Amicus Curiae Brief — TENN. SEC. SCHOOL ATHLETIC v. Brentwood Acad.

2798

(D

No. 06-427

In the

Supreme Court of the Anited States

TENNESSEE SECONDARY SCHOOL

ATHLETIC ASSOCIATION,

Petitioner,

V.

BRENTWOOD ACADEMY,

Respondent.

On Writ of Certiorari to the United

States Court of Appeals for the Sixth Circuit

. BRIEF OF AMICUS CURIAE OF BOYD-BUCHANAN

SCHOOL, SILVERDALE BAPTIST ACADEMY,

CHATTANOOGA CHRISTIAN SCHOOL, and

GRACE BAPTIST ACADEMY OF CHATTANOOGA

IN SUPPORT OF PETITIONER

W. Let Mappux

Counsel of Record

RoseMari£ L. BRYAN

Youser A. HAMADEH

CHAMBLISS, BAHNER & SrorHEL, P.C.

1000 Tat.AN BUILDING

Two UNION SQUARE

Cuarranooca, TN 37402

(423) 756-3000

February 20, 2007

Becker Gallagher + Cinemnan, OH + Washington, DC. + 806 890.5001

TABLE OF CONTENTS

pp he | ee i

TABLE OF AUTHORITIES... nn. cee cece iil

STATEMENT OF INTEREST ................. I

SUMMARY OF ARGUMENT ................ 3

PE <i 6s teks we OR eae ae eee 5

|. Affirmation of the Sixth Circuit Court of Appeals

decision will result in the division, if not

dissolution of the TSSAA athletic structure into

separate public and private school entities .... . 5

A. TSSAA membership provides a vital link

between public and private school children. . 7

B. Separation of_public and private schools in

interscholastic competition will expose the

Small Independents and their students,

coaches, and other faculty members to

substantial financial and academic burdens. . 8

Il. Affirmation of the Sixth Circuit Court of Appeals

decision will result in unregulated recruiting of

middle school children for athletics and other

GUIPGCUSTOCUERT MOTIVENNES. 2 ww ees 10

A. Unlimited recruiting will lead to the

exploitation of children and to the

subordination of academic development to

Eas rr ae en eee 12

B. Unregulated recruiting will adversely affect the

educational environment for students at the

small Indepemdemis. ........0e-e0e0-. 13

C. Unlimited recruiting will result in the loss of

competitive equity between the TSSAA

66 iG kano NS eee ee ees 14

Ill. The Tennessee Secondary School Athletic

Association is a voluntary association of public

RS, kp cobs esviveneece’s 16

SO eer er 17

iil

TABLE OF AUTHORITIES

Federal Cases

Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n,

531 U.S. 288 (2001) (Thomas, J., dissenting)... . . 18

South Macomb Disposal Auth. v. Township of Washington,

790 F.2d 500, 505 (6th Cir. 1986) ............ 6

Triplett v. Tiemann,

302 F. Supp. 1239 (D. Neb. 1969) ............ 6

Other Authorities

Brief of Amicus Curiae National Federation of State High

School Associations in Support of the Petition for a Writ of

Certiorari at 8-10, Tenn. Secondary Sch. Athletic Ass'n v.

Brentwood Acad., (No. 06-427) ............+4-- 12

|

STATEMENT OF INTEREST!

The Amici Curiae are all small independent private

schools located in southeastern Tennessee (hereinafter “Small

Independents”) and are currently voluntary members of the

Tennessee Secondary School Athletic Association (hereinafter

“TSSAA”). The Small Independents are comprised of private

schools with enrollments of fewer than 500 students.

Collectively, more than | ,237 students attend their secondary

grade levels... The Small Independents do not provide

financial aid to athletes at the varsity level and they compete

with public schools in TSSAA’s Division 1.’ Brentwood

Academy (hereinafter “Brentwood” ) competes in Division II,

which allows need-based financial aid for varsity level

athletics.

