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

43e

No. 06-427

In The

Supreme Court of the United States

a

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 AMICI CURIAE BRENTWOOD

ACADEMY PARENTS, HARRY ALLAN,

MICHAEL BLALOCK, SCOTT BROWN,

LOUIS BULLARD, WALLY KNOX, MILBREY

GANICK, JOHN SLAUGHTER, AND MICHAEL

VAUGHN IN SUPPORT OF RESPONDENT

¢

ROBERT M. BASTRESS, JR

Counsel of bev ord

WEST VIRGINIA UUNIVERSTPS

Corl eoubk ob LAW

PO) Box 6130

Morgantown, WY 26506-6150

MBO) POS SBOS

March 2. 2007

TABLE OF CONTENTS

Page

TARE OF AUTHOR Tie cvcecccsccccccccesscescovcessosscessesesees iti

ee Ne Me icscsidiiniistsintnicninnsiitiinicniinitisiniinnannabeniiiia 1

SUMMARY OF ARGUMENT. .............sscsccccsssssssessssreeeees 1

IED sitcocesccememnsstnensmscnninnininniannesmnimnssinianees 4

J. TSSAAS RECRUITMENT RULE UNREA-

SONABLY IMPAIRS THE FLOW OF VALU-

ABLE INFORMATION TO PARENTS AND

I sceniestinsionsinenmpandtnnaneneninitnnsesiteniasinns 4

II. APPLICATION OF TSSAA’S RECRUITMENT

RULE TO BRENTWOOD ACADEMY’S EX-

PRESSION WAS NOT NARROWLY TAI-

LORED TO ADVANCE A_ SIGNIFICANT

GOVERNMENTAL INTERES T............0c0eseeeveeee 11

iI. NEITHER THE GOVERNMENT GRANTS

NOR THE PUBLIC EMPLOYMENT DECI-

SIONS ARE ANALOGOUS TO THIS CASE..... 15

A. The Standards Applicable to Government

Grants and Contracts Do Not Apply........... 15

B. Brentwood Is Nothing Like an Employee

or an Independent Contractor Working for

TE ssichieetnnbiiegestienniapeinnadiiinedbinaiedinaiinnties 23

IV. THE RECRUITMENT RULE WAS APPLIED

TO BRENTWOOD’S SPEECH BECAUSE

OF ITS CONTENT, AND TSSAA CANNOT

THEREFORE PUNISH THE SPEECH UNLESS

IT CAN SHOW THE SPEECH WAS UNPRO-

TECTED SPEECH OR THAT ITS PUNISH-

MENT WAS NECESSARY TO ACHIEVING A

COMPELLING STATE INTEREST...............00008 25

is

TABLE OF CONTENTS - Continued

Page

V. TSSAA’S RECRUITING RULE, AS INTER-

PRETED BY THE TSSAA, IS UNCONSTITU-

Cs IF CE Se teen pmenncscenniancnnmcesnasenmnians 27

I NUNUTEE siacictnsienctssinihicniuisnintiincinniciiscninindivinegiaitaducie 29

ll

TABLE OF AUTHORITIES

Page

CASES

44 Liquormart, Inc. v. State of Rhode Island, 517

Ses Canee UIE csi suisihiessieheaiehciieataciitahnainsnacinbebseiaaitsitasbinisinnisiaiie 12

Baird v. State Bar of Arizona, 401 U.S. 1 (1971).............. 20

Bartnicki v. Vopper, 532 U.S. 514 (2001)... eee eeeeee es 23

Bates v. State Bar of Arizona, 433 U.S. 350 (1977).......... 20

Board of Trustees of the State University of New

York v. Fox, 492 U.S. 469 (1989) ............ccccccsessssseceeeeeees 14

Board of Regents v. Roth, 408 U.S. 564 (1972)................. 18

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

UTIITETIEIE ccnsinicnsieeicsiebtonmencennsiebpesihideniicsiaijedipaaimneniiimaiiianaesiannibanes 18, 19

Bolger v. Youngs Drug Products, 463 U.S. 60 (1983).......... 6

Brentwood Academy v. TSSAA, 304 F. Supp. 2d 981

SI TNs TITITI ccsiscencesiinccsicteesiupestcibntasciettonniaeabdcmsdaiessld 8, 13, 25

Brentwood Academy v. TSSAA, 531 U.S. 288 (2001)....11, 17

Brentwood Academy v. TSSAA, 442 F.3d 410 (6th

Eee METI cxcsiencnisdnssnsiiineneniondiieninnianienciamnaphteiniinipaeniitinnininn 13

Brentwood Academy v. TSSAA, 262 F.3d 543 (2001)........ ll

City of Cincinnati v. Discovery Network Channel,

eg re te Ce et nceustencnnctsecesshiciandivicnminintiiane 6,19

City of Ladue v. Gilleo, 512 U.S. 43 (1994)... eee ee ee 15

Cohen v. California, 403 U.S. 15 (1971) .......ccecccceceeeeees 4, 26

Connick v. Mvers, 461 U.S. 138 (1983)...............ccccceeeseeees 23

Cox Broadcasting v. Cohn, 420 U.S. 469 (1975)...........006. 12

1V

TABLE OF AUTHORITIES — Continued

Page

Dun & Bradstreet Inc. v. Greenmoss Builders, Inc., -

Re ey Ce icsnciiicnintienebeiiictienndninintineninnniensninnetin 23

Edenfield v. Fane, 507 U.S. 761 (1993).........ccseseeee 2, 3, 6, 22

Florida Star v. B.J.F., 491 U.S. 524 (1989) ....... eee 12

Garcetti v. Ceballos, ___ U.S. __, 126 S.Ct. 1951

instinct ia a ai a 23, 24

Gelalla v. Onassis, 487 F.2d 986 (2nd Cir. 1973).............. 26

Greater New Orleans Broadcasting Association, Inc.

v. United States, 527 U.S. 123 (1999) ...........cccceceeeseeeees 12

Grove City College v. Bell, 465 U.S. 555 (1984)..............4. 16

Grutter v. Bollinger, 539 U.S. 306 (2003) ........ceeeeeeeeeeeees 9

Healy v. James, 408 U.S. 169 (1972) .........cccccecceseceeeeeeeeees 19

Hustler Magazine v. Falwell, 485 U.S. 46 (1988)............. 26

In re Primus, 436.U.S. 412 (1978) ...........cccccsrrsssssessereeseees 14

Kleindienst v. Mandel, 408 U.S. 753 (1972) ..........:cccceeceeees 7

Lamont v. Postmaster General, 381 U.S. 301 (1965).......... 6

McFarland v. Jefferson County Bd. of Educ., 330

F. Supp. 2d 834 (W.D. Ky. 2004), aff'd, 416 F.3d

513 (6th Cir. 2005), cert. granted sub nom. Mere-

dith v. Jefferson County Bd. of Educ., _. US.

