Appendix — Brentwood Academy v. Tennessee Secondary School Athletic Ass'n

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRENTWOOD ACADEMY,

Plaintiff/Appellee,

v. No. 98-6113

TENNESSEE SECONDARY

SCHOOL ATHLETIC

ASSOCIATION and RONNIE

CARTER, Executive Director

and Individually,

ee ee a a a a

Defendants/Appellants.

On Remand from the United States Supreme Court.

No. 97-01249 — Todd J. Campbell, District Judge.

Argued: July 19, 2001

Decided and Filed: August 23, 2001

Before: GUY, SUHRHEINRICH, and GILMAN,

Circuit Judges.

COUNSEL

ARGUED: Richard L. Colbert, COLBERT &

WINSTEAD, Nashville, Tennessee, for Appellants. James

F. Blumstein, VANDERBILT UNIVERSITY LAW

SCHOOL, Nashville, Tennessee, for Appellee. ON BRIEF:

Richard L. Colbert, COLBERT & WINSTEAD, Nashville,

Tennessee, for Appellants. James F. Bilumstein,

VANDERBILT UNIVERSITY LAW SCHOOL, Nashville,

Tennessee, Lee Barfield, II, BASS, BERRY & SIMS,

Nashville, Tennessee, G. Thomas Nebel, Nashville,

Tennessee, for Appellee.

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RONALD LEE GILMAN, Circuit Judge. This case

is before us on remand from the Supreme Court. Brentwood

Academy, a private school and member of the Tennessee

Secondary School Athletic Association (TSSAA), sued

TSSAA pursuant to 42 U.S.C. § 1983 for the alleged

violation of its First Amendment rights. Specifically,

Brentwood challenges the constitutionality of TSSAA's

"recruiting rule," which prohibits member schools from

exerting “undue influence . . . to secure or retain a student for

athletic purposes.” The district court granted summary

judgment in favor of Brentwood, holding that the recruiting

rule violates the school's First Amendment rights.

TSSAA appealed, arguing that it is not a state actor

for the purposes of § 1983 and, in any event, that the

recruiting rule does not run afoul of the First Amendment.

We reversed the decision of the district court on the basis

that TSSAA is not a state actor, and therefore not subject to

suit under § 1983. The Supreme Court granted certiorari and

disagreed with our opinion, holding that TSSAA is in fact a

state actor. It then remanded the case back to us for further

proceedings consistent with the Court's opinion.

We now turn to the merits of TSSAA's appeal. After

considering the parties’ supplemental briefs and hearing oral

arguments regarding the recruiting rule, we conclude that the

district court erred in granting summary judgment in favor of

Brentwood. For the reasons set forth below, we therefore

REVERSE the judgment of the district court and REMAND

the case for further proceedings consistent with this opinion.

I, BACKGROUND

A. Factual background

Brentwood is a private school located in Brentwood,

Tennessee that has historically placed a strong emphasis on

athletics. In particular, the football team has been nationally

ranked by USA Today and has won at least seven TSSAA

state championships. Brentwood's basketball team is also

well known in athletic circles.

TSSAA is an association comprised of public,

independent, and parochial secondary schools from across

the state of Tennessee, whose purpose is “to stimulate and

regulate the athletic relations of the secondary schools in

Tennessee.” To that end, TSSAA has enacted a “recruiting

rule” designed to place limits on the recruiting practices of

secondary schools in soliciting middle school student

athletes to participate in secondary school athletics. The

recruiting rule is found in Article II, Section 21 of the

TSSAA Bylaws, and reads as follows:

Section 21. The use of undue influence on a

student (with or without an athletic record),

his or her parents or guardians of a student

by any person connected, or not connected,

with the school to secure or to retain a

student for athletic purposes shall be a

violation of the recruiting rule.

Section 21 is comprised of not only the recruiting

rule itself, but also the equivalent of two full pages of

questions, answers, and guidelines that provide explanations,

details, and examples of the types of conduct the recruiting

rule prohibits. This commentary sets forth principles that aid

the member schools in complying with the recruiting rule.

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For example, the first question provides the following

information on what the term “undue influence” means:

Q. How is undue influence interpreted in the

recruiting rule?

A. A person or persons exceeding what is

appropriate or normal and offering an incentive

or inducement to a student with or without an

athletic record.

The third question explicitly prohibits coaches from

initiating contact with students prior to their enrollment in a

secondary school:

Q. Is it permissible for a coach to contact a student

or his or her parents prior to his enrollment in

the school?

A. No, a coach may not contact a student or his or

her parents prior to his enrollment in the school.

This shall apply to all students whether or not

they have an athletic record.

The fourth question asks: “What are some of the

guides used in determining whether there has been undue

influence used which would result in a violation of the

recruiting rule?” It then provides seven examples. The third

example reiterates that the recruiting rule prohibits “[a]ny

initial contact or prearranged contact by a member of the

coaching staff or representative of the school and a

prospective student/athlete enrolled in any member school

except where there is a definite feeder pattern.” The seventh

example specifically prohibits “[a]dmitting students to

athletic contests free of charge where there is an admission

being charged at the contest except where there is a definite

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feeder pattern involved with the school.” The feeder-school

exemption is not applicable to Brentwood, because it has no

feeder pattern with any school.

Several representatives of Brentwood met with

Ronnie Carter, the Executive Director of TSSAA, on

February 10, 1993. This meeting was held at the request of

Brentwood for the purpose of clarifying what types of

recruiting practices would be acceptable under the recruiting

rule. Michael S. Peek, a lawyer for Brentwood, followed up

with a letter on February 24, 1993 that was intended to

confirm Brentwood's understanding of the numerous ways in

which Brentwood could communicate with prospective

students about its athletic programs without violating the

recruiting rule.

In 1997, several coaches at other member schools

complained to TSSAA that Brentwood had violated various

TSSAA rules. Carter conducted an investigation of the

complaints. On July 27, 1997, Carter wrote a letter to

Brentwood outlining six alleged violations of TSSAA rules.

Five violations related to the recruiting rule and one to the

sports-calendar rule. Only the recruiting rule violations are

at issue in this appeal.

The alleged recruiting rule violations arose from two

incidents. The first incident occurred when Brentwood's then

Athletic Director and Head Football Coach, Carlton Flatt,

provided free tickets to a middle school coach for a

Brentwood football game. These tickets were then used by

the middle school coach to take several of his students to

attend the game. The second incident arose when Coach

Flatt sent letters and made followup telephone calls in the

spring of 1997 to students from other schools who had

contractually agreed to attend Brentwood in the fall of 1998,

but who had not themselves solicited any information

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regarding Brentwood's athletic program. Carter, on behalf of

TSSAA, imposed a number of penalties on Brentwood for

these violations.

Brentwood appealed the sanctions accordirg to the

two-step process set forth in the TSSAA Bylaws. Carter

presided at the first step and reduced the sanctions as a

consequence of the appeal. Brentwood next appealed to the

full Board of Control of TSSAA, which at the time consisted

only of public high school principals. A hearing was held on

August 23, 1997. The Board of Control found that

Brentwood had violated the recruiting rule by admitting

student athletes free of charge to-an athletic contest and by

contacting middle school students while they were enrolled

in other schools. As punishment, the Board fined Brentwood

$3,000, placed its athletic program on probation for four

years, and suspended Brentwood from participating in

tournaments and conducting certain types of off-season

practice for two years.

B. Procedural history

Brentwood filed suit against TSSAA in the United

States District Court for the Middle District of Tennessee on

December 12, 1997. It alleged that TSSAA was a state actor

and that TSSAA's enforcement of the recruiting rule violated

its First and Fourteenth Amendment rights.. Brentwood also

sought an injunction against TSSAA's enforcement of the

recruiting rule. Faced with cross-motions for summary

judgment, the district court granted Brentwood's motion for

summary judgment on its First Amendment claim and

enjoined TSSAA from enforcing the recruiting rule.

TSSAA appealed the district court's grant of

summary judgment in favor of Brentwood, arguing that

(1) TSSAA is not a state actor, thereby rendering it immune

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from constitutional scrutiny, and (2) the recruiting rule in

any case does not violate Brentwood's First Amendment

rights. Our prior opinion did not reach the merits of

TSSAA's challenge to the district court's First Amendment

ruling because we concluded that TSSAA was not a state

actor. See Brentwood Acad. v. Tenn. Secondary Sch. Athletic

Ass'n, 180 F.3d 758 (6th Cir. 1999). Brentwood sought

review of our decision by the Supreme Court., which granted

certiorari. See Brentwood Acad. v. Tenn. Secondary Sch.

Athletic Ass'n, 528 U.S. 1153 (2000). The Supreme Court

reversed our decision, holding that TSSAA is a state actor,

and remanded the case to us for further proceedings

consistent with its opinion. See Brentwood Acad. v. Tenn.

Secondary Sch. Athletic Ass'n, 531 U.S. 288 (2001). Before

us now are the merits of TSSAA's appeal regarding the

constitutionality of the recruiting rule.

Il. ANALYSIS

A. Standard of review

We review de novo the district court's grant of

summary judgment. See, e.g., Holloway v. Brush, 220 F.3d

767, 772 (6th Cir. 2000). Summary judgment is proper when

there are no genuine issues of material fact in dispute and the

moving party is entitled to judgment as a matter of law. Fed.

R. Civ. P. 56(c). In deciding a motion for summary

judgment, the court must view the evidence and draw all

reasonable inferences in favor of the nonmoving party. See

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574, 587 (1986). The judge is not to “weigh the evidence

and determine the truth of the matter but to determine

whether there is a genuine issue for trial.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A genuine

issue for trial exists only when there is sufficient “evidence

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on which the jury could reasonably find for the plaintiff.” Jd.

at 252.

B. Brentwood has not waived its right to challenge

the constitutionality of the recruiting rule

TSSAA now recognizes, as it must under the

Supreme Court's ruling, that it is a state actor subject to

constitutional challenges. It nevertheless argues that

Brentwood has waived its right to question the

constitutionality of the recruiting rule because, by voluntarily

choosing to be a member of TSSAA, it agreed to abide by

the rules of the organization. TSSAA thus contends that

Brentwood is faced with "the choice between joining

TSSAA and complying with the rules or competing in

interscholastic athletics as a non-member of TSSAA.”

The five cases that TSSAA cites to support its

argument, however, are distinguishable from the case at

hand. See Town of Newton v. Rumery, 480 U.S. 386 (1987)

(holding that a criminal defendant can waive important

constitutional rights by entering into a plea bargain); D.H.

Overmyer Co. v. Frick Co., 405 U.S. 174 (1972) (holding

that where there is no unequal bargaining power or

overreaching, debtors can voluntarily, intelligently, and

knowingly waive due process rights by signing a cognovit

note, which is an agreement by which a debtor consents in

advance to a holder's obtaining a judgment without notice or

hearing); K.M.C. Co. v. Irving Trust Co., 757 F.2d 752, 758

(6th Cir. 1985) (concluding that when a party knowingly,

voluntarily, and intentionally signs a jury waiver provision in

a civil case, that party has waived its right to a jury trial);

International Union v. Dana Corp., 697 F.2d 718, 719 (6th

Cir. 1983) (holding that a settlement agreement between

Dana and the union rendered an appeal moot, even though

the agreement “effectively prevented Dana from

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communicating with its employees regarding [a union

campaign] at one of Dana's subsidiaries”); Lake James Cmty.

Volunteer Fire Dep't v. Burke County, 149 F.3d 277 (4th Cir.

1998) (concluding that an agreement between a volunteer

fire department and the county that prohibited the fire

department from suing the county was enforceable, even

though it waived the fire department's constitutional right to _

petition the government).

The common legal thread among the above five cases

is that they all involve parties that actually waived their right

to sue. There is no comparable TSSAA provision

prohibiting members from challenging the constitutionality

of the recruiting rule. Moreover, Brentwood points out that

what was once called the “bitter-with-the-sweet” doctrine

has been replaced with the “unconstitutional conditions”

doctrine. In the words of the Supreme Court:

Recognizing that constitutional violations may

arise from the deterrent, or chilling, effect of

governmental [efforts] that fall short of a

direct prohibition against the exercise of First

Amendment rights . . . our modem

unconstitutional conditions doctrine holds that

the government may not deny a benefit to a

person on a basis that infringes his

constitutionally protected . . . freedom of

speech even if he has no entitlement to that

benefit. }

Bd. of County Comm'rs v. Umbehr, 518 U.S. 668, 674 (1996)

(internal quotation marks and citation omitted) (alterations in

original).

Umbehr involved a § 1983 claim for unlawful

retaliation brought against the county's governing body by an

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independent contractor who provided trash collection

services to the county. The Court held that the contractor

had stated a cause of action based on the allegation that his

contract was terminated in retaliation for his criticism of the

county commission. Umbehr is an extension of the

protections provided to public employees under the First

Amendment. See Pickering v. Bd. of Educ., 391 U.S. 563

(1968) (holding that the board of education violated a school

teacher's First Amendment rights by dismissing him because

he had criticized the board in a letter to the local newspaper).

We believe that the Supreme Court's rulings that parties do

not give up First Amendment rights by contracting with, or

being employed by, a public agency forecloses TSSAA's

argument that Brentwood gave up its right to challenge the

constitutionality of the recruiting rule because it voluntarily

joined TSSAA.

TSSAA argues, however, that the First Amendment

protection afforded by Umbehr and Pickering applies only

when the content of a contractor's or employee's speech

involves a “matter of public concern.” Umbehr .8 US. at

685; see also Pickering, 391 U.S. at 574. J* aims that the

recruiting rule does not implicate a matter c. public concern,

and is therefore unworthy of First Amendment scrutiny. But

TSSAA cannot have it both ways. As set forth in Part ILF.

below, TSSAA will have to establish that the recruiting rule

embodies substantial governmental interests as a necessary

element of the rule's enforceability. These substantial

interests will by definition implicate a “matter of public

concern.” See Pickering, 391 U.S. at 573 (holding that

issues involving the local board of education were “matters

of public importance’’).

We therefore conclude that Brentwood has not

waived its right to challenge the constitutionality of the

recruiting rule by voluntarily joining TSSAA. This means

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that we must now reach the merits of the district court's First

Amendment analysis of the recruiting rule.

Cc. The district court erred in holding that the

recruiting rule is a content-based regulation for

the purposes of First Amendment analysis

TSSAA's appeal broadly challenges the analytical

framework that the district court used to determine the

constitutionality of the recruiting rule. The primary

contention of TSSAA is that the district court erred in

concluding that the recruiting rule is a content-based

regulation that fails strict scrutiny review. We agree.

A fundamental premise of First Amendment

jurisprudence is that the “government may not regulate

speech based on its substantive content or the message it

conveys.” Rosenberger v. Rector & Visitors of Univ. of

Virginia, 515 U.S. 819, 828 (1995). Such regulations are

subject to “the most exacting scrutiny,” Turner Broad. Sys.,

Inc. v. FCC, 512 U.S. 622, 642 (1994), which means that the

state actor must show “that its regulation is necessary to

serve a compelling state interest and is narrowly drawn to

achieve that end.” Arkansas Writers' Project, Inc. v.

Ragland, 481 U.S. 221, 231 (1987). On the other hand,

content-neutral regulations that simply restrict the time,

place, and manner of speech are subject to intermediate

scrutiny. See Watchtower Bible & Tract Soc'y of N. Y., Inc.

v. Village of Stratton, Ohio, 240 F.3d 553, 560 (6th Cir.

2001) (citing Clark v. Cmty. for Creative Non-Violence, 468

U.S. 288, 293 (1984)). Under that analysis, content-neutral

regulations must be “narrowly tailored to serve a significant

governmental interest. . . that. . . leave open ample

alternative channels for communication of the information.”

Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).

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The Supreme Court has recognized that “[d]eciding

whether a particular regulation is content based or content

neutral is not always a simple task.” Turner Broad., 512

U.S. at 642. In this instance, the district court concluded that

the recruiting rule “is content-based because the interests

asserted by [TSSAA] to support the ban focus on the content

of the message and the effect of the message on the listener.”

We respectfully disagree.

In our opinion, the recruiting rule does not impose a

total ban, or a “Berlin Wall” as Brentwood calls it, on

communications between secondary schools and middle

school athletes regarding high school athletics. Rather, the

recruiting rule prohibits secondary schools from exerting an

“undue influence” on students with the goal of “secur[ing] or

retain{ing] a student for athletic purposes.” We do not see

how the recruiting rule, as defined by the questions, answers,

and guidelines contained within the TSSAA Bylaws, bans

the substantive content of any particular message. It is clear

to us that the greatest restriction imposed by the recruiting

rule is the prohibition on coaches, coaching staff, and school

representatives from initiating contact with middle school

students for the purpose of recruiting student athletes.

In our view, prohibiting coaches from initiating

contact with students or their parents prior to enrollment in

the school is a limitation on the manner in which secondary

schools can communicate students about their athletic

programs. It does not mean, however, that Brentwood has

no other outlet for providing such information to prospective

students, or that middle school students have no way of

finding out this information or learning about their

educational options.

