Brentwood Academy v. Tennessee Secondary School Athletic Ass'n

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Pursuant to Sixth Circuit Rule 206

File Name: 06a0102p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellee/ -

BRENTWOOD ACADEMY,

Cross-Appellant, -

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Nos. 03-5245/5278

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v. >

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TENNESSEE SECONDARY SCHOOL ATHLETIC

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ASSOCIATION; RONNIE CARTER, Executive Director

Defendants-Appellants/ -

and in his individual capacity,

Cross-Appellees. -

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Appeal from the United States District Court

for the Middle District of Tennessee at Nashville.

No. 97-01249—Todd J. Campbell, District Judge.

Argued: December 7, 2004

Decided and Filed: March 17, 2006

Before: GIBBONS and ROGERS, Circuit Judges; BELL, Chief District Judge.*

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COUNSEL

ARGUED: Richard L. Colbert, COLBERT & WINSTEAD, Nashville, Tennessee, for Appellants.

James F. Blumstein, VANDERBILT LAW SCHOOL, Nashville, Tennessee, for Appellee.

ON BRIEF: Richard L. Colbert, W. Gregory Miller, J. Christopher Anderson, COLBERT &

WINSTEAD, Nashville, Tennessee, for Appellants. James F. Blumstein, VANDERBILT LAW

SCHOOL, Nashville, Tennessee, H. Lee Barfield II, W. Brantley Phillips, Jr., BASS, BARRY &

SIMS, Nashville, Tennessee, for Appellee. Daniel Casse, WHITE HOUSE WRITERS GROUP,

Washington, D.C., Chester E. Finn, Jr., THOMAS B. FORDHAM FOUNDATION, Washington,

D.C., John F. Daly, FEDERAL TRADE COMMISSION, Washington, D.C., William E. Quirk,

James M. Humphrey, SHUGHART, THOMSON & KILROY, Kansas City, Missouri, for Amici

Curiae.

GIBBONS, J., delivered the opinion of the court, in which BELL, Chief D. J., joined.

ROGERS, J. (pp. 27-37), delivered a separate dissenting opinion.

*

The Honorable Robert Holmes Bell, Chief United States District Judge for the Western District of Michigan,

sitting by designation.

1

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OPINION

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JULIA SMITH GIBBONS, Circuit Judge. This appeal represents the third trip to this court

for the parties to this litigation. The case has also been before the United States Supreme Court,

which made a notable ruling that defendant-appellant Tennessee Secondary School Athletic

Association (“TSSAA”) was a state actor.

The parties’ dispute began when the TSSAA imposed a number of penalties on plaintiff-

appellee Brentwood Academy (“Brentwood”) as a result of asserted violations by Brentwood of the

TSSAA’s rule governing recruiting of student athletes. Brentwood sued the TSSAA and its

executive director, defendant-appellant Ronnie Carter, alleging violations of the First and Fourteenth

Amendments, federal antitrust laws, and Tennessee law. After the United States Supreme Court

determined that the TSSAA is a state actor, this court on remand held that the recruiting rule was

content-neutral and subject to intermediate scrutiny. We remanded to the district court with

instructions about the proper analysis in the case on the First Amendment issue. The district court

conducted a ten-day nonjury trial. The district court found for Brentwood on the First Amendment

issue, holding that the application of the rule to Brentwood was not narrowly tailored to further the

TSSAA’s legitimate, substantial interests. The district court also found for Brentwood on its

substantive and procedural due process claims against the TSSAA, as well as on its procedural due

process claim against Carter in his individual capacity. The district court enjoined the TSSAA’s

penalties against Brentwood. The district court also held that the TSSAA was entitled to immunity

from Brentwood’s antitrust claims. The parties cross-appealed to this court on these issues.

For the reasons set forth below, we affirm in part, reverse in part, and remand for further

proceedings.

I.

A. Factual Overview

We begin with a description of the most pertinent facts and supply additional facts as

necessary in our discussion of the various issues.

The TSSAA is a voluntary association of 290 public schools and 55 independent and

parochial schools from across the state of Tennessee. The TSSAA is organized as a non-profit

corporation under Tennessee law, with the purpose of stimulating and regulating interscholastic

athletic competition among its member schools. Its governing entity is the Board of Control. As

noted in the Supreme Court’s decision in this case, the Tennessee State Board of Education,

beginning in 1925, explicitly acknowledged the TSSAA’s functions “in providing standards, rules

and regulations for interscholastic competition in the public schools of Tennessee.” Brentwood

Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 292 (2001). In 1972, the Board

designated the TSSAA as “the organization to supervise and regulate” interscholastic athletics and

specifically approved the TSSAA’s rules and regulations, including the recruiting rule. Id. In 1996,

the Board dropped the rule expressly designating the TSSAA as regulator but did not change its

relationship with the organization. Id. at 292-93. At all times relevant to the present case, Ronnie

Carter served as executive director of the TSSAA.

Brentwood Academy is an independent school in Brentwood, Tennessee, and a member of

the TSSAA. In 1998, the school had about 520 students in grades six through twelve. Brentwood’s

athletic teams, especially its football team, have been very successful in interscholastic competitions,

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even though its enrollment is smaller than many of its competitors. At the time of the events in

question, Brentwood’s Headmaster was Bill Brown; the Athletic Director and Head Football Coach

was Carlton Flatt; and the Director of Admissions was Nancy Brasher. Brentwood paid a fee to the

TSSAA to renew its membership on an annual basis.

The TSSAA has promulgated a “recruiting rule” in order to regulate the attempts of

secondary schools to recruit middle school student athletes for athletic programs. The rule, found

in the TSSAA’s Bylaws, reads:

The use of undue influence on a student (with or without an athletic record), his or her

parents or guardians of a student by any person connected, or not connected, with the school

to secure or to retain a student for athletic purposes shall be a violation of the recruiting rule.

The bylaws also include a number of questions and answers and other guidelines that are

known as interpretive commentary. While these are meant to aid in the interpretation of the

recruiting rule, they are not binding on the TSSAA Board of Control. Carter agreed that the

recruiting rule itself is “all that really counts, everything else underneath it, the interpretative

commentary is discretionary and it depends on the totality of the circumstances.”

Excerpts from the interpretive commentary include the following:

1.

Q. How is undue influence interpreted in the recruiting rule?

A. A person or persons exceeding what is appropriate or normal and offering an incentive

or inducement to a student with or without an athletic record.

...

3.

Q. Is it permissible for a coach to contact a student or his or her parents prior to his

enrollment in the school?

A. No, a coach may not contact a student or his or her parents prior to his enrollment in the

school. This shall apply to all students whether or not they have an athletic record.

4.

Q. What are some of the guides [sic] used in determining whether there has been undue

influence used which would result in a violation of the recruiting rule?

A. Some examples are, but not limited to:

3. Any initial contact or prearranged contact by a member of the coaching staff or

representative of the school and a prospective student/athlete enrolled in any member

school except where there is a definite feeder pattern.

4. Any initial contact or prearranged contact by a member of the coaching staff or

representative of the school and a prospective student/athlete in the seventh grade

and above at any non-member school except where there is a definite feeder pattern

involving the schools.

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...

Private...schools may not contact students enrolled at the public schools. Public

schools may not contact students enrolled at the private schools.

...

7. Admitting students to athletic contests free of charge when there is an admission

being charged at the contest except where there is a definite feeder pattern involved

with the school.

The “definite feeder pattern” exception does not apply to Brentwood, except with regard to those

students who are enrolled at Brentwood Academy itself in the sixth grade or higher.

In some form, the recruiting rule has been in effect at least since the early 1950s and

probably earlier. It has undergone various changes; the auxiliary questions and answers and

guidelines were added during the 1980s and 90s.

In 1997, a number of coaches at public high schools that were TSSAA members reported

various alleged recruiting violations by Brentwood to the TSSAA. On behalf of the TSSAA, Carter

and other TSSAA officials began an investigation into the allegations. During the investigation,

Brentwood supplied Carter with a copy of a letter Flatt sent to various eighth grade boys in April

1997 as well as information regarding phone calls Flatt made to the families of the boys to whom

the letter was sent. The letter read, in part:

Having officially enrolled at Brentwood Academy, the TSSAA allows you to participate in

spring football practice. If you are not currently involved in a sport at your school, we

would like to invite you to practice with your new team.... Due to the inconvenience to your

parents, please do not feel that you must attend every practice. However, I do feel that

getting involved as soon as possible would definitely be to your advantage.... We are

certainly glad that you decided to become an Eagle.

The letter was signed, “Your Coach, Carlton Flatt.” This letter was sent to all incoming ninth grade

male students who had applied, been tested and admitted, and signed enrollment contracts with

Brentwood.1 Flatt testified that after the letter was mailed, he received “a couple of phone calls”

from parents of boys who received the letter with questions about the letter and the necessity of the

boys attending practice. As a result of these calls, Flatt decided to call each of the families of the

boys who received the letter to clarify that the spring practice was not mandatory and should not

trump any other academic or athletic responsibility the boys might have. All twelve boys who

received the letter ended up attending spring practice.

1

Headmaster Brown later testified that those students who sign such contracts (and paid the accompanying $300

deposit), in his mind, were officially enrolled at Brentwood and committed to come. The TSSAA, however, contends

that the term “enrolled” (as used in the recruiting rule) is defined in the TSSAA Bylaws, under Article II (Eligibility

Rules), Section 1 (Academic Rules):

To be eligible to participate in athletic contests during any semester....

(b) Students shall be regularly enrolled, in regular attendance, and carrying at least five full courses. A student

shall be considered as regularly enrolled after the student has attended for three days, has engaged in three or

more days of football, girls volleyball, cross country, golf or girls soccer practice during the period on or after

August 1, or has participated in an athletic contest in any sport.

There was some testimony at trial indicating that a few students every year do not end up attending Brentwood even after

signing the enrollment contracts.

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The TSSAA also investigated allegations that tickets for a Brentwood football game

provided by Flatt to a middle school coach were used by some of the coach’s student athletes to

attend the game for free. As the TSSAA put it, these tickets were “made available to uncontrolled

individuals” in a way that facilitated “the possibility for abuse.” Flatt later testified that he had told

the coach that the tickets were not to be used to provide free admission to middle school students.

The middle school coach nonetheless allowed two of the free tickets to be used by two of his

students.

Carter notified Brentwood by letter dated July 29, 1997, that the TSSAA had found

Brentwood guilty of multiple violations of TSSAA rules. The letter informed Brentwood of various

penalties that would be assessed as a result of the rules violations. Brentwood requested a hearing

with Carter and members of the TSSAA Board of Control; a hearing was held on August 13, 1997,

at which Headmaster Brown and representatives of Brentwood made a presentation regarding the

allegations and determinations in the July 29 letter. Following the hearing, Carter again sent a letter

to Brown providing more specific information about the violations and penalties to be assessed

against Brentwood. Pursuant to the TSSAA Bylaws, Brentwood appealed the penalties to the full

Board of Control, which is charged with enforcing the TSSAA Bylaws. Another hearing was held

on August 23, 1997. In an August 23, 1997, letter that represented the final TSSAA decision on the

matter, the Board notified Brentwood that it had found that Brentwood, and specifically Flatt,

violated the recruiting rule in two ways: (1) by granting free admission to a Brentwood football

game to two eighth grade athletes from another school; and (2) by sending letters and making 2phone

calls to eighth grade boys at other schools regarding spring football practice at Brentwood. The

Board also cited Brentwood for conducting impermissible off-season practice with certain

Brentwood student-athletes, but this alleged rule violation is not an issue in this appeal. As a result

of these violations, the Board imposed numerous penalties, including a four-year probation for

Brentwood’s entire athletic program, suspension of playoff eligibility for the Brentwood football

and boys’ basketball teams, and a $3,000 fine.

B. Procedural History

Brentwood sued the TSSAA and Carter (in his official and individual capacities) on

December 12, 1997, alleging that the TSSAA violated the First and Fourteenth Amendments; the

Sherman Act, 15 U.S.C. §§ 1-2; and Tennessee law. On July 29, 1998, the district court found that

the TSSAA and Carter were state actors and granted summary judgment to Brentwood on its First

Amendment claim brought under 42 U.S.C. § 1983. See Brentwood Acad. v. Tenn. Secondary Sch.

Athletic Ass’n, 13 F. Supp. 2d 670 (M.D. Tenn. 1998). The TSSAA appealed that decision, and the

Sixth Circuit reversed, on the basis that the TSSAA is not a state actor and thus not subject to suit

under § 1983. See Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 180 F.3d 758 (6th Cir.

1999). The United States Supreme Court granted certiorari and reversed the Sixth Circuit, holding

that “the association’s regulatory activity may and should be treated as state action owing to the

pervasive entwinement of state school officials in the structure of the association.” Brentwood

Acad., 531 U.S. at 291.

On remand from the Supreme Court, this court considered the merits of the TSSAA’s appeal.

This court reversed the decision of the district court granting summary judgment to Brentwood and

remanded the case to the district court, holding that: (1) Brentwood did not waive its right to

challenge the recruiting rule by voluntarily joining the TSSAA; (2) the recruiting rule is not facially

overbroad; and (3) the district court erred by subjecting the recruiting rule to strict scrutiny, because

2

To be clear, the alleged violation of the recruiting rule was the invitation to attend football practice, not the

practice itself. It is undisputed that in 1997, participation by incoming Brentwood students in spring football practice

was permissible under TSSAA rules. The rule was subsequently changed to prohibit such participation.

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it is content-neutral. See Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 262 F.3d 543 (6th

Cir. 2001). This court remanded to the district court with instructions to: (1) determine whether the

TSSAA’s asserted substantial state interests for the recruiting rule were legitimate; (2) determine

whether the application of the rule to Brentwood was narrowly tailored to further the TSSAA’s

legitimate state interests; and (3) address Brentwood’s claims against Carter in his official and

individual capacities. Id. at 558.

After remand and prior to trial, on October 25, 2002, the district court granted partial

summary judgment to defendants on Brentwood’s antitrust claims, reasoning that since TSSAA is

an organization “pervasively entwined” with the state, it is entitled to antitrust immunity under

Parker v. Brown, 317 U.S. 341 (1943).

In December 2002, the district court held a bench trial and considered the issues addressed

by this court in its 2001 opinion, as well as Brentwood’s substantive due process, procedural due

process, equal protection, and Tennessee state law claims. The court issued a memorandum opinion

and order on January 13, 2003, finding: (1) for Brentwood on its First Amendment, substantive due

process, and procedural due process claims against the TSSAA; (2) for Brentwood on its procedural

due process claim against Carter in his individual capacity; and (3) for Carter with regard to

Brentwood’s First Amendment and substantive due process claims against Carter in his individual

capacity. See Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 304 F. Supp. 2d 981 (M.D.

Tenn. 2003). The court held that Carter was not entitled to qualified immunity on Brentwood’s

procedural due process claim but that he would be entitled to qualified immunity on Brentwood’s

First Amendment claim. The court declined to reach the equal protection or state law claims, and

it refused to award damages to Brentwood. As relief for Brentwood, the court enjoined the penalties

imposed by the TSSAA against Brentwood in 1997.

