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

434d

No. 06-427

IN TH

Supreme Court of the Anited States

TENNESSEE SECONDARY SCHOOL ATHLETIC ASSOCIATION,

Petitioner.

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BRENTWOOD ACADEMY.

Respondent.

On Writ of Certiorari to the

L nited States Court of Appeals

for the Sixth Circuit

BRIEF OF ANUCOUS CURLAE BRIDGES ACADEMY,

NASHVILLE, TENNESSEE

CHRISTOPHER DORR ALONE *

NP\l tii WR METER

Matt sATECE Ete

1717 Main St.. Suite 2800

Dallas. Texas 7320!

* Counsel of Record (21-4) 989-5500

March 27, 200°

I.

Il,

IIT.

IV.

TABLE OF CONTENTS

BRIDGES ACADEMY HAS A UNIQUE

STORY THAT IT SHOULD BE ALLOWED

TO TELL PROSPECTIVE STUDENTS ..........

THE RECRUITING RULE IS AN UN-

CONSTITUTIONAL TIME, PLACE, AND

MANNER RESTRICTION ON THE FREE-

DOM OF SPEECH THAT PRIVATE

SCHOOLS ENJOY UNDER THE FIRST

FTE -cictesninieessetniennsiioniiiaiinenniasininsese

A. The Recruiting Rule is vague ......................

B. If the Recruiting Rule is not vague, then it

NE apiininiisecnincdcteenncnanteaiaiaehanindninninnees

NEITHER BRIDGES NOR BRENTWOOD

OBJECT TO REASONABLE, CLEAR

PROHIBITIONS ON RECRUITING MIS-

PURI ITES-UF siienicicioctcsuionsceneabliciabesitialindieasutaninndeliong

BRIDGES HAS NO ALTERNATIVE BUT

TO BELONG TO TSSAA, A STATE

(1)

10

il

TABLE OF AUTHORITIES

CASES

Brentwood Academy v. Tennessee Secondary

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

City of Houston v. Hill, 482 U.S. 451, 451-452

Frisby v. Schultz, 487 U.S. 474, 485 (1988)..........

Grayned y. City of Rockford, 408 U.S. 104, 108-

Sie NT TT scciaciadiindhiisieatasibuibancanpapeniiidetaniudbaniabiansiiins

Keyishian v. Board of Regents, 395 U.S. 589,

SET iccuisiacdsniaritianniciidsainiiiinatamintemantimness

United States v. O’Brien, 391 U.S. 367, 382

RESIS aero ns anes ene er aor

Village of Hoffman Estates, 455 U.S. 489, 494-

IEP cics:occisscitrsbaeibpiiickicabsedeceteieageindasainaiiiahockivasns

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

AREER SINE ae earn Re Aa TC ERT

Page

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8-9

11

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IN THE

Supreme Court of the Anited States

No. 06-427

TENNESSEE SECONDARY SCHOOL ATHLETIC ASSOCIATION,

Petitioner,

Vv.

BRENTWOOD ACADEMY,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF OF AMICUS CURIAE BRIDGES ACADEMY,

NASHVILLE, TENNESSEE

STATEMENT OF INTEREST '

Bridges Academy (“Bridges”) is a start-up independent

secondary school in Nashville, Tennessee.” Bridges will

accept its first class of students this summer, ahead of the

2007-2008 school year. Bridges is opening with the goal of

' The parties have consented to the filing of this amicus brief. Letters

of consent have been filed with the Clerk of the Court. Pursuant to Rule

37.6, amicus States that none of the parties nor their counsel wrote this

brief in whole or in part and that no one other than amicus made any

monetary contribution to the preparation or submission of this brief.

“The school’s website can be found at http: www.bridgesacademy

nashville.org

2

serving as a Christian, college-preparatory, middle school

and high school designed to mold inner-city boys into

community leaders. The school offers a full range of core

academic subjects, as well as specialty topics such as

entrepreneurship, technology, community leadership, music,

and programs in the arts.

Athletics and sportsmanship are central to the school’s

mission of molding boys into community leaders. As such,

Bridges plans to be a member of the Tennessee Secondary

School Athletic Association (“TSSAA”) for the 2008-2009

school year, when the school fields its first class of seventh

grade students.

