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

penne ee

nena naa

IN THE

Supreme Court of the United States

TENNESSEE SECONDARY SCHOOL ATHLETIC ASSOCIATION ,

Petitioner,

Vv.

=~ th

en BRENTwooo ACADEMY,

ie Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF OF AMICI CURIAE

NATIONAL WOMEN’S LAW CENTER ET AL.

IN SUPPORT OF RESPONDENT

MARCIA D. GREENBERGER VIRGINIA A. SEITZ*

JOCELYN F. SAMUELS KIMBERLE E. DoDD

DINA R. LASSOW SIDLEY AUSTIN LLP

NATIONAL WOMEN’S LAW 1501 K Street, N.W.

CENTER Washington. D.C. 20005

11 DuPont Circle. N.W. (202) 736-8000

Suite 800

Washington, D.C. 20036

(202) 588-5180

Counsel for Amici Curiae

March 26, 2007 * Counsel of Record

ep EP PES SE ANSE

WiLSON-EPES PRINTING CO., INC. — (202) 789-0096 -— WASHINGTON, D.C. 20002

|

‘4 7 f* ? ; a Us

+ \ 7 MAR 2b 2007

No. 06- 427 OFFICE OF THE CLERK

TABLE OF CONTENTS

INTRODUCTION AND SUMMARY OF ARGU-

I.

II.

BRENTWOOD I IS CORRECT AND SHOULD

NOT BE OVERRULED ......cereccovocccccseccossovsssnseseess

A. Brentwood I Incorporates And Adopts Past

Be eT I cstiiricccntnicstwinccsnnnauniiinttnnentens

B. Brentwood I’s Standard Is Workable..................

C. Bremtwoodd 1 Ig Correct ...0.0.ccccccsccccccovccscsescccccesess

RECOGNIZING STATE ATHLETIC ASSOCI-

ATIONS AS STATE ACTORS IS CRITICAL

TO ENSURING EQUAL PROTECTION OF

Re a Rictrateareieicicttcictinttcinsitnctincmnniimmneie

A. High School Athletic Associations, As State

Actors, Must Not Deny Equal Protection...........

B. Participating In Athletics Has Far-Reaching

SiTTnITETTi siecendetiicieiieinntenidiaedusdatehsdundadanttadiuipiaiimishdciniamataitia

Sv cincintniatencessttznaminaiseserencevessenetenionntannscinete

(1)

TABLE OF AUTHORITIES

CASES Page

Adarand Constructors, Inc. v. Pena, 515 U.S. 200

TITTITI ciscisiiciillagichmennectaapacesicabansibimnsididciaiteiialinsbinni 6

Agostini v. Felton, 521 U.S. 203 (1997) ......:.ccceccee 5

American Mfrs. Mut. Ins. Co. v. Sullivan, 526

SEs HE IIIT ccinsaseinninnnetanddaiateitmunpnaieeidissipmaiinimentaes 2

Arizona v. Rumsey, 467 U.S. 203 (1984) ................ ,

Bates v. Northwestern Human Servs., Inc., 466 F.

Supp. 2d 69 (D.D.C. 2006) .........c:.ceeeeeeeteeeeeenees «14

Benn v. Universal Health Sys., Inc., 371 F.3d 165

II, So rine escetcliesiucecetdieaadediain —

Bevan v. Scott, 2005 WL 2219433 (M.D. Fila.

Bs Bes a ittanesinssticcnieconssaniiniinaieunenietiaimnian 15, 16

Blum v. Yeretsky, 457 U.S. 991 (1982) 0... 6

Brenden v. Independent Sch. Dist. 742, 477 F.2d

PIII: SEIU cinciiiesinintenedinsinninacémepennatingee 19, 20

Brentwood Acad. v. Tennessee Secondary Sch.

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

City of Cleburne v. Cleburne Living Ctr., Inc.,

I icisssiincissiiniciseciiasitiiniaigitinienidaiiahiaasaiaie 18

Cohane v. NCAA ex rel. Brand, 2007 WL 247710

an SON ce ANI TS susschdeniiaheibaibabinsdandaiiabinidatniatadbasaen 7

Cohen v. Brown Univ., 991 F.2d 888 (1st Cir.

Diallo iene lik aad alii 23

Communities for Equity v. Michigan High Sch.

Athletic Ass'n, 459 F.3d 676 (6th Cir. 2006),

petition for cert. filed, 75 U.S.L.W. 3403 (U.S.

Jan. 29, 2007) (No. 06-1038)... ceceeseeeeees 15

Conner v. Salina Reg'l Health Ctr., Inc., 56 F.

App’x 898 (10th Cir. 2003) ..0........ cee eeeeeeeeeeeees 8, 15

Crissman v. Dover Downs Entm't, Inc., 289 F.3d

es Me aiciiniesssnieniveciieiiitanaiteimitcidiheniniuipain 12, 15

Curto v. Smith, 248 F. Supp. 2d 132 (N.D.N-Y.

2003), aff'd, 93 F. App’x 332 (2d Cir. 2004) .... 14, 16

ill

TABLE OF AUTHORITIES — continued

Page

Daniels v. Retired Senior Volunteer Program,

2006 WL 783438 (S.D. Ohio Mar. 27, 2006)...... 15

Daubert v. Merrell Dow Pharms., Inc., 509 U.S.

Pe nicsinicctiintipteianiunieessinieveniisiiinaseiiienabsiniasiis 4, 16

Doe v. Harrison, M.D., 254 F. Supp. 2d 338

SG Te x SE icaeiowisiishceiidineiisadenicadiliicinpepiccisiciatisia ee

eBay v. Merck Exch., L.L.C., 126 S. Ct. 1837

TIE cosinssedibsinnvataisninesibnnienbtinipenedimimaaiiiesiannioniens 4, 16

Evans v. Newton, 382 U.S. 296 (1966) ..............000+. 7,9

Framsted vy. Municipal Ambulance Serv., Inc.,

347 F. Supp. 2d 638 (W.D. Wis. 2004)............... 15S

Griffin High Sch. v. Illinois High Sch. Ass'n, 822

fg nee 10

Gross v. Fond Du Lac County Agric. Soc'y, Inc., ~

2005 U.S. Dist. LEXIS 19537 (E.D. Wis. Sept.

ae iasiteiherieeiseaiiecnieiianitiampenianiaihcnbenimidiininitiamiaguieeteia 12, 15

Hamlin ex rel. Hamlin v. City of Peekskill Bd. of

Educ., 377 F. Supp. 2d 379 (S.D.N.Y. 2005).....> 14

Hauschild v. Nielsen, 325 F. Supp. 2d 995 (D.

Ne, I saisicsatssbciieisestiadliehsedtientinaiibinindimitedaiiniadaiie 15

Horvath v. Westport Library Ass'n, 362 F.3d 147

I Ti sshesiisailichadaaibiiainaiehislaaiainintinaneiiannbieniasiiie 14

Hughes v. Region VII Area Agency on Aging, 423

F. Supp. 2d 708 (E.D. Mich. 2006)...............000 15

Jackson v. Metropolitan Edison Co., 419 U.S.

TEEN ididaiebicsisidananisedidineassieinnatdnesiiiadiaieseimaneiipion 12

Jenkins v. Area Coop. Educ. Servs., 248 F. Supp.

2d 117 (D. Conn. 2003), modified on other

grounds, 2004 WL 413267 (D. Conn. Feb. 25,

STITT sikh dhieiaieiaaniiiasotiiaiaeasanialanineaiiia 8, 16

Johnson v. Rodrigues (Orozco), 293 F.3d 1196

ee Nts SII eeihisicesncieciediaieneneenniciicdentitiemmsiunpipnnens 15

Jornigan v. New Mexico Mut. Cas. Co., 2004 WL

3426437 (D.N.M. Apr. 19, 2004) .....0....0 ee 15

iv

TABLE OF AUTHORITIES -— continued

Page

Keeling v. Schaefer, 181 F. Supp. 2d 1206 (D.

SI TIT ccna aehhdtedinnsbngsiaecanidiaaminateni 8, 14, 15

Kirtley v. Rainey, 326 F.3d 1088 (9th Cir. 2003)..... 12

Lebron v. National R.R. Passenger Corp., 513

Be EE ccnccinsiidconintnannbiqnsenrstindiniiceninianiaseten 3,9

Leshko v. Servis, 423 F.3d 337 (3d Cir. 2005)........ 11

Liu v. SMU Sch. of Law, 2003 WL 21435738

CN.D. Tek. FEM 16, ZOGS) ....cccccccsescccccessccssccccsesees 14

Logiodice v. Trustees of Me. Cent. Inst., 296 F.3d

RE: SE scntciicslicisbiieanninsisccenséudelibianeietiiieien 14

Loren v. Sasser, 309 F.3d 1296 (11th Cir. 2002)... 15

Louisiana High Sch. Athletic Ass'n v. St. Augus-

tine High Sch., 396 F.2d 224 (Sth Cir. 1968)....... 20

Lugar v. Edmondson Oil Co., 457 U.S. 922

SUE ctacsaicceeiabiaiieaiiclad sblbsabainiasaiauabaeaibiciiniadids 1, 2, 6,17

Marvin v. North Cent. Iowa Mental Health Crtr.,

Inc., 2004 WL 2075469 (N.D. Iowa Sept. 17,

TREES eee en eter eo NEE ES 8, 15

McCarthy v. Middle Tenn. Elec. Membership

Corp., 466 F.3d 399 (6th Cir. 2006) ...............004. 15

McGuire v. Reilly, 271 F. Supp. 2d 335 (D. Mass.

2003), aff'd, 386 F.3d 45 (Ist Cir. 2004)............. 14

McNeil v. Wisconsin, 501 U.S. 171 (1991) .......00.... 13

Mentavios vy. Anderson, 249 F.3d 301 (4th Cir.

ATER Seer Oo a Oe a eT 14

Mississippi Univ. for Women v. Hogan, 458 U.S.

PN ciieitshicsiiaiiasi tied iniclchiandinanihipteaniingeennteaens 19

Mitchell v. St. Elizabeth Hosp., 119 F. App’x |

ESSERE Serra aes eee 15

Moreland v. Western Pa. Interscholastic Athletic

League, 572 F.2d 121 (3rd Cir. 1978)................. 10

Morris v. Dillard Dep't Stores, Inc., 277 F.3d 743

RRS NE ne a a 14

NCAA vy. Tarkanian, 488 U.S. 179 (1988)... 3,9

Vv

TABLE OF AUTHORITIES — continued

Page

Oklahoma High Sch. Athletic Ass'n v. Bray, 321

Fe BOP CRG GER. FEB D ceveccsescesvcmnccusesensencsssesons 10

Payne v. Tennessee, 501 U.S. 808 (1991)............... 5,6

Pennsylvania v. Board of Dirs. of City Trusts, 353

SA, BP CPO e Prinsnccsvtesticennnionsiniiiciiammaniagiaas 8,9

Planned Parenthood of Se. Pa. v. Casey, 505 U.S.

