Respondents Brief — TENN. SEC. SCHOOL ATHLETIC v. Brentwood Acad.
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No. 06-427
jn The
Supreme Court of the Cnited States
PENNESSEER SECONDARY SCHOOL ATHLETIC
ASSOCTATION,
Petitioner.
BRENTWOOD ACADEMY.
Respondent.
On Writ of Certiorari to the
United States Court of Appeals for the Sixth Circuit
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QUESTIONS PRESENTED FOR REVIEW
Whether the Sixth Circuit correctly held that TSSAA
violated the First Amendment and Due Process nghts of
Brentwood Academy when it imposed -penalties for
Brentwood Academy’s pure speech communications with
incoming students and their parents.
il
RULE 29.6 STATEMENT
Respondent Brentwood Academy does not have a
parent corporation, and no publicly-held company owns 10%
or more of BA’s capital stock.
iil
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED FOR REVIEW ....................06. i
Fs | nee RE il
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UPR IT COR B BM CAT occ scccccccccsssvcncesossovescencsccesneoeate l
ITI siussicisasenilsiansiencsidndenataneneunitaninenenosinvuissnipiinsiieeniintin l
The Recruiting Rule And Its Interpretation ................... 10
The eee Raisin I sicdiiisiniecchenpadananlsipnbsiatiineennneds 13
I BOD, ...cccevcvsevesescensrensosnesetesoseosiouse 14
Se I, sc csinssieatiinientasiniseneriomisiphanintantind 15
SUMMARY OF ARGUMENT 0000... ceceeeceneeeeeeeeteeeeees 17
UE TITIITTET ehtvtninshsecsthienecinilinbcenniebsidihensdibesntabiaibasnieepjeiohucsiaiinieipiniti 18
ST i sinsciniecadpteiibiadibeindiabdatinenienieninishilenalviddianideniendahente 18
IN csccteshiitencniisieiiitsienicasdannnnlieniapiiaiiasinnisalieineen 20
I. Heightened Scrutiny Applies To TSSAA’s Use
Of The Recruiting Rule On Pure Speech................ 22
A. TSSAA Is A State Regulator ........................0000 22
IV
1. The State Action Holding ..........0........e 22
2. The Source Of Government Authority Does
Not Determine TSSAA’s Regulatory
IIIT isidiiunapetpapncisauisitinscnpiibanapesdiituideniannses 23
B. TSSAA Violated Basic First Amendment
FETE Roney ene A oe nace cS 29
Il. TSSAA Merits No Special Dispensation from
Traditional First Amendment Doctrine.................... 33
A. TSSAA’s Waiver Analysis Is Flawed............... ae
B. TSSAA Penalized The Exercise Of
RII scitiecsinienseninitenenidiipanianadnapidomintonsiensouvin 36
C. The Public Employee Doctrine Does Not
Authorize TSSAA’s Regulatory Conduct.......... 39
D. TSSAA Cannot Define Away Brentwood’s
First Amendment Right ..............:::cseceeeeeereeeee 42
I{I. The Recruiting Rule Is Open To Facial
SEIN, snijkintindchaaceddisnilasetedibddiasemliiebeneuaseabieinnninintidinns 44
IV. TSSAA Violated Procedural Due Process............... 47
IT TIIIIITT tesicccdenitensonemensiccenheisetiicbondebinebapminetinikapeniniinaceiie 50
APPENDIX
Vv
TABLE OF AUTHORITIES
Page(s)
Federal Cases
44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996) ... 7
Abood v. Detroit Board of Education, 431 U.S. 209
CIPD scccessnevscssecsnscscnessanssssetstibiadiianiamasiann 28
Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221
CITE TD cscuincscsssossniatavestnesisnsneiimenianmainiaiiamaa 20
Ashcroft v. Free Speech Coalition, 535 U.S. 234
Bantam Books, Inc. v. Sullivan, 372 U.S. 58
EEF IID ccctantoscsonccsinsoctesationinpinniuiaimmgana in 23, 24, 25
Board of County Commissioners v. Umbehr,
SEB UT: GE CR cccmcessstnscasieecisintetaaismaaiaaal 36, 40
Board of Regents of the University of Wisconsin
System v. Southworth, 529 U.S. 217 (2000)................ 27, 28
Brentwood Academy v. Tennessee Secondary Sch. Athletic
Aas", FOU UF. FO Gare icececsesesssescnecssinsonsscnsnnenain passim
Brentwood Academy v. Tennessee Secondary Sch. Athletic
Ass'n, 442 F.3d 410 (6th Cir. 2006) ..............0.cc eee e eee passim
Brentwood Academy v. Tennessee Secondary Sch. Athletic
Ass'n, 262 F.3d 543 (6th Cir. 2001)... eee passim
vi
Brentwood Academy v. Tennessee Secondary Sch. Athletic
Ass'n, 304 F. Supp. 2d 981 (M.D. Tenn. 2003).......... passim
Brentwood Academy v. Tennessee Secondary Sch. Athletic
Ass'n, \3 F. Supp. 2d 670 (M.D. Tenn. 1998)............ passim
Burson v. Freeman, 504 U.S. 191 (1992) ....ccccccccceceneresenenens 45
Carey v. Brown, 447 U.S. 455 (1980).......cccccceceseeeeteeeeeeees 20
City of Ladue v. Gilleo, 512 U.S. 43 (1994)... 8-9, 32
City of Lakewood v. Plain Dealer Publishing Co.,
Tn 30, 46
City of Littleton v. Z.J. Gifts D-4, L.L.C.,
ih nce rnatereeutnnense 45
City of Los Angeles v. Alameda Books, Inc.,
a peace sanenicteianennaiinetinnen 32
Cleveland Board of Education v. Loudermill,
ee 16, 42, 47, 48, 50
Consolidated Edison Co. of N.Y. v. Public Service
Commission of N_Y., 477 U.S. 530 (1980) ......cccccccceeeees 20
Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975)...... 19
D.H. Overmyer Co. v. Frick Co., 405 U.S. 174
a aaa dada iad eaeeesmtenienintinanetenianinn 34, 35
Dunn v. Blumstein, 405 U.S. 330 (1972) .......cccccccccccceceeeeeees 37
Edenfield v. Fane, 507 U.S. 761 (1993)........:ccccccecceseeeeees 5, 32
Vil
First National Bank of Boston v. Bellotti,
Re TE 5, 7, 18, 28, 36, 42
Forsyth County v. Nationalist Movement,
RS en 20, 21, 26, 31, 32, 46
Fuentes v. Shevin, 407 U.S. 67 (1972) .......cccccccceeeeseeseeee 34, 35
Garcetti v. Ceballos, 126 S. Ct. 1951 (2006)...............000024. 40
Greene v. McElroy, 360 U.S. 474 (1959) .o.....cccccccceceeeeeeeees 47
Grove City College v. Bell, 465 U.S. 555 (1984).............0.. 38
Hamdi v. Rumsfeld, 542 U.S. 507 (2004) .........:ccceeceeees 17, 50
Harris v. McRae, 448 U.S. 297 (1980) 0.0.2... ..ccccecceceeeeeeeeeeee 37
Hurley v. Irish-American Gay, Lesbian and
Bisexual Group of Boston, 515 U.S. 557 (1995) ............00. 4
Ibanez v. Florida Department of Business &
Professional Regulation, Board of Accountancy,
ft Be | eee enneee 26, 27, 39, 41, 43, 45
In re Primus, 436 U.S. 412 (1978).........ccccccccseeeeees 32, 44, 45
Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952) .......... 18
Keller v. State Bar, 496 U.S. 1 (1990) 0... ccc cceececeeeeeeeeeeee 28
Landmark Communications, Inc. v. Virginia,
a ae ee sccicchitecsiiciinciniesiitninsistinlinpinintiniaiaiaapdinnaisian 19
Legal Services Corp. v. Velazquez, 531 U.S. 533 (2001) .... 42
Vill
Lorillard Tobacco Co. v. Reilly, 533 U.S. 525
I ssichsiih initial ial 10, 13, 30
Magee v. United States, 93 F. Supp. 2d 161 (D.R.1. 2000)... 3
Maher v. Roe, 432 U.S. 464, 475 (1977) ......ccccccceccseeeeeeeeeees 37
Mathews v. Eldridge, 424 U.S. 319
Seats ceinctinpciseantasieocsianndeniinnadiiecneideieaiiatiaiipabitailis 16, 17, 47, 49, 50
Members of the City Council of City of Los Angeles
v. Taxpayers for Vincent, 466 U.S. 789 (1984)..........00..... 45
Meyer v. Grant, 486 U.S. 414 (1988)... ee eeeeeee 5,33
New York State Bar Ass'n v. Reno, 999 F. Supp. 710
RA = CUTIE ccsnnctctnnecrensenndsiasdadenmmnmniantimnptadsienaneenend —
O'Hare Truck Service, Inc. v. City of Northlake, 518
Ss PR ee etonssennensinenubinieninamesenmercanteiitimauenens 36, 39
Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978) ........ 44
Overton v. Bazzetta, 539 U.S. 126 (2003) ..............c0000000- 9,24
Palazzolo v. Rhode Island, 533 U.S. 606 (2001) «2.2.0... 42
Peel v. Attorney Registration & Disciplinary
Commission of Illinois, 496 U.S. 91 (1990)................00000 19
Pierce v. Society of the Sisters of the Holy Names of
Jesus & Mary, 268 U.S. 510 (1925)..............ccccccccsssesssereecees 6
1X
Planned Parenthood of Southeastern Pennsylvania v. Casey,
ee Ma UTI iaccaciscieshdeiiciiiieidiasibtninebalainiiadieibiatasiiniusiaiiimenauin 9
Police Department of City of Chicago v. Mosley,
ee Pee NTI cinscicnctsseabinsiiinseeteiiomsbinioncaiandalaiaeiaisednaiia 19, 20
RAV. v. St. Paad, SOS U.S. S77 (1992) ..cccrereccceccecesscceserseees 19
Randall v. Sorrell, 126 S. Ct. 2479 (2006) ..sccccscovessseseeee 45
Reno v. ACLU, 521 U.S. 844 (1997)...........:cccccssseeesreesceeseees 33
Republican Party of Minnesota v. White, 536 U.S.
UnTIIIEI Ucesisehieiaseiiierchlsaemiiabenbehetai dice ihiigdeaadeidaaaii 5,7,8
Rosenberger v. Rector & Visitors of the University
of Virginia, 515 U.S. 819 (1995) ........cceesceseeseeeseceeeeeeees 28
Rumsfeld v. Forum for Academic & Institutional
MR SE ee 6, 30
Rust v. Sullivan, 500 U.S. 173 (1991) 00.0... 37, 38, 39
Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990) .. 37
Shaw v. Murphy, 532 U.S. 223 (2001)............::cceesereeeeseeees 24
Shelton v. Tucker, 364 U.S. 479 (1960) .00........:cccccccceeseeeeeees 19
Simon & Schuster, Inc. v. Members of the New York State
Crime Victims Board, 502 U.S. 105 (1991)..................222. 20
Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979)..... 19
Snepp v. United States, 444 U.S. 507 (1980)........00...eeee. 35
South-Central Timber Development, Inc. v. Wunnicke,
467 U.S. 82 (1984)................ biietieninnniinavaninitiaian cininpandnaniene 38
Southeastern Promotions, Ltd. v. Conrad,
es Se cbccmenevetniccipentnicneneeninnennisis 25, 26, 28, 29
Stanley v. Georgia, 394 U.S. 557, 564 (1969) ...... eee 19
Texas v. Johnson, 491 U.S. 397 (1989) oo... ceeeeeeeteteeeeeee 6
The Tool Box v. Ogden City Corp., 355 F.3d 1236
Se: UI eEvesiccnntinmnsnncnsnnennesummnciiinienienannitiecnmnaiitie 28
Thomas v. Chicago Park District,
eB icccicentscesenonssennies 14, 19, 21, 26, 31, 32
Thomas v. Collins, 323 U.S. 516 (1945) ........cccceceeeecceeseeneee 19
Thompson v. Western States Medical Center, 535
es Aaa iibnictesesrinenndniiannnanianenbupadinenanesinnieniasea 29, 32
Thornburgh v. Abbott, 490 U.S. 401 (1989) oc. cceceeeeeeeeeees 9
Turner v. Safley, 482 U.S. 78 (1987) .......:cccsccssscsercesseesseeeeees 9
Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622
SDT isin diacetielasninaentesipaaeibaiinataienialiddaiahiaaaeideiaiuial 19
United States v. Aguilar, 515 U.S. 593 (1995) oo... eee 18
United States v. American Library Ass'n, Inc.,
eT ee He icevnicciicntnnsacsinasicisincenicniivitiahauiainlinintaniinns 39
United States v. Playboy Entertainment Group, Inc.,
gee 18, 19, 20, 28, 29
Xl
United States v. Salerno, 481 U.S. 739 (1987) ............. 43, 46
Village of Schaumburg v. Citizens for Better Environment,
Se Pa Ge I iionsecienctincennitctsicineniesincnnninensanenansentiis 47
Virginia v. Black, 538 U.S. 343 (2003) ..........ccccccccceeeeseeceeeeees 6
Virginia v. Hicks, 539 U.S. 113 (2003)...........::cccceeceeeeeeeeees 46
Ward v. Rock Against Racism, 491 U.S. 781 (1989)........... 30
Watchtower Bible & Tract Society of N.Y., Inc. v. Village
of Stratton, 536 U.S. 150 (2002) 0... ceceeeteeeeeeeees 46, 47
Webb's Fabulous Pharmacies, Inc. v. Beckwith,
I I iceaeiiaseisniilepalieihichideiintibbinttiieateiahiacioal 42
West Virginia State Board of Education v. Barnettte,
Pe itn essisinictedsitpiianatetainanideennnensininianitin 27
Widmar v. Vincent, 454 U.S. 263 (1981) ......cccceceeceeeeeeeeeeees 28
Wisconsin Right to Life, Inc. v. FEC, 546 U.S. 410
STATEMENT OF THE CASE
This case is not about whether the state can limit
athletic recruiting. All agree that preventing the exploitation
of middle and high school students justifies some reasonable
limit on recruiting conduct. Had the Tennessee Secondary
School Athletic Association (“TSSAA”) chosen to do so, it
could have directly prohibited Brentwood Academy
(“Brentwood”) from engaging in conduct disfavored by
TSSAA, as it has now done. TSSAA, however, did not
prohibit the conduct but, instead, punished Brentwood for
speech about that conduct. The issue, then, is whether
TSSAA may punish Brentwood’s speech simply because it
facilitates conduct TSSAA dislikes but does not prohibit.
