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

777

Supreme Court of the Hnited States

TENNESSEE SECONDARY SCHOOL ATHLETIC

ASSOCIATION,

Petitioner,

v.

BRENTWOOD ACADEMY,

Respondent.

On Writ of Certiorari to the United States Court of Appeals

for the Sixth Circuit

BRIEF OF AMICUS CURIAE NATIONAL SCHOOL

BOARDS ASSOCIATION IN SUPPORT OF

PETITIONER

Amy Howe Pamela S. Karlan

Kevin K. Russell (Counsel of Record)

HOWE & RUSSELL, PLC. Jeffrey L. Fisher

4607 Asbury PI... NW STANFORD LAW SCHOOL

Washington, DC 20016 SUPREME COURT

LITIGATION CLINIC

Thomas C. Goldstein $59 Nathan Abbott Wav

AKIN, GUMP, STRAUSS, HAULER

& Feb. LLC

1333 New Hampshire Ave. NW

Washington, D.C. 20036

Stanford, CA 94305

(650) 725-485]

Francisco M. Negron, Jr.

NATIONAL SCHOOL BOARDS

ASSOCIATION

1680 Duke Street

February 20. 2007 Alexandria, VA 22314

Wi. SON-EPES PRINTING CO.,INC. — (202) 789-0096 - WasHiNGTON D.C. 20002

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...cccsccccosssscsccscscccscccccsseccsseeee ii

STATEMENT OF PNTEIUEST aaccecacsccssccceccsnxceecencoceoeenace

SUMMARY OF ARGUMENT ....csssccscscsoscescccssssssccssesseeee 2

ES LEE EAA TET 4

I. | When The Government Contracts With Private

Parties, First Amendment Challenges To

Contractual Terms, Such As TSSAA’s Recruiting

Rule, Should Be Analyzed Under The Deferential

Standard Used In This Court’s Government

Employee And Conditional Spending Cases................. 4

A. The Relationship Between TSSAA And

Brentwood In This Case Is Like The

Relationship Between A Government Or Its

Esnpeoyees Or Contractons............sccccoorevsesessocsorereees 5

B. The Relationship Between TSSAA And

Brentwood In This Case Is Also Like The

Relationship Between A Government And A

Recipient Of Conditional Funding....................06 6

C. The Distinction Between Sovereign State

Action And Contractual State Action Works

Better Than The Sixth Circuit's Taxonomy ............ )

Il. When A Contracting Party’s Speech Involves Only

Matters Of Private Concern Directly Related To Its

Contractual Undertaking. A State Actor's Right To

Enforce Contractual Restrictions Is Particularly

ST ssiethideinineniibiteminshinaniianghingbihdapeltdeummmenintes eRnOEieroeors 1]

il

A. Speech By A Contracting Party That Does Not

Touch A Matter Of Public Concern Is Entitled

To Only Minimal Constitutional Protection.......... 12

B. Letters To Eighth Graders About The Place And

Time Of Spring Football Practice Do Not

Constitute Speech On A Matter Of Public

PIII cccistesestinarnetecinnbiditnapeenninenensesanimunnenasinianisone 13

lil. The Strong Governmental Interest In Ensuring

Student Safety And Preserving The Educational

Value Of Interscholastic Sports Justifies The

Imposition Of Bargained-For Restrictions On

PED SI siitnctsccssveniccscensnsnianimanscnicntnnnscsnen 16

IV. Educational Authorities Such As TSSAA Are

Entitled

To Particular Deference In Enforcing Rules That

Lie Within Their Educational Mission ..................:004. 22

A. Under Brentwood I, TSSAA And Similar

Bodies In Which Public Schools Participate Are

EGCRIIOR FOC YCIIIED oc ccesccvcccscersscesesensaccosescssees 22

B. As An Educator, TSSAA Deserves Deference In

Its Administration Of Interscholastic Athletics .....23

Se iishictsnicipecassnsiiiciiieonianusiniaitnimniipinneniianiniatiniiviiniin 27

iil

TABLE OF AUTHORITIES

CASES

Alerding v. Ohio High Sch. Athletic Ass'n,

i ET EEE 21

Ambach vy. Norwick, 441 U.S. 68 (1979) oo... ccccecccteeeeeeeeees 24

Angstadt ex rel Angstadt v. Midd-West Sch. Dist.,

286 F. Supp. 2d 436 (M.D. Pa. 2003)... eeeeeeeees 18

Ark. Educ. Television Comm'n v. Forbes,

SES U.S. GEG (1DBB)....noncecsvnrerscnrvenserernsereserereencnsoseosesoes 1]

Baisden v. W. Va. Secondary Sch. Activities Comm'n,

een 19

Better ¥. Cart, S69 US. TGB CIGGZ). .ccccccevecescscscovscsesscsscesese 16

Bethel Sch. Dist. No. 403 v. Fraser,

as A ee iieiciintiicchiceiciaaininsinetieiiaceatinsonsiiin 1, 24, 25

Bd. of County Comm'rs vy. Umbehr,

ee ees Ge cieciisctesiicnienintadinnsiitiseibisusiaeiaiiiininiiniain 5.9, 12

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

go EIA eae eee cin ean meee passim

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

442 F 36 S50 (GR Cit. 20DG) 2..000ccccccccccccsccscesscoceeses passim

Brentwood Acad. y. Tenn. Secondary Sch. Athletic Ass’n,

Be Fe FO GC, BOD ctsccittcntcineentitninsnciienin 10,14

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

304 F. Supp. 2d 981 (M.D. Tenn. 2003)... 13

Burrows v. Ohio High Sch. Athletic Ass'n,

Se ae ee I IE ccditicieseesetbnsoceiivniiininnmnninitoiciniicite 21

Butz v. Economou, 438 U.S. 478 (1978) oo. c ccc ecc cee ceeees 25

Carey v. Brown, 447 U.S. 455 (1980) ..............00-scecerseseeseees 13

Chabert v. La. High Sch. Athletic Ass'n,

Fhe DO FAS CES. DA. RB TTD ivcscscscenesnceserevosscsenssans 19

iV

City of San Diego v. Roe, 543 U.S. 77 (2004)... 14, 15

Connick v. Myers, 461 U.S. 138 (1983).....0cccccceeeeeeeee passim

Cornelius v. NAACP Legal Def. & Educ. Fund, Inc.,

SOT, a 10

Denis J. O'Connell High Sch. v. Va. High Sch. League,

Fe ee ee CFU iitcictiiisistithitinicanicienis 19, 21

Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,

A I ia lates 12

First Nat'l Bank of Boston v. Bellotti,

es ee ae iciiashiicilsdiinbsisadinhalgiuichsinenndtunnniemnendenisisioes 13

Forsyth County v. Nationalist Movement,

a Uy NT ITT cs iidsencdnicenishsitininesichommenniinieniiandeiuenetedioenia 10

Garcetti v. Ceballos, 126 S. Ct. 1951 (2006) .................. 1,12

Geldermann, Inc. v. Commodity Futures Trading Co.,

ee UES D ciitinevnssceriinemsnitstonsesennnnes 1]

