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

Bq

No. 06-427

m+ - +8 oo

IN TH

Supreme Court of the United States

TENNESSEE SECONDARY SCHOOL

ATHLETIC ASSOCIATION,

Petitioner,

U,

BRENTWOOD ACADEMY,

Respondent.

On Writ OF CERTIORARI TO THE

Unirep States Court or APPEALS

rOR THE SIXTH CIRCUIT

BRIEF OF AMICUS CURIAE INSTITUTE FOR

JUSTICE IN SUPPORT OF RESPONDENT

Crank M. Netzy Il ANDREW McBripe

INSTITUTE FOR JUSTICE Counsel of Record

GOL N. Glebe Road WituiamM S. Consovoy

Suite 900 THomas R. McCartiy

Arhnegton, VA 22203 Witkey Rein LLP

(703) G82-9320 1776 K Street NW

Washington, D.C. 20006

(202) 719-7000

Attorneys for Amicus Curiae

March 27, 2007

i

TABLE OF CONTENTS

SE kc dteuk bh uwéR dA cae ews des wees

1.

II.

TSSAA’S REGULATION OF FREE SPEECH

IS SUBJECT TO EXACTING SCRUTINY

UNDER THE FIRST AMENDMENT. .....

A. The Court Should Reject Any Attempt to

Further Erode First Amendment

EE béa4 se aeauk end oae een

B. TSSAA’s Recruiting Rule Is a Content-

Based Restriction on Speech. ........

TSSAA’S REGULATION DOES NOT

QUALIFY FORANY SPECIAL EXCEPTION

TO STRICT FIRSF AMENDMENT

eT Tere TTT rer Teer ree

A. TSSAA Exercises the Sovereign

Regulatory Authority of the State of

EE needa eb addoneanceaeaees

C. Brentwood Is Not Participating in a

Government-Funded Program. .......

13

13

16

i8

il

Contents

Ill. TSSAA’S ATTEMPT TO JUSTIFY ITS

SPEECH RESTRICTION FALLS SHORT

UNDER ANY STANDARD. .............

A. TSSAA Gave No Weight to the Impact

of the Recruiting Rule_on Speakers and

DG Sct eleeedue ssn eeeeeennes

B. TSSAA’s Recruiting Rule Undermines

Informed Educational Choice. ........

C. Competitive Equity in High School

Athletics Is Not a Government Interest

Worth Vindicating Under Any Standard.

eeseeoaosceeaeseeesceeeeeeseeeee@ees et eee 8 8

Page

21

21

23

27

30

iii

TABLE OF CITED AUTHORITIES

FEDERAL CASES

44 Liquormart, Inc. v. Rhode Island,

PSF WA PERO bn Se sccsncescctsaewes

Arkansas Writers’ Project, Inc. v. Ragland,

ee Se OE a bebe heeds occecssdase%

Associated Press v. United States,

SUE dae ed adewen weSeansseescs

Bates v. State Bar of Arizona,

oj. Peer errr rT rr Ter pres

Board of Education, Island Trees Union Free

School District No. 26 v. Pico,

Se ee ED ooh 0 nds vedscdvessents

Board of County Commissioners v. Umbehr,

PED 6 6.5-5.5 6 ceenbetkeeeaskens

Boos v. Barry,

ee ee SUED Wiad e vane sandeweseesuecn

Brentwood Academy v. Tennessee Secondary

School Athletic Ass'n,

Page

15, 21

1]

21

15

13 F. Supp. 2d 670 (M.D. Tenn. 1998) ... 2, 8,9, 10, 12

Brentwood Academy v. Tennessee Secondary

School Athletic Ass'n,

304 F. Supp. 2d 981 (M.D. Tenn. 2003) .....

10, 14, 29

iv

Cited Authorities

Brentwood Academy v. Tennessee Secondary

School Athletic Ass'n,

262 F.3d 543 (6th Cir. 2001) ............

Brentwood Academy v. Tennessee Secondary

School Athletic Ass’n,

442 F.3d 410 (6th Cir. 2006) ............

Brentwood Academy v. Tennessee Secondary

School Athletic Ass'n,

Pe SE PED ac cccsvecssvdwese’s

Carey v. Brown,

ey SP ED 6 Ses cesisevessvenne

Central Hudson Gas & Electric Corp. v.

Public Service Commission of New York,

HIUS. SET GPU) «0.2... snc eceteee.

City of Ladue v. Gilleo,

OU OR GOON ng oko cacscdécicsaces

City of Lakewood v. Plain Dealer Public Co.,

486 U.S. 750 (1988) ..........0. cece eee

City of Renton v. Playtime Theatres, Inc.,

Peer rer rrr eres

Connick v. Myers,

461 U.S. 138 (1983) ...........0.eeeeee

Page

10, 11, 12

Cited Authorities

Consolidated Edison Co. v. Public Service

Commission, -

eh tt 8 PPRETTET ee

Cook v. Gralike,

$31 UB. SIO CIOOL) .... occ cccccccccvcces

Craig v. Boren,

SP as VOGUE VED vconcvectevieseseucwns

Edenfield v. Fane,

SF Was Pe COOED 0 6 oon Shade enneueeeet

FCC v. League of Women Voters of California,

GD Ws Fee GUND 0 voce scccencacdecens

First National Bank of Boston v. Bellotti,

OUR WOU]. hovkoooes dene,

Glickman v. Wileman Brothers & Elliott, Inc.,

Pee Ws SOF GOOOTD vac ccecseccasunetanes

Hazelwood School District v. Kuhlmeier,

GG. BOP CUOUED vcs vneveascccweensses

Hill v. Colorado,

SP

Houchins v. KQED, Inc.,

"GR Wes SEU POD oo eerihcctesiceveeueees

Page

12

1]

5, 20

2,6

22

21

vi

Cited Authorities

: Page

Ibanez v. Florida Department of Business &

Professional Regulation, Board of Accountancy,

OED occ ceadneecocecscessees 3,15

Lamont v. Postmaster General,

ED i céencdeeeeecsesctdeuss 23

Legal Services Corp. v. Velazquez,

EE .cccc ese eéyeenees cc laewe 20

Los Angeles Police Department v.

United Reporting Publishing Corp.,

et pee ce enh eseedaeens 18

Martin v. Struthers,

tte tneewandneeeacces 4, 23

McConnell v. Federal Election Commission,

i cies ewes geneucnsecesst l

Members of City Council of City of Los Angeles

v. Taxpayers for Vincent,

re ee ieee eee c eb kb eeoeeees 22

Metromedia, Inc. v. City of San Diego,

ee on ene ehideeeecces 5

Miami Herald Publishing Co. v. Tornillo,

i ee ccc pee ecekbaueesee< 21

Miller v. California,

i ond Ce Ga eC secseeeeees 5

vil

Cited Authorities

NAACP v. Button,

Pee Cs SE EIPEED he cccececesesevenens

O'Hare Truck Service, Inc. v. City of Northlake,

Pe CRUNUED 6.60b6k6cstnwwndeneas

Palko v. Connecticut,

eS OE 6-04 24K RS dense tnne's

Perry Education Ass'n v. Perry Local

Educators’ Ass'n,

460 U.S. 37 (1983) ..........-.2- eee eee.

Pickering v. Board of Education of Township

High School District 205,

Page

“ 17

391 U.S. 563 (1968) .............0.. 3, 6, 16, 17, 18

Pierce v. Society of Sisters,

BD Es SOD EUTEED cecccecccscccosecwes

Pittsburgh Press Co. v. Pittsburgh Commission

on Human Relations,

413 U.S. 376 (1973) .... 2... cece eee cess

Police Department of Chicago v. Mosley,

Ps PEED 8.6.5 00565tn0sesbcindes

Randall v. Sorrell,

__ US. _, 126 S. Ct. 2479 (2006) ........

Red Lion Broadcasting Co. v. FCC,

Pee

4, 24, 30

vill

Cited Authorities

Page

Regan v. Taxation With Representation of Washington,

ee es ED on 600600 6sedvecieceeees 19

Reno v. ACLU,

ey OD 30 cen 6a Foecieccunccubees 11

Riley v. National Federation of the Blind of

North Carolina, Inc.,

ee es Se EE be kceéncéseccnessounscs 16

Rosenberger v. Rector & Visitors of

University of Virginia,

SP ED o ndebvndaucveceuceesess 8

Rust v. Sullivan,

Se SUED ne decnccassesees 3, 6, 18, 19, 20

Simon & Schuster, Inc. v. Members of

New York State Crime Victims Board,

Ss ME 6 cd cunedcoceseeueausens 7,9

Texas v. Lesage,

ee: EE an okosekeednndekennsenss 18

Thomas v. Collins,

es ED 6c Cac ccecesnssesenseass 5

Troxel v. Granville,

TED ov cneeSecnesnnduouyséinee 23

Tucker v. State of California Department

of Education,

97 F.3d 1204 (9th Cir. 1996) ................ 6

ix

Cited Authorities

Page

Turner Broadcasting System v. FCC, .