Brentwood was punished for purely informational speech.
TSSAA’s punishment of that speech is a classic First
Amendment violation. And, the process TSSAA used to
punish Brentwood violated procedural due process.
Recognizing this, TSSAA asks the Court to excuse its
unconstitutional actions by creating a new exception to the
First Amendment and Due Process Clause. TSSAA claims
this exception is warranted because Brentwood allegedly
contracted away its speech and due process rights through its
participation in TSSAA. This theory has no support in the
Court’s precedent or in the facts of this case. Brentwood
was entitled to full protection under the Constitution, and the
Sixth Circuit’s holding that TSSAA violated Brentwood’s
First Amendment and due process rights should be affirmed.
Overview. In 1997, twelve boys agreed to attend
high school that fall at Brentwood, a private parochial school
with a nearly 100% rate of college attendance. They had
“applied, been tested and admitted, and signed enrollment
contracts with Brentwood.” 304 F. Supp. 2d 981, 989 (M.D.
2
Tenn. 2003). Brentwood considered them to be enrolled at
the school, although not yet matriculated. '
In April 1997, Brentwood’s football coach Carlton
Flatt sent a letter (JA 119)° “to all [twelve] incoming ninth
grade male students,” inviting them to attend spring football
practice in May. 304 F. Supp. 2d at 989. 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 One accepted student, who
had not signed an enrollment contract, was not sent the
“spring practice letter.” Jd.; 442 F.3d at 428.
The boys receiving the spring practice letter (“SPL”)
were authorized under the rules of the relevant governmental
regulatory body — TSSAA - to participate in spring practice,
even though they had not yet matriculated. /d. at 419 n.2.
In 1997 Brentwood faced a unique situation. Ray
Marley, a Grassland Middle School student, had been
cleared by TSSAA to lift weights at Brentwood during 1996-
97. Marley planned to matriculate at Brentwood in fall 1997
and wished to attend spring football practice. Flatt wanted to
avoid any perception of favoritism for Marley, whose father
was a coach and who was aware of the spring practice
opportunity since he had been working out in the Brentwood
weight room. 304 F. Supp. 2d at 997 n.14 (finding that
“[TSSAA] told ... Flatt to just get a letter ... from the father
' For discussion of this issue, see 442 F.3d at 418 n.1, 428, 429 n.13; JA
333 (Pitts); 339-40 (Haguewood).
> “JA” (joint appendix in this Court); “CAJA” (joint appendix in Sixth
Circuit); “Pet. Br.” (Petitioner’s Brief in this Court); BIO (Brief in
Opposition in this Court); Tr. (trial transcript).
> The communications “caused no actual harm and did not reasonably
threaten harm to students, parents, or any legitimate governmental
interests;” they were “consistent with ... TSSAA’s legitimate
governmental interests.” 304 F. Supp. 2d at 995. “Neither students nor
parents were exploited in theory or in fact.” 442 F.3d at 428.
3
indicating his intent to send [Marley] to Brentwood ... and it
would be permissible.”’); see Appendix.
“{T]o avoid singling out any students, particularly
Ray Marley,” Flatt sent the SPL in April 1997 “to all
incoming ninth grade male students.” 304 F. Supp. 2d at
989. All students who got the SPL attended the practice. JA
278.
TSSAA’s Executive Director, Ronnie Carter, had
concerns about the number of students attending spring
practice, believing that that opportunity had “outlived its
purpose.” CAJA 703. Faced with a situation of which he
disapproved, but that the existing rules permitted, Carter
punished the speech that resulted in the disapproved but legal
outcome.’ He said that Brentwood’s speech was “undue
influence” wn violation of TSSAA’s recruiting rule and
punished Brentwood severely.” Application of the rule in
this case was to “post-recruiting activity.” The “parents and
students who received the [SPL] and calls had already
completed any ‘recruiting’ process.” 304 F. Supp. 2d at 996.
The issue before the Court has nothing to do with the
educational soundness of allowing incoming students to
participate in spring sports practices. TSSAA had — and has
now exercised (442 F.3d at 419 n.2) — the ability to ban such
* The government has declined to enforce or defend a ban on speech
about legal activity. Magee v. United States, 93 F. Supp. 2d 161 (D.R.1.
2000); NV. Y. State Bar Ass'n v. Reno, 999 F. Supp. 710 (N.D.N.Y. 1998).
> TSSAA imposed a four-year probation for Brentwood’s athletic
program, a two-year suspension of playoff eligibility for football and
basketball and a $3,000 fine. JA 269-71. The rule guidelines provide
“[(v]iolation of the recruiting rule shall cause the student to be ineligible
at the school in violation, and a penalty shall be placed against the
school.” JA 181. Initially, four of the twelve students were declared
ineligible; three were black and the fourth was Native American. Despite
the guideline, the eligibility of the remaining students (all white) was
never questioned. JA 243, 444. Ultimately, no students lost eligibility.
JA 270-71 .
4
practices. That is the appropriate resolution, not punishing
speech about an activity allowed by TSSAA rules.
To deflect attention from the simplicity of the First
Amendment case, TSSAA has erected a monolithic,
undifferentiated strawperson - “athletic recruiting.” But in
the context of this “as applied” case, this abstraction is a
non-issue. ‘All agree that preventing exploitation of students
justifies reasonable limits on recruiting. But Brentwood has
not been punished for “offering an incentive or inducement
to a student,” JA 181, but for speech about an approved
activity — speech that presented an opportunity, with twelve
students attending an approved activity that eleven would not
have known about but for the speech.
Throughout this litigation, Brentwood has supported
a recruiting rule “that prevents inappropriate conduct” but
that “allows the school to tell its story.” JA 435.
Government an limit conduct to prevent “harmful behavior”
in ways it cannot limit speech. Hurley v. Irish-American
Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557,
579 (1995). TSSAA refuses to make that distinction.
No TSSAA witness distinguished between speech
and conduct. They simply condemned athletic recruiting in
general. For example, Dr. Sharon Stoll did not understand
the difference between speech and conduct: “I don’t
understand. Is there a difference between speech and
conduct? ... I don’t see a difference.” JA 382-83; CAJA
1768. Dr. George Sage opined that “speech is [merely] a
form of conduct.” JA 411. :
So, the real question is: whether, consistent with the
First Amendment, an informational letter and a follow-up
phone call to parents that were non-coercive, non-threatening
and non-harassing can be “punished for disseminating
information about an optional activity for incoming
Brentwood students” under an “undue influence” standard by
a “governmental entity exercising regulatory authority”
when all students receiving the information “had applied,
5
been tested and admitted and signed enrollment contracts
with Brentwood.” 442-F.3d at 430, 421, 418.
Brentwood contends that the First Amendment
protects this pure speech against punishment by a
government regulator, regardless of the regulator’s source of
authority. See Section [.A.2, infra (discussing cases).
TSSAA takes a different position. It views
negatively the fact that the boys receiving the SPL letters
chose to attend the authorized practice. Pet. Br. 33 (SPL
“caused 12 middle school students . . . to attend Brentwood’s
spring football practice”). This sequence of events
communication and consequence resulting from that
communication — is what TSSAA objects to and punishes.
But the First Amendment in its most basic essence protects
this -very sequence. See First Nat’l Bank of Boston v.
Bellotti, 435 U.S. 765, 790-91(1978) (communication “may
influence the outcome” of a decision; “this would be its
purpose”); Meyer v. Grant, 486 U.S. 414, 426 n.7 (1988).
If, as the lower courts have correctly held, the benign
student-focused objectives of protecting children (i) against
exploitation or (ii) against exalting athletics over academics
are unsustainable here — even pretextual — and cannot be the
basis of TSSAA’s claim, what precisely is going on? °
The truly pernicious (and dangerous) claim that
TSSAA makes — and one that it did not make until the 2001
appeal, 262 F.3d 543, 557’- is its claim that “competitive
equity” justifies censorship of First-Amendment-protected
pure non-commercial speech.* Both lower courts rejected
this justification; so should this Court. Given that this Court
° TSSAA’s Berard Childress stated that determining if the SPL actually
harmed the students would serve no purpose. CAJA 1074; JA 467.
” Regulation of speech must serve “actual,” not merely “stated” interests.
Edenfield v. Fane, 507 U.S. 761, 768 (1993). TSSAA has not shown that
“competitive equity” is an “actual” purpose. This Court “need not pursue
that inquiry.” Republican Party v. White, 536 U.S. 765, 778 (2002).
* This interest has no application here; the communications went only. to
students who had already signed enrollment contracts at Brentwood.
6
has rejected punishment of flag burning and cross burning”
on First Amendment grounds, TSSAA’s _ position
“trivialize[s] the freedom protected in [earlier cases].”
Rumsfeld v. FAIR, 126 S. Ct. 1297, 1308 (2006).
There is a fundamental difference between the
“competitive equity” interest TSSAA now asserts and its
other two interests. 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, JA 409-10, thereby necessarily
making the student’s interest subservient to that of the
association, and, to some degree, commodifying the students
themselves. The competitive equity rationale places the
student’s educational interests in substantial tension with the
association’s regulatory interests. It treats students as
objects, as “mere creature[s] of the state,” which Pierce v.
Society of Sisters, 268 U.S. 510, 535 (1925), condemns.
This approach turns the role of government — facilitating
educational opportunities — on its head, and disrespects the
primacy of student/family choice.
Addressing that tension, the district court held that
the “substantial government interest in informed choice
trumps any government interest in controlling which schools
or teams win athletic contests” because “[a]cademics 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 Sixth Circuit agreed, holding that
competitive equity is not a “substantial” governmental
interest justifying a restraint on speech. 442 F.3d at 426-27.
Targeted non-threatening, non-coercive school-
initiated communication with incoming students “may
influence the outcome” of a student’s decision to attend a
particular school or activity. “[T]his would be its purpose.”
Texas v. Johnson, 49} U.S. 397 (1989) (flag burning); Virginia v.
Black, 538 U.S. 343 (2003) (cross burning).
7
But TSSAA may not “restrict the speech of some [schools] _
in order to enhance the relative voice of others.” That is
“wholly foreign to the First Amendment.” Bellotti, 435 U.S.
at 790-91. “TSSAA cannot control school choice through
censorship.” 13 F. Supp. 2d 670, 689.
As applied to First-Amendment-protected speech,
TSSAA’s “competitive equity” interest boils down to this: if
students and parents are made aware of educational
opportunities through targeted non-threatening, non-
coercive, non-harassing, school-initiated pure speech,
competitive equity is threatened because the information
might influence the students’ educational choice. TSSAA’s
position does not require or even contemplate the existence
of any conduct unprotected by the First Amendment or of a
“pledge or promise of conduct.”’” The “undue influence” is
the speech itself and its impact on the listeners, who might
be influenced by its message."
