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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0298%3A20

## Record

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

## Text

ae

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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
TE viarietixenncinviomcsitiscuinesiinn 1
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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0298%3A20. Public record. Not legal advice.