__., 74 U.S.L.W. 3676 (June 5, 2006) ..............ccccccccssseees 7

Madsen v. Women’s Health Center, 512 U.S. 753

Iceland ai a 27

Marsh v. Alabama, 326 U.S. 501 (1946)............cccceeeceeeeeeees 7

Martin v. Struthers, 319 U.S. 141 (1943) ..........ccecsceeeeeeeeees 7

Meyer v. Nebraska, 262 U.S. 390 (1923).............cccceecees 7,10

TABLE OF AUTHORITIES — Continued

Page

NAACP v. Claiborne Hardware Co., 458 U.S. 886

Cire ccunsunssncisnenscsvenndensnnsenintenininneriigendeumiuntadesbatiiiiies 26

New York Times v. Sullivan, 376 U.S. 254 (1964) ............ 22

Ohralik v. Ohio State Bar Association, 436 U.S. 447

(Fee tesicncicnsnnmnmmneimnandieisiniais 13, 14, 20, 21

Papish v. Board of Curators, 410 U.S. 667 (1973)........... 19

Peel v. Attorney Registration and Disciplinary Com-

alien, Gao a. GO Ce vevincnccsrsevessmmnacsanininiiasbinainiin 20

Perry Educ. Assn. v. Perry Local Educators Assn.,

GE ae Be Ce viccincsicneistetcentinuaticimmuiciniiadaiinddieds 11

Pickering v. Board of Education, 391 U.S. 563

(Fie ceesevenunustonnsiesssensenpneeindinmunsntanemmenaimaninasaiaiaa 23

Procunier v. Martinez, 416 U.S. 396 (1974)...........cccceeeee ees 7

Rankin v. McPherson, 483 U.S. 378 (1987) .........cccceeeceeees 23

Red Lion Broadcasting Co. v. F-C.C., 395 U.S. 367

a sseersccsssvssnsssemvinceninnveneiniieiniian 22

Rosenberger v. Rector and Visitors of the University

Of Virginia, SIG U.B. SID (IGSS)...cccccrccesscessoeccsvescceseosecs 19

Rumsfeld v. Forum for Academic & Institutional

Rights, 547 U.S. 47, 126 S.Ct. 1297 (2006)..............08 16

Rust v. Sullivan, 500 U.S. 173 (1991)...........cccccssecceerseeeees 16

Schaumburg v. Citizens for a Better Environment,

GO TEs Ge CaN cesksnsesnnninsscnsecccuannessinhiiaiiieaiaiadaaia 15

Schware v. Board of Law Examiners, 353 U.S. 332

GIT Pececersovcceseecsoccssocovnsutepnmeesecnuacseneineisenssnmeaanniananl 20

Shapero v. Kentucky Bar Assn., 486 U.S. 466

CITED csvsecccsrsseinevvevettesevnienvintciaedadiaaal 3, 20, 21

vi

TABLE OF AUTHORITIES — Continued

Page

Sherbert v. Verner, 374 U.S. 398 (1963) ..........-ccccccseeseeeeees 18

Snepp v. United States, 444 U.S. 507 (1980)..........ccceee 24

Stanley v. Georgia, 394 U.S. 557 (1969) .........ccccccsececeeeeeeees 7

Terminiello v. City of Chicago, 337 U.S. 1(1949)...6.....0+. 26

Texas v. Johnson, 491 U.S. 397 (1989)............ccceceeeeeeees 4, 26

Thomas v. Collins, 323 U.S. 516 (1945)..........2...cccececsseeeeees 7

United States v. American Library Association, 539

ee 16

United States v. Associated Press, 52 F. Supp. 362

(S.D. 1943) (3-judge court), aff’d, 326 US. 1

ee Sccciianienetmisieiieis 22

United States v. Eichman, 496 U.S. 310 (1990) ............... 26

Virginia St. Bd. of Pharmacy v. Virginia Citizens

Consumer Council, Inc., 425 U.S. 748 (1976)........ 5, 6, 22

Ward v. Rock Against Racism, 491 U.S. 781 (1989).......... il

Watchtower Bible and Tract Society of New York,

Inc. v. Village of Stratton, 536 U.S. 150 (2002)............. 14

Widmar v. Vincent, 454 U.S. 263 (1981) ..............ccceeeeeeeeee 19

Zelman v. Simmons-Harris, 536 U.S. 639 (2002)..........:.... 8

CONSTITUTIONAL AND STATUTORY PROVISIONS

U.S. Constitution, First Amendment ........................ passim

I anipreneign 8

Va. Code Ann. § 54-524.35(3) ..........:cccssscssscssssersssssssseeseeees 5

vil

TABLE OF AUTHORITIES — Continued

Page

LAW REVIEW ARTICLES

Kathleen M. Sullivan, Unconstitutional Conditions,

102 HARV. L. REV. 1415 (1989)..........c.cccccccceccsssssseecoesees 24

William Van Alstyne, The Demise of the Right-

Privilege Doctrine in Constitutional Law, 81

Ce Se TO Ga ccsrvcnsinscunsinenecssassnsanmniianicnnsines 18

1

INTEREST OF AMICI’

Amici curiae Harry Allan, Milbrey Ganick, and John

Slaughter are parents of Brentwood Academy graduates

and of sons who received the letter that initiated the

events that led to this litigation. Amici Mike Blalock, Scott

Brown, Louis Bullard, Wally Knox, and Michael Vaughn

are parents of children who currently attend Brentwood

Academy. All of the amici share interests in promoting the

exchange of information between schools and the parents

of students and of potential students. Full information is

essential in selecting schools and in overseeing children’s

education. Restrictive rules concerning the initiation of

contact with high school students and rising high school

students interfere with schools’ ability to provide full

information to a wide spectrum of parents. Amici also

share an interest in supporting and promoting the devel-

opment of Brentwood Academy, which is adversely and

substantially affected by unnecessarily harsh restrictions

on recruiting students. The school is especially disadvan-

taged by Tennessee’s existing recruitment policies in

attracting to Brentwood qualified students from lower

socio-economic status, a fact which hampers its ability to

build and maintain a diverse student body.

SUMMARY OF ARGUMENT

The First Amendment does more than protect the

rights of speakers and the press. It also confers on listen-

ers and readers a right to receive information; the

Amendment bars unwarranted governmental interference

with the dissemination of information that drives markets.

' This amici curiae brief is submitted with the consent of all

parties in this action. Letters to that effect have been filed with the

Ceurt. No counsel for a party authored this brief in whole or in part.

2

“The general rule is that the speaker and the audience, not

the government, assess the value of the information

presented.” Edenfield v. Fane, 507 U.S. 761 (1993). This

principle has special force in the education market, where

the decisions are so critical and so complex. That market

today offers parents a wide range of choices in picking a

school for their child. The parents need information from

schools in making their selection and in learning about

educational opportunities after the selection is made.

Schools, too, need to reach out to parents. The outreach is

especially critical for the schools to identify and attract

low income students, who are unlikely to inquire or learn

about the range of school options. Private schools depend

upon recruitment to attain diverse student bodies.

TSSAA’s’ recruitment rule seriously impairs the flow of

useful information from schools to parents, students, and

potential students.

The Sixth Circuit determined that intermediate

scrutiny should apply. Assuming that is the standard, the

TSSAA’s action in this case cannot satisfy it. The standard

holds that the Association must demonstrate that its

discipline of Brentwood Academy was narrowly tailored to

promote a significant interest and left open adequate

alternative channels. Three interests were advanced by

TSSAA to support its action: protecting students from

exploitation and harassment, preventing athletics from

dominating academics, and maintaining competitive

equity. Even if those interests are significant, the disci-

plining of respondent’s speech in this case did nothing to

‘promote them. That speech included a letter and a follow-

up phone call. The letter informed students who had

* This brief refers to petitioner Tennessee Secondary School

Athletic Assomation as “SSAA,” “the Association,” or_peutioner.