Bridges has a strong interest in seeing that its First Amend-

ment rights to openly and honestly recruit both athletes and

student non-athletes are preserved. With. athletics and

sportsmanship being so central to its mission, Bridges must

be a member of TSSAA to be successful. Yet TSSAA’s

Recruiting Rule directly and substantially chills the ability of

Bridges to employ its person-to-person, face-to-face model of

recruiting at-risk inner-city youth because the Recruiting Rule

places unconstitutional restrictions on the school’s right to

communicate with prospective students.

INTRODUCTION AND SUMMARY

Bridges is a start-up private school for boys in inner-city

Nashville, Tennessee. Its target student population will be

comprised of boys who are struggling in failing inner-city

public schools, and who can benefit from a highly-structured,

college preparatory environment that offers one-to-one con-

tact between students and educators. This contact begins

with the recruiting process, during which staff members and

community volunteers representing the school visit the homes

of potential students to conduct in-person interviews and

informational sessions with the boys and their families.

: 3

TSSAA’s Recruiting Rule directly chills constitutionally

protected speech in which Bridges might otherwise engage,

and threatens the efficacy of its entire recruiting model. That

recruiting model is central to getting at-risk boys to enroll in

Bridges. Other methods of distributing information—such as

waiting for students and their parents to stumble upon the

school’s website—are ineffective at reaching the population

that Bridges needs to reach. It is probable that athletics will

be discussed during the home visits and afterward— such a

conversation would naturally occur as the staff member or

volunteer attempts to tell the school’s story and convince the

boys’ parents to enroll them at Bridges.

The Recruiting Rule is either unconstitutionally vague

(under TSSAA’s interpretation) or unconstitutionally over-

broad. Facially, the rule appears to prohibit nearly all contact

between a private school and a potential student. This seems

absurd, as private schools must be allowed to send appli-

cations, medical forms, reading lists, and the like to prospec-

tive students if they are to achieve their enrollment targets. If

the Recruiting Rule does not intend to regulate these types of

activity, then it chills protected speech through its vagueness.

If the Recruiting Rule does in fact intend to prohibit all forms

of contact between a private school and a prospective student,

then it is vastly overbroad, and restricts whole swaths of

constitutionally protected speech. It can only be one or the

other. There is no saving interpretation.

Neither Bridges nor Respondent Brentwood Academy would

object to a reasonable, narrowly-tailored recruiting rule that

specifically targeted the acknowledged evil of recruiting mis-

conduct. However, the Recruiting Rule is not such a rule.

TSSAA’s unwillingness to consider rewriting the Recruiting

Rule exposes TSSAA’s real motive in this case: to selectively

use a vague Recruiting Rule to punish schools that are

threatening the athletic dominance of the public school

majority of its membership. What is needed. instead, is a set

4

of rules that are narrowly tailored to the evil they supposedly

target.

ARGUMENT

I. BRIDGES ACADEMY HAS A UNIQUE STORY

THAT IT SHOULD BE ALLOWED TO TELL

PROSPECTIVE STUDENTS

The free exchange of information is a crucial component of

the private school recruiting process. Unlike public schools,

which may be the default choice for many students, private

schools must be able to freely provide accurate and complete

information to potential students and their families. This is

especially true in the case of inner-city students, who may

feel trapped by a failing public school system, but who may

be unaware of private school alternatives. The private school

must be able to tell its story to these families.

Bridges was founded with the express mission of reaching

out to at-risk, inner-city boys, bringing them into a structured

and nurturing educational environment, and molding them

into leaders of their communities. The Bridges recruiting

model therefore differs substantially even from those of other

private schools. Public schools can, of course, rely on the

fact that they are the default choice for most students. They

do not need to do any outreach—students are routed to them

automatically by the state. Even many established private

schools have a sort of automatic recruiting system, where

reputation, word of mouth, church affiliation, and rankings in

independent reports ensure that students and parents are

generally aware of the alternatives those schools offer.

Bridges, on the other hand, relies specifically on com-

munity outreach to find students and bring them through its

doors. The internal organization of the schoo] reflects this.