Be ee isasovscnignetesininnineinienanieiimiiamanaa 6

Richards v. City of Lowell, 2007 WL 293583 (D.

Mass. Jan. 31, 2007) ................c.c.ecessosorsssosecesseseee 15

Richards v. Wisconsin, 520 U.S. 385 (1997) .......... 16

Rossignol v. Voorhaar, 316 F.3d 516 (4th Cir.

FEED versssssmserensiecemnemnianiiniaameiaannee 14

Sabeta v. Baptist Hosp. of Miami, Inc., 410 F.

Supp. 2d 1224 (S.D. Fla. 2005) 0.0... 13, 14

Single Moms, Inc. v. Montana Power Co., 331

Fe PO CO Ga. OD ccstesessssnsncnieesibiiniiaibaiaens 15

St. Ledger v. Area Coop. Educ. Servs., 228 F.

Supp. 2d 66 (D. Conn. 2002)... eeeeeeeeee 14

Stanley v. Gray, 2007 WL 445366 (W.D. Va.

POR. 8b, FFP vsermncnnsessesiiiiniaamiadinnaami 14, 16

Tancredi v. Metropolitan Life Ins. Co., 378 F.3d .-

ee Ge SG ccecoscsnnscinnenicisiiaiensligsaiaaaian 11,12

Tomaiolo v. Mallinoff, 281 F.3d 1 (ist Cir.

TENTED cxsvsssstsctebciinennntiniiiiaanintiniadammmaaal 14

Tool Box v. Ogden City Corp., 316 F.3d 1167

(10th Cir. 2003), vacated on other grounds on

reh'g en banc, 355 F.3d 1236 (10th Cir. 2004)... 8, 15

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

Activities Ass'n, 682 F.2d 147 (8th Cir. 1982)..... 10

United States v. Dixon, 509 U.S. 688 (1993).......... 5,6

Village of Bensenville v. FAA, 457 F.3d 52 (D.C.

UE: FIED vvcsncocsistosvinnsciscnipemansipigiaiaiiammaaaaan 8

Wall vy. South Carolina, 2006 WL 2443341

(D.S.C. Aug, 22, 2006) ...cccccccsccsssscecssssssseeesenseee 14, 16

vi

TABLE OF AUTHORITIES — continued

Page

Wang v. Blue Cross Blue Shield Ass'n, 55 F.

App’x 802 (9th Cir. 2003) 0.0... cc ececeeeeeeeseeeeees 13,15

Wickersham v. City of Columbia, 371 F. Supp. 2d

SS ENDS SI brnccnscccontsencncnensecesccscsscnsesens 15

Williams v. United States, 396 F.3d 412 (D.C.

EEL a a 14

Willis v. Town of Marshal, 293 F. Supp. 2d 608

ai cc tcintccnenttnnencanenies 12

STATUTES AND REGULATION

te Oe I CIN cccntrcsusmevenneesesscccsnsacssnnnnesces 19

Tee 19

a i Ts ceriripesnncennennscdnsnsesonemapeonns 19

a ee l

§ 2000d ef seq..........0..000+ ainiimniaenianeente 19

aces trtrrrrerinrnecctianenennenens 19

SCHOLARLY AUTHORITIES

Deborah J. Aaron et al., Physical Activity and the

Initiation of High-Risk Health Behaviors in

Adolescents, 27 Med. & Sci. in Sports &

EE AID See 26

Leslie Bernstein et al., Physical Exercise and

Reduced Risk of Breast Cancer in Young

Women, 86 J. Nat’! Cancer Inst. 1403 (1994)...... 24

T. Dodge & J. Jaccard, Participation in Athletics

and Female Sexual Risk Behavior: The

Evaluation of Four Causal Structures, \7 J. of

Adolescent Res. 42 (2002).............ccssccccccssscceeeees 25

D.A. Evans et al., Prevalence of Alzheimer's

Disease In A Community Population of Older

Persons. Higher Than Previously Reported,

262 J. Am. Med. Ass‘n 2251 (1989)..........: enebesh 24

vil

TABLE OF AUTHORITIES — continued

Richard E. Lapchick, Univ. of Cent. Fla.’s Inst.

for Diversity & Ethics in Sports, Keeping Score

When it Counts: Graduation Rates and

Diversity in Campus Leadership for the 2004

Women's Sweet 16 Teams (Mar. 2004) ...............

Alan R. Madry, Statewide School Athletic

Associations and Constitutional Liability;

Brentwood Academy v. Tennessee Secondary

School Athletic Association, 12 Marq. Sports L.

I Bi IE ventistnentccnremniiniccigacsmnisemmianmtnnamnen

H.W. Marsh, The Effects of Participation in Sport

During the Last Two Years of High School, 10

a, SF, Fe rciniecttninvnncnicnemesnentinaiacns

M.J. Melnick et al., Tobacco Use Among High

School Athletes and Nonathletes: Results of the

1997 Youth Risk Behavior Survey, 36 Adoles-

SE Fer ee rtecerisentsnattdictasienntiitmmaimannmiiee

G. Nicoloff & T.S. Schwenk, Using Exercise to

' Ward Off Depression, 9 Physician Sports Med.

ree ereitaroccenseaduseninicensenelimicaiindmmbiitaiidaieaata

R.M. Page & L.A. Tucker, Psychosocial Dis-

comfort and Exercise Frequency: An Epidemi-

ological Study of Adolescents, 29 Adolescence

Pare Tera ccscetdctemeeneniinnicntntiniaedptesiniindsumdtnnmnmminaiinds

R.R. Pate et al., Sports Participation and Health-

Related Behaviors Among U.S. Youth, 154

Archives of Pediatric & Adolescent Med. 904

Help Prevent Alzheimer's Disease?, 24 Ann.

Rev. of Pub. Health 111 (2003) ........0000000000.

Don Sabo et al., High School Athletic Partici-

pation und Adolescent Suicide: A Nationwide

Study, 40 Int'l Rev. for the Soc. of Sport 5

Page

Vill

TABLE OF AUTHORITIES — continued

| Page

Debra L Schultz, Risk, Resiliency, and Residence:

Current Research on Adolescent Girls (1991) ..... 25

D. Teegarden et al., Previous Physical Activity

- Relates To Bone Mineral Measures In Young

Women, 28 Med. & Sci. in Sports & Exercise

Ps ITTY cciscncsresiepiiinisnninniisainsihiuiiiinninsnniiieianus 24

Laurence H. Tribe, American Constitutional Law

I ite ac ceneina taletl asain 13

OTHER AUTHORITIES

Fed. Interagency Forum on Child & Family

Statistics, America’s Children in Brief: Key

National Indicators of Well-Being (2004),

available at http://childstats.gov/pubs.asp........... 24

Carol Herwig, Report Stresses Role of

Academics; High School Athetes: Winners On,

Off Field, USA Today, Aug. 16, 1989............... 22, 23

Carol Krucoff, Exercise and Breast Cancer,

Saturday Evening Post, Nov. 1995.00.00... 24

Donna A. Lopiano, Testimony Before the U.S.

Subcomm. on Consumer Affairs, Foreign

Commerce & Tourism (Oct. 18, 1995) ................ 23

Mass Mut. Fin. Group, New Nationwide Research

Finds: Successful Women Business Executives

Don't Just Talk a Good Game ... They Played

One (2002), available at http://www.mass-

mutal.com/mmfg/pdf/boardroom.pdf .................. 23

NCAA, 2006 NCAA Graduation Rates Report

(2006), available at http://web|.ncaa.org/app _

data/instAggr2006/1_ O.pdf ....... cece eeteeeeeeeeees 22

Nat’! Fed’n of State High Sch. Ass’ns, The Case

for High School Activities (2004), available at

http://nfhs.org/web/2004/01/the case for high

_school_ activitics.aspx ................::e00. 21, 22, 23, 26

ix

TABLE OF AUTHORITIES -— continued

Page

Nat’l Fed’n of State High Sch. Ass’ns, 2005-06

Participation Survey (2006), available at http://

www.nths.org/core/content/manager/uploads/

2005 _O06NFHSparticipationsurvey.pdf................ 26

Nat’! Osteoporosis Found., Fast Facts, af http://

www.nof.org/osteoporosis/diseasefacts.htm

(last visited Mar. 20, 2007) .00.......c.cccccceeeeeeeeeeeeeees 24

The President’s Council on Physical Fitness &

Sports, Physical Activity & Sports in the Lives

of Girls (Spring 1997)............:ccccccsscesereeeenes 21, 22, 25

U.S. Census Bureau, Current Population Survey

Report (Oct. 2005), available at http://www.

census.gov/population/www/socdemo/school/

i oniicicntenitaivinciinunineenntinsnnmnninen 27

U.S. Dep’t of Health & Human Servs., Physical

Activity and Health: A Report of the Surgeon

lial eet 27

The Women’s Sports Found., Health Risks and

the Teen Athlete (2000), available at http://

www.womenssportsfoundation.org/binary-data/

WSF Article/pdf pdffile/771.pdf........................ 26

The Women’s Sports Found., Her Life Depends

On It: Sport, Physical Activity and the Health

and Well-Being of American Girls (2004),

available at http://www,womenssportsfounda-

tion.org/binary-data/WSF _Article/pdf_file/990.

The Women’s Sports Found., Minorities in

Sports: The Effect of Varsity Sports Partici-

pation on the Social, Educational and Career

Mobility of Minority Students (Aug. 15, 1989).. 21, 22,

The Women’s Sports Found., Sport and Teen

Pray CI TOG vccencsccccvscesevecscsescessecsesesenes 25

STATEMENT OF INTEREST OF AMICI CURIAE'

Amici curiae, National Women’s Law Center and 21 other

organizations, are dedicated to the achievement of equality of

opportunity for ali students without discrimination based on

gender, race, national origin, or disability. Individual

descriptions of each amicus are set forth in Appendix A. All

amici have a strong interest in ensuring that the Equal

Protection Clause of the Fourteenth Amendment to the

Constitution, which mandates that no State shall “deny to any

persons within its jurisdiction the equal protection of the

laws,” continues to apply to state high school athletic

associations and other entities whose conduct is “fairly

attributable to the State.” Lugar v. Edmondson Oil Co., 457

U.S. 922, 937 (1982).

