Reply Brief — Brentwood Academy v. Tennessee Secondary School Athletic Assn.

No. 99-901

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JUL 2 1 2900

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IN THE eae

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Supreme Court of the United States

BRENTWOOD ACADEMY,

V.

Petitioner,

TENNESSEE SECONDARY SCHOOL ATHLETIC

ASSOCIATION and RONNIE CARTER,

Executive Director and Individually,

ON WRIT OF CERTIORARI TO THE

UNtrTeD STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Respondents.

REPLY TO BRIEF OF RESPONDENTS

H. LEE BARFIELD II

Counsel of Record

BASS, BERRY & SIMS PLC SCHOOL OF LAW

2700 First American Center 209-B Law Building

Nashville, TN 37238

(615) 742-6200 (615) 322-2613

G. THOMAS N/EBEL

501 Union Street

Nashville, TN 37219

(615) 244-4700

JAMES F. BLUMSTEIN

VANDERBILT UNIVERSITY

Nashville, TN 37240

j

i

TABLE OF CONTENTS

Page

BAe GP AUTIIAEIID 6 occ cecceccedcesscenees ill

a Areas No Longer Analytically Contested

Or Matters Influenced By Subsequent Decisions

ge Be en rrr rrr |

Il. The Source Of Authority Issue ................ 8

A. The Voluntariness Issue ................ 9

B. The Regulatory Conduct Of TSSAA Is

Controlled By Local Public Schools And Public

School Officials Acting Ex Officio And As

Such Is A "Rule Of Conduct Imposed By The

BT MH inne bce é dae daindas 11

tos SBE’s 24-Year Designation Of TSSAA To

Regulate Interscholastic Athletics And The

Ongoing Effect Of SBE’s Continued

Recognition Of TSSAA’s Regulatory Role

Mean That TSSAA’s Regulatory Conduct

Constitutes "The Exercise Of Some Right Or

Privilege Created By The State" Under

A ere eee Te se eee ere ie 12

D. SBE’s Designation Of TSSAA To Regulate

Interscholastic Athletics As Its Agent

Constitutes A "Right Or Privilege Created By

The State" Under Lugar Whether Or Not SBE

Acted With Legislative Authorization .... 14

Ill. | Under Tarkanian, TSSAA’s Regulatory Conduct Is

Fairly Attnbuted To The State Because TSSAA Is

Controlled By Public Schools And Public School

Ollfotals ... . oc ccasceudameeerceaeeeteee 15

Comemegiem «oc ccc ccccts chee eee. 18

ili

TABLE OF AUTHORITIES

FEDERAL CASES

Adickes v. S.H. Kress & Co.,

| |) ee rn 14,15

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

TE CIE sa ciccsvarssckavvaavsososbdinadnvhonncanaiants 9

Bates v. State Bar, 433 U.S. 350 (1977) .........ccssccssscesseeeeees 9

Board of County Comm’rs v. Umbehr,

I EEE sivecasccesssasexiencssncssesuccnenssscbsivens 10

Board of Regents v. Southworth,

NE FPL AUID csacicinnisepesescesesesesscsensectenases 5, 6

Bowsher v. Synar, 478 U.S. 714 (1986) ........ccccseceeseeseeees 17

Branti v. Finkel, 445 U.S. 507 (1980) ............csscccssssrcesseees 10

Cleveland Bd. Of Educ. v. Loudermill,

I OEE PIED ciidicceisvsrisicsnasnsdssnserosresnusiuaesaes 10

Communities for Equity v. Michigan High

Sch. Athletic Ass’n, 80 F. Supp. 2d 729

a I cick icicreilbncseh ayncevien bine cennininiandonenne’ 1

Edmonson v. Leesville Concrete Co., Inc.,

I I eas ions s: ndatsaousaienibasildgabanesiele 4

Gebser v. Lago Vista Indep. Sch. Dist.,

I BIE CRY feriicckcthissnaiinivnvediceitisasvidtnienviasnninn 2

Georgia v. McCollum, 505 U.S. 42 (1992) ........ceeeeeeeees 4,8

iv

Goldberg v. Kelly, 397 U.S. 254 (1970) uu... .eccseescsesseeeeees 10

Goss v. Lopes, 419 US. SES CIFTS). scssssecsercesscccsccasseses 10, 11

Holy Cross College, Inc. v. Louisiana High Sch.

Athletic Ass’n, 632 F.2d 1287 (Sth Cir. 1980) ......... 2

Jackson v. Metropolitan Edison Co.,

OF es ee Ge waite dni 13

Lebron v. National Railroad Passenger Ass'n,

FES Mis SO EOD \icvieshinissendasiniieiidntninriasetieses 7,17

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

PRUNE scckatisctbineucninlsdetaacebrais uestckiiathbacsiannnlccgnnnbeass 9, 13

Metropolitan Washington Airports Auth. v.