Goss v. Lopez, 419 U.S. 565 (1975) .........ccccsseserecceseseeees 3, 23

Grove City Coll. v. Bell, 465 U.S. 555 (1984)... 6, 7,9

Hazelwood Sch. Dist. v. Kuhimeier,

La, ana iciiiisiienieeicentenncarindiiidepieapaninnssiiiues 1, 23, 25

Ind. High Sch. Athletic Ass'n v. Carlberg,

GPG FE.T.2E FES CNG. FOIE) aceccescccssccsccsonevcconsosessssosevsece 19

In re United States ex rel. Mo. State High Sch. Activities

Ass'n, 682 F.2d 147 (8th Cir. 1982) ...............:cccccssssseees 19

Lake James Community Volunteer Fire Dep't v. Burke

County, 149 F.3d 277 (4th Cir. 1998)... eee 1]

Lamb's Chapel v. Ctr. Moriches Union Free

Fe Bg Se Re Be CR ecertnndetninteciensctcnnitentienenonsen 1

Leonard v. Clark, 12 F.3d 885 (9th Cir. 1993) 000.000. 11

Milliken v. Bradley, 418 U.S. 717 (1974)... cccecceeeceeeeeeeees 24

Monell v. Dep't of Soc. Servs. of New York, :

SRR Ree cae. Pe nO nO 26

Moreland v. W. Pa. Interscholastic Athletic League,

NE ee ee ey EE ciiiebsintiniisdkgitestsnsinincniniedonceninniie 18

Morse v. Frederick,

No. 06-278 (cert. granted Dec. 1, 2006) ........ccececceeseeeees l

Mt. Healthy City Bd. of Educ. v. Doyle,

SI SP PP EE U Picecnsestscncssniimnetiindiieenicietmeiniain 14

NAACP vy. Claiborne Hardware Co.,

ET Fs CD CD iceniscsenioceviasimssnianninsinitnanininaiie 13

New Jersey v. T.L.O., 469 U.S. 325 (1985) wo. ceeseeseeeeees 25

Nixon v. Herndon, 273 U.S. 536 (1927) .......cccccceceeeeeeeeeeeeees 16

Perry v. Sindermann, 408 U.S. 593 (1972) w...cccccccccesereeseees 14

Perry Educ. Ass'n v. Perry Local Educators’ Ass’n,

SE Bk BF Ce icnteccnecnsoncsecnscnnicnindiammsaiaan 10

Pickering v.-Bd. of Educ.,

FOO Ss Fe Ca itccevntensicscntnenenreninianeiininn 5, 8, 13, 15

Rankin v. McPherson, 483 U.S. 378 (1987) ...........ccccceeeeeees 14

Robbins v. Ind. High Sch. Athletic Ass’n,

941 F. Supp. 786 (S.D. Ind. 1996) 0.0.0... eee eeeeeeees 19

Rottmann vy. Pa. Interscholastic Athletic Ass'n,

349 F. Supp. 2d 922 (W.D. Pa 2004)... eeeeeeeees 11

Rust v. Sullivan, 500 U.S. 173 (1991)........ccceeeeeeeeeeeeeeeeeeeee 6,9

San Antonio Indep. Sch. Dist. v. Rodriguez,

GEE GEG. 8 Eira cccitenscticnnssitasscccsscsineniediiidiiditeniianaam 24

South Dakota v. Dole, 483 U.S. 203 (1987) .............. 6,7, 8,9

Southeastern Promotions, Lid. v. Conrad,

SPD. FE CG rie iicsvsticcsninisctinecmsenmenaciniinnasisdiiauat 10

Stone v. Kan. State High Sch. Activities Ass'n.

FOE P.26 1ZSS Chae. CO. Asam. ISTP nccccccsscncssevesscssssesess 18

Tinker v. Des Moines Indep. Community Sch. Dist..

FES CR, Fee Cee nccstistiicttinintelitibimniniianeiienaia 24

Walsh y. La. High Sch. Athletic Ass'n.

GOS F 2B BSE CO Cae FORD ccctictitesiceensninccintmmsvacieatinien 19

Waters v. Churchill, 511 U.S. 661 (1994) oe Se 7.8

vi

CONSTITUTIONAL PROVISIONS

UIT: Ol rtcetscneresianiprestinticnsiiienenimeteanpnnmeenenans passim

OTHER AUTHORITIES

Brief for Mich. High School Athletic Ass’n et. al. as

Amici Curiae in Support of Petition for Writ of

Certiorari, Zenn. Secondary Sch. Athletic Ass'n v.

Brentwood Acad., No. 06-427 (Nov. 29 2006).............

Cal. Interscholastic Federation, 2006-2007 Constitution

and Bylaws, art. XX, § 214, available at

IT CID III eccccesecesneccscecsesccscsteconvssnsesoocsscnses

Tania Ganguli, FHSAA Crackdown Continues; A 2nd

Girls Basketball Power is Hammered for Violating

Association Rules, Orlando Sentinel, Jan. 31, 2007,

Dan McCarney & Burt Henry, League Drops

Cornerstone Christian High School, San Antonio

Express-News, Sept. 14, 2006 at SB.........ccccccceeeeeees

Mich. High School Athletic Ass'n, Your High School

Eligibility: Guide for Student-Athletes, available at

http://www.mhsaa.com/resources/eligibility.pdf..........

Minn. State High School League,

http://www.mshsl.org/mshs|/aboutmshsl.asp?page=1 ....

National Federation of State High School Ass’‘ns,

Mission Statement, http://www.nths.org/web/2006/

GIVGMABIOR GUDICTROTA.BGIK .0.0000000000ccscsseseseseseccerecessseeses

N.J. State Interscholastic Athletic Ass'n, 2005-2006

Constitution, Bylaws, and Rules and Regulations,

art. V. §. 4.K(2), available at http://www.njsiaa. ad

references/OS506eligibilrules. pdf oo... eens

17

vii

Or. School Activities Ass’n, 2006-2007 Handbook,

Mission Statement, available at

http://www.osaa.org/publications ...........ccccceeeeereeeeeeeeees

Christine Willmsen & Michael Ko, Chief Sealth

Stripped of State Titles, Seattle Times, July 26,

TD cccenescntnsstsntiitninanensanigntsnthinenisinemmennnieetia

STATEMENT OF INTEREST'

The National School Boards Association (NSBA) is a

not-for-profit federation of state associations of school boards

across the United States. Its mission is to foster excellence

and equity in public education through school board

leadership. NSBA achieves that mission by representing the

school board perspective before federal courts and

government agencies.

NSBA represents 95,000 local school board members,

virtually all of whom are elected. These local officials govern

14,890 local school districts serving the nation’s more than 47

million public school students.

NSBA has participated as an amicus curiae in numerous

cases before this Court that implicate the ability of school

boards to carry out their responsibilities, including cases

involving First Amendment speech issues raised by students,

employees, and outside parties, such as Morse v. Frederick,

No. 06-278 (cert. granted Dec. 1, 2006); Garcetti v. Ceballos,

126 S. Ct. 1951 (2006); Lamb's Chapel v. Center Moriches

Union Free School Dist., 508 U.S. 384 (1993); Hazelwood

School Dist. v. Kuhlmeier, 484 U.S. 260 (1988); and Bethel

School Dist. No. 403 v. Fraser. 478 U.S. 675 (1986).

This case implicates the ability of NSBA’s members to

determine the role that interscholastic sports will play within

their schools, as well as their ability to structure their

relationships with the many students, parents, and outside

parties with whom they come into contact while carrying out

their responsibilities.

' 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, amicus states that none of the

parties or its counsel wrote the brief in whole or in part and that no

one other than umicus and its counsel made any monetary

contribution to the preparation or submission of the brief.

