Opposition Brief — TENN. SEC. SCHOOL ATHLETIC v. Brentwood Acad.

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No. 06-427

In The

Supreme Court of the Gnited States

TENNESSEE SECONDARY SCHOOL ATHLETIC

ASSOCIATION 9

Petitioner,

BRENTWOOD ACADEMY,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit,

RESPONDENT’S BRIEF IN OPPOSITION

H. LEE BARFIELD II JAMES F. BLUMSTEIN

Counsel of Record Vanderbilt University

W. BRANTLEY PHILLIPS, JR. School of law

Bass, Berry & Sims PLC 131 21st Avenue South

315 Deaderick Street, Suite 2700 Nashville, TN 37203

Nashville, TN 37238 (615) 322-0045

(615) 742-6200

Attorneys for Petitioner

QUESTIONS PRESENTED FOR REVIEW

. Whether, as stated in the Tennessee Secondary

School Athletic Association’s (TSSAA) Petition for

Certiorari at 27-29, this Court should overrule its

previous décision im this case that held (a) that

TSSAA’s sanctions against Brentwood Academy

(BA), an independent school member of TSSAA, for

pure non-commercial speech arose from a

“regulatory enforcement proceeding”, 531 U.S. 288,

293 (2001), and (b) that such TSSAA “regulatory

activity ... should be treated as state action ....°? /d.

at 291.

. If the answer to Question One is no, whether, under

longstanding First Amendment principles

traditionally applied in a regulatory setting, TSSAA

carried its burden of justifying its punishment of

BA’s pure non-commercial speech under the time,

place, and manner doctrine (a) when the penalized

speech is “harmless informational speech about a

permitted athletic practice,” 304 F. Supp.2d 981, 995;

is “consistent with ... TSSAA’s _ legitimate

governmental interests,” id.; “caused no actual harm

and did not reasonably threaten harm to students,

parents, or any legitimate governmental intcrests,”

id.; was addressed to “all the parents of all the male

-students who had applied, been tested and admitted,

and signed cnrollment contracts, students who had

already decided to attend [BA],” id.; and was directed

at “post-recruitment activity,” id. at 996; and (b)

when the basis of the enforcement action relies on the

content of the speech; and depends on the

discretionary and standardicss judgment of the

TSSAA and its Executive Director?

3. If the answer to Question One is no, whether TSSAA

violated BA’s procedural due process rights by (a)

failing to inform BA of important evidence it relied

on in sanctioning BA (actually misleading BA on the

relevance of the evidence in question as the District

Court found, id. at 1004 n.29), and (b) by failing to

give BA an opportunity to respond timely to that

evidence?

4. If the answer to Question One is yes, in whole or in

part, what standards, if any, under the First

Amendment and under procedural duc process are

appropriate to review the conduct of TSSAA and

whether TSSAA has satisfied those standards?

RULE 29.6 STATEMENT

Respondent BA does not have a parent corporation,

and no publicly-held company owns 10% or more of BA’s

capital stock.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW .........00.......e i

TABLE OF AUTHORITIES anctalinbiidinicininenmianinteieidaeninimanentel Vv

EPCS ITS GE BONIS Cie ccenericccsssensesensscovessezsonseenszennnece ]

BN II -cisicsissniniscninsaannninenciinenisenbisionennnnniiieninnes l

I ctinsssnidinsacinitinssnnenessnneenmapemenenunianintn 7

The Recruiting Rule: Its Application

SII icissnssinciatiacpnceciiiiahbiniiciiaiceninpiaibieeieceantesenensiel 9

REASONS FOR DENYING CERTIORARI...................... 15

TSSAA’s Challenged Action Was Regulatory ........ 16

The Time, Place & Manner Defense......................85 23

ITI scsetisceiccdetstnhaesbinsiecteseionindancibs asoneeseneenenesens 27

I attcititiniesapssshicianastesshiniieaniashestibdeintinilaciiaeeainigetinunseaniin 30

APPENDIX

TABLE OF AUTHORITIES

Page(s)

Federal Cases :

Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1976) ........... 21

Agostini v. Felton, $21 U.S. 203 (1997) oo... eeeeeee 28, 29

Amalgamated Food Employees Union v. Logan

Valley Plaza, Inc., 391 U.S. 308 (1968) ...........cccceeeeeeeees 17

Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963)...... 17, 18

Board of Regents v. Southworth, 529 U.S. 217 (2000)........ 20

Brentwood Academy v. Tennessee Secondary Sch.

Athletic Ass'n, 13 F. Supp.2d 670 (M.D. Tenn.

Brentwood Academy v. Tennessee Secondary Sch.

Athletic Ass'n, 304 F. Supp.2d 981 (M.D. Tenn.

IED vccvinencsstisimivinbinninnsiniiigdaniaeiiiagamaadan passim

Brentwood Academy v. Tennessee Secondary Sch.

Athletic Ass'n, 262 F.3d 543 (6th Cir. 2001) ............ passim

Brentwood Academy vy. Tennessee Secondary Sch.

Athletic Ass'n, 442 F.3d 410 (6th Cir. 2006) ............ passim

Brentwood Academy v. Tennessee Secondary Sch.

Athletic Ass'n, 531 U.S. 288 (2001)... eeeeeeeeeeee passim

Chicago Teachers Union v. Hudson, 475 U.S. 292

STEER ce ee ee 22

Crocker v. Tenessee Secondary Sch. Athletic Ass'n,

1990 U.S. App. LEXIS 12511 (6th Cir. 1990)... 2

Edenfield v. Fane, 507 U.S. 761 (1993)........cccccccseceeeseeeeeeee 10

First Nat'l Bank v. Bellotti, 435 U.S. 765 (1978)........... 11,22

Forsyth County v. Nationalist Movement, 505 U.S.

NEI GESS TERA Se e e 14,19

Garcetti v. Ceballos, 126 S. Ct. 1951 (2006)................0000. 23

Goldberg v. Kelly, 397 J.S. 254 (1970) ........cccccccceceeeeeeseeees 30

Hamdi v. Rumsfeld, 542 U.S. 507 (2004) 20.......:cccccececeeeeeees 30

Holy Cross College, Inc. v. LHSAA, 632 F.2d 1287

REE EL ee 27

Hurley v. Irish-American Gay, Lesbian and

Bisexual Group, 515 U.S. 557 (1995) .....ccccccccceeeeeeeeees 2,25

Ibanez v. Florida Bd. of Accountancy, 512 U.S. 136

ae iaiciinsiinsmsenetnnnnnnadente 19

In re Primus, 436 U.S. 412 (1978) 0... .cccccccccccceeeeeeees 14, 25, 26

Kadrmas v. Dickinson Pub. Sch., 487 U.S. 450 (1988)....... 23

Keller v. State Bar, 496 U.S. 1 (1990) .o...ccccccccccceecceeeeeeeeeees 21

Legal Services Corp. v. Velazquez, 531 U.S. 533 (2001)... 21

Vii

Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001)......... 24

Marsh v. Alabama, 326 U.S. 501 (1946) ..........cccccccccceeeeeeees 17

Members of the City Council v. Taxpayers for

FE, Se Re Fe PD cictctsntecietncctnseccmmenenneinn 26

Mitchell v. W.T. Grant Co., 416 U.S. 600 (1974)... 29

New York Bar Ass'n v. Reno, 999 F. Supp. 710

Ts Tw: GN iciiecscniinnidinitsintdinniniaainnnitintstanestscnmniesiuenneia 16

Ohralik v. Ohio Seats Bar Ass'n, 436 U.S. 447 (1978)........ 25

Pierce v. Society of Sisters, 268 U.S. 510 (1925) .............0 11

Republican Party v. White, 536 U.S. 765 (2002)................. 1]

Rosenberger v. Rector and Visitors of the Univ. of

PE, FE Wie Ge GD cctesiccrernrnereentnianinnnnnnenian 20

Rottmann v. PIAA, 349 F. Supp.2d 922 (W.D. Pa. 2004).... 27

Rumsfeld v. FAIR, 126 S. Ct. 1297 (2006).........:cceeseeeeeeeees 23

Shuttlesworth v. Birmingham, 394 U.S. 147 (1969)............ 14

Southeastern Promotions, Ltd. v. Conrad, 420 U.S.