Citizens for the Abatement of Aircraft Noise, Inc.,

RE Reais ee CRUD isd sncscccchsabicdanabintnnnstasieadaanionnes 4,17

Meyer v. Nebraska, 262 U.S. 390 (1923) ........ccscessssceeeeseeee 6

Nashville, C. & St. L. R. Co. v. Browning,

Be ei: Ne LE i necetiiaseacsnainiidae teicatesniains 14, 15

NCAA v. Tarkanian, 488 U.S. 179 (1988) .............. 1, 15, 16

O’Hare Truck Serv., Inc. v. City of Northlake,

FE Sek Fe COTE Sicinnbanacedetccnnistsinasieniscnniainaeccinn 10

Pierce v. Society of Sisters, 268 U.S. 510 (1925) «0.0... 7

San Francisco Arts & Athletics, Inc. v. United States

Olympic Comm., 438 U.S. 522 (1987) ............. 17, 18

Santa Fe Indep. Sch. Dist. v. Doe,

2000 U.S. LEXIS 4154 (June 19, 2000) .......... 3,4,5

Troxel v. Granville, 2000 U.S. LEXIS 3767

ORIG SF, FOU sssiscinhisindiinenminciststnanbictaiaiamamaaaninatins 7

Walsh v. Louisiana High Sch. Athletic Ass’n,

GEG FG. BS CO Gi, FD ccsvcicesscenncsetncnsicccccacene 2

West v, Alias, 457 UG. SE CIGD sininsscissccssnnmsssastensnnnssensiare 9

FEDERAL STATUTES

Mak GEER... GEINGD secsssssissnciaisiaiomibaesainnielanesataliaea bene 14

Wabi seie: Poe, aren . 2s +. oa * * BAS Ue, a ne al

i athe * 75.

“pate Tae ee EOS

I. Areas No Longer Analytically Contested or

Matters Influenced By Subsequent Decisions of

This Court

At the outset, it is appropriate for petitioner to

highlight some points that, as a result of respondents’

submission, are no longer in contention, or, as a result of

subsequent decisions of this Court, are viewed in a brighter

light.

1. The court of appeals found not “controlling” this

Court’s “comments” in footnote 13 in NCAA v. Tarkanian,

488 U.S. 179, 193 n.13 (1988), that the regulatory conduct of

high school athletic associations largely composed of and

controlled by public institutions from within a single state

would constitute state action. 180 F.3d at 766. The rationale

of the court of appeals was that “all nine justices agreed that

even if an athletic association is a state actor when dealing

with a public school, it ‘was not acting under color of state

law in its relationships with private universities.” Jd. That

analysis “misapplies the reasoning in JTarkanian.”

Communities for Equity v. Michigan High Sch. Athletic

Ass'n, 80 F. Supp.2d 729, 742 (W.D. Mich. 2000). See Brief

of Petitioner at 36-39. In their brief, respondents no longer

defend the court of appeals’ analysis of footnote 13, which

analysis should be viewed as discredited.

2. Respondents do not contest the point made by

Judge Merritt in his dissent to the denial of the petition for

rehearing en banc, 190 F.3d at 707, that the decision of the

court of appeals is out of sync with every other appellate

court to decide the state action status of the regulatory

conduct of high school athletic associations. See Brief for

Petitioner at 16-19. In its amicus curiae brief in support of

petitioner, the United States reinforces this point: “With the

exception of the court below, the courts of appeals have

uniformly held that athletic associations composed primarily

of public schools are state actors.” Bmnef for the United

States at 14. Neither respondents nor their amici cite

appellate authority from outside the Sixth Circuit supporting

the state-action holding of the court of appeals in this case

regarding the state-action status of the regulatory conduct of

a high athletic association.

This makes rather hollow the claim by respondents

and their association amici that reversal of the court of

appeais herein would open the “floodgates of potential

litigation arising out of extracurricular activities.” Brief of

Respondents at 33. See also Brief of Interscholastic

Associations at 7. The regulatory conduct of these

associations has been considered state action for over thirty

years, plenty of time for evidence to accrue. Respondents

and their amici can do no more than make unsubstantiated

pie-in-the-sky, Chicken-Little-type statements about the fear

of federal court litigation. Such non-meritorious litigation

has not proliferated. The reason is that the courts have

adopted substantive doctrines under equal protection and due

process that, properly, defer to the rational regulatory

judgments of these associations. See, e.g., Walsh v.

Louisiana High Sch. Athletic Ass’n, 616 F.2d 152 (5™ Cir.