Perhaps the strongest evidence in the record that

supports our view that the recruiting rule does not constitute

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a total ban on communications between secondary schools

and prospective students regarding athletic programs is the

letter that Brentwood attorney Michael Peek wrote to Ronnie

Carter following their meeting in February of 1993. The

letter details numerous ways in which Brentwood can get its

message about athletics out to prospective students.

Examples of conduct that Peek claims were explicitly

approved by Carter on behalf of TSSAA include the

following: admissions officers and representatives of

Brentwood can supply information that real estate agents

may give to new families moving to the community;

Brentwood can respond to direct inquiries from students or

their families that have contacted it for information;

Brentwood can advertise in any publication it chooses; and

can contact 7th and 8th graders in any school regardless of

their extracurricular activities and interests if such contact is

made in the context of a letter or other communication

directed to members of the class as a whole. We believe that

this range of options, which is not exclusive, acknowledges

that Brentwood has multiple ways of communicating with

middle school students to provide them with information

about the academic, athletic, and spiritual aspects of the

educational experience at Brentwood.

We fail to see how the recruiting rule “effectively

drive[s] certain ideas or viewpoints from the marketplace.”

Simon & Schuster, Inc. v. Members of the N.Y. State Crime

Victims Bd., 502 U.S. 105, 116 (1991). But Brentwood

maintains that the recruiting rule constitutes a content-based

regulation of speech in at least three ways. First, it argues

that the recruiting rule prohibits independent schools and

their representatives from “discuss[ing] an entire topic.”

Consol. Edison Co. v. Pub. Serv. Comm'n, 447 U.S. 530, 537

(1980). Second, Brentwood claims that the rule prevents

prospective students and their parents from learning about

independent educational options. Finally, it maintains that

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TSSAA enacted the recruiting rule to prevent prospective

students from learning about athletic programs at

independent secondary schools.

Brentwood's three contentions, however, are not

persuasive. As described above, the prohibitions of the

recruiting rule do not prevent representatives of Brentwood

from discussing the entire topic of its athletic programs.

Prospective students and their parents also have a wide range

of available means to receive information about the athletic

and educational opportunities that Brentwood provides. Nor

is there evidentiary support for Brentwood's position that the

recruiting rule is a content-based regulation designed by

TSSAA out of fear of what prospective students would learn

about the athletic programs at independent secondary

schools. If TSSAA had been motivated by a fear of the

‘impact that information regarding athletic programs would

have on students, it would presumably have banned

recruiting and communications altogether. This it did not do.

Finally, we reject Brentwood's contention that the

recruiting rule is unconstitutional because it controls who

can speak for Brentwood. The recruiting rule is not an

unconstitutional regulation that “dictat[es] ... the speakers

who may address a public issue.” First Nat'l Bank of Boston

v. Bellotti, 435 U.S. 765, 784-85 (1978) (holding that a state

statute prohibiting expenditures by banks and business

corporations for the purpose of influencing the vote on any

question other than one materially affecting the business

interests of the corporation unconstitutionally infringed on

their First Amendment rights). Although the rule

emphasizes that coaches and members of the coach's staff

must refrain from exerting “undue influence” by initiating

contact with prospective students, the rule does not ban these

persons from communicating with students who themselves

initiate contact.

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In sum, we conclude that the district court erred in

holding that the recruiting rule is a content-based regulation

subject to analysis under “the most exacting -scrutiny.”

Turner Broad. Sys. Inc. v. FCC, 512 U.S. 622, 642 (1994).

We therefore turn to an analysis of the rule as a content-

neutral regulation. :

D. The recruiting rule is a content-neutral regulation

subject to intermediate scrutiny

We are of the opinion that the recruiting rule is a

content-neutral regulation analogous to certain zoning

ordinances that have been deemed to contain reasonable

time, place, and manner restrictions. In City of Renton v.

Playtime Theatres, Inc., 475 U.S. 41, 46 (1986), for example,

an ordinance provided specific zoning requirements for adult

theaters. The Supreme Court found that “the Renton

ordinance [was] aimed not at the content of the films shown

at ‘adult motion picture theatres,’ but rather at the secondary

effects of such theaters on the surrounding community.” Jd.

at 47 (emphasis in original). As long as the zoning

ordinance did not ban the existence of these theaters outright,

the Supreme Court found it to be content neutral. See id. at

46 (“The Renton ordinance . . . does not ban adult theaters

altogether, but merely provides that such theaters may not be

located within 1,000 feet of any residential zone, single or

multiple-family dwelling, church, park, or school.”).

Similarly, the recruiting rule does not completely ban all

communications between coaches and prospective students,

but does keep them “at a distance” by prohibiting the

coaches and those acting on their behalf from initiating the

contact.

Other examples of regulations that have been upheld

against First Amendment challenges despite limiting the

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time, place, and manner of the targeted activities include

Madsen v. Women’s Health Ctr, Inc., 512 U.S. 753, 772

| (1994) (upholding a state court injunction that restricted the

| use of sound amplification equipment and other noise

created by anti-abortion protesters to certain hours and days);

Members of the City Council v. Taxpayers for Vincent, 466

U.S. 789, 8 14-15 (1984) (upholding an ordinance that

prohibited the posting of signs on public property based on

the government's interest in promoting aesthetics); Heffron v.

Int'l Soc. for Krishna Consciousness, Inc., 452 U.S. 640

(1981) (upholding a state regulation requiring a religious

organization that desired to distribute religious materials and

solicit donations at a state fair to do so only at a rental booth

in the designated area).

The Supreme Court has recognized that content-

neutral regulations can have a dampening effect on the

substance of the protected speech, but that such limitations

are constitutionally permissible. “A regulation that serves

purposes unrelated to the content of expression is deemed

neutral, even if it has an incidental effect on some speakers

or messages but not others.” Ward v. Rock Against Racism,

491 U.S. 781, 791 (1989) (upholding the regulation of noise

levels at musical performances in a public park to avoid

undue intrusion on the tranquility of the surrounding public

and residential areas). Assuming that TSSAA is able to

successfully establish that it has substantial governmental

interests in support of the recruiting rule (see Part ILF.

below), we cannot say that the rule's incidental effect of

preventing members of high school coaching staffs from

initiating contact with middle school students is fatal to

content neutrality. See United States v. Playboy Entm't

Group, Inc., 529 U.S. 803, 816 (2000) (“When the

Government restricts speech, the Government bears the

burden of proving the constitutionality of its actions.”’).

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Based on our conclusion that the recruiting rule is

content neutral, it is subject to an intermediate scrutiny

standard of review. See Watchtower Bible & Tract Soc'y of

N. Y, Inc. v. Village of Stratton, Ohio, 240 F.3d 553, 560 (6th

Cir. 2001). “‘[{Cjontent-neutral’ time, place, and manner

regulations are acceptable so long as they are designed to

serve a substantial governmental interest and do not

unreasonably limit alternative avenues of communication.”

City of Renton, 475 U.S. at 47; see also Ward, 491 US. at

798 (“the time, place, or manner of protected speech must be

narrowly tailored to serve the government's legitimate,

content-neutral interests but. . . it need not be the least

restrictive or least intrusive means of doing so”).

E. The recruiting rule is not facially overbroad in

violation of the First Amendment

The district court also held that even if the recruiting

rule is not an unconstitutional content-based regulation, it

runs afoul of the First Amendment because the language of

the rule provides TSSAA with the “unbridled discretion to

penalize those expressing points of view with which it

disagrees.” In so ruling, the district court relied on Forsyth

County, Ga. v. Nationalist Movement, 515 U.S. 123, 129-33

(1992). Forsyth County involved a facial challenge under

the “overbreadth doctrine” to a county ordinance that

required parties to obtain a permit and pay a fee in order to

gain authorization to speak publicly, hold a public parade, or

assemble. A challenge unde: this doctrine can be mounted in

“cases where every application creates an impermissible risk

of suppression of ideas, such as an ordinance that delegates

overly broad discretion to the decisionmaker.” Jd. at 129.

The district court concluded that terms such as “undue

influence” and “appropriate or normal” in the recruiting rule

are so undefined and provide TSSAA with such arbitrary

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discretion that the rule is an impermissibly overbroad

regulation.

TSSAA first attempts to avoid a challenge under the

overbreadth doctrine by arguing that the recruiting rule

regulates commercial speech. See Village of Hoffman

Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 497

(1982) (“the overbreadth doctrine does not apply to

commercial speech”). It claims that because Brentwood is a

private school, recruiting students is a commercial activity.

We agree with the district court that the recruiting rule does

not invoke the commercial speech analysis. The “test for

identifying commercial speech” involves determining

whether a regulation relates to a “commercial transaction.”

Bd. of Trustees of the State Univ. of N.Y. v. Fox, 492 U.S.

469, 473-74 (1989) (determining that America Future

Systems, Inc.'s “tupperware party”-like lectures on its

housewares in college dormitories constituted commercial

speech, and remanding the case for review under the

intermediate scrutiny standard); see also City of Cincinnati v.

Discovery Network Inc., 507 U.S. 410, 422-23 (1993)

(striking down a city's selective and categorical ban on the

distribution, via newsrack, of “commercial handbills" as -

violative of the First Amendment).

We conclude that TSSAA's argument in this regard is

unpersuasive. Brentwood is an educational institution. The

fact that it is private does not render its academic, athletic,

and spiritual goals commercial. Nor is TSSAA able to cite

any authority in support of its “commercial transaction”

argument as applied to the recruiting of student athletes by a

private school. Because we conclude that the recruiting rule

does not constitute a regulation of commercial speech, we

must now tum to TSSAA's alternate contention that the rule

is not unconstitutional under the overbreadth doctrine.

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“A facial challenge to a legislative Act, is, of course,

the most difficult challenge to mount successfully, since the

challenger must establish that no set of circumstances exists

under which the Act would be valid.” United States v.

Salerno, 481 U.S. 739, 745 (1987). The Supreme Court has

set forth the following principles for evaluating facial

challenges under the overbreadth doctrine:

Vague laws offend several important values. First,

because we assume that man is free to steer

between lawful and unlawful conduct, we insist

that laws give the person of ordinary intelligence a

reasonable opportunity to know what is prohibited,

so that he may act accordingly. Vague laws may

trap the innocent by not providing fair warning.

Second, if arbitrary and _ discriminatory

enforcement is to be prevented, laws must provide

explicit standards for those who apply them. A

vague law impermissibly delegates basic policy

matters to policemen, judges, and juries for

resolution on an ad hoc and subjective basis, with

the attendant dangers of arbitrary and

discriminatory application.

Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972).

“To succeed . . . the complainant must demonstrate

that the law is impermissibly vague in all of its applications.”

Village of Hoffman Estates, 455 U.S. at 497. Cases that have

held legislation unconstitutional on its face under the

overbreadth doctrine, moreover, have not created “any

exception from the general rule that constitutional

adjudication requires a review of the application of a statute

to the conduct of the party before the Court.” Members of

the City Council v. Taxpayers for Vincent, 466 U.S. 789, 798

(1984); see also Bd. of Trustees of the State Univ. of N.Y. v.

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Fox, 492 U.S. 469, 484-85 (1989) (“It is not the usual

judicial practice, however, nor do we consider it generally

desirable, to proceed to an overbreadth issue unnecessarily -

that is, before it is determined that the statute would be valid

as applied. Such a course would convert use of the

overbreadth doctrine from a necessary means of vindicating

the plaintiffs own right not to be bound by a statute that is

unconstitutional into a means of mounting gratuitous

wholesale attacks upon state and federal laws.”).

In our opinion, the district court erred in striking

down the recruiting rule as facially overbroad without

focusing on how the rule was applied to Brentwood. We turn

now to this analysis. TSSAA found that Brentwood's two

violations of the recruiting rule consisted of admitting

middle school athletes free of charge to an athletic contest at

Brentwood and of contacting middle school students to

inform them of Brentwood's athletic practices before they

were enrolled there. In particular, the second violation arose

from Coach Filatt's letter to incoming students regarding

spring football practice and followup telephone calls to the

students. Pursuant to Article II, Section 1(b) of TSSAA's

Bylaws, a student is not considered “enrolled” until he or she

has attended the school for at least three days. None of the

incoming students met this criterion.

Both of Brentwood's alleged violations are explicitly

listed as prohibited conduct that constitutes “undue

influence” in the commentary accompanying the recruiting

rule. As previously noted, the seventh example in response

to question four under the recruiting rule includes

“{ajldmitting students to athletic contests free of charge

where there is an admission being charged at the contest . .

Furthermore, the third question following the recruiting rule

prohibits a coach from contacting students not enrolled in

their school:

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Q. Is it permissible for a coach to contact a

student or his or her parents prior to his

enrollment in the school?

A. No, a coach may not contact a student or his

or her parents prior to his enrollment in the

school. This shall apply to all students

whether or not they have an athletic record.

_ These questions, answers, and guidelines are entitled

to consideration in evaluating an overbreadth challenge. See

Forsyth County, 506 U.S. at 131 (“In evaluating [the] facial

challenge, we must consider the [association's] authoritative

instructions of the [rule], including its own implementation

and interpretation of it.”); see also Ward, 491 U.S. at 794-96

(holding that the city’s sound-amplification guideline and the

city's interpretation of the guideline provided sufficient

limiting instructions to render the ordinance's statements

ensuring the “best sound” and “appropriate sound quality”

immune from an overbreadth challenge). We also note that

the Supreme Court has

repeatedly expressed its reluctance to strike down

a statute on its face where there were a substantial

number of situations to which it might be validly

applied. Thus, even if there are marginal

applications in which a statute would infringe on

First Amendment values, facial invalidation is

inappropriate if the remainder of the statute.

covers a whole range of easily identifiable and

constitutionally proscribable. . . conduct.

Parker v. Levy, 417 U.S. 733, 760 (1974) (internal quotation

marks omitted and ellipses in original).

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The above principles are fully applicable to the case

before us. Although the recruiting rule by itself is certainly

subject to challenge based on vagueness and overbreadth, it

is accompanied by the equivalent of two full pages of

question-and-answer § explanations and = guideline

interpretation. As a whole, the rule gives reasonable notice

of what is prohibited, especially as applied to Brentwood.

The interpretive commentary explicitly states that free tickets

cannot be provided to prospective students, nor can a coach

initiate contact with potential players before they enroll in

the school. Brentwood allegedly did both of these things,

and was punished accordingly. To claim now that the rule is

overbroad as applied to Brentwood strains credulity. We

therefore conclude that the district court erred in holding the

recruiting rule unconstitutional on the basis of being facially

overbroad.

F. Remand is required to determine if the recruiting

rule is narrowly tailored to meet TSSAA's

substantial interests

As set forth in Part II.D. above, we have determined

that the recruiting rule is a content-neutral regulation subject

to intermediate scrutiny for the purpose of First Amendment

analysis. This means that TSSAA has the burden of

establishing (1) the legitimacy of its alleged substantial

governmental interests and (2) that the recruiting rule as

applied to Brentwood in the case before us is narrowly

tailored to further these governmental interests. The

Supreme Court has described this analysis as follows:

[A] regulation of the time, place, or manner of

protected speech must be narrowly tailored to

serve the government's legitimate, content-

neutral interests but . . . it need not be the least

restrictive or least intrusive means of doing so.

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Rather, the requirement of narrow tailoring is

satisfied so long as the regulation promotes a

substantial government interest that would be

achieved less effectively absent the regulation. .

. . The validity of time, place, or manner

regulations does not turn on a judge's agreement

with the responsible decisionmaker concerning

the most appropriate method for promoting

significant government interests or the degree to

which those interests should be promoted.

Ward, 491 U.S. at 798-800 (internal quotation marks,

alterations, and ellipses omitted).

In TSSAA's response to Brentwood's motion for

summary judgment, TSSAA asserted two interests in

justification of the recruiting rule: (1) to keep high school

athletics in their proper place subordinate to academics and

(2) to protect student athletes from exploitation. TSSAA

proffered an additional interest on appeal, namely that of

fostering a level playing field between the various member

schools. This latter interest seeks to establish a degree of

competitive equity in high school athletics by regulating how

the member schools recruit student athletes.

This court previously recognized the validity of

TSSAA's first asserted interest when it concluded that

“{TSSAA] is ordinarily entitled to enforce its athletic rules in

order to deter students, parents and school officials from

trying to tum high school athletics into an activity that

overshadows or unduly interferes with academic life.”

Crocker v. Tenn. Secondary Sch. Athletic Ass'n, 980 F.2d

382, 3 86-87 (6th Cir. 1992). The district court below also

acknowledged this interest as a substantial one. TSSAA's

other two justifications, however, are very much in dispute.

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Brentwood, for example, argues that there is no

support in the record for the proposition that student athletes

need protection from exploitation. The district court agreed.

It concluded that TSSAA offered no proof that exerting

undue influence on middle school athletes to recruit them for

athletic purposes actually harms those students. Proof of

actual harm, however, is not required in order to recognize a

state actor’s interest in preventing reasonably anticipated

harm. See Watchtower Bible & Tract Soc'y of N. Y., Inc. v.

Village of Stratton, Ohio, 240 F.3d 553, 565-66 (6th Cir.