From this and from the standard that TSSAA
proposes, what drives TSSAA’s regulatory objective
becomes clear — a sense that public schools have a form of
proprietary interest in students zoned to them. TSSAA seeks
to protect that proprietary interest by isolating students and
their families from hearing about educational opportunities.
TSSAA Board of Control member Morris Rogers
was not subtie in describing the “obvious” purpose of the
recruiting rule — it is “really for protection of schools and
coaches,” by “[k]eep[ing] them from losing their best
players.” JA 368-69. The sense of community pride in
winning a statewide athletic championship and its attendant
protectionism are recurrent themes.
'° See Republican Party, 536 U.S. at 770 (distinguishing between speech
and pledging or promising to engage in certain conduct).
'' Cf. 44 Liquormart, Inc. v. Rhode Island, $17 U.S. 484, 518 (1996)
(Thomas, J., concurring) (an interest to keep people “ignorant in order to
manipulate their choices in the marketplace ... is per se illegitimate”).
8
Jack Roberts of Michigan’s TSSAA counterpart
stated that “|t]he sports events of our high schools are a
source of pride;” communities can “develop|] a sense of
ownership 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.” JA 407-08. A
local public school principal resented Brentwood because it
had a “great coaching staff in football,” and “good coaches...
can attract higher quality athletes.” CAJA 1821.
Scott Brunette, Nashville public schools athletic
director testified that public school officials and coaches see
students zoned to their schools as “our kids,” and “complain
about private schools ... beating us with our own kids” or
“taking [our] students.” JA 392; see also JA 349.
This protectionism — believing that a high school has
a proprietary interest in students zoned to that school — is
reinforced in TSSAA’s broad “feeder pattern” exception to
the recruiting rule. Contact otherwise prohibited by the
recruiting rule is permitted within a feeder pattern (typically,
middle schools students zoned to a particular high school).
Brentwood’s speech would not have been a “violation” if
directed at students within a feeder pattern. JA 329-39; 389-
92; 462-64; 477; 304 F. Supp. 2d at 995-96.
The district court found that, “[a]s applied in this
case, there is no legitimate reason to permit speech in a
feeder pattern but prohibit the same speech by Brentwood
Academy to its incoming students.” Jd. at 995-96. That is,
the “exploitation” and “subordination” interests are the same
inside and outside the feeder pattern. Such under-
inclusiveness calls into question the bona fides of the
“exploitation” and “subordination” interests and reinforces
the point that protectionism and isolation are in play here.’*
'* See Republican Party, 536 U.S. at 780 (a “woefully under-inclusive”
restriction in regard to a purported objective can “render belief in that
purpose a challenge to the credulous”); City of Ladue v. Gilleo, 512 U.S.
9
In this regard, the First Amendment standard put
forth by TSSAA is particularly and strikingly inappropriate.
As stated by the Government: application of a rule is valid if
“reasonable in light of [a government] program’s purposes.”
Br. of U.S. 13. This is the First Amendment standard
adopted in the context of prisons.'° Its adoption here would
transplant an existing body of doctrine designed for a
specific, specialized, and very different context to a more
general regulatory setting.
At bottom, then, TSSAA and its friends propose
adoption of a First Amendment standard designed for the
unique circumstances of the prison — a standard that “raise[s]
grave First Amendment concerns outside the prison context”
~ for a regulatory setting involving education. Thornburgh
v. Abbott, 490 U.S. 401, 407 (1989).
This highlights a stark reality. TSSAA seeks an
undemanding First Amendment regime that protects a
school’s proprietary interest in its zoned students and isolates
students from truthful information that can influence their
choice of educational options.'* Dilution of First
Amendment protection in the prison setting, where a
“particular prisoner’s lawful sentence” may take away “a
right enjoyed by free persons,”'> may be appropriate, but
43, 52-53 (1994) (under-inclusiveness “diminishes the credibility of the
vernment’s rationale for restricting speech”).
A prison regulation that burdens speech is valid if “‘reasonably
related’ to legitimate penological objectives” and not an “‘exaggerated
response’ to those concerns.” Turner v. Safley, 482 U.S. 78, 87 (1987).
'* Government can mandate disclosure of truthful information to assure
informed decisionmaking about important personal choices without
imposing an undue burden on those choices. See Planned Parenthoad v.
Casey, 505 U.S. 833, 881-82 (1992) (upholding disclosure requirements
for abortions). Since government can mandate such disclosures without
creating an undue burden on important personal choices, it is hard to see
how government can prohibit access to that very type of truthful
information to prevent “undue influence” regarding educational choice.
'S Overton v. Bazzetta, 539 U.S. 126, 139 (2003) (Thomas, J., concurring
in judgment).
3
10
such a regime “raise[s] grave First Amendment concerns
outside the prison context,” as, unlike some other nations,
ours is not a “prison-count’y.”"°
The Recruiting Rule and Its Interpretation. The
recruiting rule’ prohibits the “use of undue influence on a
student (with or without an athletic record), 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.” JA 181. The term “undue influence” is
defined merely as “exceeding what is appropriate or
normal.” /d. The terms “appropriate or normal” are not
defined. 13 F. Supp. 2d at 686. The rule applies to students
and parents’ and to both conduct and speech “that does not
involve illegal inducements ..., threats, coercion, and
harassment.” CAJA 3514, 3539 (Req. No. 3).
A school is responsible for the use of “undue
influence” (including speech) by persons “not connected”
with the school and over whom the school has no control or
even knowledge. This could apply to pure, informational
communication about a school’s virtues (or its athletic
program) to a prospective student or parent by a local barber,
a teacher, a religious counselor, or even, presumably, by a
non-custodial divorced parent. TSSAA evaluates such
'© John Podhoretz, Nightmare Come True: Love and Distrust in the East
German Police State, THE WEEKLY STANDARD, MARCH 12, 2007 at 37.
'? TSSAA’s regulatory jurisdiction stems from annual member school
enrollments. Brentwood has routinely signed the obligatory form card,
agreeing to “conduct its athletic programs ... in accordance with the rules
and decisions of the TSSAA.” JA 231.
'* Michael Hammond, a TSSAA Board of Control member, stated that
there is no difference whether parents or students receive the
communication “since parents probably are going to communicate to the
child and they are going to get the information anyway... [s]o there is
still an influence factor there.” CAJA 1299; see JA 412, 415. Failure to
distinguish between parents and children is problematic under the First
Amendment. See Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 562-64 -
(2001).
11
allegations under an ad hoc “totality-of-the-circumstances”
approach. JA 484.
The recruiting rule applies the “undue influence”
standard to students “with or without an athletic record” and
focuses on the use of “undue influence ... for athletic
purposes.” However, TSSAA enforces the “for athletic
purposes” component without requiring intent as an element
of an offense. 304 F. Supp. 2d at 992. TSSAA’s Executive
Director testified that “[jJust about all of your violations are
unintentional.” JA 478. TSSAA concedes that Brentwood
had no intent to violate the recruiting rule, JA 257-58, 271;
the parties have stipulated that Flatt “had no intention of
violating the Recruiting Rule by mailing the [SPL] and
making the telephone calls.” JA 275 (4 40). The district
court noted that “Carter failed to explain how he could
determine whether influence was ‘for athletic purposes’
without considering intent.” 304 F. Supp. 2d at 992 n.5. The
lack of an intent requirement chills speech in other areas. JA
436-41.
Considerable interpretive commentary follows the
recruiting rule. JA 181-85. At summary judgment, it
seemed that this commentary provided examples of per se
violations of or safe harbors from the “undue influence”
standard. 13 F. Supp. 2d at 686-87, see also Tr. 2113-23; JA
114-16, 182, 238-44, 269-71, 425-27, 475, 482-84.
The commentary’s per se and safe _ harbor
characteristics led the Sixth Circuit to conclude, at summary
judgment in 2001, that the imprecision of the “recruiting rule
by itself” was mitigated by the “authoritative instructions” of
TSSAA, which offset the vague “undue influence” standard
as applied to Brentwood. 262 F.3d at 556-57.
At trial, however, TSSAA disavowed this bright-line-
rule interpretation of the commentary; analysis under the
recruiting rule requires a_ standardless _totality-of-the-
circumstances approach. JA 412-13, 417. There are “not
violations of questions” but only of the “undue influence”
; 12
standard; TSSAA “put[s] that all into the context of what has
occurred,” JA 429, to “determine whether all the factors that
are there” constitute “undue influence.” JA 428.
Carter distinguished his considerable discretion under
the recruiting rule from his non-discretionary role in
interpreting the eligibility-related age and eight-semester
rules. JA 423-25, 431. For the recruiting rule, “the
questions and answers [i.e., the commentary] don’t matter
..., It is not the rule.” JA 483. The commentary is not
binding. JA 366-67; 368, 465. In interpreting the recruiting
rule, the rule itself “is all that really counts, everything else
underneath it, the interpretive commentary is discretionary
and it depends upon the totality-of-circumstances.” JA 484.
The district court found that 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
disregara the interpretive commentary,” and they “have done
so.” 304 F. Supp. 2d at 986, 995 n.8.
The recruiting rule and the commentary have been
modified a number of times since its adoption, when its
focus was on the transfer of students from one school to
another. JA 286-87. Carter was unable to identify a
recruiting problem in Tennessee that “we need to fix.” JA
480. During the 1984 revision process (JA 286-87), TSSAA
did not consult or consider any outside authority, books,
Studies, or experts when adding the interpretive commentary.
JA 480-82, 484-85. It looked at no empirical research
“about the harms to students or their parents of athletic
recruiting at the high school level.” JA 485.
One final procedural point about the recruiting rule
and its interpretation: TSSAA presented no evidence that it
has considered either the impact of the recruiting rule on
speech or non-speech alternatives. “[I}n the last ten years,”
TSSAA had not “ever considered alternatives to restricting
speech in looking at the recruiting rule.” JA 487-88.
13
Insistence on rigorous procedural safeguards is an
important bulwark of the First Amendment. The First
Amendment requires TSSAA to implement a “process,”
when the recruiting rule affects speech, that provides for “a
careful calculation of the speech interests involved.” Even
when regulating other things, government must consider the
regulation’s impact on speech. Lorillard, 533 U.S. at 562.
That did not occur and provides a procedural basis for
affirming here. TSSAA cannot, as it must, “demonstrate a
careful calculation of the speech interests involved.” /d.
TSSAA has never recognized that its regulation of speech is
more limited than its regulation of conduct.
The Content-Neutrality Issue. At summary
judgment, the district court rejected TSSAA’s time, place or
manner (“TPM”) defense — that punishment was unrelated to
the content of Brentwood’s communications with students
and parents, that the recruiting rule “is not an attempt to
stifle speech, but is a valid time, place and manner
restriction.” 13 F. Supp. 2d at 687-88.
In 2001, on remand from this Court, TSSAA said its
recruiting rule “must ... be viewed as a reasonable restriction
on the time and manner” of Brentwood’s “solicitation.” The
SPL was “recruiting conduct” proscribable “regardless of the
specific content of the message” or its “persuasive effect.”
Its enforcement of the recruiting rule was “[s|tate regulation
. triggered by the event rather than the content of any
speech during the event.” BIO 12-13. The Sixth Circuit
accepted TSSAA’s TPM theory, noting that the rule was
“regulatory action,” that addressed “secondary effects”
unrelated to the speech’s content. 262 F.3d at 552-54, 558.
But, at trial, TSSAA disavowed a content-neutral
interpretation of the recruiting rule and the interpretive
commentary. TSSAA identified no _ content-neutral
“secondary effects” toward which the regulation of speech
was aimed. 304 F. Supp. 2d at 996 n.12. TSSAA
acknowledged that it focused, case-by-case, on the content of
14
the speech and its impact on the recipients in determining
whether Brentwood’s speech constituted “undue inflence.”
The district court found: “(T]he preponderance «f 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
‘undue influence’ and violated the Recruiting Rule.” In sum,
“TSSAA penalized [Brentwood] for the substantive ‘content’
of the [SPL], and calls and the message conveyed.” Jd. at
992 n.4, 996 n.12 (“{A]pplication of the Recruiting Rule ...
in this case is with reference to the content of the speech and
fits] impact”).
Since content-neutrality is a threshold requirement of
a TPM defense, Thomas v. Chicago Park Dist., 534 U.S.