1980).' This discourages inappropriate or unwarranted

litigation.’ For further elaboration of this point, see Brief of

' Cf. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998)

(requiring showing of actual notice and deliberate indifference before

school district can be held liable for damages under Title [X).

> Such deference would be inappropriate in a first amendment challenge

such as the one underlying the litigation herein. Petitioner has been able

to identify only one similar first-amendment-based lawsuit, Holy Cross

College, Inc. v. Louisiana High Sch. Athletic Ass'n, 632 F.2d 1287 (5™

Chester E. Finn, Jr. and Daniel Casse, CP 6-8-E [references

io the Petition for Writ of Certiorari and its appendices are

cited herein with a CP prefix].

3. For the court of appeals, the formal revocation by

the State Board of Education (SBE) of its “designation of

TSSAA to regulate and organize interscholastic athletics”

was “fundamental” in distinguishing earlier circuit

precedent. 180 F.3d at 765-66. The formal revocation of

TSSAA designation by SBE was determinative for the court

of appeals, even though the district court had found that

“(njothing about the function of TSSAA has changed” and

that there was no change in the “actual conduct of the

TSSAA.” CP 26-27-B. The court of appeals did not

consider the functional realities or the ongoing effect of past

state involvement.°

In his dissent, Judge Merritt criticized the failure of

the court of appeals to engage in a “’functional’ analysis of

Cir. 1980), even though the regulatory conduct of high school athletic

associations is considered state action in the third, fourth, fifth, seventh,

eighth, ninth, tenth, and eleventh circuits, as well as in numerous

individual states. See Brief for Petitioner at 17-19 & nn. 8-12; Brief for

the United States at 14 & n.2.

> Of. Santa Fe Indep. Sch. Dist. v. Doe, 2000 U.S. LEXIS 4154, at *33-

34 (noting importance of practical reality of ongoing effect of past

policy, despite nominal change in policy). In Santa Fe, this Court

observed that no new election was conducted under the new policy

regarding student-led prayer; the results of the election under the

ostensibly superseded policy remained in effect. The same occurred

when TSSAA was no longer formally designated by SBE to regulate

interscholastic athletics as SBE’s agent. When that formal designation

was changed to recognition, nothing of substance changed. The TSSAA

did not engage in any substantive review of its rules, policies or

procedures, including the Recruiting Rule under challenge. The same

previously SBE-approved rules remained in effect without review, even

after the formal! designation ostensibly terminated. CP 26-27-B.

the private ... agency in question to determine the degree of

‘cooperation’ between state and local officials and the

actor....” 190 F.3d at 707. In its brief, petitioner criticized

the lack of a functional analysis on the part of the court of

appeals. See Brief of Petitioner at 44-46 & n.44; 34-36 &

n.36. Respondents now apparently concede that a functional

analysis is appropriate in determining state action. Brief of

Respondents at 22 (“({T]he determination of whether an

organization controlled by public employees acts under color

of state law is based on a functional analysis’); 24 (the

“function served” by an individual “determines whether he is

acting under color of state law’). See West v. Atkins, 487

U.S. 42, 55-56 (1988)(“It is the ... function within the

system, not the precise terms of ... employment’ that

determines whether conduct “can fairly be attributed to the

State”). Cf Metropolitan Washington Airports Auth. v.

Citizens for the Abatement of Aircraft Noise, Inc., 501 U.S.

252, 267-69 (1991)(constitutional status turns on functional

realities); Santa Fe Indep. Sch. Dist. v. Doe, 2000 US.

LEXIS 4154, at *26 (“realities of the situation” control

constitutional analysis).

4. Respondents contend that “[t]he absence of the

feature of exclusivity is fatal to the public function theory of

state action.” Brief of Respondents at 17. Amici

Interscholastic Associations likewise focus on this state

action theory. Brief of Interscholastic Associations at 12-15.

Both in its Petition for Writ of Certiorari and in its brief,

petitioner has eschewed reliance on the “public function”

theory of state action. CP 29 n.18; Bnef of Petitioner at 45

n.43. No showing of exclusivity is required under the

applicable ‘theories. Compare Georgia v. McCollum, 505

U.S. 42, 51-53 (1992), and Edmonson v. Leesville Concrete

Co., Inc., 500 U.S. 614, 621-28 (1991) with id. at 639-40

(O’Connor, J., dissenting).

5. The constitutional significance of extracurricular

activities as an integral part of the educational process — and

particularly high school football — can no longer be doubted.

See Santa Fe Indep. Sch. Dist. v. Doe, 2000 U.S. LEXIS

4154, at *37-38; Board of Regents v. Southworth, 120 S. Ct.