On February 10, 2003, the TSSAA and Carter appealed the January 13, 2003, order to this

court. On February 24, 2003, Brentwood cross-appealed, taking issue with: (1) the district court’s

October 2002 order granting partial summary judgment3 to defendants on the antitrust claims; and

(2) the relief provisions of the January 13, 2003, order.

II. Analysis of the Issues

This court reviews a district court’s findings of fact for clear error. See Waxman v. Luna,

881 F.2d 237, 240 (6th Cir. 1989). However, conclusions of law, questions of mixed law and fact,

and “findings of ultimate facts which result from the application of legal principles to subsidiary

factual determinations” are all subject to de novo review. Id. (citation and quotation marks omitted);

see Cordrey v. Euckert, 917 F.2d 1460, 1465 (6th Cir. 1990).

A. The TSSAA’s Reliance on Its Contractual Relationship with Its Members

Permeating the TSSAA’s arguments4 on both the First Amendment and due process issues

is its contention that rulings by the district court “ignored the constitutionally critical fact that the

relationship between TSSAA and [Brentwood] arose entirely from a membership contract that

[Brentwood] renewed each year.” In other words, according to the TSSAA, “[e]very argument of

3

Brentwood did not appeal the district court’s conclusions regarding Brentwood’s equal protection or state law

claims. Nor did it appeal the district court’s dismissal of Brentwood’s First Amendment and substantive due process

claims against Carter in his individual capacity.

4

For the sake of convenience and clarity, we refer to the defendants collectively as “TSSAA” throughout this

section of the opinion.

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[Brentwood] and every ruling by the District Court relies [sic] on the false premise that TSSAA is

the sovereign State exercising police power rather than a state actor that asks its members to honor

its voluntary contractual obligations.” Prior to undertaking analysis of the First Amendment claim,

we must address this argument as it relates to that claim.

There is a short answer to the TSSAA’s argument with regard to the First Amendment claim.

The answer is that it is inconsistent with the law of the case and this court’s 2001 opinion. In the

2001 opinion this court outlined the First Amendment analysis to be employed by the district court

on remand. See Brentwood Acad., 262 F.3d at 557-58. The underpinning of that analysis is that the

TSSAA’s role in this case is that of a governmental entity exercising regulatory authority and that

the recruiting rule must be considered a content-neutral rule subject to intermediate scrutiny. The

court noted with particularity that the recruiting rule was analogous to zoning ordinances and

limitations on noise, posting of signs, and distribution of religious literature that have been upheld

as reasonable time, place, and manner restrictions. Id. at 553-54. The panel in the 2001 decision

instructed the district court on remand to determine whether the recruiting rule is narrowly tailored

to meet TSSAA’s substantial interests. Id. at 558. It noted that this question could not be decided

in the abstract as a matter of law and contemplated that TSSAA would present evidence to justify

the need for its regulations. Id. The panel was quite clear in outlining the district court’s task on

remand.

The TSSAA’s reasoning invites us to stray from the 2001 panel’s road map and follow

another analytical route it deems more favorable to its position. In making its argument, it suggests

that two lines of First Amendment cases – unconstitutional conditions cases represented by cases

such as Board of County Commissioners v. Umbehr, 518 U.S. 668 (1996), and government

employee speech cases such as Pickering v. Board of Education, 391 U.S. 563 (1968) – provide the

correct analytical framework. Both lines of cases were mentioned by the panel in its 2001 opinion

but in a context different from that in which the TSSAA now urges that they apply.

One argument made by the TSSAA in 2001, bearing substantial resemblance to its present

position, was that Brentwood “waived its right to question the constitutionality of the recruiting rule

because, by voluntarily choosing to be a member of TSSAA, it has agreed to abide by the rules of

the organization.” Brentwood Acad., 262 F.3d at 549. This court rejected that argument, reasoning

that “the Supreme Court’s rulings that parties do not give up First Amendment rights by contracting

with, or being employed by, a public agency forecloses [sic] TSSAA’s argument that Brentwood

gave up its right to challenge the constitutionality of the recruiting rule because it voluntarily joined

TSSAA.” Id. at 550-51 (citing Umbehr and Pickering). While Umbehr and Pickering may have

given guidance in disposing of the waiver argument, the 2001 opinion in no way indicates that they

govern the analysis on remand as to whether the TSSAA’s application of the recruiting rule to

Brentwood violated its First Amendment rights.

Our agreement or disagreement with the 2001 panel decision is not at issue here. We have

no authority to overturn a prior published decision of this court, see Darrah v. City of Oak Park, 255

F.3d 301, 309 (6th Cir. 2001), and, moreover, that decision is the law of the case, see Scott v.

Churchill, 377 F.3d 565, 569-70 (6th Cir. 2004). While courts have some discretion in following

the law of the case doctrine, see id. at 570, this protracted and contentious litigation presents a

compelling situation for its application. In order to maintain the integrity of the judicial process, an

appellate court cannot change its mind as to the proper analysis after it has remanded a case for trial

and the district court has tried it, giving its best effort to adhere faithfully to the appellate court

instructions. We should properly review the district court’s decision, but we cannot change the rules

after the fact. See United States v. Campbell, 168 F.3d 263, 265 (6th Cir. 1999) (“Determinations

of the court of appeals of issues of law are binding on both the district court on remand and the court

of appeals upon subsequent appeal.”). This stance properly defers to the precedent set by the prior

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panel and recognizes that 5the parties and the district court must be able to rely on this court’s prior

rulings in trying the case.

While this court’s 2001 ruling provides the definitive answer to the First Amendment

argument based on the TSSAA’s contractual relationship with its members, we note also that clear

problems exist with the manner in which the TSSAA seeks to apply the “unconstitutional

conditions” doctrine. The TSSAA relies on Umbehr to argue that the “unconstitutional conditions

doctrine specifically allows a state agency to impose conditions, even on fundamental rights like free

speech, when those conditions are reasonably necessary to accomplish the objectives of the

contract.” This is not an accurate reading of Umbehr, which held that the First Amendment limits

the government’s ability to terminate relationships with independent contractors because of their

speech. See 518 U.S. at 673-74. Moreover, Umbehr, in which the Court addressed only the narrow

issue of “whether, and to what extent, independent contractors [with the government] are protected

by the First Amendment,” id. at 673, is not a precisely apposite precedent anyway. See also id. at

685 (emphasizing the “limited nature of our decision today”). The present case does not involve the

government as a party in a contractual relationship with an independent contractor, cf. id. at 678-79.

Similarly, there are obvious differences between the TSSAA’s role in this case and the

government’s role as employer, cf. Pickering, 391 U.S. at 574. The TSSAA’s reliance on the

argument that Brentwood’s speech is not a matter of public concern is thus misplaced. The

requirement that speech relate to a matter of public concern in order to be protected emanates from

the government employee cases in which employee speech is limited in many respects by virtue of

the employer-employee relationship. See id. at 568 (“The problem in any case is to arrive at a

balance between the interests of the teacher, as a citizen, in commenting upon matters of public

concern and the interest of the State, as an employer, in promoting the efficiency of the public

services it performs through its employees.”). The public concern requirement is not a part of the

intermediate scrutiny given to a content-neutral restriction on speech. The 2001 decision of this

court, in discussing the waiver issue, described the way in which public interests were to be taken

into account on remand. In that decision, this court observed that substantial government interests,

which the TSSAA would have to establish, were of necessity matters of public concern. Brentwood

Acad., 262 F.3d at 551. In making this observation, it placed the public interests concept in its

proper place in the framework adopted later in the opinion – on the governmental interest in

promulgating the rule, not on the question of whether Brentwood’s speech related to a matter of

public concern. See id. at 557-58.

A couple of nuances in the TSSAA’s argument deserve mention. The TSSAA urges the

applicability of its preferred analysis by differentiating between the government’s “sovereign power”

and its “contractual power.” In doing so, it makes much of the dicta in Umbehr discussing the

difference between the government’s “sovereign power” and its “contractual power.” See 518 U.S.

at 678. Reading Umbehr too broadly, it asserts that Umbehr extended the Pickering “public

concern” framework to “any case where the government is exercising contractual power as opposed

to sovereign power.” Again, the applicability of the First Amendment to the TSSAA’s regulatory

conduct does not hinge on whether there was a contract or not. Even if such a distinction between

contractual and sovereign power were applicable in any meaningful way to the present case, the

Court’s conclusion in Umbehr – that some scrutiny more deferential than strict scrutiny should apply

5

It is interesting to note that the TSSAA, in its first appeal to this court, challenged the “analytical framework

that the district court used” in its initial decision. Brentwood Acad., 262 F.3d at 551. We agreed with the TSSAA the

last time around, holding that “the district court erred in concluding that the recruiting rule is a content-based regulation

that fails strict scrutiny review” and that, rather, the recruiting rule is content-neutral and subject to intermediate scrutiny.

Id. at 551-53. In this appeal, however, we cannot agree with the TSSAA’s challenge to the analytical framework

governing the case and set out by this court previously.

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when the government exercises contractual power – does not suggest that the First Amendment does

not apply to the TSSAA’s enforcement of its recruiting rule. See id. In fact, Umbehr suggests that

the approach this court took in its previous opinion was the right one: that the First Amendment does

apply to the rule, and intermediate scrutiny is the standard to which the rule should be subjected.

See Brentwood Acad., 262 F.3d at 551-54; see also Umbehr, 518 U.S. at 678 (“The tests that we

have established in our government employment cases must be judicially administered with

sensitivity to governmental needs, but First Amendment rights must not be neglected.”).

A second nuance relates to the TSSAA’s efforts to cast the present case as a “subsidy” case,

where the government has considerable autonomy over how a government program is administered.

This characterization is similarly futile. The defendants state in their brief that “TSSAA

membership is a subsidy” and that under Rust v. Sullivan, 500 U.S. 173 (1991), the government

acting as a contractor in a subsidy context “must be able to require the contracting party to limit its

speech when reasonably necessary to effectuate the purposes of the contract.” Tellingly, the

defendants cite to no page in the Rust opinion that supports this reading of the case; there is none.

Rust involved a government funding program involving disbursements to doctors to advise patients

on family planning topics. One condition of the program was that no funds could be used in

programs where abortion was presented as a method of family planning. The Court upheld the

program, reasoning that Congress had “merely chosen to fund one activity to the exclusion of the

other.” Id. at 193. In later First Amendment jurisprudence, the Court “explained Rust on th[e]

understanding” that the government in that case was itself engaging in speech and could thus make

viewpoint-based funding decisions. See Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 541 (2001);

see also United States v. Am. Library Ass’n, 539 U.S. 194, 211-12 (2003) (plurality opinion) (citing

Rust in upholding the government’s requirement that libraries receiving federal subsidies utilize

filtering software). Clearly, the TSSAA’s enforcement of the recruiting rule is not a funding

program. Nor does it represent government speech. Cases like Rust do not govern the present case.

Thus, as the 2001 panel determined, the appropriate characterization of the TSSAA’s role

is as a government regulator, a context to which the First Amendment surely applies. See, e.g.,

Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 834-35 (1995); Forsyth County

v. Nationalist Movement, 505 U.S. 123, 130-31 (1992); see also Brentwood Acad., 531 U.S. at 291

(holding that the association’s “regulatory activity” is state action, even though “[n]o school is

forced to join” the TSSAA) (emphasis added); id. at 292-93 (noting that the Tennessee State Board

of Education designated the TSSAA as “the organization to supervise and regulate [interscholastic]

athletic activities” in Tennessee, and that the present case was triggered by a “regulatory

enforcement proceeding”) (emphasis added). The applicability of the First Amendment to regulation

of speech by the government in this context does not vary depending on whether the speech relates

to a matter of public concern or whether the relationship between the government and the speaker

is voluntary or contractual. For example, when the government regulates how and when citizens

can enter into voluntary contractual relationships with the government that regulate certain speech

by those citizens, the government’s licensing or regulatory scheme must meet constitutional

standards, regardless of whether the speech at issue involves a matter of public concern. See Forsyth

County, 505 U.S. at 129-31; Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 552-53 (1975).

The same goes for the TSSAA’s application of its recruiting rule.

We thus reject the defendants’ attempt to reshape the framework through which we view this

case - a framework set out by this court previously and utilized by the district court in trying the

case. The TSSAA, in administering its rules and regulations and imposing penalties against member

schools, acts as a regulator, not as an employer, contractor, or disburser of funds. Therefore, as this

court has previously concluded, Brentwood’s First Amendment rights are at issue in this case, and

intermediate scrutiny applies to the TSSAA’s application and enforcement of the recruiting rule.

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The dissenting opinion accepts the TSSAA’s invitation to revisit previously rejected

arguments and to recharacterize them as new ones. In fact, it even goes beyond the TSSAA’s

arguments and suggests that no First Amendment rights are implicated here.

The opening sentences of the dissenting opinion are conceptually attractive when first read.

They are: “High school football is a game. Games have rules.” Of course, games have rules. And

so do cases. Here, the rule is called “law of the case.” The dissent correctly notes that this dispute

hardly evokes our notions of the core values of the First Amendment; the same could doubtless be

said of other examples of First Amendment jurisprudence. But, in this case, the time for appellate

court observation of any lack of a First Amendment issue was long ago.

In recycling the TSSAA’s waiver argument, the dissent characterizes the 2001 panel decision

as dealing with a broad issue of whether Brentwood had waived its right to sue entirely. The

problem with this interpretation is that in 2001 Brentwood had sued and had challenged the same

rule at issue in this appeal. The panel was discussing waiver in this context, and the clear import

of its decision is that Brentwood had not waived or given up its right to challenge the rule at issue

here by entering into a contract with the TSSAA.

Another difficulty with the dissent’s waiver theory is that it is implicitly based on the content

of the contract. Yet the contract here contains no provision that assists in the analysis. Brentwood

does agree to be bound by the rules. If the TSSAA were not a state actor, that would be the end of

the story. Since the TSSAA is a state actor, the contract gives no guidance as to whether Brentwood

waived a right to challenge a rule it considered unconstitutional. The contract’s silence thus

becomes evidence of an absence of waiver of constitutional rights. The silence provides no basis

for differentiating between a waiver of some rights and not others.

B. Application of the Recruiting Rule to Brentwood

Turning to the analysis of the First Amendment issue, we consider whether the TSSAA’s

application of the recruiting rule to Brentwood violates the First Amendment. In the 2001 opinion,

the court laid out the intermediate scrutiny analysis that applies to content-neutral regulations:

[A] regulation of the time, place, or manner of protected speech must be narrowly

tailored to serve the government’s legitimate, content-neutral interests but . . . it need

not be the least restrictive or least intrusive means of doing so. Rather, the

requirement of narrow tailoring is satisfied so long as the regulation promotes a

substantial government interest that would be achieved less effectively absent the

regulation . . . . The validity of time, place, or manner regulations does not turn on

a judge's agreement with the responsible decisionmaker concerning the most

appropriate method for promoting significant government interests or the degree to

which those interests should be promoted.

Brentwood Acad., 262 F.3d at 557 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 798-800

(1989) (internal quotations, citations, footnotes, and alterations omitted)). The TSSAA has asserted

three interests as justification for the recruiting rule: (1) to keep high school athletics in their proper

place subordinate to academics; (2) to protect student athletes from exploitation; and (3) to foster

a level playing field among the various member schools. See id. In its previous opinion, this court

recognized the first interest as legitimate and substantial. See id. at 557-58 (citing Crocker v. Tenn.

