# 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%3A24

## Record

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

## Text

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
1680 Duke Street
Alexandria, VA 22314

February 20, 2007

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0298%3A24. Public record. Not legal advice.