Seeking to evade constitutional standards, states and state

institutions may utilize a variety of means to maintain control

of programs such as high school athletics while appearing to

delegate authority to a separate private entity. Brentwood

Acad. v. Tennessee Secondary Sch. Athletic Ass'n, 531 U.S.

288 (2001) (“Brentwood I’), is an important component of

this Court’s state action jurisprudence which ensures that

constitutional protections will be provided when a nominally

private entity engages in actions that are “fairly attributable”

to the state. /d. at 295. This Court should reject petitioner’s

request that it revisit Brentwood I.

INTRODUCTION AND SUMMARY OF ARGUMENT

1. In Brentwood I, this Court held that the Tennessee

Secondary School Athletic Association (“TSSAA”) acts

“under color of” state law, 42 U.S.C. § 1983, and that its

actions are therefore subject to constitutional scrutiny. On

' No person or entity other than amici made a monetary contribution to

the preparation or submission of this bref. Counsel of record for both

parties have consented to the filing of this brief, and the letters of consent

have been filed with the Clerk.

2

remand, the court of appeals held that TSSAA had violated

the First Amendment and the Due Process Clause, and this

Court granted the petition for review of that decision.

TSSAA challenges the judgment. that the First Amendment

and Due Process Clause were violated on the merits, but also

asks this Court to reconsider and overrule its 2001 decision

that TSSAA is a state actor. The parties have focused on the

First Amendment and Due Process questions and address the

state actor question only briefly. Amici do not address the

underlying constitutional questions but, for numerous reasons,

strongly oppose TSSAA’s contention that Brentwood I should

be overruled.

First, TSSAA has utterly failed to demonstrate any “special

justification” for overruling Brentwood I under this Court's

stare decisis doctrine. See Arizona v. Rumsey, 467 U.S. 203,

212 (1984). TSSAA does not contend that there has been a

change in either the relevant legal framework or in this

Court’s understanding of state action principles, undermining

and thus justifying a reconsideration of Brentwood I. Instead,

TSSAA contends that Brentwood | was a “significant

departure” from established state action jurisprudence that has

proven confusing and unworkable in the lower courts.

Neither contention bears examination.

Brentwood I is wholly consistent with this Court’s

established case law addressing when a seemingly private

entity “may fairly be said to be a state actor.” American Mfrs.

Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999). Like the

state action cases that came before it, Brentwood I|

acknowledges that the state action inquiry is necessarily

highly fact dependent, and that the ultimate inquiry 1s always

whether the actions of the private party are “fairly

attributable” to the state. 531 U.S. at 295. See, e.g., Lugar,

457 U.S. at 937 (same).

The subsidiary inquiries that this Court has established to

aid lower courts in answering this fundamental question (such

as the public function, nexus, symbiotic relationship, and

3

entwinement inquiries) are just that — aids to application of

the fundamental test. Thus, far from being an “a'wupt

departure,” Brentwood I mandates the same factual inquiry

that this Court has always conducted, poses the same central

question that this Court has always asked, and seeks to serve

the same purposes that this Court has always sought to further

in applying the Constitution. This result reached in

Brentwood | is the logical outcome of this Court’s precedent

holding that when public entities control a nominally private

entity, the latter’s actions are fairly attributable to the state.

See, e.g., Lebron v. National R.R. Passenger Corp., 513 U.S.

374 (4995). This point is illustrated by the fact that prior to

the Sixth Circuit’s decision that underlay Brentwood I, every

court of appeals to consider the question had found state

athletic associations to be acting under color of state law, and

that dicta from this Court strongly supported that outcome.

See NCAA v. Tarkanian, 488 U.S. 179, 193 n.13 (1988).

Second, Brentwood I has neither confused the lower courts

nor set an “unworkable” standard. To the contrary, lower

courts in every circuit routinely apply Brentwood / to assess

the presence of state action without expressing any confusion

or evincing any difficulty in doing so. The dicta that TSSAA

and its amicus, the National Collegiate Athletic Association

(“NCAA”), cite to demonstrate confusion and unworkability

fail to do so. When read in context, they say nothing more

than that this Court has settled on a fact-intensive inquiry for

the state action test; that this Court has suggested a number of

different ways that private parties may be deemed to act under

color of state law; and therefore that there is no bnght-line

test. Instead, courts must carefully consider all the facts in

light of tae Court’s cases and decide whether the private

party’s actions are fairly attributable to the state. This inquiry

may be time consuming and is focused on facts, but it is

neither confusing nor unworkable.

The decision in Brentwood / is correct, and the legal test for

State action is workable. Some legal standards inherently

4

require fact-intensive analysis, and federal district courts are

fully capable of applying this Court’s standard and making

the required assessment. This is no different than numerous

other areas of federal law, such as the admission of expert

testimony or assessment of entitlement to preliminary relief.

See Daubert v. Merrell Dow Pharms., Inc., 509 U.S, 579

(1993); eBay v. Merck Exch., L.L.C., 126 S. Ct. 1837 (2006).

The Ceurt’s conclusion that TSSAA is a state actor fits

comfortably within this Court’s state action precedent,

prescribes a workable factual inquiry with a clear and

understandable ultimate test (“fairly attributable”), is

consistent with the prior results in the courts of appeals, and is

correct. It should not be overruled.

2. Recognizing that state athletic associations are state

actors is important to ensuring the guarantee of equal

protection because these associations govern nearly every

aspect of interscholastic athletics throughout their states. This

outcome has not unduly burdened state athletic associations.

Indeed, the state athletic associations did not address the state

actor question in their amicus briefs. See Bnef Amicus

Curiae of Nat'l Fed. of State High Sch. Ath. Ass’ns; Brief

Amici Curiae of the Arizona Interscholastic Ass’n.

Participating in athletics has far-reaching educational,

physical, psychological and sociological benefits for all high

school students, but particularly for female and minority

students. Athletic participation expands academic opportuni-

ties and promotes academic achievement in addition to

offering important life lessons and skills. Further, sports

participation provides specific and significant physical and

mental health benefits to female and minority students.

Unfortunately, the promise of equal protection has yet to be

fully realized with respect to female and minority students’

opportunities to participate in athletics and play on a level

field, and the application of the Equal Protection Clause to

high school athletic associations is critical to progress towards

equality.

5

Thus far, states have been unable to insulate themselves

from the constitutional guarantee of equal protection by

creating the appearance of distance between the state and the

athletic associations. By finding that TSSAA is a state actor,

Brentwood I simply continued on the pathway already marked

by this Court’s state action decisions. There 1s no reason, let

alone a special justification, to overrule Brentwood I.

ARGUMENT

I. BRENTWOOD I 1S CORRECT AND SHOULD NOT

BE OVERRULED.

The doctrine of stare decisis, the rule of judicial adherence

to precedents, “is the preferred course because it promotes the

evenhanded, predictable, and consistent development of legal

principles, fosters reliance on judicial decisions, and

contributes to the actual and perceived integrity of the judicial

process.” Payne v. Tennessee, 501 U.S. 808, 827 (1991).

And, “{aJlthough adherence to precedent is not rigidly

required in constitutional cases, any departure from the

doctrine of stare decisis demands special justification.”

Rumsey, 467 U.S. 212. See also United States v. Dixon, 509

U.S. 688, 711 (1993) (“[w]Je do not lightly reconsider a

precedent”).

There is no contention here that this Court’s state action

cases following 2001 have undermined Brentwood I or that

the Court has come to see the facts and circumstances

presented in Brentwood I differently in light of the passage of

time. Cf. Agostini v. Felton, 521 U.S. 203, 235-40 (1997)

(overruling a decision because of a significant change in the

Court’s Establishment Clause law since the case at issue was

decided). Instead, TSSAA and its amicus claim to have two

types of the necessary “special justification” for overruling

Brentwood I.

First, they say that Brentwood / constitutes a “significant

departure” from established state actor jurisprudence. See

6

Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 231-32

(1995) (overruling decision as “a significant departure” from

longstanding precedent); Dixon, 509 U.S. at 704-12

(overruling a decision found to be “wholly inconsistent with

earlier Supreme Court precedent”).

ase

Second, they contend that the Court is not “‘constrained to

follow’” Brentwood I because it is “unworkable.” See Payne,

501 U.S. at 827-30 (overruling decisions because they “have

defied consistent application by the lower courts”); Planned

Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 854-61 (1992)

(noting “practical workability” inquiry).

As we now show, both contentions lack merit.

A. Brentwood I Incorporates And Adopts Past State

Actor Decisions.

TSSAA first erroneously argues that Brentwood I was a

break from this Court’s precedents and should therefore be

reconsidered by the Court. See Pet. Br. 46-50. A fair reading

of Brentwood I reveals that it in no way departs from prior

Supreme Court cases, let alone abruptly does so. Brentwood |

is simply an explication of and extrapolation from the Court’s

extant state actor jurisprudence. The fundamental inquiry to

determine whether a private party is acting under color of

state law is whether that party’s actions are “fairly attributable

to the State.” See Lugar, 457 U.S. at 937; Blum v. Yeretsky,

457 U.S. 991, 1004 (1982). Brentwood I does not depart

from this test: It applies it. Brentwood I, 531 U.S. at 295.

Similarly, as in past cases, the Court acknowledged and

adhered to the highly fact-bound nature of the state actor

inquiry to determine whether “an ostensibly private

organization or individual is to be treated... as... a State.”

Brentwood I, 531 U.S. at 295. See, e.g., Lugar, 457 U.S. at

939 (characterizing the state actor test as a “necessarily fact-

bound inquiry’). The Court stated “[ojur cases have

identified a host of facts that can bear on the fairness of”

attributing the actions of a private entity to the State.

7

Brentwood I, 531 U.S. at 296 (listing the State’s exercise of

coercive power, the State’s encouragement of certain activity,

the private party’s willful participation in joint action with the

State, the State’s control of a private party, the State’s

delegation of a public function to a private party, and the

State’s entwinement with a private party’s management and

control). As the Court summarized, “[a]midst such variety,

examples may be the best teachers.” /d.

The individual Court cases addressing the state actor

question, and the particularized inquiries that have grown up

to aid in applying the “fairly attributable” standard, are simply

tools for the lower courts to utilize in order to guide their

inquiry into the facts and their application of the “fairly

attributable” test. The Court’s entwinement analysis in

Brentwood I thus fits comfortably within the established state

actor precedent. Indeed, in describing the entwinement

examples, Brentwood I cites Evans v. Newton, 382 U.S. 296

(1966), which uses the entwinement formulation. See 531

U.S. at 296, 301 (a challenged action may be state action

“when it is ‘entwined with governmental policies’ or when

government is ‘entwined in [its] management or control’”).

TSSAA disagrees that its actions are fairly attributable to the

State, but the Brentwood IJ analysis is built on and consistent

with this Court’s established approach and authority.”