2

SUMMARY OF ARGUMENT

When private parties who agree to contractual conditions

in return for a discretionary government benefit later

challenge those conditions under the First Amendment, this

Court has applied a deferential standard of review to the

government’s actions. Two lines of cases have established

this general proposition. First, the government can restrict the

speech of government employees and independent contractors

when that speech involves only matters of private concern

and the restriction relates to the government's interest in

effectively carrying out its goals. Second, the government can

impose a speech-restrictive condition on the recipients of

government subsidies as long as the condition furthers the

government's legitimate purpose in offering the subsidy and

does not lead the recipient to violate an independent

constitutional provision.

Because the relationship between the Tennessee

Secondary School Athletic Association (TSSAA) and

Brentwood Academy (Brentwood) fits squarely within this

Court’s First Amendment contract jurisprudence, this Court

should uphold TSSAA’s enforcement of the recruiting rule as

reasonable. In this case, TSSAA offered Brentwood the

discretionary benefit of participating in its athletic league in

exchange for compliance with the terms of its membership

agreement, which included the challenged recruiting rule.

The recruiting rule itself is a reasonable contractual term,

directly related to a school’s participation in an interscholastic

athletic league. Restrictions on athletic recruiting of

adolescent students can contribute materially to a number of

important educational values. They emphasize the priority of

academics over athletics. By helping to maintain competitive

balance among schools, they encourage broader participation.

thereby maximizing the pedagogical benefits of athletics. And

they keep scholastic athletics safe for participants. By

contrast, any countervailing First Amendment interests are

minimal at best: the speech in this case involved matters of

3

only private concern — namely, the opportunity for twelve

eighth grade students to participate in spring football practice.

In striking down the recruiting rule, the Sixth Circuit

committed three key errors. First, the court of appeals

improperly characterized the recruiting rule as a regulatory

ordinance, rather than a contractual term, and applied the far

more searching First Amendment test applicable to unilateral

government regulation, rather than the more _ properly

deferential test that applies when the government acts as a

contracting party. Second, the court of appeals failed to

recognize TSSAA’s significant education-related interests in

ensuring competitive equity. Finally, the court of appeals

improperly elevated the speech at issue to a matter of public

concern by confusing that inquiry with the entirely distinct

inquiry into whether the government's restriction of speech

serves a public purpose.

The standard deference accorded to government action in

contractual cases is reinforced here because TSSAA was

acting in its educational capacity. When this Court labeled

TSSAA a state actor, it did so because of extensive

entwinement with both public schools and the Tennessee

State Board of Education. Brentwood vy. Tenn. Secondary Sch.

Athletic Ass'n, 531 U.S. 288, 299-302 (2001) (“Brentwood

I’). If such entwinement is enough to make TSSAA a state

actor, then TSSAA, like the public bodies with which it is

entwined, should be treated as an educator.

This Court has long recognized that educational decisions

are “|bly and large . . . committed to the control of state and

local authorities.” Goss v. Lopez, 419 U.S. 565, 578 (1975)

(internal quotations omitted). This recognition reflects

important principles of federalism, the — specialized

competence of educational policymakers, and institutional

limitations of the federal courts to effectively implement

educational policy. All of these factors point to deference to

TSSAA‘s judgment here.

4

ARGUMENT

|. When The Government Contracts With Private

Parties, First Amendment Challenges To

Contractual Terms, Such As TSSAA’s Recruiting

Rule, Should Be Analyzed Under The Deferential

Standard Used In This Court’s Government

Employee And Conditional Spending Cases.

Governments can interact with citizens in two distinct

ways: they may unilaterally regulate as a function of their

sovereignty or they may bilaterally contract with consenting

private parties. While the Constitution of course applies to

exercises of both regulatory and contractual powers,

constitutional claims are assessed differently in each context.

In the latter, contractual, context, this Court has applied a

decisively more deferential standard of review to First

Amendment challenges. The court of appeals failed to apply

the correct legal standard, and thus its judgment should be

reversed.

This case concerns a voluntary contract between a state

actor (TSSAA) and a private party (Brentwood Academy),

renewed annually, in which TSSAA agrees to include

Brentwood in its interscholastic athletic league in return for

which Brentwood pays dues, Pet. App. 160a, and consents to

abide by various rules promulgated by TSSAA, including its

limitation on athletic recruitment. /d. 159a-66a. In this sense,

TSSAA resembles government agencies that pay outside

parties who agree to conform their conduct to the

government's terms. The terms of TSSAA’s contract with

Brentwood should thus be analyzed under the deferential

standard that this Court has applied in conditional funding

and government employee/contractor cases. Instead, the Sixth

Circuit incorrectly treated ISSAA’s “recruiting rule” as an

exercise of sovereign power.

5

A. The Relationship Between TSSAA And Brentwood

In This Case Is Like The Relationship Between A

Government And Its Employees Or Contractors.

The government may impose speech-related restrictions

on employees or contractors that it may not impose on the

public at large when those restrictions contribute to effective

government operations. Waters v. Churchill, 511 U.S. 661,

675 (1994). Under the government employee and contractor

cases, if speech involves “matters only of personal interest” -

for example, the sort of work-related matters that arise at any

worksite, private or public — the government's response raises

no First Amendment concerns “absent the most unusual

circumstances.” Connick v. Myers, 461 U.S. 138, 147 (1983).

This Court has applied this test not only to government

employees, as in Connick, but to independent contractors as

well. Bd. of County Comm'rs v. Umbehr, 518 U.S. 668

(1996).° It has reasoned that “[i]ndependent contractors

appear to us to lie somewhere between the case of

government employees. who have the closest relationship

with the government, and our other unconstitutional

conditions precedents, which involve persons with less close

relationships with the government.” /d. at 680.

* By contrast, if an employee's speech involves a matter of

public concern, then the government may take action based on that

speech only if it prevails in “a balance between the interests 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 v. Bd. of Educ., 391 U.S. 563, 568 (1968).

| ‘ “{I]}n this case. as in government employment cases. the

Board exercised contractual power, and its interests as a public

service provider, including its interest in being free from intensive

judicial supervision of its daily management functions, are

potentially implicated. Deference is theretore due to the

government's reasonable assessments of its interests as

contractor.” Umbehr. 518 U.S. at 678.

6

The relationship between TSSAA and Brentwood fits

easily within the purview of the Umbehr test.’ Private schools

that compete throughout the school year with public schools

in an athletic league that is itself a state actor have a

relationship with the government that is at least as close as a

contractor’s. TSSAA has determined that anti-recruiting rules

are crucial to preserving the fundamentally educational

mission of high school sports. It should be given the latitude

extended to other governmental agencies in deciding what

contractual restrictions it may impose to advance its

legitimate interests. This is especially so because the speech

at issue — letters to eighth-graders about spring football

practices — does not involve a matter of public concern. See

Part II, infra.

B. The Relationship Between TSSAA And Brentwood ©

In This Case Is Also Like The Relationship

Between A Government And A Recipient Of

Conditional Funding.

Just as the government may impose speech-related

conditions on employees or contractors, so too the

government may impose speech-related conditions on funding

recipients that it may not impose on the public at large when

those conditions contribute to achieving the purposes for

which the subsidy is being provided. The government can, for

example, “selectively fund a program to encourage certain

activities it believes to be in the public interest, without at the

same time funding an alternative program.” Rust v. Sullivan,

500 U.S. 173, 193 (1991): see also South Dakota v. Dole, 483

U.S. 203, 207 (1987).° This kind of selective or conditional

—

* See Rottmann vy. Pa. Interscholastic Athletic Ass'n, 349 F.

