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

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No. 06-427

In The 6 OE silica anion staid

Supreme Court of the United States

+

TENNESSEE SECONDARY SCHOOL

ATHLETIC ASSOCIATION,

Petitioner,

BRENTWOOD ACADEMY,

Respondent.

+

ON WRIT OF CERTIORARI

To THE UNITED STATES COURT OF APPEALS

For THE SIXTH CIRCUIT

+

BRIEF OF AMICI CURIAE NATIONAL ALLIANCE FOR PUBLIC

CHARTER SCHOOLS AND THE COLORADO LEAGUE OF

CHARTER SCHOOLS

IN SUPPORT OF RESPONDENT

David H. Cox

CHRISTOPHER P. FERRAGAMO*

JACKSON & CAMPBELL, P.C.

1120 Twentieth Street, N.W.

Washington, DC 20036

(202) 457-1600

*Counsel of Record Counsel for Amici Curiae

THE LEX GROUP" ¢ 1750 K Street N.W. @ Suite 475 ¢ Washington. DC 20006

(202) 955-0001 @ (800) 815-3791 ¢ Fax: (202) 955-0022 ewww.thelexgroupdc.com

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...-..:ccsscccsssscsssssssssssseeeees iii

STATEMENT OF INTERESTS OF

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SUMMARY OF ARGUMENT......cssssscessssscccsssssssseeseees 4

EE DO eto LOS 7

I. THIS COURT PROPERLY

CONCLUDED IN BRENTWOOD I!

THAT THE TSSAA IS A STATE

ACTOR AND THERE IS NO BASIS

FOR RECONSIDERING BRENTWOOD

ws Me ileeaieseeaptiiieatlciasinriaileind sl a iacnbieitat ian iahinnasine tannin 7

A. The TSSAA Has Not Provided A

Basis For Reconsidering

| TITERS TT ATE 8

B. The TSSAA Is Not Entitled to

Special Deference As It Was Acting

As a Sovereign In Enforcing The

BN ID icuisinnsiusiaritthiaiasenenshinniieditiadanis 10

C. Brentwood Did Not Waive Its First

Amendment Protections By

“Voluntarily” Participating in the

ll

II. THE TSSAA’S RECRUITING RULE IS

NOT NARROWLY TAILORED TO

FURTHER GOVERNMENTAL

INTERESTS AS IT CREATES TWO

CLASSES OF SCHOOLS =

TRADITIONAL PUBLIC SCHOOLS

AND EVERYONE ELSE .........0.......ceeeseee.

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ill

~ TABLE OF CONTENTS

Cases:

Board of County Commissioners v. Umbehr,

ee es Se CUE scceccencisinnineniesiinsmneninedeninnsnvonene 11,12

Brentwood v. Tennessee Secondary School

Athletic Ass’n,

304 F. Supp. 2d 981

Re I, CeO eiecesiccsicenententviinnveninuiscvens 14, 18, 20

Brentwood Academy v.

Tennessee Secondary School Athletic Ass’n,

442 F.3d 410 (6 Cir. 2006)...............:cccccee passim

Brentwood Academy v.

Tennessee Secondary School Athletic Ass’n,

ee ts Se IE seseriniisschirenctndinaedeanteisendindiais passim

Burton v. Wilmington Parking Authority,

es Se seteciochicscsnsnliisiatinapitininnanaiehasiitelinintiide 9

College Sav. Bank v. Florida Prepaid

Postsecondary Educ. Expense Board,

a ED ceiilnccincinininintiitididinaiiciiipsecuinnibiniii 14

_ Evans v. Newton,

Fe Es Be CED err esecscencecininmnnesnenonnpeanineeessens 8,9

Grove City College v. Bell,

ty I EID ep ciideiesssnsisdcsilincincessiiduiiniinivenita 12,14

iv

Legal Services v. Velasquez,

Se ee te ED Sitisciheonscinesntiinniicniiniesions 12, 13, 14

Pickering v. Board of Education,

II cisterns sched neleneteianbiesiahisiwabiin 11

Rust v. Sullivan,

Sy Ny GE IITED ncisoteniiqsoenstdnnntvnsmeabeciantibiets 12, 14

Snepp v. United States,

I a sdselseommaniia 11

Speiser v. Randall,

Se ns MI a iscirthccettertia eeieiieainsnanniais 13, 14

Constitutional Provisions:

