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Schools, sports and rules: Argument 4/18/07


Perhaps it did not start out this way, but the Supreme Court’s agreement to rule — for a second time — on high school sports-recruiting rules has turned into a clash between public and private education, a parade of horribles about the imitation professionalization of prep sports, a bold attempt to get the Court to reconsider a ruling just six years old, a seminar on enforcing federal constitutional rules against private entities, and critiques of levels of First Amendment scrutiny. That is the array of issues confronting the Justices as they hear Tennessee Secondary School Athletic Association v. Brentwood Academy (06-427), granted review on Jan. 5. The oe-hour oral argument will start soon after 10 a.m. Wednesday, following the release of new decisions on other cases.

At the simplest level, the case is about the constitutionality of a rules-enforcing high school sports association’s crackdown on a sports powerhouse at the prep level, the Brentwood Academy in Brentwood. The association was found by the Sixth Circuit to have violated the Academy’s First Amendment speech rights by punishing it for violatinig an association rule against recruiting student athletes.

The briefing, though, has turned it into a much larger struggle, with the potential to affect recruiting not only of student athletes but also of student performers in other extra-curricular areas such as debate, voice and band, and fine arts. Even if confined to its possible impact on prep sports, the case may affect every state’s prep sports association, some 18,654 schools across the country and more than seven million student-athletes.

The Court actually has been involved in the case twice before — once to issue a ruling, and later to deny review at another stage of the case. In its 2001 decision in what is now known as Brentwood I, the Court laid down the rule that the Tennessee association is a “state actor” because its activities were so closely “intertwined” with state school officials. The case returned in 2002, after the Sixth Circuit ruled that it would weigh the Academy’s First Amendment complaint under an “intermediate scrutiny” standard; at that time, the Supreme Court denied review.

Both the “state action” decision and the “intermediate scrutiny” standard are under sharp attack in this new round in the case. The Court is being asked to overrule the 2001 decision (a 5-4 decision, in which four Justices still on the Court were in the majority, as are three of the dissenting Justices. And it is being asked to cast aside the “intermediate scrutiny” analysis and substitute either a reasonableness standard or a “strict scrutiny” standard.

Taking on the issues Wednesday will be Maureen Mahoney of Latham & Watkins in Washington, D.C., speaking for the Tennessee association; she will yield part of her time to Dan Himmelfarb, an assistant to the U.S. Solicitor General, representing the U.S. as amicus in support of a more relaxed standard of review of the speech restriction at issue. Vanderbilt law professor James F. Blumstein will speak for Brentwood Academy.

Technically, the Court has not agreed to reopen its prior ruling on the “state action” question, or the Sixth Circuit’s earlier ruling on judging the restriction from an “intermediate scrutiny” focus. The sole question is whether the Sixth Circuit was wrong in finding a constitutional violation when the Tennessee association punished Brentwood Academy for recruiting violations. The Academy was put on four-year athletic probation, its football and basketball teams were barred from association-sponsored playoffs for two years, and a fine of $3,000 was imposed. The punishment was for a personal letter to middle-school athletes and a followup telephone call to parents by the football coach, violating basketball practice rules, and providing free tickets to a football game. The Sixth Circuit ruled in favor of the Academy and the association took the case back to the Supreme Court.

The athletic association told the Court in its merits brief that the Justices could correct the Circuit Court’s errors and confusion, but added that “the only consistent way to spare litigants and the courts from the time and expense of cases like this one is to recognize that decisions like these are not fairly attributable to the state” — an open invitation to reconsider Brentwood I. First Amendment rules, it argues, should be reserved for actions of a sovereign government against unconsenting members of the general public, not applied to voluntary high school athletic leagues that do not exercise “real sovereign power.”

Its assault on the “state actor” holding is supported by member private schools in Tennessee, by the National Collegiate Athletic Association (the sports regulator for colleges), and the National School Boards Association, among others. The school boards group argues that the association anti-recruiting rule is not a regulatory ordinance, but merely a contractual term. Much of the argument on the “state actor” points focuses on the claim that Brentwood Academy voluntarily joined the prep athletic association, so forfeited any right not to abide by its rules (and, with that forfeiture, a loss of his First Amendment complaint).

The U.S. government has moved into the case to argue against the continued use of the “intermediate scrutiny” standard to weigh restrictions on speech by governmental action against those who choose to participate in government programs or to contract with the government. In its place, the Solicitor General calls for a reasonablenss standard when government imposes a speech restriction while acting as “property owner, educator, employer, or funder.”

Other amici say that the case carries with it the potential to again put too much emphasis on athletics over academics, and to stimulate recruiting for athletes as early as the fifth grade, with dramatic impact on the educational interests of preadolescent children and their families.

On its side, Brentwood Academy argues that the case is not even about restrictions on prep sports recruiting, saying that everyone agrees that exploiting middle and high school students should be prevented by reasonable limits on recruiting overtures. But it argues that such limits should be on conduct alone — such as barring incoming studens from spring sports practice — and not restrictions on speech activities to provide information for potential students and their parents.

Joining the Academy in defending the Sixth Circuit’s First Amendment rationale are a wide array of private schools, their group associations, and public charter schools, arguing variously that they represent the best hope to parents with children in failing public schools, and that parents of school-age children need an open flow of information from school officials to help them choose their child’s school. In some ways, those briefs revive the educational policy discussion that has been a feature of the national debate over school vouchers to let public school students shift to private schools.

The Association of Christian Schools, with First Amendment specialist Floyd Abrams as its lawyer, urges the Court to impose “strict scrutiny” analysis on the types of speech restrictions imposed by the Tennessee association. Others, like the National Women’s Law Center, counsel the Court not to relax First Amendment protection against nominally private entities that are exercising regulatory power over individuals. Thus, there is a fervent defense of the Court’s ruling in Brentwood I.

The Court is expected to issue its decision on the case by late June.