3

already committed to attend Brentwood Academy in the

fall that spring football practice was about to begin and

that they were invited to attend. Their participation in the

practices was permitted by TSSAA rules. The phone call

that ensued was to reassure parents that their sons’

participation in the practices was voluntary. No reasonable

person can conclude that two contacts to contracted

families conveying information about a legitimate school

activity, which the students would not otherwise have

known about, could implicate any of the asserted state

interests.

The Association fails in its attempts to characterize

this case as one akin to those involving government grants

or public employees. This case does not concern conditions

attached to government funds. The TSSAA here has

purchased nothing from the school, has not bestowed any

grant on it, and has not underwritten any school activity.

In the same vein, the TSSAA does not direct and pay the

schools, as it does with its employees, to conduct its

business or execute its programs. Rather, the TSSAA

creates and enforces regulations that govern the state’s |

high school athletics, in general, and communications

between schools and potential students, in particular. The

Association acted in this case as an enforcer of its recruit-

ment rule. The validity of its action is accordingly gov-

erned by decisions such as those in which professional

boards have enforced rules of conduct against exercises in

speech. E.g., Edenfield, supra; Shapero v. Kentucky Bar

Assn., 486 U.S. 466 (1988). Under the rubric of those

decisions, it is clear that the state may not punish the

unobtrusive communication of accurate information about

a lawful activity.

The district court found in this case that the TSSAA

disciplined Brentwood Academy because of the content of

4

its communications. Thus, in order to sustain that disci-

pline, TSSAA must show that it was necessary to achieve a

compelling state interest or that the speech was categori-

cally punishable. E.g., Texas v. Johnson, 491 U.S. 397

(1989); Cohen v. California, 403 U.S. 15 (1971). The speech

in question was clearly within protected speech, and for

the same reasons the TSSAA could not satisfy intermedi-

ate scrutiny, it fails to meet strict scrutiny.

For the reasons stated in the brief of amicus curiae

Association of Christian Schools International, the re-

cruitment rule is unconstitutional on its face. The rule is

particularly officious in its restrictions on schools’ ability

to initiate personalized contact with potential students.

Those restraints especially burden the schools’ ability to

attract qualified students from low income families. That,

in turn, means that most low income families will not

receive the information they need to make informed

education decisions.

ARGUMENT

I. TSSAA’S RECRUITMENT RULE UNREASONA-

BLY IMPAIRS THE FLOW OF VALUABLE IN-

FORMATION TO PARENTS AND STUDENTS.

TSSAA’s interpretation of its recruitment rule, as

demonstrated by the particular facts in this case, does

more than restrict the freedom of speech of Brentwood

Academy (“Brentwood”) and its agents. The Association

also seriously deprives potential students (including

those who have signed contracts to enroll and paid their

deposit) and their parents of information that they need

to make educational choices and to make the most of

their educational experience. As such, the rule constricts

valuable First Amendment rights of that audience.

“Freedom of speech presupposes a willing speaker.

But where a speaker exists, as is the case here, the protec-

tion afforded is to the communication, to its source and to

its recipients both.” Virginia St. Bd. of Pharmacy v. Vir-

ginia Citizens Consumer Council, Inc., 425 U.S. 748, 756

(1976). This Court accordingly ruled that the Virginia

Pharmacy Board could not constitutionally keep from

prescription drug consumers information they needed to

make informed decisions in buying drugs. Virginia’s law

prohibiting pharmacists from advertising “any amount,

price, fee, premium, discount, rebate or credit terms” for

any prescription drugs violated consumers’ First Amend-

ment rights. “If there is a right to advertise, there is a

reciprocal right to receive the advertising, and it may be

asserted by these appellees.” Jd. at 757. The Court rea-

soned:

So long as we preserve a predominantly free en-

terprise economy, the allocation of our resources

in large measure will be made through numerous

private economic decisions. It is a matter of pub-

lic interest that those decisions, in the aggregate,

be intelligent and well informed. To this end, the

free flow of commercial information is indispen-

sable. And if it is indispensable to the proper al-

location of resources in a free enterprise system,

it is also indispensable vo the formation of intel-

ligent opinions as to how that system ought to be

regulated or altered.

* 425 U.S. at 750, quoting Va. Code Ann. § 54-524.35/3).

6

Id. at 765 (internal citations omitted).‘ To be sure, Brent-

wood’s speech in this case was not commercial speech.’ The

principle, however, of the need for a free flow of informa-

tion for markets to work applies with equal (or greater)

force in the context of making educational choices. As

Brentwood’s expert Dr. James Guthrie said in speaking

about that very context, “Markets can’t operate, or at least

they can’t operate efficiently, unless those who come to the

market with products and services and those who come to

the markets seeking products and services are well-

informed.” Trial Transcript (“Tr. Tr.”) at 837.

This Court has consistently sustained the right to

receive information and has done so in a variety of con-

texts. Lamont v. Postmaster General, 381 U.S. 301 (1965),

for example, invalidated a postal regulation that burdened

* More recently, the Court in Edenfield v. Fane, 507 U.S. 761

(1993), found unconstitutional Florida’s ban on certified public account-

ants’ initiating contact with potential clients and soliciting their

business. The Court explained:

In denying CPA’s and their clients these advantages, Flor-

ida’s law threatens societal interests in broad access to com-

plete and accurate commercial information that First

Amendment coverage of commercial speech is designed to

safeguard. The commercial marketplace, like other spheres

of our social and cultural life, provides a forum where ideas

and information flourish. Some of the ideas and information

' are vital, some of slight worth. But the general rule is that

the speaker and the audience, not the government, assess

the value of the information presented.

Id. at 766 (citations omitted).

* That is, conveying information about spring football practice in

no way “proposed a commercial! transaction,” identified a commercial

product or servic, or promoted Brentwood’s economic interests, which

are the critical factors in this Court’s definition of commercial speech.

E.g., City of Cincinnati v. Discovery Network Channel, Inc., 507 U.S.

410, 422-23 (1993), Bolger v. Youngs Drug Products, 463 U.S. 60, 66-67

(1983).

citizens’ rights to receive certain political publications

from foreign sources. Similarly, in Kleindienst v. Mandel,

408 U.S. 753, 762-763 (1972), the Court held that, al-

though an unadmitted nonresident alien could claim no

right to enter the country to conduct a lecture tour, profes-

sors who wanted to bring him here to hear and debate him

could assert a First Amendment right to challenge his

exclusion. Their claim was “the right to receive informa-

tion and ideas.” Jd. at 762, quoting Stanley v. Georgia, 394

U.S. 557, 564 (1969). Even if prisoners lose a good portion

of their expressive freedoms when they become incarcer-

ated, prison censorship of their mail nevertheless impli-

cates the First Amendment because their addressees have

a right to receive unfiltered correspondence from the

prisoners. Procunier v. Martinez, 416 U.S. 396 (1974); see

also, e.g., Marsh v. Alabama, 326 U.S. 501, 505 (1946);

Thomas v. Collins, 323 U.S. 516, 534 (1945); Martin v.