Secondary Sch. Athletic Ass’n, 980 F.2d 382, 386-87 (6th Cir. 1992)). This court remanded to the

district court to determine whether the TSSAA’s other two asserted substantial state interests for the

recruiting rule were legitimate. Id. at 558.

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The district court held that the TSSAA has a substantial governmental interest in protecting

student athletes from exploitation. While it also held that the TSSAA’s interest in fostering a “level

playing field” was a legitimate governmental interest, it found that this interest was not substantial,

especially considering that “[t]he substantial governmental interest in informed school choice trumps

any governmental interest in controlling which schools or teams win athletic contests.” Unlike

rational basis review, intermediate scrutiny does not allow a court to supplant the particular interests

put forward by the state with other suppositions. See Edenfield v. Fane, 507 U.S. 761, 768 (1993).

In determining whether an interest is substantial, a court must look beyond “hypothesized

justifications,” Thompson v. W. States Med. Ctr., 535 U.S. 357, 373-74 (2002), and focus instead

on the “actual interests served by the restriction.” Edenfield, 507 U.S. at 768.6

The district court’s conclusions regarding the TSSAA’s interests, which we review de novo,

were not erroneous. With regard to the asserted interest of protecting student athletes against

exploitation, the TSSAA presented voluminous evidence at trial, primarily via expert witness

testimony, in support of its argument that this interest is a substantial one. Carter testified that the

“fundamental” reason for the recruiting rule was preventing exploitation. One of Brentwood’s

expert witnesses even testified that preventing the exploitation of student athletes, defined as the

“selfish, unjust utilization of students for a school’s benefit rather than for the benefit of the

individual student,” was a compelling state interest. At one point in its brief, Brentwood seems to

suggest that evidence such as written legislative history or testimony from the initial drafters of the

recruiting rule is necessary to prove that preventing exploitation of students was one of TSSAA’s

“actual” interests in applying the rule to Brentwood.7 For the purposes of the first prong of the

intermediate scrutiny test, it is only necessary to establish that the actual interest exists and is

substantial, and this can be done without resort to such primary sources. While there is no known

written legislative history for the recruiting rule and all of the initial drafters of the rule are dead, the

evidence, especially Carter’s testimony under oath, suggests that preventing the exploitation of

middle school student athletes is a substantial state interest and was one of the TSSAA’s “actual”

interests in applying the rule to Brentwood. See City of Erie v. Pap’s A.M., 529 U.S. 277, 312

(2000) (Souter, J., concurring in part and dissenting in part) (quoting Turner Broad. Sys. v. FCC,

512 U.S. 622, 664 (1994) (plurality opinion)) (noting that the state can regulate speech to further an

interest in preventing reasonably “anticipated harm,” as long as the harm is real); see also Knight

Foundation Commission on Intercollegiate Athletics, A Call to Action: Reconnecting College Sports

and Higher Education 20-21 (2001) (noting that “[h]igh school sports today can reflect the worst

of their collegiate counterparts” in terms of exploitative commercial influences, pervasive recruiting

efforts, and academic compromises for student athletes focused only on a professional athletic

career); cf. Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 462 (1978) (holding that the state has an

important interest in preventing solicitation by lawyers that involves undue influence, intimidation,

overreaching, and other forms of “vexatious conduct”).

The TSSAA also introduced evidence that supports its contention that fostering a level

playing field among member schools is a legitimate state interest. Specifically, its experts and

6

Edenfield and Thompson are commercial speech cases, but the test they apply, just like the test applicable here,

asks the court to determine whether the asserted state interests are substantial. See Cent. Hudson Gas & Elec. Corp. v.

Pub. Serv. Comm’n, 447 U.S. 557, 564 (1980).

7

Mostly, however, Brentwood conflates the “substantial interest” prong of the intermediate scrutiny test with

the “narrowly tailored” prong, conceding later in its brief that the “TSSAA has a substantial interest in preventing

exploitation of students,” defined as “a student...being threatened, coerced, or harassed.” Brentwood’s argument that

there are “problems with this theory...as a justification for TSSAA’s disciplinary action” against Brentwood is evaluated

in the next section of this opinion, since this is an argument that the application of the rule was not “narrowly tailored”

to further Brentwood’s legitimate and substantial interests.

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Brentwood’s own Headmaster Brown testified that the recruiting prohibition helps level the playing

field among schools, especially as between private schools with significant resources and public

schools with more limited resources and access to potential students. Carter testified at length about

how the recruiting rule preserves competitive equity among schools, explaining that without the rule,

“the rich would get rich real quick, and the poor would get poor real quick.” There is very little, if

any, evidence, however, explaining why competitive equity is an important value in the first place.

It may be true, as defendants claim in their brief, that “maintenance of fair competition among [the

TSSAA’s] members lies at the core of [the TSSAA’s] reason for being,” but simply saying this is

so does nothing to demonstrate why such a “reason for being” is a substantial state interest. State

actors may act out of a variety of interests, but only some are substantial. The defendants can cite

to no evidence to support the notion that ensuring that high schools compete in interscholastic sports

in an equitable manner is a substantial state interest, especially when coupled with the admittedly

substantial interest of ensuring that athletics do not become more important than academics at the8

high school level. The district court was right that this interest, while legitimate, is not substantial.

Having established that the TSSAA has substantial state interests in keeping athletics

subordinate to academics and preventing the exploitation of student athletes, the next question in

the analysis, as set out in this court’s previous opinion on the matter, is whether the recruiting rule,

“as applied to Brentwood,” is narrowly tailored to further those interests. See Brentwood Acad., 262

F.3d at 557; see also Turner Broad. Sys., 512 U.S. at 664 (plurality opinion) (“That the

Government’s asserted interests are important in the abstract does not mean...that the [speech

regulation] will in fact advance those interests.”). Specifically, the district court’s task was

to decide if the punishment exacted for these alleged violations relating to the free

game tickets, spring football-practice letters, and the followup telephone calls was

appropriate regulatory action narrowly tailored to further TSSAA’s legitimate

interests as a state actor....In proceeding with this case on remand, we caution both

the parties and the district court to stay focused on the two alleged recruiting rule

violations in question, rather than engage in a wide-ranging attack or defense of the

recruiting rule as a whole.9

Brentwood Acad., 262 F.3d at 558. This court also noted in its previous opinion that the application

of the recruiting rule must not “‘unreasonably limit alternative avenues of communication.’” Id. at

554 (quoting City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47 (1986)). On remand, the

8

Despite our conclusion that the district court correctly found that the TSSAA had established substantial state

interests in keeping athletics subordinate to academics and preventing the exploitation of student athletes, the dissent

devotes considerable attention to a discussion of the type of proof a defendant might have to present to support such

interests. The two opinions do not differ on the ultimate point, that is, the TSSAA did have substantial state interests

at stake. The true point of departure is whether the rule “as applied to Brentwood” is narrowly tailored to further those

interests. See Brentwood Academy, 262 F.3d at 557.

9

The “two alleged recruiting rule violations” referred to here are: (1) the free game tickets and (2) the spring

practice letters and followup calls. See Brentwood Acad., 262 F.3d at 548. While this court’s previous opinion

considered both of these rule violations as bases for Brentwood’s First Amendment claim, neither the initial district court

opinion nor the opinion being appealed here applied First Amendment scrutiny to the application of the recruiting rule

to the free game tickets episode. In both opinions, the district court considered only whether the application of the rule

to the letters and phone calls was constitutional. Defendants state in their brief that “[o]nly the spring practice letters

and phone calls formed the basis of [Brentwood]’s First Amendment claim.”

The disconnect between this court’s previous opinion and the district court’s opinions on this point is likely due

to the fact that, judging from its brief, Brentwood has focused its First Amendment claim on the punishment for the

letters and calls, recognizing, perhaps, that it is unclear whether the First Amendment is implicated by the provision of

free game tickets. Regardless, we confine our “narrowly tailored” inquiry to the letters and calls, leaving the free tickets

episode to be considered under substantive due process analysis.

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district court held that the recruiting rule “is not narrowly tailored to further any of the three

governmental interests of the TSSAA as applied to Brentwood Academy.”10

Reviewing de novo, we affirm this conclusion. The defendants import a definition of

“enrolled” from a separate provision in the TSSAA Bylaws to support their argument that the

students contacted by the letters and calls were not truly enrolled at Brentwood and that Brentwood

therefore violated the recruiting rule by contacting them. Putting aside the fact that the Bylaw

provision upon which defendants rely seems to apply not to practices or recruiting but rather only

to eligibility to participate in athletic contests, the defendants’ contention that the students at issue

were not enrolled misses the point. Considering that the interpretive commentary to the recruiting

rule is not binding and serves only as a guideline, the TSSAA’s use of its discretion to punish

Brentwood for the letters and calls was not a narrowly tailored way to keep athletics subordinate to

academics11at Brentwood or ensure that the student athletes being contacted were not being

exploited.

First, surely, however one defines “exploitation,” this interest was not furthered by punishing

Brentwood. As the district court pointed out, the students contacted by the letter and calls had

already signed enrollment contracts with Brentwood Academy, and the letter and calls were directed

to all male students who had done so. In fact, Brentwood did not send the letter to one male student

who had been accepted by Brentwood but had not yet signed an enrollment contract. Indeed, the

students contacted had all agreed, and by all accounts were excited, to attend Brentwood the

following year. Additionally, it is clear that the followup phone calls were made to clarify for the

students involved that the practice was optional and should not preclude any other commitments

they might have. The district court was right that “[n]either students nor parents were exploited in

theory or in fact.”

With regard to the former interest (keeping athletics subordinate to academics), it is a closer

call, but the TSSAA’s use of the regulation to punish Brentwood seems to “burden substantially

more speech than is necessary to further the government’s legitimate interest[]” in keeping athletics

subordinate to academics. See Ward, 491 U.S. at 799; see also United States v. O’Brien, 391 U.S.

367, 377 (1968) (holding that content-neutral regulations will be sustained only “if the incidental

restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance

of that interest”). The TSSAA must demonstrate that in this situation “the recited harms [were] real,

not merely conjectual, and that the regulation [would have] in fact alleviate[d] these harms in a

direct and material way.” Turner Broad. Sys., 512 U.S. at 664. They did not demonstrate this at

trial. The district court obviously found the testimony of the parents of the boys in question to be

more significant and persuasive than evidence from experts indicating that the letters and calls might

– in theory – signal an emphasis on athletics over academics. The parents indicated they were glad

to get the letter, and they did not at all think the implication of the letter was that Brentwood

subordinated athletics to academics.

If the letters and calls were the first or only pieces of information the students or their

families had ever received about Brentwood or would receive before arriving at the school, then an

argument could be made that the school was unduly emphasizing athletics over academics. This was

10

Even though the district court found that fostering a level playing field was not a substantial state interest,

it nonetheless included the interest in its “narrowly tailored” analysis.

11

It is worth noting again that the district court’s task was to consider the application of the recruiting rule

specifically to Brentwood on these facts. The district court’s opinion does not mean that application of the recruiting

rule to other schools communicating in similar ways to students would be unconstitutional. For example, it is possible

that letters and calls similar to the ones at issue here would be exploitative in a different context.

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not the case. Each of the families of the children in question had already signed enrollment contracts

with Brentwood. The information about spring football practice was simply information being

provided to incoming students about an extracurricular activity available 12 to them – an activity in

which incoming students were allowed to participate under TSSAA rules. Incoming students at

Brentwood received a variety of information about a multitude of topics and activities, including

academics at the school, and the letters and calls should be seen in this context.13

Even if the students could (and sometimes did) “wiggle out” of their contracts with

Brentwood, this did not mean that Brentwood should be punished for disseminating information

about an optional activity for incoming Brentwood students. In fact, defendants’ argument that the

students in question were not technically enrolled and could have still decided to attend another

school might even weigh in Brentwood’s favor, in that the letters and calls could be seen as part of

an ongoing attempt to make sure the incoming students were informed about what Brentwood had

to offer. That these particular communications emphasized athletics does not mean that punishing

Brentwood for the communications served the TSSAA’s interest in keeping athletics subordinate

to academics. In this context, the harm the TSSAA sought to prevent was “conjectual,” not “real,”

or at least not based on the evidence in the record. See id. Put another way, it is not clear that the

TSSAA’s substantial interest in subordinating athletics to academics was achieved any more

effectively by punishing Brentwood for Flatt’s letters and calls than it would have been had no

punishment been handed down. Cf. Ward, 491 U.S. at 798-801, 800 n.7 (holding that a sound-

amplification guideline that eliminated the evils the city sought to eradicate without restricting a

substantial quantity of speech represented “the essence of narrow tailoring,” because it was not

“substantially broader than necessary to achieve the interests justifying it”); Members of the City

Council v. Taxpayers for Vincent, 466 U.S. 789, 810 (1984) (upholding a time/place/manner

regulation because it “respond[ed] precisely to the substantive problem which legitimately concerns

the City”).

12

That the rule was subsequently changed to prevent such participation in spring practice bolsters the

conclusion that the TSSAA’s punishment of Brentwood in this case was not narrowly tailored. Banning spring practice

participation, rather than applying the recruiting rule punitively to Brentwood’s invitation to participate in the approved

activity, would have been a more narrowly tailored way to promote the TSSAA’s substantial interests. See Thompson,

535 U.S. at 373 (“[R]egulating speech must be a last – not first – resort. Yet here it seems to have been the first strategy

the Government thought to try.”).

13

Headmaster Brown testified:

[A]s far as enrollment, we had to deal with our kids to get them acclimated to the school before they came. It

would be – there’s no way that they could start with no contact from the school before. I mean that’s part of

what all schools do. I mean they have got to get reading lists, got to know about the picnics, got to know about

the options in the summer retreat, work options, and all of that so we have to communicate with them.

Admissions Director Brasher noted that admission is generally granted in November or February of the previous school

year, and after a student is admitted and signs the enrollment contract, the student receives a packet of information,

including a letter from the admission director, the student-parent agreement, and the handbook for Brentwood Academy

with policies and procedures. Also, once an enrollment contract is signed, that student’s family is put on the school’s

general mailing list, and they receive all the information that is sent to current students. Brasher provided more details:

We have a mailing that goes out usually about the end of May that will include reading list, letters from the

English teachers, information about our summer session which includes summer school, computer camps,

drama camps, athletic camp, driver’s ed. We have arts in April, it’s a big fine arts venue in April and we send

them information on that.

Brasher also noted that there are some mailings that are targeted to particular groups of students, such as a letter about

cheerleading tryouts that is sent only to girls.

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To justify its regulation on Brentwood’s speech, the TSSAA cannot rely on “shoddy data or

reasoning”; rather, its evidence must “fairly support [its] rationale” for the application of the

recruiting rule to the letters and calls. See City of L.A. v. Alameda Books, Inc., 535 U.S. 425, 438

(2002). Carter himself seemed to doubt that one could actually measure whether such letters and

calls would emphasize athletics over academics or exploit the children:

Well, I think, first of all, you can’t measure – you can’t measure it on the effect that it had

on those kids or any other circumstance that would occur. If [exploitation] occurs, then it’s

very difficult to imagine what impact it has on or to figure out what impact – I very seldom

have seen kids in those situations that think it’s had any impact on them. But it’s very hard

to turn around and determine that.