Ps GED cinccecteueuessensceas 8, 9, 23

United States v. American Library Ass'n,

EEE Scceatadadecveuudses 18, 19, 20

United States v. Kokinda,

Ss GED GS owee cn cucesnssuwuseces 19

United States v. O'Brien,

es I ED a nbudedcusawsceceduanaes 5

United States v. Playboy Entertainment Group,

Se ED ances ednndeesketesedss 3, 10, 12

United States v. United Foods, Inc..,

ED gh k6 dead cnerupenvewecss 6

Virginia State Board of Pharmacy v. Virginia

Citizens Consumer Council, Inc.,

: PEE ko cocavetecenesevess 12, 15, 23

Ward v. Rock Against Racism,

es SEN A iecckdeueacneecdacnses 21

Washington v. Glucksberg,

3 § ee eee 24

Waters v. Churchill,

En vc ceceucueneeessedusnees 16, 18

Whitney v. California,

Se eT ET Kbnesekuceussccancnvens 5

x

Cited Authorities

Page

\

_ Wisconsin Right to Life, Inc. v. Federal Election

Commission,

PCED Sbrcncndcesscecdeédinnes l

Zelman v. Simmons-Harris,

ED ao baneeeadecnsaescaneusen 1, 26

STATE CASES

Anderson v. Town of Durham,

895 A.2d 944 (Me. 2006), cert. denied US._,

ED 6 66-06 65.0 0000050 nbs 608s l

FEDERAL STATUTES

ED vcwebueeddhvecs sessaneseees 18

RECORD MATERIALS

Petition for Writ of Certiorari (Sept. 25, 2006) .... 28

Brief for Petitioner (Feb. 20, 2007) ...... 2, 7, 18, 28, 29

Brief for the United States as Amicus Curiae

Supporting Petitioner (Feb. 20, 2007) ......... 7

Brief of Amicus Curiae of National Federation of State

High School Associations in Support of Petitioner

eS ee eee 14, 28

xi

Cited Authorities

MISCELLANEOUS

Brief of Caucus for Structural Equity as Amicus

Curiae in Support of Respondents, Parents

Involved in Community Schools vy. Seattle School

District No.1, _U.S.__ , 126 §. Ct. 2351 (2006)

(No. 05-908), 2006 WL 2882691 .............

Brief of the NAACP Legal Defense & Educational

Fund, Inc. as Amicus Curiae in Support of

Respondents, Parents Involved in Community

Schools v. Seattle School District No. 1, _ U.S.

__, 1268. Ct. 2351 (2006) (No. 05-908), 2006 WL

PE Ween ne sqdtasdweeeescenseedicenes

Caroline M. Hoxby, School Choice and School

Competition: Evidence from the United States, 10.2

Swedish Econ. Pol’y Rev. 11 (2004) ..........

Casey McNerthney, Proposed New Rules for Sports

Events Mean That Soon Fans Might Not Be Able

to Say. . . Boo!, Seattle Post-Intelligencer, Mar. 3,

DY sepscct benndeb esd nnseceenewsnseuess

Clive R. Belfield & Henry M. Levin, National Center

for the Study of Privatization in Education,

Teachers College, Columbia University, The Effects

of Competition on Educational Outcomes: A

Review of U.S. Evidence (March 2002) ........

Henry J. Kaiser Family Foundation, Children, The

Digital Divide, And Federal Policy (2004) .....

Page

26

25

27

29

27

26

xii

Cited Authorities

Jay D. Wexler, Defending the Middle Way:

Intermediate Scrutiny as Judicial Minimalism, 66

Geo. Wash. L. Rev. 298 (1998) ..............

Jay P. Greene, Manhattan Institute for Policy

Research, Graduation Rates for Choice and Public

School Students in Milwaukee (2004) .........

Jay P. Greene, Education Myths (2005) ..........

Matthew DeBell & Chris Chapman, United States

Department of Education, Institute of Education

Sciences, Computer and Internet Use by Students

RRR er ae

Paul E. Peterson & Elena Llaudet, Harvard University

Kennedy Schvol of Government, On the Public-

Private School Achievement Debate (Aug. 2006)

Susannah Fox & Gretchen Livingston, Pew Research

Center, Latinos Online: Hispanics With Lower

Levels of Education and English Proficiency

Remain Largely Disconnected From the Internet

SED auubied Kascuneuenak cebeecknciackcs

Tenn. Bd. of Educ. Rule 0520-1-2-.08(1) .........

Tom Loveless, Brookings Institution, The 200] Brown

Center Report on American Education: How Well

Are Students Learning? (2001) ..............

Page

26

24

26

14

27

xili

Cited Authorities

United States Census Bureau, Statistical Abstract of

the United States, Table 1112-Multimedia

Audiences-Summary: 2005 (2007) ............

United States Census Bureau, Table 1138-Adult

Computer and Adult Internet Users by Selected

Characteristics: 1995 to 2005 (2007) .........

United States Department of Education, Institute of

Education Sciences, The Nation's Report Card:

Student Achievement in Private Schools (2005) ...

United States Department of Education, Institute of

Education Sciences, Trends in the Use of School

Choice 1993 to 2003 (2006) .................

William G. Howell & Paul E. Peterson, The Education

Gap: Vouchers and Urban Schools (rev. ed. 2006)

Page

26

26

25

25

l

INTEREST OF AMICUS CURIAE

Pursuant to Rule 37.3 of this Court, the Institute for Justice

(the “Institute”’) respectfully submits this amicus curiae brief in

support of Respondent Brentwood Academy.' The Institute is a

nonprofit public interest legal center dedicated to defending the

essential foundations of a free society: private property nghts,

economic and educational liberty, and the free exchange of ideas.

The Institute litigates First Amendment cases throughout

the country and files amicus curiae briefs in cases on behalf of

individuals whose right to speak and associate has been infringed

by the actions of the government, including Randail v. Sorrell,

__ US. _, 1268S. Ct. 2479 (2006), Wisconsin Right to Life,

Inc. v. Federal Election Commission, 546 U.S. 410 (2006), and

McConnell v. Federal Election Commission, 540 U.S. 93 (2003).

The Institute also represents beneficiaries of school choice

programs and represented a group of Petitioners in Ze/man v.

Simmons-Harris, 536 U.S. 639 (2002) (upholding Cleveland

school voucher program) and the Petitioners in Anderson v. Town

of Durham, 895 A.2d 944 (Me. 2006), cert. denied, US._,

127 S. Ct. 661 (2006). The Institute believes that its legal

perspective and experience will provide additional

considerations regarding this issue that are not contained in the

briefs of the parties.

INTRODUCTION

The Tennessee Secondary School Athletic Association

(“TSSAA”) enacted a rule that banned schools from exerting

“undue influence . . . to secure or to retain a student for athletic

purposes.” (“Recruiting Rule”), Joint Appendix (“JA”) 181 (Feb.

20, 2007). TSSAA formally interpreted the Recruiting Rule to

forbid “any initial contact or prearranged contact by a member

1. Pursuant to Rule 37.1 of the Rules of the Supreme Court of the

United States. Amicus states that no counse! for any party to this case

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

than Amicus made any monetary contribution to the preparation or

submission of this bricf. Amicus has sought and reccived consent from

counsel to both parties to submit this brief.

2

of a coaching staff or representative of the school and a

prospective student/athlete.” JA 182. The Brentwood Academy

(“Brentwood”) football coach contacted all eighth grade boys

who had chosen to enroll in Brentwood for the following school

year, inviting them to observe a spring football practice. JA 119,

219-20. TSSAA ultimately decreed that Brentwood had violated

the Recruiting Rule and imposed a substantial sanction. JA 243.

This Court’s First Amendment jurisprudence has proceeded,

for some time, down a troubling path of sorting speech into

narrow subcategories. See, e.g., Perry Educ. Ass'n v. Perry Local

Educators’ Ass'n, 460 U.S. 37 (1983); Hazelwood Sch. Dist. v.

Kuhimeier, 484 U.S. 260 (1988). In addition to producing

unnecessary doctrinal complexities, this approach has inevitably

- led to/ess protection for core speech. Seeking to further expand

this compartmentalized approach, Petitioner alternatively asks

this Court to relegate Brentwood’s speech to the standard of

review applicable to government employees, participants in

government-funded programs, or recipients of government

benefits—essentially any standard that enables TSSAA to obtain

deference. Brief for Petitioner 20-21, 23, 27, 32 (Feb. 20, 2007)

(“Pet’r Br.”’).

The district court and court of appeals, for different reasons,

properly found that the Recruiting Rule infringed Brentwood’s

First Amendment right to free speech. Brentwood Acad. v. Tenn.

Secondary Sch. Athletic Ass'n, 13 F. Supp. 2d 670 (M.D. Tenn.

1998), aff'd on other grounds, 442 F.3d 410 (6th Cir. 2006).