Struthers, 319 U.S. 141, 143 (1943). Recognition of this

“right ... to acquire useful knowledge” has a venerable

place in constitutional law. Meyer v. Nebraska, 262 U.S.

390, 399 (1923).

The record in this case establishes the importance of

the free flow of information for schools, parents, and

students in making educational choices. Choices abound in

education today more than ever; the proliferation of private

schools, charter schools, magnet schools, vocational schools,

and liberal public school transfer policies now provide

families with an array of options. McFarland v. Jefferson

County Bd. of Educ., 330 F. Supp. 2d 834 (W.D. Ky. 2004),

aff'd, 416 F.3d 513 (6th Cir. 2005) (describing wide range

of parental choices in a public school system), cert. granted

sub nom. Meredith v. Jefferson County Bd. of Educ., __

U.S. __, 74 U.S.L.W. 3676 (June 5, 2006); Brentwood

8

Academy v. Tennessee Secondary Sch. Athletic Assn., 304

F. Supp. 2d 981, 989, 991 (M.D. Tenn. 2003).° The No Child

Left Behind Act mandates that low performing public

schools provide, at the state’s expense, alternative school-

ing for any requesting students. 20 U.S.C. § 6316(b)(1).

School choice promotes competition among schools to keep

and retain good students, and that, in turn, enhances the

quality of schools. See Zelman v. Simmons-Harris, 536

U.S. 639, 644-48 (2002). Diverse choices enable parents to

find a school that suits their values and their child’s needs.’

As a consequence, making choices becomes increasingly

difficult. “Education is a complicated business,” Professor

Ellen Goldring explained, “and [choosing a school is] a very

important decision. And obviously . . . families [can’t] make

good decisions about the best fit, what their child needs and

where their child can be most successful(,] if they don’t have

access to good information.” JA-304.

Critica] to this educational decision-making process is

the ability of a school to reach out to-families to inform

them of its existence, emphases, qualities, and philosophy.

E.g., JA at 359 (Testimony of James Guthrie). Attracting

students is essential not only for a school’s economic well-

being, in terms of having a sufficient number of students

to meet budgetary needs, but also to ensure the diversity

* Plaintiff's expert and Peabody Professor of Education Ellen

Goldring also described the recent developments emphasizing and

expanding parental choice in education. Tr. Tr. 323-29.

" Several parents testified in this case that they selected Brent-

wood Academy for their child because of the school’s tripod approach to

education — developing academic, athletic, and spiritual qualities - and

because it best suited their child. E.g., Tr. Tr. 471 (Testimony of John

Slaughter), Tr. Tr. 761-62 (Testimony of Harry Allan).

* The record states that the witness suid that “families can make

good decisions” without good information, but it is apparent from the

context that the “can” was an error and that it should have read “can't.”

9

that is so vital to education. JA-308-09 (Testimony of Ellen

Goldring); JA-354-58 (Testimony of Michael Obel-Omia);

JA-359 (Testimony of James Guthrie); see, e.g., Grutter v.

Bollinger, 539 U.S. 306 (2003). The need to reach out is

particularly acute in the recruitment of students from

families of middle and lower socio-economic status (“SES”).

Professor Goldring explained that such families are not in

social networks where they can learn through personal

contacts about educational choice, and they are not nearly

as likely to seek out information about the availability of

private alternatives. JA-305-06. As one mother succinctly

stated, “If you’re not in the market for a used car, you're

not going to look at the classified ads.” JA-306 (Testimony

of Ellen Goldring). Without a recruitment process, tal-

ented children in those families are not nearly as likely to

be informed about scholarship opportunities.

According to Michael Obel-Omia, teacher and admis-

sions director at Roxbury-Latin in Boston, the best way to

reach lower SES families is “/t)hrough personal contact.

It’s my going out and visiting these families, visiting their

schools, seeing them, talk[ing] to them, explaining who we

are, sharing Roxbury-Latins’s story. That is the most

effective way. As I noted on the cards that we have at open

house, most kids that come, the majority of them come,

check off that they met me.” JA-356-57. In the absence of

such efforts, meaningful school choice for children in

middle- and low-SES ranges is not an option. As a conse-

quence, if private schools like Brentwood cannot use

proactive and personalized methods to attract such stu-

dents, they are severely handicapped in attaining a

diverse student body.”

* Professor Guthrie explained that private schools have to work

harder than public schools to achieve diversity, they have to engage in

(Continued on following page)

10

TSSAA’s recruitment rule stifles considerable speech

that families with school age children would otherwise

receive and ought to receive. While no one would contest

the need for rules to prevent what is, in fact, coercion or

harassment in recruiting, the interpretation that the

TSSAA has given to its rule means that many students,

and student athletes in particular, will be deprived of

educational opportunities because they do not know about

them.

The facts in this case illustrate how the recruiting

rule can interfere with families’ rights to receive news

about a school. TSSAA allowed incoming students to

participate in spring football practice. If Coach Flatt (or

someone at his direction) had not: contacted the twelve

families, their sons would not have known about the

opportunity to join in the practices and, obviously, could

not have taken advantage of the opportunity. Parents and

students — whether the latter are potential students,

already committed students, or enrolled students — have a

need and a “right ... to acquire useful knowledge” about

available educational opportunities. Meyer, supra, 262 U.S.

at 399. As shown below, the TSSAA cannot sustain the

arbitrary manner in which it has interfered with that

right.

“almost dour to door salesmanship. This is Fuller Brush salesmanship,

this is knocking on doors, going into low income neighborhoods, finding

out where under-represented students live or play, talking to their

parents, trying to get into their churches, trying to get into the social

activities in which they engage, and expluin to them that there are

choices from which their children might benefit... . It is recruiting.”

JA-359.

ll

II. APPLICATION OF TSSAA’S RECRUITMENT

RULE TO BRENTWOOD ACADEMY’S EXPRES-

SION WAS NOT NARROWLY TAILORED TO

ADVANCE A SIGNIFICANT GOVERNMENTAL

INTEREST.

On remand from this Court’s ruling in Brentwood

Academy v. Tennessee Secondary Schools Athletic Assn.,

531 U.S. 288 (2001), the Sixth Circuit characterized the

action taken by the TSSAA against Brentwood as a con-

tent neutral application of the recruitment rule. That

court therefore concluded that TSSAA need satisfy only an

intermediate level of scrutiny to sustain its case. 262 F.3d

543, 553-54 (6th Cir. 2001). Assuming that is the applica-

ble standard,” TSSAA fails it.

To survive intermediate scrutiny, the government

must demonstrate that its rule or action is narrowly

tailored to achieve a significant governmental interest and

leaves open adequate alternative channels of expression.

E.g., Ward v. Rock Against Racism, 491 U.S. 781, 791

(1989); Perry Educ. Assn. v. Perry Local Educators Assn..,

460 U.S. 37, 45 (1983). TSSAA invokes three interests to

support its case: protecting students from exploitation and

harassment, preventing athletics from dominating aca-

demics, and maintaining competitive equity. Even if those

interests are significant, the application of the recruiting

rule to Brentwood’s expression in this case failed to pro-

mote them.