ESTEE Re eer one tea re nn 14, 18,19

Thomas v. Chicago Park Dist., 535 U.S. 316

STITUTE A inicipiasespentpuiadiosiibaisncessiiciantniniuniniaiinniideiaasdintaiheiomaaneis 14, 19, 24

Thompson v. Western States Med. Ctr., 535 U.S. 357

Vill

Widmar v. Vincent, 454 U.S. 263 (1981) .....cccccccecseeeereeeeees

Federal Rules ;

a a a sieeididasapanialeiiaimmionnantant

STATEMENT OF THE CASE

Some Preliminaries

1. TSSAA threatens its member school Brentwood

Academy (BA), as an independent school, with expulsion

(TSSAA calls this “exclusion”’) if BA remains successful in

securing First Amendment protection against TSSAA’s

regulatory discipline. Pet. 14, 30.' TSSAA asserts that “[o]n

a practical level...[{t}he real issue” is whether TSSAA and all

similar regulatory bodics will continue to exercise regulatory

authority over private schools. Not leaving the answer to the

imagination, TSSAA avers that “[i]f allowed to stand, the

Sixth Circuit’s analysis will inevitably lead to the exclusion

of private schools from associations like TSSAA.” /d. at 14.

This Court should not allow such improper, heavy-

handed threats of retaliation — probably illegal in their own

right — to influence its review-granting process. When this

case was last here, 531 U.S. 288 (2001), this Court held that

TSSAA’s “regulatory activity,” exercised “in lieu of the

State Board of Education’s exercise of its own authority,”

was state action, subject to constitutional scrutiny. /d. at

291. TSSAA proffered a Chicken Little scenario analogous

to its threat of retaliation herein — that a finding that TSSAA

was a State actor “will somehow trigger an epidemic of

unprecedented federal litigation.” /d. at 304. This Court

rejected that claim, noting “no evident wave of litigation,”

id., even though every other jurisdiction to have addressed

the state action issue (going back to 1968) had found similar

regulatory bodies to be state actors subject to constitutional

' “Pet.” citations refer to TSSAA’s Certiorari Petition. “Tr.” citations

refer to the trial transcript. “CAJA” refers to the joint appendix filed in

the Sixth Circuit in this appeal. “JA” refers to the joint appendix filed in

the Sixth Circuit in the first appeal. “BIO” refers to TSSAA’s Brief in

Opposition to Certiorari in No. 01-1117. “Apx.” refers to the Appendix

herein.

scrutiny of their “regulatory activity.” /d. at 291,294 n.1. It

should reject TSSAA’s analogous threat herein.’

2. TSSAA’s Petition asserts that BA “committed

several ... intentional violations of the recruiting rule [RR].”

Pet. 2. This is incorrect. BA’s Headmaster Curtis Masters

testified that “[fJrom the very beginning ... [BA’s] intent

was to abide by the recruiting rule to the letter.’ Tr. 2226-

27; 304 F. Supp.2d 981, 992.

Ronnie Carter, TSSAA Executive Director, has

conceded that BA had no intent to violate RR. CAJA 1830,

1848. The parties so stipulated. CAJA 126 (940); 63 (491)

> There is, unfortunately, precedent for TSSAA’s threat of retaliation.

TSSAA plays hardball. In Crocker v. TSSAA, 1990 U.S. App. LEXIS

12511 (6" Cir. 1990), the District Court enjoined TSSAA from imposing

sanctions against a public high school for allowing Crocker to play

interscholastic sports. After the injunction was dissolved on appeal,

TSSAA immediately ruled that the school for which Crocker played

“must forfeit all ... games in which Crocker had played” under the

District Court’s protective order. The Sixth Circuit overturned TSSAA’s

vindictive, retaliatory forfeiture action: “It would be unfair to penalize

McGavock High School for actions that it took in compliance with.a__

District Court order during the pendency of that order.” /d. TSSAA’s °

vindictive threat of retaliation is not a proper basis for granting

Certiorari.

* Throughout this litigation, BA has supported a recruiting rule “that

prevents inappropriate conduct” but that “allows the school to tell its

story.” Tr. 2228. Government can limit conduct to prevent “harmful

behavior” in ways it cannot limit speech. //urley v. Irish-American Gay,

Lesbian and Bisexual Group, 515 U.S. 557, 579 (1995). This distinction

between conduct and speech is one that TSSAA has steadfastly refused to

recognize. At trial, no TSSAA expert witness drew a distinction between

speech and conduct, condemning a monolithic, undifferentiated

abstraction — athletic recruiting. See, e.g., testimony of Dr. Sharon Stoll,

who did not understand the difference between speech and conduct, since

both can influence students: “I don’t understand. Is there a difference

between speech and conduct? ... | really don’t understand... | don’t see a

difference.” CAJA 1768-69. See also the testimony of Dr. George Sage.

who also drew no distinction between speech and conduct, opining that

“speech is a form of conduct.” CAJA 1690.

(“The TSSAA admits that Coach Flatt had no intention of

violating the Recruiting Rule by mailing the Spring Practice

Letters and making the telephone calls”). The District Court

found that BA had no “scienter” to violate RR, 304 F.

Supp.2d at 992 & n.5, 1002."

3. TSSAA asserts that “many private schools in

Tennessee join other athletic associations with different

values and different rules.” Pet. 2, 15. TSSAA does not

point to any factual findings of the District Court to support

this factual assertion, and there are none. The only District

Court finding is to the contrary. In rejecting the assertion

that BA “should cither leave the TSSAA or change the

TSSAA rules,” the District Court stated that “TSSAA is

effectively the only game in town.” /d. at 997. In 2001, this

Court noted that “[n]o school is forced to join” TSSAA, “but

without any other authority” actually regulating

interscholastic athletics,” nearly all high schools with athletic

programs accept TSSAA’s regulatory authority. 531 U.S. at

291.

TSSAA cites testimony by Carter to support its

position. That testimony was not adopted by the District

Court, and it is easy to sec why. Carter asserted that there

was a high school sports regulatory entity “in Chattanooga,”

but he was “not sure of the name.” CAJA 868. Carter

testified that a few independent schools had left TSSAA, but

he could not “remember the year.” /d. at 869. No evidence

* TSSAA has been factual-accuracy challenged before in this case. The

District Court characterized statements by and affidavits on behalf of

TSSAA as being “disingenuous, at best” and “utterly false.” 13 F.-

Supp.2d at 681, 685. To rebut the assertion that all public schools in

Tennessee were members of TSSAA, Carter filed an affidavit listing

public schools that were not TSSAA members. JA 214-16. Upon

investigation, it turned out that all public high schools that have

interscholastic athletic teams were TSSAA members. The schools listed

in the Carter affidavit did not have interscholastic sports programs.

Rather, they included “alternative” or special education schools (e.g., for

the physically disabled). JA 217-18.

in the record and no findings support TSSAA’s asscrtion that

viable regulatory alternatives to TSSAA exist for BA or

other similar schools. See note 4, supra.

4. Subsequent proceedings in this matter remain in

the District Court. BA’s equal protection claim “has not

been addressed by the Court of Appeals because the claim

was added by Amended Complaint after this case was

remanded to [the District} Court” in 2001. 304 F. Supp.2d at

1008. That claim raises both facial and as applied challenges

to TSSAA’s RR, which the District Court in its discretion

declined to adjudicate in 2003. So, any decision by this

Court on the merits would be subject to further litigation on

the very same factual matters (under a different legal theory).

Similarly, since the Court of Appeals reinstated BA’s

antitrust claims, further proceedings on those issucs still

remain. 442 F.3d 410, 440-44. Whilc those claims are

analytically distinct, their ultimate resolution could have a

significant effect on how TSSAA is organized and structured

in performing its regulatory functions.

That further proceedings are still contemplated in the

District Court does not deprive this Court of jurisdiction,

“(bjut in the absence of some ... unusual factor, the

interlocutory nature of a lower court judgment will generally

result in a denial of certiorari.” ROBERT L. STERN, et al.,

SUPREME COURT PRACTICE 260 (8" ed. 2002).

5. No Sixth Circuit judge “requested a vote on the

suggestion for rehearing en banc.” Pct. Apx. 154a. Thus,

Judge Rogers, who dissented from the panel decision and

from the denial of panel rehearing, declined to recommend

or vote for rehearing en banc. This strongly suggests that,

even though he disagreed with the panel majority’s decision,

Judge Rogers believed that further appellate revicw beyond

the pancl was not appropniate or otherwise indicated.