Supp. 2d 922 (W.D. Pa. 2004) (applying Pickering and holding that

recruiting restriction imposed by interscholastic athletic league did

not violate First Amendment rights of a coach at parochial member

school).

* Dole sets out four restrictions on the federal spending power.

First, the spending “must be in pursuit of ‘the general welfare.”

J

funding has long applied to private schools: “Congress is free

to attach reasonable and unambiguous conditions to federal

financial assistance that educational institutions are not

obligated to accept.” Grove City College v. Bell, 465 U.S.

555, 575 (1984) (upholding federal funding of higher

education conditioned on adherence to the nondiscrimination

provisions of Title IX, which can of course preclude certain

speech-related or associational activity).

In this case, TSSAA wishes to provide a benefit —

membership in an interscholastic athletic league, and in some

cases revenue from TSSAA’s tournaments — to schools that

agree to certain conditions in how they run their athletic

programs, including limits on athletic recruitment. The

restriction on athletic recruiting is a reasonable method of

deterring an activity — aggressive recruiting — that TSSAA

does not believe to be in the public interest. Brentwood is not

obligated to accept this benefit and its attendant conditions;

the school conceded at trial that its participation in TSSAA is

voluntary. See Pet. Cert. at 3. This concession ts reinforced by

the fact that many Tennessee private schools have left

TSSAA or joined other athletic Ieagues to pursue goals

incompatible with TSSAA’s. See id. at 2.

Dole, 483 U.S. at 207. Second, any conditions imposed on a

recipient must be “unambiguou({s].~ /d. Third. any conditions must

be “germanfe]” — that is, related to the activity being subsidized. /d.

at 208. Finally, “other constitutional provisions may provide an

independent bar™ to a particular condition. /d

To be sure, this case involves state-imposed conditions rather

than federal ones. While there might be a few exceptional instances

where a state’s power to subsidize is more limited than the federal

power — if. for example, the subsidy trenches on foreign policy

interests or implicates the dormant commerce clause — none of

those concerns are implicated in this case. Otherwise. states surely

have a power to condition their spending that ts at least

coterminous with the federal spending power recognized by Grove

Citv College v. Bell, 465 U.S. S555 (1984) since state-imposed

conditions raise no Tenth Amendment-based concerns.

8

The recruiting rule satisfies the Dole criteria for judging

the constitutionality of a condition on government funding.

Interscholastic athletics contributes in a number of important

ways to the education of secondary school students.

Restrictions on athletic recruitment of the kind imposed by

TSSAA satisfy the germaneness requirement of Dole because

they are important to ensuring that athletics does not eclipse

academics, that athletics teaches students appropriate and

meaningful life lessons, and that athletic participation is

physically safe. See Part Ill, infra.

The contract between TSSAA and Brentwood also

satisfies the other Dole criteria. Participation in TSSAA is

unambiguously conditioned on compliance with its recruiting

rule, making the conditional nature of the subsidy clear in the

contractual agreement. See Grove City Coll., 465 U.S. at 575.

The precise contours of the condition need not themselves be

described. See Waters, 511 U.S. at 673 (speech restrictions on

public employees are permissible even when the standard of

prohibited speech is “almost certainly too vague when applied

to the public at large”); Connick, 461 U.S. at 153 (supporting

a state employee's termination for insubordination even

though she “did not violate announced office policy”). The

point of this requirement — that the recipients of the

government's subsidy be “cognizant of the consequences of

their participation.” Dole, 483 U.S. at 207 — was surely met

here: TSSAA expressly says in Section 21 of its publicly

available bylaws that membership in its league is conditioned

on recruitment restrictions. Pet. App. 162a-63a. Nor does

TSSAA’s recruiting rule require that Brentwood itself do

anything that would violate the Constitution. See Dole. 483

U.S. at 210-11 (explaining that the “independent

constitutional bar” limitation reters to conditions that would

lead the recipient “to engage in activities that would

themselves be unconstitutional” such as inflicting cruel and

unusual punishment).

That the conditional benefit offered by TSSAA consists

largely of the right to participate in its league. rather than of a

9

more direct financial subsidy, makes no difference to the

analysis. A contract that provides consideration in the form of

government funds (as in Rust, Dole, and Grove City College)

and a contract that provides consideration of some other kind,

such as membership in an athletic league, are functionally

identical. The only important characteristic, present in both

kinds of contracts, is that the government, in order to further a

state interest related to the contract, provide the contracting

party with something that it could otherwise withhold. This

Court recognized in Grove City College that “[t]he economic

effect of direct and indirect assistance often is

indistinguishable,” 465 U.S. at 565, as indeed is the case here.

For example. TSSAA might work around a court-imposed

distinction between conditioned funds and conditioned

membership in the league by attaching a nominal monetary

subsidy to its recruitment conditions. The subsidy could be

offered outright or implicitly in TSSAA’s decision to fund

certain incidental costs of running the Icague. Surely there is

nothing to be gained by requiring such empty legalistic

maneuvers. Just as with the state action doctrine itself, “if

formalism were the sine qua non” of what constitutes a

subsidy, “the doctrine would vanish owing to the case and

inevitability of its evasion, and for just that reason formalism

has never been controlling.” Brentwood 1, 531 U.S. at 302.

C. The Distinction Between Sovereign State Action

And Contractual State Action Works Better Than

The Sixth Circuit’s Taxonomy.

The clean distinction between sovereign state action and

contractual state action makes much more sense than the

Sixth Circuit’s haphazard taxonomy of government-citizen

relationships. Categorizing state power as either contractual

or sovereign suffices for this case as it did for this Court in

U'mbehr., 518 U.S. at 678. since that distinction neatly

addresses the question whether the party on the receiving end

of the government's attention agreed to be there. The Sixth

Circuit. on the other hand, carves the wide range of possible

10

relationships into overlapping and ill-defined categories, not

presumed exhaustive, including regulatory, funding, subsidy,

independent contractor, government speech, and employment.

Pet. App. 92a-95a. This level of detail is not only unnecessary

but also conceptually misleading. At one point, for example,

it leads the Sixth Circuit to conclude that TSSAA’s

imposition of the recruiting rule is analogous to a unilateral

zoning ordinance because this Court described TSSAA’s

contractual enforcement of its recruiting rule as regulating

recruitment in its 2001 decision. /d 14a. But many

contractual terms, including terms in contracts between

private parties, “regulate” the behavior of the parties, and this

does not convert them into governmental “regulation”; the

Sixth Circuit confuses the two contexts in which the word is

used. Later, it also concludes that the contractual nature of the

relationship is irrelevant because the state offers membership

in the league as consideration instead of the model of money-

for-services found in most independent contractor

relationships such as highway construction. Adopting such an

unsystematic categorization of government relationships with

private parties will only encourage further confusion among

lower courts.

The court of appeals in this case improperly blurred the

line between the government’s more constitutionally

constrained sovereign power to restrict speech and its greater

contractual flexibility by citing korsyth County v. Nationalist

Movement, 505 U.S. 123 (1992), and Southeastern

Promotions, Lid. v. Conrad, 420 U.S. 546 (1975). Pet. App.