2001) (holding that the village could regulate door-to-door

solicitation based on a fear of an “anticipated harm” without

proof of actual harm). Finally, TSSAA's newly asserted

interest in a level playing field has obviously not been

evaluated by either Brentwood or the district court.

The legitimacy of TSSAA's “exploitation” and “level

playing field” interests cannot be decided in the abstract as a

matter of law. We therefore remand this case to the district

court for an evaluation of these asserted interests after

TSSAA has had the opportunity to present whatever support

it deems appropriate to justify its position.

After the district court decides if either or both of the

above interests are legitimate, it should then apply those

- interests, along with TSSAA's recognized interest in keeping

high school athletics in their proper place, to the alleged

recruiting rule violations that TSSAA enforced against

Brentwood. Its task will be to decide if the punishment

exacted for these alleged violations relating to the free game

tickets, spring footbail-practice letters, and the followup

telephone calls was appropriate regulatory action narrowly

tailored to further TSSAA's legitimate interests as a state

actor. This question is also one that cannot be decided in the

abstract as a matter of law. TSSAA should therefore be

given the opportunity to present whatever support it deems

24-A

appropriate to justify the need for such regulations. In

proceeding with this case on remand, we caution both the

parties and the district court to stay focused on the two

alleged recruiting rule violations in question, rather than

engage in a wide-ranging attack or defense of the recruiting

rule as a whole.

G. The status of Ronnie Carter

As a final point, we note that the district court did not

draw any distinction between TSSAA and Ronnie Carter, the

Executive Director of TSSAA, in its grant of partial

summary judgment to Brentwood. TSSAA now urges us to

reverse the district court's judgment to the extent that it

operates against Carter in his individual capacity. We

decline to do so. Such action by us at this time would be

premature, because the district court's opinion is silent on the

issue of Carter's liability. We therefore direct the district

court on remand to address the issue of Brentwood's claim

against Carter in both his official and individual capacities.

Ill. CONCLUSION

For all of the reasons set forth above, we REVERSE

the grant of summary judgment in favor of Brentwood and

REMAND the case to the district court for further

proceedings consistent with this opinion.

25-A

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

BRENTWOOD ACADEMY, )

Plaintiff,

No. 3:97-1249

Judge Campbell

Vv.

TENNESSEE SECONDARY

SCHOOL ATHLETIC

ASSOCIATION and

RONNIE CARTER,

Executive Director and

Individually,

ee ee a a a a a a ed

Defendants.

ORDER

Pending before the Court are Plaintiff Brentwood

Academy's Motion for Partial Summary Judgment and for

Yemwanent Injunction (Docket No. 27): and Defendants’

Motion for Summary Judgment (Docket No. 47). The Court

heard oral argument on the pending Motions on July 16,

1998.

For the reasons described in the accompanying

Memorandum, Brentwood Academy's Motion for Partial

Summary Judgment and for Permanent Injunction (Docket

No. 27) is GRANTED in part and DENIED in part.

Brentwood Academy's Motion is GRANTED as to its claim

that TSSAA's Recruiting Rule violates the First Amendment

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on its face, and as applied tc Brentwood Academy.

Accordingly, Defendants are hereby enjoined from any use

of the Recruiting Rule. All sanctions imposed by the

TSSAA on Brentwood Academy pursuant to the August 27,

1997 letter from the TSSAA to Brentwood Academy

(Docket No. 1, Ex. G) are void and unenforceable.

Defendants’ Motion for Summary Judgment (Docket

No. 47) is GRANTED in part and DENIED in part.

Defendants’ Motion is GRANTED as to Plaintiff s equitable

estoppel claim and that claim is DISMISSED.

The disposition of other issues presented by the

pending Motions is discussed in the Memorandum.

It is so ORDERED.

Ls/

Todd J. Campbell

United States District Judge

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

BRENTWOOD ACADEMY, )

Plaintiff,

No. 3:97-1249

Judge Campbell

Vv.

TENNESSEE SECONDARY

SCHOOLS ATHLETIC

ASSOCIATION and

RONNIE CARTER,

Executive Director and

Individually,

Nee Ne Nee Ne Ne Ne Ne Ne Ne Ne Nee See “ee”

Defendants.

:

‘I. Introduction

Pending before the Court are Plaintiff Brentwood

Academy's Motion for Partial Summary Judgment and for

Permanent Injunction (Docket No. 27) and Defendants’

Motion for Summary Judgment (Docket No. 47). The Court

heard oral argument on the pending Motions on July 16,

~ 1998. For the reasons described herein, Brentwood

Academy's Motion for Partial Summary Judgment and for

Permanent Injunction (Docket No. 27) is GRANTED in part

and DENIED in part, and Defendants' Motion for Summary

Judgment (Docket No. 47) is GRANTED in part and

DENIED in part.

Brentwood Academy sued the Tennessee Secondary

Schools Athletic Association ("TSSAA") and its Executive

Director, Ronnie Carter, alleging violation of Plaintiff s First

Amendment rights of free speech (Count I); violation of

Plaintiff s Fourteenth Amendment substantive and

procedural due process rights (Counts II and III); violation of

federal antitrust laws (Count IV); equitable estoppel (Count

V); and unfair, unreasonable, arbitrary and oppressive action

in violation of state law (Count VI). Plaintiff seeks a

permanent injunction barring the TSSAA from enforcing its

"Recruiting Rule,” as written and as applied to Plaintiff;

money damages; attorneys’ fees and costs. All the above

claims, except the antitrust claims, are the subject of the

pending motions.

Il. Facts

Plaintiff Brentwood Academy is a co-educational,

independent, college-preparatory school located in

Brentwood, Williamson County, Tennessee. Combined

Stipulations (Docket No. 24), 9 3. Brentwood Academy is a

member of Defendant TSSAA, and the _ school's

interscholastic athletic teams regularly participate in athletic

contests regulated by the TSSAA. Id., 4 9.

Defendant TSSAA is a non-profit corporation

organized and existing under the laws of the State of

Tennessee, with its principal place of business in Hermitage,

Davidson County, Tennessee. Id., ¥ 10.

Defendant Ronnie Carter is the Executive Director of

the TSSAA and, at all times relevant to this action, acted as

an employee and agent of the TSSAA and within the scope

of his authority as an employee and agent. Id., { 11.

The TSSAA is an association of public, independent

and parochial secondary schools from across the state of

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Tennessee. It is composed of 290 public schools and 55

independent and parochial schools. Public high schools

compose 84% of the voting membership of the TSSAA, and

independent and parochial schools compose 16% of the

voting membership of the TSSAA. Id., ¥ 12.

The purpose of the TSSAA is "to stimulate and

regulate the athletic relations of the secondary schools in

Tennessee." TSSAA Constitution, Art. I, Section 2.

By electing to be a member of TSSAA, each member

school agrees to abide by the Constitution and By-laws of

TSSAA. Combined Stipulations, | 44. The parties have

stipulated the authenticity of the TSSAA Constitution and

By-laws. Id., f¥ 17, 18.

The rules and regulations of the TSSAA are enacted

by its Legislative Council, a nine-member body composed of

high school principals or assistant principals or qualified

superintendents elected by popular vote in each of nine

electoral districts. Combined Stipulations, ¢ 14. The

administrative authority of the TSSAA is vested in a Board

of Control, composed of nine members who are high school

principals or superintendents, similarly elected by popular

vote. TSSAA Constitution, Art. III.

All the voting members of the Legislative Council

and the Board of Control in 1997 were public high school

administrators. None of the voting members of the

Legislative Council and the Board of Control in 1997 were

principals of independent or parochial schools: Combined

Stipulations, ¥ 15.

The main question presented in this case is whether

the following Recruiting Rule of the TSSAA violates the

First Amendment or the Fourteenth Amendment to the

United States Constitution:

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Recruiting Rule

Section 21. The use of undue influence on a

student (with or without an athletic record),

his or her parents or guardians of a student by

any person connected, or not connected, with

the school to secure or to retain a student for

athletic purposes shall be a violation of the

recruiting rule.

1.

Q. How is undue influence interpreted in the

recruiting rule?

A. A person or persons exceeding what is

appropriate or normal and offering an

incentive or inducement to a student with or

without an athletic record.

y 3

Q. What is the penalty for violation of the

recruiting rule?

A. Violation of the recruiting rule shall

cause the student to be ineligible at the school

in violation, and a penalty shall be placed

against the school.

>

Q. Is it permissible for a coach to contact a

student or his or her parents prior to his

enrollment in the school?

A. No, a coach may not contact a student or

his or her parents prior to his enrollment in

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the school. This shall apply to all students

whether or not they have an athletic record.

a

Q. What are some of the guides used in

determining whether there has been undue

influence used which would result in a

violation of the recruiting rule?

A. Some examples are, but not limited to:

l. Providing of transportation or other

inducement to any prospective student/athlete

to take a qualifying examination at a school,

meet with school officials, etc.

2. Discussion of financial aid based on need

with any prospective student/athlete by any

member of the coaching staff until the student

has enrolled in school (attended 3 days of

school). All financial aid questions should be

referred to the principal or the person in

charge of financial aid. If the person in

charge of financial aid is a coach, prior

approval must be granted by the Executive

Director of TSSAA.

3. Any initial contact or prearranged contact

by a member of the coaching staff or

representative of the school and a prospective

student/athlete enrolled in any member school

except where there is a definite feeder pattern.

4. Any initial contact or prearranged contact -

by a member of the coaching staff or

representative of the school and a prospective

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student/athlete in the seventh grade and above

at any non-member school except where there

is a definite feeder pattern involving the

schools.

Public high schools may contact public feeder

schools (elementary, middle school, junior

high school) where there is a definite feeder

pattern. Private or parochial schools may

contact private schools (elementary, middle

school, junior high school) where there is a

definite feeder pattern.

Private or parochial schools may not contact

students enrolled at the public schools. Public

schools may not contact students enrolled at

the private schools.

5. Any contact between a member of the

coaching staff or representative of the school

and prospective student/athletes prior to,

during, or after contests at elementary

schools, middle schools, and junior high

schools except where there is a definite

pattern.

6. A member school is prohibited from

giving any item with school advertisement

(shirts, pennants, caps, jackets, etc.).

7. Admitting students to athletic contests

free of charge where there is an admission

being charged at the contest except where

there is a definite feeder pattern involved with

the school.

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5.

Q. What is allowed by member schools in

contacting prospective students?

A. A representative of the school may meet

with students at a school that is defined as a

feeder school or meet with students who are

zoned to attend that school the following year.

This visit must be cleared by the principals of

both schools.

Guidelines For Understanding The "Recruiting Rule" And

Understanding "What Is Undue Influence"

1. The major theme of the "recruiting rule” is

not "initial contact." The major theme is

"exceeding what is normal and appropriate."

Initial contact can be a violation, but is only

one of many things that can exceed what is

normal and appropriate.

2. One key is not treating "athletes" or

"prospective athletes" any differently than

students who are not athletes.

3. Students should be seen as students and

not singled out based on their potential

athletic ability.

4. Pre-arranged contact is seen in the same

manner as initial contact.

5. Any student or family or individual that

contacts a coach about attending a school

where he or she coaches should be informed

that they need to contact the principal,

admissions department, or guidance

department if they have an interest.

6. Any meeting with coaches regarding

athletes or prospective athletes or their

families should be at the request of the family

to the individual(s) responsible for admissions

and should take place at the school.

7. High school athletics is not the same as

colleges recruiting high school athletes for

college athletics. High school athletics exist

for an entirely different reason. High school

coaches should not view 12, 13, 14 year old

students in the same manner as college

coaches view high school seniors.

8. Administrators and coaches must realize

that they have more responsibilities than the

general public to understand the purpose of

high school athletics, the principles behind the

TSSAA rules, etc., and to maintain a level of

understanding and purpose when dealing with

the general public and students.

TSSAA By-laws, Art. II, Section 21. TSSAA's first version

of the "recruiting rule" was adopted in 1935, and the rule in

all its forms since 1935 has prohibited "the use of undue

influence." Combined Stipulations, ¥ 54.

Since 1925, the State Board of Education has

recognized the functions of TSSAA in providing standards,

rules and regulations: for interscholastic competition in ‘the

public schools in Tennessee. See Docket No. 52 (Affidavit of

Jerome V. Sailors), p. 2. In 1972, by rule, the State Board of

Education designated the TSSAA as "the organization to

supervise and regulate the wthietic activities in which the

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public junior and senior high schools of Tennessee

participate on an interscholastic basis." Tenn. Bd. of Educ.

Rule 0520-1-2-.26 (later moved to Rule 0520-1-2-.08).

In addition, in 1972, the State Board approved the

current rules and regulations of the TSSAA and reserved the

right to review the appropriateness of any future changes.

Id. On several occasions between 1972 and 1992, the State

Board reviewed and approved the TSSAA rules, including

the Recruiting Rule at issue in this case. Docket No. 66

(Affidavit of Gary Nixon), attachment, pp. 24-25, 34, 38, 44,

52-53, 73-74, 76-78, 82, 88.

In 1995, the State Board of Education adopted an

amendment to Rule 0520-1-2-.08, which deleted the former

rule and replaced it with the following: "The State Board of

Education recognizes the value of participation in

interscholastic athletics and the role of the Tennessee

Secondary School Athletic Association in coordinating

interscholastic athletic competition. The State Board of

Education authorizes the public schools of the state to

voluntarily maintain membership in the Tennessee

Secondary School Athletic Association.” Tenn. Bd. of Educ.

Rule 0520-1-2-.08 and Docket No. 66, attachment, p. 183.

In 1997, certain public high school coaches made

allegations of recruiting violations by Brentwood Academy,

and those allegations were subsequently communicated to

the TSSAA. Combined Stipulations, ff 35-37. Based on the

allegations, the TSSAA, through Defendant Carter, began an

investigation. Jd. 4 38. TSSAA made various claims, but

only three allegations ultimately resulted in violations and

penalties.

One claim involved the Brentwood Academy football

coach, Carlton Flatt, allegedly providing free game tickets to

a coach at a public middle school. The allegation was that

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Kevin Armstrong, a teacher and coach at Neely’s Bend

Middle School, used the free tickets for himself and two

middle-school student-athletes, allegedly in violation of the

Recruiting Rule. Complaint (Docket No. 1), Exs. A, D and

G.

Another claim involved a Brentwood Academy

basketball coach, John Patton, allegedly conducting

impermissible off-season basketball practice with certain

Brentwood Academy students in violation of the Off-Season

Practice Rule. Id.

A third claim involved letters and telephone calls

from the Brentwood Academy football coach, Carlton Flatt,

to students from other schools who had contractually agreed

to attend Brentwood Academy, to invite them to spring

football practice at Brentwood Academy, allegedly in

violation of the Recruiting Rule. Id.

In the spring of 1997, the father of an incoming

ninth-grade student, who had already been accepted for

admission to Brentwood Academy and had committed to

attend in the fall, requested permission for his son to

participate in Brentwood Academy's spring football practice.

Affidavit of Carlton Flatt (Docket No. 30), 4 17; and

Defendants’ Local Rule Response ("Local Rule Response”)

(Docket No. 46), § 77.

Brentwood Academy contends that in order to avoid

an incorrect public perception and to avoid singling anyone

out for special attention, the school sent a form letter (the

"Spring Practice Letter”) to all new incoming male students

in grades nine and above, informing them of the dates for

spring practice and inviting them to participate if interested.

Flatt Affidavit, { 19; and Local Rule Response, { 80.

12-B

It is not a violation of the Recruiting Rule for

incoming students to participate in school activities at

Brentwood Academy, including spring football practice,

prior to the time that they actually begin school at

Brentwood Academy. See Docket No. 31, Ex. O (Carter

Deposition), p. 39; and Local Rule Response, | 75. The

alleged violation of the Recruiting Rule is the invitation to

attend football practice, not the football practice itself.

The Spring Practice Letter was mailed on or about

April 23, 1997, to all new incoming male students who had

signed contracts to attend Brentwood Academy. Docket No.

31, Ex. Q (Brasher Deposition), p. 63; Local Rule Response,

q 81.

The full text of the Spring Practice Letter reads as

follows: -

Having officially enrolled at Brentwood

Academy, the TSSAA allows you to

participate in spring football practice. If you

are not currently involved in a sport at your

school, we would like to invite you to practice

with your new team. Equipment will be given

out April 30th at 3:30 downstairs in the locker

room.

Spri ; iI] begin May 1. 1997 and

corclude and May 14, 1997. Practice begins

at 3:30 and will be finished by 4:45. Due to

the inconvenience to your parents, please do

not feel that you must attend every practice.

However, I do feel that getting involved as

soon as possible would definitely be to your

advantage.

In the near future, you will receive a letter

outlining our summer workout program. If

you have any questions, please call me at

school 373-0611 x 119, or at home 373-0475.

We are certainly glad that you decided to

become an Eagle.

Your Coach,

/s/ Carlton Flatt

Docket No. 31, Ex. J; and Local Rule Response, 4:82.