Bridges is served by a Board of Directors and a Board of

Advisors. each of which is composed of community leader

volunteers. Many of the members of these boards were

5

themselves disadvantaged youth in inner-city Nashville.

They see the school as a way to reach out to children who

stand today where they stood twenty or thirty years ago.

Thus, these board members play an active role in reaching out

to the community and encouraging it to send its boys to

Bridges. In addition to these board members, Bridges em-

ploys both paid staff and volunteers to go into the community

around the school to identify and recruit boys who will

benefit from the unique environment that Bridges offers.

This usually involves in-home, one-on-one meetings with the

student and his family. The entire model is built upon this

personal, face-to-face approach.

Even the school day at Bridges is different from other

schools. Somewhat unusually for a private school, Bridges

provides bus transportation for students whose parents lack

the ability to transport their children to school in the morning.

The school day begins promptly at 8:00 A.M., and includes a

complete college preparatory curriculum. For students whose

caregivers cannot pick them up when the formal school day

ends at 3:00 P.M., Bridges offers an after school program

that runs until 6:30 P.M. The program is designed to keep

students immersed in a positive, structured academic environ-

ment and away from negative influences. By beginning the

day with private busing and ending it with a lengthy after-

school program. including athletics, students spend more of

each day in an environment that is geared toward ensuring

their safety and success. Parents and caregivers who werk

during the day can be assured that their children are safe in

school rather than on the streets or home alone.

The Recruiting Rule prevents Bridges from mailing the

above summary to a prospective student because. under a

strict reading of the Recruiting Rule. such a summary could

constitute undue influence. Bridges has an important story to

share with inner-city parents and their children. Its structure.

focus, and methodology are unique, especially when Bridges

6

is compared to public schools that offer a standard school

day, little one-on-one contact between students and educators,

and minimal supervision of children once they are cut loose at

3:30 P.M. Obviously, the unique Bridges story will influence

many parents to enroll their children there and influence the

boys themselves to want to go. .

People speak in order to influence others, and they are

given freedom of speech so that they may influence others

freely. TSSAA claims a justifiable concern about recruiting

misconduct—a concern with which neither Bridges nor Re-

spondent Brentwood Academy disagree. But under the guise

of claiming to regulate undue influence, TSSAA has crafted a

Recruiting Rule that prohibits nearly any influencing, due or

undue, of potential students on the part of private schools. If

the Recruiting Rule does not intend to regulate constitution-

ally protected speech, then it is vague; otherwise, it is

overbroad. In either case, it should be re-written to narrowly

capture the stated interest of TSSAA in curbing undue

influence.

Il. THE RECRUITING RULE IS AN UNCON-

STITUTIONAL TIME, PLACE, AND MANNER

RESTRICTION ON THE FREEDOM OF

SPEECH THAT PRIVATE SCHOOLS ENJOY

UNDER THE FIRST AMENDMENT

The Recruiting Rule is comprised of the simple rule plus a

body of interpretive commentary. The simple Recruiting

Rule seems straightforward: “The use of undue influence on a

student (with or without an athletic record), the parents or

guardians of a student by any person connected, or not

connected, with the school to secure or to retain a student for

athletic purposes shal] be a violation of the recruiting rule.”

J.A. 181. But the Guidelines For Understanding The *Re-

cruiting Rule” and Understanding “What Is Undue Influ-

ence?” prove just how vague the Recruiting Rule actually is.

7

J.A. 181-187. The guidelines reveal that TSSAA has an ex-

pansive definition of undue influence, including “Any contact

between a member of the coaching staff or representative of

the school and prospective studenv/athletes prior to, during, or

after contests at elementary schools, middle schools, and

junior high schools except where there is a definite feeder

pattern.” J.A. 183.

Thus, no contact may occur before or after athletic events,

but how far before or after? A day? A week? A month?