' Pursuant to Rule 37.6 of the Rules of the Supreme Court of the

United States, the Amici Curiae state that no counsel for any party

authored this brief in whole or in part, and no person or entity other

than the Amici Curiae and their respective counsel made any

monetary contribution to the preparation or submission of this brief.

The parties have consented to the filing of this brief. Pursuant to

Supreme Court Rule 37.3, letters evidencing this consent by

TSSAA have been filed with the Clerk. Consent letter from

Brentwood Academy is attached hereto as Exhibit A.

? Boyd-Buchanan School has 347 students; Chattanooga Christian

School has 405 students; Grace Baptist Academy of Chattanooga

has 181 students; and Silverdale Baptist Academy has 165 students.

* The TSSAA by-laws provide for two divisions into which schools

are placed for tournament competition: Division [ are schools

whose student athletes compete at the varsity level and do not

receive need-based financial aid. Division II are those schools

whose student athletes compete at the varsity level but may be the

recipients of need-based financial aid.

2

The Small Independents and similar institutions, not only

throughout Tennessee but the country, have a vital and unique

interest in the outcome of this case and are compelled to file

this Amici Curiae brief to assist the Court in assessing both

the policy and prosaic ramifications of the case on entities

other than the parties. The interests of the Small

Independents are not represented by either the TSSAA or

Brentwood, the original plaintiff in the underlying case.

Brentwood is not the voice of all private school members of

the TSSAA in this matter. This is not a simple public versus

private school dispute and the Small Independents represent

a third constituency in this instance whose needs and opinions

run contrary to the voice of the more affluent private schools

such as Brentwood.

An affirmation by this Court of the underlying Sixth

Circuit holding will impede the ability of the Small

Independents to provide extracurricular athletics as part of an

effective and holistic education. It will impede that ability not

only in athletics but in all extracurricular activities, including,

e.g. forensics, music, and debate. The Small Independents

have remained vigilant in maintaining the appropriate balance

between academics and athletics for their students. To further

that desire, they voluntarily joined the TSSAA because that

association provides a structure for interscholastic athletics

that is properly aligned with the goal of maintaining such a

healthy balance for students. TSSAA’s voluntarily-

promulgated rules and regulations, particularly those against

unregulated or unlimited recruiting of the child athlete,

provide the framework in which the Small Independents can

holistically educate their students, offer them a viable athletic

program, and at the same time maintain the integrity of their

academic communities.

3

If allowed to stand, the Sixth Circuit’s decision will have

an adverse impact on the ability of the Small Independents to

continue to provide this environment which nurtures and

teaches the whole child - - the athlete and the academic - -

because the TSSAA will be forced to exclude all private

schools from its membership. Small Independents will then

not only face increased costs, but also the possible elimination

of sports and other programs due to these costs. Perhaps

most importantly, they will lose the ability to provide

invaluable interaction between diverse public and private

school students. The Small Independents respectfully submit

this brief to the Court to present and protect their substantial

interests in seeing that TSSAA membership (as well as

membership in similar interscholastic organizations

throughout the United States) remains open to private schools

- - such as the Small Independents - - and their students.

SUMMARY OF ARGUMENT

Athletic competition through the TSSAA is critical to the

total educational needs of students at the Small Independents.

Should this Court affirm the current decision of the Sixth

Circuit, recruiting of students for athletics, forensics, vocal

competitions, band, fine arts, and other vital extracurricular

educational activities will begin as early as the fifth grade.

Such recruiting will result in an undue influence that

dramatically affects not only the educational interests of

preadolescent children but also those of their families, athletic

peers and fellow classmates.

The TSSAA is a voluntary association of public and

private schools with the members promulgating regulations

and rules. A school which voluntarily agrees to abide by the

rules of an interscholastic association must not then be

allowed to sue that association for alleged violations of First

4

Amendment speech, in particular non-protected recruiting

speech for athletic gain. If this Court allows that scenario to

stand by upholding the Sixth Circuit's decision, the

educational goals of the Small Independents, and those of

similar institutions throughout the land, will become

unattainable.

