Tssaa V. Brentwood Brief (Arguments For Brentwood)

Brentwood Academy, a private Christian high school located near Nashville, Tennessee, had been somewhat of a football powerhouse. When litigation for this case began in 1997, the school had won numerous state championships, was a perennial contender for the title, and was nationally ranked by USA Today. Various rival high school coaches accused Brentwood of violating the rules of the Tennessee Secondary School Athletic Association, of which the school is a voluntary member. TSSAA, founded in 1925 and incorporated under state laws, is composed of 290 public and 55 private schools and is controlled by the Board of Control which consists of nine elected members, all of whomÐ'--as principals or superintendents of public schoolsÐ'--were public officials at the time of the original hearing. After TSSAA conducted the investigation of Brentwood's activities, it found that Brentwood had violated rules against recruitingÐ'--that the school and its coach, Carlton Flatt, had used "undue influence" to obtain students for athletic purposes by sending 12 incoming students invite letters to voluntary spring football practice and by calling them on the phone to let them know practice was not mandatory. TSSAA expelled Brentwood from all league and playoff tournaments for two years in all sports, placed it on probation for four, and fined the school $3,000.

For roughly the last 10 years, the judicial system has been trying to solve the problems brought up by TSSAA v. Brentwood. First, did TSSAA impede Brentwood's First Amendment rights to free speech? To determine this, the nature of the "recruiting speech" must be found, among other determining factors discussed by other members of this counsel. Also, and central to the purposes of this brief, for Brentwood to qualify for protection under the First Amendment, TSSAA must be deemed a "state actor." Second, did TSSAA violate Brentwood's Fourteenth Amendment right to due process? On its substantive due process claim, Brentwood has failed to prove, at the 2006 Sixth Circuit Court of Appeals, that TSSAA "maliciously and intentionally abused [its] state authority in order to injure" Brentwood. On its procedural due process claim in the same court, Brentwood has successfully proven that TSSAA deprived the school of property or liberty interestÐ'--namely the $3,000 fineÐ'--without giving Brentwood due notice or an opportunity to be heard.

While TSSAA denies Brentwood's allegations that TSSAA is not a "state actor," it says that even if it was, the voluntary contract under which it was engaged with Brentwood keeps the issue from being constitutional and does not imply Brentwood's protection under the First and Fourteenth Amendments. The role of TSSAA as "state actor" is the vital requisite on which all further proceedings pertaining to constitutional protection of free speech and due process, as well as antitrust issues, hinges. As it may please the court, this brief's arguments will center on TSSAA's role as "state actor" and its subsequent violation of the Fourteenth Amendment as that governmental role.

First, as mandated by this court in February, 2001, TSSAA assumes the role of state actor. As held in the opinion of this court, "[t]he [TSSAA]'s regulatory activity is state action owing to the pervasive entwinement of state school officials in the [TSSAA]'s structure, there being no offsetting reason to see the [TSSAA]'s acts in any other way." See Brentwood Acad., 531 U.S. 288. That stated, as it goes to bolster the argument herein, let us examine why TSSAA is considered a state actor. In Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, the court concluded that state action may only be found if there is such a "close nexus between the State and the challenged action" that seemingly private behavior "may be fairly treated as that of the State itself." In other words, there must be more than one point in which the government is entwined with an otherwise private group and/or that group is entwined with governmental policies. The group's character is defined not by one specific rule or lack thereof, but by its functions as a whole.

TSSAA shows that in more than one capacity, its character reflects that of a state actor. Even though 55 private schools also make up part of TSSAA, the large majorityÐ'--some 84%Ð'--of TSSAA's members are public schools, and all of the nine Board of Control members are public employees representing public schools. Furthermore, State Board of Education members, who are state employees, sit ex officio, or in official positions, on TSSAA's governing bodies and TSSAA's employees participate in the pension program of the state, making them even more entwined with state procedures and state actions. This entwinement in TSSAA comes not just from the bottom up, as the overwhelming majority is comprised of public schools, but from the top down, as with the involvement of state employees and state funds at the helm of the organization.

There are at least three precedents that affirm TSSAA's role as state actor. National Collegiate Athletic Assn. v. Tarkanian, 488 U.S. 179, predicated and anticipated that a group like TSSAA could be considered a state actor. In that case, this court asserted that state action could be found when there is public "entwinement" in the management or control of an organization, like the TSSAA herein, whose member public schools are all within a single state, as is the case in Tennessee. Where that case implies that a group representing high school athletics within one state could dictate state action, there are at least two cases in which groups similar to TSSAA have dictated state action. In Clark v. Arizona Interscholastic Assn., 695 F.2d 1126 (CA 9 1982), an Arizona state high school athletic association's rule banning co-ed interschool volleyball was litigated. More closely in relation to Brentwood, in Louisiana High School Athletic Assn. v. St. Augustine High School, 396 F.2d 224 (CA5 1968), a private parochial school challenged segregation in high school sports concerning both private and public schools. As central to this argument, the athletic associations in both of these cases were treated as state actors by the Court of Appeals. Surely, if a private school can challenge a state action of segregation in the latter, a private school can challenge a state action against free speech and due process in TSSAA v. Brentwood.

While TSSAA alleges that other criteria, such as the public function test in Rendell-Baker v. Kohn, 457 U.S. 830, where public schools sent remedial students to private schools, should be considered by the court, as this court has stated, "this case does not