Judge Rogers’ view on en banc rehearing should

counsel against Certiorari here. When this Court took this

case in October Term 2000, there was a strong dissent urging

en banc reconsideration and noting creation of a circuit split

on the very issue decided. 531 U.S. at 294. Neither of those

factors is present herein.

6. TSSAA’s analytical approach in this matter has

been an opportunistic moving target. At summary judgment,

the issue was whcther RR and its application constituted

content-based or content-ncutral regulation. TSSAA

asserted that RR was content-neutral — a “valid time, place

and manner [TPM] restriction.” The District Court rejected

this defense: The RR “ban is content-based because the

interests asserted by the Defendants to support the ban focus

on the content of the message and the effect of the message

on the listener.” 13 F. Supp.2d at 687-88.

The Sixth Circuit found RR to be a “content-ncutral

regulation” subject to “reasonable [TPM] restrictions.” The

Sixth Circuit accepted TSSAA’s analytical framework —

TPM analysis with intermediate scrutiny rather than the strict

scrutiny applicd by the District Court. 262 F.3d at 553-54.

BA unsuccessfully sought Certiorari. No. 01-1117.

TSSAA contended that RR was a content-neutral regulation

that “must ... be viewed as a reasonable restriction on the

time and manner of [BA’s] solicitation of minors.” BIO 15.

At trial, TSSAA could not sustain its content-

neutrality claim. The District Court found that “the

preponderance of the credible evidence at trial is that the

substantive ‘content’ of the Spring Practice Letter and calls

mattered and was a significant factor in the TSSAA’s

decision that the letter and calls constituted ‘undue

influence’ and violated the Recruiting Rule. The TSSAA

penalized [BA] for the substantive ‘content’ of the Spring

Practice Letter and calls and the message they conveyed in

this case.” 304 F. Supp.2d at 991 n.4. Thus, TSSAA was

unable to sustain its TPM defense, which it used to win

reversal in the 2001 appeal and to resist review in this Court

in No. 01-1117. TSSAA effectively abandoned its TPM

claim on appeal after trial and is now seeking review in this

Court on an altogether different theory.

This is potentially very prejudicial to BA. The broad

“public concern” solicitation issues raised in the context of

BA’s facial challenge, see 13 F. Supp.2d at 688-90, have

been removed from the case as a result of the Sixth Circuit’s

2001 decision, which narrowed the issues to an as applied

First Amendment challenge. 262 F.3d at 555-56, 558.

7. To the extent that TSSAA seeks review on the

application of TPM doctrine, Pet. 18-20, the Court should be

aware of a problem in the record confronting TSSAA.

Interrogatory 47 put the following question to

TSSAA: “Does TSSAA contend that the recruiting rule is

‘narrowly tailored’ to serve the governmental interests

described in your response to the foregoing interrogatory

number one? If so, explain in detail the factual support for

any such contention.” This was TSSAA’s response, in

relevant part: “TSSAA does not contend that the recruiting

rule as applied is narrowly tailored to scrve the governmental

interests it furthers.” Without objection, this Interrogatory

and response were read into and were admitted as part of the

record at trial. Tr. 2301-02.

Several days later, TSSAA asserted that its response

to Interrogatory 47 was the result_of a “clerical error” and

sought to supplement its answer to Interrogatory 47. BA

timely objected on the ground that TSSAA did not

supplement its response in a timely manner under the local

rules, which require TSSAA to review discovery responses

and correct them before trial. Local Rule 9 provides that

answers to interrogatorics may be supplemented no later than

30 days before trial. BA had “great difficulty accepting the

idea that this is merely a clerical error.” During a discovery

dispute, TSSAA “had at least three opportunities to go back

through their answers and to check to make sure everything

was like it ought to be.” The answer read into the record was

“consistent with the proof’ at trial, Tr. 2736, and,

syntactically, it is hard to credit the “clerical error” claim

when the answer is as follows: “TSSAA does not contend

that the recruiting rule as applied is narrowly tailored ....”

Applying Local Rule 9, the District Court rejected

TSSAA’s attempt to supplement its answer to Interrogatory

47 It accepted TSSAA’s submission as an offer of proof

that there was a clerical error, but the record only contains

TSSAA’s actual answer to Interrogatory 47. Tr. 2738. The

evidentiary matter has not been preserved on appeal by

TSSAA. Since the record shows TSSAA’s acknowledgment

that it cannot meet the TPM standard, and the facts (as found

by the District Court and affirmed by the Sixth Circuit) are

consistent with that acknowledgment, this record provides a

questionable vehicle for this Court to review the application

of the TPM doctrine to the circumstances of this case.

The Factual Context

In 1995, BA defeated Riverdale, a public high schoo!

and traditional football powerhouse located in Murfreesboro,

for a football championship. Hulon Watson, Riverdale’s

principal, acknowledged that he was “quite upset with the

loss;” the “Murfreesboro community [was] behind the

Riverdale team that year as they pursued the game;” and

there was a “big crowd at the game.” CAJA 1802-03. A

“winning team and a staie championship brings a sense of

pride to the community and the school that cannot be

described.” CAJA 1806.

This sense of community pride in winning a

statewide athletic championship and _ its attendant

protectionism are recurrent themes. When asked about the

purpose of RR, TSSAA Board of Control member Morris

Rogers was not subtle. The purpose is “obvious.” It is

“really for protection “of schools and coaches,” by

“({kJeep[ing] them from losing their best players.” CAJA

t628-29.

Jack Roberts of Michigan’s TSSAA counterpart

asserted that “[t]he sports events of our high schools are a

source of pride.... [C]ommunities take a lot of pride in their

sports teams,” can “develop[] a sense of owncrship of these

children” (considering them “our kids”), and “can develop

resentment” if, “for academic or athletic reasons,” students

choose to attend an independent school, “[e]specially if they

are really good athletes.” CAJA 1620-21.

Scott Brunctte, Nashville public schools athletic

director, and Michael Hammona, TSSAA Board of Control

member, testificd that public school officials and coaches sec

students zoned to their schools as “our kids,” and “complain

about private schools ... beating us with our own kids” or

“taking their students.” CAJA 1298, 642-43.

Shortly after Riverdale’s loss to BA, Watson

convened a “split” mecting of about 25 schools for the

purpose of proposing “to separate private and public schools

... [a]s far as athletic competition is concerned.” CAJA

1803. The deep hurt Watson felt for his school, because of

its defeat in a football game, would be remedied by ensuring

that Riverdale would not face BA in a championship again.

Watson believed that it was an “injustice” that private

schools won more state championships than their percentage

of TSSAA membership warranted. CAJA 1812. BA had a

“great coaching staff in football,” and “good coaches ... can

attract higher quality athletes.” CAJA 1821.

In convening the “split” meeting, Watson

“absolutely” did not notify TSSAA, Carter, or any private

schools because he “didn’t think they would support it.”

TSSAA’s Legislative Council approved the proposed “split”

in modified form. CAJA 1814, 1819-20, 1822-23.

This very divisive “split” episode, which is addressed

in BA’s antitrust claim, provides context for TSSAA’s

regulatory enforcement proceeding against BA. When, just

months aftcr the “split,” a public school official reported

alleged recruiting violations against BA, Carter had just been

on the losing side of a major internal TSSAA power struggle.

That he had not been invited to the “split” meeting and was

unsupportive of the “split” proposal demonstrate his tenuous

political standing when BA — the very school whose athletic

success had brought about the “split” — was accused

(wrongly, as it turned out) of intentionally violating RR by

offering free football tickets to unenrolled students.

During its investigation, TSSAA learned that BA had

not knowingly or intentionally violated RR. Carter conceded

that BA had no intent to violate RR. CAJA 1848, 1830. The

partics have so stipulated. CAJA 126 (440), 63 (491). When

the investigation showed no intentional violation, Carter and

TSSAA staff were in a political bind. Exoncrating BA

would be a hard sell to the Watson hard-liners. Thus, despite

this information, TSSAA pursued enforcement against BA.

The Recruiting Rule: Its Application and Interpretation

RR prohibits the “use of unduc influence on a student

..., the 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.” “Undue influcnce” is

defined as “exceeding what is appropriate or normal.” 304

F. Supp.2d at 984. The terms “appropriate or normal” are

not defined. 13 F. Supp.2d at 686.