Bn I I Siete necsescesensmasesinnineioetans passim

Ee Es SRI SEIT aiccnrenacsnenscinsssesubiihsinblinvnbintiess 9

Statute:

III, UTIs ieidcsupesitdinesineeagidaadieasdpesciandaaedidi 4

Rule:

I I I I iar ae cna ddaeaielilintaieandein 1

STATEMENT OF INTEREST OF AMICI

CURIAE

The National Alliance for Public Charter

Schools (*“NAPCS”) is a _ national nonprofit

organization committed to advancing the charter

school movement.' Originally formed as a coalition

of national school reform organizations, the NAPCS

is now the nation’s leading public charter school

support and advocacy organization. The mission of

the NAPCS is to increase the number of high-

performing public charter schools available to all

families, particularly low-income and minority

families who currently do not have access to quality

public schools. The NAPCS provides assistance to

state charter school associations and resource

centers, develops and advocates for improved public

policies, and serves as the united voice for this large

and diverse movement.

The Colorado League of Charter Schools

(“CLCS”) is a non-profit membership organization

founded in 1994 to “serve and support Colorado’s

charter schools and their students.” The League

represents its one hundred and thirty member

schools (serving over 53,000 students) in a variety of

settings and provides technical support and

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

letters of consent have been filed with the Clerk of this Court.

Pursuant to this Court’s Rule 37.6, amici state that no part of

this brief was authored by counsel for any party, and no person

or entity other than the National Alliance for Public Charter

Schools or the Colorado League of Charter Schools or its

members made any monetary contribution to the preparation

or submission of the brief.

assistance to both existing charter schools as well as

groups seeking charter status. Among the League’s

members are a number of secondary schools that are

members of the Colorado High School Activities

Association and depend on the continued even-

handed regulation of activities under their purview.

Any regulatory system that arbitrarily categorizes

charter schools differently than traditional public

schools is contrary to the protected interests of those

schools and their students.

Charter schools are public schools that have

the freedom to operate with greater independence

than traditional public schools. Charter school

administrators, teachers and parents work together

to make decisions ranging from budgets to staffing to

curriculum that best meets the needs of the student.

In exchange for the freedom to innovate, charter

schools are held accountable for increased student

achievement. Charter schools play a critical role in

providing a high-quality option in public education.

The landscape of secondary education has

changed dramatically over the past two decades. By

way of example, over one million American children

currently attend public charter schools. In this

regard, parents and prospective students can now ==—”—~—~”

choose from a wide variety of educational options in

both the public and private arenas. The NAPCS

works on behalf of thousands of public charter

schools across the United States. The CLCS works

on behalf of its one hundred and thirty member

charter schools in Colorado. The NAPCS and the

CLCS, like the respondent in this case, have a strong

interest in preserving and protecting First

Amendment rights of public charter schools and

ensuring that prospective students and their parents

have access to the information needed to make

informed decisions regarding their children’s

educational opportunities. The legal principles

advocated by the Tennessee Secondary School

Athletic Association (“TSSAA”) in this case

unquestionably restrict the rights of everyone but

traditional public high schools to convey important

information to families and students across the

country. In this regard, the First Amendment rights

at issue in this case arise in an athletic context but

their importance transcends interscholastic sports.