Prior to receiving the Spring Practice Letter, each of

the students and their parents had already made initial

contact with Brentwood Academy to express interest in

attending, applied for admission, visited the campus, taken

the admissions test, been accepted by Brentwood Academy,

and entered into a contract to attend the school. Flatt

Affidavit, J 20; and Local Rule Response, { 83.

After receiving the Spring Practice Letter, a parent

telephoned Coach Flatt to ask whether it was important for

his son to attend spring practice at Brentwood Academy if it

conflicted with an activity in which the student was involved

at his middle school. Flatt Affidavit, { 22; and Local Rule

Response § 85.

Although the Letter indicated that spring practice was

optional, Coach Flatt believed, in light of that telephone call,

that all ‘of the students who received the Letters should again

be contacted and informed that they should not participate in

spring practice if it conflicted with activities at their

respective middle schools. Flatt Affidavit, ¥ 23; and Local

Rule Response, § 86.

Coach Flatt chose to telephone the students because

there was not enough time before the start of spring practice

to send another letter. Flatt Affidavit, ] 24; and Local Rule

Response, 9 87.

On July 29, 1997, Brentwood Academy was notified

by letter from Defendant Carter that the TSSAA had found

Brentwood Academy guilty of six violations of TSSAA

Rules. Complaint (Docket No. 1), Ex. A. Specifically, as it

relates to the issues before this Court, the TSSAA found that

Brentwood Academy violated the Recruiting Rule through

the provision of free game tickets and the football Spring

Practice Letter and telephone calls; and violated the Off-

Season Practice Rule through the basketball practices

mentioned above. Id. |

As punishment for these violations, TSSAA imposed

the following penalties: (1) Brentwood Academy would not

be permitted any off-season practice in football or basketball

for two years; (2) Brentwood Academy was placed on

probation for two years and fined $3,000; (3) no Brentwood

Academy athletic team would be permitted to enter the

tournament series for 1997-98, and the football and boys’

basketball teams would not be permitted to enter the playoffs

and tournament series for 1998-99; and (4) the middle-

school students who were given free game tickets were

declared ineligible to participate in athletics at Brentwood

Academy at any level. Id.

Brentwood Academy appealed this imposition of

sanctions in compliance with a two-step appellate procedure

set forth in Article VI of the TSSAA Constitution.

Complaint, J 82; Answer, 82. The first appeal was held on

August 13, 1997, before Defendant Carter and an advisory

committee comprised of three members of the TSSAA Board

of Control. Id.; Local Rule Response, { 92.

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Defendant Carter was solely responsible for deciding

the appeal. Complaint, ¥ 83; Answer, J 83; and Local Rule

Response, § 93. Although Defendant Carter was free to

consult with the three board members who were present, he

was not bound by their advice. Complaint, J 83; Answer, {

83; and Local Rule Response, { 94.

As a result of this procedure, TSSAA changed the

penalties as follows: (1) one of the four middle-school

students was deemed eligible to participate in Brentwood

Academy sports at all levels; the three others were deemed

eligible to participate at the junior varsity level only; (2)

Brentwood Academy was placed on probation for four years,

and the football and boys’ basketball teams were denied the

privilege of participating in the playoffs and tournament

series for the 1997-98 and 1998-99 school years and

forbidden from sharing in the tournament revenues or

expense allotments for the 1999-2000 school year; (3) all

other Brentwood Academy sports teams were allowed to

participate in tournament series games, but they could not

share in the tournament revenues or receive any expense

allotments from the state tournament series; (4) Brentwood

Academy was not permitted any off-season practice in

football and basketball for two years; and (5) administrative

personnel of Brentwood Academy were required to meet

with Defendant Carter to review all policies and procedures

in regard to the athletic program. August 14, 1997 letter

from Defendant Carter to Bill Brown, Headmaster,

Complaint (Docket No. 1), Ex. D.

Under TSSAA procedures, Brentwood Academy next

appealed to the full Board of Control at a hearing held on

August 23, 1997. Combined Stipulations, | 42; Local Rule

Response, 9 97. All of the voting board members who

participated in the Brentwood Academy hearings are

principals of public high schools; none are principals at

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| sail

independent or parochial schools. Combined Stipulations, {

15; Local Rule Response, { 99.

Defendant Carter was present during the Board of

Control's deliberation process. Docket No. 31, Ex. O, p. 15;

and Local Rule Response, ¥ 101. Defendant Carter answered

questions from members of the Board of Control during the

deliberation process. Docket No. 31, Ex. O, pp. 15-16; and

Local Rule Response, 102.

The Board of Control found three violations of

TSSAA rules: (1) student-athletes being admitted free of

charge to athletic contests; (2) contact with student-athletes,

initiated by Brentwood Academy, while those students were

enrolied at other schools;' and (3) Brentwood Academy

coaches conducting impermissible off-season practice with

Brentwood Academy student-athletes. Letter of August 23,

1997, from Mike Reed to Bill Brown, Headmaster,

Complaint (Docket No. 1), Ex. G.

The Board of Control ultimately imposed the

following penalties on Brentwood Academy:

1. The entire athletic program of Brentwood

Academy was put on probation for four years.

2. Brentwood Academy's football and boy's

basketball programs were suspended from the

TSSAA playoff series for the 1997-98 and 1998-99

school years.

3. Brentwood Academy was fined $3,000.

. TSSAA has stated that Coach Flatt had no intention of violating

the Recruiting Rule by mailing the Spring Practice Letters and making

. the telephone calls. Combined Stipulations, { 40.

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4. Brentwood Academy's football and _ boys’

basketball programs were not permitted to engage in

off-season practice in the 1997-98 and 1998-99

school years.

5. Appropriate administrative officials of Brentwood

Academy were to meet with the TSSAA Executive

Director to develop an administrative control plan to

help guard against future problems.

Complaint, ¢ 89; Answer, 9 89; and Local Rule

Response, J 103. These penalties were not itemized by type

of violation in the final decision of the TSSAA against

Brentwood Academy. Id.

Brentwood Academy filed this action on December

12, 1997. On June 1, 1998, Brentwood Academy moved for

partial summary judgment and for a permanent injunction,

contending that the Recruiting Rule violates Plaintiff's First

Amendment free speech rights and Plaintiffs Fourteenth

Amendment substantive due process rights and that Article

VI of the TSSAA Constitution, as applied in the disciplinary

proceeding herein, violates Plaintiffs Fourteenth

Amendment procedural due process rights. See Docket No.

27. On June 30, 1998, Defendants moved for summary

judgment, contending that they are entitled to judgment as a

matter of law on Plaintiff's constitutional and state law

claims. See Docket No. 47. The antitrust claim (Count IV) is

not the subject of these dispositive motions.

Additional facts are discussed below as necessary.

Ill. Summary Judgment

As provided in Rule 56(c) of the Federal Rules of

Civil Procedure, summary judgment "shall be rendered

forthwith if the pleadings, depositions, answers to

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interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a

judgment as a matter of law." Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91

L.Ed.2d 202, 211 (1986). Of course, the court is to construe

the evidence and all inferences to be drawn from it in the

light most favorable to the nonmoving party. Id. at 255, 106

S.Ct. at 2513-14, 91 L.Ed.2d at 216.

The party seeking summary judgment bears the initial

burden of showing the absence of a genuine issue of material

fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct.

2548, 2553, 91 L.Ed.2d 265, 274 (1986); Street v. J. C.

Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989).

The Supreme Court concluded in Anderson that a

dispute about a material fact is “genuine” within the meaning

of Rule 56 only if "the evidence is such that a reasonable

jury could return a verdict for the nonmoving party."

Anderson, 477 U.S. at 252, 106 S.Ct. at 2510, 91 L.Ed.2d at

211-12. Since the preponderance of the evidence standard is

used in this determination, more than a mere scintilla of

evidence in support of the non-moving party's position is

required. Id. at 252, 106 S.Ct. at 2512, 91 L.Ed.2d at 214.

Once a motion for summary judgment has been

made, "the non-moving -party bears the responsibility to

demonstrate that summary judgment is inappropriate under

Rule 56(e)." Davidson & Jones Dev. Co., Inc. v. Elmore

Dev. Co., 921 F.2d 1343, 1349 (6th Cir. 1991). The non-

moving party may not merely rest on conclusory allegations

contained in the complaint, but must respond with

affirmative evidence supporting its claims and establishing

the existence of a: genuine issue of material fact. Celotex,

477 U.S. at 324, 106 S.Ct. at 2553, 91 L.Ed.2d at 274;

Cloverdale Equip. Co. v. Simon Aerials, Inc., 869 F.2d 934,

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937 (6th Cir. 1989). While the disputed issue does not have

to be resolved conclusively in favor of the non-moving party

to defeat summary judgment, "sufficient evidence supporting

the claimed factual dispute" must be shown, thereby

requiring resolution of the parties’ differing versions of the

truth by a jury or judge. Anderson, 477 U.S. at 249, 106

S.Ct. at 2510, 91 L.Ed.2d at 212; First Nat'l Bank of Arizona

y. Cities Serv. Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 1592,

20 L.Ed.2d 569, 592 (1968).

IV. State Action

Plaintiff brings this action pursuant to 42 U.S.C.

§ 1983 ("Section 1983") for alleged violation of Plaintiff's

constitutional rights. Under Section 1983, a plaintiff must

allege that he was deprived of a right secured by the U.S.

Constitution or laws by a person acting under color of state

law. 42 U.S.C. § 1983. Section 1983 erects no shield against

merely private conduct, however discriminatory or wrongful.

Mineo v. Transp. Mgmt. of Tenn. Inc., 694 F.Supp. 417,

423 (M.D. Tenn. 1988).

Thus, the initial question for the Court is whether the

Defendants TSSAA and Carter are "state actors" subject to

constitutional limitations under Section 1983. The Court

finds that the TSSAA and Carter act under color of state

law.

The district courts in Tennessee have consistently

pig age soa eign gear aidnpai poesia In Kelly

293 F. Supp. 485, 491 (MD. Tenn. 1968),

2 The parties have stipulated that Defendant Carter is the Executive

Director of TSSAA and, at all times relevant to this action, acted as an

employee and agent of TSSAA and within the scope of his authority as

an employee and agent. Combined Stipulations (Docket No. 24), ¥ 11.

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this Court held that TSSAA was subject to the constitutional

limitations placed upon state action. Citing comparable

cases in Louisiana and Oklahoma, Judge Miller noted:

The TSSAA was organized for the primary

purpose of performing a public function. Its

stated objective is to “stimulate and regulate

the athletic relations of the secondary schools

of Tennessee." The vast majority of the

schools belonging to the association are

public schools constituting a part of the State's

secondary school system.

The Association's Board of Control and

Legislative Council must be composed of

school principals or superintendents. While

the Executive Secretary of the association is

not an employee of the State Board of

Education, his salary and the other expenses

of the association are paid from revenues

primarily derived from games between

member schools. Many of the games are

played in state-owned buildings or on state-

owned properties, and by the use of state-

owned facilities.

Id. The factors cited in Kelly are also present in this case.

In another decision of this Court, Crocker v.

Tennessee Secondary Schools Athletic Ass'n, 735 F.Supp.

753 (M.D. Tenn. 1990), aff'd, 908 F.2d 972 and 973 (Table)

(6th Cir. 1990), Judge Nixon held that the TSSAA was a

State actor for two reasons: (1) the State delegated to

TSSAA its authority to regulate the eligibility of the public

high school student to participate in interscholastic athletics

and recognized TSSAA as the only organization to supervise

and regulate athletic activities in which the public junior and

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senior high schools of Tennessee participate on an

interscholastic basis; and (2) the composition of TSSAA's

membership and leadership demonstrates that it is a state

actor. Jd., p. 759. The delegation of authority referenced in

Crocker was evidenced by a rule of the Tennessee State

Board of Education. Crocker, 735 F.Supp. at 759 (citing

Tennessee Board of Education, Rules, Regulation and

Minimum Standards, 0520-1-2-.26(1)).

In Graham v. Tennessee Secondary School Athletic

Ass'n, 1995 WL 115890 (E.D. Tenn. 1995), appeal dismissed

(mootness), 107 F.3d 870 (Table), 1997 WL 76958 (6th Cir.

1997), Judge Edgar found that the TSSAA was a "state

actor" for purposes of Section 1983, under the "state

compulsion test," set forth by the U.S. Supreme Court in

Blum v. Yaretsky, 457 U.S. 994,402 S.Ct. 2777, 73 L.Ed.2d

534 (1982). That test requires that the State must exercise

some coercive power or provide such "significant

encouragement,” either overt or covert, that the choice of the

private actor is deemed to be that of the state as a matter of

law. Id., 457 U.S. at 1004, 102 S.Ct. at 2786.

Judge Edgar found that the TSSAA met this test for

two reasons. First, noting that the State had delegated its

authority to regulate eligibility of high school students to

participate in interscholastic athletics to TSSAA,° the court

held that the rules and regulations promulgated by TSSAA

and their enforcement by TSSAA are "fairly attributable" to

the State of Tennessee. Graham, p. *5. Second, the court

found that the composition of TSSAA's membership

demonstrates that it is acting under color of state law:

"TSSAA includes among its.membership every public high

school in Tennessee. The Legislative Council and the Board

of Control of TSSAA are composed of the principals of

> The court relied upon the same State Board of Education Rule cited in

Crocker. -

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public schools. Thus, state employees, the public school

principals, have some direct control over the development

and implementation of TSSAA rules and regulations.” [d., p.

* 5. The court also noted that even though TSSAA argued it

did not receive any revenues directly from the State, it

actually received the majority of its revenues from

membership fees paid by public schools and from gate

receipts at certain games between member schools, many of

which are held in state-owned facilities. Id., p. * 6. These

same factors are present in this case.

Defendants argue that Graham and Crocker do not

apply because the State no longer "delegates" its authority to

the TSSAA. Citing an amendment to the State Board of

Education rule relied upon in those cases, Defendants argue

that the State now merely authorizes the public schools to

voluntarily maintain membership in the TSSAA. See

Tennessee Board of Education, Rule 0520-1-2-.08.

A review of the history of the relationship between

TSSAA and the State is informative. Since 1925, the State

Board of Education has recognized the functions of the

TSSAA in providing standards, rules and regulations for

interscholastic competition in the public schools in

Tennessee. Affidavit of Jerome V. Sailors (Docket No. 52),

p. 2. In 1972, the State Board of Education, by rule,

designated the TSSAA as "the organization to supervise and

regulate the athletic activities in which the public junior and

Senior high schools of Tennessee participate on an

interscholastic basis." Tenn. Bd. of Educ. Rule 0520-1-2-.26

(later moved to Rule 0520-1-2-.08). The authority granted

expressly was to remain in effect until revoked. Id.* The

* The State Board also determined that the Chairman of the State Board

of Education “shall designate” a person or persons to serve in an ex-

officio capacity on the TSSAA Board of Control and Legislative

Council. Docket No. 52, p. 2.

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TSSAA claims that authority was revoked in April of 1995,

when the State Board of Education changed its rule. Even if

that interpretation is true, however, for at least twenty-four

years, the State expressly designated authority to TSSAA to

regulate interscholastic athletics in the public schools.

Despite Defendants’ bold statements to the contrary,

clearly the State Board of Education has reviewed and

approved rules and regulations of the TSSAA since at least

1972. The rule promulgated by the Board in 1972 stated:

"The State Board of Education approves the current rules and

regulations as stated in the Official Handbook of the

Tennessee Secondary School Athletic Association and

reserves the right to review the appropriateness of any future

changes." Tenn. Bd. of Educ. Rule 0520-1-2-.26 (later

moved to Rule 0520-1-2-.08). Based upon Defendant

Carter's "history" of the Recruiting Rule at issue in this case

[see Docket No. 51 (Affidavit of Ronnie Carter)], it is

apparent that the Recruiting Rule was included in the rules

and regulations approved by the State Board.

In 1984, the TSSAA briefed the State Board of

Education on TSSAA goals, purposes and procedures. See

Docket No. 66 (Affidavit of Gary Nixon), attachment, p. 10.

Subsequent minutes of the State Board of Education meeting

of May 27, 1988, state:

In 1984 the Board delegated to TSSAA the

authority to promulgate rules relative to

secondary school athletic events. That action

called for a periodic review and approval of

the operational authority delegated to

TSSAA. The staff of the State Board of

Education conducted the review and

recommended that the TSSAA fules be

approved and the TSSAA be designated to

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continue as the agency to govern secondary

athletics for the Board.

Id., pp. 24-25.

On the agenda for the May 26, 1989 meeting of the

State Board was the "annual review and report on Tennessee

Secondary Schools Athletic Association Rules." Id., pp. 28,

30 and 34. On May 31, 1991, the Board approved the rules

and regulations of the TSSAA, including the Recruiting

Rule. Id., p. 38, 52-53. A memo from then-Executive

Director Brent Poulton to Board members concerning that

May 31, 1991 meeting states: "In effect, this amounts to

reaffirmation of the Board's decision to delegate

responsibility for management of secondary school athletics

to TSSAA." Id., p. 44.