Affirmation of the Sixth Circuit decision will result in a

scenario where the dual participation of public schools and the

Small Independents in TSSAA Division | competitions will

cease. The interaction between students from multiple and

various socioeconomic backgrounds which is created by

Division | competitions will likewise cease or at best,

seriously diminish. Student athletes will no longer be able to

observe and interact with children from other communities,

neighborhoods and backgrounds on the athletic field, and the

ability to develop respect and interaction among students and

families from diverse areas will be severely curtailed.

Separation of public and private divisions of the TSSAA will

expose children, coaches, faculty, and families of the Small

Independents to increased travel and expense as public schools

will exclude the Small Independents from their athletic

schedules. Increased travel commitments will result in

inordinate amounts of time for students, coaches and faculty

away from their regular classroom learning environments.

Such a scenario will affect not only the student and faculty

attending the event, but the non-athlete remaining in the

classroom as well.

Open recruiting will place undue influence on children at

tender ages. The decision to allow students with exceptional

talents in forensics, vocal events, band, the thespian arts, and

athletics to be recruited in their formative tender years is

anathema to the balance that the Small Independents seek for

their students. Schools with a large athletic budget will have

5

an unfair advantage in the recruitment of students, and

competitive equity will! suffer as the TSSAA has historically

classified schools according to enrollment levels; a procedure

not uncommon in interscholastic extracurricular associations

throughout the country.

The above-delineated negative effects on children and

student athletes will go far beyond the playing field into all

areas of school life where there is healthy competition

between schools and _ students. All interscholastic

extracurricular activities will face a future without the

organizations which allow them to compete with other schools

and particularly with public schools. All students of the Small

Independents, whether athletes or not, will be barred from or

severely limited in acquiring a healthy, wide-ranging

education with varied and diverse interaction with their peers

throughout Tennessee, and in the final analysis, this effect on

interscholastic activities will flow throughout the country.

ARGUMENT

I. Affirmation of the Sixth Circuit Court of Appeals

decision will result in the division, if not dissolution of

the TSSAA athletic structure into separate public and

private school entities.

The TSSAA provides a framework under which public

and private schools may compete against one another under

the same agreed-upon rules. The TSSAA’s viability as an

interscholastic association for both public and private schools

is heavily dependent on its ability to effectively maintain an

equitable “playing field” between its public and private school

members. The Sixth Circuit’s decision substantially threatens

the equitable coexistence between TSSAA’s public and private

school members because it effectively opens the door for the

6

private schools to challenge through litigation the TSSAA’s

rules whenever one of them disagrees with the manner in

which the rules are enforced. Public schools, which do not

have legal standing to file constitutional claims in the same

manner as the private schools, will be left standing alone in

the TSSAA.*

The disparate balance between the public and private

schools that would result from the Sixth Circuit’s decision

will place too great a strain on the TSSAA’s ability to include

private schools as members. The TSSAA could not afford to

subject itself to constant and protracted litigation initiated by

disgruntled private school members over enforcement of its

rules. The public schools, which comprise over 80% of the

TSSAA’s total membership, will be forced to either

completely dissolve the TSSAA as it now exists or to exclude

private schools from TSSAA membership. Under either

scenario, a complete separation between private and public

schools in interscholastic competition will likely result.

If a split occurs between public and private schools in

interscholastic competition, the Small Independents stand to

lose more than either the public schools or the more affluent

private schools such as Brentwood. Unlike the more affluent

private schools in TSSAA’s Division H, the Small

* See Triplett v. Tiemann, 302 F. Supp. 1239, 1242 (D. Neb. 1969)

(holding that public school districts are not legally subject to injury

under the Fourteenth Amendment because it has no application to

actions by a state against its political subdivision) and South

Macomb Disposal Auth. v. Township of Washington, 790 F.2d 500,

505 (6" Cir. 1986) (a political subdivision of a state cannot

challenge the constitutionality of another political subdivision’s

ordinance on due process and equal protection grounds).

7

Independents compete in the same division as public schools.”