95a. Those cases held that when the government erects a

public forum and then enters into contracts with parties who

want to use the forum, it may not exclude participants based

on the content or viewpoint of their speech. But the public

forum cases are entirely inapposite. TSSAA is neither a

traditional public forum defined “by long tradition .

devoted to assembly and debate.” Perry Educ. Ass'n v. Perry

Local Educators’ Ass'n, 460 U.S. 37, 45 (1983). nor a

designated forum. created when the government “designate|s|

1]

a place not traditionally open to assembly and debate as a

public forum,” Cornelius v. NAACP Legal Def. & Educ.

Fund, Inc., 473 U.S. 788, 802 (1985). See Ark. Educ.

Television Comm'n v. Forbes, 523 U.S. 666, 677 (1998).

Instead, TSSAA is an athletic league designated by the State

of Tennessee to facilitate statewide interscholastic sports and

not to enable some general form of expression.

In contrast to the Sixth Circuit, other courts have adopted

the position we advocate here, finding the distinction between

contractual and sovereign powers both workable and

preferable. Thus, these courts have enforced private parties’

relinquishment of constitutional rights in contracts with the

government, as long as the contract was entered into

voluntarily and is in the public interest.°

Il. When A Contracting Party’s Speech Involves Only

Matters Of Private Concern Directly Related To Its

Contractual Undertaking, A State Actor’s Right To

Enforce Contractual Restrictions Is Particularly

Strong.

_ Brentwood’s recruiting letters involve a matter of private

concern that is governed by the terms of its contract with

TSSAA. Consequently, TSSAA has wide latitude in

° See Lake James Community V~'unteer Fire Dep't v. Burke

County, 149 F.3d 277 (4th Cir. 1993) (enforcing a volunteer fire

department’s waiver, as part of its service contract with a county, of

its First Amendment right to object to a change in the boundaries of

its fire protection district); Leonard v. Clark, 12 F.3d 885 (9th Cir.

1993) (enforcing a firefighter union’s acceptance, as part of its

collective bargaining agreement with a city, of a corresponding

salary deduction if it exercised its First Amendment right to

successfully lobby the state legislature to mandate increased pay or

benefits): Geldermann, Inc. v. Commodity Futures Trading

Comm'n, 836 F.2d 310 (7th Cir. 1987) (enforcing firm's consent to

customer arbitration and waiver of its Article Ill right to

independent federal adjudication as part of its membership

agreement with the Chicago Board of Trade).

12

enforcing contractual terms that limit Brentwood’s recruiting

speech as long as those terms are directly related to

Brentwood’s participation in the league TSSAA is operating

and the terms serve some legitimate purpose.

A. Speech By A Contracting Party That Does Not

Touch A Matter Of Public Concern Is Entitled To

Only Minimal Constitutional Protection

When private parties make First Amendment claims

against the government’s enforcement of a contractual

limitation on their speech, they must make “an_ initial

showing” that their speech touches on “a matter of public

concern.” Umbehr, 518 U.S. at 685. Conversely, if the speech

does not touch on a matter of public concern, then the

contracting party should have “no First Amendment cause of

action” based on the government’s “reaction to the speech.”

Garcetti v. Ceballos, 126 S. Ct. 1951, 1958 (2006) (citing

Connick, 461 U.S. at 147); see Umbehr, 518 U.S. at 685.

Providing+less protection in cases involving speech that is

of only private concern reflects a well-established principle of

First Amendment jurisprudence. See Dun & Bradstreet, Inc.

v. Greenmoss Builders, Inc., 472 U.S. 749, 758-59 (1985)

(plurality opinion) (“We have long recognized that not all

speech is of equal First Amendment importance. It is speech

on ‘matters of public concern’ that is at the heart of the First

Amendment's protection. . . . In contrast, speech on matters

of purely private concern is of less First Amendment

concern.) (citing Connick, 461 U.S. at 145: NAACP vy.

Claiborne Hardware Co., 458 U.S. 886, 913 (1982): Carey v.

Brown, 447 U.S. 455. 467 (1980): First Nat'l] Bank of Boston

v. Fellotti, 435 U.S. 765, 776 (1978)). Particularly when

imposed contractually rather than unilaterally, governmental

limits on speech of purely private concern deserve substantial

deference.

13

B. Letters To Eighth Graders About The Place And

Time Of Spring Football Practice Do Not

Constitute Speech On A Matter Of Public Concern

The “speech” that triggered TSSAA 3 imposition of

sanctions on Brentwood consisted of recruiting letters to

cighth graders telling them where and when spring football

practice would occur and urging them to attend. See Pet. App.

34a-35a. These letters, like many of the communications

between schools and potential or actual students, contain no

speech on a matter of public concern.

This Court’s decisions have established that speech on a

matter of public concern must be of “political, social, or other

concern to the community.” Connick, 461 U.S. at 146. Such

speech includes criticisms or reports of governmental action

or policy and speech related to other such subjects where

“free and open debate is vital to informed decision-making by

the electorate.”’ /d. at 145 (citing Pickering, 391 U.S. at 571-

” The protection of public debate and criticism is central to the

public concern analysis. Thus, courts have provided First

Amendment protection to partics that contract with the government

when their criticism has provided information relevant to public

debate. For example, a high school teacher's public criticism of the

Board of Education’s funding allocations between athletic and

academic expenses, Pickering, 391 U.S. at 571-72, a teacher's

criticism of school policy in testimony in front of the state

legislature, Perry v. Sinderman, 408 U.S. 593 (1972), and a

teacher's informing a radio station about a memo from the school

principal announcing a new teacher dress code (where the dress

code was allegedly prompted by a belief by administrators that

faculty dress was tied to public support of bond issues), Af

Healthy Citv Bd. of Educ. v. Dovle, 429. U.S. 274 (1977), were each

held to be speech that touched on matters of public concern.

The matter of public concern analysis also protects contracting

parties’ ability to participate in public debate and criticism even

where that criticism, although related to public matters, is unrelated

14

72). The test is sensitive to both context and content: whether

the “speech addresses a matter of public concern must be

determined by the content, form, and context of a given

statement.” /d. at 147-48. As this Court recently explained,

“public concern is something that is a subject of legitimate

news interest; that is, a subject of general interest and of value

and concern to the public at the time of publication.” City of

San Diego v. Roe, 543 U.S. 77, 83-84 (2004).

Connick and City of San Diego show why Brentwood’s

recruiting letters are not a matter of public concern. The

content of the letters — the place and timing of a private

school’s football practice — are matters internal to the football

team, relevant to the coaching staff, players, and players”

parents, but no one else. The letters do not contain criticism

of TSSAA’s policies (which would be a matter of public

concern, since such speech would pertain to the functioning

of a state-run athletic association and invite political debate).

Nor is the content of the letters a subject that has news

interest of value and concern to the public.

The Sixth Circuit’s ruling to the contrary rests on a

serious misunderstanding. That court paradoxically concluded

that because TSSAA might have to show that the speech

restriction imposed by TSSAA-Brentwood — contract

“embodies substantial governmental interests,” any speech

to the contracting government entity. For example, Rankin vy.

McPherson found the political criticism implicit in a statement

wishing for the success of future assassination attempts on

President Reagan to be speech on a matter of public concern

because the statement was made during a discussion of government

policies. 483 U.S. 378, 386-87 (1987).

* This is itself a mistaken proposition. The government interest

need not be so weighty as to be “substantial” — as opposed to

simply “legitimate” — if a court applies the sort of balancing test

used in government contracting and conditional spending cases. See

Part |, supra.