The State Board of Education again approved the

rules and regulations of the TSSAA, as late as its March 27,

1992 meeting, where the TSSAA appeared through its

Associate Executive Director, Bob Baldridge, provided a

report to the Board, and reviewed the current status of the

TSSAA rules and regulations. Id., p. 88. Upon motion, the

TSSAA rules were adopted and approved by the State Board

of Education unanimously. Id., pp. 73-74, 76-78, 82, and 88.

Again, the State approval included the Recruiting Rule.

In his memorandum to Board members concerning

this March 27, 1992 meeting, then-Executive Director

Poulton stated: "This is somewhat ceremonial, though

important as a means of reminding the world that the

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TSSAA works as an agent on behalf of the State Board of

Education." Id., p. 82 (emphasis added).°

In his memorandum to State Board members

regarding their May 21, 1993 meeting, then-Executive

Director Poulton stated: "Competitive athletics is a big part

of the high school experience. The Tennessee Secondary

Schools Athletic Association (TSSAA) manages these

activities as sanctioned by the State Board of Education.

This annual report keeps members informed of issues and

changes in TSSAA policies." Id., p. 117.

It is disingenuous, at best, for Defendants to

repeatedly state in their briefs, based upon testimony of

Defendant Carter, TSSAA Executive Director, and Mr.

Sailors, State Board of Education Executive Director, that

the State has never reviewed or approved TSSAA rules.

Such an assertion is utterly false, as demonstrated by the

minutes of the State Board of Education.

In 1995, apparently in response to Crocker and

Graham, the State Board of Education proposed and adopted

an amendment to Rule 0520-1-2-.08 by deleting the existing

rule and replacing it with the following: "The State Board of

Education recognizes the value of participation in

interscholastic athletics and the role of the Tennessee

Secondary School Athletic Association in coordinating

interscholastic athletic competition. The State Board of

Education authorizes the public schools of the state to

voluntarily maintain membership in the Tennessee

Secondary School Athletic Association." See Affidavit of

Gary Nixon (Docket No. 66), attachment, pp. 134-37, 145,

148, 151-54, 162, 171, 173-74, 182-83.

: The Court strongly disagrees that the vote of a state entity

acknowledging that another body is its "agent" is "ceremonial." In any

event, it is state action.

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Although the language of the rule was changed to no

longer "designate" TSSAA as the official organization for

supervision and regulation of secondary school athletics, it

clearly singles out the TSSAA by name to serve this

function. More importantly, the conduct of the parties has

not materially changed. As indicated below, the connections

between TSSAA and the State are still pervasive and

entwined. Nothing about the function of TSSAA has

changed. Nothing about the realities of control over

secondary school athletics has materially changed.

In short, the rule amendment had no material effect

upon whether TSSAA is a "state actor" for purposes of

Section 1983. The State of Tennessee, through custom and

practice, then explicitly, and then through custom and

practice again, has recognized TSSAA as the official body

for the regulation and control of interscholastic athletics. A

mere change in the words of the regulation, apparently to

avoid a litigation claim of state action, did not change the

actual conduct of the State and did not change the actual

conduct of the TSSAA, which constitutes state action. To

hold otherwise would raise form over substance.

The decisions in both Crocker and Graham rely upon

other factors besides the "delegation" argument.° In both

decisions, the courts noted the composition of TSSAA's

membership and leadership as a basis for state action. See

Crocker, 735 F.Supp. at 759; Graham, 1995 WL 115890 at

** 5-6. Nothing about the composition and leadership of

TSSAA has changed since Crocker and Graham.

It is undisputed that the overwhelming majority

(84%) of the members of TSSAA are public schools.

Combined Stipulations (Docket No. 24), § 12. Members of

° Pefendants erroneously stated at oral argument that Graham was

based solely on a "designation" theory.

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TSSAA must be schools accredited by the State Board of

Education. TSSAA Bylaws, Art. 1, Section 1.

TSSAA is governed by a Board of Control and a

Legislative Council, elected by the members. TSSAA

Constitution, Arts. II] and IV. In 1997, all members of the

Board of Control and the Legislative Council were principals

of public schools. Combined Stipulations, 4 15. Thus, the

membership of the TSSAA is primarily public schools and

the governance of the TSSAA is exclusively by public

officials. In addition, the TSSAA admits it is the only

organization providing these benefits to the public secondary

schools in Tennessee.

The Sixth Circuit Court of Appeals addressed the

issue of state action in interscholastic athletics in sy llow

Villa 1 Dist. hio

High School Athletic Ass'n, 647 F.2d 651 (6th Cin 1981),

where it found that "(t]he OHSAA's character as a semi-

official in its activities and its symbiotic relationship with the

state lead to the conclusion that the trial judge correctly

found state action.” ld., p. 653. The court cited many

examples of the "symbiotic relationship" between the

OHSAA. and the state, including the OHS. A's organization

of competitions, setting of schedules, arrangement of places

to play tournament games, prescription of uniform rules of

play, and power to sanction schools which violate those

rules. Id. In addition, the court noted that to be a member of

OHSAA, a school must be accredited by the State Board of

Education and that membership in OHSAA is a virtual

necessity, since the State Board does not provide any

interscholastic athletic programs. Id. The same indications

of a symbiotic relationship exist in this case.

” TSSAA made this admission at oral argument.

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After Yellow Springs, in Graham v. National

Collegiate Athletic Ass'n, 804 F.2d 953 (6th Cir. 1986), the

Sixth Circuit held that the Naticnal Collegiate Athletic

Association ("NCAA") was not a st#*+ actor. Specifically,

the court held that the NCAA conduct was not traditionally

asl exclusively the state's prerogative and that the state did

ii0t Cause, control or direct the NCAA's action. Id., p. 958.

The Court finds significant the fact that Graham involved the

NCAA, a national athletic association, and not a state

association.

The Supreme Court, in holding that a national athletic

association (the NCAA) was not a "state actor," specifically

noted: "The 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." National Collegiate Athletic Ass'n v.

Tarkanian, 488 U.S. 179, 194, n. 13, 109 S.Ct. 454, 463, n.

13, 102 L.Ed.2d 469 (1988) (citing Clark v. Anzona

Interscholastic Assn, 695 F.2d 1126 (9th Cir. 1982), cert.

denied, 464 US. 818, 104 S.Ct. 79, 78 L.Ed. 2d 90 (1983)

and v.

High School, 396 F.2d 224 (5th Cir. 1968)).

This Court agrees with the analysis in Tarkanian.

Thus, Defendants’ reliance upon cases involving the NCAA

is misplaced. In Brewer v. Purvis, 816 F.Supp. 1560, 1575

(M.D. Ga. 1993), aff'd, 44 F.3d 1008 (11th Cir. 1995), cert.

denied, 514 U.S. 1111, 115 S.Ct. 1965, 131 L.Ed.2d 855

(1995), the court held that the Georgia High School

Association and its employee were state actors for purposes

of the Fourteenth Amendment, noting that "[t]raditionally,

courts have found that high school athletic associations are

state actors." The court distinguished Tarkanian because it

involved the NCAA, specifically noting footnote 13 in that

case, and stated: "Thus, an athletic association whose

membership is predominated by institutions created by the

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same sovereign is a state actor." Id. Also distinguishing

Tarkanian on that same basis are Habetz v. Louisiana High

School Athletic Ass'n, 915 F.2d 164, 166-67 (Sth Cir. 1990)

and Libby v. South Inter-Conference Ass'n, 728 F.Supp. 504

(N.D. Ill. 1990), aff'd., 921 F.2d 96 (7th Cir. 1990).

In 1989, the Sixth Circuit, relying exclusively upon

Graham v. NCAA, held that the Ohio High School Athletic

Association ("OHSAA") did not act under color of state law.

Burrows v. Ohio High School Athletic Ass'n, 891 F.2d 122

(6th Cir 1989). The Burrows court relied upon a case

involving a national association, not a state association, and

the opinion does not mention Tarkanian or Yellow Springs!

at all. The Court finds that Burrows does not dictate the

outcome of this case based on the facts presented here.”

In Clark and St. Augustine, the cases cited by the

Supreme Court in Tarkanian, the courts listed numerous

factors which indicated that the association's functions were

"intertwined" with the state's actions: (1) composition of the

association's membership primarily public schools; (2)

public school principals — state officers, state paid and state

supervised comprise association leadership and play

substantial role in determining and enforcing policies and

® This omission is significant since the court had earlier held, in Yellow

Springs, that the same athletic association (OHSAA) was a state actor.

There is no explanation for the apparent conflict with the previous

decision.

° In Graham v. TSSAA, Judge Edgar distinguished Burrows by citing

the Tennessee Board of Education's greater involvement in the

association's affairs. Graham, p. * 5. This Court agrees. See also

Rhodes _v. Ohio High School Athletic Assn, 939 F.Supp. 584, 590-91

(N.D. Ohio 1996), in which an Ohio district court, after Burrows, held

that the OHSAA was a state actor, and Vv

Athletic Ass'n, 43 F.3d 265, 272 (6 Cir. 1994), also decided after

Burrows.

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regulations; (3) association funds come lazgely from public

athletic events, the great majority of which are held at state-

owned and state-supplied facilities; (4) paid staff of

association covered by state retirement plan; (5) association

exercises wide control over scheduling, participation in and

conduct of athletic events of public schools; (6) association

sets and enforces eligibility rules and limits numbers of

games public schools may play; (7) association has power to

keep public schools from competing against other schools;

(8) association has power to investigate, discipline and

punish member schools; and (9) rules and regulations of

association bind all public schools, although any school may

withdraw from association at any time. See Clark, 695 F.2d

at 1128 and St. Augustine, 396 F.2d at 227-228.'° Almost

identical factors are present in this case.

The Court finds overwhelming evidence of the

symbiotic relationship between TSSAA and the public, state-

controlled school system in this case. For example, the

stated purpose of TSSAA is "to stimulate and regulate the

athletic relations of the secondary schools in Tennessee."

TSSAA Constitution, Section 2. TSSAA exercises wide

control over scheduling, participation in and conduct of

athletic events in public schools. TSSAA Bylaws, Arts. I,

II, Ii] and IV. TSSAA prescribes uniform rules of play. Id.,

Art. III, Section 8. TSSAA regulates the eligibility of public

school students to participate in interscholastic athletics. Id.,

Art. II. TSSAA admits it is the only organization providing

these benefits to the public schools of Tennessee.

¥; In Poret v. Louisiana High School Athletic Ass'n, 1996 WL 169241

(E.D. La. 1996), the court, noting the "new test" of Blum, found that,

even under a "fairly attributable" standard, St. Augustine (cited above) is

still controlling and the LHSAA is a state actor for purposes of Section

1983. Id., p. * 2 (citing Graham and Crocker).

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Officials for athletic contests at TSSAA schools must

be selected from the official TSSAA list and paid TSSAA-

set fees. TSSAA Bylaws, Art. IV, and Docket No. 68,

Exhibit A (June 11-12, 1997 TSSAA _ minutes). The

TSSAA also sets the ticket prices for all regional and

state tournament games. Id.

The TSSAA has the power to investigate and

sanction schools which violate its rules. TSSAA Bylaws,

Art. 1, Section 6. Thus, public schools, state agencies, are

subject to TSSAA discipline. TSSAA can levy monetary

fines against the public schools of Tennessee.

In addition, the TSSAA has the power to keep

schools from competing against other schools. Id., Art. III.

Its rules and regulations bind all public high schools in

Tennessee that participate in interscholastic athletics.

TSSAA rules provide that public school principals

and coaches submit certain reports to the association on a

regular basis. TSSAA Bylaws, Arts. III and IV. In fact, the

TSSAA Bylaws provide that principals — state-paid, state-

supervised, public officials — are responsible to the

association in all matters pertaining to athletic relations of

their schools.'' Id., Art. III, Section 8. State employees,

therefore, are accountable to the TSSAA. Initial

responsibility for assuring compliance with all TSSAA rules

and regulations is placed in the hands of the principals. Id.,

Art. III, Section 9 and Art. IV, Section 8.

A substantial portion of TSSAA's annual revenue

comes from tournament receipts from athletic tournaments of

member schools. TSSAA Bylaws, Art. III, Section 17; Local

Rule Response (Docket No. 46), § 24. The majority of

'! Although unnecessary to the decision in this case, this regulation, on

its face, raises conflict of interest concerns.

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athletic contests between member schools are played in

public, state-owned facilities. Id., 25. The TSSAA directly

dictates the parameters of all post-season play for public

schools. TSSAA Bylaws, Art. III.

Employees of TSSAA, including Defendant Carter,

are covered by the State retirement system and, by statute,

are included in the definition of "teachers" for that purpose.

Tenn. Code Ann. § 8-35-118; Local Rule Response, { 21.

For a school to be member of TSSAA, its coach must

have a Tennessee State teaching license, must be a full-time

employee of the Board of Education and must be paid |

entirely from funds approved by the Board of Education or

the governing board of the school. TSSAA Bylaws, Art. III,

Section 7.

TSSAA admits that interscholastic athletics are

intricately connected to the educational process. For

example, the Executive Director of TSSAA stated, in a letter

to Plaintiff: "High school athletics is a part of the total

educational program." See Ex. D to Docket No. 24. In

addition, the first Article of the TSSAA Constitution

provides:

Recognizing that the primary objective of all

secondary schools is to educate youth, the

TSSAA aims to co-ordinate the athletic and

scholastic programs. The athletic field and

the gymnasium are classrooms in which

teaching is foremost in the development of

character, integrity, sportsmanship, and team

work. Although the athletic program is

associated primarily with physical education

and the scholastic program with mental

education, one complements the other.

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TSSAA Constitution, Art. 1, Section 2.

By state law, participation in interscholastic athletics

and marching band may be substituted for the physical

education graduation requirement. Tenn. Bd. of Education

Rule 0520-1-3-.06. Thus, students get academic credit for

TSSAA activities, and the TSSAA is therefore performing

part of a public function, required by state law, as the court

in Kelly found.

On July 29, 1994, Defendant Carter, Executive

Director of TSSAA, appeared at a State Board of Education

meeting, on behalf of TSSAA, to answer questions about

TSSAA's lack of minority hiring. See Docket No. 66,

attachment, p. 111. The minutes reflect the State Board's

"overall concern that TSSAA reflect hiring practices which

are the same as those expected for local schools." Id., p. 112.

At the September 29, 1994 meeting, Bob Baldridge,

Associate Executive Director for TSSAA, appeared again to

update the Board on TSSAA's employment practices. Id., p.

128. Thus, the State Board of Education injected itself into

the TSSAA's hiring practices as late as 1994.

The TSSAA connection to the State Board of

Education is further demonstrated by the fact that the

TSSAA treated all Board members to dinner and helped with

the expenses of the Board's July 1991 retreat. See Docket

No. 66, attachment, pp. 63 and 69.

Mr. Sailors stated in his Affidavit that "no member of

the State Board of Education attends meetings either of the

TSSAA Board of Control or Legislative Council." Docket

No. 52, p. 3. Yet minutes of the TSSAA Board of Control

and Legislative Council meetings reveal that statement to be

utterly false, since State Board representatives, including Mr.

Sailors himself, attended more than twenty TSSAA Board of

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Control or Legislative Council meetings from 1990 through

1997. See Exhibit A to Docket No. 68.

The minutes of the June 8, 1990 Board of Control

meeting reveal that the State Board of Education

representative is, in fact, an ex-officio member of the Board

of Control. Id.; see also Docket No. 52, p. 2. Therefore,

TSSAA cannot argue that representatives of the State

attended these meetings simply as members of the public.

Those minutes state the following: "At the present time,

there are three ex-officio members serving on the Board of

Control and Legislative Council. They are representatives of

the State Board of Education, the State Schools Boards

Association, and the State Department of Education."

Docket No. 68, Ex. A. So, not only is the State Board of

Education represented on the TSSAA Board of Control and

Legislative Council; the State Department of Education is

represented within the governance of TSSAA as well. It is

also significant that State representatives continued to attend

TSSAA meetings as ex-officio members even after the

"delegation" rule was changed in 1995. Docket No. 68, Ex.

A.

Therefore, regardless of how the TSSAA

denominates itself as an organization, or how it characterizes

its relationship with its member schools, "it is abundantly

clear that the association's very existence is entirely

dependent upon the absolute cooperation and support of the

public school systems" of the State of Tennessee. Haas v.

South Bend Community School Corp., 289 N.E.2d 495, 498

(Ind. 1972) ("The enforcement of the rules promulgated by

the IHSAA and adopted by the member schools may have a

substantial impact upon the rights of students enrolled in

these tax supported institutions, and we conclude, therefore,

that the administration of interschoiastic athletics by the

IHSAA should be considered to be 'state action' within the

meaning of the Fourteenth Amendment.").

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The supervision and regulation of interscholastic

athletics in secondary schools in Tennessee is provided by

the TSSAA, in joint participation with the State. Certainly

the conduct of the TSSAA and the State meet the "significant

encouragement" and "fairly attributable" tests of Blum.

As the court noted in Barhorst v. Missouri State

High School Activities Ass'n, 504 F.Supp. 449 (W.D. Mo.

1980):

It is beyond cavil that education is a

traditional function of the state.