Although the NAPCS and the CLCS recognize the

value in preventing the exploitation of student-

athletes, the TSSAA’s role in_ regulating

interscholastic sports cannot and should not be

permitted to restrict the free flow of information that

is essential for making informed educational

choices.” The recruitment rule promulgated by the

TSSAA is an overly broad restriction on free speech

that unnecessarily results in the erosion of the rights

otherwise guaranteed by the First Amendment.

* The amicus curiae brief of the Association of Christian Schools

International addresses in detail the effects that the recruiting

rule has in restricting the exchange of information necessary to

make real school choice possible.

SUMMARY OF ARGUMENT

This Court previously concluded that the

TSSAA is a state actor for purposes of 42 U.S.C. §

1983. Brentwood Academy v. Tennessee Secondary

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

(“Brentwood I”). On appeal after remand, the court

of appeals correctly concluded that the recruiting

rule enforced by the TSSAA implicated Brentwood’s

First Amendment rights and was not narrowly

tailored to accomplish TSSAA’s interests. Petitioner

now requests that this Court revisit its decision in

Brentwood I and reverse its holding by arguing that

the TSSAA is not a sovereign State exercising policy

power but rather a state actor that asks its members

to honor its voluntary contractual obligations. This

Court properly concluded in Brentwood I that the

TSSAA’s regulatory authority “may and should be

treated as state action owing to the pervasive

entwinement of state school officials in the structure

of the association.” Brentwood, 531 U.S. at 290. The

TSSAA has not offered any basis for challenging the

“entwined” relationship between the TSSAA and the

Tennessee State Board of Education. Thus, this

Court should not revisit its holding in Brentwood I

as this Court properly concluded that the TSSAA

was a state actor and, in enforcing its athletic

regulations, was-engaged in state action.

Petitioner further insists that because the

restraint on free speech derives from respondent’s

“voluntary” or “contractual” participation in the

TSAAA rather than from the TSSAA’s exercise of its

sovereign power, the TSSAA should be afforded a

more deferential review thus leading to a reversal of

the court of appeals’ conclusion that the TSSAA’s

actions constituted an unconstitutional restriction on

the respondent’s First Amendment rights. The cases

relied upon by the TSSAA in support of its

proposition, however, are clearly distinguishable

from the case at bar. In correctly recognizing this

distinction, the court of appeals noted that “the

TSSAA, in administering its rules and regulations

and imposing penalties against member schools, acts

as a regulator, not as an employer, contractor, or

disburser of funds.” Brentwood Academy uv.

Tennessee Secondary School Athletic Ass’n, 442 F.3d

410, 424 (6" Cir. 2006). Moreover, the court of

appeals properly recognized that the holdings in

those cases had limited application and the

deferential analysis in those cases was employed to

fit the unique circumstances presented in those

cases. Accordingly, the court of appeals correctly

rejected the distinction advanced by the TSSAA and

properly concluded that the TSSAA’s exercise of

regulatory authority was subject to “intermediate

scrutiny” under the First Amendment.