TSSAA disciplined Brentwood for a letter and a

phone call to twelve students. Coach Flatt’s letter was an

* Part IV, infra, explains that TSSAA disciplined Brentwood

because of the content of its expression and that that discipline must

consequently be measured by strict scrutiny.

12

unobtrusive means to inform incoming students about the

existence and nature of the impending spring practice,

which they would not otherwise have known about. The

follow-up telephone call clarified that the practices were

strictly voluntary. Passing on truthful, nonmisleading

information about a lawful activity, this Court has held, is

constitutionally protected speech. E.g., Greater New

Orleans Broadcasting Association, Inc. v. United States,

527 U.S. 123 (1999); 44 Ligquormart, Inc. v. State of Rhode

Island, 517 U.S. 484 (1996); see also, e.g., Florida Star v.

B.J.F., 491 U.S. 524 (1989) (truthful disclosures of lawfully

acquired information may not be punished absent a

necessity to promote an overriding state interest); Cox

Broadcasting v. Cohn, 420 U.S. 469 (1975) (same). Thus,

unless the manner or means of the expression in this case

imperiled the State’s interests, the communications could

not be subjected to adverse governmental treatment.

Making that point virtually decides this case. A brief

letter and a clarifying phone call cannot by any stretch be

considered exploitive or harassing.’ Several parents of

students who received the letter testified in this case that

they found nothing inappropriate, threatening, harassing,

coercive, or harmful in the letter, but they did state that

they appreciated being informed about the practices.” E.g.,

That obvious fact contributes to the inference that it was really

the contents of the letter that provoked the TSSAA. If so, then interme-

diate scrutiny is not the appropriate analysis. Strict scrutiny is. See

Part IV, infra.

* See also the testimony of Peabody/Vanderbilt Professor David

Guthrie:

I don't see anything within the context of this letter which is

exploitative of students.... [T]he cbverse of this letter is

what’s undesirable: The absence of communication... .

{O}nce a student and his or her family make a commitment

(Continued on following page)

13

JA-324-25 (Testimony of John Slaughter); JA-350-51

(Testimony of Milbrey Ganick); JA-352 (Testimony of

Harry Allan); 304 F.Supp. 2d at 990-91. Because the

TSSAA allowed incoming eighth graders to participate in

spring football drills, it can hardly claim that telling those

students about the drills put athletics above academics.

Nor is it rational to conclude that the letter and phone call

implicated the interest in maintaining competitive equity.”

These were students who had already decided to attend

Brentwood, they had a right to participate in the spring

practices, and they had previously expressed the desire to

play football at Brentwood. Moreover, public high schools

under TSSAA’s feeder schools exception were entirely free

to contact their incoming eighth graders to inform them

about spring practice. How could “competitive equity” be

promoted by prohibiting one set of schools from providing

individual notice about practices while not allowing

another set to do so?

TSSAA argues that it is “entitled” to enforce its

athletic rules without scrutiny of a rule’s particular

applications. It is a novel argument. This Court has held,

as petitioner notes in its brief at 37, that a rule can be

applied to particular facts even though the harms at which

the rule is aimed did not, in fact, ensue. Ohralik v. Ohio

State Bar Association, 436 U.S. 447 (1978). In Ohralik,

to a school, then | think the appropriate policy ought to be

to maximize communication. Tr. Tr. at 853.

* Because the TSSAA in no way promoted fair competition by

disciplining Brentwood for Coach Flatt’s letter and phone calls, it is

unnecessary for the Court to determine whether competitive equity is a

significant governmental interest. If the Court does address the issue,

it should affirm the Sixth Circuit's conclusion that the interest in this

case wus not substantial for the reasons stated by that Court. Brent-

wood Academy v. TSSAA, 442 F.3d 410, 426-27 (6th Cir. 2006).

14

however, the rule banning in-person solicitation by law-

yers was applied to speech and to circumstances that

clearly threatened the state’s interests in preventing fraud

and coercion. Ohralik was the classic ambulance chaser

who had personally approached two 18-year old accident

victims to convince them to hire him. One of them he

visited on two occasions end while she was still in the

hospital. By contrast, a companion case to Ohralik invalidated

the application of a similar no-solicitation rule because it

penalized speech that communicated useful information

and did not threaten the state’s interest. Jn re Primus, 436

U.S. 412 (1978). The solicitation there was made by letter

and was not motivated by profit. Together, these cases say

that the state may punish speech that presents a risk of -

the harm the state can legitimately prevent, but it may

not punish speech that is devoid of such risk.

Similarly, the Court in Board of Trustees of the State

University of New York v. Fox, 492 U.S. 469 (1989), en-

countered a university system rule that banned all solici-

tation in college dormitories. After finding that the circuit

court had used the wrong standard, the Court remanded

the case with instructions to determine, first, whether the

rule was unconstitutional as applied to the speech in

question — gatherings akin to Tupperware Parties — and,

second, if it was constitutional, whether the rule as inter-

preted by the Board was facially unconstitutional. Jd. at

484-86. The only difference between Fox and this case is

that Fox involved commercial speech and this case in-

volves noncommercial informational speech.

While it is true, as Petitioner states, that intermediate

scrutiny does not command /east restrictive alternatives,

such analysis does take into account the degree to which

the state regulation burdens more speech than is neces-

sary. E.g., Watchtower Bible and Tract Society of New York,

15

Inc. v. Village of Stratton, 536 U.S. 150, 168-69 (2002); City

of Ladue v. Gilleo, 512 U.S. 43, 58-59 (1994); Schaumburg

v. Citizens for a Better Environment, 444 U.S. 620, 639

(1980). That is the essence of “narrow tailoring.” In this

case, by casting its anti-recruitment net so broadly as to

ensnare a letter and a clarifying phone call to already-

committed families about a lawful school activity, the

TSSAA has burdened far more speech than is necessary to

prevent exploitation of students, to keep athletics subordi-

nate to academics, and to foster competitive equity.

Ill. NEITHER THE GOVERNMENT GRANTS NOR

THE PUBLIC EMPLOYMENT DECISIONS ARE

ANALOGOUS TO THIS CASE.

Both the TSSAA and the United States, in support of

the petitioner, contend that this case should be governed

by the doctrines developed in the context of executing

government grants and contracts or of public employment.

While it is understandable that the TSSAA would want to

seize on the speech-restrictive aspects of those doctrines,

neither context is analogous. The analyses put forward by

the petitioner and the solicitor general are seriously

flawed. They also fail to take into account the rights of

parents like the amici to be informed about schools and

about their activities.

A. The Standards Applicable to Government

Grants and Contracts Do Not Apply.

Because Brentwood Academy at some point signed a

contract, agreeing to abide by TSSAA’s rules, and because

it did so voluntarily, the TSSAA argues that those facts

transform this case into one involving the administration

of a governmental grant or contract.

16

Petitioner’s brief points to decisions in which this

‘Court has upheld conditions that Congress imposed on the

receipt and use of federal funds. Rumsfeld v. Forum for

Academic & Institutional Rights, 547 U.S. 47, 126 S.Ct.