1346, 1356-57 (2000). In Santa Fe, 2000 U.S. LEXIS 4154,

at *38, this Court recognized that “{h]igh school home

football games are traditional gatherings of a school

community; they bring together students and faculty as well

as friends and family from years present and past to root for

a common cause.” The “traditional indicia of school sporting

events ... generally include not just the team, but also

cheerleaders and band members dressed in uniforms sporting

the school name and mascot.” At these games, the “school's

name is likely written in large print across the field and on

banners and flags.” Further, “[t]he crowd will certainly

include many who display the school colors and insignia on

their school T-shirts, jackets, or hats and who may also be

waving signs displaying the school name.” /d. at *31. In

sum, interscholastic athletic contests “take place on

government property at government-sponsored school-

related events.” Jd. at *21-22. They are identified with,

inextricably intertwined with, and cannot be separated from

the school’s overall educational program.* Whether

* See Brief of Chester E. Finn, Jr. and Daniel Casse, CP 10-11-E

(“Extracurricular activities in general and sports in particular can serve as

pathways to opportunity for children from disadvantaged backgrounds....

[E}xtracurricular activities constitute an integral component of an overall

education for most youngsters.... Students learn in different ways, but

one essential ingredient is motivation..... [Extracurricular activities such

as athletics are important as a way of motivating young people....

participation by schools in interscholastic athletic contests is

voluntary or whether participation by individual public

school students is deemed fundamental is immaterial.”

6. School choice and access to quality education are

core concerns underlying this litigation. See CP 11-14; Bnef

for Petitioner at 24-26; Bnef of Chester E. Finn, Jr. and

Daniel Casse, CP 9-12-E. As the district court found, the

state has an appropriate interest in preventing coercion or

fraud but not in eliminating the flow of information that

could inform school choice for students and their parents. CP

45-46-B. The liberty interest of parents in the “care,

custody, and control of their children,” first established in

Meyer v. Nebraska, 262 U.S. 390, 399 (1923), and Pierce v.

a

Athletics can provide ... exposure to ideas and the motivation to learn.

They, like art, drama, and journalism, can serve as the hook to get the

attention of students and rivet it on the core curricular mission of the

schools”).

> Extracurricular activity is also important in a university’s educational

setting. In Southworth, this Court recently noted a university's strong

interest in supporting students’ speech in “their extracurricular campus

life.” 120 S. Ct. at 1356. If, however, a university supports that

extracurricular speech by the imposition of mandatory activity fees, the

university must “provide ... protection to its students’ First Amendment

interests” by respecting the principle of viewpoint neutrality. /d. A

student referendum that substitutes “majority determinations for

viewpoint neutrality” does not pass constitutional muster. /d. at 1357.

In this case, Tennessee’s public schools have authorized TSSAA

to regulate the speech of its members, including petitioner. Under

Southworth, strong first amendment interests are at stake when TSSAA,

as the agent for all the public schools in the state that field interscholastic

athletic teams, suppresses the speech of one of its minority (/.e., private

school) members. That interscholastic athletics constitute an

extracurricular component of the educational program of the high school

members of TSSAA does not denigrate the significance of the state's role

or the significance of the first amendment interests at stake.

Society of Sisters, 268 U.S. 510, 534-35 (1925), has recently

been reaffirmed by this Court. See Troxel v. Granville, 2000

U.S. LEXIS 3767, at *18; id. at *40-42 (Thomas, J.,

concurring); id. at *67 (Kennedy, J., dissenting).

_ This reaffirmation makes clear the stakes for parents

in having access to information regarding educational

opportunity for their children. Access to information about

alternative educational opportunities is the key underlying

first amendment issue in this case. The Recruiting Rule

adopted and enforced by TSSAA as agent for all public

schoois in Tennessee that play interscholastic athletics is a

barrier to information on educational opportunity — a barrier

that clearly would be subject to constitutional scrutiny if

adopted by any single public school to determine which

schools it would compete against in interscholastic athletics.