In addition, although the NAPCS and the

CLCS believe that the court of appeals properly and

correctly determined that the recruiting rule, as

applied to respondent, unconstitutionally restricts

Brentwood’s First Amendment rights, the NAPCS

and CLCS also believe that the rule, as written, has

a disparate impact on non-traditional public schools

and results in the creation of two classes of schools —

traditional public schools and everyone else. The

recruiting rule broadly prohibits the use of “undue

influence” on a student or his or her parents or

guardians by “any person connected, or not

connected,” with the school to recruit a student for

athletic purposes. The TSSAA has asserted three

interests as justification for the recruiting rule. The

overarching purpose is to avoid “exploitation.” The

“interpretive commentary” that is used to aid the

TSSAA in the interpretation of the recruiting rule,

however, contains exceptions that undermine the

purported governmental interests in promulgating

the rule. More specifically, the rule exempts contact

between school representatives and student-athletes

“where there is a definite feeder pattern involving

the schools.” The exceptions to the rule, therefore,

permit contact between school representatives and

prospective student-athletes in traditional public

high schools since traditional public high schools

draw their students from certain designated

geographical areas thereby qualifying as a “definite

feeder pattern involving the schools.” Consequently,

the rule undermines the bases advanced by the

TSSAA for promulgating the rule and, therefore, is

not narrowly tailored to further a_ substantial

governmental interest. Moreover, the rule results in

disparate treatment for those schools, such as public

charter schools, that do not have “definite feeder

patterns.” Accordingly, a reversal of the court of

appeals’ conclusion that the recruiting rule violates

Brentwood’s First Amendment rights _ will

impermissibly restrict the First Amendment rights

of the “other schools,” such as public charter schools,

that do not rely on attendance zones for their

enrollment.

ARGUMENT

I. THIS COURT PROPERLY CONCLUDED

IN BRENTWOOD I THAT THE TSSAA IS

A STATE ACTOR AND THERE IS NO

BASIS FOR RECONSIDERING

BRENTWOOD I

This Court previously concluded that the

TSSAA is a state actor for purposes of 42 U.S.C. §

1983. Brentwood Academy v. Tennessee Secondary

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

(“Brentwood I”). In its attempt to avoid

constitutional scrutiny of its recruiting rule, the

TSSAA requests that this Court revisit its holding in

Brentwood I and overrule its conclusion that the

TSSAA is a state actor. Pet. Br. at 46-50. In the

event that it fails in its efforts to convince this Court

to reconsider its prior ruling, the TSSAA, joined by

the Solicitor General as amicus curiae, contends that

because the relationship between the TSSAA and

Brentwood is “contractual” and because Brentwood

“voluntarily” agreed to the speech restrictions

contained in the rule as a condition of membership,

the rule is entitled to a more deferential review and

should lead to the reversal of the court of appeals’

conclusion that the TSSAA’s actions constituted an

unconstitutional restriction on the respondent’s First

Amendment rights. The NAPCS contends that

neither of these arguments provides a basis for

reversal of this Court’s ruling in Brentwood I or in a

reversal of the court of appeal’s decision below.

A. The TSSAA Has Not Provided A

Basis For Reconsidering Brentwood

I

The Court should not revisit its holding in

Brentwood I that the TSSAA’s “regulatory activity

[against Brentwood] may and should be treated as

state action.” Brentwood, 531 U.S. at 290. In

Brentwood I, this Court concluded that the TSSAA, a

statewide association incorporated to regulate

interscholastic athletic competition among public

and private secondary schools, was engaged in state

action when it enforced its recruiting rule against a

member school (Brentwood). In so ruling, this Court

noted that it has treated a nominally private entity

as a state actor in a range of circumstances,

including when the entity “is entwined with

governmental policies” or when government is

“entwined in [its] management or control.” Id. citing

Evans v. Newton, 382 U.S. 296 (1966) (holding that

private trustees to whom a city had transferred a

park were nonetheless state actors barred from

enforcing racial segregation because the park served

the public purpose of providing community

recreation and the municipality remained entwined

in its management and control). This Court’s

holding in Brentwood I was based upon such a

“pervasive entwinement” of state school officials in

the structure of the TSSAA. Id. at 291. This Court’s

well reasoned conclusion was based upon the

following facts, which are undisputable: (1) the

association has historically been seen to regulate in

lieu of the State Board of Education’s exercise of its

own authority; (2) the association draws its officers

from public school officials; (3) the association

derives much of its funding from the dues paid by its

public schools and therefore largely provide for the

association’s financial support; (4) the association’s

ministerial employees are treated as state employees

to the extent of being eligible for membership in the

state retirement system; and (5) the State Board of

Education repeatedly recognized (and, in 1972, by

formal “designation” charged) the TSSAA as the

regulator of interscholastic athletics for public and

private secondary schools statewide.

The TSSAA has not offered any basis for

challenging the “entwined” relationship between the

TSSAA and the Tennessee State Board of Education.