That is, although the two courts differed as to whether the

Recruiting Rule was content-neutral or content-based—and

therefore as to the applicable level of scrutiny—there was

unanimity on the central question before this Court: whether

TSSAA can avoid the rigors of First Amendment scrutiny

altogether. Amicus strongly believes that this Court should

firmly reject TSSAA’s attempt to displace traditional First

Amendment review by analogizing to existing exceptions or,

3

as the United States suggests, by creating a new “voluntary

association” exception.

That Petitioner is leery of traditional First Amendment

scrutiny is not surprising. The Recruiting Rule is a naked

content-based restriction on speech. See United States v. Playboy

Entmt Group, 529 U.S. 803 (2000). The Recruiting Rule is

completely indifferent to the time, place, or manner of

communication between secondary schools and prospective

students (and their parents). TSSAA has enacted a rule that

targets certain speech—i.e., speech-associated with athletics—

for disfavored treatment. There simply is nothing “neutral” about

the Recruiting Rule.

Petitioner’s retreat to the more deferential standards of

review noted above misses the mark. The test articulated in

Pickering v. Board of Education of Township High School

District 205, 391 U.S. 563 (1968), applies only to the

government’s ability to regulate the speech of its employees,

while the standard articulated in Rust v. Sullivan, 500 U.S. 173

(1991), applies to those who participate in government-funded

spending programs. Each of these deferential standards was

crafted to fit unique circumstances entirely dissimilar to the

present case. As this Court already has determined, TSSAA

exercises the governmental authority of the State of Tennessee

in Overseeing state-sanctioned interscholastic athletics.

Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531

U.S. 288, 291 (2001). Private citizens do not lose their First

Amendment rights by acknowledging the authority of a State

licensing or regulatory board such as TSSAA. See /banez v.

Fla. Dept of Bus. & Prof ’'l Regulation, Bd. of Accountancy,

512 U.S. 136, 143 (1994).

Last, TSSAA’s desire to cast the Recruiting Rule as the

only means available for vindicating the legitimate interest in

preventing schools from exercising “undue influence” over

potential students lacks any basis in fact or law. In championing

this dubious proposition, TSSAA fails to account for the impact

the Recruiting Rule will have on speakers and listeners. The

4

rule not only blocks the free flow of information, an important

First Amendment value, but also violates Brentwood’s ability

to reach its intended audience and the recipient’s interest in

receiving this truthful message. See Martin v. Struthers, 319

U.S. 141 (1943). It thus shuts down an important—and in some

cases the only—avenue of communication between schools and

prospective students and their parents.

In so doing, the Recruiting Rule undermines informed

educational choice. See Pierce v. Soc ’y of Sisters, 268 U.S. 510

(1925). Preventing informed educational choice, unfortunately,

may well be Recruiting Rule’s animating principle. As TSSAA’s

reliance on “competitive equity” reveals, the Recruiting Ruie

appears to reflect an interest in subordinating the State’s

educational mission to the interest of the public school

establishment in greater athletic panity—i.e., ensuring that public

schoo] athletic teams fare better on the playing field by retaining

better athletes —whether it is 1n the students’ long-term interest

or not. Competitive equity thus not only forces students to stay

in schools that have failed them, but also runs counter to the

educational mission of the State. The judgment of the Sixth

Circuit should be affirmed.

ARGUMENT

I. TSSAA’S REGULATION OF FREE SPEECH IS

SUBJECT TO EXACTING SCRUTINY UNDER THE

FIRST AMENDMENT.

A. The Court Should Reject Any Attempt to Further

Erode First Amendment Scrutiny.

Petitioner asks this Court to pigeonhole Brentwood’s

truthful speech into one deferential First Amendment standard

or another. To that end, Petitioner and supporting amici offer

the Court a menu of options—other than exacting review—to

shield the Recruiting Rule from any serious examination. This

Court should reject Petitioner’s invitation to invent new

subcategories of speech and relegate them to less than full First

Amendment protection. NAACP v. Button, 371 U.S. 415, 429

(1963) (“[A] State cannot foreclose the exercise of constitutional

5

rights by mere labels.”); Metromedia, Inc. v. City of San Diego,

453 U.S. 490, 519 (1981) (“[D]emocracy stands on a stronger

footing when courts protect First Amendment interests against

legislative intrusion, rather than deferring to merely rational

. legisiative judgments in this area.”). :

Freedom of speech is “the matrix, the indispensable

condition, of nearly every other form of freedom.” Palko v.

Connecticut, 302 U.S. 319, 327 (1937); see also Thomas v.

Collins, 323 U.S. 516, 530 (1945) (“[Pjreferred place [is] given

in our scheme to the great, the indispensable democratic

freedoms secured by the First Amendment.”). The Framers,

“Tb lelieving in the power of reason as applied through public

discussion, . .. eschewed silence coerced by law—the argument

of force in its worst form.” Whitney v. California, 274 U.S.

357, 375-76 (1927) (Brandeis, J., concurring). Indeed, “[t]here

is little need to reiterate that the freedoms of speech and of the

press rank among our most cherished liberties . ... The durability

of our system of self-government hinges upon the preservation

of these freedoms.” Pittsburgh Press Co. v. Pittsburgh Comm'n

on Human Relations, 413 U.S. 376, 381-82 (1973). In many

ways, the entire enterprise of judicial characterization and

ranking of various types of speech is inconsistent with the

marketplace-of-ideas theory behind the First Amendment. Value

should be assigned by the collective body of listeners, not by

any branch of state ur federal government. First Nat'l Bank of

Boston v. Bellotti, 435 U.S. 765, 791-92 (1978) (“[T]he people

in our democracy are entrusted with the responsibility for

judging and evaluating the relative merits of conflicting

arguments.”).

Over time, however, this Court’s jurisprudence has moved

toward this compartmentalized approach to government

restrictions on free speech. See, e.g., United States v. O'Brien,

391 U.S. 367 (1968) (content-neutral regulations); Miller v.

California, 413 U.S. 15 (1973) (lower-value speech); Cent.

Hudson Gas. & Elec. Corp. v. Pub. Serv. Comm'n of N.¥., 447

U.S.557 (1980) (commercial speech); FCC v. League of Women

6

Voters of California, 468 U.S. 364 (1984) (unconstitutional

conditions); Rust v. Sullivan, 500 U.S. 173 (1991) (government

speech); Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205,

391 U.S. 563 (1968) (public employment); Hazelwood Sch. Dist.

v. Kuhlmeier, 484 U.S. 260 (1988) (government as educator);

Perry Educ. Ass'n v. Perry Local Educators’ Ass'n, 460 U.S.

37 (1983) (government as proprietor); Red Lion Broad. Co. v.

FCC, 395 U.S. 367 (1969) (public airwaves); United States v.

United Foods, Inc., 533 U.S. 405 (2001) (compelled speech).

Categorizing speech into hierarchical categories inevitably

increases the danger that speech as a whole will not receive the

robust protection the First Amendment was adopted to

guarantee. Tucker v. Cal. Dept of Educ., 97 F.3d 1204, 1209

(9th Cir. 1996) (“Although we must look to the most appropriate

precedent and doctrine, we are also aware of the dangers of

reducing the First Amendment to a series of doctrinal cubbyholes

and of warping different fact situations to fit into the boxes we

have created.”); Glickman v. Wileman Bros. & Elliott, Inc., 521

U.S. 457, 504 (1997) (Thomas, J., dissenting) (“I continue to

disagree with the use of the Central Hudson balancing test and

the discounted weight given to commercial speech generally.”’).

Indeed, classifying speech into these narrow categories generally

has led to /ess protection for private speech. Jay D. Wexler,

Defending the Middle Way: Intermediate Scrutiny as Judicial

Minimalism, 66 Geo. Wasn. L. Rev. 298, 322 (1998)

(“Intermediate scrutiny is .ot a deeply principled, highly

theorized response to problems of constitutional law. It is instead

a compromise position that lies between two more-or-less

theorized and principled poles.”); cf’ Craig v. Boren, 429 U.S.

190, 221 (1976) (Rehnquist, J., dissenting) (“[T]he phrases used

are so diaphanous and elastic as to invite subjective judicial

preferences or prejudices relating to particular types of

legislation, masquerading as judgments whether such legislation

is directed at ‘important’ objectives or, whether the relationship

to those objectives is ‘substantial’ enough.”).

5

Petitioner and amici seck to exploit the uncertainties

inherent in this compartmentalized approach by advancing a

scattershot of theories why Brentwood is not entitled to the full

protection of the First Amendment. Pet’r Br. 20-21, 23, 27, 32

(arguing alternatively for the applicability of unconstitutional

conditions, public employment, educational, and government-

funded speech standards of First Amendment review). Worse

still, Petitioner and its amici do not even settle on a particular

category of lesser-protected speech, thus underscoring the

doctrinal confusion engendered by the very hierarchy-of-speech

framework they advocate. This unwillingness to settle on any

existing First Amendment paradigm reflects a greater interest

in obtaining a deferential standard of review than in a sincere

examination of the true nature of TSSAA’s ban on speech. Brief

for the United States as Amicus Curiae Supporting Petitioner

10 (Feb. 20, 2007) (“No precedent of this Court directly

addresses the degree of scrutiny to which restrictions on speech

should be subjected in this precise context. Established First

Amendment principles point to the conclusion, however, that

the restrictions should be reviewed deferentially.”).