The Spring Practice Letter (SPL). TSSAA cleared

Ray Marley, a Grassland Middle School student, to lift

weights at BA during 1996-97. 304 F. Supp.2d at 997 &

n.14. Marley planned to matriculate at BA in fall 1997.

Marley wished to attend spring football practice in May

1997, as permitted under TSSAA rules. 442 F.3d at 419 n.2.

“[T]o avoid singling out any students, particularly

Ray Marley,” BA’s football coach Carlton Flatt sent the SPL

in April 1997 “to all incoming ninth grade male students

who had applied, been tested and admitted, and signed

enrollment contracts with [BA].” 304 F. Supp.2d at 989.

One accepted student, who had not signed an enrollment

contract, was not sent the SPL. 442 F.3d at 428.

The SPL was informational, sctting forth dates for

spring football practice and inviting students to attend if

interested. The letter was followed by a telephone call to the

parents of each student to reaffirm that participation in spring

practice was entirely optional. Students who received the

letters were entering high school and, therefore, had to

change schools upon graduating from middle school.

The District Court found that the SPL and calls

“caused no actual harm and did not reasonably threaten harm

to students [or] parents” and “simply were harmless

informational speech about a permitted athletic practice from

a private school to all the parents of all the male students

who had already applicd, been tested and admitted, and

- signed enrollment contracts, students who had already

decided to attend [BA].” The SPL and calls “did not ‘single

out’ students since they went to all the families of all male

students who had completed the enrollment process.” 304 F.

Supp.2d at 995, 442 F.3d at 428-29 (affirming).

With respect to the SPL and calls, the District Court,

applying intermediate scrutiny, held that RR was “not

narrowly tailored to further any of the three governmental

interests’ of the TSSAA as applied to Brentwood Academy.”

* The interests asserted by TSSAA initially were “(1) to keep high school

athletics in their proper place subordinate to academics and (2) to protect

student athletes from exploitation.” At the second appeal, TSSAA

“proffered an additional interest ... fostering a level playing field

between the various member schools.” 262 F.3d at 557. Governmental

regulation of speech must serve a substantial interest that must be

“actual,” not merely “stated” or otherwise conjured up after the fact.

Edenfield v. Fane, 507 U.S. 761, 768 (1993). That TSSAA “conceivably

could have enacted” its regulatory restriction on speech for a particular

reason is insufficient since this Court has not sustained speech

restrictions “on the basis of hypothesized justifications.” Thompson vy.

Western States Med. Ctr., 535 U.S. 357, 374 (2002). TSSAA has not

established that “competitive equity” is an “actual” as distinct from a

“stated” purpose, especially since it did not think to defend RR on that

The SPL and calls “are an example of ‘due,’ rather than

‘unduc,’ influence, as testificd by the parents of these

students.” 304 F. Supp.2d at 995. The Court of Appeals

affirmed. 442 F.3d at 428.°

ground at summary judgment in the District Court or in the first appeal.

Under the circumstances, this Court “need not pursue that inquiry.”

Republican Party v. White, 536 U.S. 765, 778 (2002).

TSSAA now asserts — competitive equity — and its other two interests.

As applied to speech restriction, competitive equity shifts the focus from

the student’s interest, which is the unit of analysis under the

“exploitation” and “subordination” theories, to the collective interest of

the schools in the association, CAJA 1685-86, thereby necessarily

subordinating the interest of the student to that of the association (and, to

some degree, commodifying the students themselves). See Factual

Context, supra. This places the educational interests of the students in

substantial tension with the interests of the association. It treats students

as objects, as “mere creature[s] of the state,” which Pierce v. Society of

Sisters, 268 U.S. 510, $35 (1925), condemns. Such an approach turns the

role of government — facilitating educational opportunities for youth — on

its head, and disrespects the primacy of student/family choic:

Addressing that tension, the District Court held that the “substantial

government interest in informed choice trumps any governmental interest

in controlling which schools or teams win athletic contests” because

“[ajcademics are more important than athletics.” 304 F. Supp.2d at 994.

Since TSSAA asserts an interest in subordinating athletics to academics,

it is hard-pressed analytically to take issue with that holding. The Court

of Appeals agreed, holding that competitive equity is not a “substantial”

governmental interest justifying a restraint on speech. 442 F.3d at 426-

27. Non-threatening and non-coercive school-initiated, targeted

communication with non-matriculated students “may influence the

outcome” of a student’s decision whether or not to attend a particular

school. “| T]his would be its purpose.” But TSSAA may not “restrict the

speech of some [members] in order to enhance the relative voice of

others.” That is “wholly foreign to the First Amendment.” First Nat'l

Bank vy. Bellotti, 435 U.S. 765, 790-91 (1978). As the District Court

stated at summary judgment, “TSSAA does not have a legitimate interest

in preventing a school, public, private or parochial, from providing

information in an effort to persuade potential students that the

educational experience at that school is superior to that to be gained at

another school.” That is, “it is simply not the business of the State to

Su udgment Stage. Considerable interpretive

commentary follows RR. 304 F. Supp.2d at 984-86. At

summary judgment, violation of the commentary seemed to

be a per se violation of RR. 13 F. Supp.2d at 686.

Punishment of BA seemed unrelated to the content of its

communications with students and parents and, according to

TSSAA, was defensible undcr TPM theory because not

content-based. /d. at 687-88.

In 2001, the Sixth Circuit accepted those assertions;

as defined by the commentary, RR “prohibit|s] the coaches

and those acting on their behalf from initiating the contact”

with “prospective students.” 262 F.3d at 553, 557. Based on

the summary judgment record, it concluded that RR, “as

defined by the questions, answers, and guidclines contained

within the TSSAA Bylaws,” id. at 552, was “regulatory

action,” id. at 558, addressing “sccondary effects” unrelated

to the content of the specch, id. at 553, and did not “ban[] the

sibstantive content of any particular message.” /d. at 552.

Accordingly, that court held that the RR regulated the

“manner” in which schools can communicate about their

athletic programs, id., and applied the intermediate scrutiny

standard applicable to TPM regulations. /d. at 553-54.

BA sought review in this Court. No. 01-1117.

TSSAA described the SPL as a form of “recruiting conduct”

proscribable “regardicss of the specific content of the

message it uses to solicit minors” and _ sanctionable

“{rjegardless of the specific content of any recruiter’s

message,” or its “persuasive effect.” BIO 13-14, 17.

TSSAA characterized its enforcement of RR as “[s]tate

regulation,” which is “triggered by the event rather than the

content of any speech during the event.” TSSAA contended

stifle competition among schools for students, whether those students are

athletes, musical prodigies, or math geniuses. In the competition among

schools for students, the First Amendment prohibits the State from

favoring one side ... by suppressing the speech of the other .... TSSAA

cannot control school choice through censorship.” 13 F. Supp.2d at 689.

that its RR “must ... be viewed as a reasonable restriction on

the time and manner of [BA's] solicitation of minors.” BIO

15.

Trial Stage. At trial, TSSAA disavowed a content-

neutral interpretation of the interpretive commentary as

creating and defining a secrics of specific per se RR

violations. TSSAA did not identify “secondary effects”

unrelated to the content of speech toward which the

regulation of specch was aimed. The District Court found

this as a fact. 304 F. Supp.2d at 996 n.12.

The evidence at trial demonstrated that, in

administering RR, TSSAA focused, on a case-by-case basis,

on the content of the communication in determining whether

it constituted “undue influence.” TSSAA acknowledged that

the content of the punished speech and its impact on the

recipicnts of the SPL and calls were critical ingredients

underlying TSSAA’s discipline of BA. The District Court

found: “[T]he preponderance of the credible evidence at trial

is that the substantive ‘content’ of the [SPL] and calls

mattered and was a significant factor in the TSSAA’s

decision that the letter and calls constituted ‘unduc

influence’ and violated the Recruiting Rule.” /d. at 991 n.4;

see also id. at 996 n.12 (“[T]he application of the Recruiting

Rule to [BA] in this case is with reference to the content of

the speech and the impact of the speech”).’

The interpretive commentary is not a set of content-

ncutral per se rules but constitutes guidelines that Carter and

TSSAA have discretion to disregard in applying RR’s

“undue influence” standard. CAJA 740, 817, 846-55, 1009-

10. Analysis under RR is a standardless, ad hoc totality-of-

’ At trial, TSSAA distinguished, based on content, the SPL and a

comparable “Warrior” letter from another coach at agother school

(Riverdale). TSSAA deemed the SPL “undue influence” but not the

Warrior letter. /d. at 991; CAJA 814-25. See Appendix A.

the-circumstances approach. CAJA 1702, 817. There are

“not violations of questions” but only of the “unduc

influence” standard of RR; determination of a violation

requires Carter to “put that all into the context of what has

occurred,” CAJA 851, to “determine whether all the factors

that are there” constitute “undue influence.” CAJA 849.