Extracurricular activities are an important

component of an education in today's modern

society. The close identification of the

functions served by MSHSAA with the State's

provision of education to all children of

school age (not otherwise receiving a private

or parochial education) is a sufficient nexus to

transmute the challenged rule of MSHSAA

into "state action" subject to the constitutional

~strictures of the Fourteenth Amendment of the

United States Constitution.

Id., p. 457.

The close identification of the TSSAA with the

State's provision of education is a sufficient nexus to find

state action in this case. Accordingly, the Court finds that

the actions of the TSSAA, a state athletic association, are so

intertwined with the State that they constitute "state action"

for purposes of Section 1983. See also Clark, 695 F.2d at

1128; Dennin v. Connecticut Interscholastic Athletic Conf.

Inc., 913 F.Supp. 663, 671 (D. Conn. 1996), judgment

vacated on other grounds (mootness), 94 F.3d 96 (2d Cir.

1996); Force v. Pierce City R-VI School Dist., 570 F.Supp.

1020, 1030 (W.D. Mo. 1983); Beck v. Missouri State High

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——— School Activities Ass'n, 837 F.Supp. 998, 1001 (E.D. Mo.

1993), judgment vacated on other grounds (mootness), 18

F.3d 604 (8th Cir. 1994); Mississippi High School Activities

Ass'n. Inc. v. Coleman, 631 So.2d 768, 774 (Miss. 1994).

V. First Amendment Freedom of Speech

A.

Brentwood Academy contends that the TSSAA

Recruiting Rule violates its First Amendment right of

freedom of speech. Plaintiff, in particular, emphasizes that

by prohibiting school representatives from contacting a

student before the student has attended the representative's

school for three days, the Recruiting Rule violates the First

Amendment on its face, and as applied in this case.

Defendants contend that the Rule is a valid time, place and

manner restriction. For the reasons described herein, the

Court finds that the TSSAA Recruiting Rule violates the

First Amendment on its face, and as applied to Brentwood

Academy.

The Recruiting Rule appears at Article II, Section 21

of the TSSAA By-Laws, and consists of the "main" Rule,

followed by five sets of questions and answers, and

"Guidelines For Understanding The ‘Recruiting Rule’ and

Understanding 'What is Undue Influence." The main Rule

prohibits the use of "undue influence on a student (with or

without an athletic record), his or her parents or guardians of

a student by any person connected, or not connected, with

the school to secure or to retain a student for athletic

purposes."

In answer to Question 1, the phrase "undue

influence" is defined as: "exceeding what is appropriate or

normal and offering an incentive or inducement to a student

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with or without an athletic record." The phrase "appropriate

or normal" is not defined in the Rule.

The answer to Question 3 following the Rule

attempts to specifically regulate the conduct of coaches. It

provides that a "coach may not contact a student or his or her

parents prior to his enroHmex: ‘n the school." The

prohibition applies "whether or not [the student has] an

athletic record."

"Contact" is not defined in the answer to Question 3,

or anywhere else in the Rule. In that regard, paragraph six of

the Guidelines provides that "[a]ny meeting with coaches

regarding athletes or prospective athletes or their families

should be at the request of the family to the individual(s) |

responsible for admissions and should take place at the

school." It is not clear whether a member of the coaching

staff may "contact" a student who has, at some time prior to

enrollment, requested to speak with him or her. See

Deposition of Robert Lee Baldridge, Ill, at 81-83

(attachment to Docket No. 80) (coach may talk with student

if student has requested to talk with coach).’?

"Enrolled" is also undefined in the answer to

Question 3. The term is used again, however, in the second

example in the answer to Question 4, which prohibits:

"Discussion of financial aid based on need with any

prospective student/athlete by any member of the coaching

staff until the student has enrolled in school (attended 3 days

of school) .. .". The TSSAA has taken the position that this

12 Indeed, TSSAA Assistant Executive Director Robert Baldridge has

testified that a member school does not violate the Rule by sending

letters to, or calling, students who have made an "initial contact” with the

school — a position contrary to the one taken by the TSSAA in

penalizing Plaintiff for sending the Spring Practice Letter and calling

students who had already signed enrollment contracts with the school.

(Baldridge Deposition, at 83-84).

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sentence clearly indicates that the term "enrollment," as it is

used throughout the Rule and explanations, requires that the

student have attended at least three days of school.

(Defendants’ Response To Motion For Partial Summary

Judgment, at 95-96 (Docket No. 45)). Based on this

interpretation by the TSSAA, the restriction under Question

3 prohibits a coach from "contacting" any student or parent

until that student has attended the coach's school for three

days.

Other explanations following the Rule specifically

prohibit "initial contact or prearranged contact" by coaches

or other representatives of the school with "prospective

student/athletes." Specifically, three examples under

Question 4 prohibit:

3. Any initial contact or prearranged contact

by a member of the coaching staff or

representative of the school and a prospective

student/athlete enrolled in any member school

except where there is a definite feeder pattern.

4. Any initial contact or prearranged contact

by a member of the coaching staff or

representative of the school and a prospective

student/athlete in the seventh grade and above

at any non-member school except where there

is a definite feeder pattern involving the

schools.

Public high schools may contact public

feeder schools (elementary, middle school,

junior high school) where there is a definite

feeder pattern. Private or parochial schools

may contact private schools (elementary,

middle school, junior high school) where

there is a definite feeder pattern.

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Private or parochial schools may not

contact students enrolled at the public

schools. Public schools may not contact

students enrolled at the private schools.

5. Any contact between a member of the

coaching staff or representative of the school

and prospective student/athletes prior to,

during, or after contests at elementary

schools, middle schools, and junior high

schools except where there is a definite

pattern.

"Feeder pattern" is not defined in the Rule, but the

parties have stipulated that the Plaintiff has no schools in its

feeder pattern. (Defendants' Local Rule 8(b)(7)(c) Response,

§ 37(Docket No. 46)).'° Based on these examples, any

school representative, including a member of the coaching

staff, is prohibited from making an "initial contact" with

prospective student-athletes outside the "feeder" pattern for

any reason until the student is enrolled at the school.

Plaintiff contends these restrictions on contact by

schools violate the First Amendment.

B.

The principle underlying the Supreme Court's First

Amendment jurisprudence is that "each person should decide

for himself or herself the ideas and beliefs deserving of

expression, consideration, and adherence." Turner

'? Defendants suggest that the coach at Brentwood Academy can take

advantage of the feeder school exception by talking with students who

are in the first through sixth grade at the school. But Defendants have

not suggested why they should be allowed to withdraw their stipulation.

In any event, no reasonable person would interpret the term "feeder

school” to mean the first six grades of the same school.

40-B

Commission, 512 U.S. 622, 114 S.Ct. 2445, 2458, 129

L.Ed.2d 497 (1994). Laws and regulations that "stifle []

speech on account of its message . . . pose the inherent risk

that the Government seeks not to advance a legitimate

regulatory goal, but to suppress unpopular ideas or

information or manipulate the public debate through

coercion rather than persuasion." Id. These restrictions

“rais[e] the specter that the Government may effectively

drive certain ideas or viewpoints from the marketplace."" Id.

(quoting Simon & Schuster, Inc. v. Members of State Crime

Victims Bd., 502 U.S. 105, 112 S.Ct. 501, 508, 116 L.Ed.2d

476 (1991)).

Laws that regulate the content of the message in this

way are subjected to the "most exacting scrutiny." Turner

Broadcasting, 114 S.Ct. at 2459. To judge those laws, the

government must show that they serve a compelling interest,

and are narrowly drawn. Arkansas Writers’ Project, Inc. v.

Ragland, 481 U.S. 221, 107 S.Ct. 1722, 1729, 95 L.Ed.2d

209 (1987); First National Bank of Boston v. Bellotti, 435

U.S. 765, 98 S.Ct. 1407, 1421, 55 L.Ed.2d 707 (1978). To

be "narrowly drawn," the law must be the "least restrictive

means" to further the government's articulated interest.

Sable _C ee . Colifenia |} vy Federal

Communications Commission, 492 U.S. 115, 109 S.Ct.

2829, 2836, 106 L.Ed.2d 93 (1989).

Defendants contend that the Recruiting Rule's

prohibition on contact with prospective students is not an

attempt to stifle speech, but is a valid time, place and manner

restriction. In order to be analyzed as a time, place, and

manner restriction, the regulation must be content-neutral.

Ward v. Rock Against Racism, 491 U.S. 781, 109 S.Ct.

2746, 2753, 105 L.Ed.2d 661 (1989). If the regulation is

content-neutral, it is subject to "intermediate" scrutiny: it

must be narrowly tailored to serve a_ significant

41-B

governmental interest, and it must leave open ample

alternative channels for communication of the information.

Id. The means chosen need not be the least restrictive, but

may not "burden substantially more speech than is necessary

to further the government's legitimate interests." Ward, 109

S.Ct. at 2757-58.

In determining whether a regulation is content-

neutral, the "government's purpose is the controlling

consideration." Ward, 109 S.Ct. at 2754. A regulation that

serves purposes unrelated to the content of the message is

deemed content-neutral, even if it has an incidental effect on

certain messages or speakers. Id. For example, a

government may regulate the level of noise emitted by a

sound truck, without regard to the message conveyed by the

sound truck, to further its interest in protecting citizens from

unwelcome noise. 109 S.Ct. at 2756-57. If the interest to be

served by the regulation is based on the listeners’ reaction to

the speech, however, the purpose of the regulation is not

content-neutral. Forsyth County, Georgia v. The Nationalist

Movement, 505 U.S. 123, 112 S.Ct. 2395, 2403, 120 L.Ed.2d

101 (1992). The Court finds that the Recruiting Rule ban is

content-based because the interests asserted by the

Defendants to support the ban focus on the content of the

message and the effect of the message on the listener.

C.

Defendants assert two interests supporting enactment

of the Recruiting Rule: ensuring that athletes and non-

athletes are treated alike; and preventing the exercise of

undue influence on the student-athlete. (Defendant's

Response To Motion For Partial Summary Judgment, at 73-

75, 79 (Docket No. 45)). Thus, in enacting the ban, the

TSSAA was apparently concerned that schools would be

more interested in attracting student-athletes than other

students, and consequently, school representatives would

42-B

attempt to "unduly" influence these student-athletes to

attend. Thus, the ban was purportedly enacted to prevent

student-athletes from being subjected to the content of the

message being conveyed by public and private school

representatives outside the student's feeder pattern. The

TSSAA's purpose in enacti ting the ban, then, indicates that the

ban is not content-neutral.'* Thus, Defendants must show

that the ban is supported by a compelling governmental

interest and is narrowly drawn. Arkansas Writers’ Project,

inc., 107 S.Ct. at 1729; Bellotti, 98 S.Ct. at 1421.

The Court recognizes that the State has a compelling

interest in ensuring that its children obtain a high quality

education so that they may become productive, contributing

members of society. That education may include a

curriculum that exposes the student to a wide variety of

academic subjects, interscholastic athletics, and

extracurricular activities.’ Ensuring that students maintain

an appropriate balance between these activities and their

"core" academic work is also a legitimate interest of the

government. To that extent, the first interest asserted by

Defendants has superficial appeal.

That interest is referenced in the Guidelines which

follow the Recruiting Rule:

'* Even if the ban were content-neutral, it still would not be a valid time,

place, and manner restriction because, as discussed more fully below, the

ban burdens substantially more speech than is necessary to prevent harm

to student-athletes. See also Edenfield v. Fane, 507 U.S. 761, 113 S.Ct.

1792, 1801, 123 L.Ed.2d 543 (1993) °("Assuming that a flat ban on

commercial solicitation could be regarded as a content-neutral time,

place, or manner restriction on speech, a proposition that is open to

serious doubt,” the ban does not "serve a substantial state interest in ‘a

direct and effective way." (citations omitted)).

'S Students may receive academic credit for interscholastic athletics.

Tenn. Bd. of Ed. Rule 0520-1-3-.06.

43-B

2. One key is not treating ‘athletes’ or

‘prospective athletes’ any differently than

students who are not athletes.

3. Students should be seen as students and

not singled out based on their potential

athletic ability ....

*ek &

7. High school athletics is not the same as

colleges recruiting high school athletes for

college athletics. High school athletics exist

for an entirely different reason. High school

coaches should not view 12, 13, 14 year-old

students in the same manner as college

coaches view high school seniors.

8. Administrators and coaches must realize

that they have more responsibilities than the

general public to understand the purpose of

high school athletics, the principles behind the

TSSAA rules, etc., and to maintain a level of

understanding and purpose when dealing with

the general public and students.

To the extent that singling out a student based on his

or her athletic ability would harm that student,'® the State

would have an interest in preventing that harm from

occurring. Certainly, the State would have an interest in

preventing a student's athletic abilities or activities from

resulting in an unfair advantage or an unfair disadvantage to

the student. Both situations could affect the student's ability

There is no evidence in the record to support the conclusion that

singling out students based on their school activities is harmful. Singling

out talented student-athletes may well be beneficial rather than harmful.

44-B

to benefit fully from his education.'’ Thus, to the extent that

Defendants are asserting an interest in ensuring that athletics

do not interfere with a student-athlete's ability to obtain a

high quality education, they have asserted a compelling state

interest.

Defendants also assert that the Recruiting Rule ban is

designed to prevent "undue influence." Under Tennessee

law, a plaintiff who seeks to invalidate a will based on undue

influence on the testator must show "that one person, by

threats, coercion or importunities, so exhausted the will of

‘he other person to resist that the act taken by the weaker was

not his or her own act but that of the person exercising the

undue influence." Bulls v. Lindsay, 909 S.W.2d 434, 440

(Tenn. Ct. App. 1993). A similar showing must be made to

rescind a conveyance or a contract. See, eg., Fritts v.

Abbott, 938 S.W.2d 420, 421 (Tenn. Ct. App. 1996)

(plaintiff must show that the weaker party made the

conveyance while under the domination and control of the

stronger party). Limited by these definitions, the Court

agrees that the prevention of "undue influence" on a student

is a valid state interest because conduct constituting "undue

influence" could harm the student. In other words, the

TSSAA has a substantial interest in preventing a student

from being threatened, coerced, or harassed.

On the other hand, the TSSAA does not have a

legitimate interest in preventing a school, public, private or

parochial, from providing information in an effort to

'’ The Court is not persuaded, however, that the State would have an

interest in ensuring that students with certain talents are treated exactly

the same as every other student. Pursuing this goal to its logical extreme

would prevent schools from allowing talented orators to participate on

the debate team, or from allowing talented musicians to play in the

school band. By offering these extracurricular activities, the State has

recognized that developing a student's particular talent enhances the

quality of that student's educational experience.

45-B

persuade potential students that the educational experience at

that school is superior to that to be gained at another

school.'* In other words, it is simply not the business of the

State to stifle competition among schools for students,

whether those students are athletes, musical prodigies, or

math geniuses. In the competition among schools for

students, the First Amendment prohibits the State from

favoring one side of the debate by suppressing the speech of

the other. Tumer, 114 S.Ct. at 2458-59; Belotti, 98 S.Ct. at

1420-21. The TSSAA cannot control school choice through

censorship.

Having determined, however, that Defendants have a

legitimate interest in protecting student-athletes from the

specific harms identified above, the Court must determine

whether the Recruiting Rule's ban is narrowly drawn to

accomplish those goals. The answer is clearly no. The

interests identified by Defendants are, at best, only

marginally promoted by the ban, and "could be sufficiently

served by measures less destructive of First Amendment

interests." Village of Schaumburg v. Citizens for a Better

Environment, 444 U.S. 620, 100 S.Ct. 826, 836, 63 L.Ed.2d

73 (1980).

There is absolutely no evidence in the record that the

Recruiting Rule ban was enacted in response to evidence that

student-athletes were being harmed as a result of initial

contact by school representatives, including the school's

coaching staff. See Edenfield, 113 S.Ct. at 1800-01 (failure

to present studies or anecdotal evidence substantiating State's

allegations of harm belies government's argument that

restriction directly and materially alleviates that harm). See

also Tbanez_v. Florida Dep't of Business and Professional

Regulation, Board of Accountancy, 512 U.S. 136, 114 S.Ct.

'® The State's interest, in fact, is the reverse. The State has a profound

interest in students making informed choices about education.

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2084, 2091, 129 L.Ed.2d 118 (1994) ("[w]e have never

sustained restrictions on constitutionally protected speech

based on a record so bare as the one on which the Board

relies here.") It is difficult to imagine that a student-athlete

would be harmed simply by hearing that a school outside his

zone would be interested in him or her. It is difficult to

imagine that a student-athlete who did not have the financial

means to attend a private or parochial school would be

harmed simply by an offer of financial aid that would allow

him to attend the school.

There is also no evidence in the record that the ban

prevents athletes from obtaining an "unfair" advantage over

other students. In fact, the ban has the result of penalizing

athletes by prohibiting them from being approached with

offers of educational opportunities when schools may freely

approach, and make offers to, students with other talents.”

Student-athletes are being punished, rather than favored, for

their talents.

