Brentwood Academy had claimed that because the TSSAA is dominated by public schools it should be regarded constitutionally as an arm of government. As such, the group's sanction on the school was a violation of its First Amendment right to free speech, the school argued.
In 1998, U.S. District Judge Todd Campbell ruled in favor of Brentwood Academy. The Sixth Circuit U.S. Circuit Court of Appeals in Cincinnati later reversed that decision.
Vanderbilt law professor Jim Blumstein delivered a 20-minute oral argument before the court in October. He is joined in representing the school by Lee Barfield of Bass, Berry & Sims and by attorney Tom Nebel.
"Brentwood Academy is thrilled," Mr. Barfield said late Tuesday. "The Supreme Court adopted our theory of entanglement for analyzing the relationship between the state and the TSSAA."
In Tuesday's ruling reversing the Appeals Court, five justices said that "the Association's regulatory activity is state action owing to the pervasive entwinement of state school officials in the Association's structure."" "
Eighty-four percent of the TSSAA's membership is from government-run schools.
"The Association's fear that reversing the judgment will trigger an epidemic of federal litigation is unfounded," it said.
This fear of private groups that take in public members becoming classified as governmental entities formed the basis of a dissenting opinion filed by Justice Clarence Thomas. Saying that the meaning of the word "entwinement" is "not altogether clear," Justice Thomas warned that the majority's "new entwinement test"…"could affect many organizations that foster activities, enforce rules, and sponsor extracurricular competition among high schools -- not just in athletics, but in such diverse areas as agriculture, mathematics, music, marching bands, forensics and cheerleading.
Justices Souter, Stevens, O'Connor, Ginsburg and Breyer supported reversal of the 6th Circuit. In addition to Justice Thomas, Justices Rehnquist, Scalia and Kennedy opposed it.
The case originated in claims that Brentwood Academy coach Carlton Flatt sent a letter to several eighth graders inviting them to attend the school's spring football practice. Also, free football tickets were distributed to a middle school football coach.
The TSSAA deemed these activities to be violations of its recruiting rules.
Mr. Blumstein told NashvillePost.com Tuesday afternoon that the slippery slope Justice Thomas warns about actually flows the other way. If the court did not overturn the appeals court, "public entities could contract with nominally private entities and be staffed with public officers and evade constitutional rights."
"We're not talking about the French Club and the Garden Club. With the TSSAA, we're talking about a group that exercises regulatory authority and is staffed by the public schools."
Mr. Blumstein, who has made the oral argument for one other legal case before the high court in his career and participated in three other Supreme Court cases, said that Justice O'Connor was the swing vote in the Brentwood Academy decision. Based on previous voting records, the four other justices who supported the school's stance voted as expected. Justice O'Connor had dissented in another case involving basketball coach Jerry "Tark the Shark" Tarkanian, but the Brentwood Academy case was stronger than the Tarkanian case, Mr. Blumstein said.
Now, the TSSAA has the right to appeal the First Amendment case in the Cincinnati court. While Judge Campbell earlier decided that the TSSAA recruiting rules did violate the school's First Amendment rights, the 6th Circuit has not ruled on that issue.
Also, the due process, or fair procedures, portion of the lawsuit could go to trial after the First Amendment issue is resolved.
The Law |
Litigation |
Education |
Todd J. Campbell |
G. Thomas Nebel |
Brentwood Academy
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