Carter stated that “[w]e don’t have an initial contact

rule,” CAJA 740, and “[w]e don’t have a no coach contact

rule.” CAJA 850. Initial contact by a coach is not a

violation; to determine what violates RR, even in the face of

initial contact, “you would have to take all of the whole thing

into what’s turning around, what’s taking place. You got to

take all the information and put it together ....” CAJA 848.

Carter distinguished the considerable discretion he

exercised under RR from his non-discretionary role in

interpreting other rules. CAJA 855. For the RR, the

commentary is not binding. “{T]he questions and answers

[i.e., the interpretive commentary] don’t matter ..., it’s not

the rule.” The RR itself “is all that really counts, everything

else underneath it, the interpretive commentary is

discretionary and it depends upon the totality-of-

circumstances.” CAJA 1009-10, 1115, 1069; Tr. 1053.

The District Court found that “[ijnclusion of the

interpretive commentary does not save the Recruiting Rule;”

* According to TSSAA, member schools should “{p]ick up the telephone

and call” Mr. Carter for a non-binding interpretation of whether

particular speech is permitted under the “undue influence” rule. CAJA

861, 810, 1069. Such standardless discretion is routinely invalidated in

First Amendment cases. A “regulatory program aimed at the prevention

of undue influence” risks the “danger of censorship through selective

enforcement of broad prohibitions.” Jn re Primus, 436 U.S. 412, 432

(1978). Adequate standards are necessary in the First Amendment

context for “effective judicial review” of government's regulatory

conduct. Thomas v. Chicago Park Dist., 535 U.S. 316, 323 (2002). See

Forsyth County v. Nationalist Movement, 505 U.S. 123, 133 & n.10

(1992): Southeastern Promotions, Lid. v. Conrad, 420 U.S. 546, 554 &

n.7 (1975); Shuttlesworth v. Birmingham, 394 U.S. 147, 151-53 (1969).

the “interpretive commentary to the Recruiting Rule is not a

binding interpretation of the Recruiting Rule, and ... the

Executive Director and the Board of Control have the

discretion to disregard the interpretive commentary,” and

they “have done so.” 304 F. Supp.2d at 986, 992, 995 & n.8.

The Court of Appeals affirmed this finding. 442 F.3d at 416-

17, 428. In sum, “TSSAA penalized [BA] for the

substantive ‘content’ of the [SPL] and calls and the message

conveyed.” 304 F. Supp.2d at 991 n.4.

With its TPM defense in analytical tatters on all

fronts, TSSAA has redirected the analytical focus — away

from the content-neutral vs. content-based issue within a

regulatory framework — to the claim that, contrary to its

earlier contention, the regulatory framework and _ the

attendant TPM analysis do not apply at all.

REASONS FOR DENYING CERTIORARI

The Petition reads like a game of pin-the-tail-on-the-

constitutional-donkey, blindly trying to find some doctrine

somewhere whose standards TSSAA can possibly meet,

even if there is no real applicability to the circumstances.

TSSAA has never been able to explain why it

disciplined BA for a harmless communication to non-

matriculated students and their parents about an activity —

spring football practice — that the rules allowed the students

to attend. Mr. Carter had concerns about the numbcr of

students participating in spring practice, believing the spring

practice rule had “outlived its purpose.” CAJA 703. In

earlier years, only one or two students had participated at

BA. After the SPL, twelve students participated. CAJA

1844. Faced with a situation of which he disapproved, but

which was permissible under existing rules, Carter punished

the speech that resulted in the disapproved but legal outcome

— the increased spring practice participation. Regulatory

conduct barring speech about legal conduct so clearly

violates core First Aniendment principles that the federal

government has declined to enforce or defend such

restrictions. New York Bar Ass'n v. Reno, 999 F. Supp. 710

(N.D.NZY. 1998).

To the extent that allowing non-matriculated students

to participate in spring practice is cducationally unsound,

TSSAA had — and has now exercised (442 F.3d at 419 n.2) -

the authority to ban the conduct. Incoming, but not-yet-

matriculated, students may no longer participate in spring

practice. CAJA 703. Thus, the problem that precipitated

this proceeding will not recur. That is the appropriate

resolution, not punishing speech that invites participation in

the activity. One might think that, having changed the

policy, TSSAA would no longer pursue the matter. No

broad forward-looking injunction has been issued, 442 F.3d

at 428 n.11, 443-44, only case-specific retrospective relief —

critical vindication for BA but of less import to TSSAA.

Instead, TSSAA has fought a scorched-earth battle to

suppress BA’s harmless speech that informed students of an

authorized athletic opportunity. As the District Court held,

TSSAA has applied RR to “what is cssentially post-

recruiting activity,” which is “especially troublesome.” 304

F. Supp.2d at 996.

TSSAA’S CHALLENGED ACTION WAS REGULATORY

The State-Action Holding. TSSAA’s Constitution

states as its purpose “to stimulate and regulate athletic

relations of the secondary schools of Tennessee.” 13 F.

Supp.2d at 679. This Court addressed the following issue in

2001: “[{W]hether a statewide association incorporated to

regulate interscholastic athletic competition among public

and private secondary schools may be regarded as engaging

in state action when it enforces a rule against a member

school,” a “private parochial high school.” 531 U.S. at 290,

293. The Court's answer: “[T]he association’s regulatory

activity ... should be treated as state action.” /d. at 291. It

was this regulatory function, exercised “in lieu of the State

Board of Education’s excrcise of its own authority,” id., that

made TSSAA a state actor. TSSAA had been designated and

recognized as the state’s “regulator” of interscholastic

athictics. /d. at 292-93. TSSAA’s conduct would not be

state,action if it were merely providing services. /d. at 299.

This Court understood TSSAA to be acting in a

regulatory capacity in enforcing RR against BA and

sanctioning BA for a putative violation. It noted that this

case “responds to a 1997 regulatory enforcement proceeding

brought against [BA], a private parochial high school

member of [TSSAA].” /d. at 293.

TSSAA’s regulatory conduct vis-a-vis BA is subject

to conventional First Amendment scrutiny of governmental

regulatory conduct. See Marsh v. Alabama, 326 U.S. 501,

503-05, 507 (1946) (holding conventional First Amendment

principles from licensing cases applicd to solicitation in

company-owned town (a state actor)); Amalgamated Food

Employees Union v. Logan Valley Plaza, Inc., 391 U.S. 308,

320 (1968) (First Amendment protections co-extensive with

those of municipalitics apply to shopping center) (state

action holding overruled, Hudgens v. NLRB, 424 U.S. 507

(1976)).

First Amendment Analysis. In the Sixth Circuit,

TSSAA asserted that conventional First Amendment analysis

“appl[ies] only to a state’s exercise of sovereign police

power over an unwilling citizen.” TSSAA Response Brief at

5. Its Petition repeats this assertion. As the Sixth Circuit

held, the cases do not sustain it. 442 F.3d at 422-24. Rather,

conventional First Amendment principles apply to TSSAA’s

regulatory conduct.

To qualify as “regulation,” governmental suppression

of speech need not stem from sovereign status. It can come

from informal activities amounting to “informal censorship.”

Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 69 (1963). In

Bantam Books, a state Commission had no prosecutorial

authority, only authority “to cducate the public concerning

any book” tending to “corrupt{} ... youth,” /d. at 59, 61-62.

This Court noted the importance of procedures to

protect speech against curtailment and the absence of such

procedures surrounding the Commission. The Commission

argued that conventional First Amendment principles did not

apply because the Commission did “not regulate or

suppress” specch but “simply exhorts” and advises

booksellers. That contention was “premised on_ the

Commission’s want of power to apply formal legal

sanctions.” That is, the Commission asserted that it was not

exercising sovereign power to suppress speech.

This Court found that position “untenable.” /d. at 66.

The Commission’s conduct, a form of blacklisting, in effect

stopped the circulation of publications and was designed to

achieve that goal. The Commission’s conduct was “a form

of regulation that creates hazards to protected freedoms.”