Instead, the TSSAA urges reconsideration of

Brentwood I by arguing that the entwinement

analysis “is difficult to square with prior precedent.”

Pet. Br. at 46. However, this Court has relied upon

the entwinement analysis on several occasions to

support a finding that a private entity qualifies as a

state actor for constitutional purposes. See Evans uv.

Newton, 382 U.S. 296, 299 (1966) (holding that

“conduct that is formally ‘private’ may become so

entwined with governmental policies or so

impregnated with a governmental character as to

become subject to the constitutional limitations

placed upon state action.”); Burton v. Wilmington

Parking Authority, 365 U.S. 715 (1961) (concluding

that a privately owned restaurant located within a

public parking garage was sufficiently involved with

state authority to bring its racially discriminatory

actions within the proscription of the Fourteenth

Amendment). Although the TSSAA contends that

“the entwinement inquiry provides no full answer to

the ultimate question [as] to whether TSSAA’s

10

enforcement of the recruiting rule against

Brentwood ‘can fairly be attributed to the State,”

there can be no question that the exercise of

regulatory authority (enforcing the recruiting rule)

by a state actor such as the TSSAA will and should

be attributed to the State. Accordingly, there is no

reason to revisit the holding in Brentwood I as the

closely entwined relationship between the State

Board of Education and the TSSAA overwhelmingly

established that the TSSAA, as the authorized

regulator of interscholastic athletics for secondary

schools throughout the State, was operating at all

times as a state actor.

B. The TSSAA Is Not Entitled to

Special Deference As It Was Acting

As a Sovereign In Enforcing The

Recruiting Rule

The TSSAA contends that, even if it qualifies

as a state actor, it is entitled to special deference in

its regulation of its members’ speech because the

participation of Brentwood and _ others is

“contractual” or “voluntary” in nature. Pet. Br. at

20-32. The TSSAA essentially contends that the

TSSAA is not a sovereign State exercising policy

power but rather a state actor that asks its members

to honor its voluntary contractual obligations and,

therefore, the recruiting rule is not an

unconstitutional condition. The authority relied

upon by the TSSAA in support of adopting a more

deferential First Amendment standard is factually

distinguishable, is limited in its application, and

fails to provide any justification for the departure

11

from the “intermediate” scrutiny applied by the court

of appeals below.

As discussed above, this Court has concluded

that the TSSAA is the statewide regulator of

interscholastic secondary school athletics § in

Tennessee. Thus, enforcement of the recruiting rule

against TSSAA members such as Brentwood, which

constitutes the exercise of regulatory action, is

different than a state actor acting as a contract

employer, independent contractor or a disburser of

federal funds. As a preliminary matter, the court of

appeals has correctly noted that “the applicability of

the First Amendment to the TSSAA’s regulatory

conduct does not hinge on whether there was a

contract or not.” Brentwood, 442 F.3d at 423. Even

if such a distinction were applicable in this case, the

instances in which this Court has applied a more

deferential First Amendment analysis were driven

by-the unique nature of the relationships between

the parties that allowed the imposition of conditions

on free speech rights. No such unique relationship

exists in the present case.

For example, Pickering v. Board of Education,

391 U.S. 563 (1968) and Snepp v. United States, 444

U.S. 507 (1980) involved the regulation of speech in

the context of the government’s role as an employer.