The Recruiting Rule and its interpretive guidelines are silent

on this question. The interpretive guidelines also provide that

“[p]rivate or parochial schools may not contact students

enrolled at the public schools.” J.A. 183. Does this mean

initial contact? Does it prohibit mass mailings? Does every

meeting have to be initiated by the student if he is currently

enrolled at a public school? The interpretive guidelines seem

to imply that the prohibited contact is somehow related to

athletics or athletic events, which might narrow the Recruit-

ing Rule somewhat. But a plain reading of the interpretive

commentary can only the school representative fearful that

any contact at any time can, technically, violate the rule. This

fear is further stoked by TSSAA’s seemingly uneven enforce-

ment actions.

Assuming the Recruiting Rule constitutes a restriction on

the time, place, and manner of communication that may occur

between private schools and students they are recruiting.

its plain terms basically prohibit “any contact” between the

school and the student prior to matriculation. See United

States v. O'Brien. 391 U.S. 367, 382 (1968).° In the case of a

* Bridges accepts for purposes of argument the Sixth Circuit's conclu-

sion that the Recruiting Rule represents a time, place, and manner

restriction on free speech. Other amici, specifically Christian Schools

International. make a persuasive argument that the Recruiting Rule is a

content-based restriction. We choose to address the Recruiting Rule here

time, place, and manner restriction on free speech, the Court

should examine whether the restrictions are “justified without

reference to the content of the regulated speech, that they are

narrowly tailored to serve a significant governmental interest,

and that they leave open ample alternative channels for

communication of the information.” Ward v. Rock Against

Racism, 491 U.S. 781, 791 (1989). The Recruiting Rule

ieaves open no alternative channels of communication be-

tween the school and potential students. It closes them all off

and leaves it up to the TSSAA to selectively determine when

some invisible line has been crossed by a school in any

particular instance. This results in a vague rule with which

member private schools are uncertain how to comply. And if

the Recruiting Rule is not vague—if it really does prohibit all

contact between the schools and potential students—then it is

overbroad. In either case it is unconstitutional. Village of

Hoffman Estates, 455 U.S. 489, 494-495 (1982).

A. The Recruiting Rule is vague

No teacher, coach, or administrator could reasonably con-

clude that the “undue influence” targeted by the Recruiting

Rule would literally include “any contact” between the school

and the student. The Recruiting Rule is therefore facially

vague and vague when read together with TSSAA’s inter-

pretive commentary. This is the same type of vagueness that

was at issue in City of Houston vy. Hill, 482 U.S. 451, 451-452

(1987), where a municipal ordinance prohibited “any man-

ner” of speech that would interrupt a police officer in the

course of his or her duty. This Court held that the ordinance

was invalid because it gave the state “unconstitutional

discretion in its enforcement.” /d. at 466. The vagueness of

the Recruiting Rule provides TSSAA a similar degree of

unconstitutional discretion. In Houston, this Court noted that

as a time, place. and manner restriction because we believe it cannot

withstand constituuional scrutiny even under that more relaxed standard.

9

the ordinance was “admittedly violated scores of times daily,

yet only some individuals—those chosen by the police in

their unguided discretion---|were] arrested.” /d. at 466-467.

Private schools constantly send families application forms,

medical release forms, curricula, notices, and reading lists. If

TSSAA prosecuted every literal violation of the Recruit-

ing Rule, the entire system of enforcement would crumble.

Instead, TSSAA hides behind the vagueness of the rule

to engage—as did the City of Houston—in discretionary

prosecution.

It is precisely this fear of prosecution that chills the efforts

of schools like Bridges to engage in constitutionally protected

speech when they recruit and communicate with incom-

ing students. Suppose the school has gotten word, through

its connections in the community, that a particular boy would

be a good candidate for the Bridges curriculum. Normally,

the school would initiate contact through a staff member,

board member, or community volunteer. This would usually

include a home visit to discuss the opportunities that Bridges

affords its students, the logistics of enrolling the student, and

a question and answer period for the family. After the home

visit, the school might follow-up by mailing an information

packet to the family. If the student chose to enroll, the school

would need to exchange a substantial amount of information

with the family prior to matriculation. This would include

applications, financial aid information. medical release forms,

parental consent forms, details of the curriculum, and sug-

gested summer reading lists.