The procedures fell “far short of the constitutional

requirements of governmental regulation.” Jd. at 70, 71.

That the Commission exercised no formal sovereign

functions was immaterial.

Similarly, in Southeastern Promotions, Lid. v.

Conrad, 420 U.S. 546 (1975), this Court applied

conventional regulatory doctrine regarding “public forums”

to proprietary operation of a municipal theatre. The question

was whether a city could refuse to lease a city-operated

theatre for showing “Hair.”

Conrad applied First Amendment principles from the

licensing cases to the city’s decision not to contract with

“Hair” in the municipally-operated theatre. The city’s

decision not to contract was “indistinguishable in its

censoring effect from the official actions” in the licensing

cases. “[R]estraints” on speech take a “varicty of forms.”

Id. at 552. The critical First Amendment issue is the powcr

of government officials to restrain speech, whether through

exercise of sovereign or proprietary (contractual) authority.

The contract was “in effect, a license or a permit”

with approval based on the “exercise of judgment.” /d. at

554 & n.7. Conrad accordingly applied conventional First

Amendment “prior restraint” doctrine, although derived from

cases involving restraints “embedded in the licensing system

itself.” Jd. at 553. The contractual form and its non-

sovercign source did not save the restraint from being

considered a “prior restraint” on spcech subject to First

Amendment principles applicable to sovereignty-based

licensing cases, id. at 555; the “elements of prior restraint

identificd in [the licensing cases] were clearly present in the

system by which the Chattanooga board regulated the use of

its theatres.” Jd. at 554. The existence of excessive

discretion by public officials in contracting triggered the

same procedural requirements as in sovercignty-based

licensing. /d. at 554 & n.7; accord, Forsyth County, 505

U.S. at 131; Thomas, 535 U.S. at 321; 442 F.3d at 423-24.

Ibanez v. Florida Bd. of Accountancy, 512 U.S. 136

(1994), also demonstrates the non-existence of TSSAA’s

asserted doctrinal principle. Ibanez practiced law and also

was a licensed Certified Public Accountant (CPA). She

could perform accounting functions without a license. /d. at

140 n.6. With one exception, “activities performed by CPAs

can lawfully be performed by non-CPAs.” /d. at 139 n.3.

Ibanez voluntarily subjected herself to the Board of

Accountancy, which disciplined her for using CPA and CFP

(Certified Financial Planner) designations. Since Ibanez did

not need approval to practice law or accounting, the Board

had no sovereign authority over her. It exercised a

credentialing or certification function, but had no authority to

require Ibanez to stop practicing accounting — only to stop

using certain designations.

Although the Board exercised non-sovercign

certification authority, this Court applied traditional

commercial speech doctrine from the licensing cases. Ibanez

voluntarily submitted to the Board’s regulatory jurisdiction

to receive its imprimatur; BA voluntarily submits to

TSSAA’s regulatory authority to participate effectively in

organized interscholastic athletics. Just as the full panoply

of commercial speech protections applied in /banez to a

disciplinary proceeding in the non-sovereign regulatory

context, so does the full panoply of non-commercial speech

protections apply to TSSAA’s regulatory disciplinary

proceeding against BA.

In Board of Regents v. Southworth, 529 U.S. 217

(2000), the question was whether a public university may

require its students to pay an activity fee that supports

extracurricular speech. Students voluntarily (contractually)

enroll in a public university; nevertheless, the Court applied

conventional First Amendment principles to assure that a

standardless referendum procedure did not undermine

traditional First Amendment protections — that “[a]ccess to a

public forum ... not depend upon majoritarian consent.” The

issue was the university’s treatment of registered student

organizations, a contractual setting; yet, traditional First

Amendment principles were “controlling here.” Jd. at 235.

In Rosenberger v. Rector and Visitors of the Univ. of

Virginia, 515 U.S. 819, 834-35 (1995), a public university’s

regulation authorized payment for printing costs of student

publications. The regulation withheld payment from

plaintiffs because their student paper promoted belief “about

a deity.” The relationship between the university and its

students was contractual, yet this Court described the

guideline as a regulation, expressing concern that it "effects a

-sweeping restriction on student thought and student inquiry.”

“Vital First Amendment speech principles” were at stake,

including giving government broad discretionary authority to

classify speech based on content. /d. at 835. The Court

invalidated the regulation, applying conventional First

Amendment principles; the contractual, non-sovercign status

of the university's authority was immaterial, since “[v]ital

First Amendment specch principles” can arise irrespective of

the formal nature of authority exercised. See Legal Services

Corp. v. Velazquez, 531 U.S. 533, 547 (2001) (statutory

restriction implemented by contract considered regulatory

restriction on speech and analyzed as such, “lest the First

Amendment be reduced to a simple semantic exercise”).

In Widmar v. Vincent, 454 U.S. 263 (1981), the

question was whether a state university, which made its

facilities generally available to registered student groups,

may close its facilities to a registered student group desiring

to use the facilities for religious worship and discussion. The

“pertinent regulations” prohibited use of university facilities

for religious worship or teaching. /d. at 264-65 & n.3.

The regulation was a content-based exclusion of

speech that had to satisfy strict scrutiny, “the standard of

review appropriate to content-based exclusions.” /d. at 270

& n.7. The university's authority stemmed from its

ownership of facilities, not “sovereign” power. Its

relationship with students was contractual. The regulation

did not involve the use of “sovereign police power over an

unwilling citizen.” Students’ voluntarily subjected

themselves to the authority (and bencfits) of the university

via enrollment centracts;- the university's content-based

restriction of speech in the allocation of university facilities

was subjected to the gencrally applicable “standard of review

appropriate to content-based exclusions.” /d. at 270. The

university could impose TPM restrictions, subject to

generally applicable TPM standards. /d. at 276. But when a

public university adopts content-based regulations of speech

affecting its students, it must justify those restrictions “under

applicable constitutional standards” for content-based

regulation of speech.

In Keller v. State Bar, 496 U.S. 1, 4, 13-14 (1990),

state law compelled lawyers to join and pay dues to an

integrated bar. In Abood v. Detroit Bd. of Educ., 431 U.S.

209 (1976), a collective bargaining contract mandated

payment of union dues by public employees. This Court

upheld both mandatory payments but held the bar could only

spend mandated dues on matters germane to regulation of the

legal profession, and the union could only spend mandated

dues on matters germane to collective bargaining.

Contributions compelled by government for political

purposes infringe First Amendment rights, whether

compulsion derives from positive law (Keller) or contract

(Abood). The First Amendment principles are identical. See

First Nat'l Bank, 435 U.S. at 795 (compelled financial

support of political activity violates First Amendment

whether by “state law” or by union contract); Chicago

Teachers Union v. Hudson, 475 U.S. 292, 302 n.9 (1986).

In sum, there is no basis for TSSAA’s claim that, in

the regulatory context, First Amendment protections are

limited to matters of “public concern.” Such a rule would

give unprecedented and far-reaching censorious authority to

government as regulator. Indeed, a core First Amendment

principle is that private speakers get to choose their topic,

and government regulation of the speaker’s topic is subject

to searching scrutiny. First Nat'l Bank, 435 U.S. at 785

(government may not dictate “the subjects about which

persons may speak”).

The entire “contract” discussion is smoke and

mirrors, more akin to the jurisprudence of Houdini than that

of Holmes.” A party can knowingly and intentionally waive

a constitutional right, but no waiver exists here (442 F.3d at

424-25; pages 2-3, supra);'° and, if that were the argument,

° Cf. First Nat'l Bank, 435 U.S. at 778 n.14 (rejecting analogous claim

that, as “creatures of the state,” corporations “have only those rights

granted to them” and that states “are free to define the rights of their

creatures without constitutional limit,” characterizing such claims as “an

extreme position” because it would allow states to deny corporations “the

protection of all constitutional guarantees”).

'° The waiver argument also overlooks the critical interests of the

recipients of BA’s communication. /d. at 776, 791 n.31 (First

Amendment “protects interests broader than those of the party seeking

the existence of waiver in a particular case is case-specific

and hardly certworthy. As the foregoing cases establish,

merely agrecing to subject oneself to government’s non-

sovereign regulatory authority does not constitute waiver. '!

This emperor has no clothes. 442 F.3d at 421-24,"

THE TIME, PLACE, AND MANNER DEFENSE

Conventional First Amendment analysis allows for

defense of an incidental restraint on speech based on TPM.