316, 323 n.3 (2002), TSSAA cannot sustain its TPM defense.
Non-Speech Alternatives. TSSAA has rules not
involving speech that are designed to foster competitive
equity. These rules are not at issue in this proceeding.”
'° First, the recruiting rule itself may be applied to non-speech conduct
without the risk of running afoul of the First Amendment - ¢.g.,
prohibiting “offering an incentive or inducement to a student with or
without an athletic record.” JA 181. Second, for purposes of
championship competition, public schools and Brentwood do not
compete against each other: they are separated into different Divisions.
JA 145.46. Third, Championship competition among schools within
each Division is grouped based on the size of the student body of the
school. Fourth, there are detailed restrictions on student transfers,
including ineligibility for an entire year and forfeiture of games in which
an ineligible student participates. JA 167-77, 191-92. In tension with the
“subordination” principle, there is no exemption to the transfer rule “for
bona fide academic purposes.” JA 485. Fifth, “[(njo student shall be
eligible to participate in any athletic contest... if he or she becomes 19
years of age on or before September 1.” JA 161. Sixth, a “student shall
be ineligible to compete in any sport if he or she attended a secondary
school, or schools, for eight semesters.” JA 158. Seventh, there are
detailed restrictions related to a student's residence. JA 177-79. Eighth,
financial aid is limited to non-athletic, need-based awards. JA 187-88.
15
The TSSAA Procedures. On July 29, 1997, Carter
determined that Brentwood violated the recruiting rule and
imposed immediate penalties. 304 F. Supp. 2d at 987.7
Brentwood appealed, which was heard by Carter and three
members of the Board of Control. “Brentwood Academy
made a presentation at the appeal hearing, but the TSSAA
presented no evidence.” /d. On August 14, Carter “with the
advice and consensus of the three members of the Board of
Control, again found Brentwood Academy in violation .. .
and imposed revised penalties.” Jd. Carter stated he was the
decisionmaker, with the others being advisors, but the other
Board members testified they were the decisionmakers. Jd.
Brentwood appealed again to the entire nine-member
Board of Control, which included the three who had
participated in the prior appeal decision. Again, Brentwood
“made a presentation to the Board of Control at a public
hearing, and the TSSAA presented no evidence,” id., so
Brentwood was unaware of the full nature and credibility of
TSSAA’s case. JA 394-403. After Brentwood put on its
evidence, the Board of Control deliberated in a private
“executive session” without Brentwood present. 304 F.
Supp. 2d at 987. “[{DJuring the private deliberations, Carter
and the two TSSAA employees who had investigated the
case answered questions from the Board of Control,” while
Brentwood “was excluded from the deliberations.” On
August 23, the Board of Control found that Brentwood had
violated the recruiting rule and imposed new penalties. /d.
TSSAA investigators did not interview critical
witnesses. JA 456-58, 474; CAJA 540, 1466-67. During the
post-determination appeals, Brentwood had the burden of
proving its innocence. JA 395. During the “executive
session,” when Brentwood was excluded, TSSAA staff and
investigators presented their case, not subject to rebuttal or
cross-examination. JA 467-68, 475-76, CAJA 770-771; 777-
*° The action letter also was sent to the local newspapers. JA 244.
16
787. The TSSAA investigators’ notes (including Bart King)
were discussed at the ciosed session but were not turned over
to Brentwood. JA 393-403; 467-68; 475-76.
TSSAA’s Board of Control “considered ex parte,
post-hearing evidence” and, during its “private deliberations
relied upon ex parte statements and documentary
evidence from Defendant Carter and two TSSAA employees
who investigated the allegations against Brentwood
Academy,” which had “no opportunity to reply to this ex
parte evidence or even hear it and was prejudiced by the
evidence and the private post-hearing process.” 304 F. Supp.
2d at 1003. The Bart King allegations were discussed in the
“executive session” and affected the “penalties imposed.”
Id. at 1004. TSSAA gave no indication that the King-related
issues were still under consideration.
“Thus, the TSSAA and Carter misled Brentwood
Academy about a person and allegation which ultimately
mattered to the decision. Brentwood ... was denied an
opportunity to defend this allegation head on.” /d. at 1004
n.29. Applying the balancing test from Mathews v. Eldridge,
424 U.S. 319 (1976), the district court found the TSSAA
procedures violated procedural due process. Id. at 1003-06.
The appeals were “post-deprivation hearings” for due
process purposes, and, thus, the truncated “right of reply”
procedures in a pre-deprivation context were insufficient.
But even if pre-deprivation, due process is violated “if the
plaintiff is not informed of the evidence considered by the
decision-maker.” 304 F. Supp. 2d at 1005; see also
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 545-46
(1985).
The Sixth Circuit affirmed, holding that, in its
executive session, TSSAA_ discussed the allegations
regarding King, that Brentwood “did not have notice that the
King matter was a possible basis for final TSSAA action
against Brentwood,” and that the “King issue influenced the
penalties.” 442° F.3d at 434-36. The due process
17
requirements imposed by the Sixth Circuit are far from
onerous or excessive and were derived from the Mathews
balancing factors: “notice of the evidence relied upon in
penalizing Brentwood and an opportunity to respond to that
evidence before penalties were imposed.” /d. at 438. Even
alleged enemy combatants get such protection. Hamdi vy.
Rumsfeld, 542 U.S. 507, 533 (2004).
SUMMARY OF ARGUMENT
The Sixth Circuit’s straightforward application of
constitutional law to TSSAA’s regulatory activity should be
affirmed. TSSAA seeks a “dispensation” from these
standards, but “[p]leas for special treatment are hard to sell,”
531 U.S. 288, 305 (2001). TSSAA has not made its case.
1. TSSAA acted in a_ regulatory Capacity in
punishing Brentwood’s pure speech. TSSAA’s punishment
of Brentwood’s speech contains classic First Amendment
violations. Its action is subject to traditional First
Amendment protection of regulatory conduct, regardless of
the source of its regulatory authority.
2. TSSAA has not overcome the presumption
against waiver of constitutional rights and, procedurally,
cannot even raise the waiver claim. TSSAA’s
contract/waiver analysis ignores the importance of the
speech interests of parents and students, who are subject to
TSSAA rules, but who are not TSSAA members and whose
First Amendment interests are compromised.
3. TSSAA’s punishment of Brentwood’s pure
speech is an unconstitutional penalty on Brentwood’s
exercise of First Amendment rights. The government
spending and public employee cases do not apply to
TSSAA’s direct and specific abridgment of Brentwood’s
First Amendment rights. TSSAA cannot define away
Brentwood’s First Amendment or procedural due process
rights.
18
4. To satisfy its burden here, TSSAA must show
actual harm that government constitutionally may proscribe.
In an as applied challenge to punishment of pure speech
under an ad hoc, discretionary “undue influence” standard,
the focus is on how the discretionary standard is applied to
particular facts and circumstances. Otherwise, there cannot
be effective judicial review. If, as TSSAA contends, the
analytical focus remains only at a general level and without
regard for specific application, then Brentwood should be
allowed to reassert its facial challenge.
5. TSSAA violated Brentwood’s procedural due
process rights by considering ex parte post-hearing evidence
that Brentwood did not know was still relevant and to which
it had no opportunity to reply. The ex parte evidence
included investigative notes by TSSAA officials that were
not given to Brentwood. TSSAA never had to establish its
case or carry a burden of justification for punishing speech;
the burden of justification at all times lay with Brentwood.
ARGUMENT
In General. When government restricts or punishes
pure speech, as in this case, it bears a “heavy burden” of
justification. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495,
504 (1952). A “citizen is entitled to seek out or reject ...
influences without Government interference or control.”
United States v. Playboy Entm’t Group, Inc., 529 U.S. 803,
817 (2000). This principle applies to all non-commercial
speech, including films (Burstyn) and adult entertainment
(Playboy), not just matters of public concern. A state may
not dictate “the subjects about which persons may speak.”
Bellotti, 435 U.S. at 785.
“Government may not ... restrict individuals from
disclosing information that lawfully comes into their hands
in the absence of a ‘state interest of the highest order.”
United States v. Aguilar, 515 U.S. 593, 605 (1995). This
foundational principle has been upheld against extremely
19
important governmental policy objectives.*' Yet, TSSAA
wants a special dispensation for football “equity.”
The First Amendment also protects the rights of
potential listeners to hear what others have to say. “It is now
well established that the Constitution protects the right to
receive information and ideas.” Stanley v. Georgia, 394 U.S.
557, 564 (1969), cf. Thomas v. Collins, 323 U.S. 516, 534
(1945) (requiring organizers to register before soliciting
union membership violates both the labor organizer’s right to
speak and the rights of workers “to hear what he had to
say”). The right to receive information is “nowhere more
vital” than in the nation’s schools and universities. Shelton
v. Tucker, 364 U.S. 479, 487 (1960).
First Amendment doctrine distinguishes between
content-based and content-neutral forms of government
regulation. Turner Broad. Sys., Inc. v. FCC, 512 US. 622,
641-43 (1994). Content-neutral laws — such as TPM
restrictions — are subject to intermediate scrutiny. See
Thomas, 534 U.S. at 323 & n.3.
Content-based restrictions are “presumptively
invalid.” R.A.V. v. St. Paul, 505 U.S. 377, 382 (1992).
“[G]overnment has no power to restrict expression because
of its message, its ideas, its subject matter, or its content.”
Police Dep't v. Mosley, 408 U.S. 92, 95 (1972). And a Court
“cannot be influenced ... by the perception that the
regulation in question is not a major one because the speech
is not very important,” as “all content-based restrictions on
speech” warrant exacting scrutiny. Playboy, 529 U.S. at
826.
*! See, e.g., Smith v. Daily Mail Publ'g Co., 443 U.S. 97 (1979)
(allowing publication of juvenile offender's name); Landmark Commc'n,
Inc. v. Virginia, 435 U.S. 829 (1978) (upholding publication of
information about confidential commission proceedings); Cox Broad.
Corp. v. Cohn, 420 U.S. 469 (1975) (allowing publication of rape
victim’s name); Peel v. Attorney Registration & Disciplinary Comm'n of
lil, 496 U.S. 91, 109 (1990) (state has a “heavy burden” of justifying
punishment of “dissemination of accurate factual information”).
20
The strong presumption against content-based
regulation of expression extends to prohibition of
“discussion of an entire topic,” Consol. Edison Co. v. PSC,
447 US. 530, 537 (1980), as government cannot choose
“which issues are worth discussing or debating.” Mosley,
408 U.S. at 96; accord Carey v. Brown, 447 U.S. 455, 462
n.6 (1980). Government’s power to impose content-based
limitations on expression “surely does not vary with the
identity of the speaker.” Simon & Schuster, Inc. v. N. Y.
State Crime Victims Bd., 502 U.S. 105, 117 (1991).
“I isteners’ reaction to speech is not a content-neutral basis
for regulation.” Forsyth County v. Nationalist Movement,
505 U.S. 765, 134 (1992).
To justify a content-based regulation, government
must show “that its regulation is necessary to serve a
compelling state interest and is narrowly drawn to achieve
that end.” Arkansas Writers’ Project, Inc. v. Ragland, 481
U.S. 221, 231 (1987); Simon & Schuster, 502 U.S. at 118.
The burden rests with the government, Playboy, 529 U.S. at
816, 818, and rigorous judicial scrutiny both of the
importance of the objectives pursued and of the means/ends
relationship applies.
So, the baseline for First Amendment speech issues
requires the government regulator to justify its restriction of
pure speech under a form of heightened scrutiny — /Le.,
intermediate scrutiny under TPM analysis, or strict scrutiny
if the regulation is content-based. This is well-established
and straightforward. The initial debate below centered on
whether TSSAA’s punishment of Brentwood’s speech was
content-based. Regardless, TSSAA has been unable to meet
its burden. In fact, TSSAA placed the burden on Brentwood.
JA 395, 401, 467-68; CAJA 1485-1486.
The TPM Defense. TSSAA cannot sustain its TPM
defense. At summary judgment, the district court rejected
TSSAA’s TPM defense. 13 F. Supp. 2d at 687-91. On
appeal in 2001, the Sixth Circuit believed that enforcement
21
of the recruiting rule, while regulatory action, was not
content-based since it regulated “secondary effects.” The
court remanded for trial on the “as applied” claim, allowing
TSSAA to establish a TPM defense. 262 F.3d at 553-58.
TSSAA did not meet this burden. The district court
held that, as applied, the recruiting rule was not narrowly
tailored to achieve either the exploitation (no harm or threat
of harm was shown) or the subordination (no singling out of
athletes was shown) interest; the competitive equity interest
was not “substantial” enough to justify censorship of speech.