Consequently, the majority of the schools that comprise the

sports schedules for the Small Independents’ athletic teams are

local area public schools, and many relationships and rivalries

have been forged between the Small Independents and these

public schools over the years. If a public-private split occurs,

the Small Independents will lose the invaluable tangible and

intangible benefits derived from competition with local public

schools.

A. TSSAA membership provides a vital link between

public and private school children.

Small Independents maintain an essential connection to

local area public schools that they would not have without

TSSAA membership. In most cases, the athletic field is the

only field of interaction between students of the Small

Independents and public schools. The Small Independents

have no desire to educate their students in a vacuum where

they are virtually isolated from the majority of students in

their community. An integral part of any child’s education is

learning how to interact and communicate with individuals

from different backgrounds. If the link that TSSAA

membership provides between public and private schools is

severed, children from both public and private schools will

lose opportunities for developing respect and appreciation for

talents, lifestyles and challenges that have developed in arenas

different from their own.

On a more general level, a public-private split will only

enhance the isolation of some communities along with the

attendant negative consequences such isolation entails.

* See footnote 1.

8

Animosity and mistrust invariably result from the segregation

of communities, especially along socioeconomic lines. The

mission common to all schools, both public and private, of

educating children to be well-serving members of their

community will be encumbered if students are exposed only

to children from similar backgrounds. Maintaining a forum

such as the TSSAA for the interaction of children from

multiple and various backgrounds is important for building

strong communities and should be preserved at all costs.

B. Separation of public and private schools in

interscholastic competition will expose the Small

Independents and their students, coaches, and

other faculty members to substantial financial and

academic burdens.

In addition to the harmful effect of losing social

interaction with public schools, the Smal! Independents will

also suffer significant tangible consequences that will result

from a split between public and private interscholastic

associations. In the event the TSSAA either dissolves as it

now exists, or excludes private schools from membership, the

Small Independents will be confronted with two options: (1)

remain independent and schedule competition with other

schools as they can on a limited basis, or (2) join with a

“private-only” athletics association. The Small Independents

are all located in the southeastern region of Tennessee, an

area where there are too few private schools of similar nature

in the local communities to fill the Small Independents’ sports

schedules. If the Small Independents are not able to compete

against local public schools, they will be forced to schedule

private schools from other regions of the state in order to fill

their schedules.

9

Athletic schedules with a substantial number of “out-of-

town” teams will place a significant financial burden on the

Small Independents to maintain viable athletic programs.

For some Small Independents, the estimated increase in

mileage for its athletic teams will be fourfold. Factoring in

transportation, lodging and meals for their teams on the road,

it costs the average Small Independent approximately $10.00

per mile. For perspective, in order for a Small Independent

in Chattanooga to play football with another private school in

Knoxville, the nearest region where other private schools can

be found to play, the team must travel 224 miles round-trip

for approximately four hours. The cost of making a trip to

Knoxville for a Small Independent football team is

approximately $2,240.00. A trip to Nashville is a 270 mile

round-trip and takes more than four hours. The cost of

making a trip to Nashville for a Small Independent football

team is roughly $2,700.00. .