15

restricted by the contract “will by definition implicate ‘a

matter of public concern.”” Pet. App. 9a.”

That analysis cannot be the law. Put simply, what the

Sixth Circuit was asserting is that whenever TSSAA has a

substantial government interest in regulating speech, the

speech it is regulating is necessarily a matter of public

concern. This leads to the perverse result that the

government’s ability to restrict speech declines as its

legitimate interest in regulating the speech increases. The

Sixth’s Circuit’s reasoning flatly contravenes this Court’s

decision in City of San Diego v. Roe, 543 U.S. 77 (2004).

There, this Court recognized that a city police department had

a substantial, public interest in limiting the injury to the

department’s reputation caused by an employee's selling

videos on eBay of himself stripping off a police uniform and

masturbating. See id. at 77. However, the video itself clearly

did not speak to a “matter of public concern,” and so did not

merit First Amendment protection under Connick and

Pickering.

The Sixth Circuit’s analysis here rested on a linguistic

confusion similar to errors that this Court has noticed and

rejected elsewhere. In a case challenging legislative

malapportionment, for example. this Court pointed out that

“the mere fact that the suit seeks protection of a political right

does not mean it presents a political question. Such an

” The 2006 decision adopted the earlier decision’s analysis on

TSSAA’s contract-based arguments wholesale. See Pet. App. 89a-

90a (explaining that TSSAA’s First Amendment arguments were

inconsistent with the law of the case).

To be sure, the 2006 decision provided additional reasons for

applying intermediate scrutiny. See id. 94a-95a. However. the

attempts to analogize the facts of this case to application of a

municipal ordinance or access to a public forum are unavailing. See

Part |. supra. Furthermore, these newly identified reasons do not

redeem the erroneous “matter of public goncern™ analysis of the

Sixth Circuit's 2001 opinion.

16

objection ‘is little more than a play upon words.” Baker v.

Carr, 369 U.S. 186, 209 (1962) (quoting Nixon v. Herndon,

273 U.S. 536, 540 (1927)). So too here: the mere fact that the

government has a “public” interest in regulating certain

speech does not mean that the speech itself is on a matter of

“public” concern.

Connick itself rules out placing the label “matter of

public concern” on a matter of at most limited general

interest. There, an assistant district attorney who was unhappy

with a transfer distributed a questionnaire to co-workers that

asked questions “concerning office transfer policy, office

morale, the need for a grievance committee . . . and whether

employees felt pressured to work in political campaigns.”

Connick, 461 U.S. at 141. Of these questions, this Court

deemed only the last to touch a matter of public concern

because of the implications the question had for limiting

public employees’ ability to voice dissent. See id. at 149. The

other survey questions were treated as merely reflecting the

plaintiff's dissatisfaction with her own transfer. /d. at 148.

More generally, the Court noted that “[t]o presume all matters

which transpire within a government office are of public

concern would mean that virtually every remark . . . would

plant the seed of a constitutional case.” /d at 149. That

conclusion applies even more strongly to the speech here,

which does not even resemble criticism of the government: to

presume that all matters that transpire under a contractual

agreement are of public concern plants a constitutional case in

every contract term and thereby makes such contracting

impracticable.

il. The Strong Governmental Interest In Ensuring

Student Safety And Preserving The Educational

Value Of Interscholastic Sports Justifies The

Imposition Of Bargained-For Restrictions On

Participants’ Speech.

Every high school sports association in the country with

public school members considers tt important to promote a

17

“level playing field.”’® Yet the Sixth Circuit refused to

recognize the government’s substantial interest in preventing

the emergence of gross disparities in talent among teams. The

court’s error can be traced to its treatment of competitive

equity as an end in itself. Pet. App. 100a (“There is very little,

if any, evidence, however, explaining why competitive equity

is an important value in the first place.”). But competitive

equity is not the ultimate government objective; rather, it is an

essential means of advancing the three major educational

goals of high school sports.

First, as a definitional matter. interscholastic sports

involve schools. Thus, educators may conclude that the entire

complex of rules governing interscholastic athletics should

emphasize the primacy of academic concerns over the pursuit

of athletic glory. Second, competition between mismatched

teams poses an increased risk of physical injuries to students.

Third, rules that avert lopsided match-ups and humiliating

defeats ultimately encourage more students to play sports. As

this Court has recognized, “{i]nterscholastic athletics

obviously play an integral part in . . . public education,”

Brentwood I, 531 U.S. at 299, and it does so precisely

because sports are a powerful toc! for imparting the values of

° See, e.g., Brief for Mich. High School Athletic Ass’n et al.

as Amici Curiae in Support of Petition for Writ of Certiorari, Tenn.

Secondary Sch. Athletic Ass'n v. Brentwood Acad., No. 06-427

(Nov. 29, 2006) (“The MHSAA’s primary purpose ... is .. . to

promote a level playing field”) (quoting Mich. High School

Athletic Ass'n Handbook): Minn. State High School League.

http://www.mshsl.org/mshsl/aboutmshsl.asp?page=1 (last visited

Feb. 19, 2007) (“The League exists to provide competitive.

equitable and uniform opportunities for high school students.”); Or.

School Activities Ass’n, 2006-2007 Handbook. Mission Statement

(“The OSAA will work to . . . provide equitable participation

opportunities”). available at http://www.osaa.org/publications (last

visited Feb. 19, 2007); National Federation of State High School

Ass'ns, Mission Statement, http://www.enths.org/web/

2006/09 mission statement.aspx (last visited Feb. 19, 2007).

18

teamwork, discipline, and integrity. It is therefore imperative

that educators have the flexibility to structure rules of play to

attract as many students as possible to high school sports and

to protect them once they decide to play.

To safeguard the essentially educational — rather than

athletic — purpose of high school, courts have recognized that

schools can condition students’ participation in interscholastic

sports on carrying a full courseload, passing a minimum

number of classes, and satisfying mandatory attendance

policies.'' They have also recognized that athletic leagues

should be permitted to impose regulations, on member

schools as well as students, designed to encourage students to

choose the school they attend based primarily on its academic

offerings rather than its sports program. Every state athletic

association in the country has some version of an anti-transfer

rule that bars students who switch schools from participating

in interscholastic competition for a designated period.'’ These

'' See, e.g., Moreland v. W. Pa. Interscholastic Athletic

League, 572 F.2d 121 (3d Cir. 1978) (barring students with

excessive absences); Angstadt ex rel. Angstadt v. Midd-West Sch.

Dist., 286 F. Supp. 2d 436 (M.D. Pa. 2003) (barring students who

fail to meet academic requirements); Stone v. Kan. State High Sch.

Activities Ass'n, 761 P.2d 1255 (Kan. Ct. App. 1988) (barring

students who fail courses from regaining cligibility to participate in

interscholastic sports by completing coursework after the end of the

semester).

"See eg. Cal. Interscholastic Federation, 2006-2007

Constitution and Bylaws, art. XX. § 214 (barring. for one vear.

students who transfer to another school from varsity competition in

a sport they have played in the past year), available at

http://www.cifstate.org (last visited Feb. 19, 2007); Mich. High

School Athletic Ass'n, Your High School Eligibility: Guide for

Student-Athletes (barring students who transfer for athletic reasons

from interscholastic competition for two semesters), available at

http://www.imbsaa.com/resources/cligibility._pdf (last visited Feb.