TSSAA’s position is that, by acting collectively and

organizing themselves into a nominally private corporate

form, the public schools that control TSSAA can avoid

constitutional scrutiny of their inhibitions on speech. But see

Lebron v. National Railroad Passenger Corp., 513 U.S. 374,

397 (1995)(“It surely cannot be that government, state or

federal, is able to evade the most solemn obligations

imposed in the Constitution by simply resorting to the

corporate form’’). ;

Petitioner contends that TSSAA’s regulatory conduct

is subject to constitutional scrutiny. TSSAA’s rules and

regulations govern the conduct of interscholastic competition

among all Tennessee’s public schools and among all private

schools that wish to play competitively against a public

school team.° TSSAA’s regulatory conduct is controlled by

* Only through membership in TSSAA is any private school assured of |

the ability to compete in interscholastic athletics against any public

school in Tennessee. Compare Article III, Section 1(a) of TSSAA’s by-

public schools and public school officials acting in their

official capacity. TSSAA’s rules and regulations govern

access to an important public resource — the ability of any

school to play interscholastic athletics with all of

Tennessee’s public schools. TSSAA is the regulator of

interscholastic athletics as the agent of Tennessee’s public

schools,’ and TSSAA’s regulatory conduct is fairly

attributable to the state as the “State [or local government]

cannot avoid its constitutional responsibilities by delegating

a public function to private parties.” Georgia v. McCollum,

505 U.S. 42, 53 (1992).

Il. The Source of Authority Issue

Under this Court’s state action cases, an alleged

constitutional deprivation must be “caused by the exercise of

some night or privilege created by the State or by a rule of

conduct imposed by the State or by a person for whom the

State is responsible." In addition, "the party charged with the

deprivation must be a person who may fairly be said to be a

laws, which blanketly authorizes play with TSSAA members, with

Section l(e), which requires game-by-game written approval of

TSSAA’s Executive Director for games between TSSAA members and

non-members. Under Section 1(e), the Executive Director has virtually

unconstrained discretion to approve or disapprove individual games

between TSSAA members and non-member private schools. Certain

TSSAA rules and regulations must specifically be complied with in order

for a non-member private school to be eligible for approval under Section

l(e). JA-126-27

” As TSSAA members, public schools delegate regulatory authority to

TSSAA and are subject to TSSAA rules. Thus, under Article II, Section

29 of TSSAA’s by-laws, TSSAA’s eligibility rules are binding on

TSSAA members and “shall not be set aside by mutual agreement for

any contests whatsoever nor shall they be supplemented in any contest

held under the jurisdiction of this Association.” JA-122-23.

state actor.” American Mfrs. Mut. Ins. Co. v. Sullivan, 119 S.

Ct. 977, 985 (1999)(quoting Lugar v. Edmondson Oil Co.,

457 U.S. 922, 937 (1982)).

Respondents contend that the first prong of this

analysis is not satisfied because “[t]here is no state law or

rule of conduct giving TSSAA the power to enforce its rules

against a private member school like Brentwood Academy.”

According to respondents, TSSAA’s power flows from the

“contract between TSSAA and Brentwood Academy” not

from “any authority of state law.” Since Brentwood

Academy “voluntarily elects to join TSSAA,” respondents

contend that “TSSAA did not act under color of state law

when it enforced its recruiting rule against Brentwood

Academy.” Brief of Respondents at 15.

Respondents’ contention in this regard is flawed for

four reasons.

A. The Voluntariness Issue

Respondents contend that petitioner’s ostensibly

voluntary participation in TSSAA means that TSSAA’s

enforcement of its rules against petitioner cannot have its

source in state law. This contention cuts with much too

broad a swath and is inconsistent with this Court’s cases.

Private parties seeking licensure from the state are

not compelled by state law to pursue their calling. They

voluntarily seek approval from the state to pursue their

business or their profession. The state’s regulatory conduct

has its source in state law and is subject to constitutional

scrutiny despite the voluntary nature of the private party’s

application. See, e.g., Bates v. State Bar, 433 U.S. 350

(1977).

Similarly, a private party applying for public services

or benefits is acting voluntarily in subjecting itself to the

10

authority of government. Yet, this Court’s cases apply

constitutional standards to state or local government

administration of access to public services or benefits

programs. See, eg., Goss v. Lopez, 419 U.S. 565

(1975)(applying due process to student discipline in public

school); Goldberg v. Kelly, 397 U.S. 254 (1970)(applying

due process to deprivation of welfare benefits). }

And constitutional standards apply to government in

its role as employer or private contractor, even though there

is no compulsion for any person to enter into an employment

relationship or a contractual relationship with government.

See, e.g., Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532

(1985)(applying due process to local public school

employee); Branti v. Finkel, 445 U.S. 507 (1980)(restricting

political patronage dismissals in a public defender office);

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

(1996)(extending first amendment protection to trash hauler

serving as independent contractor to government); O'Hare

Truck Serv., Inc. v. City of Northlake, 518 U.S. 712

(1996)(applying patronage cases to independent contractors).

In sum, the purported voluntariness of petitioner’s

membership in TSSAA and the ostensibly contractual

relationship between petitioner and TSSAA do not immunize

from constitutional scrutiny conduct that is fairly attributable

to the government. The first prong of Lugar is satisfied if an

alleged constitutional deprivation is “caused by the exercise

of some nght or privilege created by the State” or “by a

person for whom the State is responsible.” 457 U.S. at 937.