Carter’s instinct was accurate, since despite evidence by numerous parents, school officials, and

experts at trial, there was no evidence to show that the punishment of Brentwood was justified due

to the effect of Brentwood’s actions on the children or the relative standing of academics and

athletics at the school. In sum, the TSSAA did not show that the application of the14

recruiting rule

to Brentwood was narrowly tailored to serve the TSSAA’s substantial interests. Reviewing de

novo, we affirm the holding by the district court on this issue.15

14

This court’s previous opinion supports this conclusion. In determining that the recruiting rule is content-

neutral, rather than content-based, this court pointed out that the recruiting rule does not impose a “total ban...on

communications between secondary schools and middle school athletes regarding high school athletics.” Brentwood

Acad., 262 F.3d at 551-52. According to the court’s opinion, the greatest restriction imposed by the rule is the

“prohibition on coaches...from initiating contact with middle school students for the purpose of recruiting student

athletes.” Id. at 552 (emphasis added). The rule allows “numerous ways in which Brentwood can get its message about

athletics out to prospective students,” as evidenced by the letter written by Brentwood’s lawyer to the TSSAA in 1993

detailing Brentwood’s understanding of various acceptable modes of communication. Id. On remand, the district court

determined that applying the rule to the letters and calls was unconstitutional, since the application of the rule to the

letters and calls was not narrowly tailored to further the TSSAA’s substantial interests. Under the terms of this court’s

previous opinion, one could also read the district court opinion as a suggestion that the communications either were not

made for the purpose of recruiting student athletes, or fell under the category of acceptable modes of communication

under the recruiting rule, or both.

15

The dissenting opinion’s approach to this aspect of the case departs from a record-based analysis of whether

the application of the recruiting rule to Brentwood was narrowly tailored to serve the TSSAA’s substantial interests.

In doing so, it neglects consideration of the evidentiary record, a process that an as-applied challenge necessarily entails,

and substitutes theoretical analogies between recruiting rules and restrictions on adult-oriented businesses. While the

dissent’s approach might be appropriate in cases involving facial challenges to a regulation, such as Renton and Ward,

on which the dissent heavily relies, it is inconsistent with the proper analysis for an as-applied challenge. See Taxpayers

for Vincent, 466 U.S. at 796, 803 (distinguishing between a facial challenge and an as-applied challenge and concluding,

after determining that the appellee could not establish that the law is “unconstitutional in every conceivable application,

or...seeks to prohibit such a broad range of protected conduct that it is unconstitutionally ‘overbroad,’” that the challenge

was “basically a challenge to the ordinance as applied to [the appellee’s] activities,” and therefore “limit[ed] [the Court’s]

analysis of the constitutionality of the ordinance to the concrete case before [it]”); cf. Broadrick v. Oklahoma, 413 U.S.

601, 612 (1973) (noting that litigants bring a facial challenge where they attack “a statute not because their own rights

of free expression are violated, but because...the statute’s very existence may cause others not before the court to refrain

from constitutionally protected speech”).

The dissenting opinion’s only arguable reference to the trial court record on the issue of whether application

of the rule to Brentwood was narrowly tailored to serve the TSSAA’s substantial interests is its suggestion that the rule

permitted Brentwood to distribute its letters to private athletic leagues and other schools and permitted Brentwood

coaching staff to refer potential students who contacted them to other Brentwood officials. The dissent deems these

options alternative channels for communication. While these options are presumably permissible (but not mentioned

in the evidence), they are hardly viable alternatives for achieving Brentwood’s purpose and communicating the

information contained in the letters to incoming students. The dissent’s noting of these options is another way of saying

that the recruiting rule did not prohibit Brentwood from advertising its sports and other offerings to the world at large

through any available public medium, but that fact has little if anything to do with whether the recruiting rule as applied

to Brentwood was narrowly tailored to serve the TSSAA’s substantial interests.

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C. Free Tickets as a Substantive Due Process Violation

The district court also held that the application of the recruiting rule to Brentwood violated

the school’s substantive due process rights with regard to the free tickets used by two students to

attend a Brentwood football game. After citing authority indicating that the doctrine of substantive

due process means that “governmental deprivations of life, liberty or property are subject to

limitations regardless of the adequacy of the procedures employed,” see Pearson v. City of Grand

Blanc, 961 F.2d 1211, 1216 (6th Cir. 1992) (internal quotation marks and citation omitted), the

district court centered its substantive due process analysis on the notion that

[a]s applied, the Recruiting Rule did not give Brentwood Academy constitutionally adequate

notice that providing tickets to another coach, who secretly disregards express instructions

to use the tickets only for adults, will constitute a violation. The Recruiting Rule is

unconstitutionally vague as applied to Brentwood Academy on the facts of this case.

The court went on to explain that “the Recruiting Rule did not give...Brentwood Academy[] a

reasonable opportunity to know what was prohibited with regard to complimentary tickets so that

it could act accordingly.”

When the vagueness argument was formulated as a First Amendment challenge, this court

repudiated it. See Brentwood Acad., 262 F.3d at 557 (“As a whole, the [recruiting] rule gives

reasonable notice of what is prohibited, especially as applied to Brentwood.”). Essentially, the

district court has now recast its previous holding striking down the recruiting rule as overbroad and

vague (a holding that was reversed) as a determination that Brentwood’s substantive due process

rights were violated. See Brentwood Acad., 13 F. Supp. 2d at 693. Yet, if the substantive due

process claim is characterized as a vagueness challenge,16 then for the reasons set out in this court’s

previous opinion, the claim fails. See Brentwood Acad., 262 F.3d at 555-57; see also Grayned v.

City of Rockford, 408 U.S. 104, 112 (1972) (upholding an anti-noise ordinance against a vagueness

challenge because it clearly “delineates its reach in words of common understanding”) (internal

quotation marks and citation omitted). If the substantive due process claim instead rests on an

argument that the TSSAA’s application of the recruiting rule infringed17some fundamental

constitutional right, the claim fails because no such right is implicated here, and the TSSAA’s

action was thus subject only to rational basis scrutiny. See Williamson v. Lee Optical of Okla., Inc.,

348 U.S. 483, 488 (1955). Lastly, if the substantive due process claim rests, as the district court

seems to intimate at one point, on an allegation that the TSSAA acted arbitrarily or capriciously to

deprive Brentwood of a property or liberty interest, it still fails, at least as a substantive due process

claim. Brentwood could not reasonably allege that the defendants perpetrated an “egregious abuse

of governmental power” sufficient to give rise to a substantive due process claim, because there is

no evidence to suggest that the defendants “maliciously and intentionally abused [their] state

authority in order to injure” Brentwood. See Vinson v. Campbell County Fiscal Court, 820 F.2d

194, 201 (6th Cir. 1987). Indeed, such a claim of a deprivation of a property or liberty interest, at

16

Brentwood’s initial complaint lumps together a number of justifications for its claim that TSSAA violated

its substantive due process rights. For instance, Brentwood claims that the recruiting rule infringed on liberty interests

of students and parents to choose their schools, the recruiting rule is too vague, and the rule is fundamentally unfair in

that Brentwood was punished for actions of a person beyond its control. The third argument is better analyzed as a

procedural due process claim and is considered infra. Cf. County of Sacramento v. Lewis, 523 U.S. 833, 840 (1998)

(holding that substantive due process precludes certain government actions “regardless of the fairness of the procedures

used to implement them”) (citation omitted).

17

The fundamental right to educate one’s own children, see Pierce v. Soc’y of Sisters, 268 U.S. 510, 534-35

(1925), is not at issue, especially since the regulation and penalties were applied only against Brentwood, not against

the parents of the children involved.

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least outside of the zoning context, see Pearson, 961 F.2d at 1217, is more appropriately

characterized as a procedural due process claim, which is considered infra. For all of these reasons,

the district court erred in concluding that the application of the recruiting rule to penalize Brentwood

for the free game tickets episode violated Brentwood’s substantive due process rights. We reverse

the district court on this issue.

D. Procedural Due Process Claim

The district court also found that Brentwood’s procedural due process rights were violated.

The Fourteenth Amendment provides, in part, that “[n]o State shall . . . deprive any person of life,

liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. Procedural due

process generally requires that the state provide a person with notice and an opportunity to be heard

before depriving that person of a property or liberty interest. See, e.g., Thompson v. Ashe, 250 F.3d

399, 407 (6th Cir. 2001) (“Courts have long recognized that the Fourteenth Amendment requires that

an individual who is deprived of an interest in liberty or property be given notice and a hearing.”).

Only after a plaintiff has met the burden of demonstrating that he possessed a protected property or

liberty interest and was deprived of that interest will the court consider whether the process provided

the plaintiff in conjunction with the deprivation, or lack thereof, violated his rights to due process.

Hamilton v. Myers, 281 F.3d 520, 529 (6th Cir. 2002).

The first issue is whether Brentwood was deprived of a property interest. Clearly, at a

minimum, fining Brentwood $3,000 deprived Brentwood of a property interest. See Herrada v. City

of Detroit, 275 F.3d 553, 556 (6th Cir. 2001). The panel need not decide whether potential lost

revenues due to the ban from playoff participation also qualify as a property interest.

The second step in the procedural due process analysis is determining whether the TSSAA’s

deprivation of Brentwood’s property interest contravened notions of due process. Under circuit

precedent, a § 1983 plaintiff can prevail on a procedural due process claim by demonstrating that

the property deprivation resulted from either: (1) an “established state procedure that itself violates

due process rights,” or (2) a “random and unauthorized act” causing a loss for which available state

remedies would not adequately compensate the plaintiff. Macene v. MJW, Inc., 951 F.2d 700, 706

(6th Cir. 1991). A plaintiff alleging the first element of this test would not need to demonstrate the

inadequacy of state remedies. Moore v. Bd. of Educ. of Johnson City Sch., 134 F.3d 781, 785 (6th

Cir. 1998). If the plaintiff pursues the second line of argument, he must navigate the rule of Parratt

v. Taylor, 451 U.S. 527, 539 (1981), which holds that a state may satisfy procedural due process

with only an adequate postdeprivation procedure when the state action was “random and

unauthorized.” See Macene, 951 F.2d at 706. In Zinermon v. Burch, 494 U.S. 113, 128-29 (1990),

the Supreme Court narrowed the Parratt rule to apply only to those situations where predeprivation

process would have been impossible or impractical. In this context, an “unauthorized” state action

means that the official in question did not have the power or authority to effect the deprivation, not

that the act was contrary to law. See id. at 138.

Whether seen as an attack on an established state procedure or as an attack on a “random

and unauthorized” act, Brentwood’s claim is not subject to the Parratt rule, as it clearly was not

“impossible” for the TSSAA to grant a predeprivation hearing18 to Brentwood on these facts. See

18

The district court stated that Brentwood was deprived of its property interests immediately upon issuance of

the July 29, 1997, letter, simply because the letter itself said the penalties were effective immediately. See Brentwood

Acad., 304 F. Supp. 2d at 1005. The hearings held after this date, the court reasoned, were therefore postdeprivation

hearings, which under certain Supreme Court precedent, must be more extensive and thorough than predeprivation

hearings. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 545 (1985). This conclusion by the district court

seems wrong, as Brentwood did not pay the $3,000 fine, and it appealed the July 29, 1997, decision precisely so it would

not have to pay the fine or be subject to any other penalty. Brentwood had thus not been “deprived” of its property by

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id. at 128. It seems clear that Carter and the Board had the authority to impose the penalties against

Brentwood; their acts were not “random and unauthorized.” If, as is more likely, the TSSAA’s

action was the result of an “established state procedure,” then the question becomes whether that

procedure violated Brentwood’s due process rights.19

Brentwood first argues that it was deprived of the right to a “neutral, impartial

decisionmaker.” Brentwood points out that Carter acted as investigator, trial judge, initial appellate

judge, and participant in the final appeal. This court, however, has rejected arguments that due

process is violated when the same official plays multiple roles in the process, such as when he acts

as investigator, witness, presiding officer at hearing, and final decisionmaker. See Moore,134 F.3d

at 786; Duchesne v. Williams, 849 F.2d 1004, 1005 (6th Cir. 1988) (en banc); Newsome v. Batavia

Local Sch. Dist., 842 F.2d 920, 926-27 (6th Cir. 1988). This line of argument thus fails.

In finding a violation of Brentwood’s procedural due process rights, the district court focused

on Brentwood’s alternative procedural due process argument: that during the TSSAA Board of

Control’s private deliberations after the August 23, 1997, hearing, the Board heard ex parte evidence

regarding contacts with middle school students allegedly made on behalf of Brentwood, and that this

evidence affected the Board’s final decision and penalty. Brentwood claims that it should have had

the chance to rebut this evidence by cross-examining the TSSAA investigators who discussed these

contacts with the Board during the private deliberations. See Goldberg v. Kelly, 397 U.S. 254, 269

(1970) (“In almost every setting where important decisions turn on questions of fact, due process

requires an opportunity to confront and cross-examine adverse witnesses.”); see also Loudermill,

470 U.S. at 546 (“The opportunity to present reasons, either in person or in writing, why proposed

action should not be taken is a fundamental due process requirement.”).

In evaluating Brentwood’s argument, it is necessary to recount in some detail the evidence

about the subject of the ex parte discussion. There had been reports made to the TSSAA alleging

that an Amateur Athletic Union (AAU) basketball coach named Bart King urged particular middle

school student athletes to attend Brentwood, had provided transportation to Brentwood for those

students, and promised scholarships to those students. Brentwood alleged in its initial complaint that

King was in no way affiliated with the school and that Brentwood never represented to King or

others that King had authority to act on its behalf. After the TSSAA received reports containing the

allegations involving King, two TSSAA officials, Gene Meness and Bernard Childress, investigated

the matter. Meness and Childress met with Brentwood Headmaster Brown in early June 1997 and

asked Brown about King. Brown suggested that they put questions regarding King and other issues

in writing and send them to him. Through an exchange of letters during July 1997, the TSSAA

informed Brentwood that it was investigating the allegations relating to King, and Brentwood

stressed to the TSSAA that King was in no way associated with Brentwood Academy. Meness and

Childress did not speak to King during the investigation.

August 23, when the final hearing was held. Cf. id. at 545-46 (drawing the deprivation line at the moment of termination

of employment). In any event, it is immaterial to the analysis in this case whether the hearing process occurred

predeprivation or postdeprivation.

19

Even if the acts were “random and unauthorized,” and the Parratt rule did apply, the ultimate issue would

be this same question: whether the procedure provided (the hearings in front of the Board of Control) was adequate. See

Macene, 951 F.2d at 706.

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As the district court found, there was no indication from the TSSAA before the final hearing

that it was still considering the Bart King allegation.20 In fact, the district court determined that “the

TSSAA and Carter misled Brentwood Academy about a person and allegation which ultimately

mattered to the decision.” See Brentwood Acad., 304 F. Supp. 2d at 1004 n.29. Despite this lack

of indication that King’s conduct was at issue, at the final hearing on August 23, Brentwood’s

counsel Tom Nebel offered to call King as a witness, saying, “We have Bart King here to answer

any questions. And it was our intention to put him on, but I don’t know if you all are interested in

extending for five minutes to hear Bart King or not. He’s here if you want him.” Carter answered,

“No.” Evidently this was the only discussion of King at the hearing. Carter later testified that “if

Brentwood Academy wanted [to call King], they could have easily done it....The school can put on

anything they want to.” Nebel later testified that he was not cut off from presenting any information

he wanted to present at the hearing.