The Court should reject Petitioner’s invitation to expand

or contort existing categories of lesser-protected speech to fit

the needs of the Recruiting Rule. The right to speak freely should

not be dependent on the ability to navigate around an ever-

expanding list of exceptions to the general protections of the

First Amendment. See Simon & Schuster, Inc. v. Members of

N.Y. State Crime Victims Bd., 502 U.S. 105, 128 (1991)

(Kennedy, J., concurring) (“The case before us presents the

opportunity to adhere to a surer test for content-based cases and

to avoid using an unnecessary formulation, one with the capacity

io weaken central protections of the First Amendment.”).

Truthful speech about athletic and educational opportunities at

private schools is in the heartland of what the First Amendment

was designed to protect. If the State can muzzle a private

academy to “protect” state-run schools from the persuasive

8

power of that speech, then the State can completely shut down

the marketplavc of ideas in the entire area of educational choice.

B. TSSAA’s Recruiting Rule Is a Content-Based

Restriction on Speech.

TSSAA’s Recruiting Rule is a content-based speech

restriction subject to the most e~»cting First Amendment

scrutiny. The Recruiting Rule prow-ies that “[t}he use of undue

influence on a student . . . , his or her 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 shall

be a violation of the recruiting rule.” Brentwood Acad. v. Tenn.

Secondary Sch. Athletic Ass'n, 13 F. Supp. 2d 670, 673 (M.D.

Tenn. 1998). TSSAA has interpreted this rule as prohibiting

school-initiated contact of any kind on the subject of athletics

and as only allowing discussions with prospective students on

the subject of athletics “at the request of the family.” /d. at 674.

This rule self-evidently favors certain speech, at the expense of

other speech, because of its content. /d. at 688 (“The Court finds

that the Recruiting Rule ban is content-based because the

interests asserted by the Defendants to support the ban focus on

the content of the message and the effect of the message on the

listener.”).

The Constitution abhors content-based restrictions on

speech. Police Dep t of Chi. v. Mosley, 408 U.S. 92, 95 (1972)

(“[A]bove all else, the First Amendment means that the

government has no power to restrict expression because of its

message, its ideas, its subject matter, or its content.”);

Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819,

828 (1995) (reiterating that “government may not regulate

speech based on its substantive content or the message it

conveys”); Turner Broad. Sys. v. FCC, 512 U.S. 622, 642 (1994)

(explaining that the law applies “the most exacting scrutiny to

regulations that suppress, disadvantage, or impose differential

burdens upon speech because of its content”).

Content-based restrictions on speech are disfavored for a

reason. “Our political system and cultural life rest upon” the

9

idea that individual citizens can judge for themselves what “ideas

and beliefs [are] deserving of expression, consideration, and

adherence.” Turner Broad. , 512 U.S. at 641. Government cannot

be allowed to manipulate the range of information available to

the public. See Simon & Schuster, 502 U.S. at 116 (explaining

that content-based restrictions “raise the specter that the

government may effectively drive certain ideas or viewpoints

from the marketplace”); Turner Broad., 512 U.S. at 641 (content-

based restrictions “pose the inherent nsk that the Government

seeks not to advance a legitimate regulatory goal, but to suppress

unpopular ideas or information or manipulate the public debate

through coercion rather than persuasion”).

Here, the content-based nature of the Recruiting Rule is

readily apparent. TSSAA, a government actor, has determined

that it is wise to drive certain ideas—specifically ideas designed

to inform students about educational and athletic opportunities—

from the marketplace. TSSAA admits as much: in the district

court, TSSAA stated that its aim was to prevent schools from

treating student-athletes and non-student-athletes differently and

to deter them from unduly influencing student-athletes.

Brentwood, 13 F. Supp. 2d at 688. Such restrictions are based

only on the words and message being conveyed, not the time,

place, manner, or any other incidental characteristic of their

utterance. By its plain terms, the Recruiting Rule applies only

to speech designed to “secure or to retain a student for athletic

purposes.” JA 181; see Brentwood, 13 F. Supp. 2d at 688 (“[T he

ban was purportedly enacted to prevent student-athletes from

being subjected to the content of the message being conveyed

by public and private school representatives outside the student’s

feeder pattern. TSSAA’s purpose in enacting the ban, then,

indicates that the ban is not content-neutral.”).

Examining a situation in which TSSAA would not have

enforced the Recruiting Rule confirms the content-based nature

of this restriction. If the Brentwood football coach, for example,

had sent a letter or had telephoned all male students that had

signed enrollment contracts, identified himself, and simply

10

stated, “We look forward to having you as a student at

Brentwood next year,” TSSAA would not have taken any

disciplinary action. As Ronnie Carter, Executive Director of

TSSAA, testified, TSSAA doesn’t “have a no coach contact

rule.” JA 428. Yet the time, place and manner of the above

hypothetical communication are identical to those at issue here—

all that differs is the content of the communication.

The district court therefore correctly found that “the

substantive ‘content’ of the Spring Practice Letter and calls

mattered and was a significant factor in the TSSAA’s decision

that the letter and calls constituted ‘undue influence’ and violated

the Recruiting Rule.” Brentwood Acad. v. Tenn. Secondary Sch.

Athletic Ass'n, 304 F. Supp. 2d 981, 991 n.4 (M.D. Tenn. 2003).

This is the essence of a content-based regulation of speech.

United States v. Playboy Entm t Group, 529 U.S. 803, 811 (2000)

(explaining that where “[t]he speech in question is defined by

its content . . . the statute which seeks to restrict it is content

based”); Carey v. Brown, 447 U.S. 455 (1980) (striking down

restriction where “permissibility of residential picketing . . .

depende[d] solely on the nature of the message being

conveyed”).

While it ultimately rendered the correct judgment, the Sixth

Circuit, likening the Recruiting Rule to a zoning regulation,

mistakenly classified it as a content-neutral restriction of speech

because, in the court’s view, “prohibiting coaches from initiating

contact with students or their parents prior to enrollment in the

school is a limitation on the manner in which secondary schools

can communicate with students about their athletic programs.”

Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 262

F.3d 543, 552 (6th Cir. 2001). The Sixth Circuit erred for at

least three reasons.

First, the Recruiting Rule does not simply limit the

“manner” in which Brentwood could contact prospective

students. Rather, it forbids the school from initiating

communication with a prospective student with respect to an

entire topic—viz., athletics. Brentwood, |3 F. Supp. 2d at 673.

11

The rule, for example, does not limit the hours in which a school

may make phone calls or limit initial contact to written

communication or require that such contact occur after school

hours, all of which would be ways in which a Recruiting Rule

could target the time, place or manner in which a message is

being communicated rather than the message itself. Instead, all

discussion initiated by the school on the subject of athletics is

prohibited, no matter when, where, or how conveyed. Cf, Cook

v. Gralike, 531 U.S. 510, 523 (2001) (“Article VIII is not a

procedural regulation. It does not regulate the time of elections;

it does not regulate the place of elections; nor, we believe, does

it regulate the manner of elections.”).

Hence, even if the Recruiting Rule is viewpoint-neutral, it

certainly targets speech based on its content. As this Court has

explained, “a regulation that does not favor either side of a

political controversy is nonetheless impermissible because the

First Amendment's hostility to content-based regulation extends

. . . to prohibition of public discussion of an entire topic.”

Boos v. Barry, 485 U.S. 312, 319 (1988) (quotation and citation

omitted) (omission in original); see also Ark. Writers’ Project,

Inc. v. Ragland, 481 U.S. 221, 230 (1987) (“Arkansas’ system

of selective taxation does not evade the strictures of the First

Amendment merely because it does not burden the expression

of particular views by specific magazines.”); City of Renton v.

Playtime Theatres, Inc., 475 U.S. 41, 48 (1986) (defining

“*content-neutral’ speech regulations as those that are justified

without reference to the content of the regulated speech”

(internal citations and quotations omitted)). “[A] content-based

blanket restriction on speech . . . cannot be properly analyzed

as a form of time, place, and manner regulation.” Reno v. ACLU,

521 U.S. 844, 868 (1997) (citations and quotations omitted).

Second, the Sixth Circuit erroneously supported tts

conclusion of content-neutrality by finding that Brentwood

retained other means of communicating the availability of

educational options to students. Brentwood, 262 F.3d at 552

(finding that “prohibiting coaches from initiating contact with

12

students or their parents prior to enrollment in the school .. .

does not mean . . . that Brentwood has no other outlet for

providing such information to prospective students, or that

middle school students have no way of finding out this

information”). This approach is entirely backwards; the

availability of alternative avenues is relevant only after a court

has already determined that the regulation is content-neutral—

not before. See Consol. Edison Co. v. Pub. Serv. Comm'n, 447

U.S. 530, 541 n.10 (1980) (explaining that the Court has

“consistently rejected the suggestion that a government may

justify a content-based prohibition by showing that speakers

have alternative means of expression”); Va. State Bd. of

Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S.