Numerous lower courts have recognized that in the arena of

state action, “‘examples may be the best teachers,’ providing

th{e] [lower] court{s] with guidance with which to address

In arguing that Brentwood I's entwinement inquiry is a virtually

limitless expansion of the state action doctrine, making any assertion that

a private party is a state actor reasonable and calling into question the

Tarkanian Court's decision that the NCAA is not a state actor, the NCAA

(at 17-19) cites Cohane v. NCAA ex rel. Brand, 2007 WL 247710 (2d Cir.

Jan. 25, 2007). This citation is misleading. In fact, the entwinement

approach ts not even at issue in Cohane, which remands for further

discovery solely on the question whether “the NCAA was a ‘willful

participant’ in joint activity with the State.” /d. at *2.

—

8

this question.” Village of Bensenville v. FAA, 457 F.3d 52, 65

n.5 (D.C. Cir. 2006) (citation omitted) (quoting Brentwood IJ,

531 U.S. at 296). See also Conner v. Salina Reg'l Health

Ctr., Inc., 56 F. App’x 898, 902 (10th Cir. 2003) (“the

Supreme Court has developed, and we have utilized, a variety

of approaches to assist in determining if state action exists”);

Jenkins v. Area Coop. Educ. Servs., 248 F. Supp. 2d 117, 123

(D. Conn. 2003) (Brentwood I does not set forth a bright-line

test for state action but rather illuminates the factors that

should be considered in resolving the issue), modified on

other grounds, 2004 WL 413267 (D. Conn. Feb. 25, 2004).

As one district court explained after describing the different

approaches to state action summarized in Brentwood I:

[w]hile described as “tests,” there is some reason to

believe these are but factors or circumstances to

consider. Recently, the Supreme Court, in Brentwood

Academy, noted that whether an ostensibly private actor

could fairly be considered a state actor is a matter of

judgment, without rigid criteria or guidance. This notion

is not a departure from prior Supreme Court cases... .

[Keeling v. Schaefer, 181 F. Supp. 2d 1206, 1228 (D.

Kan. 2001) (citation omitted) (emphasis added). |

Indeed, many lower courts treat Brentwood I as simply

clarifying this Court’s pre-existing analysis for finding state

action by an otherwise private entity. See Tool Box v. Ogden

City Corp., 316 F.3d 1167, 1176 (10th Cir. 2003), vacated on

other grounds on reh’g en banc, 355 F.3d 1236 (10th Cir.

2004); Marvin v. North Cent. lowa Mental Health Ctr. Inc.,

2004 WL 2075469, at *4 (N.D. lowa Sept. 17, 2004)

(“Brent ood... clarified the test for ‘state action.’”). |

The fundamental approach that Brentwood / takes with

respect to high school athletic associations thus reflects the

approach taken in previous cases addressing the question

whether the actions of a nominally private entity are fairly

attributable to the state. For example, in Pennsylvania v.

Board of Directors of City Trusts, 353 U.S. 230 (1957) (per

9

curiam), this Court held that a college that was built and

maintained by a private trust, but was operated and controlled

by a board of state appointees, was a state actor, and therefore

that its refusal to admit black students was “discrimination by

the State.” /d. at 231.

Likewise, in Evans, 382 U.S. at 301, this Court held that

private trustees who held title to and controlled a park for

whites only were subject to the Fourteenth Amendment. This

Court stated that the park had been controlled by the city for

years and served a public purpose (providing recreational

opportunities to the community). Therefore, the Court found

that the park did not lose its public nature when private

trustees took over its operation, stating that “[i]f the

municipality remains entwined in the management or control

of the park, it remains subject to the restraints of the

Fourteenth Amendment.” /d.

Similarly, in Lebron, this Court decided that Amtrak, an

operator of passenger trains organized under federal law to

pursue a public objective “under the direction and control of

federal governmental appointees,” 513 U.S. at 398, was a

state actor. Critical to the Court was the state’s retention of

authority to appoint a majority of the private corporation’s

directors. /d. at 400.

In light of this precedent, it is not surprising that even

before Brentwood /, this Court, in the course of finding that

the NCAA is not a state actor, had in dicta indicated that state

high school athletic associations are. See Tarkanian, 488

U.S. at 193 n.13 (‘“[t}he situation would, of course, be

different if the membership consisted entirely of institutions

located within the same State, many of them public

institutions created by the same sovereign”). The Court cited

with approval two courts of appeals decisions holding that

high school athletic associations composed primarily of

public schools are state actors. /d. (citing Clark v. Arizona

Interscholastic Ass'n, 695 F.2d-1126 (9th Cir. 1982) and

Louisiana High Sch. Athletic Ass'n v. St. Augustine High

10

Sch., 396 F.2d 224 (Sth Cir. 1968)). Indeed, all courts of

appeals to consider the question other than the Sixth Circuit

reached that conclusion. See also Griffin High Sch. v. Illinois

High Sch. Ass'n, 822 F.2d 671, 674 (7th Cir. 1987); In re

United States ex rel. Mo. State High Sch. Activities Ass'n, 682

F.2d 147, 151 (8th Cir. 1982); Moreland v. Western Pa.

Interscholastic Athletic League, 572 F.2d 121, 125 (3rd Cir.

1978); Oklahoma High Sch. Athletic Ass'n v. Bray, 321 F.2d

269, 273 (10th Cir. 1963). As this authority reveals, the

contention of amicus NCAA that Brentwood / left state

athletic associations confused (Br. 2) simply makes no sense.

After these decisions and Jarkanian, state athletic associa-

tions were fully on notice that they were state actors.

Finally, not all commentators critical of Brentwood / cited

in the NCAA’s brief (at 16) consider the case an abrupt

departure from this Court’s state actor decisions. For

example, one author states that it “would surely grossly

exaggerate the significance of Brentwood to regard it as a

watershed for the Court’s more moderate members, or as a

turning point in state action jurisprudence.” Alan R. Madry,

Statewide School Athletic Associations and Constitutional

Liability; Brentwood Academy v. Tennessee Secondary —

School Athletic Association, 12 Marq. Sports L. Rev. 365, 394

(2001). Indeed, he opines that the “notion of entwinement

that Justice Souter introduced in Brentwood is also easily

assimilated into the Rehnquist paradigms as yet another way

in which the state might be causally responsible for the acts of

a private party.” /d. (emphasis added).

In sum, Brentwood / is a straightforward articulation and-

application of pre-existing state action analysis. As such,

Brentwood /| does not constitute a departure — let alone a

significant one — from prior Supreme Court state actor

jurisprudence.

Ll

B. Brentwood I’s Standard Is Workable.

TSSAA next claims that Brentwood / is unworkable. It

argues that “[l]ower courts have been confused by Brentwood

I's new ‘entwinement’ doctrine, describing it as ‘labyrin-

thine,’ ‘nebulous,’ ‘vague,’ and a ‘freewheeling gestalt analy-

sis.” Pet. 28 (citations omitted); see also Pet. Br. 46-50.

Indeed, TSSAA claims that lower courts are confused about

how many tests there are. TSSAA is wrong again. Even the

few cases TSSAA cites do not support its claim of

unworkability, and the vast bulk of cases applying Brentwood

1 do so in a workmanlike fashion, examining the facts

presented and sometimes finding action under color of state

law and sometimes rejecting that characterization. TSSAA’s

complaint is no more than that this Court has set forth a

general test that requires a highly detailed factual inquiry.

First, TSSAA cites six cases in support of the contention

that lower courts have been confused by the entwinement

analysis of Brentwood /. In four of these six cases, the critical

dicta is not addressed to Brentwood I's entwinement inquiry.

Instead, the dicta describe the state action doctrine in general

terms, and in particular refer to the highly fact-specific nature

of the analysis. For example, in Leshko v. Servis, 423 F.3d

337 (3d Cir. 2005), the court does not express confusion

regarding Brentwood I’s entwinement analysis, but rather

notes the complexity of the state action inquiry. The court

then discusses the tests applied to private persons in

determining the presence of state action and concludes no

state action is present. This is the fuil sentence in which the

quote selected by TSSAA appears: “We weave our way in

this appeal through the Supreme Court’s /abyrinthine state

action jurisprudence.” /d. at 338 (emphasis added to portion

quoted by TSSAA). This makes clear that the court was

referring to the complexity of the jurisprudence generally, and

not to the entwinement approach.

Likewise in Tancredi v. Metropolitan Life Insurance Co.,

378 F.3d 220 (2d Cir. 2004), the court is referring to the state

12

action doctrine generally when it states that Brentwood I

“illustrates the nebulous character of the state action test.” /d.

at 230 (emphasis added). The court does discuss the

entwinement analysis in Brentwood I, but expresses: no

confusion about its application or import.”

The other two cases cited by TSSAA also do not express

either confusion about Brentwood / or any inability to apply

the decision. Indeed, contrary to NCAA’s view that

Brentwood I portends an “unrestrained expansion” of the state

action doctrine (Br. 18), both courts ultimately conclude that

the private party involved is not a state actor under Brentwood

I. In Kirtley v. Rainey, 326 F.3d 1088 (9th Cir. 2003), the

court states that the “nexus test” is “[a]rguably the most vague

of the four approaches.” /d. at 1094 (emphasis added to

portion quoted by TSSAA). Of course, the nexus test

preceded the entwinement analysis of Brentwood I. See

Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351

(1974) (reciting nexus inquiry). And in Gross v. Fond Du

Lac County Agricultural Society, Inc., 2005 U.S. Dist. LEXIS

19537 (E.D. Wis. Sept. 6, 2005), the court stated that

Brentwood | “suggests a liberal and freewheeling gestalt

analysis, eschewing bright lines for ‘normative judgments’

and counseling against ‘rigid simplicity’ in favor of fairness.”

Id. at *23 (emphasis added to portion quoted by TSSAA). Of

course, the fact intensity of the state actor analysis preceded

Brentwood | and is well established. See supra at 6-8. And,

individual inquiries such as the public function, nexus and

* See also Crissman v. Dover Downs Entm't, Inc., 289 F.3d 231, 233

(3d Cir. 2002) (en banc) (court is addressing state action generally, not

entwinement, when it notes that “/ittle is straightforward in determining

whether a private actor has acted ‘under color of state law’) (emphasis

added to portion quoted by TSSAA); Willis v. Town of Marshall, 293 F.

Supp. 2d 608, 615 (W.D.N.C. 2003) (court is referring to all state action

precedent when it states that “precedent regarding questions of state action

is anything but clear and consistent.”) (emphasis added to portion quoted

by TSSAA).

13

entwinement inquiries, guide the lower court’s discretion

rather than increasing it. In any event, eschewing a bright

line for fairness sounds like praise, rather than a cry of

unworkability.