In this case, TSSAA is largely composed of and

effectively controlled by public schools and public school

officials acting in their official capacity “for whom the State

is responsible.” Further, local public school officials have

delegated regulatory authonty to TSSAA to allocate a scarce

public resource -— controlling access to _ playing

1]

interscholastic athletics with all the public schools in the

state by determining what schools the public schools of

Tennessee may compete against in interscholastic athletics

and under what groundrules. Within the first prong of Lugar,

that is the “exercise of a right or privilege created by the

State” — i.e., created by the conduct of every public school in

the state that fields an interscholastic athletic team.

B. The Regulatory Conduct of TSSAA Is

Controlled By Local Public Schools and

Public School Officials Acting Ex Officio and

As Such Is a “Rule of Conduct Imposed by

the State” Under Lugar

Action by local public entities such as public schools

and by local public officials such as public school principals

is state action. See, eg., Goss v. Lopez, 419 U.S. 565

(1975)(applying due process to student discipline in public

school). The existence or non-existence of state legislation

authonzing TSSAA to serve as the agency responsible for

regulating interscholastic athletics is not determinative of the

state action issue. A “rule of conduct imposed by the State”

under Lugar can be imposed by local government actors as

well as by the legislature itself.

Thus, respondents’ contention — itself subject to

challenge — that “[t]here is no evidence that the state of

Tennessee has ever regulated interscholastic athletic

competition” is simply not by itself a reason for holding that

TSSAA does not act under color of law. Brief of

Respondents at 17. Clearly, interscholastic athletics in

Tennessee are regulated by TSSAA. If, as_ petitioner

contends and Jarkanian states, the regulatory conduct of

TSSAA is fairly attributable to the parties that control it, then

TSSAA acts under color of state law and TSSAA’s “rule[s]

12

of conduct” are “imposed by*the State” within the meaning

of Lugar.

Cc. SBE’s 24-Year Designation of TSSAA to

Regulate Interscholastic Athletics and_the

Ongoing Effect of SBE’s Continued

Recognition of TSSAA’s Regulatory Role

Mean that TSSAA’s Regulatory Conduct

Constitutes “the Exercise of Some Right or

Privilege Created by the State’ Under Lugar

In addition to the local-level government conduct that

characterizes TSSAA’s regulatory activity, there is also

state-level government conduct as well. Respondents assert

that “(t]he State of Tennessee has never regulated

interscholastic athletic competition.” Brief of Respondents at

16. Of course, respondents acknowledge, as they must, that

for 24 years the SBE designated 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.” CP 23-B. As the

district court found, and despite TSSAA’s “bold statements

to the contrary” (which are repeated in this Court),® the SBE

has “reviewed and approved rules and regulations of the

TSSAA since at least 1972.” CP 24-B. Since 1996, SBE has

no longer “’designate[d]’ TSSAA as the official organization

for supervision and regulation of secondary school athletics.”

* Respondents assert that “TSSAA never sought State Board of

Education approval of its rules or by-laws.” Brief of Respondents at 16.

TSSAA apparently taxed the patience of the district court on this point:

“It is disingenuous, at best, for Defendants to repeatedly state in their

briefs ... 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.” CP 26-B; see also JA-157-69.

13

Now it “recognizes... the role of [TSSAA] in coordinating

interscholastic athletic competition.” CP 26-B. Still, SBE

“clearly singles out the TSSAA by name to serve this

function,” and, “[m]Jore importantly, the conduct of the

parties has not materially changed.” Jd.

When viewed from the local-level perspective,

TSSAA’s regulatory conduct satisfies the Lugar state action

requirement because local public schools and their officials

control the organization’s regulatory function and because

the organization sets the groundrules for any school that

wishes to compete in interscholastic athletics against any

public school in Tennessee that fields an interscholastic

athletics team. All public schools have joined TSSAA, and

TSSAA serves as gatekeeper for any non-public school

seeking to play interscholastic athletics with any public

school. TSSAA is the regulator, not the regulatee,’ serving

as agent for local public schools, and performing a

regulatory function on their behalf. From this local-level

perspective, TSSAA’s regulatory conduct is a “rule of

conduct imposed by the State or by a person for whom the

State is responsible.” Lugar, 457 U.S. at 937.

} From the state-level perspective, moreover, TSSAA

exercises a “right or privilege created by the State.” Jd. The

SBE has conferred authority on TSSAA to regulate

interscholastic athletics for the state’s public high schools.

No change in function or relationships has taken place since

° This distinguishes cases in which the issue was whether different

degrees of state regulation or oversight were sufficient to turn the

conduct of a private regulatee into state action. See, e.g., Jackson v.