304 F. Supp. 2d at 994-97. The Sixth Circuit affirmed. 442
F.3d at 425-31.
At trial, TSSAA conceded that the basis for its
regulatory enforcement action against Brentwood was the
impact of the communication on the students and their
parents. The district court found that application of the
recruiting rule was not “tailored to control any ‘secondary
effects,” but was directed at the “content of the speech and
the impact of the speech.” 304 F. Supp. 2d at 996 n.12.
Thus, contrary to the summary judgment record, the trial
record established that TSSAA “penalized Brentwood ... for_
the substantive ‘content’ of the [SPL] and calls and the
message they conveyed in this case.” /d. at 992 n.4.
“Listeners’ reaction to speech is not a content-neutral basis
for regulation.” Forsyth County, 505 U.S. at 134.
These unchallenged factual findings insure that
TSSAA cannot establish its TPM defense. Since content-
neutrality is a prerequisite to a successful TPM defense, the
lack of content-neutrality negates TSSAA’s TPM theory.”
* The TPM defense also fails because of TSSAA’s excessive discretion.
“[A ]dequate standards” must exist to guide decisions and “render [them]
subject to effective judicial review.” Thomas, 534 U.S. at 323.
22
I. Heightened Scrutiny Applies To TSSAA’s Use Of The
Recruiting Rule On Pure Speech.
TSSAA’s regulatory conduct directed at Brentwood
is subject to conventional First Amendment scrutiny of
regulatory conduct by the state. See BIO at 17.
A. TSSAA Is A State Regulator.
1. The State Action Holding.” TSSAA exists “to
stimulate and regulate the athletic relations of the secondary
schools in Tennessee.” JA 134 (emphasis added). It was
“organized to regulate interscholastic sport among the public
and private high schools in Tennessee that belong to it.” 531
U.S. at 291. 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.” Jd. at 290, 293.
The Court’s answer: “[{TJhe association’s regulatory activity
_.. should be treated as state action.” /d. at 291. It was for
this regulatory function, exercised “in lieu of the State Board
of Education’s exercise of its own authority,” id., and as a
“surrogate association” for the state board, id. at 300, that
TSSAA was a state actor. TSSAA had been designated and
recognized as the state’s “regulator” of interscholastic
athletics. /d. at 292-93.
23 Although TSSAA addresses the issue cursorily, the state action issue
decided in 2001 is not in the Questions Presented, and, thus, is not
properly before the Court. Even if it were, there would be no basis to
revisit the Court’s 2001 decision, which it described as being “nowhere
near the margin,” and as merely bringing an “outlying circuit” into
“harmony” with “precedent otherwise uniform.” 531 U.S. 288, 294 n.1,
304-05 (2001). ‘Finally, Brentwood has addressed the propriety of
reviewing this issue. See BIO 28-29. To be considered, the issue should
be set for reargument.
23
This Court saw TSSAA’s enforcement of the
recruiting rule as regulatory conduct. It noted that this case
“responds to a 1997 regulatory enforcement proceeding
brought against ... Brentwood, a private parochial high
school member of [TSSAA].” /d. at 293. TSSAA is
restricting Brentwood’s speech “as a government regulator,”
442 F.3d at 423, and its regulatory conduct affects the First
Amendment interests of students and parents, blocking them
from receiving information that could influence their
educational decisionmaking. In this case, the absence of
information would have foreclosed participation in an
approved school activity. As the Sixth Circuit noted,
“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.” /d. at 424.
2. The Source of Government Authority Does Not
Determine TSSAA’s Regulatory Capacity. According to
TSSAA, conventional First Amendment analysis applies
only to a state’s exercise of sovereign police power over an
unwilling citizen. TSSAA asserts that the source of
government's authority (contract or sovereign) is controlling.
This Court’s decisions, however, mandate that conventional
First Amendment principles apply to TSSAA’s regulation of
Brentwood’s pure speech.** 442 F.3d at 422-24.
The critical First Amendment issue is the power of
government officials to restrain speech, whether through
exercise of sovereign or contractual authority. To qualify as
“regulation,” governmental suppression of speech need not
stem from sovereign status. It can come from activities
amounting to “informal censorship.” Bantam Books, Inc. v.
Sullivan, 372 U.S. 58, 69 n.9 (1963). Regulation can involve
** TSSAA’s position could jead to questionable and anomalous
consequences. A restriction on speech adopted by a state university
would receive toothless First Amendment protection, yet the same code
adopted legislatively would receive exacting scrutiny.
24
sovereign authority, but it need not, as when government
engages in certification or accreditation functions rather than
licensure. Even in the licensure context, regulators may
impose sanctions (e.g., reprimands or censures) that do not
involve exercises in sovereign power (i.e., do not invoke the
power of the state to prohibit conduct).
in Bantam Books, a state commission had authority
“to educate the public concerning any book” tending to
“corrupt{] ...youth,” not prosecutorial authority. Id. at 59,
61-62. Despite the commission’s lack of prosecutorial
(sovereign) power, this Court analyzed the commission's
impact on speech under conventional First Amendment
doctrine. This Court has done the same in other non-
sovereign settings, such as in public schools and state
universities, which exercise contract power over students.
At the same time, this Court has narrowly
circumscribed speech protections when government
exercises sovereign power, as in the prison context. This
Court has recognized that the constitutional rights of
prisoners “are more limited in scope than the constitutional
rights held by individuals in society at large,” and has
adopted a “deferential standard for reviewing prisoners’
constitutional claims.” Shaw v. Murphy, 532 U.S. 223, 229
(2001). An “inmate does not retain rights inconsistent with
proper incarceration,” Overton v. Bazzetta, 539 U.S. 126,
131 (2003), since a sentence may “validly deprive{] the
prisoner of a constitutional right enjoyed by ordinary, law-
abiding, persons.” /d. at 140 (Thomas, J., concurring in
judgment).
Thus, the source of government's authority to punish
speech is not determinative. As in the prison context,
deference is called for in some situations in which
government exercises sovereign power; in other cases (such
as Bantam Books), exacting scrutiny is applied where
government is not exercising sovereign power. No bright-
line rule of deference exists with regard to the source of
25
government’s regulatory authority. Instead, this Court has
looked at the government function performed in restricting
or punishing speech, the nature and importance of
government's interests, and the impact of the suppression of
speech on speakers, listeners and recipients of the speech.
In Bantam Books, 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 it did “not regulate or
suppress” speech but “simply exhorts” and advises
booksellers. 372 U.S. at 66. 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.
That the commission exercised no formal sovereign
functions was immaterial. This Court found that the
commission’s conduct, a form of blacklisting, was designed
and served to stop the circulation of publications. 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.” Bantam Books, 372 U.S. at 70, 71.
Similarly, in Conrad, 420 U.S. 546 (1975), this Court
applied conventional regulatory doctrine to proprietary
operation of a municipal theatre. The existence of excessive
discretion by public officials in contracting triggered the
same procedural requirements as in sovereignty-based
licensing. Jd. at 554 & n.7. Conrad applied First
Amendment principles from the licensing cases to the city’s
decision not to contract with “Hair” in the municipally-run
theatre. The city’s decision not to contract was
“indistinguishable in its censoring effect from the official
actions” in the licensing cases. /d. at 552. “[R]estraints” on
speech take a “variety of forms.” /d. at 553.
26
The contract was “in effect, a license or permit” with
approval based on the “exercise of judgment.” Jd. at 554 &
n.7. Conrad accordingly applied conventional First
Amendment “prior restraint” doctrine, although derived from
cases involving restraints “ernbedded in the licensing system
itself.” Jd. at 553. The contractual form and its non-
sovereign source did not save the restraint from being
considered a “prior restraint” on speech subject to First
Amendment principles applicable to sovereignty-based
licensing cases, id. at 555; the “elements of prior restraint
identified in [the licensing cases] were clearly present in the
system by which the Chattanooga board regulated the use of
its theatres.” /d. at 554; accord Forsyth County, 505 U.S. at
131; Thomas, 534 U.S. at 321; 442 F.3d at 423-24.
Ibanez v. Florida Bd. of Accountancy, 512 U.S. 136
(1994), also demonstrates the baselessness of TSSAA’s
asserted doctrinal principle. Ibanez practiced law and also
was a certified public accountant (CPA). With one
exception, accounting “activities performed by CPA’s can
lawfully be performed by [unlicensed] non-CPA’s.” /d. at
139 n.3.”°
Ibanez voluntarily subjected herself to the Board of
Accountancy, which censured her for using CPA and CFP
(certified financial planner) designations. Since Ibanez did
not need Board 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-sovereign
certification authority and imposed censure (a non-sovereign
°° Florida’s “Title Act” requires no license to perform accounting
functions except auditing. Accountants may seek the “title” of CPA as
an imprimatur of a governmental entity and voluntarily subject
themselves to the board’s regulatory authority. /banez, 512 U.S. at 139
n.3.
27
penalty), this Court applied traditional commercial speech
doctrine from the licensing cases. Ibanez voluntarily
submitted to the Board’s regulatory jurisdiction to receive its
imprimatur; Brentwood 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 /hanez 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 Brentwood.
In W. Va. State Bd. of Educ. v. Barnette, 319 U.S.
624 (1943), the state board of education asserted “power to
condition access to public education on [saluting the flag].”
Id. at 630. The board regulated public schools (non-
sovereign power) and private schools (sovereign power). /d.
at 626 n.1. By resolution, the board imposed a compulsory
flag salute, which applied only in public schools, id. at n.2,
and was implemented as a “condition [of] access to public
education.” /d. at 630. Even though “[p]arents have the
privilege of choosing which schools they wish their children
to attend” so that attendance at public school was voluntary,
id. at 657 (Frankfurter, J., dissenting), this Court applied the
“grave and immediate danger” First Amendment standard
applied in criminal cases. Jd. at 639-42.
In Bd. 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. This Court held that objecting
students were entitled to certain First Amendment
“safeguards with respect to the expressive activities which
they are required to support.” /d. at 229. 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
28
Amendment protections — that funding for a student
organization’s speech “not depend upon majoritarian
consent.” This was a contractual setting, yet, traditional First
Amendment principles were “controlling.” /d. at 235.°
In Keller v. State Bar, 496 U.S. 1 (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 and union could only
spend mandated dues on matters germane to regulation of the
legal profession and collective bargaining, respectively.
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.”’
In sum, there is no basis for TSSAA’s claim that the
source of government’s authority controls First Amendment
analysis. Government can act as a regulator in a variety of
different contexts. “{R]estraints” on speech take a “variety
of forms” subject to conventional First Amendment review.
Conrad, 420 U.S. at 553. And traditional First Amendment
protections attach even to speech that government may view
as “not very important.” Playboy, 529 U.S. at 826. Private
speakers get to choose their topic; government regulation of
a speaker’s topic is subject to strict scrutiny. Bellotti, 435
U.S. at 785 (government may not dictate “the subjects about
which persons may speak”). The “contract” thesis is a feint.
2 See also Widmar v. Vincent, 454 U.S. 263, 264-65 n.3, 270, 276
(1981); Rosenberger v. Rector & Visitors of the Univ. of Va., S15 U.S.
819, 834-35 (1995); BIO 20-21.
2” See BIO 22; cf Tool Box v. Ogden City Corp., 355 F.3d 1236 (10th
Cir. 2004) (en banc) (city used “protective covenants” (contractual
power) to prohibit First-Amendment-protected nude dancing, court
analyzed covenants (contract power) as regulatory zoning (sovereign
power)).
29
B. TSSAA Violated Basic First Amendment
Doctrine.
TSSAA’s enforcement action involved violations that
basic First Amendment doctrine is designed to guard against.
The seven violations described in this section demonstrate
why traditional First Amendment protections do and should
apply to TSSAA’s punishment of Brentwood’s pure speech
and why the special dispensation from First Amendment
doctrine sought by TSSAA for its regulation of high school
athletics should be rejected.
First, speech and conduct must be distinguished,
which TSSAA has not done. See Ashcroft v. Free Speech
Coalition, 535 U.S. 234, 253 (2002) (“[T]he Court’s First
Amendment cases draw vital distinctions between words and
deeds”). TSSAA punished speech about a permissible
activity, a core First Amendment violation. See note 4,
supra. The harms TSSAA focuses on largely stem from
attendance at the approved practice itself. See Pet. Br. at 8-9
& n.2. Non-speech regulatory alternatives exist, including a
ban on attending spring football practice by incoming
students, which has been implemented. 442 F.3d at 419 n.2;
see note 19, supra. If the Government could achieve its
interests in a manner that does not restrict speech, or that
restricts speech less, the Government must do _ so.