748, 757 n.15 (1976) (“We are aware of no general principle

that freedom of speech may be abridged when the speaker’s

listeners could come by his message by some other means, such

as seeking him out and asking him what it is.”).’

Third, the lower court’s theory that the Recruiting Rule is

subject to intermediate scrutiny because it primarily regulates

conduct and the secondary effects of speech must fail.

Brentwood, 262 F.3d at 553. The Recruiting Rule focuses on

the effects of the protected speech on the listener—not the

community writ large. Brentwood, 13 F. Supp. 2d at 688. The

right to regulate the secondary effects of speech cannot be based

on the impact of the proscribed category of speech on the

audience, Boos, 485 U.S. at 321 (“Listeners’ reactions to speech

are not the type of ‘secondary effects’ we referred to in Renton.”’),

or other primary effects of the targeted speech, Playboy, 529

U.S. at 815 (“We have made clear that the lesser scrutiny

afforded regulations targeting the secondary effects of crime or

2. The Sixth Circuit’s conclusion that the Recruiting Rule does

not effect a total ban also is immaterial. See Playboy Entm t Group, 529

U.S. at 812 (“It is of no moment that the statute does not impose a

complete prohibition. The distinction between laws burdening and laws

banning speech is but a matter of degree. The Government's content-

based burdens must satisfy the same rigorous scrutiny as its content-

based bans.”).

13

declining property values has no application to content-based

regulations targeting the primary effects of protected speech.”’).

Because the Recruiting Rule “focuses only on the content of

the speech and the direct impact that speech has on its listeners,”

it “is the essence of content-based regulation.” /d. at 811-12

(internal quotation and citation omitted). The Recruiting Rule

should be analyzed under the most demanding scrutiny available

under the First Amendment.

II. TSSAA’S REGULATION DOES NOT QUALIFY FOR

ANY SPECIAL EXCEPTION TO STRICT FIRST

AMENDMENT SCRUTINY.

A. TSSAA Exercises the Sovereign Regulatory

Authority of the State of Tennessee.

TSSAA, like any other official regulatory or licensing board,

oversees interscholastic athletics in Tennessee pursuant to the

sovercign authority of the State. This conclusion is the necessary

result of the Court’s determination that TSSAA is a state actor.

Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531

U.S. 288, 291 (2001). In that decision, this Court explained

that TSSAA is a “statewide association incorporated to regulate

interscholastic athletic competition among public and private

secondary schools,” id. at 290, and is engaged in “regulatory

activity,” id. at 291. This Court could not have been more clear:

TSSAA “has historically been seen to regulate in lieu of the

State Board of Education’s exercise of its own authority.” Jd.

The factual record also evidences TSSAA’s regulatory

status. TSSAA’s constitution recognizes its plenary authority

over all athletic competition in Tennessee, stating that its

organizational purpose is “to stimulate and regulate the athletic

relations of the secondary schools of Tennessee.” JA 134. Indeed,

Petitioner and supporting amici repeatedly reference the

indispensable role interscholastic athletics play in a well-rounded

secondary education. See Pet’r Br. 3 (stating that TSSAA is

organized to “promote the educational ideals of interscholastic

athletics”); JA 134 (“The athletic field and the gymnasium are

classrooms in which teaching is foremost in the development

14

of character, integrity, sportsmanship, and teamwork. Although

the athletic program is associated primarily with physical

education and the scholastic program with mental education,

one complements the other.”). This Court has taken TSSAA at

its word. See Brentwood, 531 U.S. at 300 (explaining that athletics

“provide an integral element of secondary public schooling”).’

TSSAA thus is not, as Petitioner suggests, “a voluntary

membership organization through which members self-regulate

their sports competition and establish common rules to promote

the educational ideals of interscholastic athletics.” Pet’r Br. 3.

That battle has already been lost. Brentwood, 531 U.S. at 291

(“We hold that the association’s regulatory activity may and

should be treated as state action owing to the pervasive

entwinement of state school officials in the structure of the

association, there being no offsetting reason to see the

association’s acts in any other way.”). TSSAA, as the governing

body for Tennessee athletic competition, licenses and regulates

all schools that wish to participate in state-sanctioned

interscholastic athletics. See, e.g., JA 201 (“The sports season.

for a school shall end when the team has been eliminated from

the TSSAA tournament series or has won the state

championship.”).

Indeed, TSSAA’s monopoly over the governance of state-

sanctioned interscholastic athletic competition in Tennessee

confirms the pervasiveness of its oversight authority.

See Brentwood 304 F. Supp. 2d at 997 (“TSSAA 1s effectively

the only game in town.”). Because “[a] member school’s team

may play or scrimmage only against the team of another member,

absent a dispensation” and “without any other authonty actually

regulating interscholastic athletics,” Brentwood, 531 U.S. at 291,

3. See also Brief of Amicus Curiae of National Federation of State

High School Associations in Support of Petitioner 3 (Feb. 20, 2007)

(“NFHS views cocurricular activities, including athletics, as an integral

part of the high school experience.”); id. at 4 (“{A]thletics are an

extension of the classroom.”); TENN. Bp. or Eouc. Rute 0520-1 -2-.08(1)

(recognizing “the value of participation in interscholastic athletics”).

15

schools are essentially forced to join TSSAA to offer their

students the opportunity to participate in interscholastic athletics,

id. at 299 (explaining that “a pickup system of interscholastic

games would not do”). Joining TSSAA is the only means for

Brentwood and other secondary schools to offer their students

the unique educational experience that comes from participation

in interscholastic athletic competition.

Private citizens do not waive their First Amendment rights

by voluntarily engaging in an activity that ts licensed or regulated

by the State. See Jbanez v. Fla. Dep t of Bus. & Prof '‘l Regulation,

Bd. of Accountancy, 512 U.S. 136, 143 (1994); Bates v. State

Bar of Ariz., 433 U.S. 350 (1977) (employing traditional First

Amendment analysis to attorney disciplinary rules that arise

only by virtue of their licensure); 44 Liguormart, Inc. v. Rhode

Island, 517 U.S. 484, 504-505 (1996) (applying commercial

speech doctrine to liquor licensing statute); Va. State Bd. of

Pharmacy, 425 U.S. at 749-50, 762-70 (determining that

commercial speech doctrine applies to advertising rule

applicable to licensed pharmacists as a condition of their

licensure); Edenfield v. Fane, 507 U.S. 761, 767 (1993)

(applying commercial speech doctrine to ban on certain speech

applicable only to licensed CPAs). Indeed, if it were otherwise,

the State could vitiate First Amendment protection in any area

by adopting an exclusive licensure or membership requirement

and then claim a surrender of First Amendment rights due to

“voluntary” participation. See, e.g., City of Lakewood v. Plain

Dealer Pub. Co., 486 U.S. 750, 763-64 (1988).

In /banez, for example, an accountant and attorney who

voluntarily submitted herself to the regulatory jurisdiction of

the relevant state agency was nonetheless entitled to the full

protection of the First Amendment. 512 U.S. at 139 & n.3. The

Court, employing the traditional First Amendment analysis, held

“that the Board’s decision censuring Ibanez 1s incompatible with

First Amendment restraints on official action.” /d. at 139. The-

import of /banez and other similar cases is unmistakable:

“voluntary association’ with the regulatory authority of the State

16

is not by itself sufficient to remove the case from traditional

First Amendment scrutiny. See, e.g., Riley v. Nat'l Fed’n of the

Blind of N.C., Inc., 487 U.S. 781, 801 (1988). Those involved

in private enterprise always have the choice not to engage in a

particular profession or activity for which a license is needed.

But this Court has always employed its traditional First

Amendment analysis where the maintenance of the license is in

some way conditioned on the sacrifice of First Amendment

rights. See, e.g., City of Lakewood, 486 U.S. at 763-64. This

case is no different; TSSAA in effect grants its member schools

a license to participate in statewide interscholastic athletics and

cannot avoid the strictures of the First Amendment under a newly

minted “voluntary association” standard.

B. This Is Not a Public Employment Case.

- Petitioner counters that this case is subject to the test set

forth in Pickering, 391 U.S. 563. Pet’r Br. 27-32. TSSAA

misapprehends this entire line of cases. Pickering, and its

progeny, Connick v. Myers, 461 U.S. 138 (1983), and Board of

County Commissioners v. Umbehr, 518 U.S. 668 (1996), apply

only to government employment relationships.