Furthermore, Defendants have not explained the

purpose for the feeder school exception. If conveying

information to student-athletes about opportunities to attend

out-of-zone schools is harmful to these students, the logical

conclusion is that these students would also be harmed

through recruiting by representatives of "feeder schools."

The TSSAA cannot have it both ways. -

Certainly, the TSSAA's legitimate interest in

preventing harm to student-athletes can be better served by

means less intrusive than the Recruiting Rule ban. For

instance, fraudulent conduct and intimidation could be

'? In that regard, the Court notes that listeners, as well as speakers, have

First Amendment interests that deserve protection, interests that may be

asserted by those who wish to reach those listeners. See, ¢.g., Virginia

Virginia Cit 425

U.S. 748, 96 S.Ct. 1817, 1823 n.15, 48 L.Ed.2d 346 (1976).

47-B

prohibited, and the TSSAA could require parental

involvement, if necessary. See Schaumburg, 100 S.Ct. at

836-47; Riley v. National Federation of the Blind of North

Carolina, Inc., 487 U.S. 781, 108 S.Ct. 2667, 2676, 101

L.Ed.2d 669 (1988). The Court agrees with Plaintiff that the

Rule's ban has the effect of preventing any influence on a

student, not just "undue" influence. The ban is simply not

the "least restrictive means" for preventing harm to student-

athletes. The TSSAA needs to go back to the drawing board

and start over.

Thus, the Court concludes that the Recruiting Rule

ban cannot be applied in a valid manner, and is therefore,

facially unconstitutional. See, e.g., Members of City Council

of City of Los Angeles v. Taxpayers for Vincent, 466 U.S.

789, 104 S.Ct. 2118, 2124, 80 L.Ed.2d 772 (1984).

The ban also violates the First Amendment as applied

to the facts in this case because there is no evidence that

penalizing the conduct at issue here even remotely furthered

the legitimate interests identified above. The letter sent by

Coach Flatt invited students who had already signed

enrollment contracts with the school to Spring football

practices, advised the students that they were not required to

attend the practices, and set forth the schedule for practices.

The phone calls Coach Flatt made after sending the letter

were simply to reiterate to the recipients that they should not

participate in practices if their participation conflicted with

activities at the schools they were currently attending.

There is no evidence in the record to suggest that

these students were, or were likely to be, harmed by

receiving information about Plaintiff s Spring football

practice. The Spring Practice Letter, and follow-up

telephone calls, could not have constituted "undue influence"

of the students to attend Brentwood Academy. The students

who received the letters and calls had already contractually

48-B

agreed to attend the school. Whatever influence the letters

and calls had was "due," rather than "undue," given the

legitimate need for a school to communicate such

information to its students.

Furthermore, Defendants have admitted that the

Recruiting Rule does not prohibit incoming students from

participating in spring football practice at a school they plan

to attend the next fall.” Therefore, the TSSAA has

prohibited speech with regard to conduct it recognizes as

lawful under the regulations. Defendants have asserted no

legitimate justification for penalizing Plaintiff's

communication about this admittedly legal activity.

Defendants also argue that the restriction is justified

because the State may specify those who are allowed to

speak under certain circumstances, citing Minnesota State

Board For Community Colleges v. Knight, 465 U.S. 271,

104 S.Ct 1058, 79 L.Ed.2d 299 (1984); Comelius v. NAACP

Legal Defense Ed. Fund, 473 U.S. 788, 105 S.Ct. 3439, 87

L.Ed.2d 567 (1985); and Perry Education Ass'n v. Perry

Local Educator's Ass'n, 460 U.S. 37, 103 S.Ct. 948, 74

L.Ed.2d 794 (1983). These cases do not advance the

analysis here because they all involve the extent to which the

government may limit access to public property, or may limit

access to government officials or employees by those

wishing to express their views. The ban in this case does not

limit access to public property or public officials or

employees. It limits access by certain speakers to certain

potential listeners. Indeed, by restricting the speech of

coaches, it limits the most informed speakers on the subject

of athletics. As discussed above, the First Amendment is

2° The Court notes the absurdity of TSSAA's position that coaches cannot

contact students until they attend school for three days, but these same

students can attend spring practice. How can a coach hold a practice

with students that he or she cannot contact?

49-B

much less tolerant of the restrictions involved here. See

Belloti, 98 S.Ct. at 1420. (The government is

"constitutionally disqualified from dictating the subjects

about which persons may speak and the speakers who may

address a public issue.")

D.

Defendants also argue that even if the Rule's ban is

content-based, it should be analyzed under the more relaxed

scrutiny applied to "commercial speech" under the First

Amendment. The Supreme Court has explained that "'the

test for identifying commercial speech" is whether the

communication involves "the proposal of a commercial

transaction." City of Cincinnati v. Discovery Network, Inc.,

507 U.S. 410, 113 S.Ct. 1505, 1513, 123 L.Ed.2d 99 (1993)

(quoting Board of Trustees of State University of N.Y. v.

Fox, 492 U.S. 469, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989)).

The Court is not persuaded that the ban in this case

should be characterized as regulating only commercial

speech. The ban is not limited to a school's advertisements

and/or solicitations, but covers all speech by a school

representative with a student until the student has attended

the representative's school for three days. Indeed, as Plaintiff

points out, the communication for which Plaintiff was

punished in this case did not involve solicitation or

recruiting, but merely conveyed information about spring

football practice to students who had signed enrollment

contracts with the school. Furthermore, the ban also applies

to coaches of public schools who seek to contact students

attending schools that are not "feeder schools." Since public

school students do not pay tuition, a student's enrollment in a

particular public school would not constitute a"commercial"

transaction. By the same token, it is not at all clear that a

student's enrollment in a private school that provided a full

scholarship to the student would constitute a "commercial"

50-B

transaction. Thus, the Rule's ban does not limit purely

commercial speech.”!

Even if Defendants are correct in _ their

characterization of the speech involved here, however, the

ban does not survive even the more relaxed scrutiny

accorded commercial speech regulations. Regulation of

commercial speech is subjected to "intermediate" scrutiny

under a framework set forth in Central Hudson Gas & Elec.

Corp. v. Public Serv. Comm'n of N.Y., 447 U.S. 557, 100

S.Ct. 2343, 2350, 65 L.Ed.2d 341 (1980). Florida Bar v,

Went For It, Inc., 515 U.S. 618, 115 S.Ct. 2371, 2375-76,

132 L.Ed.2d 541 (1995). Under Central Hudson,

commercial speech that concerns a lawiui activity and that is

not misleading may be regulated if the government

demonstrates that:” (1) it has a substantial interest in

2! As the Supreme Court has pointed out, speech does not retain its

commercial character "when it is inextricably intertwined with otherwise

fully protected speech." Riley, 108 S.Ct. at 2677.

” Since Virginia Board of Pharmacy, 96 S.Ct. at 1817, the Court has held

that accurate and non-misleading commercial messages are protected by

the First Amendment. Only false, deceptive or misleading commercial

speech may be banned. Jbanez, 114 S.Ct. at 2088.

Defendants do not contend that the ban is justified because it

reaches only unprotected false, deceptive or misleading speech.

> It is well established that the party seeking to uphold a restriction on

protected commercial speech has the burden of justifying it. Ibanez, 114

S.Ct. at 2088 n.7. As the Supreme Court stated in [banez, 114 S.Ct. at

2089:

The State's burden is not slight; the ‘free flow of

commercial information is valuable enough to justify

imposing on would-be regulators the costs of

distinguishing the truthful from the false, the helpful

from the misleading, and the harmless from the

harmful.’

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support of its regulation; (2) the restriction on commercial

speech "directly and materially advances that interest;" ** and

(3) the restriction is "narrowly drawn." Florida Bar, 115

S.Ct. at 2376. Unlike rational basis review, this intermediate

level of scrutiny does not permit the court "to supplant the

precise interests put forward by the State with other

suppositions." 115 S. Ct. at 2376.

As discussed above, the Court recognizes that the

State has a compelling interest in preventing conduct that is

harmful to a student-athlete. Also, as explained above,

however, the ban does not directly and materially advance

that interest, nor is it narrowly drawn. Accordingly, even if

the ban could be construed as involving commercial speech,

it would still violate the First Amendment.

Defendants cite Ohralik v. Ohio State Bar Ass'n, 436

U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978) to support

their argument that "a prohibition on the exercise of ‘undue

(quoting iscipli

Qhio, 471 U.S. 626, 105 S.Ct. 2265, 2279, 85 L.Ed.2d 652 (1985)).

** Under the second prong of the Central Hudson test, Defendants must

show that the regulation directly and materially advances the articulated

interests. 44 Liguormart, Inc. v. Rhode Island, 517 U.S. 484, 116 S.Ct.

1495, 1509, 134 L.Ed.2d 711 (1996). Defendants may not rely on

speculation and conjecture in making this showing, but "must

demonstrate that the harms it recites are real and that its restriction will in

fact alleviate them to a material degree." Edenfield, 113 S.Ct. at 1800-

01. In that regard, the Court has explained that "broad prophylactic rules

may not be so lightly justified if the protections afforded by commercial

speech are to retain their force." Zauderer, 105 S.Ct. at 2281.

5 In Fox, 109 S.Ct. at 3034-35, the Court made it clear that commercial

speech analysis does not require that the regulation meet the "least

restrictive means test." Instead, there must be a "fit’ between the

legislature's ends and the means chosen to accomplish those ends. Id.

See also 44 Liquormart, 116 S.Ct. at 1509.

52-B

influence’ in the context of commercial speech has been

upheld under the First Amendment." (Defendants' Response

To Motion For Partial Summary Judgment, at 79 (Docket

No. 45). In Ohralik, the Ohio Supreme Court disciplined an

attorney for approaching an 18-year old accident victim in

the hospital, offering to represent her, and during a later visit,

obtaining her signature on a contingent fee agreement. 98

S.Ct. at 1915-16. The attorney visited another victim of the

accident, also 18-years old, at home and also secured her

signature on a contingent fee agreement. Id. Ohralik was

disciplined for violating a rule prohibiting a lawyer from

recommending himself or his associates to one who has not

sought his advice, and a rule that prohibits the acceptance of

employment by a lay person to whom the attorney has given

unsolicited advice. 98 S.Ct. at 1917 n.9. Neither of these

rules used the phrase "undue influence."

The Qhralik Court held that the State does not violate

the First Amendment by disciplining a lawyer "for soliciting

clients in person, for pecuniary gain, under circumstances

likely to pose dangers that the State has a right to prevent."

98 S.Ct. at 1915. In reaching its decision, the Court

determined that the State had a legitimate interest in

"preventing those aspects of solicitation that involve fraud,

undue influence, intimidation, overreaching, and other forms

of 'vexatious conduct." 98 S.Ct. at 1921.

As explained above, this Court agrees that the

TSSAA has an interest in preventing students from harmful

solicitations involving fraud, undue influence, intimidation

or overreaching, but Defendants have not shown that the

Recruiting Rule ban properly accomplishes that goal. As the

Supreme Court explained in a more recent case, this goal

does not justify blanket bans on all personal solicitations:

"the constitutionality of a ban on personal solicitation will

depend upon the identity of the parties and the precise

circumstances of the solicitation." Edenfield, 113 S.Ct. at

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1802. In striking down a ban on in-person solicitation by

Certified Public Accountants, the Court in Edenfield made it

clear that the Ohralik holding was limited: "Qhralik's

holding was narrow and depended upon certain ‘unique

features of in-person solicitation by lawyers’ that were

present in the circumstances of that case." Id. (quoting

Zauderer, 105 S.Ct. at 2277). The "unique features" of the

in-person solicitation in Ohralik were that a lawyer, who "is

trained in the art of persuasion," personally solicits an

"unsophisticated, injured, or distressed lay person" and seeks

the person's immediate acceptance of a retention agreement.

Id.

Unlike Ohralik, there is no evidence in the record that

a student's parents, who must make the ultimate decision

about which school their child will attend, would be

vulnerable to, and oppressed by, school representatives, or

that there would be pressure to make a decision on the spot.

See Edenfield, 113 S.Ct. at 1803 (". . . Ohralik in no way

relieves the State of the obligation to demonstrate that it is

regulating speech in order to address what is in fact a serious

problem and that the preventative measure it proposes will

contribute in a material way to solving that problem.")

Moreover, the facts in this case are that the Spring

Practice Letter, and follow-up calls, all went to students who

had already contractually agreed to attend Brentwood

Academy. The students and their parents had already

selected Brentwood Academy, and therefore, there was no

opportunity for solicitation, much less undue influence, as in

Qhralik. | Accordingly, Ohralik does not support the

constitutionality of the ban involved here.

E.

Even if the Recruiting Rule ban were not content-

based, it would still run afoul of the First Amendment for

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another reason. By using the phrase "appropriate or normal"

to define the already imprecise term "undue influence," the

TSSAA retains unbridled discretion to penalize those

expressing points of view with which it disagrees. Forsyth

County, 112 S.Ct. at 2401-02.” Indeed, the TSSAA invoked

these vague terms in finding Plaintiff in violation of the

Recruiting Rule, but did not explain how the students

involved were harmed. See Exhibit A to Complaint (Docket

No. 1) ("This entire process [sending letters and calling those

who had signed enrollment contracts] is seen as beyond what

is normal and appropriate and is undue influence.")

The word "appropriate" is defined in Webster's Third

New International Dictionary as "specially suitable."

Webster's Third New International Dictionary 106 (1993).

The word "normal" is defined as "according to, constituting,

or not deviating from an established norm, rule, or

principle." Id. at 1540. Neither of these definitions sheds

any light on how to determine an "established norm," or to

whom the conduct must be "specially suitable." Nor do they

add any precision to the phrase "undue influence."

Accordingly, the TSSAA is free to use the Recruiting Rule to

arbitrarily Suppress speech in violation of the First

Amendment.”

7° That the TSSAA allows members to seek advice about how the

Recruiting Rule will be interpreted does not eliminate the discretion it

retains to apply those subjective terms in an arbitrary fashion.

27 Because the Court has determined that the Recruiting Rule is

unconstitutional by violating the First Amendment, it is unnecessary to

address Plaintiff's argument that the Rule also violates its substantive due

process rights under the Fourteenth Amendment because it is void for

vagueness. The Court is persuaded, however, that the terms

“appropriate,” "normal," and “undue influence" would also be

unconstitutionally vague for purposes of the Fourteenth Amendment.

These terms have "no settled usage or tradition or interpretation in law."

Gentile v. State Bar of Nevada, 501 U.S. 1030, 111 S.Ct. 2720, 2731,

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115 L.Ed.2d 888 (1991). Consequently, the Rule fails to provide "fair

warning” to those to whom it is directed, and is so imprecise as to present

a real "danger" of arbitrary and discriminatory application." Grayned v.

City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 2299, 33 L.Ed.2d 222

(1972).

The Rule prohibits the use of "undue influence," and that

phrase, by its very nature, requires further explanation. The TSSAA

defines the phrase "undue influence" by raising and answering five sets

of questions and promulgating guidelines. It is unclear if the

explanations expand the scope of the Rule, or if the Rule limits the

expansive prohibitions that follow it.

In any event, the first question and answer used to define “undue

influence" only makes matters worse. The TSSAA defines "undue

influence" as "exceeding what is appropriate or normal." The phrase

“appropriate or normal” could not be more vague. The words

“appropriate” and "normal" are among the most relative terms in the

English language. "Appropriate" or "normal" compared to what?

These profound defects could perhaps be ameliorated if

“appropriate or normal" was clearly defined. However, nowhere in the

Rule is the phrase “appropriate or normal" defined. Any yet, to further

complicate matters, the TSSAA emphasizes the importance of the

“appropriate or normal" standard by stating in its "Guidelines For

Understanding The ‘Recruiting Rule’ and Understanding ‘What Is Undue

Influence:

The major theme of the “recruiting rule" is not "initial

contact." The major theme is "exceeding what is

normal and appropriate.” Initial contact can be a

violation, but is only one of many things that can

exceed what is normal and appropriate.

(emphasis added). Despite this statement, a major theme of the

Recruiting Rule is vagueness.

The phrase "appropriate or normal" adds nothing to the

definition of “undue influence,” and is essentially meaningless. This

vague Rule permits the TSSAA to engage in arbitrary and discriminatory

enforcement precisely, the claim made by Brentwood Academy in this

case.

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In summary, the Court has determined that the

Recruiting Rule violates the First Amendment on its face and

as applied, and that Plaintiff is entitled to summary judgment

as to Count I. Defendants are hereby enjoined from any use

of the Recruiting Rule.”

Having found the Recruiting Rule unconstitutional,

all sanctions imposed by the TSSAA on Brentwood

Academy pursuant to the August 23, 1997 letter from the

TSSAA to Brentwood Academy (Exhibit G to Complaint

(Docket No. 1)) are void and unenforceable. The sanctions

imposed are not itemized by type of violation. Therefore, to

ensure that the First Amendment is not violated, all sanctions

must be set aside.

Plaintiff alleges, in Count III of its Complaint, that

Defendants' actions have violated Plaintiffs Fourteenth

Amendment rights to procedural due process. For purposes

of its Motion for Partial Summary Judgment, Plaintiff argues

two specific procedural due process nights which were

allegedly violated by Defendants: (1) the right to a neutral,

impartial and detached decision maker and (2) the right to

confront and cross-examine adverse witnesses.