The state action inquiry always has been fact intensive, and

criticism of it for that reason is nothing new.* This Court,

however, has determined — and not for the first time in

Brentwood | — that in this area, bright-line rules are not

appropriate, and that the facts must be examined. As this

Court has said in other contexts, “[w]je like [our legal

standards] to be ‘clear and unequivocal,” but only when they

guide sensibly.” McNeil v. Wisconsin, 501 U.S. 171, 182

(1991) (citation omitted). The lower courts are not confused

by this holding.

Second, TSSAA argues that “[ljower courts are even

confused about how many different state action tests there

are.” Pet. 28. Again, the three decisions relied on by TSSAA

fail to demonstrate any such confusion. Some courts focus on

the list of approaches recited in Brentwood /, 531 U.S. at 296,

while other courts group the approaches into more general

categories. Wang v. Blue Cross Blue Shield Ass'n, 55 F.

App’x 802 (9th Cir. 2003), is an example of the former

phenomenon. See id. at 803. The court expresses no

confusion regarding the state action inquiry; it conducts its

analysis and concludes that no state action exists “under any

relevant theories.” /d. Sabeta v. Baptist Hosp. of Miami,

Inc., 410 F. Supp. 2d 1224 (S.D. Fla. 2005), is an example of

the grouping approach. See id. at 1243-44 (grouping nexus

and joint action under a “position of interdependence”

approach). Again, the court simply concludes that “[u}nder

* See Laurence H. Tribe, American Constitutional Law § 18-1, at 1690

(2d ed. 1988) (stating prior to Brentwood / that the “Court itself has

-acknowledged the stubborn individuality of the state action cases” and that

“viewed doctrinally, the state action cases are ‘a conceptual disaster

area’”).

14

any of these tests, [the] private behavior cannot be construed

as State action.” /d. at 1244. Finally, in Keeling v. Schaefer,

181 F. Supp. 2d at 1227-28, the court again simply groups the

different approaches into more general categories. Evincing

its full understanding of the state action test, the court

correctly noted that “[w]hile described as ‘tests,’ there is

some reason to believe these are but factors or circumstances

to consider.” Jd. at 1228.

A comprehensive, rather than selective, examination of

whether the lower courts are confused about applying

Brentwood I reveals that they are not. Set forth in the note

attached to this paragraph are cases from virtually all federal

circuits decided after Brentwood / and evincing no

confusion.

> D.C. Circuit: Williams vy. United States, 396 F.3d 412 (D.C. Cir.

2005); Bates v. Northwestern Human Servs., Inc., 466 F. Supp. 2d 69

(D.D.C. 2006).

First Circuit: Logiodice v. Trustees of Me. Cent. Inst., 296 F.3d 22

(Ist Cir. 2002); Tomaiolo v. Mallinoff, 281 F.3d 1 (1st Cir. 2002);

McGuire v. Reilly, 271 F. Supp. 2d 335 (D. Mass. 2003), aff'd, 386 F.3d

45 (1st Cir. 2004).

Second Circuit: Horvath v. Westport Library Ass'n, 362 F.3d 147 (2d

Cir. 2004); Hamlin ex rel. Hamlin vy. City of Peekskill Bd. of Educ., 377 F.

Supp. 2d 379 (S.D.N.Y. 2005); Doe v. Harrison, M.D., 254 F. Supp. 2d

338 (S.D.N.Y. 2003); Curto v. Smith, 248 F. Supp. 2d 132 (N.D.NLY.

2003), aff'd, 93 F. App’x 332 (2d Cir. 2004) (table); St. Ledger v. Area

Coop. Educ. Servs., 228 F. Supp. 2d 66 (D. Conn. 2002).

Third Circuit: Benn v. Universal Health Sys., Inc., 371 F.3d 165 (3d

Cir. 2004).

Fourth Circuit: Rossignol v. Voorhaar, 316 F.3d 516 (4th Cir. 2003),

Mentavlos v. Anderson, 249 F.3d 301 (4th Cir. 2001); Stanley v. Gray,

2007 WL 445366 (W.D. Va. Feb. 11, 2007); Wall v. South Carolina, 2006

WL 2443341 (D.S.C. Aug. 22, 2006).

Fifth Circuit: Morris v. Dillard Dep't Stores, Inc., 277 F.3d 743 (Sth

Cir. 2001); Liu v. SMU Sch. of Law, 2003 WL 21435738 (N.D. Tex. June

16, 2003).

15

Moreover, as was true before Brentwood J, numerous lower

courts have recognized that the state action inquiry is

necessarily fact bound, flexible and highly circumstantial

after Brentwood I. See, e.g., Tool Box, 316 F.3d at 1177

(noting “the fact-intensive character of a state action

determination”); Conner, 56 F. App’x at 902 (requiring a

“fairly flexible approach in determining if state action

exists”); Crissman, 289 F.3d at 234-43 (“the facts are crucial”

in conducting a state action determination); Richards v. City

of Lowell, 2007 WL 293583, at *18 (D. Mass. Jan. 31, 2007)

(the “inquiry, under any of these theories, is necessarily fact-

intensive, and the ultimate conclusions regarding state action

Sixth Circuit: Communities for Equity v. Michigan High Sch. Athletic

Ass'n, 459 F.3d 676 (6th Cir. 2006), petition for cert. filed, 75 U.S.L.W.

3403 (U.S. Jan. 29, 2007) (No. 06-1038); McCarthy v. Middle Tenn. Elec.

Membership Corp., 466 F.3d 399 (6th Cir. 2006); Hughes v. Region VII

Area Agency on Aging, 423 F. Supp. 2d 708 (E.D. Mich. 2006); Daniels v.

Retired Senior Volunteer Program, 2006 WL 783438 (S.D. Ohio Mar. 27,

2006).

Seventh Circuit: Mitchell v. St. Elizabeth Hosp., 119 F. App’x | (7th

Cir. 2004); Gross, 2005 U.S. Dist. LEXIS 19537; Framsted v. Municipal

Ambulance Serv., Inc., 347 F. Supp. 2d 638 (W.D. Wis. 2004),

Eighth Circuit: Wickersham vy. City of Columbia, 371 F. Supp. 2d

1061 (W.D. Mo. 2005); Hauschild vy. Nielsen, 325 F. Supp. 2d 995 (D.

Neb. 2004); Marvin, 2004 WL 2075469.

Ninth Circuit: Single Moms, Inc. vy. Montana Power Co., 331 F.3d

743 (9th Cir. 2003); Wang, 55 F. App’x 802.

Tenth Circuit: Tool Box, 316 F.3d 1167; Conner, 56 F. App’x 898;

Johnson v. Rodrigues (Orozco), 293 F.3d 1196 (10th Cir. 2002); Jornigan

v. New Mexico Mut. Cas. Co., 2004 WL 3426437 (D.N.M. Apr. 19, 2004),

Keeling, 181 F. Supp. 2d 1206.

Eleventh Circuit: Loren v. Sasser, 309 F. 3d 1296 (11th Cir. 2002)

(per curiam); Bevan v. Scott, 2005 WL 2219433 (M.D. Fla. Sept. 13,

2005).

16

must be based on the particular facts and circumstances set

forth in the record”).°

The fact that an inquiry is flexible and requires a detailed

factual analysis does not mean it is unworkable. District

courts routinely and successfully conduct fact-bound inquiries

in deciding mixed questions of law and fact. See, e.g., eBay,

126 S.Ct. 1837; Daubert, 509 U.S. 579.’ This Court has

mandated such a detailed inquiry in the state action arena

because different factual situations present different questions

for courts seeking to determine whether a private party’s

actions can be “fairly attributed” to the state.

In sum, Brentwood | has neither confused the lower courts

hor proven unworkable. Instead, Brentwood / is routinely

applied by the federal courts in almost every circuit in

conducting and resolving state action determinations. In

reality, TSSAA is making a naked appeal to this Court to take

the exceptional step of overruling its 2001 decision without

providing the requisite special justification. TSSAA’s

disagreement with the outcome of this Court’s detailed factual

analysis is no basis for Brentwood I’s reconsideration.

° See also Stanley, 2007 WL 445366, at *5 (‘no one fact can function

aS a necessary condition across the board for finding state action; nor is

any set of circumstances absolutely sufficient’); Wall, 2006 WL

2443341, at *7 (stating that the “determination is made considering the

totality of the circumstances”); Bevan, 2005 WL 2219433, at *5

(“Supreme Court's prior decisions have ‘identified a host of facts that can

bear on the fairness of” attributing seemingly private benavior to the

State); Curto, 248 F. Supp. 2d at 138 n.9 (“Brentwood adopted a fact-

sensitive, case-by-case analysis”); Jenkins, 248 F Supp. 2d at 123

(Brentwood | does not set forth a bright-line test for state action but

illuminates the factors that should_be considered in resolving the issue).

” See also Richards v. Wisconsin, 520 U.S. 385, 394 (1997) (instructing

lower courts to conduct a fact-specific inquiry when determining whether

a no-knock entry may be warranted and rejecting the pronouncement of

any per se rule).

17

C. Brentwood I \s Correct.

As explained above, Brentwood I’s analysis is wholly

consistent with this Court’s state action precedent, and the

conclusion it reached was foreshadowed by Tarkanian and

the virtually unanimous holdings of the courts of appeals.

Our demonstration that Brentwood I was not an abrupt

departure from precedent thus also demonstrates that it was

correctly decided.

Specifically, the Court held that the “nominally private

character of the [TSSAA] is overborne by the pervasive

entwinement of public institutions and public officials in its

composition and workings, and [that] there is no substantial

reason to claim unfairness in applying constitutional

standards to it.” Brentwood I, 531 U.S. at 298. The Court

concluded that the TSSAA “ought to be charged with a public

character and judged by constitutional standards” primarily

because (i) 84% of TSSAA’s membership is composed of

public schools “represented by their officials acting in their

official capacity to provide an integral element of secondary

public schooling;” (ii) State Board members were assigned

“ex officio to serve as members of the board of control and

legislative council [of TSSAAJ];” and (iii) “the Association’s

ministerial employees [were] treated as state employees to the

extent of being eligible for membership in the state retirement

system.” /d. at 299-302. As the Court held, entwinement to

the pervasive degree it existed between TSSAA and the State

requires a conclusion of state action. /d. at 302.