These figures include the cost of travel for the team and

coaches, but there ts the added expense that is incurred by the

families of the student athletes and coaches in traveling to

support the teams. The figures reflect how costly just one trip

would be to either Knoxville or Nashville for a Small

Independent football team in Chattanooga. If a Small

Independent in Chattanooga can no longer participate in the

TSSAA, it will be forced to schedule multiple out of town

games every season with teams from cither Knoxville,

Nashville, or even Memphis which is a 690 mile round trip to

western Tennessee. Under this travel scenario, the financial

burden of the Small Independents to maintain athletic teams

will be considerable and perhaps prohibitive.°

* These schools offer a variety of sports for both boys and girls

including cross county, basketball, baseball, softball, volleyball,

10

In addition to the increased travel expense that will result

from competing with schools from distant locales, a

substantial academic burden will be incurred as well. The

absence of student-athletes and coaches will be more frequent

and for longer periods of time. In one of the Small

Independents, more than 70% of the student body is involved

in extra-curricular activities. This means that 7 out of 10 of

its students will be absent from school much more frequently

and at times for multiple days. Increased absence of coaches

adversely affects the students who do not participate in

athletics as well, because these coaches are generally teachers

at the Small Independents. In addition, the non-coaching

teachers’ responsibilities to “catch-up” the absent student-

athletes will increase. Consequently, the quality of instruction

and material covered in the classroom will decrease. The

increased academic burdens on all of the students will make

it harder for the Small Independents to justify maintaining

athletic programs if they come at the expense of their

academic missions. Membership in the TSSAA, and thus the

ability to compete against local area public schools, is the

most viable way for the Small Independents to offer athletic

opportunities to their students without sacrificing the academic

welfare of all their students, teachers, and families.

Il. Affirmation of the Sixth Circuit Court of Appeals

decision will result in unregulated recruiting of middle

school children for athletics and other extracurricular

activities.

The Small Independents recognize the unique benefits of

athletics and other extracurricular activities. Competition in

soccer, tennis, among others. Travel costs alone would jeopardize

the continued viability of these sports.

11

athletics is often the most effective way to teach lessons such

as teamwork, organization and management of pressure.

However, the Small Independents are also concerned with

maintaining the appropriate balance between athletics and

academics and utilizing athletics as an educational tool. To

this end, the Small Independents joined the TSSAA which

provides a structure for interscholastic athletics that is

properly aligned with their goals and objectives in providing

healthy athletic opportunities for their students.’

The TSSAA and similar organizations are voluntary

organizations and their rules, such as those against unlimited

recruiting of student athletes, are voluntarily promulgated and

adhered to by members because the members agree that

unlimited and unregulated recruiting of student athletes is

harmful to students and thus not acceptable. If these rules are

allowed to be challenged and subverted at will by voluntary

member schools, such recruiting will become the de facto

state of affairs in secondary school athletics. It will

completely undermine the purposes and objectives of the

Small Independents for joining the TSSAA, as it will

inevitably lead to the subordination of academics to athletics,

competitive inequities, and the disruption of social harmony

in the schools. If agreed-upon constraints against recruiting

for athletic purposes are not upheld, then all TSSAA member

schools fail to protect their students from entering the culture

of athletic obsession at too young an age. The danger also

exists that unlimited recruiting will spread from the athletic

realm and eventually infect other extracurricular activities in

” The TSSAA offers its members a dependable program for joint

and mutual athletic competition as well as educational programs for

coaches, catastrophic imsurance for the student athletes, and the

opportunity to compete in championship games which it sponsors.

12

which schools compete such as forensic, vocal, band, and

artistic competitions.

A. Unlimited recruiting will lead to the exploitation of

children and to the subordination of academic

development to athletics.

If a child is recruited to play basketball or soccer when he

is in the fifth grade, no positive impact can resuit for the child

or the school. We need look no further than the real life

examples regarding the harmful effects of recruiting that are

prevalent in major college athletics today. The harmful

effects experienced by high school graduates being recruited

by colleges will be amplified for the middle and grade school

child who is going through the most important formative

years of his or her life. Exploiting a child at such a young

age sends the wrong message: that the value of an individual

should be measured by the amount of his or her athletic

ability.

From an academic standpoint, recruited child athletes have

pressure to perform on the field and to live up to the

expectations placed upon them. It is only natural that

immense pressure to perform athletically will significantly

dictate what priority a student places on athletics in relation

to academics. When a student is recruited aggressively as a

fifth grader, the temptation to place athletics over academics

will be well-nigh impossible to resist for that child.

* See Brief of Amicus Curiae National Federation of State High

School Associations in Support of the Petition for a Writ of

Certiorari at 8-10, Tenn. Secondary Sch. Athletic Ass'n v.

Brentwood Acad., (No. 06-427), for concise and informative

explanation of harms caused by unlimited recruiting in

intercollegiate athletics.

13

B. Unregulated recruiting will adversely affect the

educational environment for students at the Small

Independents.