1297 (2006); United States v. American Library Associa-

tion (“ALA”), 539 U.S. 194 (2003); Rust v. Sullivan, 500

U.S. 173 (1991); Grove City College v. Bell, 465 U.S. 555

(1984). “Congress is free to attach reasonable and unambi-

guous conditions to federal financial assistance that

education institutions are not obligated to accept.”

Rumsfeld, 547 U.S. at __, 126 S.Ct. at 1306, quoting

Grove City, 465 U.S. at 575. Undoubtedly, TSSAA could

impose reasonable conditions on any funds that it distrib-

utes to member schools. That is not this case, however.

The distinction between imposing conditions on

funding and imposing conditions on participation is both

obvious and meaningful. Within broad limits, “when the

government appropriates public funds to establish a

program it is entitled to define the limits of that pro-

gram.” Rust, 500 U.S. at 194. In Rust, for example, the

government essentially purchased a set of services; it

bought family planning counseling, and the counseling it

bought was that which did not include abortion as a

family planning alternative. The government there was

“simply insisting that public funds be spent for the

purposes for which they were authorized.” Jd. at 196.

Similarly, in ALA, the government decided to underwrite

public libraries’ provision of internet services “to help

public libraries fulfill their traditional role of obtaining

* Even under that relaxed standard, the recruiting rule as applied

to Brentwood still cannot withstand invalidation. It is neither reason-

able nor predictable to conclude that a ban on “undue influence” applies

to Brentwood’s speech in this case.

17

material of requisite and appropriate quality for educa-

tional and informational purposes.” In doing so, Congress

could insist that libraries use their federal dollars for that

purpose.

In this case, the TSSAA has funded nothing, and

Brentwood does not provide any programmatic services on

behalf of the TSSAA. The Association has not purchased

any services or speech from Brentwood. Rather, the

TSSAA has asserted its regulatory authority over Brent-

wood and punished it for its expression. See Brentwood I,

531 U.S. at 291 (TSSAA is a corporation “organized to

regulate interscholastic sport among the public and

private high schools in Tennessee); id. at 299 (TSSAA

fulfills schools’ “need [for] some mechanism to produce

rules and regulate competition”). The $3,000 TSSAA

sought from Brentwood for the letters and phone calls was

not for the recoupment of misspent public funds, it was a

fine. Brentwood’s speech in this case was not delivering

the Association’s message, was not implementing its

program, was not delivering any service that the TSSAA

had purchased or contracted for. Rather, Brentwood was

simply communicating accurate information about a

lawful school function to private individuals who were in

privity with the schoo]. TSSAA in this case was not func-

tioning as a government speaker, purchaser, or under-

writer; rather it functioned as an enforcer.

TSSAA stresses that Brentwood voluntarily joined the

Association and, when it did, signed a contract to abide by

the Association’s rules. Given+the school’s tripartite educa-

tional philosophy melding together academics, athletics

and the spiritual, given TSSAA’s ban on member schools

playing nonmembers without its permission, and given the

district court's finding that “TSSAA is effectively the only —

game in town,” 304 F. Supp. 2d at 997, whether Brent-

wood's entry was really “voluntary” is quite debatable. It is

18

also beside the point. Without question, TSSAA controls

access in Tennessee to a very valuable arena — high school

athletics. By its insistence that entry into that arena

comes at the price of the surrender of constitutional rights,

the TSSAA advocates nothing less than the reimposition of

the long discredited right-privilege doctrine.”

There are numerous contexts in which individuals

voluntarily submit themselves to the authority of a state

entity, and agree to abide by that entity’s rules, without

conferring upon it the capability to create and apply those

rules in ways that obliterate constitutional rights. Cer-

tainly, students who attend a public university freely

choose to do so while also entering into a contractual

relation with the school and agreeing to abide by its rules.

Yet this Court has consistently applied traditional public

forum and content distinction analysis to university efforts

to restrain students’ speech. Ronald Rosenberger voluntar-

ily enrolled at the University of Virginia and voluntarily

sought university funds to support his student group’s

religious publication. Nevertheless, this Court quite

rightly held that the University’s refusal to fund the

publication, when it funded all other nonreligious and

nonpolitical student publications, created a content dis-

crimination that could only be sustained by satisfying

strict scrutiny. Rosenberger v. Rector and Visitors of the

University of Virginia, 515 U.S. 819 (1995). _

Similarly, this Court applied traditional First

Amendment analyses to claims raised by the students in

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

“ For examples of cases rejecting that doctrine, see Board of

Regents v. Roth, 408 U.S. 564, 571 (1972), Sherbert v. Verner, 374 U.S.

398, 404 (1963), see generally, e.g., William Van Alstyne, The Demise of

the Right-Privilege Doctrine in Constitutional Law, 81 Harv. L. REV.

1439 (1968).

19

voluntarily attended the University of Wisconsin. Their

challenge to the university’s assessments for the support

of student groups failed because that support was provided

in a viewpoint neutral manner, but the students’ challenge

to a referendum procedure to determine funding or de-

funding of a particular group appeared suspect. “To the

extent the referendum substitutes majority determina-

tions for viewpoint neutrality it would undermine the

constitutional protection the program requires... . Access

to a public forum, for instance, does not depend upon

majoritarian consent.” Jd. at 235."

Both Rosenberger and Southworth applied straight-

forward First Amendment doctrines without so much as a

hint that the voluntary or contractual nature of the

students’ attendance at the university would call for any

diminished protection for their expression. The same can

also be said for the Court’s prior decisions addressing the

First Amendment rights of university students. E.g., Fox,

supra; Widmar v. Vincent, 454 U.S. 263 (1981) (student

religious group had equal access right to university facili-

ties); Papish v. Board of Curators, 410 U.S. 667 (1973)

(expulsion of student for distributing on a college campus

a newspaper that included profanity and an offensive

cartoon violated First Amendment); Healy v. James, 408

U.S. 169 (1972) (student group could not be denied campus

recognition because of its politica] views)."”

* The issue was remanded for factual clarification. 507 U.S. at

235-36.

” The cases recognize that universities may “enforce reasonable

rules of conduct,” but they cannot enforce the rules in ways that

infringe on protected speech. E.g., Papish, 410 U.S. at 669-70, Healy,

408 US. at 180.

20

The professional licensing decisions offer further

support for application of traditional First Amendment

principles in this case. Attorneys do not have to join a

state bar; there are numerous ways in which they can put

their degrees to use without securing a law license. (E.g.,

law professor, financial advisor, corporate counsel, gov-

ernment attorney.) If they choose to practice law, however,

then (in most states) they must join a bar organization and

submit themselves to the authority of the state bar. As

numerous precedents of this Court have established, that

authority to regulate the licensing of lawyers is not a

license to ignore members’ First Amendment rights. E.g.,

Peel v. Attorney Registration and Disciplinary Committee,

496 U.S. 91 (1990) (discipline of lawyer for providing

information about his certification as a civil trial specialist

violated First Amendment); Bates v. State Bar of Arizona,

433 U.S. 350 (1977) (ban on lawyers’ advertising violated

their free speech rights); Baird v. State Bar of Arizona, 401

U.S. 1 (1971) (bar may not, consistently with the First

Amendment, condition admission on answering questions

about protected political associations); Schware v. Board of

Law Examiners, 353 U.S. 332 (1957) (bar could not rely on

applicant’s past Communist Party membership to conclude

he lacked moral character for admission to the bar).