Under the Recruiting Rule, all of the activities discussed

above are suspect. Yet each activity listed above involves

normal, legal, constitutionally protected speech. How is

Bridges to know whether it is violating the Recruiting Rule or

not? The simple rule prohibits “undue influence.” but the

interpretive guidelines seem to prohibit much more. J.A.

181-187. They state that “any contact” between the school

10

and the potential student is “a violation” of the Recruiting

Rule. Jd. Does this mean that the school cannot send any

information at all to the student? In that case, the Recruiting

Rule would be clear but overbroad, as discussed below. If

all contact is not prohibited, then what type of contact is?

The Recruiting Rule does not say, which means that, as in

Keyishian v. Board of Regents, 385 U.S. 589, 599 (1967), no

one “can know just where the line is drawn.” It is up to

TSSAA to determine whether a school has committed a

violation.

Vague laws offend several important values. First,

because we assume that man is free to steer between

lawful and unlawful conduct, we insist that laws give the

person of ordinary intelligence a reasonable opportunity

to know what is prohibited, so that he may act

accordingly. Vague laws may trap the innocent by not

providing fair warning. Second, if arbitrary and dis-

criminatory enforcement is to be prevented, laws must

provide explicit standards for those who apply them. A

vague law impermissibly delegates basic policy matters

to policemen, judges. and juries for resolution on an ad

hoe and subjective basis, with the attendant dangers of

arbitrary and discriminatory applications.

Gravned v. City of Rockford, 408 U.S. 104, 108-109 (1972).

[hat is exactly what the Recruiting Rule does. It delegates

the basic question of whether undue influence has occurred to

a decisin making body (TSSAA) without giving member

schools fair warning of specifically prohibited conduct. The

schools do not know what conduct is prohibited and are

therefore unable to ensure their compliance with the Recruit-

ing Rule.

B. If the Recruiting Rule is not vague, then it is

overbroad

It the Recruiting Rule is not vague. then it is overbroad. It

seems inconceivable that the Recruiting Rule literally pro-

1]

hibits “any contact” between the school and the prospective

student. Such a rule would completely stifle the recruiting

efforts of Tennessee’s private schools (tellingly, the rule

excludes schools with a definite “feeder pattern,” meaning

nearly all public schools). If that is not what the Recruiting

Rule intends to accomplish, then it is vague. Otherwise, it is

overbroad. There is no saving interpretation.

The normal exchange of information between schools,

students, and families involves speech that is clearly lawful

and constitutionally protected. As we discuss further below,

we do not argue with the state’s claim that it has a compelling

interest in protecting athletes from exploitation. But those

rules must not—as they do here—be so overbroad that they

also prohibit constitutionally protected speech. The Recruit-

ing Rule even prohibits contact with students who have

expressed no desire to participate in athletics at all. Such

students are still, according to TSSAA, potential athletes, and

are therefore subject to the same rules as actual athletes. J.A.

182. Thus, the Rule stands between the private school and its

entire potential student body.

The Recruiting Rule fails the test articulated by this Court

in Ward. “Government may not regulate expression in such a

manner that a substantial portion of the burden on speech

does not serve to advance its goals.” Ward, 491 U.S. at 799.

Unlike the regulation at issue in Ward, the Recruiting Rule

does not sweep in some small portion of protected speech.

This is not a case where the TSSAA has drafted thoughtful,

deliberate rules to address undue influence which also happen

to prohibit some constitutionally protected speech. Rather,

TSSAA has crafted a rule that is so broad that, according to

TSSAA’s own interpretive guidelines, it prohibits a// contact

between the school and potential students. J.A. 181-187.

“A complete ban can be narrowly tailored. but only if cach

activity within the proscription’s scope is an appropriately

targeted evil.” Frisby v. Schultz, 487 U.S. 474, 485 (1988).

12

A literal reading of the Recruiting Rule means that TSSAA

has enacted the equivalent of a complete ban on contact

between potential students and private schools (those without

an established feeder system). For this ban to be consti-

tutional, the distribution of applications, information packets,

financial aid information, and summer reading ‘ists must each

be “an appropriately targeted evil.” The Recruiting Rule fails

to meet that standard because the state has no independent

interest in regulating such activities.