Metropolitan Edison Co., 419 U.S. 345 (1974). TSSAA exercises

regulatory authority on behalf of the government (local-level and state-

level). Its state action status stems from that function and its

relationships with government at the local and state levels. Its state

action status does not depend on its role as a regulatee.

14

SBE switched from designating TSSAA to recognizing

TSSAA’s regulatory role. Cf note 3, supra. As a result of

SBE’s action, TSSAA controis access to interscholastic

athletic competition with all public schools in Tennessee that

field interscholastic athletic teams. SBE’s 24-year

designation of TSSAA to perform this regulatory function

for all the state’s public high schools has an ongoing effect.

As a consequence, TSSAA’s regulatory authority and

conduct reflect the exercise of a “night or privilege created by

the State.”

D. SBE’s Designation of TSSAA to Regulate

Interscholastic Athletics As Its Agent

Constitutes a “Right or Privilege Created By

the State” Under Lugar Whether Or Not SBE

Acted With Legislative Authorization

Respondents continue to contend that SBE’s

designation of TSSAA to serve as SBE’s agent for the

regulation of interscholastic athletics was without legislative

authorization. Brief of Respondents at 16. This position is

without foundation, see Brief of United States at 3-4, 20-21.

But even if respondents were correct about Tennessee law in

this regard, that would not alter the analysis.

Section 1983 applies to conduct “under color of any

. custom, or usage”’ as well as to conduct “under color of

any statute, ordinance, [or] regulation ... of any State.”

Well-settled practices of state officials constitute a “custom

or usage” with the force of law under §1983, even if “not

authorized by wnitten law.” Adickes v. S. H. Kress & Co.,

398 U.S. 144, 167-68 (1970). “[AJuthonity ... for this

truism,” id. at 168, was found in a 1940 Tennessee case,

Nashville, C. & St. L. R. Co. v. Browning, 310 U.S. 362

(1940). In Browning, “the ‘law’ in Tennessee as established

15

by longstanding practice of state officials was that railroads

and public utilities were taxed at full cash value.” 398 U.S.

at 168. That a statutory provision provided otherwise was noi

determinative. 310 U.S. at 369.'°

In the present context, it is indisputably true that SBE

formally delegated to TSSAA its authority to regulate

interscholastic athletics for Tennessee’s public schools. CP

23-B. As a functional matter, the ongoing effect of that

delegation persists. For purposes of §1983, that constitutes a

“custom or usage” under state law and means that TSSAA’s

regulatory conduct constitutes the “exercise of some nght or

privilege created by the State” under the first prong of Lugar.

Ill. Under Jarkanian, TSSAA’s Regulatory Conduct

Is Fairly Attributed to the State Because TSSAA

Is Controlled By Public Schvols and Public School

Officials

The regulatory conduct of TSSAA is controlled by

state actors — public schools and public school officials.

Under NCAA v. Tarkanian, 488 U.S. 179, 193 (1988), that

control by state actors of a regulatory function is attributable

to the state.

In Tarkanian, the “source of the legislation adopted

by the NCAA” was cnitical in determining the state-action

status of NCAA. Because of NCAA’s national character,

NCAA’s “source” of authority was “not Nevada but the

10

As Justice Frankfurter noted, “[i]t would be a narrow conception of

jurisprudence to confine the notion of ‘laws’ to what is found written on

the statute books, and to disregard the gloss which life has written upon

it. Settled practice ... can establish what is state law.... Deeply

embedded traditional ways of carrying out state policy ... are often

tougher and truer law than the dead words of the written text.” 310 U.S.

at 369.

16

collective membership,” and that membership spoke

“through an organization that is independent of -any

particular state.” Jd.

The nature of NCAA’s “collective membership” was

critical because that “collective membership” was the

“source” of NCAA’s authority. While public institutions in

Nevada “had some impact on the NCAA’s policy

determinations,” the “vast majority” of NCAA’s members,

which “each similarly affected” NCAA’s policies, were

“located in States other than Nevada” and “did not act under

color of Nevada law.” Jd. That is, those non-Nevada

institutions controlled the NCAA’s decisionmaking. The

NCAA’s state-action status was therefore determined by the

composition and characteristics of the membership that

controlled its decisionmaking processes. Since control of

NCAA was by institutions from outside of Nevada, the

“source” of NCAA’s authonty was not Nevada, and

NCAA’s conduct was not fairly attributable to Nevada.