Perhaps the most damaging result of unregulated

recruiting is the negative impact it will have on the social

climate of a school. In the smaller and more intimate

environments which exist at the Small Independents, a

positive environment where the class sizes are very small and

the students all know each other relatively well is the norm.

Recruiting under this scenario will have an adverse impact on

the relationships between recruited athletes and other non-

athletic students. Such social disruption will injure the

constructive social environments found at the Small

Independents. Recruited child athletes can develop a false

sense of superiority over others from the extra attention they

receive at early ages. This distorted sense of superiority will

stress their relationships with their parents, siblings, peers,

and teachers. Non-athletic students may experience feelings

of resentment and inadequacy if their achievements are not

adequately recognized. Moreover, the opportunity to

participate in athletics will be closed to those less talented

than the recruited athletes but who wish to participate in

school athletics, subverting the very purpose of offering

athletics as an educational experience.

Unregulated recruiting and the resulting increased

pressure to win will also have a negative impact on the ability

of teachers and coaches to properly perform their duties.

Teachers may feel subtle pressure to maintain the cligibility

of a star athlete and grade him or her less stringently.

Coaches will also feel compelled to subordinate their

obligations as teachers to their coaching duties.

14

The negative effects of such recruiting have the potential

to injure the social climates of all schools, not just the Small

Independents. If allowed to pervade the realm of

interscholastic athletics, the educational missions of all

schools will be undermined and subverted from their stated

objectives and goals. The responsibility to prevent unlimited

recruiting lies with all who have an interest in maintaining

healthy academic and social environments in which children

are educated.

C. Unlimited recruiting will result in the loss of

competitive equity between the TSSAA member

schools.

Competitive equity is essential in allowing the Small

Independents to promote fairness, sportsmanship and respect

for others among their students. Without competitive equity,

students will be less willing to participate in athletics or other

competitions. Community support will decrease, and the very

objectives for providing athletic opportunities for students will

be frustrated. The invaluable benefits that athletic

competition provides for children can only be realized if the

competition remains fair and equitable between its

participants.

A primary objective of any TSSAA-type association

organized for competition is this maintenance of competitive

equity between participants. Specifically, the nature of

TSSAA’s structure is geared towards maintaining the

competitive equity between the TSSAA ‘s public and private

school members.” The TSSAA also promulgated its limited

* See footnote 1. The TSSAA’s divisional classifications are

determined according to the enrollment number of member schools

15

recruiting rules in part to compensate for the disadvantages

that public schools naturally have relative to private schools.

Unlike the private schools, public schools are restricted to

their school districts to obtain students and student athletes.

Also, affluent private schools often have better athletic

facilities than the public schools because they benefit from

alumni and other raised funds. Without the TSSAA’s rules

that limit recruiting, private schools would be able to unfairly

recruit student athletes or other interscholastic “stars” away

from the public schools with little restraint.

Public schools are not the only beneficiaries of the rules

limiting recruiting. Unregulated recruiting will adversely

affect the competitive equity between the Small Independents

and the more affluent private schools which have substantially

larger budgets for their athletic programs. The more affluent

schools have the ability to offer more financial aid and better

athletic facilities to entice student athletes to enroll at their

schools. The Small Independents simply do not have the

money, desire, or goal to recruit children in the same manner

as some of the more affluent private schools. The protections

that the TSSAA rules afford the Small Independents against

unregulated recruiting may well disappear in a “private-only”

association. The inequities between the Small Independents

and the more affluent private schools with whom they would

in order to ensure that small schools are not unfairly placed in a

division with large schools. For example, within Division I football

classifications, both public and private schools compete in one of

five sub-divisions (1A-SA), with 5A being the division for the

largest schools and 1A being the division for the smallest schools.

TSSAA has also imposed a 1.8 “multiplier” to private schools in

Division I which, in effect, differentiates private and public schools

of similar enrollments. This number is then applied to determine

under which classification the private school falls.

