Tennessee Secondary School Athletic Association v. Brentwood Academy

PETITIONER: Tennessee Secondary School Athletic Association
RESPONDENT: Brentwood Academy
LOCATION: United States Court of Appeals for the Ninth Circuit

DOCKET NO.: 06-427
DECIDED BY: Roberts Court (2006-2009)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 551 US 291 (2007)
GRANTED: Jan 05, 2007
ARGUED: Apr 18, 2007
DECIDED: Jun 21, 2007

Dan Himmelfarb -
James F. Blumstein -
Maureen E. Mahoney -

Facts of the case

Brentwood Academy, a private school, was a voluntary member of the Tennessee Secondary School Athletic Association (TSSAA). After Brentwood's football coach violated TSSAA recruiting rules by contacting some prospective players at other schools, the TSSAA imposed various penalties on Brentwood. Brentwood sued the TSSAA, claiming that its First Amendment and Due Process rights were being violated. The Supreme Court had ruled previously that because the TSSAA was composed primarily of public schools, it was a state actor subject to the limitations of the Constitution (see Brentwood Acad. v. TN Sec. School Ath. Assn. No. 99-901). Accordingly, the District Court faulted the TSSAA for violations of Brentwood's constitutional rights and threw out the TSSAA's penalties.

On appeal, the TSSAA argued that it had not exercised the "police power" of the State, but merely enforced a voluntary contractual agreement with Brentwood. The U.S. Court of Appeals for the Sixth circuit rejected this argument, characterizing the TSSAA's actions as those of a "government regulator." The Sixth Circuit held that the state interest in regulating athletic competition was not substantial enough to counter-balance Brentwood's First Amendment rights, and it affirmed the lower court's ruling for Brentwood.


Does a voluntary association composed primarily of public schools violate the First Amendment's protection of free speech when the association punishes a member school for violating athletic recruiting rules that the school agreed to follow?

Media for Tennessee Secondary School Athletic Association v. Brentwood Academy

Audio Transcription for Oral Argument - April 18, 2007 in Tennessee Secondary School Athletic Association v. Brentwood Academy

Audio Transcription for Opinion Announcement - June 21, 2007 in Tennessee Secondary School Athletic Association v. Brentwood Academy

John G. Roberts, Jr.:

Justice Stevens has our opinion this morning in case 06-427, Tennessee Secondary School Athletic Association versus Brentwood Academy.

John Paul Stevens:

This case comes to us from the United States Court of Appeals for the Sixth Circuit.

The Tennessee Secondary School Athletic Association which I will refer to us TSSAA is an association of high schools that regulates interscholastic sports among its members including Brentwood Academy, a private school.

TSSAA prohibits its members from using undo influence in recruiting middle school students for their athletic programs.

In April 1997, Brentwood’s football coach sent a letter to several eighth-grade boys inviting them to attend spring practice sessions.

The letter explained that football equipment would be distributed and they getting involved as soon as possible would definitely be to your advantage.

It was signed “Your Coach”.

Even though, none of the boys had yet enrolled within the meaning of the TSSAA rules.

As the case comes to us it is settled that the coach’s pre-enrolment solicitation violated the TSSAA anti-recruiting rule and that he had ample notice that his conduct was prohibited.

TSSAA accordingly, sanctioned Brentwood.

After proceeding through two layers of internal TSSAA review Brentwood brought this action against TSSAA and its Executive Director in Federal Court under 42 U.S.C. §1983.

As relevant here Brentwood made two claims.

First, that the enforcement of the rule was state action that violated the First Amendment and second that the adjudication by the association violated fair procedural rules.

The District Court and the Sixth Circuit found for Brentwood on both accounts, we reverse.

In Part I, of our opinion we described the history of the case.

In Part II, we discussed the First Amendment issue.

In Part II-A which is joined only by Justice Souter, Justice Ginsburg and Justice Breyer, I explain that the anti-recruiting rule governs person-to-person solicitation rather than speech to the public at large.

In Part II-B, speaking for the court, I explained that Brentwood made a voluntary decision to join TSSAA and to abide by its anti-recruiting rule.

Just as the government’s interest in running an effective workplace can in circumstances outweigh employee speech rights so too in an athletic league’s interest in enforcing its rules sometimes warrants curtailing the speech of its voluntary participants.

While TSSAA may not have unlimited authority to condition membership on the relinquishment of any and all constitutional rights, it surely may impose conditions on speech that are necessary to regulate an efficient and effective state-sponsored high school athletic league.

We agree with TSSAA submission that hard-sell tactics directed at middle school students could distort competition between high school teams, and foster an environment in which athletics are prized more highly than academics.

The First Amendment does not excuse Brentwood from abiding by the same anti-recruiting rules that govern the conduct of its competitors.

Part III of the opinion discuses Brentwood’s claim that was deprived of a fair hearing because the TSSAA board considered certain evidence that had not been introduced in the formal hearing.

They did not however consider anything not already known to Brentwood or prevent or deny Brentwood a full opportunity to explain the relevant facts.

If there was a due process violation it was clearly harmless.

Justice Kennedy has filed an opinion concurring in part and concurring in the judgment.

In which the Chief Justice, Justice Scalia and Justice Alito have joined.

Justice Thomas has filed an opinion concurring in the judgment.