Footnote 13, which has been discussed so much,

made this point inexorably clear. “The situation would, of

course, be different,” this Court noted, “if the membership

consisted entirely of institutions located within the same

State, many of them public institutions created by the same

sovereign.” Jd. at n.13. The key was control. For state-

action purposes, the nature of a regulatory organization

depends on the nature of the institutions that control it. If the

membership of a regulatory body consists of “public

institutions created by the samé sovereign” and are all

“located within the same State,” then the control of the

organization rests with state actors from within a single state.

Under those circumstances, such as that involved in a high

school athletic association like TSSAA, the conduct of the

regulatory body constitutes state action.

oe

17

Therefore, Tarkanian stands for the proposition that

the “source” of the regulatory policies of an organization

such as TSSAA is traceable to the “collective membership”

that controls the organization. Public schools and their

principals comprise 84% of TSSAA’s membership and

control its decisionmaking. The regulatory conduct of

TSSAA is traceable to those public schools that control it

and is therefore attributable to the state.

Since, under TJarkanian, control is the essential

dimension that determines the character of a regulatory

institution, how that control is exercised is irrelevant.

Whether TSSAA’s elected officials are representatives of

public or private schools is not the question; TSSAA’s state-

action status turns on the control of TSSAA’s regulatory

functions by public schools and their principals. See Lebron

v. National Railroad Passenger Corp., 513 U.S. 374, 399

(1995)(stressing importance of government “control... as a

policymaker” in establishing Amtrek’s “state”-action status);

Cf. Metropolitan Washington Airports Auth. v. Citizens for

the Abatement of Aircraft Noise, 501 U.S. 252, 269

(1991)(effective control by Congress of airport authority

raised separation of powers problem); Bowsher v. Synar, 478

U.S. 714, 730 (1986)(stressing importance of Congressional

control over dismissal of Comptroller General and rejecting

relevance of likelihood that Congress would actually remove

the Comptroller General).

The critical role of control by state actors in

determining the state-action status of TSSAA’s regulatory

conduct also explains why San Francisco Arts & Athletics,

Inc. v. United States Olympic Comm. [USOC], 483 U.S. 522

(1987), is distinguishable from this case. USOC involved the

question whether the conduct of USOC in refusing to allow

use of the word “Olympic” in associaiion with the Gay

Olympic Games was attributable to the federal government.

18

The federal government chartered USOC and granted USOC

the nght to prohibit certain commercial and promotional uses

of the word “Olympic” and various Olympic symbols. Jd. at

526. This Court held that USOC’s conduct was not

attributable to the federal government. “The fact that

Congress granted it a corporate charter does not render the

USOC a Government agent.” /d. at 543.

USOC was not a government agent because there

was no evidence that the federal government had any

involvement with USOC’s decision regarding the Gay

Olympics matter, and the government did not control USOC.

Unlike TSSAA, USOC is a private organization controlled

by private parties, not public institutions or government

employees. This Court was unwilling to “equate” the

government’s “power of persuasion,” which was present

with respect to USOC, “with control,” which was not. Jd. at

545 n.27. In short, USOC reinforces the analytical centrality

of control by state actors under principles established in

Tarkanian and applicable to this case.

Conclusion

TSSAA exercises important governmental functions

as the agent of both state-level and local-level governmental

entities. It allocates access to an important government

resource, establishing and administering the groundrules

governing interscholastic athletics for all public high schools

in Tennessee that participate in interscholastic athletics. Any

private school wishing to participate in interscholastic

athletics with a public school is subject to the approval of the

TSSAA or its Executive Director and to applicable TSSAA

rules and policies. .

From the state-level perspective, the State Board of

Education has designated TSSAA as its agent to regulate

19

interscholastic athletics throughout the state, and the effect of

that designation is ongoing even though SBE now only

recognizes TSSAA’s role as the regulator of interscholastic

athletics. From the local-level perspective, TSSAA is

composed of 84% public schools, which control TSSAA’s

regulatory program. All public schools in Tennessee that

field interscholastic athletic teams are members of TSSAA,

delegating to that organization the authority to establish and

enforce regulations regarding interscholastic athletics.

As all appellate courts that have addressed the issue

other than the Sixth Circuit have held, the regulatory conduct

of TSSAA constitutes state action and is subject to

constitutional constraints. The decision of the court of

appeals should be reversed.

20

Respectfully submitted,

H. LEE BARFIELD II

Counsel of Record

BASS, BERRY & SIMS PLC

315 Deaderick Street, Suite 2700

Nashville, TN 37238-0002

(615) 742-6200

JAMES F. BLUMSTEIN

VANDERBILT UNIVERSITY

SCHOOL OF LAW

209-B Law Building

Nashville, TN 37240

(615) 322-2613

G. THOMAS NEBEL

501 Union Street, Suite 504

Nashville, TN 37219

(615) 244-4700