19, 2007), NJ. State Interscholastic Athletic Assn, 2005-2006

Constitution, Bylaws, and Rules, and Regulations, art. V, § 4.K(2)

19

rules seek to shield impressionable young people and

sometimes unsophisticated parents from the invidious

suggestion that athletics, not academics, should be a student’s

highest priority. Such rules fit hand-in-glove with other

restrictions on recruitment, and they have consistently been

upheld against constitutional challenges."

Courts have also consistently upheld other rules designed

to ensure a level playing field because such rules promote

student safety and broad participation in interscholastic

athletics. For example, consider eligibility rules prescribing

age cut-offs for participation in high school sports.'* It would

be not only demoralizing but dangerous for thirteen-year-old

freshmen to compete against twenty-year-old seniors. For the

(barring varsity athletes who transfer to another school from

interscholastic competition for at least 30 days). available at

http://www.njsiaa.org/references/0506eligibilrules.pdf (last visited

Feb. 19, 2007).

'* See, e.g., In re United States ex rel. Mo. State High Sch.

Activities Ass'n, 682 F.2d 147, 151 (8th Cir. 1982) (upholding

transfer rule challenged by private school athletic league, noting

that “federal courts have uniformly upheld comparable rules

governing transfers against challenges based on both the due

process and equal protection clauses,” and collecting cases); Walsh

v. La. High Sch. Athletic Ass'n, 616 F.2d 152 (Sth Cir. 1980)

(upholding transfer rule challenged by students of parochial school

and their parents); Denis J. O'Connell High Sch. v. Va. High Sch.

League 581 F.2d 81, 87 (4th Cir. 1978) (upholding exclusion of

parochial high school from state athletic league because

participation of schools lacking attendance zones would make

enforcement of transfer rule impossible): Robbins v. Ind. High Sch.

Athletic Ass'n, 941 F. Supp. 786 (S.D. Ind. 1996): Ind. High Sch.

Athletic Ass'n v. Carlherg, 694 N.E.2d 222 (Ind. 1998); Chahert v.

La. High Sch. Athletic Ass‘n, 312 So.2d 343 (La. Ct. App. 1975).

' See. e.g, Baisden v. WO Va Secondary Sch. Activities

Comm'n, 568 S.E.2d 32 (W. Va 2002) (recognizing that age

eligibility rules serve important safety goals that trump even a

claim under state disability law by an overage student).

20

same reason, courts have upheld rules requiring schools to

compete only against other schools of a similar size. If large

schools, whose student populations give them a better chance

of fielding teams comprised entirely of tall, strong, and

developed players, were pitted against small schools, the

number of mismatches would rise.

Restrictions on recruiting itself further the same

important interests served by these other rules — a major

reason why they are actively enforced by high school athletic

associations.'’ Anti-recruiting rules seek to prevent students

from subordinating their academic welfare to their athletic

commitments. Like transfer rules, rules that ban or limit

contact between coaches and students enrolled elsewhere are

simply another method of discouraging students from

choosing the school with the winningest football team, rather

than the school that will best prepare a student for higher

'> See, e.g., Tania Ganguli, FHSAA Crackdown Continues; A

2nd Girls Basketball Power Is Hammered for Violating Association

Rules, Orlando Sentinel, Jan. 31, 2007 at C9 (Florida High School

Athletic Association stripped private school of playoff eligibility

for two years and imposed a $5000 fine after three players

transferred to the school when it hired the coach from their prior

school); Dan McCarney & Burt Henry, League Drops Cornerstone

Christian High School, San Antonio Express-News, Sept. 14, 2006

at 5B (Texas Association of Private and Parochial Schools expelled

a member school for improperly recruiting basketball players with

offers of room and board after previously recruiting five players

from Mexico, including a future National Basketball Association

forward): Christine Willmsen & Michael Ko, Chief Sealth Stripped

of State Titles, Seattle Times, July 26, 2006 at Al (Washington

Interscholastic Activities Association stripped public high school of

two state championships after finding that the coach of the girls’

basketball team had lured three students to the school with

promises of starting positions and college scholarships and

provided fake lease agreements to their parents so that they could

enroll without moving from the suburbs).

21

education or the work force.'® It would be perverse if officials

could forbid students from participating after an improper

transfer, but could not penalize the schools encouraging those

very transfers. At the very least, organizations such as

TSSAA are entitled to deference in determining that

significant educational interests justify limits on recruiting

speech.

Recruiting restrictions can also reduce the risk of

injury. By preventing any one school from amassing a

disproportionately large number of big, fast, and skillful

athletes, recruiting restrictions reduce the number of

mismatched games between mismatched bodies.

Finally, consider the dispiriting effect if schools that

recruit across local, state, and even national borders

consistently defeat other league participants who are limited

to enrolling students from a local neighborhood (as is often

the case with public schools). Students at the public schools

whose teams consistently lose may become less likely to

participate in sports.’’ While part of the value of sports is the

rough lesson that sometimes hard work does not translate into

a.victory on the scoreboard, it is not one that educators can

© See Denis J. O'Connell High Sch., 581 F.2d at 86

(observing that the purposes of transfer rules and anti-recruiting

rules are “basically the same[:] to deter those who would pressure a

student to transfer and to deter the student from succumbing to such

pressures by preventing him from becoming immediately eligible to

compete at his new school”).

"Cf Burrows v. Ohio High Sch. Athletic Ass'n, 891 F.2d 122,

124 (6th Cir. 1989) (upholding rule designed to “prevent unfair

development of “power squads,” or teams that practice together

year-round, by barring participation in interscholastic athletics by

students who play for independent sports teams): Alerding v. Ohio

High Sch. Athletic Ass'n, 779 F.2d 315 (6th Cir. 1985) (upholding

rule limiting participation in interscholastic athletics to. state

residents to prevent private schools located near state border trom

gaining an unfair advantage by recruiting out-of-state students).

22

persuade students to learn if they are already convinced that

hard work will never pay off. And if uncontrolled recruiting

signals to students that winning is more important than

participating and participating is only for the preternaturally

talented, then the shy, the clumsy, and the self-doubting will

Stay away from sports. Unless educators can enforce the rules

that maintain “competitive equity,” including anti-recruiting

rules, they will lose the ability to influence a large number of

students on the field - some of whom they may already have

difficulty reaching in the classroom.

IV. Educational Authorities Such As TSSAA Are

Entitled To Particular Deference In Enforcing Rules

That Lie Within Their Educational Mission.

In Brentwood I, this Court held that TSSAA was a state

actor because public school officials “overwhelmingly

perform all but the purely ministerial acts by which the

Association . . . functions” and because the State Board of

Education authorizes TSSAA to administer high school

athletics in its stead. 531 U.S. at 300, 301. Petitioners are

asking this Court to overturn its holding of Brentwood 1.

NSBA takes no position on that question. But as long as

TSSAA and other public-private interscholastic athletic

leagues are considered state actors because of their

entwinement with state educational authorities, courts should

treat them as educators as well. And as an educator, TSSAA

is entitled to the great deference that federal courts

traditionally allow state and local school authorities in setting

education policies and priorities, a deference not accorded it

by the court of appeals.

A. Under Brentwood I, TSSAA And _ Similar

Bodies In Which Public Schools Participate Are

Education Policymakers.

TSSAA fulfills two complementary roles. As this Court

found earlier, TSSAA implements the goals of public schools

with regard to high school sports, see Brennvood 1, 531 U.S.