Meness and Childress were present during the Board of Control’s private deliberations

following the August 23 hearing. While Childress recalled answering some questions posed by

Board members, neither Meness nor Carter recalled answering any questions about Bart King.

Board of Control President Mike Reed and Board member Michael Hammond testified that during

the Board’s private session, the Board discussed the allegations surrounding King’s actions. In

Reed’s initial deposition in this case, Reed was asked whether the King allegations were one of the

reasons behind the Board’s ultimate finding (upon which the penalties were based, in part) that there

was “[c]ontact with student-athletes, initiated by Brentwood Academy, while those students were

enrolled at other schools.” Reed answered affirmatively. However, at trial, Reed first testified that

although the King allegations were a “factor” in the discussion of the final penalty, the “final penalty

did not involve Bart King”: “[W]e discussed Bart King and the situation that took place, we did, we

discussed it, but the final penalty really dealt with the letter from Mr. Flatt.” When asked about his

deposition testimony at trial, Reed also referred to a lack of memory in his deposition testimony and

further indicated that the situation with King “was a factor in the overall penalty.” The assertion that

the final penalty was not based on the King allegations was reiterated by Carter and Hammond in

their testimony at trial.

The district court found that the TSSAA and Carter violated Brentwood’s procedural due

process rights by considering ex parte evidence during their private deliberations on August 23,

1997. In reaching this conclusion, the district court recounted the testimony of Board of Control

President Reed as well as Board members Hammond, Mickey Dunn, and Morris Rogers, all of

whom indicated in their testimony that TSSAA investigators Childress and Menees provided some

information to the Board regarding their findings during the private session. Additionally, the court

noted that Carter testified that Carter, Meness, and Childress were all present to answer questions

from the Board during the private session. The court below also pointed out that “Bart King,

according to Reed, was discussed and...was a factor in the penalties imposed.” Id. at 1004. The

court credited all of this evidence “based on the demeanor of the witnesses, the consistency of the

testimony, and because the testimony is adverse to the witnesses’ interests as TSSAA Board of

Control members.” Id.

20

Carter’s July 29, 1997, letter to Brown details six “concerns” and violations on which the penalties are based.

Only the sixth concern, which obliquely refers to contacts “by persons not connected with Brentwood Academy,”

arguably has anything to do with King. The violation listed under concern six, however, gives no indication that the

TSSAA seeks to assign any responsibility to Brentwood for any actions by King. At the first hearing on August 13,

1997, Brentwood submitted an affidavit from King denying the allegations detailed in the earlier exchange of

correspondence between the TSSAA and Brentwood. Then, after the first hearing, Carter sent Brown a letter dated

August 14, 1997, listing the violations found at the first hearing. None of these violations implicates King in any way.

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The district court’s factual finding that there was discussion during the Board of Control’s

deliberations about the King allegations was not clearly erroneous and, in fact, was well-supported

by the evidence. The district court was also correct in its conclusion that Brentwood Academy did

not have notice that the King matter was a possible basis for final TSSAA action against Brentwood.

Whether the King issue was actually a factor in the penalties ultimately imposed is far less certain.

Yet the district court was entitled to credit Reed’s deposition and trial testimony that the King issue

influenced the Board’s findings and penalties over his contrary trial testimony and other evidence

that the King issue was not a basis for the penalties.21 See Fed. R. Civ. P. 52(a) (“Findings of fact,

whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and

due regard shall be given to the opportunity of the trial court to judge of the credibility of the

witnesses.”). Thus, the finding that the King issue influenced the penalties is also not clearly

erroneous.

There is no applicable precedent that describes the precise process a school such as

Brentwood should receive from a state athletic association such as the TSSAA before the association

imposes penalties such as the ones assessed here. Cf. Loudermill, 470 U.S. at 545-46 (setting out

the due process requirements for termination of tenured public employees); Goss v. Lopez, 419 U.S.

565, 581 (1975) (setting out the due process requirements for short-term school suspensions);

Morrissey v. Brewer, 408 U.S. 471, 488-89 (1972) (setting out the due process requirements for

parole revocations). The district court therefore correctly looked to the general balancing test of

Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976) to determine what process is due in this situation.

The Mathews balancing test states:

[I]dentification of the specific dictates of due process generally requires

consideration of three distinct factors: First, the private interest that will be affected

by the official action; second, the risk of an erroneous deprivation of such interest

through the procedures used, and the probable value, if any, of additional or

substitute procedural safeguards; and finally, the Government's interest, including

the function involved and the fiscal and administrative burdens that the additional or

substitute procedural requirement would entail.

Id. at 335.

The district court correctly concluded that in a situation such as the one presented by this

case, due process requires that a school be informed of all of the issues relied on by an athletic

association levying penalties against the school and be given a chance to respond to those issues

before the penalties are imposed.22 Such a requirement imposes only a minimal burden on the state

actor and would be of great value in ensuring that a school is not wrongfully penalized. Moreover,

as the district court noted, such a requirement is clearly consistent with the notification requirements

set out by this court and others in analogous situations. See, e.g., Loudermill, 470 U.S. at 546 (“The

tenured public employee is entitled to oral or written notice of the charges against him, an

explanation of the employer’s evidence, and an opportunity to present his side of the story.”);

Moore, 134 F.3d at 786 (“[T]he process offered Moore was constitutionally sufficient. She received

written notice of the charges against her, as well as an explanation of the Board [of Education]’s

evidence, and was offered an opportunity to present her side of the story.”); Swank v. Smart, 898

21

Reed’s deposition testimony is a prior inconsistent statement given under oath and also amounts to an

admission against interest on the part of the TSSAA. Fed. R. Evid. 801(d)(1) & (2).

22

The TSSAA complains that the district court “once again” ignored the contractual relationship between it

and Brentwood in evaluating the procedural due process claim, but fails to articulate exactly how the contractual

relationship lessens the TSSAA’s obligation as a state actor to provide procedural due process.

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F.2d 1247, 1253 (7th Cir. 1990) (“[The police officer] was entitled to challenge the chief’s

assessment of the damage caused by the [incident in which the officer was seen giving a girl a ride

on his motorcycle]. Ex parte presentation of evidence denies due process....”); id. at 1256 (“[A]

tenured public employee has a constitutional entitlement to a fair hearing before being fired and that

with immaterial exceptions a fair hearing includes the right to be shown the evidence on which the

tribunal has relied, including evidence pertaining to the gravity of the sanction to be imposed when

liability is conceded.”) (citations omitted); Newsome, 842 F.2d at 927 (holding that student was

“denied procedural due process when the superintendent disclosed to the school board, during their

closed deliberations, new evidence which had not been presented during the open hearing at which

Newsome and his attorney were present”); see also Greene v. McElroy, 360 U.S. 474, 496 (1959)

(“[W]here governmental action seriously injures an individual, and the reasonableness of the action

depends on fact findings, the evidence used to prove the Government’s case must be disclosed to

the individual so that he has an opportunity to show that it is untrue.”).

In sum, we affirm the district court’s conclusion that the TSSAA and Carter violated

Brentwood’s procedural due process rights. The district court correctly determined what process

was due to Brentwood: notice of the evidence relied upon in penalizing Brentwood and an

opportunity to respond to that evidence before penalties were imposed. Here, the TSSAA failed to

give that notice as it related to King. Brentwood therefore had no notice that it should respond to

the King evidence at the hearings. Yet, the King evidence was used by the TSSAA in its

deliberations and, under the district court’s findings, influenced the penalties imposed on

Brentwood. The failure to afford the requisite process violated Brentwood’s Fourteenth Amendment

rights to procedural due process.

E. Availability of Qualified Immunity for Carter

The district court also held that Carter was not entitled to qualified immunity. Whether a

defendant is entitled to qualified immunity is a question of law reviewed de novo. Thacker v. City

of Columbus, 328 F.3d 244, 259 (6th Cir. 2003). Qualified immunity protects government officials

from civil liability for actions taken within their official discretion insofar as these actions do not

violate clearly established statutory or constitutional rights of which a reasonable official would

have been aware. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). It is not merely a defense

to liability; rather, when applicable, qualified immunity protects government officials from lawsuits

and, hence, the burdens of litigation. See Saucier v. Katz, 533 U.S. 194, 200-01 (2001).

The initial question here is whether the qualified immunity defense is even available to

Carter, an employee of a non-profit corporation that has been found to be a state actor when

engaging in regulatory activity. “In assessing whether the qualified immunity afforded state officials

extends to private actors who are considered state actors under § 1983, [the court] must consider

both the purposes of qualified immunity protection and the nature of the relationship between the

state and the putative private party.” Bartell v. Lohiser, 215 F.3d 550, 556 (6th Cir. 2000). This

court held in Bartell that workers for a non-profit foster-care corporation that had contracted with

the government and was closely supervised by a state agency were entitled to qualified immunity.

Id. at 557. The Bartell court distinguished Richardson v. McKnight, 521 U.S. 399, 412 (1997), in

which the Supreme Court held that private prison guards were not entitled to qualified immunity,

as involving a for-profit corporation that operated with limited direct supervision by the government.

See Bartell, 215 F.3d at 556-57 (citing Richardson, 521 U.S. at 413). Here, one of these factors

weighs in favor of Carter (because the TSSAA is a non-profit corporation) and one weighs in favor

of Brentwood (because the TSSAA operates with limited direct governmental supervision).

Nevertheless, a closer examination of Bartell and Richardson indicates that the balance is

tipped towards Carter’s argument that qualified immunity is available to him. Specifically, one of

the key reasons qualified immunity was unavailable in Richardson was because the purposes of

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qualified immunity were already served by “marketplace pressures” that themselves “provide[d] the

private firm with strong incentives to avoid overly timid, insufficiently vigorous, unduly fearful, or

‘nonarduous’ employee job performance.” 521 U.S. at 410. Here, there are no such marketplace

pressures; the TSSAA, unlike the prison firm in Richardson, does not have to compete with other

firms for the job it does on behalf of the state. Also, the Richardson court relied heavily on the fact

that “[h]istory does not reveal a ‘firmly rooted’ tradition of immunity applicable to privately

employed prison guards.” Id. at 404 (citing Wyatt v. Cole, 504 U.S. 158, 164 (1992)). The district

court in this case picked up on this rationale, noting that “[j]udicial history does not reveal a firmly

rooted tradition of immunity applicable to employees of private athletic associations.” The notion

that there would be such a “firmly rooted” history, though, is unreasonable in the first place,

considering that athletic associations like the TSSAA have only recently grown in importance and

stature, and litigation involving such associations has been relatively rare. See Brentwood Acad.,

531 U.S. at 304 (“No one...has pointed to any explosion of § 1983 cases against interscholastic

athletic associations....”); see also Richardson, 521 U.S. at 414-15 (Scalia, J., dissenting) (chiding

the Richardson majority for relying on the historical absence of any cases in which immunity was

successfully asserted by a private prison guard). We find that qualified immunity is available to

officials such as Carter.

Having found that qualified immunity is available to Carter, the next question is whether it

applies in this case. If an official acts within his discretionary authority and asserts qualified

immunity, the burden shifts to the plaintiff to prove that the officer violated a right so clearly

established that any reasonable official in his position would have understood it was unlawful to

engage in the conduct that violated the right. See Gardenhire v. Schubert, 205 F.3d 303, 311 (6th

Cir. 2000). This court evaluates this burden according to a three-prong standard. See Williams v.

Mehra, 186 F.3d 685, 691 (6th Cir. 1999). First, the court considers whether a constitutional or

statutory violation occurred. Id. If so, the court then considers whether the right that was violated

was clearly established in the sense that a reasonable person would have known of the right. Id. The

right must have been “clearly established at the time of the actions in question.” Dickerson v.

McClellan, 101 F.3d 1151, 1158 (6th Cir. 1996). If the right was clearly established, the court’s

third step is to “determine whether the plaintiff has alleged sufficient facts, and supported the

allegations by sufficient evidence, to indicate that what the official allegedly did was objectively

unreasonable in light of the clearly established constitutional rights.” Williams, 186 F.3d at 691.

Having found that a violation of Brentwood’s procedural due process rights occurred, the

next question is whether Brentwood’s rights were clearly established such that “it would be clear

to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier, 533

U.S. at 202. On this point, there is simply no support for the district court’s conclusion that “the

contours of procedural due process were sufficiently clear and apparent that Carter had fair warning,

and reasonably should have understood, that what he did violated the procedural due process rights

of Brentwood Academy.” As described above, there is no applicable authority describing what

process state secondary athletic associations must provide when enforcing their regulations. It asks

too much of Carter to expect him to have applied the Mathews factors and concluded that failing to

give notice that the King issue would be considered and then considering it during the Board’s

private deliberations would violate Brentwood’s due process rights. Regardless of Carter’s

extensive involvement in the investigation and decision making with regard to the TSSAA’s

penalties against Brentwood, there is no evidence that his conduct was objectively unreasonable, or

that Brentwood’s due process rights (or First Amendment rights, for that matter) in this context were

clearly established. For these reasons, we reverse the district court on this issue and find that Carter

is entitled to qualified immunity.

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F. Antitrust Immunity

The district court ruled in an October 2002 order that the TSSAA was entitled to antitrust

immunity under the doctrine of Parker v. Brown, 317 U.S. 341 (1943). Brentwood appeals from this

order, arguing that the doctrine does not apply and that its antitrust claim should be permitted to

proceed.23

In addition to the facts noted earlier about the TSSAA as an organization, the following facts

are pertinent to the antitrust immunity inquiry. The bulk of the TSSAA’s revenues come from gate

receipts at member teams’ tournaments, but member schools do pay annual dues. TSSAA

employees are not paid by the state but are eligible to join the state employee retirement system.

The voting membership of the Board of Control and Legislative Council (the rulemaking body of

the TSSAA) are composed of school administrators, and the public school administrators who

typically serve in these positions carry out their TSSAA duties during regular school hours.

The district court issued only a cursory explanation of its decision on this issue. The court

explained, without analysis, that the Supreme Court’s decision on “pervasive entwinement” meant

that the TSSAA was a state actor “for purposes of antitrust immunity.” However, while there are

similarities between the two tests, the Parker antitrust immunity inquiry is different from the inquiry

into whether state action exists for the purposes of § 1983 and the Fourteenth Amendment. See

Nat’l Collegiate Athletic Ass’n v. Tarkanian, 488 U.S. 179, 194 n.14 (1988) (noting that the two

inquiries are “somewhat similar” but “by no means identical”); Tarabishi v. McAlester Reg’l Hosp.,

951 F.2d 1558, 1565 n.6 (10th Cir. 1991). Indeed, the extensive case law on the issue of Parker

antitrust immunity reveals that the doctrine does not apply to the TSSAA.