The requirements of procedural due process apply

only to the deprivation of interests encompassed by the

Fourteenth Amendment's protection of liberty and property.

Board of Regents of State Colleges v. Roth, 408 U.S. 564,

569, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972). Thus, the

Court must first determine whether Plaintiff has been

8 Thus, the Court need not address whether the Recruiting Rule violates

substantive due process standards because it permits a member school to

be punished for the conduct of someone unconnected with the member

school.

57-B

deprived of a property or liberty interest protected by the

Constitution. Plaintiff asserts that it has property interests in

both the fine assessed against it by Defendant and the

contract rights to which it is entitled as a member of the

TSSAA. Plaintiff further asserts that it has liberty interests

in its reputation and opportunities for attracting students and

raising funds for the school.

_ "The Fourteenth Amendment's procedural protection

of property is a safeguard of the security of interests that a

person has already acquired in specific benefits. These

interests property interests may take many forms.” Id.,

408 U.S. at 576, 92 S.Ct. at 2708. Property interests are not

created by the Constitution. Rather they are created and their

dimensions are defined by existing rules or understandings

that stem from an independent source such as state law

rules of understandings that secure certain benefits and that

support claims of entitlement to those benefits. Id., 408 U.S.

at 577, 92 S.Ct. at 2709.

The Court finds that Plaintiff, at a minimum, has a

property interest, in the $3,000 fine assessed against it by the

TSSAA.” Accordingly, the Court need not address, at this

time, Plaintiffs other asserted constitutionally-protected

rights. Plaintiff was entitled to the constitutional protections

of procedural due process in this case.

See.e.g., G&G Fire Sprinklers, Inc. v. Bradshaw, 136 F.3d 587 (9th

Cir. 1998) (subcontractor had due process property interest in money

withheld by state); j j i

i 1994 WL 455553 (S.D. N.Y. Aug.

19, 1994) (property interest in money allegedly exacted for payment of

fines for traffic violations); Jones v. Cowley, 1991 WL 252667 (10th Cir.

Nov. 26, 1991) ("Certainly, there is no doubt that the $15 fine is a

deprivation of a property interest."); Murray v. Dosal, 1998 WL 385915

(8th Cir. July 13, 1998) (inmate has property interest in money received

from outside sources).

58-B

There are clear issues of fact, however, as to what

process Plaintiff was given and whether that process was

sufficient to meet the requirements of the Fourteenth

Amendment. For example, there are genuine issues of

material fact as to the extent of Defendant Carter's

involvement and influence beyond the initial fact-finding

investigation in this case. See, e.g., Plaintiff s Response to

Defendants' Statement of Undisputed Facts (Docket No. 70),

79. There are genuine issues of material fact as to whether

the second appeal, to the TSSAA Board of Control, was truly

a de novo review. Id., J10. There are genuine issues of

material fact as to whether bias or prejudgment played any

part in the decision making process. Id., J] 9, 10, 15. There

are genuine issues of material fact as to whether Plaintiff was

given meaningful opportunities for confrontation and cross-

examination of adverse witnesses. i, Will, 2;

Defendants' Local Rule Response (Docket No. 46), 4 51,

95, 98.

Accordingly, Plaintiff's Motion for Partial Summary

Judgment, on the issue of procedural due process, is

DENIED.

VII. Defendants’ Motion for Summary Judgment

Also pending before the Court is Defendants’ Motion

for Summary Judgment (Docket No. 47), in which

Defendants seek judgment on Plaintiff's federal and state law

claims, with the exception of the antitrust claims.

Defendants contend that, because they are not "state

actors," they are entitled to summary judgment on Plaintiff's

constitutional claims. For the reasons stated above, the

Court has found that Defendants are "state actors" and,

therefore, Defendants’ Motion for Summary Judgment on

this issue is DENIED.

59-B

In addition, Defendants argue they are entitled to

summary judgment on Plaintiff's state law claims. Those

claims are set forth in Counts V and VI of Plaintiff's

Complaint (Docket No. 1).

In Count V, Plaintiff alleges a cause of action for

equitable estoppel. Defendants contend that none of the acts

alleged by Plaintiff are sufficient to create an equitable

estoppel under Tennessee law. What both parties overlook is

the fact that there is no cause of action for equitable estoppel

under Tennessee law. Val-Land Farms, Inc. v. Third Nat'l

Bank in Knoxville, 937 F.2d 1110, 1115 (6th Cir. 1991).

Accordingly, Defendants' Motion for Summary Judgment on

Plaintiff's purported claim of equitable estoppel (Count V) is

GRANTED, and that claim is DISMISSED.

In Count VI, Plaintiff alleges a cause of action for

"unfair, unreasonable, arbitrary and oppressive action" in

violation of Plaintiff's rights under state law. Defendants

contend that they are entitled to summary judgment on this

claim because their actions with regard to Plaintiff were

conducted in good faith and that the Court should not

interfere with the internal affairs of a voluntary association.

Whether Defendants' actions were unfair, unreasonable,

arbitrary and oppressive or whether they were taken in good

faith all raise genuine issues of material fact. See.e.g.,

Plaintiff's Response to Defendants' Statement of Undisputed

Facts (Docket No. 70), $f] 9, 10,.11, 12, 15. Whether

TSSAA is a voluntary association is a disputed issue of fact.

Id., 2,4, 44. The parties clearly disagree as well about

what actions were taken, what motivated those actions, and

what resulted from those actions. Accordingly, Defendants’

Motion for Summary Judgment with regard to Count VI is

DENIED.

60-B

VIII. Conclusion

For the reasons described above, Brentwood

Academy's Motion for Partial Summary Judgment and for

Permanent Injunction (Docket No. 27) is GRANTED in part

and DENIED in part. Brentwood Academy's Motion is

GRANTED as to its claim that TSSAA's Recruiting Rule

violates the First Amendment on its face, and as applied to

Brentwood Academy. Accordingly, Defendants are hereby

enjoined from any use of the Recruiting Rule. All sanctions

imposed by the TSSAA on Brentwood Academy pursuant to

the August 27, 1997 letter from the TSSAA to Brentwood

Academy (Docket No. 1, Ex. G) are void and unenforceable.

Defendants' Motion for Summary Judgment (Docket

No. 47) is GRANTED in part and DENIED in part.

Defendants’ Motion is GRANTED as to Plaintiff's equitable

estoppel claim and that claim is DISMISSED.

It is so ORDERED.

Is/__

Todd J. Campbell

United States District Judge

. No. 98-6113

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRENTWOOD ACADEMY,

Plaintiff/Appellee,

)

)

)

)

v. ) ORDER

)

TENNESSEE SECONDARY ‘)

SCHOOL ATHLETIC )

ASSOCIATION, ET AL., )

)

)

Defendants/Appellants.

BEFORE: Guy, Suhrheinrich and Gilman, Circuit Judges

The court having received a petition for rehearing en

banc, and the petition having been circulated not only to the

original panel members but also to all other active judges of

this court, and no judge of this court having requested a vote

on the suggestion for rehearing en banc, the petition for

rehearing has been referred to the original panel.

The panel has further reviewed the petition for

rehearing and concludes that the issues raised in the petition

were fully considered upon the original submission and

decision of the case. Accordingly, the petition is denied.

ENTERED BY ORDER

OF THE COURT

/s/ lerk

[Filed October 29, 2001]

1-C

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 98-6113

Filed: December 3, 2001

BRENTWOOD ACADEMY,

Plaintiff-Appellee,

v.

TENNESSEE SECONDARY

SCHOOL ATHLETIC

ASSOCIATION, ET AL.,

a a a a a a

Defendants-Appellants.

MANDATE

Pursuant to the court’s disposition that was filed

8/23/01, the mandate for this case hereby issues today.

A True Copy.

COSTS: NONE

Attest:

_/s/ Yvonne Henderson __

Deputy Clerk

TENNESSEE SECONDARY SCHOOL

ATHLETIC ASSOCIATION

BYLAWS

kets

Article II

Eligibility Rules

The member high schools of the Tennessee Secondary

School Athletic Association have adopted, through their

elected representatives, an essential inter-related group of

minimum eligibility requirements which establish the

threshold for participation for all students within the

interscholastic program and which work together to define

and preserve the fundamental nature of the program.

zeek*e

Recruiting Rule

Section 21. The use of undue influence on a student (with or

without an athletic record), the parents or guardians of a

student by any person connected, or not connected, with the

school to secure or to retain a student for athletic purposes

shall be a violation of the recruiting rule.

1.

Q. How is undue influence interpreted in the recruiting rule?

A. A person or persons exceeding what is appropriate or

normal and offering an incentive or inducement to a

student with or without an athletic record.

1-D

2.

Q. What is the penalty for violation of the recruiting rule?

A. Violation of the recruiting rule shall cause the student to

be ineligible at the school in violation, and a penalty shall

be placed against the school.

3.

. Is it permissible for a coach to contact a student or his or

her parents prior to his enrollment in the school?

. No, a coach may not contact a student or his or her

parents prior to his enrollment in the school. This shall

apply to all studemrs whether or not they have an athletic

record.

a

. What are some of the guides used in determining whether

there has been undue influence used which would reuslt

in a violation of the recruiting rule?

. Some examples are, but not limited to:

1. Providing of transportation oor other

inducement to any prospective student/athlete

to take a qualifying examination at a school,

meet with school officials, etc.

2. Discussion of financial aid based on need

with any prospective student/athlete by any

member of the coaching staff until the student

has enrolled in school (attended 3 days of

school). All financial aid questions should be

2-D

\

referred to the principal or the person in

charge of financial aid. If the person in

charge of financial aid is a coach, prior

approval must be granted by the Executive

Director of TSSAA.

3. Any initial contact or prearranged contact by

a member of the coaching staff or

representative of the school and a prospective

student/athlete enrolled in any member school

except where there is a definite feeder pattern.

4. Any initial contact or prearranged contact by

a member of the coaching staff or

representative of the school and a prospective

student/athlete in the seventh grade and above

at any non-member school except where there

is a definite feeder pattern involving the

schools.

Public high schools may contact public feeder schools

(elementary, middle school, junior high school) where

there is a definite feeder pattern. Private or parochial

schools may contact private schools (elementary, middle

school, junior high school) where there is a definite

feeder pattern.

Private or parochial schools may not contact students

enrolled at the public schools. Public schools may not

contact students enrolled at the private schools.

~ 5. Any contact between a member of the

coaching staff or representative of the school

and prospective student/athletes prior to,

during, or after contests at elementary

schools, middle schools, and junior high

3-D

schools except where there is a definite

pattern.

6. A member school is prohibited from giving

any item with school advertisement (shirts,

pennants, caps, jackets, etc.)

7. Admitting students to athletic contests free of

charge where there is an admission being

charged at the contest except where there is a

definite feeder pattern involved with the

school.

5.

Q. What is allowed by member schools in contacting

prospective students?

A. A representative of the school may meet with students at

a school that is defined as a feeder school or meet with

students who are zoned to attend that school the following

year. This visit must be cleared by the principals of both

schools. |

Guidelines For Understanding The “Recruiting Rule”

and Understanding “What Is Undue Influence?”

l. The major theme of the “recruiting rule” is not

“initial contact.” The major theme is “exceeding what is

normal and appropriate.” Initial contact can be a violation,

but is only one of many things ‘that can exceed what is

normal and appropriate.

2. One key is not treating “athletes” or “prospective

athletes” any differently than students who are not athletes.

4-D

3. Students should be seen as students and not singled

out based on their potential athletic ability.

4 Pre-arranged contact is seen in the same manner as

initial contact.

5. Any student or family or individual that contacts a

coach about attending a school where he or she coaches

shou'd be informed that they need to contact the principal,

admissions department, or guidance department if they have

an interest.

6. Any meeting with coaches regarding athletes or

prospective athletes or their families should be at the request

of the family to the individual(s) responsible for admissions

and should take place at the school.

vs High school athletics is not the same as colleges

recruiting high school athletes for college athletics. High

school athletics exist for an entirely different reason. High

school coaches should not view 12-, 13-, 14-year-old

students in the same manner as college coaches view high

school seniors.

8. Administrators and coaches must realize that they

have more responsibilities than the general public to

understand the purpose of high school athletics, the

principles behind the TSSAA rules, etc., and to maintain a

level of understanding and purpose when dealing with the

general public and students.

*eekeek

Special Cases Involving Hardship

Section 30. Except for the eligibility rules in regard to age

and to the number of semesters in school, the Executive

Director shall have authority to set aside the effect of any

eligibility rule upon an individual student when in his

opinion the rule fails to accomplish the purpose for which it

is intended or when the rule works an undue hardship upon

the student.

eektk

6-D

No. 98-6113

IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRENTWOOD ACADEMY,

Plaintiff/Appellee,

v.

TENNESSEE SECONDARY SCHOOLS ATHLETIC

ASSOCIATION

and RONNIE CARTER, Executive Director

and Individually,

Defendants/Appellants.

APPEAL FROM A DECISION OF THE

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

BRIEF OF AMICI CURIAE CHESTER E. FINN, JR.

AND DANIEL CASSE IN SUPPORT OF

PLAINTIFF/APPELLEE BRENTWOOD ACADEMY’S

PETITION FOR REHEARING EN BANC *

* This brief was filed in support of Brentwood

Academy's initial Petition for Rehearing En Banc but was

not accepted for filing pursuant to Rule 29(e), Federal Rules

of Appellate Procedure.

1-E

We file this statement as individuals, on our own

behalf. We are not lawyers but policy analysts long-

interested in education matters, and particularly in issues

relating to accountability of public education systems and

officials and to access to quality educational opportunity for

all students. The panel decision in this case has been

brought to our attention, and we want to share with the full

Court our perceptions and concerns about what we regard as

an important case and what seems to have been a most

cursory treatment of serious matters by the panel opinion.

We should identify ourselves, although we reiterate

that we speak on our own behalf and not as representatives

of any organization or group (although we do think of

ourselves as speaking, as we often have, on behalf of the

cause of education accountability, access and quality).

Chester E. Finn, Jr. is the President of the Thomas B.

Fordham Foundation, which is officed in Washington D.C.

and does much of its work in Dayton, Ohio. The Foundation

supports research on national education issues, including

accountability and access. It widely disseminates the results

of this research to policymakers, civic leaders and influential

educators. In the Dayton area, where the Foundation has

historical roots, it supports education activities designed to

boost school quality, accountability, parent information and

choice, particularly for disadvantaged youngsters heretofore

trapped in unsatisfactory schools. Dr. Finn holds the

bachelors, masters and doctorate degrees from Harvard

University and has devoted his career to educational policy

issues.

Dr. Finn has been involved in public service ranging

from serving as an aide to Daniel Patrick Moynihan when

Mr. Moynihan was Ambassador to India and U.S. Senator to

serving as Assistant Secretary of Education for Research and

2-E

Improvement under Education Secretary William Bennett,

with whom Dr. Finn is currently co-authoring a book on

education (a parents’ guide). For many years, Dr. Finn was

affiliated with Vanderbilt University and the Hudson

Institute and is now affiliated with the Manhattan Institute.

Dr. Finn was also a founding member of the Edison Project,

headed by former Yale University President Benno Schmidt,

which designed alternative models for schools. Dr. Finn has

done research on and is an expert on charter schools. He is

also in the final stages of a book on that topic.

Daniel Casse is a senior director of the White House

Writers Group, a public policy and strategic planning group.

Mr. Casse received the bachelor's degree from the University

of Toronto and his masters in public administration degree

from the Kennedy School of Government Harvard

University. He has served in the White House as special

assistant to President Bush for Cabinet Affairs. Previously

he had worked for William Bennett at both the U. S.

Department of Education and National Office of Drug

Control Policy. A former managing editor of The Public

Interest, a public policy quarterly, his writing on politics and

public policy has appeared in The Wall Street Journal,

Commentary, and Policy Review. During the 1996

presidential campaign, Mr. Casse was a senior policy advisor

to candidates Lamar Alexander and, later, Bob Dole.

I. The Reason for Concern: What This Case Is

Really About.

While we are not constitutional scholars, we are

scholars and policy analysts with strong interests in the area

of public school officials' accountability for, and young

people's access to quality educational opportunity. We are

concerned that the panel opinion in this case misperceived

the importance of the issues raised and tended to view the

3-E

case — somewhat dismissively — as merely a high school

sports case. As non-lawyers, we have great reverence for

our judicial system, and indeed the sister of one of us is a

judge herself. So we are quite sympathetic to what seems to

be the panel's concern about the potential for heavy-handed

judicial intervention in seemingly private matters of scant

public consequence. In particular, we applaud the panel's

general instinct that courts should not reach out to

constitutionalize everyday behavior in the private realm. We

concur that preserving a private realm beyond the scope of

constitutional intrusion is an important value. Our concern is

not with that principle underlying the panel's decision ut

with its application in the context of this case.

To state the point boldly, we think that the panel

judged this book by its cover without peering very far inside

to see what was written there. The sympto

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