In remanding for trial, the Sixth Circuit gave TSSAA an

opportunity to defend its punishment of BA’s non-

commercial speech on a TPM theory. The burden of

their vindication” and “rejects the ‘highly paternalistic’ approach of ...

restrict{ing] what the people may hear”). 13 F. Supp.2d at 690 n.19.

" Cf. Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 456-57 (1988)

(rejecting claim that a party is forbidden to challenge government action

because it “derivjes}] some benefit from it”).

'2 There is no reason to vacate and remand in light of Garcetti v.

Ceballos, 126 S. Ct. 1951 (2006), or Rumsfeld v. FAIR, 126 S. Ct. 1297

(2006). Pet. 20. This case has been-to the Sixth Circuit three times

already and has been ongoing since 1997. TSSAA has had its chance to

prevail over and over; it has embraced and then disavowed both facts and

theory. Vacating and remanding would add expense and needlessly

prolong resolution and to no gain. Garcetti deals with First Amendment

protection of employees, not restraints on speech involving government

as regulator. Unlike the proceeding herein, in which speech is punished,

Rumsfeld did not deal with “law schools’ right to speak,” 126 S.Ct. at

1311, but with speech “plainly incidental to the ... regulation of

conduct,” id. at 1308, and to expressive conduct that is “not inherently

expressive.” Jd. at 1310. Further, Rumsfeld analyzed the issues under

traditional First Amendment doctrine, breaking no new ground. /d. at

1307. The Sixth Circuit released its decision 16 months after oral

argument, after Rumsfeld was decided. The panel almost surely was

aware of Rumsfeld and properly concluded that its analysis was not

relevant to the very different First Amendment issues presented herein.

Gratuitously vacating and remanding is not useful and is potentially

wasteful.

justification rested with TSSAA. 262 F.3d at 554. TSSAA

was unable to establish the clements of a TPM defense. '

TSSAA had an opportunity to justify, under TPM

doctrine, its restraint on speech in the context of what this

Court has described as TSSAA’s “regulatory enforcement

proceeding” against BA. 531 U.S. at 293. The Sixth Circuit

found two interests to be “substantial” — subordination of

athletics to academics and exploitation. The asserted interest

in competitive equity was not deemed substantial. See note

6, supra. Since TSSAA’s regulatory enforcement was not

narrowly tailored to any substantial interest, its TPM defense

failed. Because of the terms of the 2001 decision to remand,

neither the District Court at tral nor the Sixth Circuit found

it necessary to address or rely on the other TPM elements.

But, based on the evidence, the District Court did find that

TSSAA’s regulatory action was neither content-neutral nor

focused on “secondary cffects.” 304 F. Supp.2d at 991 n.4,

996 n.12. And the Sixth Circuit found “that the interpretive

commentary is discretionary” and enforcement of RR

depends on the standardless “totality of the circumstances.”

442 F.3d at 416-17. So, lack of narrow tailoring did not

stand alone; other elements of a TPM defense are lacking.

When the RR infringes on speech, the First

Amendment requires TSSAA to implement a “process” that

provides for a “careful calculation of the speech interests

involved.” Even when regulating other things, government

must consider the impact of the regulation on speech.

Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 562 (2001).

That did not occur in the adoption or enforcement of RR.

'’ To prevail, TSSAA had to satisfy five elements: (i) the regulation

must serve a “significant” (or “substantial”) governmental interest; (ii)

the regulation is narrowly tailored to achieve that interest; (iii) TSSAA

must have “adequate 2 idards to guide [TSSAA’s] decision and render

it subject to effective judicial review;” (iv) the regulatory scheme “must

not be based on the content of the message;” and (v) permissible

regulation of the secondary effect of speech “must leave open ample

alternatives for communication.” Thomas, 534 U.S. at 323 & n.3.

At trial, it became evident that TSSAA has never

recognized the special solicitude accorded to governmental

regulation of First-Amendment-protected speech. See note

3, supra. TSSAA and its witnesses saw speech and conduct

as indistinguishable for purposes of the exercise of TSSAA’s

regulatory authority. TSSAA gave no consideration to RR’s

application to First-Amendment-protected speech or to non-

speech alternatives. Mr. Carter admitted that TSSAA had

not “at any time in the last ten years ever considered

alternatives to restricting speech in looking at the recruiting

rule” and had “given no consideration whatsoever to how

can we tailor the recruiting rule to meet the requirements of

the First Amendment.” CAJA 1016-18.

In sum, government’s ability to restrict speech is

more circumscribed than its ability to regulate conduct.

Hurley, 515 U.S. at 579. The speech punished in this case is

non-commercial in character, 262 F.3d at 555; TSSAA’s

Petition does not contest that. Even if, as TSSAA asserts,

BA’s speech were solicitation, government cannot discipline

non-commercial solicitation “without proof of actual

wrongdoing that the State constitutionally may proscribe.”

Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 462 n.20

(1978). In Primus, which involved discipline for “undue

influence” in the context of non-commercial speech, the

Court found that no “undue influence, overreaching,

misrepresentation, or invasion of privacy actually occurred.”

436 U.S. at 434-35. The Court analyzed the specific context

and the specific speech in question to conclude that, in the

absence of harm, government could not “justify proscription

of the activity of appellant.” Jd. at 436.

The findings in this case are similar; the lower courts

have found the SPL and calls to be informative, not harmful,

with no indication of exploitation “in theory or fact.” 442

F.3d at 428. TSSAA applies the “undue influence” RR

principle on an ad hoc, case-by-case basis — in this case to

pure speech, not expressive conduct. As the facts have

developed, RR docs not contemplate a broad prophylactic or

categorical rule prohibiting all school-initiated, targeted

contact. So, TSSAA’s assertion that the rule should be

viewed in the abstract, not as applied in specific situations

(Pet. 18), rings peculiarly hollow.'* Since there is no “coach

contact” or “initial contact” per se categorical nile, but only

an ad hoc case-specific “undue influence” rule applied to

specific speech or conduct, TSSAA’s claim that the specific

application of the rule need not be justified is unwarranted.

Since there is no categorical rule, there is no way to evaluate

the application of the rule except by cxamining its

application in specific cases and contexts. Primus makes

this clear. Otherwise, government would be handed a blank

check to restrict speech, without effective judicial review.'°

Even a categorical rule must be justificd in an as-

applied TPM context by reference to the specifics of the

circumstances. In upholding a ban on posting signs on

public property, this Court distinguished a case that

invalidated a ban on handbilling; the sign posting ban dealt

directly with the “substantive evil — visual blight” that is

“created by the medium of expression itself’ and thereby

“responds preciscly to the substantive problem” and “curtails

no more speech than is necessary to accomplish its purpose.”

That is, the signs themselves “constitute[d] visual clutter and

blight,” and the ban “did no more than eliminate the exact

source of the evil it sought to remedy.” Members of the City

Council v. Taxpayers for Vincent, 466 U.S. 789, 808-10

'* TSSAA’s cases (Pet. 19) involve the application of categorical rules.

The “undue influence” standard is inherently ad hoc, applied case by

case. Further, a TPM defense cannot be established here because the

undue influence standard turns on the content of the communication and

its impact on the listener. 304 F. Supp.2d at 991 & n.4, 996 n.12.

'* Even a broad prophylactic “undue influence” rule against “all

solicitation” cannot apply to non-commercial speech, where “a State

must regulate with significantly greater precision.” Primus, 436 U.S. at

437-38.

(1984). This is not true of this case, since, as the District

Court found, the punished speech 1s “consistent with ... the

_TSSAA’s legitimate governmental interests,” “caused no

actual harm and did not reasonably threaten harm to

students, parents, or any legitimate governmental interests,”

and was “not intrinsically coercive, threatening, harassing, or

otherwise harmful.” 304 F. Supp.2d at 995-97.

As a general matter, then, “if the Government could

achieve its interest in a manner that does not restrict speech,

or that restricts less speech, the Government must do so....

[R]jegulating speech must be a last — not first — resort.”

Thompson, 535 U.S. at 373. But speech restriction is the

only resort TSSAA has checked into.