In Parker, the Supreme Court held that when a “state in adopting and enforcing [a

regulatory] program..., as sovereign, imposed the restraint as an act of government,” the program

could not violate the Sherman Act, because the Act was directed against “individual and not state

action.” 317 U.S. at 352; see also City of N. Olmstead v. Greater Cleveland Reg’l Transit Auth., 722

F.2d 1284, 1287 (6th Cir. 1983) (“[The] doctrine enunciated in Parker...exempt[s] ‘anticompetitive

conduct engaged in as an act of government by the state as sovereign, or, by its subdivisions,

pursuant to state policy to displace competition with regulation or monopoly public service’ from

Sherman Act control.”) (quoting City of Lafayette v. La. Power & Light Co., 435 U.S. 389, 413

(1978) (opinion of Brennan, J.)) (emphasis removed). The Court has clarified that while Parker

immunity clearly applies to a state legislature or a state supreme court acting in its legislative

capacity, when the regulatory activity is carried out by others pursuant to state authorization, the

program must meet the two-part standard set out in California Retail Liquor Dealers Ass’n v. Midcal

Aluminum, 445 U.S. 97 (1980). See Hoover v. Ronwin, 466 U.S. 558, 567-68 (1984). “First, the

challenged restraint must be ‘one clearly articulated and affirmatively expressed as state policy’;

second, the policy must be ‘actively supervised’ by the State itself.” Midcal Aluminum, 445 U.S.

at 105 (quoting City of Lafayette, 435 U.S. at 410 (opinion of Brennan, J.)).24 Like other judicially

imposed exemptions from the antitrust laws, the Parker doctrine must be narrowly construed. See

FTC v. Ticor Title Ins. Co., 504 U.S. 621, 636 (1992).

23

In its brief the TSSAA argues a number of issues relating to the antitrust claim. Before the district court,

however, it raised only the antitrust immunity issue, and we will therefore not consider the other issues on appeal. See

Barner v. Pilkington N. Am., Inc., 399 F.3d 745, 749 (6th Cir. 2005).

24

In Midcal Aluminum, the Court held that a California price-setting system for wine met the first but not the

second prong of the test, because the state simply authorized the price setting and enforced the prices established by

private parties. 445 U.S. at 105. The State did not monitor market conditions or otherwise actively supervise the

program. Id. at 105-06. Therefore, California’s involvement was not sufficient to establish Parker immunity. Id.

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The first question under the Midcal Aluminum test is whether the TSSAA acts pursuant to

a “clearly articulated and affirmatively expressed” state policy to displace competition. 445 U.S.

at 105. This policy must be one clearly articulated in the first instance not by a state agency, see

Goldfarb v. Va. State Bar, 421 U.S. 773, 790 (1975), but by “the State itself, such as a policy

approved by a state legislature...or a State Supreme Court,” see S. Motor Carriers Rate Conference,

Inc. v. United States, 471 U.S. 48, 63 (1985) (citations omitted). The “clearly articulated” state

policy requirement is not satisfied “when the State’s position is one of mere neutrality respecting

the municipal actions challenged as anticompetitive.” Cmty. Communications Co. v. City of

Boulder, 455 U.S. 40, 55 (1982). In City of Boulder, the Court held that the Parker doctrine did not

protect a municipality’s regulation of the cable television market, even if the city’s activities were

authorized by a home rule statute, because the “general grant of power to enact ordinances” did not

imply “state authorization to enact specific anticompetitive ordinances.” Id. at 56. On the basis of

this rationale, the TSSAA should not receive antitrust immunity. The Tennessee General Assembly

has done nothing more than delegate to the State Board of Education the general authority to

develop policies for the operation of public schools. Tenn. Code Ann. § 49-1-302. The state statute

says nothing about interscholastic athletics or the TSSAA itself, which acts under the auspices of

the Board. See Brentwood Acad., 531 U.S. at 292-93. The Tennessee statue represents a vague,

neutral authorization by the sovereign; this is not enough to establish a “clearly articulated and

affirmatively expressed” state anticompetitive policy. Midcal Aluminum, 445 U.S. at 105; see also

Mich. Paytel Joint Venture v. City of Detroit, 287 F.3d 527, 534 (6th Cir. 2002) (“Grants of general

or neutral authority to govern local affairs will not satisfy the ‘clear articulation’ component of the

state action exemption from antitrust liability.”).

Other Supreme Court precedent, however, suggests that “‘explicit authorization’ by state

legislatures to displace competition [is] not necessary to pass the clear articulation test. The Parker

exemption applies as long as the suppression of competition is the foreseeable or logical result of

what the state authorizes.” Id. at 535 (citing Town of Hallie v. City of Eau Claire, 471 U.S. 34, 42-

44 (1985)). In Town of Hallie, a city refused to supply sewage treatment facilities to those outside

the city’s borders. 471 U.S. at 37. The state statute did not refer to competition, but it authorized

the city to refuse to provide sewage treatment to adjacent unincorporated areas unless they agreed

to annexation. Id. at 41. The Court held that “anticompetitive effects logically would result from

this broad authority to regulate” and thus the first prong of the Midcal Aluminum test was met. Id.

at 42. Town of Hallie is distinguishable, however, since although the state statute in that case did

not explicitly authorize anticompetitive state behavior, it specifically described and authorized the

policy in question. Here, not only does the Tennessee statute fail to authorize anything like the

recruiting rule or any other regulation, but it also fails to mention interscholastic athletics at all. The

state as sovereign has not made clear its intent to establish an anticompetitive regulatory program.

Cf. S. Motor Carriers Rate Conference, 471 U.S. at 63-64 (“The legislature thus made clear its intent

that intrastate rates would be determined by a regulatory agency, rather than by the market.”); Mich.

Paytel, 287 F.3d at 536 (holding that anticompetitive effects are “the logical and foreseeable result

of the City’s broad authority under state law and the Michigan Constitution to bid out public

contracts for the maintenance of City prisons”).

Assuming, arguendo, that the TSSAA acts pursuant to a “clearly articulated and

affirmatively expressed” anticompetitive state policy, the next question is whether 25

its regulatory

program is actively supervised by the state. See Midcal Aluminum, 445 U.S. at 105. This court

25

A threshold question before reaching this second prong of the test is whether the second prong applies to the

TSSAA. Town of Hallie stands for the proposition that the active state supervision requirement is not applicable in cases

where the actor is a municipality, and the Court suggested in dicta in that case that the same should go for cases in which

the actor is a “state agency.” See 471 U.S. at 46, 46 n.10. In their brief, defendants cite a number of cases to support

their argument that the TSSAA qualifies as a political subdivision of the state for antitrust purposes and therefore need

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has held that the active supervision requirement must be met by state supervision; “municipal

oversight” of the program is insufficient. See Riverview Invs., Inc. v. Ottawa Cmty. Improvement

Corp., 774 F.2d 162, 163 (6th Cir. 1985). Significantly, this court has also held that antitrust

immunity does not apply to a private actor to whom authority is delegated such that the private actor

becomes the “effective decision maker.” See Mich. Paytel, 287 F.3d at 537-38. In these situations,

when a private actor (such as a non-profit corporation) acts on behalf of the state but makes

“‘independent decisions without the input, advice, involvement, or oversight of...any...governmental

body,’” antitrust immunity does not apply. Id. at 538 (quoting Riverview Invs., Inc. v. Ottawa Cmty.

Improvement Corp., 899 F.2d 474, 481-82 (6th Cir. 1990)); see also Town of Hallie, 471 U.S. at 47

(“Where a private party is engaging in the anticompetitive activity, there is a real danger that he is

acting to further his own interests, rather than the governmental interests of the State.”). Here,

authority was clearly delegated from the state to the State Board of Education and then, in turn, to

the TSSAA. There is nothing at all in the record to indicate that the state is actively involved in

supervising the TSSAA. In fact, the evidence suggests that the opposite is the case. See also Midcal

Aluminum, 445 U.S. at 106 (“The national policy in favor of competition cannot be thwarted by

casting such a gauzy cloak of state involvement over what is essentially a private price-fixing

arrangement.”).26

Defendants therefore cannot establish either prong of the Midcal Aluminum test. For these

reasons, we reverse the district court’s October 2002 decision finding that the TSSAA is entitled to

Parker antitrust immunity and remand for further proceedings with respect to Brentwood’s antitrust

claim.

G. Relief Issues

Brentwood also appeals the district court’s denial of damages. “[W]hen § 1983 plaintiffs

seek damages for violations of constitutional rights, the level of damages is ordinarily determined

according to principles derived from the common law of torts.” Memphis Cmty. Sch. Dist. v.

Stachura, 477 U.S. 299, 306 (1986). “[P]roximate causation is an essential element of a § 1983

claim for damages. That is, a violation of a federally secured right is remediable in damages only

upon proof that the violation proximately caused injury.” Horn v. Madison County Fiscal Court,

22 F.3d 653, 659 (6th Cir. 1994) (internal citation omitted). The district court found that the

damages claimed by Brentwood (reputational harms and time spent by employees on the case) were

not proximately caused by the defendants. On appeal, Brentwood argues that the district court

should have considered whether the damages were “foreseeable” and that the harms suffered by

Brentwood were foreseeable consequences of the defendants’ conduct.

not meet the second prong of the Midcal Aluminum test. However, none of these cases concern an athletic association

such as the TSSAA, and defendants cite no case from this circuit to support their argument. In fact, circuit precedent

suggests that it is only municipalities that are exempt from the second prong of the test. See Mich. Paytel, 287 F.3d at

536 (holding that “private parties must establish both” elements of the Midcal Aluminum test).

26

The dissent rests its differing result on our decision in Consolidated Television Cable Service, Inc. v. City

of Frankfort, 857 F.2d 354 (6th Cir. 1988). Based on the ruling in that case, it concludes that the TSSAA is the agent

of the Tennessee Board of Education, itself a state agency, and that the TSSAA need only meet the state antitrust

immunity test for state political subdivisions. The relationship between the municipality and its agent cable television

company in Consolidated, however, is not analogous to the relationship between the Board and the TSSAA. Frankfort

provided cable television service to its citizens and owned the system for providing the service, created the cable

company to operate the system, and exercised continued supervisory control over the cable company – described by the

court as “ultimate control.” Id. at 358. In fact, Consolidated itself had previously described the cable company as an

agent of the municipality, a fact which the court mentioned as dicta but which nevertheless appears important to the

resolution. The TSSAA, with its mix of public and private membership and revenue, its elaborate internal governance

and appeal structure, and its lack of state supervision does not fit within the cable company model described in

Consolidated.

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The district court rightly pointed out that any costs incurred by Brentwood as a result of the

litigation were costs it chose to incur when it filed the case. As to Brentwood’s reputational damage,

foreseeability is an element of the proximate cause analysis, but it is distinct from the requirement

that a plaintiff show the injury was directly caused by the defendant. See Perry v. Am. Tobacco Co.,

324 F.3d 845, 850-51 (6th Cir. 2003). It is a fundamental tort law principle that while an injury to

a plaintiff might be foreseeable, the damages incurred could still be “too remote to permit recovery.”

See, e.g., Laborers Local 17 Heath & Benefit Fund v. Philip Morris, Inc., 191 F.3d 229, 236 (2d Cir.

1999). Here, the district court sensibly concluded that even if Brentwood’s reputational harms were

foreseeable, they could be traced much more directly to the media and other third-party actors than

to the TSSAA or Carter.

Brentwood also argues that the district court, which enjoined the penalties assessed against

Brentwood, should have also enjoined the enforcement of the recruiting rule “as applied to speech

more generally.” Brentwood asserts in its brief that “[o]nly a decision-forcing injunction against

applying the [recruiting rule] to speech can assure TSSAA’s First-Amendment-mandated ‘careful

calculation of the speech interests involved.’” These arguments are not well-taken. In its previous

opinion, this court clearly rejected a facial challenge to the recruiting rule based on an argument that

the regulation was invalid in all of its applications. Brentwood Acad., 262 F.3d at 554-57. The court

suggested that the recruiting rule could in fact be applied constitutionally in some cases, and the

district court’s task on remand was to consider only whether the rule was constitutional as applied

to Brentwood. Id. at 554-58. The district court correctly limited its remedy accordingly and

enjoined only the application of the rule to Brentwood in this case.27 We affirm the remedy granted

by the district court.

III.

For the foregoing reasons, we: (1) affirm those parts of the district court’s decision finding

for Brentwood on its First Amendment and procedural due process claims and granting injunctive

relief on these claims; (2) reverse the district court’s decision finding for Brentwood on its

substantive due process claim; (3) reverse the district court’s decision finding that Carter is not

entitled to qualified immunity; (4) reverse the district court’s order finding that the TSSAA is

entitled to antitrust immunity; and (5) remand for further proceedings on Brentwood’s antitrust

claim.

27

In its brief, Brentwood argues that the district court’s injunction should also be directed at Carter in his

official capacity. It is unclear why Brentwood makes this argument or why this should be the case, as the injunction

enjoins all of the penalties imposed by the TSSAA against Brentwood. The injunctive relief was thus complete.

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________________

DISSENT

________________

ROGERS, Circuit Judge, dissenting.

High school football is a game. Games have rules.

To have federal courts, under the guise of applying the enduring principles of the First

Amendment, reverse the ordinary application of high school football recruiting rules—where the

core values of the Amendment are not even remotely involved—unduly trivializes these

constitutional principles. This is no more a case involving our nation’s ideal of freedom of

expression than a case involving a coach who is thrown out of a game for talking back to a referee.

This is instead a case involving game participants who challenge the discretionary administration

of participation rules. Of course, good lawyers can characterize almost any perceived injustice as

a constitutional case (and maybe even an antitrust case to boot), but courts should be hesitant to go

along.

The Supreme Court has properly instructed us in this case that the defendant is a state actor

for constitutional purposes, and this court in its 2003 decision properly determined that Brentwood

Academy did not contract away all of its constitutional rights by joining TSSAA. If, for instance,

TSSAA discriminated on the basis of race or religion or the expression of political views, the earlier

court holdings in this case would insure the availability of federal court relief. But here TSSAA is

clearly doing nothing more than administering its game rules—the game being interschool high

school football. Dissatisfaction with application of game rules does not become a First Amendment

violation merely because the rule involves speech.

Recruiting and eligibility rules are of course a very real part of the game itself, protecting

the student-athlete and the brand of competition agreed to. The game of football, like any game, has

rules which the competitors accept as an inherent part of participation. In addition to the basics of

the game, such as how many players may participate at one time and how many points are awarded

for a touchdown, competitors agree on further rules governing competition more broadly, agreeing

on rules that govern how teams are grouped into leagues, how the champion of the league is

determined and who is eligible to participate in a game. Fierce competition among high schools for

talented student athletes, and the demand for success from fans and alumni, bring the potential for

excess. As a result, athletic leagues comprised of educational institutions, such as TSSAA, have

rules governing both the recruitment of student-athletes and the eligibility of student-athletes to

participate in athletic contests. Anti-recruiting rules may inhibit “speech,” but so do the ordinary

rules of a football game that allow players and coaches to be removed for disputing the propriety

of a referee’s call.

Accordingly, I dissent from those portions of the majority’s decision upholding plaintiff’s

First Amendment claims. I also dissent from the finding of a due process violation and from the

decision to reverse the district court’s determination that there is no basis for antitrust liability in this

case.1

1

I concur in Part II.C. of the majority opinion rejecting Brentwood’s substantive due process claim.

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I.