Two cases have particular relevance to the facts in

this case. In the first, Shapero v. Kentucky Bar Ass’n, 486

U.S. 466 (1988), the Court overturned as violating the

First Amendment a state bar’s discipline of a lawyer for

mailing a solicitation to persons known to be in need of

particular legal services. Correspondence, including a

targeted mailing, does not present the same risk of decep-

tion and coercion as in-person solicitation does. Compare

Primus, supra, with Ohralik, supra. Moreover, the Court

noted, “the State can regulate ... abuses and minimize

mistakes through far less restrictive and more precise

21

means, the most obvious of which is to require the lawyer

to file any solicitation letter with a state agency, giving the

State ample opportunity to supervise mailings and penal-

ize actual abuses.” 486 U.S. at 476. Accordingly, the State

must permit truthful, nonmisleading attempts by a lawyer

to inform potential clients about his or her services.

Similarly, the TSSAA cannot punish the conveyance by

Brentwood of information to families under contract.

Rather, if it has a legitimate interest in regulating such

correspondence,” it can do so by requiring the school to

submit copies of the letters.

A second case held that even in-person solicitation by

a professional can be protected speech — if it does not

threaten the state’s regulatory interests. When CPA Scott

Fane moved to Florida and became licensed by the Florida

Board of Accountancy, he learned that the Board prohib-

ited him from contacting business persons and arranging

“to meet with them to explain his services and expertise.

This Court concluded that the ban on such contacts did not

directly advance the Board's interests in preventing fraud,

protecting clients’ privacy, and maintaining the appear-

ance and fact of accountants’ independence. Edenfield v.

Fane, supra. Because Fane proposed selling himself to

sophisticated business persons — who receive individual-

ized sales pitches on a recurrent basis — the risk of cver-

cion and deception identified in Ohralik was not present.

And because the meetings would occur in a business

contact, the ban did nothing for clients’ privacy. Finally,

the Board had failed to adduce any persuasive evidence

that the ban enhanced CPAs’ independence. 507 U.S. at

" The potential for abuse in the communications between a school

and families under contract is de minimis. Why TSSAA should insinu-

ate itself into such correspondence is not self-evident.

22

761-63. At the same time, the opportunity for meaningful

give and take discussion between Fane and potential

clients heightened the First Amendment interests of both

sides. Consequently, the Court invalidated the no solicita-

tion rule as applied to Fane’s circumstances. In the ab-

sence of an actual threat to the government’s interest, the

state could not preclude the communication of accurate

information. In this case, TSSAA’s interests in preventing

its regulatees from harassing potential students, from

overemphasizing athletics, and from disrupting competi-

tion do not apply to the conveyance of accurate informa-

tion by a schoo] in one letter and one phone call to families

already under contract.

That returns the analysis to the point made in Part I,

supra. An interpretation of the First Amendment that

would permit the TSSAA to prohibit or punish the speech

in this case, and to direct the speech of its regulatees as if

they were grant recipients, would seriously threaten the

flow of information in competitive markets. In many of

these licensing cases — Va. State Bd. of Pharmacy, lawyer

advertising, Edenfield, the case at bar — the governmental

entity is suppressing competition. In such cases, it is

consumers like the amici who are injured. The First

Amendment protects the markets of ideas and informa-

tion, not just the rights of speakers. E.g., Red Lion Broad-

casting Co. v. F-C.C., 395 U.S. 367, 390 (1969); New York

Times v. Sullivan, 376 U.S. 254, 273-76 (1964); United

States v. Associated Press, 52 F. Supp. 362, 372, 374-75

(S.D. 1943) (3-judge court) (L. Hand, J.), aff’d, 326 U.S. 1

(1945). Fane’s potential clients were given the opportunity

to decide for themselves if they wanted to hear his spiel.

The parents in this case similarly had the right to know

about the opportunity to send their children to spring

football practice.

23

B. Brentwood Is Nothing Like an Eynployee or an

Independent Contractor Working for TSSAA.

TSSAA maintains that Brentwood’s contract with it

renders the school akin to a public employee or an inde-

pendent contractor that performs services for the State.

Hence, the Association says, Brentwood’s speech is pro-

tected from TSSAA reprisal only if it relates to a matter of

public concern.” The argument fails for much the same

reasons as the government grantee arguments fail. TSSAA

has no interest in regulating Brentwood’s speech analo-

gous to that described last year by this Court in Garcetti v.

Ceballos, ___. U.S. __, __, 126 S.Ct. 1951, 1958 (2006):

“Government employers, like private employers, need a

significant degree of control over their employees’ words

and actions; without it, there would be little chance for the

efficient provision of public services.” Employers pay and

direct their employees in order to execute the company or

agency business. Thus, when an employee speaks in his

" This Court’s cases have held that a public employee's speech

regarding a matter of public concern is protected from retaliation unless

the government can meet compelling state interest analysis. E.g.,

Rankin v. McPherson, 483 U.S. 378 (1987), Pickering v. Board of

Education, 391 U.S. 563 (1968). That standard does not apply if the

speech is not about a public concern. It does not follow, however, that an

employee has no First Amendment right to engage in speech that is

unrelated to a matter of public concern. The government certainly could

not punish one of its employees for speech about a private matter

engaged in away from the workplace and unrelated to any legitimate

employer concern. See, e.g., Bartnicki v. Vopper, 532 U.S. 514, 547, 553-

54 (2001) (Rehnquist, C.J., dissenting) (statute promoted lst Amend-

ment values by preventing self-censorship of and chilling effect on

private speech); Dun & Bradstreet Inc. v. Greenmoss Builders, Inc., 472

U.S. 749, 760 (1985); Connick v. Myers, 461 U.S. 138, 147 (1983) (“We

do not suggest ... that Myers’ speech, even if not touching upon a

matter of public concern, is totally beyond the protection of the First

Amendment”). As demonstrated in Part I], TSSAA had no legitimate

interest in disciplining Brentwood's speech in this case.

24

role as an employee, he or she does so under the em-

ployer’s supervision. As in Garcetti, employee speech in

that context is therefore subject to managerial discipline.

None of that is relevant to Brentwood, which is not re-

sponsible for executing the Association’s business. Brent-

wood performs no service for TSSAA, and TSSAA pays

Brentwood nothing. TSSAA’s interest in regulating the

speech of Brentwood Academy with potential students is

completely different from its interest in controlling the

speech of the employees who conduct the Association’s

business.

TSSAA’s assertion that Brentwood’s contract with it is

an “up front” promise to abide by its rules and thus consti-

tutes a waiver also lacks force. Waivers must be knowing

and unambiguous. There is no knowing waiver of the right

to unobtrusively communicate accurate information in a

promise not to engage in “undue influence.” To argue that

a ban on “undue influence” unambiguously prohibits

notifying incoming students about a school activity is to

plead for the fantastical.” Moreover, even if Brentwood

waived some of its own speech rights, it could not waive

the rights of amici and other parents and of students who

had the right to receive information about school activi-

ties.