OTHER MATTERS

No Circuit Split Exists. TSSAA asserts that a split in

circuits exists on the issues raised in this matter. This is

incorrect. TSSAA’s cases cither involve express, negotiated

fact-specific waivers or non-regulatory conduct. None of the

cases allegedly establishing a circuit split involves a claim

that regulatory conduct of a governmental entity receives

special First Amendment non-scrutiny. Pet. 20-22. BA is

aware of only one court of appeals case to have confronted

the First Amendment issue raised herein, and that decision

did not create a conflict. Holy Cross College, Inc. v. LHSAA,

632 F.2d 1287 (5"™ Cir. 1980). Holy Cross involved a First

Amendment challenge to application of the “unduc

influence” standard in the context of a high school athletic

association’s RR. The Fifth Circuit declined to dismiss since

the allegations “implicate[d] the fundamental right of free

speech guaranteed by the first amendment.” /d. at 1289.'°

apply TSSAA’s approach to a high school athletic association’s RR.

Rottmann v. PIAA, 349 F. Supp.2d 922 (W.D. Pa. 2004).

This Court Should Not Revisit State Action. TSSAA

throws a Hail Mary pass, inviting this Court to relieve it of

its obligations as a state actor. The Court should RSVP no.

TSSAA asserts (Pet. 27) that this Court did not take

into account the “particular state action” involved, only

TSSAA’s status. This is erroneous, bordering on silly. It is

the regulatory function that TSSAA performs, entwined with

government, that resulted in its being found a state actor. ~

This Court found TSSAA a “surrogate association”

designated and recognized by the state as “regulator of

interscholastic athletics.” 531 U.S. at 292-93, 300. If only a

service provider — “a mere buyer[{] of contract services” -—

TSSAA would not be a state actor. /d. at 299. TSSAA

willfully ignores the critical regulatory function it performs,

“regulati/ing] in licu of the State Board of Education’s

exercise of its own authority.” This Court held that

TSSAA’s “regulatory activity” constituted state action. /d.

at 291. The Sixth Circuit had no trouble recognizing the

analytical significance of the regulatory character of

TSSAA’s conduct for purposes of the First Amendment

analysis in this case.

Agostini v. Felton, 521 U.S. 203 (1997), is not on

point. Agostini overturned a prior decision by this Court in

the very same case because the original decision was “no

longer good law” in light of this Court’s “subsequent ...

decisions.” /d. at 208-09. The earlicr decision had resulted

in a “prospective injunction” that still barred New York City

from sending public school teachers into parochial schools to

provide remedial education to disadvantaged children. In

Agostini, this Court permitted relicf from the ongoing effect

of the prospective injunction under FRCP 60(b)(5).

No subsequent decision of this Court calls into

question its holding in this case. No prospective injunction

was entered by the Sixth Circuit, 442 F.3d at 428 n.11, 444.

TSSAA has not followed the procedure mapped out in Rule

60(b), as was done in Agostini, and indeed does not even

mention Rule 60(b). The lack of prospective relief in this

case makes Agostini’s rationale and procedure inapplicable.

521 U.S. at 237-40. The unusual Agostini procedure is only

appropriate to “recogniz/e] changes in law” not “as a vehicle

for effecting them” (id. at 238) — what TSSAA sceks.””

Since no subsequent change of law has taken place

and no prospective injunction analogous to Agostini exists,

one is left to the natural inference that TSSAA is appealing

to the two newly appointed Justices to reconsider a recent

precedent in the context of that very case. The cautionary

comment of Justice Stewart in this regard is worth repeating.

He expressed “a word of concern” about overruling recent

precedent when the “only perccivable change that has

occurred” since the recent precedent at issue was “in the

makeup of this Court.” A “basic change in the law upon a

ground no firmer than a change in our membership invites

the popular misconception that this institution is little

different from the two political branches of the Government.

No misconception could do more lasting injury to this Court

and to the system of law which it is our abiding mission to

serve.” Mitchell v. W.T. Grant Co., 416 U.S. 600, 634-36

(1974) (dissent). This Court should credit Justice Stewart's

words of caution by not revisiting its state action analysis.

Procedural Due Process. TSSAA_half-heartedly

seeks review on the procedural due process issue but in its

Petition only succeeds in explaining why the case reflects a

particular application of fairly plain-vanilla doctrine.

The District Court found that allegations surrounding

Bart King had been discussed and relicd on by TSSAA in its

ex parte deliberations about sanctioning BA, that BA had no

opportunity to respond to this evidence, and that BA had

been “misled” by TSSAA about the relevance of these

'’ Agostini distinguished a change in law that has already occurred from

the “views of five Justices that the case should be reconsidered or

overruled,” which “cannot be said to have effected a change” in the law

warranting overruling a decision in the same case. /d. at 217-18.

allegations. 304 F. Supp.2d at 1004 & n.29. The Sixth

Circuit upheld these factual findings. 442 F.3d at 436.

TSSAA cavalierly avers that the “district court wrongly

credited a statement that TSSAA considered ex parte

evidence of recruiting violations” by Bart King. Pet. 26. So,

TSSAA seeks review of fact-finding error. Hardly

certworthy, even if the evidentiary issues had becn

preserved.

On the law, the Sixth Circuit’s decision breaks no

new doctrinal ground. It held that “a school must be

informed of all the issues relicd on by an athletic association

levying penalties against the school and be given a chance to

respond to those issues before penalties are imposed.” Duc

process assured BA “notice of the evidence relied upon” in

penalizing it and an opportunity to respond timely to that

evidence. 442 F.3d at 437-38.'" TSSAA procedures

provided no assurance that its decision would be based on

the “evidence adduced at the hearing.” Goldberg v. Kelly,

397 U.S. 254, 271 (1970). The result implicated venerable

principles regarding the importance of an opportunity to

cross-examine. See id. at 269 (“In almost every sctting

where important decisions turn on questions of fact, due

process requires an opportunity to confront and cross-

examine adverse witnesses”); Hamdi v. Rumsfeld, 542 U.S.

507, 533 (2004) (PDP requires party challenging his detainee

status to receive “notice of the factual basis for his

classification, and a fair opportunity to rebut the

Government’s factual assertions”); 442 F.3d at 434, 436-37.

CONCLUSION

For the foregoing reasons, TSSAA’s petition for

certiorari should be denied. °

'* The Sixth Circuit rejected BA’s claim that it had a right to a neutral,

impartial decisionmaker. 442 F.3d at 434.

Respectfully submitted,

H. LEE BARFIELD I]

Counsel of Record

W. BRANTLEY PHILLIPS, JR.

Bass, Berry & Sims PLC

315 Deaderick Street, Suite 2700

Nashville, TN 37238

(615) 742-6200

JAMES F. BLUMSTEIN

Vanderbilt University

School of law

131 21st Avenue South

Nashville, TN 37203

(615) 322-0045

APPENDIX

BRENTWOOD ACADEMY

219 Granny White Pike

Brentwood, Tennessee 37027

(615) 377-3632

fax: (615) 377-3709

Athletic Director: Carlton Flatt

Asst. Athletic Director: Buddy Alexander

April 23, 1997

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. Equipment will be given out April 30th at 3:30

downstairs in the locker room.

Spring practice will begin May 1, 1997 and

conclude on May 14, 1997. Practice begins at 3:20 and will

be finished by 4:45. 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.

In the near future, you will receive a letter outlining

our summer workout program. If you have any questions,

please call me at school 373-0611 x 119, or at home 373-

0475. We are certainly glad that you decided to become an

Eagle.

Your Coach,

Carlton Flatt

July 6, 1995

WARRIOR!

I would like to take this opportunity to WELCOME you to

the 1995 Riverdale Warrior football team.

We arc looking forward to the upcoming season with great

enthusiasm and high expectations. Our opening game with

Smyrna is a little over eight weeks away and we must be

totally committed to the task ahead of us.

The Riverdale High School motto is “A COMMITMENT

TO EXCELLENCE” and that is what we will strive for this

season. With your commitment and dedication we will

achieve our goal of being the “1995 REGION 4AAAAA

CHAMPIONS” — on the way to “STATE CHAMPIONS”.

On Monday, July 24th, Dr. O. Tom Johns and staff will

physicals, free of charge, from 5:00 p.m. to 8:00 p.m. at

Riverdale. Please complete the enclosed form and bring it

with you on the day of the physicals. Report directly to the

Riverdale High School football locker room.

ALL players will report to practice on Tuesday, July 25,

1995 at 4:00-8:00 p.m.

SEE YOU SOON!

Coach Gary Rankin

1. Monday, July 24, 1995 physicals 5:00 p.m. — 8:00 p.m.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.