While the insubstantiality of plaintiff’s First Amendment claim is clear, the complexities of

modern First Amendment jurisprudence make it less clear precisely why the claim is not substantial.

There are two parts to the answer. First, ordinary enforcement of game rules does not amount to an

unconstitutional limit of free expression in part because participants agree to play in the games.

Second, ordinary enforcement of game rules does not amount to an unconstitutional limit on free

expression because rules (including rules limiting speech) are inherently necessary to ordered

competition. Of course these two ideas substantially overlap, but they find expression in different

strands of First Amendment law. Both strands reflect the underlying idea that rules have value for

the sake of being rules, and only trench on First Amendment concerns when their relationship to the

game is too attenuated. Enforcement of the recruitment rule in this case is clearly warranted because

Brentwood agreed to general applicability of the rules (although not to rules that draw distinctions

unrelated to the purpose for the rules, such as interpretations of the rules that discriminate, for

example, on the basis of political party affiliation). Enforcement of the recruitment rule in this case

is also clearly warranted because, in the context of athletic competition, the rule is sufficiently

related to legitimate public interests and narrowly tailored. Under each of these arguments, and

certainly under at least one of the two, there is no First Amendment violation in this case.

I recognize that the first argument is subject to the criticism that it ignores our earlier 2001

decision and renders the extensive district court proceedings on remand an exercise in futility. In

addition, the second argument is subject to the criticism that it does not adequately defer to the

factual findings of the district court. While I am sympathetic with the inclinations undergirding

these arguments, I cannot in the end accept that they compel us to affirm the finding that

enforcement of an unexceptional athletic anti-recruiting rule violates the First Amendment.

A.

First of all, Brentwood agreed to comply with TSSAA anti-recruiting rules, and thus gave

up its right to engage in some expressive activity otherwise protected by the First Amendment. That

is not to say that it gave up all of its rights to engage in expressive activity vis-à-vis TSSAA. But

it obviously gave up some. By comparison, a person by accepting employment by the government

gives up some rights protected by the First Amendment (e.g., the right to read the newspaper all day

long), but does not give up all First Amendment rights (e.g., the right to talk politics during a break).

Brentwood in this case gave up its right to engage in certain types of speech, and may not

assert such a right now. See Leonard v. Clark, 12 F.3d 885, 889-90 (9th Cir. 1993) (affirming the

district court’s decision not to reach the issue of whether a labor union’s free speech rights had been

violated where the district court had first determined that the union waived its First Amendment

protections in a collective bargaining agreement). Brentwood in short gave up its right to speak in

violation of TSSAA’s game rules (including its anti-recruiting rules) as consideration for access to

TSSAA leagues and tournaments, and to benefit from TSSAA’s enforcement of its rules against

competitors.

1. Free Speech Rights May Be Given Up

Most individually held constitutional rights may be waived, if done knowingly, intelligently,

and with sufficient awareness of relevant circumstances and likely consequences. See Brady v.

United States, 397 U.S. 742, 748 (1970) (recognizing waiver of the constitutional right to a trial in

a criminal case); Leonard, 12 F.3d at 889-90 (upholding a contractual waiver of First Amendment

rights where it was knowing, voluntary, and intelligent); Erie Telecomms. v. Erie, 853 F.2d 1084,

1096 (3d Cir. 1988) (“constitutional rights, like rights and privileges of lesser importance, may be

contractually waived where the facts and circumstances surrounding the waiver make it clear that

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the party foregoing its rights has done so of its own volition, with full understanding of the

consequences of its waiver”).

The power to waive individually held constitutional rights extends to First Amendment

speech-related protections. The Supreme Court has repeatedly held that contractual waivers of free

speech protections may be judicially enforced. In Snepp v. United States, the Supreme Court held

that the Central Intelligence Agency (CIA) was not barred by the First Amendment from enforcing

an employment agreement that required CIA employees to get its permission before publishing

writings about agency activities. 444 U.S. 507, 507-511 (1980). The Court upheld this prior

restraint on speech in part because the CIA employee in that case had voluntarily signed the

employment agreement. See id. at 510-11. Similarly, in Rust v. Sullivan, the Court upheld the

federal government’s restriction on the abortion-related speech of staff members working for doctors

receiving Title X funds. 500 U.S. 173 (1991). The Court upheld this restriction because it was “a

consequence of [the staff members’] decision to accept employment.” Id. at 199.

The Third, Fourth, and Ninth circuits have also honored contractual waivers of First

Amendment rights contained in contracts with state actors. Erie Telecomms., 853 F.2d at 1094-98

(upholding a cable company’s waiver of First Amendment rights in a franchise agreement with a

city); Lake James Cmty. Volunteer Fire Dep’t., Inc. v. Burke County, 149 F.3d 277, 280-82 (4th Cir.

1998) (holding enforceable a Fire Department’s “limited waiver” of some First Amendment rights

in a contract with a county government); Leonard, 12 F.3d at 889-92 (upholding a labor union’s

waiver of some First Amendment rights to a city as provided in a collective bargaining agreement).

While these cases demonstrate that constitutional rights can be bargained away, they do not

begin to cover all the possibilities. Some constitutional rights are so obviously alienable that no one

would challenge the idea. To become a prison guard, a person may give up the right to be out of the

prison premises for eight hours a day. To become a judge, a person may give up the right to solicit

charitable contributions. To become a flight attendant, a person may give up the right to refrain

from speaking before the plane takes off. And so on. Again, this is not to say that such persons give

up all free expression rights, but they certainly give up some.

2. Brentwood Gave Up its Right to Certain Speech

In this case Brentwood gave up some of its free speech rights when it signed a one-year

contract agreeing to abide by TSSAA’s game rules, including its anti-recruiting rules. Brentwood’s

promise is not materially different from the CIA’s employment agreement or the speech restrictions

on the Rust staff employees. In each of these situations, the promisors agreed not to speak in certain

ways in return for something they desired.

Brentwood’s waiver was doubtless knowing, voluntary, and intelligent. The anti-recruiting

rule and supplemental materials explicitly forbade Coach Flatt from “contact[ing] a student or his

or her parents prior to his enrollment in the school.” Brentwood Acad. v. Tenn. Secondary Sch.

Athletic Ass’n, 262 F.3d 543, 549 (6th Cir. 2001). Nothing could be clearer, and Coach Flatt did

exactly this. His waiver—and his violation of this crystal clear rule—were voluntary, knowing, and

intelligent. Moreover, there is no evidence on the record that would suggest that Brentwood had

agreed to TSSAA’s rules involuntarily or without knowledge. That Brentwood, a sophisticated and

tenacious party, never contested in this appeal that it understood the anti-recruiting rules tells

volumes about the intelligence of its waiver.

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3. Brentwood’s Waiver Has No Unconstitutional Conditions Doctrine Defect

Brentwood’s waiver does not run afoul of the “unconstitutional conditions” doctrine because

the anti-recruiting rules relate to participation in TSSAA athletics and Coach Flatt’s recruiting letter

and follow-up phone calls do not bear on matters of public concern.

“Under the well-settled doctrine of ‘unconstitutional conditions,’ the government may not

require a person to give up a constitutional right . . . in exchange for a discretionary benefit

conferred by the government where the benefit sought has little or no relationship to the” right

surrendered. Dolan v. City of Tigard, 512 U.S. 374, 385 (1994) (citing Perry v. Sindermann, 408

U.S. 593 (1972); Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)). When the free speech rights

of government employees are at issue, this doctrine prevents the surrender of speech rights only if

the speech bears on some matter of public concern. Connick v. Myers, 461 U.S. 138, 146 (1983).

In this case the unconstitutional conditions doctrine will invalidate Brentwood’s waiver only

if Brentwood’s membership in TSSAA has “little or no relationship” to the free speech rights

surrendered (i.e., to the anti-recruiting rules); or if, applying the Connick standard, Coach Flatt’s

recruiting speech bore on a matter of public concern.

The anti-recruiting rules relate to participation in TSSAA and limit no speech on any matter

of public concern. By limiting Coach Flatt’s right to recruit unenrolled middle-school students for

the football team, the anti-recruiting rules regulate the formation of teams that compete in TSSAA.

It is an off-the-field regulation thought to enhance the quality of on-the-field competition by

promoting equity in the relative strength of teams. The anti-recruiting rules, therefore, have a clear

relationship, not “little or no relationship,” to participation in TSSAA. Obviously, there is no reason

to think that Coach Flatt’s recruiting letter or follow-up phone calls touch upon any matter of public

concern under Connick. Consequently, there is no unconstitutional conditions doctrine defect in

Brentwood’s agreement to comply with recruitment rules.

There is no reason to limit the Connick no-public-concern analysis strictly to government

employee cases. Connick is analogous because the restriction on Brentwood’s recruiting speech

emanates from the necessity of limiting game participants’ speech as part of the competitor-referee

relationship. Cf. Maj. Op. at 8 (observing that lawful restrictions on government employees’ speech

emanate from the necessity of limiting their speech as part of the employer-employee relationship).

The operation of a sports league demands speech limits that are germane to the agreed-upon venture

no less than does employment. To extend an earlier analogy, a government employee harms the

employer-employee relationship when he exercises his First Amendment right to read the newspaper

for his entire workday. Likewise, Coach Flatt harmed the competitor-referee relationship between

Brentwood and TSSAA when he disobeyed anti-recruiting rules that others were presumably

following.

Brentwood’s promise to follow the anti-recruiting rules has no unconstitutional conditions

doctrine defect because it has a relationship to Brentwood’s participation in TSSAA and limits no

speech of public concern. Brentwood’s First Amendment claims should be dismissed.

4. Our 2001 Opinion Leaves Open the Possibility That Brentwood Gave Up Those Free

Speech Rights That Might Interfere With TSSAA Game Rules

In my view, this court’s 2001 opinion does not at all foreclose the foregoing argument.

Compare Maj. Op. at 7; Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 262 F.3d 543, 550

(6th Cir. 2001). The 2001 opinion on the contrary rejected a different and overly broad theory of

waiver: that Brentwood had given up its right to sue entirely. See id. The 2001 opinion noted that

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the cases cited by TSSAA in support of this overly broad waiver theory involved parties that had

explicitly “waived their right to sue,” and concluded that “[t]here is no comparable TSSAA

provision prohibiting members from challenging the constitutionality of the recruiting rule.” Id.

(emphasis added). In other words, the 2001 opinion says only that Brentwood did not waive its right

to sue generally. That is true. While retaining its right to sue generally, Brentwood waived a more

limited group of rights—including any free speech-related theories that would invalidate the normal

administration of rules that Brentwood agreed to, including the anti-recruiting rules. Brentwood

could for instance sue on the basis of the unconstitutional conditions doctrine and indeed this court

relied upon such cases in our rejection of the blanket waiver argument. See id.

By analogy, the staff personnel in Rust did not waive their right to sue about their

employment conditions or free speech rights generally. Surely a court could have heard a political

discrimination claim brought against the government funding authority by any such staff members.

Yet the Court still held that the staff members, by accepting employment, waived First Amendment

objections to Title X’s abortion-speech restrictions. See Rust, 500 U.S. at 199 (“employees’ freedom

of expression is limited during the time that they actually work for the project; but this limitation

is a consequence of their decision to accept employment in a project, the scope of which is

permissibly restricted by the funding authority”). In this case, Brentwood waived only speech rights

that would interfere with its agreement to abide by TSSAA’s game rules and that did not violate the

unconstitutional conditions doctrine.

The 2001 opinion never addressed this narrower theory of waiver and thus does not foreclose

any and all arguments based on waiver. Brentwood waived its right to have Coach Flatt contact as

yet unenrolled students. Its First Amendment claim should be dismissed on that ground.

B.

While our previous decision did not foreclose the above argument, it did direct the lower

court to apply the test for content-neutral speech restrictions, and I certainly respect the majority’s

reluctance to disregard the district court’s extensive factual inquiry. In my view, however, none of

the district court’s factual findings are sufficient to warrant the legal conclusion that Brentwood’s

First Amendment rights were violated by TSSAA’s enforcement of the anti-recruiting rules. The

very nature of game rules requires that they be somewhat arbitrary. If upon remand the district court

had found a restriction on speech of a public concern, or a restriction on speech unrelated to the

game of football, our review of the district court’s conclusion might support affirmance. Nothing

like that was found in this case.

In this case, TSSAA’s game-related legitimate interests in subordinating athletics to

academics, preventing the exploitation of middle school student-athletes, and furthering competitive

equality of teams, together fully justify the enforcement of the anti-recruiting rules against

Brentwood. The anti-recruiting rules are reasonable time, place or manner restrictions on speech

that are narrowly tailored to serve a significant government interest and leave open alternative

channels of communication. See Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989); Tucker

v. City of Fairfield, 398 F.3d 457, 463-64 (6th Cir. 2005). The anti-recruiting rules, as applied to

Coach Flatt for the spring practice letter and the follow-up phone calls, are narrowly tailored. The

rule by its terms is limited to contacts “to secure or to retain a student for athletic purposes . . . .”

The rule also leaves open alternative channels of communication. Coach Flatt could have distributed

recruiting letters to private athletic leagues not affiliated with any school system near Brentwood’s

geographic area, or he could have distributed such materials to the administration of any public or

private school with a request that those schools give them to students. The rule expressly endorses

another alternative channel: potential students who on their own initiative contact the coaching staff

seeking enrollment or financial aid information may be referred to Brentwood’s principal,

admissions department, guidance department, or the person in charge of financial aid.

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The majority relies extensively on the required “roadmap” of our previous opinion in this

case, but following that roadmap leads directly to the conclusion that there is no First Amendment

violation. We held, in approximately one page of analysis, that the anti-recruiting rules amount to

a content-neutral regulation subject to intermediate scrutiny. 262 F.3d at 553-54 (Part D). We also

held, in another page of analysis, that the district court on remand should determine if the anti-

recruiting rules are narrowly tailored to meet TSSAA’s substantial interests. Id. at 557-58 (Part F).

Repeatedly cited in those two pages are the adult entertainment ordinance case of City of

Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), and the New York rock concert case of Ward

v. Rock Against Racism, 491 U.S. 781 (1989). Under the indisputably applicable analysis of those

cases, it is not possible to find a First Amendment violation on the primary factual findings of the

district court in this case.

The zoning ordinance at issue in Renton prohibited the location of adult theatres within 1000

feet of any residential zone, single- or multiple-family dwelling, church, park, or school. 475 U.S.

at 43. The Court held that the ordinance was to be evaluated under the test for content-neutral time.

place, and manner restrictions on speech. Id. at 46-50. This is the test that we previously held to

be applicable to the particular anti-recruiting rules in this case. The test is whether the ordinance

“is designed to serve a substantial governmental interest and allows for reasonable alternative means

of communication.” Id. at 50. The Court upheld the ordinance, ruling that the City could rely on

the experiences of other cities “so long as whatever evidence the city relies upon is reasonably

believed to be relevant to the problem that the city addresses.” Id. at 51-52. The Court rejected

arguments that the ordinance was underinclusive or that it did not allow reasonable alternative

means of communication.

Similar analysis compels a rejection of Brentwood’s First Amendment claim. In First

Amendment jargon, TSSAA is attempting to regulate the negative secondary effects of Brentwood’s

speech: the exploitation of middle school athletes, the subordination of academics to athletics, and

unevenly matched teams. The district court recognized the validity of these interests. 304 F. Supp.

