Vanderbilt Lawyer - Volume 36, Number 1

Brentwood vs. TSSAA

James Blumstein Tom McCoy

While the Bong Hits for Jesus Supreme Court case was making headlines in the rest of the country, Nashvillians were focused on another First Amendment case: Tennessee Secondary School Athletic Association v. Brentwood Academy. The case was distinguished not only by its 10-year duration, which had involved two trips to the Supreme Court, but also by the fact that prominent Vanderbilt faculty members authored the opposing constitutional arguments for each side.

In the spring of 1997, Brentwood Academy football coach Carlton Flatt wrote letters to 12 eighth-grade boys to inform them of the school's spring football practices. Although the boys then were enrolled at other schools in the Nashville area, their parents had already signed contracts for them to attend Brentwood Academy the following fall and paid deposits. TSSAA officials claimed that Flatt's letter - which was signed "Your coach" - violated an anti-recruiting rule against "undue influence." The school was barred from competing in TSSAA football and boys basketball tournaments for two years and fined $3,000.

Brentwood Academy took the case to court, alleging, among other things, that TSSAA's rules and their enforcement in this particular situation violated the school's First Amendment speech rights and the rights of students and parents to receive this information. When the case first reached the Supreme Court, in 2000, the Court ruled for Brentwood Academy, finding that TSSAA, though a voluntary membership association, was a "state actor" with government authority, and that as such, its rules are subject to constitutional scrutiny. The case then went back to the District Court for a trial and a ruling on the free speech issue. The District Court ruled for Brentwood Academy, finding that TSSAA's rule violated the First Amendment, and the Sixth Circuit affirmed that decision. Once again, the Supreme Court agreed to hear the case - this time on the First Amendment issue.

For Professor Tom McCoy, who helped craft the argument presented by TSSAA, which organizes Tennessee high school athletic tournament play, the argument boiled down to the fact that TSSAA was a voluntary organization, the rules of which expressly forbid "coach-initiated contact" with students who are not enrolled and in attendance, unless the students are part of a feeder system into the high school. TSSAA's position was that Brentwood Academy voluntarily signed a contract with TSSAA each year in which Brentwood Academy agreed to abide by TSSAA's rules. TSSAA's cert petition asserted that "the entire enterprise of interscholastic athletic competition depends on clear and enforceable rules, and sometimes those rules must restrict speech or expressive conduct, ranging from recruiting limitations to ejecting a coach or player for unsportsmanlike conduct."

Professor James Blumstein, who argued the case on behalf of Brentwood Academy, emphasized that Brentwood Academy merely communicated with incoming students about an activity (spring practice) that was authorized under the rules. The case, he argued, was about "regulatory overreach." Since the students' families had already signed contracts and paid deposits to attend the school, Blumstein asked, how could the letter possibly have involved recruiting? "The [TSSAA] rule was to stop the exploitation of kids," Blumstein says. "But there was no evidence of exploitation here." Nor, he adds, does the question of ensuring "competitive equity" apply in this case, since the athletes had already decided on a school.

The Court held in favor of TSSAA.