16

be forced to compete at that point for athletes would only be

exacerbated. Some competition to obtain good students and

excellent athletes is realistic and perhaps even desirable.

However, a free-for-all environment of unlimited recruiting

creates an insurmountable gap between the more affluent

private schools and everyone else in athletics and other

interscholastic competitions.

lil. The Tennessee Secondary School Athletic

Association is a voluntary association of public and

private schools.

A crucial factor to this Court’s ultimate decision is that the

TSSAA is a voluntary association made up of public and

private schools. Each school has the opportunity to join the

TSSAA, and if it so chooses, to withdraw from the

association. The members contractually agree to follow by-

laws as well as rules and regulations promulgated by the

membership. Each member of the TSSAA has an opportunity

to participate by vote and representation through the TSSAA

Legislative Counsel and Board of Control on rulemaking

decisions. The rule limiting athletic recruiting of student

athletes is one promulgated by the very association of which

Brentwood and all other school members of the TSSAA are

members. Stated differently, Brentwood and the other

TSSAA member schools, including the Small Independents,

have voluntarily placed themselves under the aegis of the

limited recruiting rules.

Essentially each member school has entered into a

voluntary contract with the TSSAA in order to implement

rules and regulations for interscholastic athletic competitions.

The by-laws provide for (1) notification by the TSSAA to the

member of any alleged violation of the rules, (2) hearings on

same, and (3) an appeals process. Again, these by-laws were

17

promulgated by the member schools which include

Brentwood. The regulations of the TSSAA, as well as their

enforcement, teaches students the lessons of respect for

structure and authority, discipline to follow the rules, and

honor in accepting the penalties for violating them. Students

learn that life may not always appear fair, and that sometimes

their actions will be criticized but that they can accept the

results graciously and according to the rules.

All students and their families reasonably believe that if

their school is a member of the TSSAA, they can be assured

that school athletic events will occur on as fair and balanced

a playing field as is possible. These students and families

believe that the less talented athlete will have the opportunity

to play under the TSSAA, and that the school’s competition

will be varied and intense; sometimes they will lose and

sometimes they will win, but they will always have a fair

opportunity to win or lose.

The underlying decisions should not stand; allowing a

school which voluntarily agrees to abide by the TSSAA’s

rules and regulations to sue the association for -alleged

violations of its free speech rights under the First Amendment

will render the raison d'etre of interscholastic extracurricular

associations moot. Such a result is particularly egregious

when the speech is non-protected recruiting for athletic gain.

CONCLUSION

The TSSAA is a voluntary organization comprised of

public and private schools that fosters a dependable program

for joint and mutual athletic competition. The very purpose

of athletic competition is to promote fairness, respect,

discipline, and honor. Should this Court allow the Sixth

Circuit decision to stand, high school athletic competition will

18

be permanently altered and harmed to the detriment of the

ultimate beneficiary, the high school student. Unlimited

recruiting of children athletes is « »ntrary to the goals of

secondary school institutions, and certainly contrary to the

goals of the Amici now before this Court.

The impact of the prior decisions go far beyond athletic

competition. As Justice Thomas stated in the dissent of this

Court in Brentwood I, many other organizations that “. . .

foster activities, enforce rules, and sponsor extracurricular

competition among high schools - not just in athletics, but in

such diverse areas as agriculture, mathematics, music,

marching bands, forensics, and cheerleading” will be

aftected. Brentwood Acad. v. Tenn. Secondary Sch. Athletic

Ass'n, 531 U.S. 288, 314 (2001) (Thomas, J., dissenting).

For the reasons set forth, the Amici request that the

judgment below be reversed.

DATED: February 20, 2007.

Respectfully submitted,

CHAMBLISS, BAHNER &

STOPHEL, P.C.

W. Lee Maddux

Counsel of Record

Rosemarie L. Bryan

Yousef A. Hamadeh

1000 Tallan Building

Two Union Square

(hattanooga, Tennessee 37402-2500

Telephone: (423) 756-3000

Facsimile: (423) 265-9574

Counsel for Amicus Curiae