actors.³⁷ This doctrine is known as incorporation and has been used by the Court to protect most of the individual liberties granted by the Bill of Rights from state action in addition to federal action.³⁸

The Court has chosen not to extend the First Amendment further and has adopted the state action doctrine, establishing that the First Amendment's protection does not extend to the actions of other individuals or private entities.³⁹ However, there are some judicially created exceptions to this general rule in which the actions of private entities are considered to be state action. For example, the Court has held that a private entity should be treated as a state actor "when it is controlled by an 'agency of the State,' when it has been delegated a public function by the State, when it is 'entwined with governmental policies,' or when government is 'entwined in [its] management or control.'"⁴⁰ When a nominally private entity's composition and workings are pervaded by public institutions and officials, it is appropriate to apply constitutional standards to that entity.⁴¹ The Court recognized this concept in Evans v. Newton,⁴² in which the Court held that "[c]onduct that is formally 'private' may...