As this Court noted, “the State has interests as an

employer in regulating the speech of its employers

that differ significantly from those it possesses in

connection with regulation of the speech of the

citizenry in general.” Jd. at 569. In Board of County

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

Court addressed only the narrow issue of whether

12

and to what extent, independent contractors with

the government are protected by the First

Amendment.” Jd. at 685 (emphasizing the “limited

nature of our decision today”). As explained in

Umbehr, “the similarities between government

employees and governmental contractors with

respect to [freedom of speech] are obvious. The

government needs to be free to terminate both

employees and contractors for poor performance, to

improve efficiency, efficacy, and responsiveness to

the public, and to prevent the appearance of

corruption.” Jd. at 674. In both Rust v. Sullivan,

5006 U.S. 173 (1991) and Grove City College v. Beil,

465 U.S. 555 (1984), the government was acting as a

contractor in a subsidy context and imposed certain

limits to the programs accepting such funding. In

such federal funding programs, a certain degree of

latitude in restricting speech has been permitted

because, as pointed out by this Court in Legal

Services v. Velasquez, 531 U.S. 533, 541 (2001),

“when the government disburses public funds to

private entities to convey a government message, it

may take legitimate and appropriate steps to insure

that its message is neither garbled nor distorted by

the grantee.”

However, as correctly pointed out by the court

of appeals below, the present case “does not involve

the government as a party in a contractual

relationship with an independent contractor” and

“there are obvious differences between the TSSAA’s

role in this case and the government’s role as

employer.” Brentwood, 442 F.3d at 422. Likewise,

the TSSAA’s enforcement of the recruiting rule in

the present context does not involve a funding

13

program and Brentwood’s relationship with the

TSSAA does not involve its receipt of public funds.

Thus, none of the rationales offered in the cases cited

by the TSSAA apply to Brentwood in the present

case. Instead, TSSAA’s role is as a government

regulator. Accordingly, intermediate scrutiny should

apply to the TSSAA’s application and enforcement of

the recruiting rule.

C. Brentwood Did Not Waive Its First

Amendment Protections By

“Voluntarily” Participating in the

TSSAA

The TSSAA further insists that because the

restraint on free speech derives from respondent’s

“voluntary” or “contractual” participation in the

TSAAA rather than from the TSSAA’s exercise of its

sovereign power, Brentwood has “effectively waiveld]

... any challenge to the conditions” imposed by the

TSSAA. Pet. Br. at 21. However, this Court has

cautioned that conditions placed upon benefits

offered by a state actor “cannot be sustained if they

so operate, whatever their purpose, as to inhibit or

deter the exercise of First Amendment freedoms.”

Speiser v. Randall, 357 U.S. 513 (1958) (invalidating

a condition that limited tax exemption availability to

war veterans who affirmed that they did not

advocate the overthrow of the United States

Government »y unlawful means). Likewise, in Legal

Services Corp. v. Velasquez, 531 U.S. 533 (2001), this

Court refused to relax its First Amendment analysis

based upon the voluntary nature of a federal

program that provided funds for legal services for

the indigent when Congress imposed conditions on

14

the states’ use of the federal funds. Accordingly, this

Court has recognized that an entity’ “voluntary”

participation does not constitute an implied waiver

of its free speech rights under the First

Amendment.’

Moreover, this Court should refuse to accord

greater deference to the TSSAA because, as

recognized by the district court “the TSSAA is

effectively the only game in town” for high schools

seeking to maintain an interscholastic athletic

program in Tennessee. Brentwood v. Tennessee

Secondary School Athletic Ass’n, 304 F. Supp. 2d at

981, 997 (M.D. Tenn. 2003). As such, while the

complainants in Speiser, Velasquez, Rust, and Grove

City may have had a realistic “choice” of not

participating in the government programs at issue,

Brentwood’s participation in the TSSAA is not truly

a “voluntary” decision. In this regard, absent

similarly state-sanctioned athletic regulators such as

TSSAA to choose among, Brentwood (and schools

similarly situated in other states with a single state-

wide athletic association) cannot realistically pursue

other avenues for state sanctioned athletic

programs. Accordingly, the regulatory nature of the

3 Notably, this Court has recognized that an effective waiver of

a constitutional right only occurs where there is an “intentional

relinquishment or abandonment of a known right or privilege.”

College Sav. Bank v. Florida Prepaid Postsecondary Educ.