[R]egulating speech must bea last — not first — resort.”
Thompson v. W. States Med. Ctr., 535 U.S. 357, 373 (2002).
But speech restriction is the only resort TSSAA has visited.”*
Second, “[i]nsistence on mgorous procedural
safeguards” is an important First Amendment “bulwark[].”
Conrad, 420 U.S. at 561. Since the recruiting rule impinges
on speech, the First Amendment requires TSSAA to
implement a “process” that provides for “a careful
** Faced with a “plausible, less restrictive alternative,” government must
prove the alternative “to be ineffective,” Playboy, 529 U.S. at 823, which
TSSAA has not done. JA 487-88.
30
calculation of the speech interests involved.” Even when
regulating other things, government must consider the
impact of the regulation on speech. Lorillard, 533 U.S. at
562. That did not occur and provides a procedural basis for
affirming. TSSAA cannot, as it must, “demonstrate a careful
calculation of the speech interests involved.” /d. TSSAA’s
regulation of speech is much more limited than its regulation
of conduct. “TSSAA needs to go back to the drawing board
and start over.” 13 F. Supp. 2d at 690.”
Third, TSSAA burdens more speech than necessary.
The means used to regulate speech must not “burden
substantially more speech than is necessary to further the
government’s legitimate interests.” The recruiting rule’s
sweeping coverage and application mean that a “substantial
portion of the burden on speech does not serve” TSSAA’s
goals. Ward v. Rock Against Racism, 491 U.S. at 781, 799
(1989); 13 F. Supp. 2d at 688 n.14.
Fourth, TSSAA’s approach to speech promotes self-
censorship and a chilling effect on protected expression. The
recruiting rule bars undue influence “for athletic purposes,”
but there can be a violation “without an ‘intent’ to violate.”
304 F. Supp. 2d at 992. The risk of discipline for an
unintentional violation has precisely the kind of self-
censoring, chilling effect that the First Amendment guards
against. City of Lakewood v. Plain Dealer Publ’g Co., 486
U.S. 750, 757 (1988).°° Brentwood is inhibited from
* The template embraced in Rumsfeld v. FAIR, 547 U.S. 47 (2006), in
which the Court deferred the broader issues, could well be adopted here.
A straightforward way to affirm exists because TSSAA violated the First
Amendment by (i) failing to recognize that its authority is more
circumscribed when regulating speech than conduct; and (ii) as a
consequence, abdicated its duty to “demonstrate” that it had engaged in a
First-Amendment-required “process” of undertaking “a_ careful
calculation of the speech interests involved.” Lorillard, 533 U.S. at 562.
*° The mixed-skill case illustrates the potential for abuse and for self-
censorship. JA 340. Does the “athletic purpose” concept, which does
not require intent, apply when a school contacts a gifted student with
31
proactively pursuing interests in diversity, JA 439-44
(Masters), and families are inhibited from receiving targeted
information from schools, thereby adversely affecting their
interest in acquiring information about schools or, after
signing an enrollment contract, program activities.”|
Fifth, there is excessive discretion in_ the
administration of the recruiting rule. Forsyth County, 505
U.S. at 133 & n.10. The interpretive commentary is not
binding, and the “undue influence” standard is interpreted
under an amorphous, “totality-of-circumstances” standard.
JA 484. That is, “the recruiting rule by itself’ governs, and
does not constrain TSSAA’s discretion. 304 F. Supp. 2d at
986, 992, 995 & n.8; 442 F.3d at 428. These factual
findings are amply supported in the record.”
The repeated assertion that schools should “[p]ick up
the telephone and call” Carter, if in doubt about an
interpretation of whether particular speech is “undue
influence,” is far from acceptable. JA 432, 421-24. This
makes Carter a “‘licenser’ — an administrative official who
enjoy[s] unconfined authority to pass judgment on the
content of speech,” a “core abuse” against which the First
Amendment is directed. Thomas, 534 U.S. at 320. As the
district court noted, that “TSSAA allows members to seek
advice about how the Recruiting Rule will be interpreted
does not eliminate the discretion that it retains to apply the
subjective terms in an arbitrary fashion.” 13 F. Supp. 2d at
many talents who, unbeknownst to the school, is also a gifted athlete?
CAJA 1505-07 (describing effort to attract student to Roxbury Latin
School whom Obel-Omia saw performing A Raisin In The Sun, and who
“turned out to be not only a wonderful actor ... but [also] a championship
wrestler” who later wrestled at Harvard). To be safe, a school must
either self-censor or prophylactically refuse to allow such a student to
participate in sports, a punitive policy that, in fact, singles out athletes.
*' There is a need for proactive targeted communication to attract lower-
socioeconomic-level students. JA 305-07, 310-11; 354-57; 359-60.
* See JA 366-67; 421-23, 482-84; Tr. 1052-53.
32
693 n.26. Such “unbridled discretion” violates the First
Amendment. Forsyth County, 505 U.S. at 133 & n.10.*°
- Sixth, TSSAA must establish the “actual” not just
“stated” interest in support of its regulation of speech. That
burden is not satisfied by “mere speculation or conjecture.”
Edenfield, 507 U.S. at 768, 770. “[{H)ypothesized
justifications” are insufficient. Thompson, 535 U.S. at 374.
In its deliberative process, government must have and
“rely upon” some basis of evidence to support its speech-
restricting regulation. City of Los Angeles v. Alameda
Books, Inc., 535 U.S. 425, 438, 442 (2002) (Government
cannot “get away with shoddy data or reasoning
[E]vidence must fairly support the ... rationale for
[regulation]”). TSSAA did not establish what “actual”’*
interests underlie its “undue influence” standard, JA 479-80,
and cannot support any of its asserted interests, as applied,
other than by “conjecture.” In adopting and retaining the
recruiting rule, TSSAA did not rely on studies it performed
or that others performed. JA 480-85. In contrast,
Brentwood has “cast direct doubt” on TSSAA’s factual
claims. Alameda Books, 535 U.S. at 438.
A “regulatory program aimed at the prevention of undue influence”
risks the “danger of censorship through selective enforcement of broad
prohibitions.” /m re Primus, 436 U.S. 412, 432 (1978). The First
Amendment requires adequate standards for “effective judicial review.”
Thomas, 534 U.S. at 323.
** This is particularly true for the “competitive equity” interest, which
TSSAA did not raise until the 2001 appeal. 262 F.3d at 557. The
“feeder pattern” exceptions further undermine TSSAA’s rationale for
restricting Brentwood’s speech. See note 12, supra. That under-
inclusiveness calls into question whether TSSAA’s asserted interests are
“actual” or substantial. City of Ladue, 512 U.S. at 52-53.
*° Carter was “not aware of any ... empirical research about the harms to
students or their parents of athletic recruiting at the high school level.”
JA 485; see also JA 480; 13 F. Supp. 2d at 689 n.16. Concerning the
subordination interest, TSSAA at first said it relied on the same evidence
as its experts, but at trial admitted to the contrary and did no study of its
own. CAJA 3539-40, 3535; 996-1007; JA 484-85.
33
Seventh, content-based restrictions are not
“permissible [simply] because other avenues of expression
remain open.” Meyer v. Grant, 486 U.S. 414, 424 (1988);
Reno v. ACLU, 521 U.S. 844, 880 (1997) (government
cannot “ban leaflets” because persons “are free to publish
books’’).
Il. TSSAA Merits No Special Dispensation From
Traditional First Amendment Doctrine.
What TSSAA seeks in the First Amendment context
is “nothing less than a dispensation for itself,” a “[p]lea[] for
special treatment” for the regulation of high school athletics.
531 U.S. at 304-05. It seeks to avoid the distinction between
its power to regulate speech and conduct, and proposes a
drastically watered down version of First Amendment
protection, akin to the protection applicable in the prison
context. TSSAA seeks to expand certain accommodations
this Court has made — in the context of public expenditures
and public employment — by transforming them into general
doctrine. This Court should reyect TSSAA’s plea.
A. TSSAA’s Waiver Analysis Is Flawed.
At bottom, TSSAA’s contract theory claims that, by
signing a _ registration form, Brentwood has_ waived
something. To avoid its First Amendment obligation,
TSSAA relies on a one-line statement in the form:
Brentwood agreed to “conduct its athletic programs for the
year 1997 in accordance with the rules and decisions of the
TSSAA.” JA 231.
Constitutional rights can be waived, but the waiver
claim here fails for both technical and doctrinal reasons.
Waiver is an affirmative defense that, along with
other such defenses as “estoppel,” is itself waived if not pled.
Fed. R. Civ. P. &(c). In its Answer to Brentwood’s
complaint, CAJA 86 (Fourth Defense), TSSAA did not plead
the affirmative defense of “waiver” and cannot assert it now.
34
But, even if TSSAA could assert a waiver defense, it
cannot prevail. To be effective, a waiver must be “voluntary,
knowing, and intelligently made,” an “intentional
relinquishment or abandonment of a known right or
privilege.” This Court does not “presume acquiescence in
the loss of fundamental rights.” D.H. Overmyer Co. v. Frick
Co., 405 U.S. 174, 185-86 (1972). Thus, “in the civil no less
than the criminal area, ‘courts indulge every reasonable
presumption against waiver.”” Fuentes v. Shevin, 407 U.S.
67, 95 n.31 (1972).
The starting point is the “content of the contract.” A
waiver must “at the very least be clear.” Issues such as
“involuntariness or unintelligence” do not enter the analysis
“when the contractual language relied upon does not, on its
face, even amount to a waiver.” Fuentes, 407 US. at 95.
Brentwood agreed to abide by TSSAA’s rules. As
TSSAA notes, it would have no authority over Brentwood if
the school did not agree to be bound by the TSSAA’s rules
and regulations. This agreement did no more than what
TSSAA has claimed for it — it subjects Brentwood to TSSAA
authority, but it does not constitute a waiver of rights. The
TSSAA-drafted form contract “gives no guidance as to
whether Brentwood waived a right to challenge a rule it
considered unconstitutional.” In the face of the presumption
against waiver, the “contract’s silence thus becomes
evidence of an absence of waiver of constitutional rights,”
especially since there is “no basis for differentiating between
a waiver of some rights and not others.” 442 F.3d at 425. In
short, nothing on the “face” of the contract “even amount[s]
to a waiver.” In the absence of any specific language in the
contract regarding waiver of rights, TSSAA cannot meet its
burden of overcoming the presumption against waiver.
In addition, there must be specificity of just what
rights are being waived. In Fuentes, this Court refused to
find waiver in a contract that allowed a seller to “take back”
or “repossess” merchandise upon default, but that did not
35
specify waiver of any particulars, such as a hearing. Unlike
the waiver in Snepp v. United States, 444 U.S. 507 (1980),
which specified exactly what procedures would be followed
if a former CIA employee sought to publish a book, the
contract in Fuentes did not indicate “how or through what
process ... the seller could take back the goods.” 407 U.S. at
96 (emphasis added). The TSSAA form here says nothing
about waiver or what is being waived. JA 231.
Also, waiver requires the “intentional
relinquishment” of a “known” right or privilege. Overmyer,
405 U.S. at 186. According to TSSAA and the Sixth Circuit,
TSSAA was not a state actor in 1997 under circuit precedent.
Under the circumstances, it seems quite far-fetched to assert
that in 1997 Brentwood “intentional[{ly] relinquish[ed]” a
“known” constitutional right. Absent state actor status,
TSSAA is not subject to the First Amendment or due
process, so Brentwood could not (under TSSAA’s own
theory) have “intentional[ly] relinquish[ed]” a “known”
constitutional right since no such constitutional right existed.
So, on technical and doctrinal grounds, TSSAA
cannot overcome the presumption against waiver.° There
are additional, important reasons not to depart from strict
waiver standards in this case.
TSSAA’s waiver (and contract) arguments do not
account for the First Amendment interests of students and
parents, focusing only on the~source of governmental
regulatory power and the relationship between TSSAA and
Brentwood. Robust First Amendment waiver protections are
*© Waiver can be appropriate, as Snepp shows. But the facts of Snepp
are much different. Snepp’s “trust” relationship with the CIA gave
government a “compelling -interest” in protecting the “secrecy of
information important to our national security.” 444 U.S. at 510-11 &
n.3. TSSAA does not have a “trust” relationship with-its members, and
its punishment of speech here is not necessary to promote any interest.
36
critical for these third-party interests,” ” especially as students
also are subject to TSSAA penalties. See note 5, supra.