* Petitioner can draw no support from Snepp v. United States, 444

U.S. 507 (1980). There, the contract that Snepp signed was unambigu-

ous: everything he wrote had to be submitted to his public employer for

approval. Moreover, the concerns of his employer — the C.I.A. — are so

different from virtually any other employer, and affect interests of

national security and of the highest magnitude, see Kathleen M.

Sullivan, Unconstitutional Conditions, 102 Harv. L. REv. 1415, 1503

(1989), that the case cannot possibly be useful] guidance in the regula-

tion of speech about high school athletics.

25

IV. THE RECRUITMENT RULE WAS APPLIED TO

BRENTWOOD’S SPEECH BECAUSE OF ITS

CONTENT, AND TSSAA CANNOT THEREFORE

PUNISH THE SPEECH UNLESS IT CAN SHOW

THE SPEECH WAS UNPROTECTED SPEECH

OR THAT ITS PUNISHMENT WAS NECESSARY

TO ACHIEVING A COMPELLING STATE IN-

TEREST.

Regardless of whether the recruiting rule facially

regulates on the basis of content, see Part V, it is clear that

the rule was applied to Brentwood’s speech because of its

contents. As the district court noted in this case, “Defen-

dant Ronnie Carter, the Executive Director of the TSSAA,

testified that the Spring Practice Letter and follow-up

calls were harmful undue influence because of their

contents|.]” 304 F. Supp. 2d at 991. The content identified

as triggering the recruitment rule included the letter’s use

of “enrolled” to describe the incoming Brentwood students;

Flatt’s reference to Brentwood as the students’ “new

team;” Flatt’s qualification that said, “if you are not

currently involved in sports” (relevant, TSSAA said,

because it emphasized athletics by not mentioning other

activities); the phrase, “inconvenience to your parents”

(relevant, TSSAA said, because it did not include incon-

venience to the students); the phrase “definitely be to your

advantage” (relevant, TSSAA said, because that really

means the practices were not optional); the coach’s phone

number; and the phrase “become an Eagle” (relevant,

TSSAA said, because the students were not yet attending

classes at Brentwood). Jd. The district court concluded:

The Court finds that the preponderance of

the credible evidence at trial is that the substan-

tive “content” of the Spring Practice Letter and

calls mattered and was a significant factor in the

26

TSSAA’s decision that the letter and calls con-

stituted “undue influence” and violated the

Recruitment Rule. The TSSAA penalized Brent-

wood Academy for the substantive “content” of

the Spring Practice Letter and calls and the mes-

sage they conveyed in this case.

Id., n.4.

Even if the recruitment rule does not specifically refer

to speech, if it is applied to speech because of its content,

then the First Amendment requires that the speech either

be within an excludable category of speech (like defama-

tion, obscenity, etc.) or that the application is necessary to

accomplish a compelling state interest. E.g., United States

v. Eichman, 496 U.S. 310, 315-18 (1990); Texas v. Johnson,

- 491 U.S. 397, 410-16 (1989). Thus, a law that criminalizes

disturbing the peace would not on its face raise First

Amendment concerns, but its application to the speech

expressed in Cohen v. California, 403 U.S. 15 (1971),

resulted in a finding of unconstitutionality. Accord, Ter-

miniello v. City of Chicago, 337 U.S. 1 (1949). The same

principle has been applied to common law standards

regulating conduct but applied to expressive activities

because of their content. E.g., Hustler Magazine v. Falwell,

485 U.S. 46 (1988) (intentional infliction of emotional

distress tort applied to magazine parody); Gelalla uv.

Onassis, 487 F.2d 986 (2nd Cir. 973) (intrusion privacy

tort applied to conduct of photojournalist); see also NAACP

v. Claiborne Hardware Co., 458 U.S. 886 (1982). Clearly,

Brentwood’s expression in this instance was not within

one of the categories of speech that may be prohibited by

the State. Thus, for TSSAA to sustain its disciplining of

Brentwood’s speech, it must make the showing that its

action was necessary to achieve a compelling state inter-

est. Eichman, supra; Texas v. Johnson, supra. For the

reasons stated in Part II, the TSSAA’s application of its

27

recruiting rule to Brentwood’s speech cannot satisfy that

demanding standard.

V. TSSAA’S RECRUITING RULE, AS INTERPRETED

BY THE TSSAA, IS UNCONSTITUTIONAL ON ITS

FACE.

Amici urge this Court to declare the petitioner’s

recruiting rule to be facially invalid. The brief of amicus

curiae Association of Christian Schools International has

amply explained the rule’s facial invalidity, and that

explanation need not be repeated here. Part I, supra, also

describes ways in which the rule spreads a net that

encompasses much speech of value to families making

school choices. Amici briefly supplement those arguments

here.

The restrictions on initiating contact, especially when

combined with restrictions on personal interaction, are

particularly problematic because they prevent schools

from reaching low-SES families in an effective manner. As

previously explained, those families are not likely to take

the initiative in searching out educational alternatives.

They will not then obtain the information they need about

their choices unless schools are permitted to seek them

out. And schools cannot do that effectively without per-

sonal contact. As a consequence, the low-SES students

miss opportunities otherwise available, and schools like

Brentwood lose the diversity they could otherwise obtain.

TSSAA’s restrictions on initiating contact cut against

some very basic First Amendment values. Those values

were recognized and vindicated in Madsen v. Women’s

Health Center, 512 U.S. 753 (1994), which overturned an

injunction provision that prohibited abortion protestors

from approaching within 300 feet of a health clinic any

person seeking services of the clinic “unless such person

28

indicates a desire to communicate.” According to the

Court:

[I}t is difficult, indeed, to justify a prohibition on

all uninvited approaches of persons seeking the

services of the clinic, regardless of how peaceful

the contact may be, without burdening more

speech than necessary to prevent i*tinidation

and to ensure access to the clinic. Absent evi-

dence that the protesters’ speech is independ-

ently proscribable (i.e., “fighting words” or

threats), or is so infused with violence as to be

indistinguishable from a threat of physical harm,

see Milk Wagon Drivers, [this] provision cannot

stand.... The “consent” requirement alone in-

validates this provision; it burdens more speech

than is necessary to prevent intimidation and to

ensure access to the clinic.

Id. at 774.

Recruitment of high schoo] students can certainly be

regulated. The TSSAA can use a wide variety of devices to

vindicate its concededly legitimate interests. It can limit

the number of contacts a school makes and impose sub-

stantial time, place, and manner restrictions on coaches.

The net the TSSAA has cast through its interpretation of

what is undue influence, however, disables schools from

effectively recruiting a wide and diverse range of students.

Approp. ‘ate school officials need the freedom to identify

prospective students who qualify for admission, to initiate

contact with parents, and to conduct in-person discussions

to address the many issues involved in school choice. For

amici, TSSAA’s use of its recruitment rule is especially

problematic because it prevents many parents from

obtaining the information they need, and to which they

are entitled, to make important decisions about their

children’s education.

29

CONCLUSION

This Covrt should affirm the decision of the Court of

Appeals.

Respectfully submitted,

ROBERT M. BASTRESS, JR.

WEST VIRGINIA UNTVERSITY

COLLEGE OF LAW

P.O. Box 6130

Morgantown, WV 26505

March 27, 2007