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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2007
- **Citation:** 551 U.S. 291

## Text

434d

No. 06-427

IN TH

Supreme Court of the Anited States

TENNESSEE SECONDARY SCHOOL ATHLETIC ASSOCIATION,
Petitioner.

fp

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

10

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0298%3A17. Public record. Not legal advice.