2d at 994. TSSAA has furthered these interests by restricting communication between the coach and

a student prior to enrollment, just as many cities have restricted the erotic message of dancers by

keeping it away from residential areas and churches. In both cases, the negative secondary effects

are controlled by restricting the time and the nature of the messages a speaker may convey. In the

context of a content neutral, time, place, or manner ordinance regulating adult oriented businesses,

“[t]he First Amendment does not require a city, before enacting . . . an ordinance, to conduct new

studies or produce evidence independent of that already generated by other cities, so long as

whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the

city addresses.” Renton, 475 U.S. at 51-52. “Renton . . . does not require a ‘city to demonstrate[,]

... with empirical data, that its ordinance will successfully lower crime’, at least ‘not without actual

and convincing evidence from plaintiffs to the contrary.’” Baby Dolls Topless Saloons, Inc. v. City

of Dallas, 295 F.3d 471, 481 (5th Cir. 2002) (quoting City of Los Angeles v. Alameda Books, Inc.,

535 U.S. 425, 438 (2002) (plurality opinion)). Under Renton, an ordinance regulating adult oriented

businesses is valid so long as a city reasonably concludes that the time, place or manner restriction

will be effective in curtailing the negative secondary effects of the businesses; empirical proof that

the regulation is effective in lowering prostitution or crime in the case of every establishment

affected by the ordinance is not required. See Alameda Books, 535 U.S. at 438-39.

It is not right to say that because the parents in this case were happy to receive the letter and

that there was no exploitation of students or subordination of academics in this particular case,

TSSAA has relied on “shoddy data or reasoning” that does not “fairly support [its] rationale” for the

enforcement of the anti-recruiting rules against Brentwood. Compare Maj. Op. at 15 (quoting

Alameda Books, 535 U.S. at 438). Applied to an adult oriented business, such reasoning would

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allow the owner of an adult business to mount an as-applied First Amendment challenge to a zoning

ordinance if she could show that there were no negative secondary effects, such as prostitution or

crime, at her establishment. Such is not the state of the law. The anti-recruiting rules, like

restrictions on an adult oriented business, operate in the aggregate and are judged based on the

overall effect on speech; a city is not required to show that every cabaret affected by an ordinance

causes an increase in crime and prostitution before the ordinance can be applied to that business.

The aggregate overall increase in crime from an adult oriented business is sufficient to force the

operators of those businesses to disperse or congregate. Similarly, TSSAA is not required to

demonstrate that each time it enforces the anti-recruiting rules it is stamping out the exploitation of

student athletes or the bending of academics to the will of athletics for the anti-recruiting rules to

be valid. It is sufficient that, in the aggregate, contact between an authority figure such as a coach

and a potential student-athlete may lead to the exploitation of student athletes or the subordination

of academics to athletics to justify restricting contact between coach and potential student. All

TSSAA must show is that it had a reasonable belief that contact between a coach and a prospective

student had the potential for abuse in order to restrict such contact, so long as alternative avenues

to communicate the message are left intact. The record here shows such a reasonable belief.2

Moreover, the anti-recruiting rule as applied to Brentwood is narrowly tailored and leaves

Brentwood alternative channels to communicate its message. Communications not for athletic

purposes are of course permitted. Moreover, had the spring practice letter been distributed to

representatives of private sports leagues near Brentwood, school administrators of other schools with

a request for distribution, or students who on their own had contacted appropriate Brentwood

officials, there would be no violation of the anti-recruiting rules.3

The as-applied nature of the district court’s inquiry does not require a different conclusion.

A rule that precludes coach contact with not-yet-enrolled incoming students cannot be constitutional

on its face if the underlying purposes of the rule have to be demonstrated every time the rule is

applied in order to survive an as-applied challenge. Otherwise there would be no basis for having

the rule. Just as the City of Renton does not have to show ill-effects from each proposed adult

theatre placement in order to enforce its rule, and just as New York in the Ward case does not have

to show ill effects each time it requires a band to use city provided sound technicians, TSSAA does

not have to show ill effects each time it punishes coach contact with not-yet-enrolled students.

This conclusion is further supported by the traditional deference given to educators in

carrying out policies that affect First Amendment rights. This dispute arises in the context of high

school education, and the courts have consistently given great deference to educators’ decisions that

2

The majority makes the remarkable observation that TSSAA provided no “evidence to support the notion that

ensuring that high schools compete in interscholastic sports in an equitable manner is a substantial state interest,” and

no evidence “explaining why competitive equity is an important value.” Maj. Op. at 12. Presumably the City of Renton

need not provide evidence for the obvious proposition that crime increases are against the public interest, and New York

in the Ward case need not provide evidence that appropriate modulation of band concerts is in the public interest.

Similarly, it can hardly be argued that TSSAA needs to provide evidence for the obvious proposition that more evenly

balanced high school football matches are in the public interest.

3

The majority opinion also discounts the interpretive commentary accompanying the anti-recruiting rules as

non-binding to find that the anti-recruiting rules are not narrowly tailored and burden substantially more speech than

necessary. Maj. Op. at 13. Thus, the majority avoids the fact that Brentwood was punished for behavior specifically

cited as examples of conduct that would violate the anti-recruiting rules. The commentary to the anti-recruiting rules

is non-binding only to the extent that TSSAA has a certain amount of discretion in enforcing the rule, and the examples

cited in the interpretive commentary are a non-exclusive list. The discretion vested in TSSAA under the anti-recruiting

rules is not so broad that the anti-recruiting rules, despite content neutrality, become a de facto prior restraint on speech.

See City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 757 (1988) (no standards for denial or grant of permit

for newsrack on public property); Cantwell v. Connecticut, 310 U.S. 296 (1940).

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have an impact on First Amendment rights. The Supreme Court has recognized the “important,

delicate, and highly discretionary functions” that the educational system undertakes, and emphasized

a consistent concern for “the need [to] affirm[] the comprehensive authority of the States and of

school officials, consistent with fundamental constitutional safeguards, to prescribe and control

conduct in the schools.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 507 (1969).

As this court has stated, “In the First Amendment arena . . . the Supreme Court . . . has frequently

emphasized that public schools have considerable latitude in fashioning rules that further their

educational mission and in developing a reasonable fit between the ends and means of their

policies.” Blau v. Fort Thomas Pub. Sch. Dist., 401 F.3d 381, 393 (6th Cir. 2005). While not a

public school, TSSAA is a part of the educational system that regulates what both parties concede

is an important part of the high school experience. TSSAA should enjoy greater latitude in

fashioning and applying recruiting rules that prescribe and control the conduct of overzealous

coaches to further its educational mission, consistent with fundamental constitutional safeguards.

The Supreme Court and our court have both recognized that the federal courts are ill-

equipped to regulate high school education. “It long has been the case that constitutional claims

generally receive less rigorous review in the secondary and middle school setting than they do in

other settings.” Id. Federal courts are even less well-equipped to regulate high school athletics.

Finally, I note the “Catch-22” implication of the argument that the particular application of

the anti-recruiting rules violated the First Amendment in this case. By prohibiting all

communication between coaches and unenrolled students, the regulation is more rigorously content

neutral. The more the prohibition is “tailored,” for instance by permitting some types of

communication but not others, the less content neutral it becomes. An attack on the particular

application of the no-communication rule thus gives TSSAA the Hobson’s choice of (1) making the

prohibition more content specific, thereby coming closer to treading on First Amendment values,

or (2) discarding the rule—not required if the rule is facially valid.

II.

Brentwood’s procedural due process rights were not violated because the presentation of ex

parte evidence, if any, did not affect TSSAA’s final decision.

Based on TSSAA’s written decision and the testimony at trial, the district court clearly erred

in determining that the TSSAA Board of Control heard ex parte evidence related to Bart King during

its deliberations following Brentwood’s final hearing, and that the allegations regarding Mr. King

were a basis for the penalty imposed. The only support for the district court’s finding that the King

allegations were a basis for Brentwood’s punishment are two statements by TSSAA Board of

Control President Mike Reed. In his deposition, Mr. Reed stated that the King allegation was one

of the reasons Brentwood was found to have violated the anti-recruiting rules. At trial, Mr. Reed

disclaimed his deposition testimony, stating that Brentwood’s final penalty was due to Coach Flatt’s

letter rather than Mr. King’s activities. He went on to state that the Bart King allegations were a

“factor” in “what was going on and so forth,” interrupting Brentwood’s counsel before the follow

up question was finished.

With all due respect to the district court’s better position to judge the credibility and

demeanor of witnesses, the district court clearly erred in determining that Mr. Reed’s single

statement at deposition was sufficient to show that ex parte evidence was presented to the Board of

Control and formed a basis for the penalty imposed on Brentwood. Michael Hammond and Ronnie

Carter, in addition to Mr. Reed, testified that the King allegations were not a basis for the final

penalty. Mr. Hammond further indicated that the discussion of the King allegations during the

Board of Control’s private deliberations was superficial. Gene Meness and Bernard Childress, the

TSSAA investigators who looked into the King allegations, could not recall answering any question

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from the Board of Control related to Mr. King. Indeed, it is unclear what evidence they could have

presented given that they did not interview Mr. King and the investigation consisted of a series of

letters between Brentwood’s headmaster and TSSAA. In short, other than a single statement in a

lengthy deposition, there is no evidence that TSSAA based its final penalty on ex parte evidence

related to Bart King and the district court clearly erred in resting the entire weight of its finding that

Brentwood’s procedural due process rights were violated on so slender an evidentiary reed.

III.

Finally, the fact that TSSAA has been granted state authority to regulate athletic competition

requires us to affirm the district court’s conclusion that state antitrust immunity applies in this case.

TSSAA is entitled to state antitrust immunity because, as an agent of the Tennessee Board of

Education (the Board), TSSAA partakes of the Board’s state authorization to displace competition.

TSSAA has done so using foreseeable means pursuant to clearly articulated Tennessee policy. As

a result, TSSAA satisfies the applicable test for state antitrust immunity designed for municipalities

and state political subdivisions. I would therefore affirm the decision of the district court granting

summary judgment in favor of the TSSAA on Brentwood’s antitrust claims based on state antitrust

immunity.

A. TSSAA is the Tennessee State Board of Education’s Agent

TSSAA is an agent of the Board and, as such, receives state antitrust immunity if it satisfies

the test for municipalities or state political subdivisions. Our ruling in Consolidated Television

Cable Service, Inc. v. City of Frankfort indicates that TSSAA is an agent of the Board. 857 F.2d

354 (6th Cir. 1988). In that antitrust suit, we held that a municipal cable television corporation (that

obviously was not itself a city) was an agent of the City of Frankfort and thus should receive state

antitrust immunity if it satisfied the test for municipalities. Id. at 358-60. We classified the

corporation as the City’s agent because the City exercised “ultimate control” over the corporation.

Id. at 359.

More specifically, the City had “ultimate control” over the corporation because (1) it was

a municipal corporation; (2) the corporation’s form and method had been dictated by the City; (3)

the corporation existed at the City’s pleasure; (4) and the City appointed one half of the

corporation’s board of directors. See Consolidated, 857 F.2d at 358-59.

Analogously, the Board exercises “ultimate control” over TSSAA. The Board enjoys

ultimate control over TSSAA because the Board delegated to TSSAA all of TSSAA’s regulatory

powers and therefore can revoke its authority at any time. See Brentwood Acad. v. Tenn. Secondary

Sch. Athletic Ass’n, 13 F. Supp. 2d 670, 679-81 (M.D. Tenn. 1998). The Board wields a general

power to review, approve, or reaffirm the content of TSSAA’s regulations. See Brentwood Acad.

v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 292-93, 299-301 (2001). At its whim, the

Board can revoke any TSSAA rule it dislikes. See id. The Board’s review power implicitly

disciplines TSSAA. See id. Moreover, the Board’s chairman has power to designate a person or

persons to serve in an ex-officio capacity on TSSAA’s governing bodies. Id. at 292. The Board

may thus directly influence TSSAA’s most minute decisions by populating its decision-making

bodies with people of its selection. The Board’s complete dominion over TSSAA is “ultimate

control” under Consolidated, making TSSAA the Board’s agent.

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B. The State Antitrust Immunity Test for Municipalities and State Political Subdivisions

Applies to TSSAA’s Allegedly Anticompetitive Conduct

Because TSSAA is the Board’s agent, and the Board is a state agency, TSSAA need only

satisfy the state antitrust immunity test for municipalities or state political subdivisions, not the more

stringent test for private actors. See Consolidated, 857 F.2d at 359-62 (applying the test for

municipalities to an agent of a municipality). In Consolidated we read Town of Hallie v. City of

Eau Claire, 471 U.S. 34 (1985), clearly to hold that the requirement of “active supervision” applied

“only when the actor is a private party rather than a municipality.” Consolidated, 857 F.2d at 360.

The test for municipalities and state political subdivisions allows TSSAA to act anticompetitively

pursuant to “clear articulation of a state policy to authorize anticompetitive conduct.” See Town of

Hallie, 471 U.S. at 40-42 (internal quotation omitted). Tennessee law need not explicitly demand

or permit displacement of competition. See id. at 41-42. The anticompetitive conduct need only be

the “foreseeable result” of state authorization. Id. at 42.

C. Tennessee’s Policy to Displace Competition in Interscholastic Athletics is Evident

in Its Broad Grant of Authority to Regulate Interscholastic Athletics

Tennessee’s policy to displace competition in interscholastic sports may be inferred from its

grant of authority to the Board. As the Supreme Court has noted, Tennessee law vests in the Board

wide-ranging authority to regulate primary and secondary education. See Brentwood Acad., 531

U.S. at 292 (citing TENN. CODE ANN. § 49-1-302). Section 49-1-302 grants broad powers that

include the authority to regulate athletics programs; this section further serves as the basis for

TSSAA’s status as the agency responsible for regulating interscholastic school sports in Tennessee.

See id. Under the Supreme Court’s decision in City of Columbia v. Omni Outdoor Advertising, such

broad authority to set restrictions on competitive endeavors makes evident the state’s policy to

displace competition. See 499 U.S. 365 (1991).

In Omni, the Supreme Court held that state antitrust immunity applied to a city that had used

its state-granted zoning authority to restrict billboard construction. See id. at 368-79. In holding that

state delegation of zoning authority to a city evinces a state policy to displace competition, the Court

said: “The very purpose of zoning regulation is to displace unfettered business freedom in a manner

that regularly has the effect of preventing normal acts of competition, particularly on the part of new

entrants. A municipal ordinance restricting the size, location, and spacing of billboards (surely a

common form of zoning) necessarily protects existing billboards against some competition from

newcomers.” Id. at 373. Consequently, the mere delegation of zoning authority to the city

adequately evinced a state policy to displace competition.

In this case, the delegation to TSSAA of comprehensive power to regulate interscholastic

athletics is the equivalent of the city’s grant of zoning authority in Omni. Just as the exercise of

zoning authority in Omni stopped a company from competing in the billboard construction market,

TSSAA’s anti-recruiting rules restrict schools’ efforts to build their best teams by wooing talented

players with scholarships or perquisites. In a broader sense, also, TSSAA’s potential efforts to

determine the venues of games, what teams will face each other, the grouping of schools into

divisions, the dates of the a

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