Expense Board, 527 U.S. 666, 682 (1999). As recognized by the

court of appeals, “the contract [between the TSSAA and

Brentwood] gives no guidance as to whether Brentwood waived

a right to challenge a rule it considered unconstitutional” and

“the contract’s silence [therefore] becomes evidence of an

absence of waiver of constitutional rights.” Brentwood, 442 F.3d

at 425.

15

TSSAA coupled with the lack of a true “voluntary”

relationship supports the court of appeals’ conclusion

that the TSSAA is a state actor whose restrictions on

First Amendment rights should be subject to

intermediate scrutiny.

II. THE TSSAA’S RECRUITING RULE IS

NOT NARROWLY TAILORED TO

FURTHER GOVERNMENTAL

INTERESTS AS IT CREATES TWO

CLASSES OF SCHOOLS - TRADITIONAL

PUBLIC SCHOOLS AND EVERYONE

ELSE

Although the NAPCS and the CLCS believe

that the court of appeals properly and correctly

determined that the recruiting rule, as applied to

respondent, unconstitutionally restricts Brentwood’s

First Amendment rights, the NAPCS and the CLCS

also believe that the rule, as written, has a disparate

impact on non-traditional public schools and results

in the creation of two classes of schools — traditional

public schools and everyone else, including public

charter schools. The present case arises from the

promulgation and application of a “recruiting rule”

contained in the TSSAA bylaws aimed at regulating

the attempts of secondary schools to recruit middle

school student athletes for athletic programs. The

bylaws include a number of questions and answers

and guidelines, described as “interpretive

commentary,” that are used to aid the TSSAA in the

interpretation of the recruiting rule. Although the

TSSAA contends that the commentary to the anti-

recruitment rule is non-binding, Judge Rogers, in his

dissenting opinion, properly noted that the

16

commentary is non-binding “only to the extent that

the TSSAA has a certain amount of discretion in

enforcing the rule, and the examples cited in the

interpretive commentary are a non-exclusive list.”

Brentwood, 442 F.3d at 452, FN 3. One portion of

the “interpretative commentary” includes the

following questions and answers that address the

guidelines to be employed in determining whether

there has been undue influence and, hence, a

violation of the rule:

4.

Q. What are some of the guides (sic)

used in determining whether

there has been undue influence

used which would result in a

violation of the recruiting rule?

A. Some examples are, but not

limited to:

* * So

3. Any initial contact or

prearranged contact by a

member of the coaching

staff or representative of

the school and a

prospective student/athlete

enrolled in any member

school except where

there is a_ definite

feeder pattern.

17

4. Any initial contact or

prearranged contact by a

member of the coaching

staff or representative of

the school and a

prospective student/athlete

in the seventh grade and

above at any non-member

school except where

there is a_ definite

feeder pattern.

* * .

5.

Q. What is allowed by member

schools in contacting prospective

students?

A. A representative of the school

may meet with students at a

school that is defined as a

feeder school or meet

students who are zoned to

attend that school _ the

following year. This visit must-

be cleared by the principals of

both schools.

Joint Appendix 181 (emphasis added).

The recruiting rule broadly prohibits the use

of “undue influence” on a student or his or her

parents or guardians by “any person connected, or

18

not connected,” with the school to recruit a student

for athletic purposes. The TSSAA has asserted three

interests as justification for the recruiting rule: (1)

to keep high school athletics in their proper place

subordinate to academics; (2) to protect student

athletes from exploitation; and (3) to foster a level

playing field among the various member schools. In

this regard, Ronnie Carter, the Executive Director of

the TSSAA, testified that preventing “exploitation”

is the “fundamental” purpose of the recruiting rule.

Brentwood, 304 F. Supp. 2d at 992.