Moreover, treating state athletic associations as state actors

in this factual context furthers the purposes of the state action

requirement. In defining an area of state responsibility, this

Court seeks to “preserve[] an area of individual freedom,” and

to “avoid[] imposing on the State, its agencies or officials,

responsibility for conduct for which they cannot fairly be

blamed.” Lugar, 457 U.S. at 936. But when, as here, public

schools are a voting majority of the athletic association and

control the elections to the association's governing board,

18

treating the association as a state actor does not invade an

area of individual freedom. And, where, as here, state

officials effectively make the association’s decisions, it is fair

to attribute those decisions to the State. Brentwood I's

holding was correct and should stand.

Il. RECOGNIZING STATE ATHLETIC ASSOCIA-

TIONS AS STATE ACTORS IS CRITICAL TO

ENSURING EQUAL PROTECTION OF THE

LAWS.

A. High School Athletic Associations, As State

Actors, Must Not Deny Equal Protection.

All public schools engage in state action within the

meaning of § 1983 and the Fourteenth Amendment. Public

school rules governing participation in interscholastic high

school athletics are subject to challenge under the Fourteenth

Amendment. Under Brentwood I, public schools cannot

avoid their constitutional obligations by agreeing that a state

high school athletic association will make all the rules, even if

that association includes some private schools. This makes

legal, logical and common sense.

The Equal Protection Clause of the Fourteenth Amendment

to the Constitution mandates that “no State shali ‘deny to any

person within its jurisdiction the equal protection of the laws,’

which is essentially a direction that all persons similarly

situated should be treated alike.” City of Cleburne v.

Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985). This

Court’s state action precedent, including Brentwood I, ensures

that opportunities to participate in interscholastic athletics are

provided equally without regard to sex, race or ethnicity. As

set forth infra, equal opportunity to participate in athletics ts

critically important to female and minority students due to the

far-reaching educational, sociological, physiological and

psychological benefits that result from sports participation.

As this Court stated in Brentwood /, interscholastic athletics

play an integral part in secondary public schooling. See 531

19

U.S. at 299-300. The policies and practices adopted by state

boards of education and public schools to govern

interscholastic athletic programs must comply with the Equal

Protection Clause. E.g., Brenden v. Independent Sch. Dist.

742, 477 F.2d 1292 (8th Cir. 1973) (finding that the school

could not prohibit girls from playing on boys’ tennis and

cross country teams solely on basis of sex).

In order to promote coordinated and workable systems of

state-wide interscholastic athletics, states typically designate

athletic associations to set contest rules, determine eligibility

restrictions, and promulgate uniform policies and practices

that govern nearly every aspect of interscholastic athletics

throughout the states. States may not insulate themselves

from their non-discrimination obligations by formally

separating themselves from state athletic associations while

nonetheless maintaining control." TSSAA contends that

“subjecting athletic associations to constitutional litigation

* Students may also challenge certain discriminatory practices in

interscholastic athletics of covered institutions pursuant to statutory nghts

contained in Title [X of the Education Amendments of 1972 (“Title LX”),

20 U.S.C. § 1681 et seg.; Title VI of the Civil Rights Act of 1964 (“Title

VI"), 42 U.S.C. § 2000d et seg.; and Section 504 of the Rehabilitation Act

of 1973 (“Section 504”), 29 U S.C. § 794 et seq. These statutory nor

discrimination mandates do not supplant those in the Equal Protection

Clause. In fact, these statutory nights and Constitetional rights differ in

certain respects. For example, Title IX regulations explicitly exempt

“contact sports” from certain non-discrimination requirements. Thus, a

public school would not be forced to permit a girl to try out for the boys’

basketball team under Title LX, even if the school fields no suth team for

girls. See 34 C.F.R. § 106.41(b). The female basketball player, however,

would be able to pursue a discrimination claim under the Equal Protection

Clause. By way of further example, in Mississippi University for Women

v. Hogan, 458 U.S. 718, 732-33 (1982), this Court held that the

University’s women-only admission policy violated the Equal Protection

Clause, even though the same claim was not allowed under Title LX which

explicitly exempts schools that “traditionally and continually from [their]

establishment [have] had a policy of admitting only students of one sex.”

20 U.S.C. § 1681(a)(5).

20

will do little good and plenty of harm” because these

associations cannot afford expensive litigation and such

litigation may cause the end of “voluntary public-private

interscholastic athletic competition” in the United States. Pet.

Br. 19-20, 46-50. But state athletic associations have been

subject to constitutional constraints for years without this

alleged adverse consequence. And, as noted, the amicus

briefs filed on their behalf do not address the state action

issue.

Numerous courts have recognized the importance of

ensuring that female and minority athletes receive an equal

opportunity to participate in athletics by applying the Equal

Protection Clause to state athletic associations. In Brenden,

477 F.2d at 1302-03, two Minnesota high school girls

challenged as a violation of the Equal Protection Clause the

state athletic association’s rule prohibiting girls from

participating on the boys’ tennis and cross-country skiing and

“unning teams, while the association’s member schools

provided no such teams for girls. The Eighth Circuit held that

denying girls an opportunity to participate on a school non-

contact sports team solely on the basis of sex was a denial of

equal protection. /d. In Louisiana High School Athletic Ass'n

v. St. Augustine High School, 396 F.2d 224, 226-29 (Sth Cir.

1968), African-American high school students challenged the

state athletic association’s denial of membership to a high

school whose student body was completely African-

American. The Fifth Circuit held that the athletic association

violated the students’ rights to equal protection by denying

membership to a school because of the racial composition of

its student body. /d.

Continuing to hold states accountable for the rules by

which they govern interscholastic athletics is essential. As

discussed below, sports participation is simply too important

to the educational, physical, psychological and sociological

well being of the nation’s children and young adults to allow

states to use the device of nominally independent athletic

21

associations to deny equality of opportunity to female and

minority students. .

B. Participating In Athletics Has Far-Reaching

Benefits.

Sports participation benefits all high school students, but

female and minority students who participate receive

especially substantial results.

In 1997, the President’s Council on Physical Fitness and

Sport released a report on girls’ involvement in physical

activity and sports. The report confirmed that sports and

physical activities are highly beneficial for girls, offering a

wide range of- educational, sociological, physiological, and

psychological benefits. See The President’s Council on

Physical Fitness & Sports, Physical Activity & Sports in the

Lives of Girls xiv-xv (Spring 1997) (hereinafter “President’s

Council Report’). Sports participation confers many of the

same benefits on ali minority students. See The Women’s

Sports Found., Minorities in Sports: The Effect of Varsity

Sports Participation on the Social, Educational and Career

Mobility of Minority Students 4-5 (Aug. 15, 1989) (hereinafter

“Minorities in Sports”).

First, athletic participation expands academic opportunities

and promotes academic achievement by providing boys and

girls from diverse socioeconomic, racial, and ethnic

backgrounds measurable positive educational impacts,

including improvements in self-concept, higher educational

aspirations in the senior year, improved school attendance,

increased math and science enrollment, more time spent on

homework, and higher enrollment in honors courses. See

H.W. Marsh, The Effects of Participation in Sport During the

Last Two Years of High School, 10 Soc. Sport J. 18 (1993).

Studies show that student athletes generally have higher grade

point averages, better attendance records, and fewer

disciplinary problems. See Nat’! Fed’n of State High Sch.

Ass’ns, The Case for High School Activities (2004)

22

(hereinafter “Case for High School Activities”) available at

http://www.nfths.org/web/2004/01/the_case_for_high_school_

activities.aspx. On average, female ‘athletes fare better

academically than their non-athletic counterparts. See

President's Council Report at xxiii. Young women who

participate in sports have higher grades, higher scores on

standardized tests, and are more likely to graduate from high

school and college than non-athletes. See id.; NCAA, 2006

NCAA Graduation Rates Report (2006), available at http://

web|.ncaa.org/app_ data/instAggr2006/1 O.pdf (NCAA grad-

uation rates for women athletes remain high — 71% compared

to 63% for the Division I female student body).

Athletic participation yields similar benefits for Black and

Hispanic students. Minority athletes receive higher grades,

are less likely to drop out, score higher on standardized tests,

and aspire to hold leadership positions in their communities in

greater percentages than their non-athletic counterparts. See

Minorities in Sports at 4-5; Carol Herwig, Report Stresses

Role of Academics; High School Athletes: Winners On, Off

Field, USA Today, Aug. 16, 1989, at 8D (citing Minorities in

Sports) (hereinafter “Report Stresses Role of Academics”);

see also The Case for High School Activities (finding, in a

state-wide, three-year study by the N.C. High School Athletic

Association, that athletes had higher grade point averages,

lower dropout rates, and higher high school graduation rates,

than their non-athletic peers); Richard E. Lapchick, Univ. of

Cent. Fla.’s Inst. for Diversity & Ethics in Sports, Keeping

Score When it Counts: Graduation Rates and Diversity in

Campus Leadership for the 2004 Women's Sweet 16 Teams,

(Mar. 2004) (female athletes in the national basketball tourna-

ment had exceedingly high graduation rates). Similarly,

Hispanic female athletes, especially from rural schools, are

more likely than non-athletes not only to improve their

academic standing while in high school, but also to graduate

and to attend college following high school. Minorities in

Sports at 14.

23

Second, sports offer students lifelong lessons. Playing high

school sports is a predictor of later success in life. See The

Case for High School Activities; see also Mass. Mut. Fin.

Group, New Nationwide Research Finds: Successful Women

Business Executives Don’t Just Talk a Good Game... They

Played One (2002), available at http://www.massmutual.com/

mmfg/pdf/boardroom.pdf (more than four out of five

executive businesswomen (81%) played sports growing up ~

and the vast majority reported that the lessons they learned on

the playing field contributed to their success in business).

Female and minority athletes are more likely to aspire to hold

leadership positions later in life than non-athletes. See

Minorities in Sports at 4; Report Stresses Role of Academics.

In addition, female athletes develop a range of skills through

participation in athletics, all of which are crucial to success in

employment and adult life generally. Participation in

interscholastic athletics offers young women “an opportunity

to e[valjuate leadership skills, learn teamwork, build self-

confidence, and perfect self-discipline.” Cohen v. Brown

Univ., 991 F.2d 888, 891 (Ist Cir. 1993).

Third, regular and mgorous physical exercise provides

enormous physical and mental health benefits to women and

minorities. Sports participation decreases a young woman’s

chance of developing heart disease, osteoporosis, and other

health related problems. See The Women’s Sports Found.,

Her Life Depends On It: Sport, Physical Activity and the

Health and Well-Being of American Girls 8-12 (2004),

available at http://www .womenssportsfoundation.org/binary-

data/WSF_Article/pdf_file/990.pdf (hereinafter “Her Life

Depends On It’) (a comprehensive survey of scientific

research on girls’ health, sports participation, and physical

activity); Donna A. Lopiano, Testimony Before the U.S.