In Pickering, this Court addressed the extent to which public

employees retain their First Amendment rights. In resolving this

question, the Court crafted a balance between the rights of the

employee, “as a citizen, in commenting upon matters of public

concern and the interest of the State, as an employer, in

promoting the efficiency of the public services it performs

through its employees.” Pickering, 391 U.S. at 568 (emphasis

added). The Court made clear that this balancing approach was

legitimate only because the interests of the State as an employer

are differerit in kind from its interests in any other context: “[T]he

State has interests as an employer in regulating the speech of its

employees that differ significantly from those it possesses in

connection with regulation of the speech of the citizenry in

general.” Id. (emphasis added); Waters v. Churchill, 511 U.S.

661, 674 (1994) (explaining that “constitutional review of

government employment decisions . . . rest on different principles

17

than review of speech restraints imposed by the government as

sovereign” (emphases added)).

Connick and Umbehr confirm this understanding. In

Connick, the Court explained that the Pickering balancing test

“reflects both the historical evolvement of the rights of public

employees, and the common sense realization that government

offices could not function if every employment decision became

a constitutional matter.” Connick, 461 U.S. at 143. Accordingly,

“when a public employee speaks not as a citizen upon matters

of public concern, but speaks instead as an employee upon

matters only of personal interest,” the First Amendment is not

grounds for review of the employment decision. /d. at 147.

Umbehr merely extended the Pickering balancing test to

independent contractors because of the similarity of functions

they and full-time employees perform for the government.

Umbehr, 518 U.S. at 678 (“We . . . see no reason to believe that

proper application of the Pickering balancing test cannot

accommodate the differences between employees and

independent contractors.”’).

Instead of respecting the natural limits of Pickering,

Petitioner contorts the Court’s reference in Umbehr to the

government’s “contractual power,” in forming the employment

relationship at issue, to expand the Pickering balancing test to

entirely dissimilar circumstances. That is, Petitioner’s contention

that the Court’s use of the phrase “contractual power” extends

Pickering’s balancing test far beyond the employment context,

Pet’r Br. 27-28, cannot be correct. Were the Court to expand

Pickering in such a dramatic way, it would doubtless have made

its intention to do so—and thus its intention to trench further

on protected speech—far more clear. Instead of the expansive

meaning Petitioner proposes, the Court was simply explaining

its minor extension of Pickering to the independent contractor

context. For this reason, this Court has never applied Pickering

or Umbehr outside the employment context. See, e.g., O'Hare

Truck Serv., Inc. v. City of Northlake, 518 U.S. 712, 713 (1996);

18

L.A. Police Dept v. United Reporting Publ’g Corp., 528 U.S.

32, 43 (1999); Texas v. Lesage, 528 U.S. 18, 21 (1999).

And Pickering certainly does not apply in the circumstances

presented here. See Waters, 511 U.S. at 674-75 (“[T]he extra

power the government has in this area comes from the nature of

the government’s mission as employer. Governmert agencies

are charged by law with doing particular tasks. Agencies hire

employees to help do those tasks as effectively and efficiently

as possible.”). Neither Brentwood nor its employees have been

hired by TSSAA to do anything.’ If Pickering now extends to

all who voluntarily participate in any government program, the

vast majority of the country’s population has just suffered a

massive diminution in First Amendment rights.

C. Brentwood Js Not Participating in a Government-

Funded Program.

Contrary to Petitioner’s alternative argument, Pet’r Br. 22-

27, this case also bears no relation to the government programs

addressed by this Court in Rust and United States v. American

Library Association, 539 U.S. 194 (2003). In both cases, the

Court confronted First Amendment challenges to government-

funded spending programs. In Rust, the plaintiffs challenged a

federal funding provision that forbade the use of appropriated

funds “in programs where abortion is a method of family

planning.” 500 U.S. at 178 (quoting 42 U.S.C. § 300a-6). In

American Library Association, the Court addressed a similar

challenge to a federal law that denied funds to any public library

that refused to install Internet filtering software. 539 U.S. at

201-202. |

4. Were Pickering to apply here, it thus would create the anomalous

circumstance wherein employees of TSSAA, such as its Executive

Director and staff, would have the same First Amendment nghts of free

speech as schools such as Brentwood. This understanding would

completely remove Pickering from the employment context and would

allow a licensing body, such as TSSAA, to regulate the speech of

employees of its regulated entitics (and speech of the regulated entity

itself) in any number of circumstances. Pickering was never intended

to have such far-reaching consequences.

19

The Court rejected both challenges because “[a] refusal to

fund protected activity, without more, cannot be equated with

the imposition of a penalty on that activity.” /d. at 212 (quoting

Rust, 500 U.S. at 193 (internal quotations and citations omitted)).

As the Court explained, “when the Government appropriates

public funds to establish a program it is entitled to define the

limits of that program.” Rust, 500 U.S. at 194; Am. Library

Ass'n, 539 U.S. at 203 (“Congress has wide latitude to attach

conditions to the receipt of federal assistance on order to further

its policy objectives.” (citation omitted)). Thus, Congress was

“not denying a benefit to anyone, but [was] instead simply

insisting that public funds be spent for the purposes for which

they were authorized.” Am. Library Ass'n, 539 U.S. at 211

(quoting Rust, 500 U.S. at 196). Rust and American Library

Association stand for the relatively modest proposition that

government does not violate the First Amendment when it

appropriates funds for a specific purpose.

That rule has no application here. TSSAA is not a

government program in the sense that was significant in Rust

and American Library Association. \t does not expend

government funds, see Rust, 500 U.S. at 196, it does not serve

as a proprietor of public land, see United States v. Kokinda, 497

U.S. 720, 725 (1990), and it does not distribute a public benefit,

see Regan v. Taxation With Representation of Washington, 461

U.S. 540, 545 (1983). TSSAA, like any other government

regulatory or licensing authority, is charged with regulating

private conduct—nothing more.

Moreover, this Court made clear that the funding restrictions

at issue in those cases were not used as a means of suppressing

speech-—they were just a refusal by government to fund it.

See Rust, 500 U.S. at 198 (“Congress has . . . not denied . . . the

right to engage in abortion-related activities. Congress has

merely refused to fund such activities out of the public fisc

....); Regan, 461 U.S. at 545 (“The Code does not deny TWR

the right to receive deductible contributions to support its

nonlobbying activity, nor does it deny TWR any independent

20 -

benefit on account of its intention to lobby. Congress has merely

refused to pay for the lobbying out of public monies.”). Here,

however, Brentwood is not asking the State of Tennessee to

fund its speech; it is simply asking that private speech not be

suppressed by the State. The distinction is important. Legal

Servs. Corp. v. Velazquez, 531 U.S. 533, 548-49 (2001) (“Where

private speech is involved, even Congress’ antecedent funding

decision cannot be aimed at the suppression of ideas thought

inimical to the Government’s own interest.”’).

Indeed, even the government’s use of funding provisions

to suppress private speech has been routinely struck down. See,

e.g., League of Women Voters, 468 U.S. at 400 (invalidating

federal law on First Amendment grounds where “a

noncommercial educational station that receives only 1% of its

overall income from CPB grants [was] barred absolutely from

all editorializing” because “such a station [was] not able to

segregate its activities according to the source of its funding”

and “it [was] barred from using even wholly private funds to

finance its editorial activity”); Velazquez, 531 U.S. at 548 (“[I]n

the context of this statute there is no programmatic message of

the kind recognized in Rust and which sufficed there to allow

the Government to specify the advice deemed necessary for its

legitimate objectives.”).

In short, the State “cannot recast a condition on funding as

a mere definition of its program in every case, lest the First

Amendment be reduced to a simple semantic exercise.”

Velazquez, 531 U.S. at 547. TSSAA fails to heed this admonition.

The State of Tennessee, through TSSAA, has not appropriated

funds to advance a programmatic speech-related interest. Rust

and American Library Association therefore are inapplicable.

Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 442

F.3d 410, 423 (6th Cir. 2006) (“[T]he TSSAA’s enforcement of

the Recruiting Rule is not a funding program. Nor does it

represent government speech. Cases like Rust do not govern

the present case.”).

21

iil. TSSAA’S ATTEMPT TO JUSTIFY ITS SPEECH

RESTRICTION FALLS SHORT UNDER ANY

STANDARD.

A. TSSAA Gave No Weight to the Impact of the

Recruiting Rule on Speakers and Listeners.

Aside from the content-based infirmities discussed above,

the Recruiting Rule conflicts with at least two important First

Amendment principles. First, it interferes with the “free flow

of ideas” —a core First Amendment value. Miami Herald Publ'g

Co. v. Tornillo, 418 U.S. 241, 252 (1974); see 44 Liquormart,

517 U.S. at 512 (“The text of the First Amendment makes clear

that the Constitution presumes that attempts to regulate speech

are more dangerous than attempts to regulate conduct. That

presumption accords with the essential role that the free flow

of information plays in a democratic society.”); Houchins v.

KQED, Inc., 438 U.S. 1, 30 (1978) (“The preservation of a full

and free flow of information to the general public has long been

recognized as a core objective of the First Amendment to the

Constitution.”). Indeed, the First Amendment squarely prohibits

overbroad restrictions on truthful speech. Associated Press v.