The Recruiting Rule leaves private schools adrift in open

water and hoping that the TSSAA will not single them out for

punishment. In reality, the schools must communicate with

students and their families. Silence is not an option. This is

especially true for a start-up school like Bridges and it is

especially true for schools, like Bridges, that are conducting

outreach to an inner-city population that may not be as

sophisticated in its approach to education alternatives as other

education consumers. So although these schools must

continue to communicate, they do so in a climate of un-

certainty and dread—uncertainty regarding whether TSSAA

will deem any of their activities to be violations of the

Recruiting Rule, and dread that an infraction, once “iden-

tified,” will negatively impact the athletic programs that are

such an integral part of their curricula.

lil. NEITHER BRIDGES NOR BRENTWOOD

OBJECT TO REASONABLE, CLEAR PRO-

HIBITIONS ON RECRUITING MISCONDUCT

We recognize that schools and coaches do sometimes

inappropriately recruit student athletes. To the extent that

students are pressured or deceived into making decisions

that are against their best interests, all schools- public and

private—share a responsibility to help mitigate the problem.

Bridges does not object to a reasonable Recruiting Rule that

specifically targets recruiting misconduct. Jo the extent that

13

schools and coaches are bribing, pressuring, or lying to

potential athletes in order to recruit them, that behavior

should be curbed and there is a legitimate state interest in

doing so.

Perhaps even more than most states, high school athletic

events in Tennessee are highly competitive. Bridges would

not object to TSSAA promulgating a set of clear, specific,

narrowly-tailored guidelines to prevent student athletes from

being exploited by schools and coaches. However, such a set

of rules would apparently not satisfy TSSAA. Rather than a

set of clear, reasonable rules, TSSAA favors the existing

Recruiting Rule. The status quo allows TSSAA to selectively

target schools it wants to punish, then use the Recruiting Rule

to weaken those schools’ athletic programs to the benefit of

the public schools whose members control TSSAA’s govern-

ance. Robert Morris Rogers, a board member of TSSAA, has

admitted that the Recruiting Rule is “really for protection of

schools and coaches” and that its focus is “keeping them from

losing their best players.” J.A. 368-69. We should not be

surprised that TSSAA is unwilling to consider a new set of

rules because, by doing so, they would lose the Recruiting

Rule as a pretextual basis for discriminating against private

schools.

IV. BRIDGES HAS NO ALTERNATIVE BUT TO

BELONG TO TSSAA, A STATE ACTOR

This Court decided the state action question in Brentwood

Academy v. Tennessee Secondary School Athletic Association,

~ $31 U.S. 288 (2001), although TSSAA has asked the Court to

reexamine it. Pet. Br. At 46-50. Both Brentwood and other

amici have briefed the state action question in depth; there-

fore, Bridges will not revisit those same arguments here.

Bridges would note, however, that Brentwood and other

amici are correct when they argue that Tennessee secondary

-

14

schools that wish to participate in athletic competition have

no realistic option except to join TSSAA.

Especially as a start-up school, Bridges has no existing

competitors. Virtually all high school athletics in Tennessee

are regulated by TSSAA, and the natural competitors of

Bridges are other members of TSSAA. Bridges has no real-

istic alternative but to join TSSAA if it wants to offer

athletics as part of its curriculum, and such activities are

especially important to Bridges and the type of students it has

as its mission to recruit. The students and families to whom

Bridges reaches out view athletics as an important part of the

school experience. The boys who will be playing on the

school’s teams will learn important life lessons about sports-

manship and teamwork on the playing field that they cannot

learn elsewhere in the curriculum. To be successful in its

mission, Bridges must offer athletics. And to offer a legiti-

mate athletics program, Bridges has no alternative but to join

TSSAA. -

CONCLUSION

Respectfully, for the reasons stated above as well as those

in Respondent’s brief, the decision of the court of appeals

should be affirmed.

Respectfully submitted,

CHRISTOPHER D. KRATOVIL *

MATTHEW R. MILLER

HUGHES & Luck, LLP

1717 Main St., Suite 2800

Dallas. Texas 75201

* Counsel of Record (214) 939-5500

March 27, 2007 Alttornevs for Amicus

Bridges Academy

Nashville, Tennessee