7 23

at 291, 299-300, and it acts in lieu of the Tennessee State

Board of Education in administering interscholastic

competition, id. at 291, 300-02. In both roles, TSSAA acts as

an educator and an education policymaker. Furthermore,

TSSAA oversees secondary school athletics, an activity this

Court has recognized as an “integral part” of education. See

id. at 299. Thus, TSSAA should be treated as an educator.

In coordinating interscholastic athletics, TSSAA operates

well within the traditional realm of educators. This Court has

previously recognized that the scope of public education is

broader than what is taught in the classroom. Indeed,

education includes many school-sponsored but non-curricular

activities that “members of the public might reasonably

perceive to bear the imprimatur of the school.” Hazelwood

Sch. Dist. v. Kuhimeier, 484 U.S. 260, 271 (1988). This Court

reasoned that “[t]hese activities may fairly be characterized as

part of the school curriculum, whether or not they occur in a

traditional classroom setting,” because they are “supervised

by faculty members and designed to impart particular

knowledge or skills to student participants and audiences.” /d.”

As we have already explained, the high schools of Tennessee

— and indeed, high schools across the country — find

competitive sports useful as a means to teach students

important skills; TSSAA, in overseeing high school athletics,

acts as an educator setting policy for the students of

Tennessee.

B. As An Educator, TSSAA Deserves Deference In

Its Administration Of Interscholastic Athletics

This Court has long recognized that “[b]y and large,

public education in our Nation is committed to the control of

state and local authorities.” Goss v. Lopez. 419 U.S. 565, 578

(1975) (internal quotations omitted). When deferring to state

and local authorities in the realm of education, this Court has

relied on two parallel lines of reasoning. First, principles of

federalism favor local control of education. Second, unlike

courts, educators have the professional qualifications

24

necessary to determine how best to pursue substantial

educational interests.

The principle of local control over educational decisions

is ingrained in our nation’s history. “No single tradition in

public education is more deeply rooted than local control over

the operation of schools; local autonomy has long been

thought essential both to the maintenance of community

concern and support for public schools and to quality of the

educational process.” Milliken v. Bradley, 418 U.S. 717, 741-

42 (1974). Local control of education “affords citizens an

opportunity to participate in decision-making, permits the

structuring of school programs to fit local needs, and

encourages ‘experimentation, innovation, and a_ healthy

competition for educational excellence.” /d. at 742 (quoting

San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 50

(1973)). Thus local control is both “vital to continued public

support of the schools” and is “of overriding importance from

an educational standpoint as well.” Rodriguez, 411 U.S. at 49

(internal quotations omitted).

This Court has also recognized that educators, not courts,

have the competence to best determine educational policies

and priorities. States and school officials possess

“comprehensive authority” when they move to “prescribe and

control conduct in the schools.” 7inker v. Des Moines Indep.

Community Sch. Dist., 393 U.S. 503, 507 (1969). Permitting

federal court challenges to this school authority would

“compel[] the teachers, parents, and elected school officials to

surrender contro] of the American public school system” to

those who would sue in federal court. a result this Court has

expressly disclaimed. Bethel Sch. Dist. No. 3 v. Fraser, 478

U.S. 675, 686 (1986) (citation omitted).

Public education acts as “an ‘assimilative force’ by

which diverse and conflicting elements in our society are

brought together on a broad but common ground.” Ambach vy.

Norwick, 441 U.S. 68, 77 (1979) (citations omitted). This can

be true for a wide variety of extracurricular activities

25

sponsored by schools. Athletic events, artistic performances,

and service learning can facilitate cooperation among students

from diverse backgrounds and bring together the larger

community as well.

These admirable goals would be undermined if this Court

were to affirm the court of appeals’ approach. That court’s

willingness to assess for itself the importance of goals such as

competitive balance is likely to produce a proliferation of

lawsuits challenging the decisions of educational authorities.

As this Court has recognized in its qualified immunity

jurisprudence, there is a real danger that excessive litigation

could “deter [officials’] willingness to execute [their] office

with the decisiveness and the judgment required by the public

good.” Butz v. Economou, 438 U.S. 478, 497 (1978) (internal

quotations omitted). It is for this reason that this Court, in

New Jersey v. T.L.O., crafted a reasonableness standard

requiring that school officials simply exercise “common

sense” before searching a student for drug paraphernalia so as

to avoid “unduly burden[ing] the efforts of school authorities

to maintain order in their schools.” 469 U.S. 325, 342-43

(1985). Such deference to educational judgment ensures that

educators and not litigants maintain control of public

education.

Further, this Court has consistently held that federal

courts are ill-suited to intervene: in the day-to-day operations

of public schools. For example, in Hazelwood this Court held

that “the determination of what manner of speech in the

classroom or in school assembly is inappropriate properly

rests with the school board, rather than with the federal

courts.” 484 U.S. at 267 (internal quotation marks omitted):

see also Fraser, 478 U.S. at 683. These cases reflect this

Court's consistent recognition that educational judgments

properly rest with educational authorities.

If this Court were to turn its back on these longstanding

principles to adopt the Sixth Circuit's reasoning, the

consequences for public education would be severe. First,

26

public leagues like TSSAA might choose to exclude private

schools altogether rather than face repeated First Amendment

challenges to their policies — a result that could harm both

public and private school students who would no longer

compete against as diverse a group of other schools. Second,

parents and students could try to extend the Sixth Circuit’s

reasoning by bringing constitutional challenges to a range of

other school policies and decisions. For instance, students

could challenge intra-school rules limiting participation in

athletics, other extracurricular activities, or even curricular

activities as violating their rights to free association or free

expression. If Brentwood can challenge the terms of its

voluntary contract with TSSAA, students and parents are™

likely to assert that the non-contractual relationship between

citizens and school authorities provides even less legal

protection for educational decisions.

If the Sixth Circuit’s fact-sensitive intermediate scrutiny

is applied in such contexts, then litigation against educational

authorities will be even more protracted than it already is. The

litigation will be costly even if the school boards ultimately

prevail. Fear of such litigation will paralyze school authorities

and hamper their ability to educate the nation’s children

efficiently and effectively. Moreover, because challenges to

school rules will satisfy the requirements of Monell v.

Department of Social Services, 436 U.S. 658 (1978), plaintiffs

may very well obtain damages (as well as injunctive relief)

even in cases where school districts acted reasonably only to

be second-guessed by federal courts. This Court's

jurisprudence has long recognized that educators should

receive special deference in their policy decisions precisely to

avoid the second-guessing and gridlock in public education

that adoption of the Sixth Circuit’s rule would create. Under

that tradition, TSSAA’s recruiting rule is entitled to deference

here.

27

CONCLUSION

For the foregoing reasons as well as those in petitioner’s

brief, the judgment should be reversed.

Respectfully submitted,

Amy Howe Pamela S. Karlan

Kevin K. Russell (Counsel of Record)

Howe & RUSSELL, P.C. Jeffrey L.. Fisher

4607 Asbury Pl., NW STANFORD LAW SCHOOL

Washington, DC 20016 SUPREME COURT

LITIGATION CLINIC

Thomas C. Goldstein 559 Nathan Abbott Way

AKIN, Gump, STRAUSS, HAUER — Stanford, CA 94305

& FELD, LLC (650) 725-4851

1333 New Hampshire Ave. NW

Washington, D.C. 20036 Francisco M. Negron, Jr.

NATIONAL SCHOOL

BOARDS ASSOCIATION

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Alexandria, VA 22314

February 20, 2007