United States, 326 U.S. 1, 20 (1945) (“[The First] Amendment

rests on the assumption that the widest possible dissemination

of information from diverse and antagonistic sources is essential

to the welfare of the public... .”).

Speech regulations therefore must be careful to “leave open

‘ ample alternative channels for communication of the

information” and should not “unreasonably limit alternative

avenues of communication.” City of Renton v. Playtime

Theatres, Inc., 475 U.S. 41, 47 (1986); Ward v. Rock Against

Racism, 491 U.S. 781, 791 (1989) (explaining that even content-

neutral restrictions must “leave open ample alternative channels

for communication of the information” (quotation omitted)).

And, when the Court is “not persuaded that adequate substitutes

exist for the important medium of speech that [the regulator of

speech] has closed off,” such regulations are struck down as

unconstitutional. City of Ladue v. Gilleo, 512 U.S. 43, 56 (1994).

22

Here, as noted above, the Recruiting Rule forbids a coach

“from contact[ing] a student or his or her parents prior to his

enrollment in the school” and prohibits “[a]ny initial contact or

prearranged contact by a member of the coaching staff or

representative of the school and a prospective student/athlete.”

JA 181-82. It further provides that “[p]rivate or parochial schools

may not contact students enrolled at the public schools.”°

JA 183. The Recruiting Rule, under TSSAA’s official

interpretation, ultimately forecloses a// means of direct

communication between private schools and parents interested

in learning more about these alternative educational

opportunities. For student-athletes and their families, outreach

from a member of the coaching staff, administrator, or teacher

at a private school is the natural avenue of communication for

learning about educational opportunities at private schools.

Indeed, it is perhaps the best or only opportunity to win their

attention in many cases.

That students and their families might possibly obtain this

message by seeking out private schools and asking them about

thr message does not save this prohibition from running afoul

of the First Amendment. “[T]he First Amendment protects the

right of every citizen to reach the minds of willing listeners

and to do so there must be opportunity to win their attention.”

Hill v. Colorado, 530 U.S. 703, 728 (2000) (citations and

quotations omitted). The Recruiting Rule thus fails to give

private schools an adequate opportunity to win the attention of

potentially interested students and their families, see Members

of City Council of City of Los Angeles v. Taxpayers for Vincent,

466 U.S. 789, 812 (1984) (explaining that an alternative means

5. In this litigation, TSSAA has taken the position that the

Recruiting Rule only proscribes initial contact by a school representative

on the subject of athletics. See JA 428. TSSAA’s official commentary

to the Recruiting Rule, however, makes clear that it is capable of a far

broader application. See JA 181-85. Brentwood’s First Amendment rights

should not depend on TSSAA’s temporary decision to enforce the

Recruiting Rule, in the context of ongoing litigation, more judiciously

than the official commentary indicates it will in the future.

23

of communication is constitutionally inadequate if the speaker’s

“ability to communicate effectively is threatened”), and imposes

too great a cost on speech, see Turner Broad., 512 U.S. at 663

(“[A]ssuring that the public has access to a multiplicity of

information sources is a governmental purpose of the highest

order, for it promotes values central to the First Amendment.”).

Second, TSSAA’s Recruiting Rule violates the speech nights

of students and their families. The First Amendment affords

equal protection to the rights of the willing audience to receive

the message. Bd. of Educ., Island Trees Union Free Sch. Dist.

No. 26 v. Pico, 457 U.S. 853, 867 (1982) (“[I]n a variety of

contexts the Constitution protects the right to receive

information and ideas.”). The First Amendment protects all

aspects of speech, as both a speaker and listener are required

for a message to be delivered. Martin v. Struthers, 319 U.S.

141, 143 (1943) (“The nght of freedom of speech . . . embraces

the right to distribute literature, and necessarily protects the nght

to receive it.” (internal citation omitted)); Va. State Bd. of

Pharmacy, 425 U.S. at 756 (“[W]here a speaker exists . . . the

protection afforded 1s to the communication, to its source and

to its recipients both.”’). Here, the Recruiting Rule would deprive

students and their families of their right to receive valuable

information about educational alternatives. See Lamont v.

Postmaster Gen., 381 U.S. 301, 308 (1965) (Brennan, J.,

concurring) (“The dissemination of ideas can accomplish

nothing if otherwise willing addressees are not free to receive

and consider them. It would be a barren marketplace of ideas

that had only sellers and no buyers.”’).

B. TSSAA’s Recruiting Rule Undermines Informed

Educational Choice.

The Recruiting Rule fails to take into account the paramount

constitutional interest in affording parents the opportunity to

make informed choices about educational alternatives for their

children. See Troxel v. Granville, 530 U.S. 57, 65 (2000) (“[T]he

interest of parents in the care, custody, and control of their

children—is perhaps the oldest of the fundamental liberty

24

interests recognized by this Court.”); Washington v. Glucksberg,

521 U.S. 702, 720 (1997) (“[I]n addition to the specific freedoms —

protected by the Bill of Rights, the ‘liberty’ specially protected

by the Due Process Clause includes the right[] . . . to direct the

education and upbringing of one’s children . . . .” (citations

omitted)); Pierce v. Soc 'y of Sisters, 268 U.S. 510, 535 (1925)

(“The fundamental theory of liberty upon which all governments

in this Union repose excludes any general power of the State to

standardize its children by forcing them to accept instruction

from public teachers only.”). For this right to have meaning, it

must be exercised through informed choice.

Here, by impairing the free flow of education-related

information, the Recruiting Rule inhibits parental autonomy.

in particular, forbidding private schools from directly contacting

public schoo! students and their families limits the opportunity

of parents to learn about the full range of educational options

available to them and to select the one that best meets the

students’ needs. As such, the Recruiting Rule “unreasonably

interferes with the liberty of parents and guardians to direct the

upbringing and education of children under their control.”

Id. at 534-35.

Apart from protecting parental liberty, informed school

choice is an important government interest in its own night. It

allows parents to consider the best options for fulfilling the

unique educational needs of their children, including the many

potential benefits of educational alternatives such as charter and

private schools.° As two experts testified in this case, “the flow

6. Private schools generally produce better academic performance

than public schools, particularly for minority students. See, e.g., Jay P.

Greene, Education Myths 150-54 (2005) (summarizing random-

assignment studies of voucher programs in Milwaukec, Charlotte,

Dayton, New York City, and Washington D.C.); Paul E. Peterson &

Elena Llaudet, Harvard University Kennedy School of Government,

On the Public-Private School Achievement Debate (Aug. 2006),

available at http://www.ksg.harvard.edu/PEPG/PDF/Papers/PEPG06-

02-PetersonLlaudet.pdf; U.S. Department of Education, Institute of

(Cont'd)

25

of information from schools to parents, as decision-makers, is

very important to making informed school choices about both

where to attend and the options available at the school that is

ultimately selected.” Brentwood, 304 F. Supp. 2d at 989. Based

on this expert testimony, the district court correctly found that

informed school choice is a substantial governmental interest.

Id. at 994. Ensuring informed school choice also is instrumental

in promoting other important governmental interests, such as

racial integration through voluntary means.’ By preventing

private schools from directly contacting public school students

and their families, the Recruiting Rule impairs the ability of

(Cont'd)

Education Sciences, The Nations Report Card: Student Achievement

in Private Schools 1, 7-9 (2005), available at http://nces.ed.gov/

nationsreportcard/pdf/studies/2006459.pdf. Private schools have higher

graduation rates than public schools, see, e.g., Jay P. Greene, Manhattan

Institute for Policy Research, Graduation Rates for Choice and Public

School Students in Milwaukee 1, 5, 7 (2004), available at http://

www.allianceforschoolchoice.org/ docs/grad_rates_milwaukee.pdf, and

generally have higher parental satisfaction and parental involvement

than public schools, see, e.g., U.S. Department of Education, Institute

of Education Sciences, Trends in the Use of School Choice 1993 to

2003 6-7 (2006), available at http://nces.ed. gov/pubs2007/2007045.pdf.

Studies show other benefits as well. See, e.g., William G. Howell &

Paul E. Peterson, The Education Gap: Vouchers and Urban Schools

185 (rev. ed. 2006) (“Private school students on average experienced

less fighting, cheating, disruptive student behavior, property destruction,

racial conflict, truancy and absentecism.”).

7. See also Brief of the NAACP Legal Defense & Educational

Fund, Inc. as Amicus Curiae in Support of Respondents at 25, Parents

Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, _ U.S. __, 126

S. Ct. 2351 (2006) (No. 05-908), 2006 WL 2927075) (“[O]ffering

students some opportunity to choose the school they would like to attend

.. . Serves the purpose not only of encouraging integration through the

voluntary movement of students, but also of providing students with a

variety of distinct yet basically equal educational opportunities to suit

their needs.”). While the NAACP madc this assertion in a case involving

public school choice, the point applies with cqual or greater force in a

case involving both public and private educational opportunities.