B. TSSAA Penalized The Exercise of Basic Rights.
TSSAA’s punishment of Brentwood for its pure
speech stems from concern that the recipients of the speech
will act on it. This is a “direct and specific abridgment of
First Amendment rights.” O'Hare Truck Serv., Inc. v. City
of Northlake, 518 U.S. 712, 720 (1996). Whether viewed
under First Amendment analysis or unconstitutional
conditions analysis, TSSAA’s action fails.
Under the unconstitutional conditions doctrine,
“government ‘may not deny a benefit to a person on a basis
that infringes his constitutionally protected ... freedom of
speech’ even if he has no entitlement to that benefit.” Bd. of
County Comm'rs v. Umbehr, 518 U.S. 668, 674 (1996). It
was developed as a shield - to overcome the proposition,
“rejected for decades now,” that a “public employee has no
right to a government job and so cannot complain that
termination violates First Amendment rights.” O'Hare, 518
U.S. at 715-16. TSSAA would turn the unconstitutional
conditions doctrine from a shield that gives greater
protection to constitutional claims into a sword aimed at the
heart of First Amendment doctrine.
This Court has recognized that if the government
“could deny a benefit to a person because of his
constitutionally protected speech or associations, his exercise
of those freedoms would in effect be penalized and inhibited.
This would allow the government to ‘produce a result which
{it} could not command directly.’ Such interference with
constitutional rights is impermissible.” /d. at 716. When
government directly punishes protected First Amendment
” Bellotti (an “undue influence” case) is instructive. This Court stressed
the “inherent worth” of speech, which “does not depend upon the identity
of its source, whether corporation, association, union, or individual.”
435 U.S. at 777.
37
activity, thereby penalizing it, the level of scrutiny is the
same whether the right is being directly infringed or whether
consequences flow from the exercise of that right.**
This Court has recognized government’s special
commonsense interests when it spends money on specific
programs. If government wishes to support a program for
one issue, it must be able to guard against the recipient
spending the funds on something else even though this
distinction is essentially content-based. Similarly, if
government wishes to dissociate itself from fund recipients
who discriminate on the basis of race or gender, it may do
so. These funding cases are a special circumstance, and, in
upholding restrictions on speech funded by government, the
Court has made it clear that the entity receiving the funds
does not surrender its constitutional nghts at all.
Thus, this Court has long held that a “refusal to fund
protected activity, without more, cannot be equated with the
imposition of a ‘penalty’ on that activity.” Harris v. McRae,
448 U.S. 297, 317 n.19 (1980). But direct state interference
(as here) with a protected activity is different from a funding
decision to prioritize or to disfavor a protected right. Maher
v. Roe, 432 U.S. 464, 475 (1977).
Rust v. Sullivan, 500 U.S. 173 (1991), broke no new
ground in this regard. Contrary to TSSAA’s claim, Rust
does not authorize the conditioning of a benefit upon the
surrender of constitutional nghts. In fact, Rust does no more
than allow government to get what it pays for while also
dissociating itself from certain disfavored private activity (as
* See, e.g., Rutan v. Republican Party, 497 U.S. 62, 74 (1990) (When
significant “penalties” are imposed “for the exercise of mghts guaranteed
by the First Amendment,” such penalties “impermissibly encroach on
First Amendment freedoms”); Dunn v. Blumstein, 405 U.S. 330, 341
(1972) (Interests affected by durational residency requirements for voting
are “affected in different ways.... The right to travel is merely penalized,
while the right to vote is absolutely denied. But these differences are
irrelevant ... [since] a State may not impose a penalty upon those who
exercise a right guaranteed by the Constitution”).
38
it does in Title VI and Title [X of the Civil Rights Act). See
Grove City College v. Bell, 465 U.S. 555, 575-76 (1984).
In Rust, government funded family planning services
but barred use of those funds for abortion-related services,
including abortion-related speech. 500 U.S. at 196. The
regulations were upheld, precisely because they did not exact
a surrender of speech rights in exchange for federal funding.
Government was not acting as regulator via its spending
power; it did not seek to control collateral or downstream
activity by recipients, so that government would be
projecting its spending power in a regulatory manner.” On
the contrary, the regulations only required that government-
funded projects operate within program guidelines; grantees
could seek other funding for non-guideline activities,
provided that such projects were separate and distinct. By
accepting federal grant funds, grantees did not surrender
their constitutional rights to discuss abortion; their speech
was restricted only in their use of federal grant funds, leaving
a grantee “unfettered in its other activities.” /d.
Thus, in Rust, government was “simply insisting that
public funds be spent for the purposes for which they were
authorized” and not something else. Grantees could still
engage in abortion-related speech, but those activities had to
be “separate and independent from the project that receives
[federal] funds.” /d. In this. way, government did not
impose conditions on its grants, it merely chose to fund
certain programs and not other, disfavored activities, which
could continue provided the government’s desire to be
disassociated from that activity was honored.
The essential point here is that the rules controlling
government spending are different from the rules controlling
other forms of government activity, such as regulation. And
when government spending equates with regulation — e.g.,
*° Cf. South-Central Timber Dev., Inc. v. Wunnicke, 467 U.S. 82 (1984)
(government can regulate by contracting, thereby losing its dormant
commerce clause exemption for market participation).
39
projecting its objectives beyond the scope of the grant — then
this Court has viewed the exercise of governmental power in
a different light. /d. at 199-201. Rust holds that, in choosing
which programs to fund, government can dissociate itself
from disfavored activities (even if it cannot directly punish
that activity in other ways).*” Rust does not support the
direct punishment of speech by TSSAA in the regulatory
(not funding) context of this case. See /banez, supra.
C. The Public Employee Doctrine Does Not
Authorize TSSAA’s Regulatory Conduct.
Relying on public employees cases, TSSAA asserts
that Brentwood’s pure speech is not protected because it
does not involve a matter of public concern. “{W hen 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.” 442 F.3d at 424. TSSAA
contends that the “public concern” limitation it seeks — yet
another special “dispensation” from standard doctrine — “can
[be] readily accommodate|d] [to] this case.” Pet. Br. 27.
This is a polite concession that the doctrine it advocates is
not supported by any decision of this Court. TSSAA seeks
to make new law and in the process water down First
Amendment protections that attach to any party who
voluntarily accepts what TSSAA_ describes as a
governmental benefit.
Again, TSSAA’s position is ahistorical. The public
employment context begins with the anachronistic Holmes
aphorism that public employees enjoy no First Amendment
protection, which this Court has “rejected for decades now.”
O'Hare, 518 U.S. at 716-17. Over time, this Court has
*” See United States v. Am. Library Ass'n, Inc., 539 U.S. at 211 (2003).
40
expanded First Amendment protections for public
employees, recognizing certain interests but also retaining
important prerogatives of government as employer.
While the “government employment cases” require
“sensitivity to governmental needs,” this Court has warned
that “First Amendment rights must not be neglected.”
Umbehr, 518 U.S. at 678. The cases balance the
particularized interests of government as employer with the
speech interests of employees who speak out as citizens.
TSSAA would take a carefully constructed and cabined
doctrine — designed to address essentially inside information
about the internal operation of government — and give it
general application, adapting it to a regulatory setting to
which it is ill suited.
The deferential standard applied to public employee
speech does not merely result from the contractual
relationship between employees and government (or between
service-provider contractors and government) but from the
special nature of that relationship and the government's
interest: in performing its role as provider of government
services. Umbehr, 518 U.S. at 674.
The special circumstances of public employment
recognize that “[glovernment employers, like private
employers, need a significant degree of control over their
employees’ words and actions.” Garcetti v. Ceballos, 126 S.
Ct. 1951, 1958 (2006). No such generalized interest exists in
every case in which government forms a contractual
relationship. Those who subject themselves voluntarily to
government’s regulatory authority (or to other contractual
relationships) are not functional equivalents of employees.
No such government interest exists here. Brentwood
was punished for communicating to its incoming students
about an activity TSSAA had approved, not about internal
personnel matters at TSSAA. TSSAA’s relationship with
Carter is altogether different from its relationship with
Brentwood. Thus, in the regulatory context, Ms. Ibanez did
4\
not speak on a matter of public concern when she provided
information on her letterhead, yet her commercial speech
was protected under traditional commercial speech
doctrine.*! And the musical “Hair” was not speech on a
matter of public concern but received full, traditional First
Amendment protection from government’s restraint even
though the city was leasing out a city-run theatre (non-
sovereign authority).
The implications of a diluted First Amendment are
significant. Government contracting is pervasive, and
TSSAA’s approach would give government a powerful lever
of control over the affairs of vast numbers of people (e.g.,
public beneficiaries) and institutions (e.g., universities).
Neither TSSAA nor its friends has carefully explained why
the context here — regulation of high school athletics — calls
for such a substantial limitation on a private party’s ability to
speak freely. As the Sixth Circuit properly held,
government’s interest is reflected in the substantiality of the
objectives it pursues and the fit between those objectives and
the restraint on speech — not in the private or public subject
matter of the speech.
In the public employment context, government limits
the speech of and disciplines public employees (and
functionally equivalent private contractors). By contrast,
government here punishes a private school and harms
students and parents who want to receive information from
the school. The speech restriction is imposed not by a school
(an area of education with some deference) but by a
government regulator against a school — an area in which
comparable deference is unwarranted.
D. TSSAA Cannot Define Away Brentwood’s First
Amendment Rights.
*! Indeed, it is hard to see how most commercial speech in the
professional discipline context would qualify as a matter of “public
concern” if TSSAA has its way. See /banez, supra.
42
TSSAA would adulterate traditional First Amendment
protections by defining its regulatory program to preclude
Brentwood’s speech. Pet. Br. 22-25. While government can
-broadly define a program’s scope, even that authority is not
unlimited.’ In the regulatory setting, this power is much
more constrained. The unconstitutional conditions doctrine
is a response to the overreaching definitionalist approach,
which can render constitutional safeguards nugatory. Cf.
Palazzolo v. Rhode Island, 533 U.S. 606, 626-27 (2001)
(limiting government’s ability to define away property
rights); Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449
U.S. 155, 164 (1980) (“[A] State, by ipse dixit, may not
transform private property into public property”).
For both procedural due process and the First
Amendment, TSSAA claims its regulations define
Brentwood’s rights, and Brentwood must take the bitter with
the sweet. This “bitter with the sweet” approach was
specifically and definitively rejected in Loudermill, 470 U.S.
at 541, in which this Court held that a state can define an
entitlement but, once it does, the procedural protections arise
from the due process clause itself. Procedural due process
rights cannot be defined away.
Bellotti is an example in the First Amendment
context. The state argued that corporations are “creatures of
the state” and “have only those rights granted to them by the
State.” This Court rejected the contention 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.” 435 U.S. at 778
n.14. In providing for the corporate form, states offer a
benefit; firms voluntarily choose to accept those benefits and
. Legal Services Corp. v. Velazquez, 531 U.S. 533, $47 (2001)
(“Congress cannot recast a condition on funding as a mere definition of
its program in every case, lest the First Amendment be reduced to a
simple semantic exercise’).
43
agree to comply with the requirements. But the voluntary
acceptance of the corporate form does not allow states to
circumvent traditional First Amendment protections through
definitionalism. That “extreme position” was rejected
because of its consequences for free expression.
Similarly, commercial speech cases such as /hbanez
cannot be squared with a definitionalist approach. A
government regulator cannot simply define a profession as
excluding commercial speech (advertising). This Court’s
expanded protection of commercial speech in_ the
professional context is incompatible with TSSAA’s position
— that government can circumvent First Amendment
protections by defining its regulatory objectives so as to
preclude the exercise of commercial speech rights.
In sum, TSSAA’s definitionalist contention is just
another unpersuasive obfuscation. As the Sixth Circuit held,
TSSAA is acting in a conventional regulatory capacity, and
the source of its regulatory authority is not determinative of
the proper analytical framework. The absence of harm, the
absence of evidence of subordination of academics to
athletics, and the utter failure to establish either the
substantiality of the competitive equity interest or how it is
advanced here make this a strong case to affirm on the facts.
This case is not a good vehicle for developing nuances of
contract/waiver or unconstitutional conditions doctrine.
44
Ill. The Recruiting Rule Is Open To Facial Challenge.
In 2001, the Sixth Circuit applied the “no set of
circumstances” standard from United States v. Salerno, 481
U.S. 739, 745 (1987), to reject Brentwood’s facial challenge.
Accordingly, the case has proceeded on an as applied basis,
“focused on the two alleged recruiting rule violations in
question rather than engag{ing] in a wide-ranging attack or
defense of the recruiting rule as a whole.” 262 F.3d at 558.