The “interpretive commentary” that is used to

aid the TSSAA in the interpretation of the recruiting

rule, contains exceptions “where there is a definite

feeder pattern involving the schools.” In addition,

the recruiting rule permits recruiting in situations

where students are zoned to attend that school the

following year. The exceptions to the rule, therefore,

expressly permit contact between school

representatives and prospective student-athletes in

traditional public high schools since traditional

public high schools draw their students from certain

designated geographical areas thereby qualifying as

a “definite feeder pattern involving the schools”

and/or schools whose students are “zoned to attend

that school the following year.” Consequently, the

rule undermines the bases advanced by the TSSAA

for promulgating the rule and, therefore, is not

narrowly tailored to further a_ substantial

governmental interest. Further, the TSSAA has not

provided any reasoned basis for distinguishing

between “feeder patterns” and other situations nor

has it identified any substantial governmental

interest that could conceivably explain the rationale

19

behind preventing Brentwood from contacting

students that have already signed enrollment

contracts with Brentwood on the one hand and

permitting high school coaches to contact prospective

students at “feeder schools” on the other.

Moreover, the recruiting rule results in

disparate treatment for those schools, such as public

charter schools, that do not have “definite feeder

patterns.” The district court expressly

acknowledged this disparate treatment:

The failure of the TSSAA to narrowly

tailor the Recruiting Rule, as applied in

this case, is made further evident by

the “feeder pattern” exceptions that

exist in the interpretive commentary to

the Recruiting Rule. As applied in this

case, there is no legitimate reason to

permit speech in a feeder pattern but

prohibit the same speech by Brentwood

Academy to its incoming students.

Various witnesses testified how the

“feeder pattern” exception for pubiic

school is actually used to broadly

permit the type of speech for which

Brentwood Academy has _ been

sanctioned by the TSSAA. The bottom

line is that schools in a “feeder pattern”

can make certain’ school-initiated,

* As noted by the United States Court of Appeals for the Sixth

Circuit, the “definite feeder pattern” exception does not apply to

Brentwood, except with regard to those students who are

enrolled at Brentwood Academy itself in the sixth grade or

higher. Brentwood, 442 F.3d at 417.

Te ee et a |

20

targeted speech that schools, such as

Brentwood Academy, outside the

“feeder pattern,” cannot make.

Brentwood, 304 F. Supp. 2d at 995-96. Thus, the

rule creates two different classes of schools,

traditional public schools and everyone else. In the

former class, the rule expressly permits recruiting

while in the later class, the rule prohibits such

recruiting activities.

The disparate treatment that results from

enforcement of such a rule affects a significantly

large portion of students in the United States.

Notably, over one million students in the United

States attend public charter schools._These charter

schools generally do not rely on attendance zones for

their enrollment. Hundreds of thousands of other

students attend private schools that likewise do not

rely on attendance zones for their enrollment. As

explained above, the recruiting rule impermissibly

restricts the ability of non-traditional public schools

(public charter schools, private schools, etc.) to

attract students to their schools by placing

unconstitutional restrictions on the nature and type

of information that can be disseminated to millions

of students that may be interested in attending non-

traditional public schools. As discussed in more

detail in the amicus curiae brief of the Association of

Christian Schools International, although the

recruiting rule arises in the athletic context, the

First Amendment rights at issue in this case

transcend interscholastic sports. Accordingly, a

reversal of the court of appeals’ conclusion that the

recruiting rule violates Brentwood’s First

21

Amendment rights will impermissibly restrict the

First Amendment rights of the “other schools,” such

as public charter schools, that do not rely on

attendance zones for their enrollment and effectively

create two different classes of schools - traditional

public schools and everyone else.

CONCLUSION

For the foregoing reasons and for the reasons

set forth in Respondent’s brief, the decision of the

court of appeals should be affirmed.

Dated: March 27, 2007.

Respectfully submitted,

DAVID H. Cox

CHRISTOPHER P. FERRAGAMO*

JACKSON & CAMPBELL, P.C.

1120 Twentieth Street, N.W—

Washington, D.C. 20036

(202) 457-1600

*Counsel of Record Counsel for Amici Curiae