26 .

parents to exercise an informed school choice that might enable

their children to realize these benefits and thus improve the

educational outcomes for these students.*

Further still, the Recruiting Rule operates to the particular

detriment of disadvantaged and at-risk students. While low-

income and minority families are already disproportionately

disadvantaged by underperforming public schools (and are most

likely to have interest in educational alternatives such as private

schools), see Zelman, 536 U.S. at 681-83 & n.7 (2002) (Thomas,

J., concurring), they also are least likely to have access

to alternative sources of information beyond direct

communications from private schools.’ Eliminating such contact

8. See Brief of Caucus for Structural Equity as Amicus Curiae in

Support of Respondents at 23, Parents Involved in Cmty. Schs., 126 S.

Ct. 2351, 2006 WL 2882691 (“Research has found that the poyerty of a

school, far more than the poverty status of individual students,

determines educational outcomes, and that impoverished students do-

better when they live in middle-class neighborhoods and/or attend more

affluent schools.”).

9. Low-income and minority children, low-income houscholds,

households with low educational achievement, and minority households

are significantly less likely to have access to the Internet, to have high-

speed Internet access in the home, and to read a daily newspaper.

See U.S. Census Bureau, Statistical Abstract of the United States, Table

1112-Multimedia Audiences-Summary: 2005 (2007), available at http:

//www.census.gov/compendia/statab/tables/07s1112.xls; Table 1138-

Adult Computer and Adult Internet Users by Selected Characteristics:

1995 to 2005 (2007), available at http://www.census .gov/compendia/

statab/tables/07s1138.xls; Susannah Fox & Gretchen Livingston, Pew

Research Center, Latinos Online: Hispanics With Lower Levels of

Education and English Proficiency Remain Largely Disconnected From

the Internet (2007), available at http://www.pew internet.org/pdfs/

latinos _online_march_14_2007.pdf; Matthew DeBell & Chris

Chapman, U.S. Department of Education, Institute of Education

Sciences, Computer and Internet Use by Students in 2003 6-13 (2006),

available at http://nces.ed.gov/pubs2006/2006065.pdf; Henry J. Kaiser

Family Foundation, Children, The Digital Divide, And Federal Policy

1, 2, 11 (2004), available at http://www.kff.org/entmedia/upload/

Children-The-Digital-Divide-And-Federal-Policy-Issue-Brief.pdf.

27

as an option further reduces their potential avenues of obtaining

information. For this reason, they are not only less likely to

find out about educational alternatives, but also less likely to

obtain information about scholarships for which their children

may be eligible. The Recruiting Rule handicaps disadvantaged

students who might otherwise be able to take advantage of the

improved academic environment at a private school.'®

C. Competitive Equity in High School Athletics Is Not

a Government Interest Worth Vindicating Under

Any Standard.

TSSAA’s argument that “fostering a level playing field

among its participating schools,” Pet’r Br. 6, 34, is an important

government interest should be rejected. This Court has never

found that promoting “competitive equity”—as Petitioner refers

to it—in high school athletics is a substantial government

interest, and it should not do so now. TSSAA itself admits that

“competitive equity in high school sports is not usually a

10. Students—particularly minority and low-income students—

who transfer from mablic to private schools because of vouchers and

other school choice programs have shown increased academic

performance. See, e.g., Greene, Education Myths, supra note 6 at 150-

54; Caroline M. Hoxby, School Choice and School Competition:

Evidence from the United States, 10.2 Swedish Econ. Pol’y Rev. 11,

46-50, 65 (2004); Tom Loveless, Brookings Institution, The 200] Brown

Center Report on American Education: How Well Are Students

Learning? 36 (2001), available at http://www.brookings.cdu/gs/brown

/bc_1 port/2001/body.pdf; Howell & Peterson, supra note 6 at 146-48,

185-87. Researchers at the nation’s leading education school, Columbia

Teachers College, have also concluded that competition in education

improves educational outcomes such as test scores and graduation rates

for students in public schools. Clive R. Belfield & Henry M. Levin,

National Center for the Study of Privatization in Education, Teachers

College, Columbia University, The Effects of Competition on

Educational Outcomes: A Review of U.S. Evidence (March 2002),

available at http://eric.ed.gov/ERICDocs/data/ericdocs2/content_

storage 01/0000 000b/80/0d/d9/54_. pdf.

28

significant preoccupation of state governments.” Petition for

Writ of Certiorari 23 (Sept. 25, 2006).

Nevertheless, as evidence that competitive equity in high

school athletics is a substantial government interest, TSSAA

offers testimony that the absence of competitive equity can

produce “resentment,” “hard feelings,” or the perception “that

the deck is unfairly stacked against them.” Pet’r Br. 34, 36. The

purpose of interscholastic athletics is not to ensure that the best

players are evenly divided among the different schools. Athletic

competition at the secondary school level—unlike intercollegiate

and professional athletics—is supposed to teach larger lessons.

See, e.g., Brief of Amicus Curiae of National Federation of State

High School Associations in Support of Petitioner 3 (Feb. 20,

2007) (“NFHS views cocurricular activities, including athletics,

as an integral part of the high school experience”); id. at 5

(“athletics are an extension of the classroom”). As the Sixth

Circuit correctly noted, “[s]tate actors may act out of a variety

of interests, but only some are substantial.” Brentwood, 442

F.3d at 427. While promoting “competitive equity” might make

interscholastic athletics more pleasant for some participants, it

is hardly a core educational purpose that deserves to be elevated

to the level of a substantial governmental interest.

As TSSAA revealingly points out, “competitive equity is

vital to interscholastic sports’—not the primary goal of

education. Pet’r Br. 35 (emphasis added). The two should not

be confused. Athletic parity is not part of the educational mission

of the State. Indeed, TSSAA’s own constitution “[r]ecogniz[es]

that the primary objective of all secondary schools is to educate

youth.” JA 134. Thus, when the purported interests of

interscholastic athletics conflict with the State’s educational

charge, the former must give way. Competitive equity is neither

essential nor important to the key goal of educating youth."

11. Likening the Recruiting Rule to a “rule that a coach too

vigorously protesting a referee’s call will be ejected,” Pet’r Br. 1, reflects

a sweeping assertion of TSSAA’s power to curtail private speech.

(Cont'd)

29

Promoting “competitive equity” appears to reflect an

interest of the public school establishment—public school

administrators, coaches, alumni, and athletic boosters who want

to restrict informed choice to achieve a competitive advantage

in the marketplace for secondary education. As the district court

noted, “Board of Control member Morris Rogers . . . testified

in deposition that a purpose of the Recruiting Rule was to protect

schools and coaches from other schools taking their students.”

Brentwood, 304 F. Supp. 2d at 994 n.7. Promoting the narrow

agenda of public school officials and coaches is clearly not a

proper government interest, as it has no relevance to the

educational mission of the public school system.

This stated interest in competitive equity also undermines

the valid goal of protecting children and their families from

undue influence and other interests that TSSAA claims the

Recruiting Rule vindicates, such as “ensuring that athletics

remain secondary to academics.” Pet’r Br. 6. Competitive equity

undermines these objectives by subordinating the potential

academic benefits of individual students who transfer away from

underperforming public schools to the interest of competitive

equity in high school athletic competition. Brentwood, 304 F.

Supp. 2d at 994 (“The substantial governmental interest in

informed school choice trumps any governmental interest in

controlling which schools or teams win athletic contests.

Academics are more important than athletics.”).

The stated interest in competitive equity also undermines

the interest in “preventing the exploitation of children.”

Pet’r Br. 6. Competitive equity results in students being kept in

underperforming schools merely because of their potential for

(Cont'd)

Extending the notion of competitive equity in athletic competition

beyond ensuring fairness on the playing field itself can quickly lead to

absurd results. See Casey McNerthney, Proposed New Rules for Sports

Events Mean That Soon Fans Might Not Be Able to Say. . . Boo!, Seattle

Post-Intelligencer, Mar. 3, 2007, at Al (reporting that the Washington

Interscholastic Activities Association “is considering rules for fans that

could ban booing”).

30

athletic achievement and not because it is in their best interest—

as either a student or an athlete. Promoting “competitive equity”

treats students not as individuals with unique academic needs,

but as impersonal units of athletic talent to be divided evenly

across the schooling system without regard for their educational

goals and interests, in effect treating our children as “mere

creature[s] of the State.” Pierce, 268 U.S. at 535.

CONCLUSION

For the foregoing reasons, this Court should affirm the

judgment of the Sixth Circuit.

Respectfully submitted,

CLARK M. NEILY III ANDREW MCBRIDE

INSTITUTE FOR JUSTICE Counsel of Record

901 N. Glebe Road WILLIAM S. Consovoy

Suite 900 THOMAS R. McCartiy

Arlington, VA 22203 WiLey Rein LLP

(703) 682-9320 1776 K Street NW

Washington, D.C. 20006

(202) 719-7000

Attorneys for Amicus Curiae

March 27, 2007