Subcomm. on Consumer Affairs, Foreign Commerce and

Tourism 3 (Oct. 18, 1995). A 1998 study found that former

college athletes had a 35% lower chance of developing breast

cancer and a 61% lower chance of developing reproductive

24

cancer compared to non-athletes. See Carol Krucoff,

Exercise and Breast Cancer, Saturday Evening Post, Nov.

1995, at 22.2 Moreover, in 1970, only one out of every

twenty-one girls was obese or overweight; today, even though

more girls are playing sports, that figure is an alarming one in

six. See Fed. Interagency Forum on Child & Family Statis-

tics, America’s Children in Brief: Key National Indicators of

Well-Being 8-9 (2004), available at http://childstats.gov/

pubs.asp. The available research demonstrates that more

physical activity and sports participation are fundamental

solutions for many of the serious health and social! problems

faced by our nation’s young girls. See Her Life Depends On

It at 38.'°

In terms of emotional and mental health, women who

participate in sports have higher self-esteem, a lower inci-

dence of depression, a more positive body image, and greater

* Research also demonstrates that women who participate in regular

physical exercise during their reproductive years have up to a 60%

reduced risk of breast cancer. See Leslie Bernstein et al., Physical

Exercise and Reduced Risk of Breast Cancer in Young Women, 86 J. Nat’!

Cancer Inst. 1403 (1994) (reporting that one to three hours of exercise per

week over a women’s reproductive lifetime may bring a 20-30% reduction

in the risk of breast cancer, and four or more hours of exercise per week

may reduce the same risk by almost 60%).

'° Similarly, osteoporosis afflicts 10 million Americans, 80% of whom

are women. See Nat’! Osteoporosis Found., Fast Facts, at http://www.nof.

org/osteoporosis/diseasefacts.htm (last viewed Mar. 20, 2007). Physical

activity and sports participation in the schooi-age years have been shown

to increase bone density. D. Teegarden et al., Previous Physical Activity

Relates To Bone Mineral Measures In Young Women, 28 Med. & Sci. in

Sports & Exercise 105 (Jan. 1996). Likewise, Alzheimer’s disease mainly

affects the oldest people in the United States, who are disproportionately

women. D.A. Evans et al., Prevalence of Alzheimer's Disease In A

Community Population of Older Persons Higher Than Previously

Reported. 262 J. Am. Med. Ass‘n, 2251 (1989). Higher levels of physical

activity earlier in lite may reduce the risk for Alzheimer’s later in life. See

Sandra K. Pope ct al., Will a Healthy Lifestyle Help Prevent Alzheimer’s

Disease’, 24 Ann. Rev. of Pub. Health 111 (2003).

25

confidence and pride in their physical and social skills. See

Debra L. Schultz, Risk, Resiliency, and Residence: Current

Research on Adolescent Girls (1991) (citing Colton & Gore,

Gender Differences in Stress and Coping Behaviors Among

Late Adolescents (1991)); President's Council Report at 20-

23, 25-26, and 28-30. Female high school athletes show a

markedly lower incidence of considering or planning a sui-

cide attempt, and women and girls who participate in regular

exercise suffer lower rates of depression. See Don Sabo et

al., High School Athletic Participation and Adolescent

Suicide: A Nationwide Study, 40 Int’! Rev. for the Soc. of

Sport 5 (2004) (on file with the Women’s Sports Foundation);

G. Nicoloff & T.S. Schwenk, Using Exercise to Ward Off

Depression, 9 Physician Sports Med. 23, 44-58 (1995); R.M.

Page & L.A. Tucker, Psychosocial Discomfort and Exercise

Frequency: An Epidemiological Study of Adolescents, 29

Adolescence 113, 183-91 (1994) (physically active adoles-

cents tend to feel less lonely, shy, and hopeless than their less

physically active peers). The same correlation appears to be

true for minority female athletes. See Minorities in Sports at

7.

Sports participation also helps teenagers successfully cope

with the physical and mental health challenges and nsks

associated with adolescence. Teenage female athletes are less

than half as likely to get pregnant as non-athletes (S% and

11%, respectively), more likely to report that they have never

had sexual intercourse than female non-athletes (54% and

41%, respectively), and are more likely to experience their

first sexual intercourse later in adolescence than female non-

athletes. The Women’s Sports Found., Sport and Teen

Pregnancy 2-3 (May 1998). Significantly reduced rates of

pregnancy result for African-American and Latina female

athletes as well. /d.; see also T. Dodge & J. Jaccard,

Participation in Athletics and Female Sexual Risk Behavior:

The Evaluation of Four Causal Structures, 17 J. of

Adolescent Res. 42 (2002); President's Council Report at

26

XXV-xxvi (citing studies suggesting that higher rates of

athletic participation among adolescent girls were

significantly associated with lower rates of sexual activity and

pregnancy).

Physical activity also appears to decrease the initiation of

high-risk health behavior such as smoking or illegal drug use

in adolescent girls. See, e.g, M.J. Melnick et al., Tobacco

Use Among High School Athletes and Nonathletes: Results of

the 1997 Youth Risk Behavior Survey, 36 Adolescence 727

(2001); see also The Case for High School Activities (con-

cluding that 92% of high school athletes do not use drugs);

The Women’s Sports Found., Health Risks and the Teen

Athlete 4, 8-9 (2000) available at http://www.womenssports-

foundation.org/binary-data/WSF Article/pdf_file/771.pdf

(female athletes involved in school or community sports were

significantly less likely to use marijuana, cocaine or most

other illicit drugs); R.R. Pate et al., Sports Participation and

Health-Related Behaviors Among U.S. Youth, 154 Archives

of Pediatric & Adolescent Med. 904 (2000) (same); The Case

for High School Activities (Wyoming survey in 1998 found

that only 25% of high school athletes, compared to 40% of

non-athletic high school students, smoke cigarettes); Deborah

J. Aaron et al., Physical Activity and the Initiation of High-

Risk Health Behaviors in Adolescents, 27 Med & Sci. in

Sports & Exercise 1639, 1642 (1995) (female athletes are

significantly less likely to initiate cigarette smoking than

others).

Notwithstanding their successes, women and girls still

continue to face barriers to equal athletic opportunities. In the

2005-06 school year, more than 4.2 million boys played high

school sports, but fewer than 3.0 million girls played. In

other words, only 41% of high school athletes were girls,

even though girls made up 49% of all students. See Nat'l

Fed'n of State High Sch. Ass’ns, 2005-06 Participation Sur-

vey (2006), available at http://www.nfhs.org/core/content-

manager/uploads/200S_O6NFHSparticipationsurvey.pdf;

27

U.S. Census Bureau, Current Population £ :rvey Report (Oct.

2005), available at http://www.census.gov/population/www/

socdemo/school/cps2005.html. Many girls who play high

school sports must tolerate inferior practice and game

facilities and other unequal treatment. Minority female

athletes receive even fewer athletic opportunities. U.S. Dep’t

of Health & Human Servs., Physical Activity and Health: A

Report of the Surgeon General; Executive Summary 12, 14

(1996).

While full equality of opportunity in athletic participation

has yet to be realized, the guarantee of equal protection con-

tained in the Fourteenth Amendment, along with the statutory

non-discrimination requirements of Titles [IX and VI, have

played a vital role in opening up competitive athletics to

female and minority student athletes. To reach the goal of

equal opportunity, states and their athletic associations must

be required to fulfill their non-discrimination obligations.

CONCLUSION

For these reasons, amici urge this Court to reaffirm its

determination that TSSAA is a state actor.

Respectfully submitted,

MARCIA D. GREENBERGER VIRGINIA A. SEITZ*

JOCELYN F. SAMUELS KIMBERLE E. DoDD

DINA R. LASSOW SIDLEY AUSTIN LLP

NATIONAL WOMEN’S LAW 1501 K Street, N.W.

CENTER Washington, D.C. 20005

11 DuPont Circle, N.W. (202) 736-8000

Suite 800

Washington, D.C. 20036

(202) 588-5180

Counsel for Amici Curiae

March 26, 2007 *Counsel of Record

a

APPENDIX

la

APPENDIX A

DESCRIPTIONS OF AMICI CURIAE

ORGANIZATIONS

The National Women’s Law Center (Center) is a nonprofit

legal advocacy organization dedicated to the advancement

and protection of women’s rights and the corresponding

elimination of sex discrimination from all facets of American

life. Since 1972, the Center has worked to secure equal

opportunity in education for girls and women through full

enforcement of constitutional rights and Title LX in all arenas,

including interscholastic and intercollegiate athletics.

For 125 years, the American Association of University

Women (AAUW), an organization of over 100,000 members,

has beén a catalyst for the advancement of women and their

transformation of American society. In more than 1,300

communities nationwide, AAUW plays a major role in

mobilizing advocates on AAUW priority issues that promote

equity for women and girls, including: creating equal

opportunity in all levels of education; improving women’s

economic security through equal pay, family friendly

workplaces, and preserving Social Security; reproductive

rights; and other civil rights issues. AAUW believes athletic

participation benefits women and girls in myriad ways, and

supports gender cquity in athletics as enforced through the

Equal Protection Clause of the Fourteenth Amendment to the

U.S. Constitution.

The mission of the Association for Gender Equity

Leadership in Education (AGELE) is to provide leadership in

the identification and infusion of gender equity in all

educational programs and processes, and within parallel

equity concerns, including, but not limited to, age, disability,

ethnicity, national origin, race, religion, sexual orientation

and socio-economic status. Recognizing state athletic

associations to be state actors is important to our mission

because it ensures the constitutional guarantee of equal

2a

protection of the law to girls and young women in athletics

and thereby promotes the numerous benefits for female

athletes that stem from athletic participation.

The California Women's Law Center (CWLC) is a private,

nonprofit public interest law center specializing in the civil

rights of women and girls. The CWLC was established in

1989 to address the comprehensive civil rights of women and

girls in the following priority areas: Gender Discrimination,

Women’s Health, Reproductive Justice and Violence Against

Women. Since its inception, the CWLC has placed a strong

emphasis on advancing the rights of women and girls in

education, particularly the issues of discrimination, and

access to equal opportunities in athletic programs and

activities.

The Connecticut Women's Education and Legal Fund

(CWEALF) is a non-profit women’s rights organization

dedicated to empowering women, girls and their families to

achieve equal opportunities in their personal and professional

lives. CWEALF defends the rights of individuals in the

courts, educational institutions, workplaces and in their

private lives. For the past three decades, CWEALF has

provided legal information and conducted public policy and

advocacy to ensure the spirit of Title IX is implemented and

enforced in educational and athletic opportunities.