Misconstruing this Court’s “as applied” decisions, TSSAA
wants to defend the recruiting rule by resort to the
generalized concern about “athletic recruiting,” while not
allowing this Court to “focus[] on the narrow facts of this
case.” Pet. Br. 37. TSSAA cannot have it both ways.
The speech punished in this case is non-commercial
in character. 262 F.3d at 555. When government punishes
specific non-commerciai speech under a_ discretionary
“undue influence” standard, this Court analyzes the specific
context and the specific speech in question; in the absence of
a showing of harm under the particular circumstances,
government cannot “justify proscription of the activity,”
even if “part of a regulatory program aimed at the prevention
of undue influence.” Jn re Primus, 436 U.S. at 432, 436. In
Primus, this Court found that no “undue influence,
overreaching, misrepresentation, or invasion of privacy
actually occurred” and invalidated the punishment (public
reprimand). /d. at 434-35. Even if Brentwood’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).
The findings here are similar to those in Primus; the
lower courts 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” principle on an ad hoc, case-by-case basis — in
this case to pure speech. As the facts developed, the
45
recruiting rule does not contemplate a broad prophylactic or
categorical ban on all school-initiated, targeted contact. So,
TSSAA’s assertion that the rule should be viewed in the
abstract, not as applied in specific situations, rings peculiarly
hollow.*? Since there is no per se categorical “coach
contact” or “initial contact” rule, but only an ad hoc case-
specific “undue influence” rule applied to specific speech or
conduct, TSSAA cannot claim that the specific application of
the rule need not be justified. Since there is no categorical
rule, there is no way to evaluate the application of the rule
except by examining 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.
This Court’s recent unanimous decision in Wisconsin
Right to Life, Inc. v. FEC, 546 U.S. 410 (2006), demonstrates
the vitality of the Primus principle. Although the federal
campaign finance law had been upheld against facial attack,
this Court expressly allowed an as applied claim to proceed,
addressing the constitutionality of applying the general
campaign finance law to “several [specific] broadcast
advertisements . . . intended to run during the 2004 election.”
This ruling is not compatible with TSSAA’s assertion that it
is error to “focus[] on the narrow facts of this case.” See
Randall v. Sorrell, 126 S. Ct. 2479, 2491-92 (2006)
(contemplating as applied challenge in specific factual
circumstances); City of Littleton v. Z. J. Gifts D-4, L.L.C, 541
U.S. 774, 783-84 (2004) (upholding general judicial review
for a “simple objective” set of licensing criteria, but allowing
as applied challenges in specific cases of censorship or
* For example, it is one thing to uphold a bright-line rule such as a 100
foot campaign free zone around election booths, but quite another to say
that a law preventing campaigning so close to an election booth as to
constitute “undue influence” on voters cannot be challenged as applied to
an interpretation that “undue influence” means a distance of two miles
from the election booth. C/. Burson v. Freeman, 504 U.S. 191 (1992).
46
undue delay). Nor is it compatible with attorney discipline
commercial speech cases, such as /banez, which focus on the
application of subjective criteria to specific circumstances.“
If TSSAA can sidestep the as applied challenge
simply by downplaying or ignoring the specific evidence at
trial, then Brentwood should be permitted to reassert its
facial challenge.
A facial challenge is permissible here for two
reasons. First, in applying the Salerno standard to the First
Amendment context, the Sixth Circuit erred. Decisions of
this Court since 2001 have made clear that the facial
challenge standard for First Amendment cases is not that of
Salerno but rather whether a regulation affecting speech
“prohibits a substantial amount of protected expression,”
whether it “abridges the freedom to engage in a substantial
amount of lawful speech.” Ashcroft, 535 U.S. at 244, 256;
see also Virginia v. Hicks, 539 U.S. 113, 118-19 (2003)
(“[T]hat a law punishes a ‘substantial amount of protected
free speech ... suffices to invalidate a// enforcement of that
law”); Watchtower Bible & Tract Soc’y of N.Y., Inc. v.
Stratton, 536 U.S. 150, 160 n.9 (2002) (facial challenge
standard is whether regulation of expression “abridges so
much protected speech that it is invalid on its face’).
Second, evidence at trial demonstrated that TSSAA
interprets the “undue influence” provision under a highly
discretionary, standardless totality-of-circumstances _ test.
Facial First Amendment challenges of excessive discretion
are permitted because of the risk of self-censorship, an
“evil{] ... that can be effectively alleviated only through a
facial challenge.... Self-censorship is immune to an ‘as
applied’ challenge, for it derives from the individual’s own
actions, not an abuse of government power.” Lakewood, 486
U.S. at 757; see Forsyth County, 505 U.S. at 133 & n.10.
* Even a categorical rule must be justified in an as-applied TPM context
by reference to the specific circumstances. City of Los Angeles v.
Taxpayers for Vincent, 466 U.S. 789, 808-10 (1984); see also BIO 26-27.
47
The evidence demonstrates the excessive discretion
that TSSAA retains. By any fair measure, application of the
recruiting rule results in restriction of a “substantial” amount
of First Amendment protected speech. Brentwood and other
private schools cannot proactively pursue interests in
diversity or generally tell their story; families are inhibited
from receiving targeted information from schools about
program activities. School-choice experts strongly supported
the need for proactive targeted communication to attract
students from lower socioeconomic levels and the lack of
harm therefrom.” JA 305-07, 310-11, 354-57, 359-60.
IV. TSSAA Violated Procedural Due Process.
Whatever is required by TSSAA’s by-laws is
immaterial in light of Loudermill, 470 U.S. at 541, which
holds that procedural protections of entitlements flow from
the due process clause itself. And, while waiver of rights can
occur, there was no such waiver here for the reasons
explained earlier. See Section Il.A, supra. Because
Brentwood did not surrender its due process rights in joining
TSSAA, the only issue is what process is due. Mathews, 424
U.S. at 334-35. This requires sensitive balancing to
determine what procedural safeguards are required in
particular circumstances. This case involves a punishment
for pure speech, in which procedural safeguards are a
traditional bulwark of First Amendment protections and
impose on government the burden of justification. Here,
TSSAA never provided Brentwood with evidence supporting
its penalties. Brentwood had the burden throughout to
demonstrate its innocence. JA 395, 401; Tr. 1497-98.
This Court has found that one of the “principles [that]
have remained relatively immutable in our jurisprudence” is
that where the reasonableness of state action depends on
*° This Court’s charitable solicitation cases provide further support for a
successful facial challenge here. E.g., Village of Schaumburg v. Citizens
for Better Env't, 444 U.S. 620 (1980); Watchtower, supra.
48
factual 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.” Greene
v. McElroy, 360 U.S. 474, 496 (1959). In Loudermill, 470
U.S. at 546, the Court held that, at pre-determination, due
process required notice of charges, “an explanation of the
employer’s evidence, and an opportunity to present [one’s]
side of the story.” Loudermill also made clear that more
robust post-determination procedures pertain, and “the
existence of post-termination procedures is relevant to the
necessary scope of pre-termination procedures.” *© Id. at 547
n.12. Thus, the limited pre-determination procedures
required in Loudermill, which were not even present here, do
not establish the total scope of process required by due
process. Before the punishment became final, Brentwood
was entitled to know with particularity what issues were still
alive, what evidence TSSAA had and was relying on, and to
have an opportunity to respond to issues and evidence
“before the penalties are imposed.” 442 F.3d at 437. This is
what the lower courts held: it is not very burdensome.
The district court found that the “TSSAA Board of
Control considered ex purte, post-hearing evidence during its
private deliberations, to which Brentwood ... had no right of
reply.” 304 F. Supp. 2d at 1003. That is, the Board
“received, considered, and relied upon ex parte statements
and documentary evidence from Defendant Carter and two
TSSAA employees who investigated the allegations against
Brentwood.” /d.; see also JA 467-69; 475-76; Tr. 1848-
1908. And, Brentwood “had no opportunity to reply to this
ex parte evidence or even hear it and was prejudiced by the
evidence and the private post-hearing process” because the
Board considered this evidence in determining the penalty
*° Since TSSAA’s initial sanctions were effective immediately, the
subsequent proceedings are properly considered post-determination, but,
as the district court found, the TSSAA procedures do not even satisfy the
more modest pre-determination requirements. 304 F. Supp. 2d at 1005.
49
against Brentwood. 304 F. Supp. 2d at 1003. Further,
TSSAA’s investigative notes were not made available to
Brentwood. /d. at 1004-05; JA 393-403; 467-68; 475-76.
During this executive session, the conduct of Bart King was
discussed, and the district court found that “King was a
factor in the penalties imposed,” 304 F. Supp. 2d at 1004,
even though “[t]here was no indication from the TSSAA
before the final hearing ... that [it] was still considering the
Bart King allegations.” /d. at 1004 n.29.
Based on these factual findings, the district court held
due process is not satisfied because Brentwood was “not
informed of the evidence considered by the decision-
maker.’”“* /d. at 1005. Applying Mathews, the district court
held that “requiring the TSSAA to present its evidence of a
rules violation in the presence of the school alleged to have
committed the violation is a fundamental procedural
safeguard that would have imposed no, or a very modest,
additional administrative burden on the organization, and
would have ‘contributed substantially to the making of a
rational decision.’” /d. at 1006. This was particularly true in
light of the factfinding that the ex parte, post-hearing
evidence was “prejudicial to Brentwood.” /d. Board of
Control President Mike Reed openly testified that “[Bart
King] was a factor in the overall penalty.” JA 385-86.
*” While TSSAA initially indicated that Bart King was of concern, the
July 29 violations letter made no mention of wing. JA 238-44. Indeed,
Carter testified that, as of July 29, King was no longer an issue: “He was
out of the picture in terms of, I think, any disciplinary action on our part
based on Mr. King.” CAJA 756. TSSAA never provided any factual
basis for the King allegations and refused to identify whether the
withheld evidence even related to King. CAJA 2630. In fact, Carter
flatly rejected Brentwood’s offer to present Bart King in order to clarify
his relationship with the school. JA 267, 300. Thus, the district court
finding that Brentwood was “misled” about King’s relevance and “denied
an opportunity to defend this allegation head on,” is fully supported by
the record. 304 F. Supp. 2d at 1004 n.29; 442 F.3d at 435 n.20.
8 tn fact, Childress recalled Brentwood “literally pleading” for specific
information on the allegations made against the school. JA 467-68.
50
Upon review, the Sixth Circuit affirmed, holding that
due process requires “that a school be informed of all of the
issues relied on by [TSSAA]” before it finally levies a
penalty, that Brentwood get “notice of the evidence relied
upon [by TSSAA] in penalizing Brentwood,” and that
Brentwood have “a chance to respond to” TSSAA’s “issues”
and to its “evidence” before penalties were finally imposed.
442 F.3d at 437-38. In particular, “TSSAA failed to give ...
notice as it related to King,” so Brentwood “had no notice
that it should respond to the King evidence,” yet the “King
evidence was used by the TSSAA in its deliberations” and
“influenced the penalties imposed.” /d. Again, the record
supports this conclusion. See note 47, supra.
These requirements are fully consistent with this
Court’s due process decisions. As this Court recently held,
“notice of the factual basis” of government’s adverse
decision and a “fair opportunity to rebut the Government's
factual assertions before a neutral decisionmaker” are critical
elements of due process. Hamdi, 542 U.S. at 533 (relying oa
Loudermill). The lower courts appropriately balanced the
factors under Mathews and reached the correct outcome.
CONCLUSION
For the foregoing reasons, this Court should affirm
the decision of the Sixth Circuit.
Respectfully submitted,
H. LEE BARFIELD II JAMES F. BLUMSTEIN
Counsel of Record Vanderbilt University
W. BRANTLEY PHILLIPS, JR. School of law
“Ross I. BOOHER 131 21st Avenue South
Bass, Berry & Sims PLC Nashville, TN 37203
315 Deaderick Street, Suite2700 = (615) 322-0045
Nashville, TN 37238
(615) 742-6200
APPENDIX
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To: Brentwood Academy
From: Joe Marley
Date: 1/21/97
It is our intention for Ray Marley to attend
Brentwood Academy in the 1997-98 school year. Ray has
my consent to participate in a speed and strength program at
Brentwood Academy.
Joe Marley
/s/ Joe Marley
BRENTWOOD ACADEMY
219 Granny White Pike
Brentwood, Tennessee 37027
(615) 377-3632
fax: (615) 377-3709
Athietic 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
conciude 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 giad that you decided to become an
Eagle.
Your Coach,
Carlton Flatt
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.