Dads & Daughters is the national nonprofit working to

make the world safe and fair for our daughters. A strong

structure of support for equity in education is essential to that

mission — and essential! to the well-being and future of all the

nation’s children. That structure would be crippled by a

decision which holds that state interscholastic athletic

associations are not state actors, and therefore are not subject

to obligations such as vigorous enforcement of and

commitment to equal protection of the law.

The Disability Rights Education and Defense Fund, Inc.

(DREDF), based in Berkeley, California, is a national law and

3a

policy center dedicated to advancing and protecting the civil

rights of people with disabilities. DREDF pursues its mission

through education, advocacy and law reform efforts, and is

nationally recognized for its expertise in the interpretation of

federal civil rights laws protecting persons with disabilities.

Equal Rights Advocates (ERA) is a San Francisco-based

women’s rights organization whose mission is to secure and

protect equal rights and economic opportunities for women

and girl through litigation and advocacy. Founded in 1974,

ERA has litigated historically important gender-based

discrimination cases, including Geduldig v. Aiello, 417 U.S.

484 (1974), Richmond Unified School District v. Berg, 434

U.S. 158 (1977), Doe v. Petaluma City Sch. Dist., 830 F.

Supp. 1560 (N.D. Cal 1993), reconsid. granted, 949 F. Supp.

1415 (N.D. Cal. 1996), and Dukes v. Wal-Mart, 474 F.3d

1214 (9th Cir 2007). ERA currently represents female

students seeking to participate in athletics on an equal basis to

male student athletes. Whether state high school athletic

associations are state actors is an important issue to our

constituents, many of whom are women and girls from racial

and ethnic minorities, whose rights to equal protection of the

law have often been denied.

The Feminist Majority Foundation (FMF), founded in

1987, is the natton’s largest feminist research and action

organization dedicated to women’s equality, reproductive

rights and health, non-violence and equal educational

opportunitics. Our programs focus on advancing the legal,

social and political equality of women with men, countering

the backlash to women’s advancement, and recruiting and

training young feminists to encourage future leadership for

the feminist movement. To carry out these aims, FMF

engages in research and public policy development, public

education programs, grassroots organizing projects, and

leadership training and cultivation programs. It is important

to our goals that state high school athletic associations be seen

4a

as “state actors” and that they are held responsible for

implementing civil rights protections.

Legal Momentum advances the rights of women and girls

by using the power of the law and creating innovative public

policy. It is the nation’s oldest legal advocacy organization

devoted to women’s rights. Legal Momentum, then known as

NOW Legal Defense, pioneered the implementation of Title

IX with PEER, its nationwide Project on Equal Education

Rights, from 1974-1992. It was co-counsel in Doe v.

Petaluma City School District, 949 F. Supp. 1415 (N.D. Cal.

1996), the first case to recognize that a school’s failure to

respond to peer sexual harassment may violate Title IX, and

has appeared as amicus in numerous cases concerning the

right to be free from sexual harassment and sex

discrimination in education, including Davis v. Monroe Count

Board of Education, 526 U.S. 648 (1999) and Franklin v.

Gwinnett County Public Schools, 503 U.S. 60 (1992).

Myra Sadker Foundation is a non-profit organization

dedicated to promoting equity in and beyond schools. Myra

Sadker, educator, author, and Dean at American University,

exposed both the subtle and blatant education biases that limit

the academic, psychological, economic and physica! potential

of both males and females. The foundation supports research,

training and special programs to assist teachers, parents,

children and other adults in eliminating such biases from

America’s schools.

The National Association for Girls and Women in Sport

(NAGWS) is an organization with over 100 years of history in

research, programming and advocacy for female athletes. It

is one of the five national associations of the American

Alliance for Health, Physical Education, Recreation and

Dance (AAHPERD), a non-profit membership organization

representing over 23,000 professionals in physical education

and sport. Members of NAGWS have supported Title [X and

gender equity initiatives for decades and continue to educate

community members, athletes and professionals about these

Sa

issues through programs, research and publications. The

mission of NAGWS is “to develop and deliver equitable and

quality sport opportunities for ALL girls and women” so

cases involving questions of enforcing prohibitions on

discrimination on the bases of race, sex and national origin

are of significant interest to the organization, especially as

they relate to female athletes.

The National Association of Social Workers (NASW) is the

largest organization of professional social workers in the

world, with nearly 150,000 members. Created in 1955 by the

merger of seven predecessor social work organizations, the

purposes of NASW include improving the quality and

effectiveness of social work practice in the United States and

developing and disseminating high standards of social work

practice, concomitant with the strengthening and unification

of the social work profession as a whole. NASW recognizes

that discrimination and prejudice directed against any group

are not only damaging to the social, emotional, and economic

well-being of the affected group’s members, but also to

society in general. NASW has long been committed to

working toward the elimination of all forms of discrimination

against women. NASW policies support “developing

practices and programs that empower women and girls,

enabling them to resist gender stereotypes; ... develop

positive self-esteem and body image; ... and challenge sexual

double standards, so girls and women might develop the

power and sense of entitlement that fuels self-advocacy.”

NATIONAL ASSOCIATION OF SOCIAL WORKERS, Women's

Issues, SOCIAL WORK SPEAKS, 387, 391 (2006).

The National Council of La Raza (NCLR) is a private,

nonprofit, nonpartisan organization established in 1968 to

reduce poverty and discrimination and improve life

opportunities for Hispanic Americans. NCILR works toward

this goal through two primary, complementary approaches:

capacity-building assistance to support and strengthen

Hispanic community-based organizations and applied

6a

research, policy analysis, and advocacy. NCLR believes that

recognizing state athletic associations to be state actors is

important to ensuring the constitutional guarantee of equal

protection of the law to girls in athletics. This guarantee

promotes girls’ participation in athletics, which has numerous

benefits for them, particularly Hispanic girls, whose low

educational attainment rates can be raised through

participation in athletics.

The National Organization for Women Foundation (NOW)

is a 501(c)(3) nonprofit organization devoted to furthering

women’s rights through education, litigation and advocacy.

Created in 1986, NOW Foundation is affiliated with the

National Organization for Women, the largest feminist

organization in the United States, with over 500,000

contributing members in more than 450 chapters in all 50

states and the District of Columbia. Since its inception, NOW

Foundation’s goals have included achieving equal educational

opportunities for women and girls. To that end, NOW

Foundation advocates for vigorously protecting girls’ and

women’s critically important right to equal protection under

the U.S. Constitution.

Founded in 1971, the National Partnership for Women &

Families is a national advocacy organization that develops

and promotes public policies to help women achieve equal

Opportunity, access to quality health care, and economic

security for themselves and their families. The National

Partnership has a longstanding commitment to equal

Opportunity for women and to monitoring the enforcement of

anti-discrimination laws. The National Partnership has

devoted significant resources to combating sex and race

discrimination in education and has filed numerous briefs

amicus curiae in the U.S. Supreme Court and federal circuit

courts of appeals to advance women’s opportunities in

education.

The Northwest Women's Law Center (NWWLC) is a

regional non-protit public interest organization that works to

7a

advance the legal rights of all women through litigation,

education, legislation and the provision of legal information

and referral services. Founded in 1978, the NWWLC has

been, inter alia, dedicated to challenging barriers to sexual

equality in education with a focus on eradicating gender

discrimination through the enforcement of Title LX. Toward

that end, the NWWLC participates as counsel and amicus

curiae in cases throughout the Northwest, and the country, to

ensure that women and girls at all educational levels have

equal access to educational opportunities. The NWWLC was

lead counsel in Blaire v. Washington State University, 108

Wn. 2d 558 (1987), a case that set important precedent

requiring state universities to provide equal funding and

scholarship opportunities for women’s athletic programs. The

NWWLC has also worked directly with numerous school

districts and parent groups to monitor and enforce compliance

with the mandates of Title Ix. The NWWLC continues to

serve as a regional expert and leading advocate on Title IX

and gender equity.

The Public Justice Center (PJC) is a Maryland non-profit

civil rights and anti-poverty organization that advocates

nationally to protect the mghts of the underrepresented.

Established in 1985, the PJC has used impact litigation,

appellate advocacy, public education, and_ legislative

advocacy to accomplish law reform for its clients in

numerous areas of civil rights, including gender

discrimination, in employment, education, and access to

government services.

The Tennessee Lawyers’ Association for Women (TLAW) is

a nonprofit professional organization whose purposes include

seeking equal protection of the law and promoting equality of

opportunity for women. TLAW is concerned that women and

minorities will be foreclosed from challenging actions and

decisions of the TSSAA on constitutional grounds and thus

will find it more difficult to reach their full potential in

athletics, the academic world, and their future careers.

8a

The Women’s Bar Association of the District of Columbia

(WBA-DC), founded in 1917, works to advance and protect

the interests of women lawyers, to maintain the honor and

integrity of the profession, and to promote the administration

of justice. Among its many activities, WBA-DC develops

and promotes the interests of women by monitoring

legislation and filing amicus briefs on issues vital to women.

WBA-DC has an interest in protecting the legal rights of girls

and women, both within and outside of the legal profession,

as guaranteed by Equal Protection Clause of the U/S.

Constitution and by Title LX of the Education Amendments of

1972. The organization is particularly interested in protecting

the right of girls to participate in athletics, a right which has

historically advanced gender equality in society at large.

The Women’s Law Project (WLP) is a non-profit public

interest law firm located in Philadelphia, PA. Founded in

1974, the WLP works to abolish discrimination and injustice

and to advance the legal and economic status of women and

their families through litigation, public policy development,

public education and individual counseling. The WLP has

worked throughout its history to accomplish gender equity in

school athletic programs at all levels, from middle school

through college. The application of the non-discrimination

clause of the Fourteenth Amendment to entities like state

athletic associations that function as state actors in their

regulation of public school athletic programs is essential to

the ultimate elimination of discriminatory practices in these

programs.

The Women's Sports Foundation is a 50\(c)3 nonprofit

education organization dedicated to advancing the lives of

girls and women through sports and physical activity and

ensuring equal participation and leadership opportunities for

girls and women in sports and fitness. The Foundation

distributes over 2 million pieces of educational information

each year, awards grants and scholarships to female athletes

and girls’ sports programs, answers over 100,000 inquiries a

9a

year concerning Title LX and women’s sports issues, and

administers awards programs to increase public awareness

about the achievements of women in sports. The Foundation

is interested in this case because of its important implications

for gender equity in sports. Specifically, at the high school

level, girls continue to lag behind boys in the quantity and

quality of athletic opportunities they receive. In fact, high

school girls receive 1.3 million fewer opportunities to play

sports than their male counterparts. The issue of whether

state high school athletic associations are state actors is very

important for all who care about equal opportunity for girls

and women, since these associations have the power to help

ensure that our daughters are given the same opportunities for

competition as our sons.