Amicus Curiae Brief — Brentwood Academy v. Tennessee Secondary School Athletic Assn.

Supreme Court, U.S.

FILED

i

ae JUN 2:0 2000

No. 99-901 é

CLERK ,

In the heidi, Lah

Supreme Court of the Gnited States

BRENTWOOD ACADEMY,

Ss Petitioner,

TENNESSEE SECONDARY SCHOOLS ATHLETIC

ASSOCIATION and RONNIE CARTER,

Executive Director and Individually,

Respondents.

On Writ of Certiorari to the United

States Court of Appeals for the Sixth Circuit

BRIEF OF AMICI CURIAE

INTERSCHOLASTIC ASSOCIATIONS

IN SUPPORT OF RESPONDENTS

(Amici Listed on Inside Cover)

MALLORY V. MAYSE WAYNE F. PLAZA

28 North Eighth Street DANIEL M. NOLAND

Guitar Building ROOKS, PITTS AND POUST

Suite 411 10 South Wacker Drive

Columbia, Missouri 65201 Suite 2300

(573) 875-1988 Chicago, Illinois 60606

(312) 876-1700

EDMUND J. SIKORSKI, JR.

3300 Washtenaw Avenue

Suite 240

Ann Arbor, Michigan 48104

(734) 677-2110

Attorneys for Amici Curiae

Interscholastic Associations

Midwest Law Printing Company/Photex — Chicago — (312) 321-0220

IBEST AVAILABLE COPY

&

Amici Curiae Interscholastic Associations

GEORGIA HIGH SCHOOL ASSOCIATION

HAWAII HIGH SCHOOL ATHLETIC ASSOCIATION

IDAHO HIGH SCHOOL ACTIVITIES ASSOCIATION

ILLINOIS HIGH SCHOOL ASSOCIATION

LOUISIANA HIGH SCHOOL ATHLETIC ASSOCIATION

MICHIGAN HIGH SCHOOL ATHLETIC ASSOCIATION

MISSOURI STATE HIGH SCHOOL ACTIVITIES ASSOCIATION

MONTANA HIGH SCHOOL ASSOCIATION

NEBRASKA SCHOOL ACTIVITIES ASSOCIATION

NEW HAMPSHIRE INTERSCHOLASTIC ATHLETIC

ASSOCIATION, INC.

OHIO HIGH SCHOOL ATHLETIC ASSOCIATION

RHODE ISLAND INTERSCHOLASTIC LEAGUE, INC.

VERMONT PRINCIPALS’ ASSOCIATION, INC.

WISCONSIN INTERSCHOLASTIC ATHLETIC ASSOCIATION

WYOMING HIGH SCHOOL ACTIVITIES ASSOCIATION

ON BEHALF OF RESPONDENTS

TENNESSEE SECONDARY SCHOOLS ATHLETIC

ASSOCIATION and RONNIE CARTER, Executive Director

and Individually

BEST AVAILABLE COPY

i

STATEMENT OF ISSUE PRESENTED

The issue addressed in this brief is whether the Tennes-

see Secondary Schools Athletic Association (“TSSAA”) and

other similar private, interscholastic associations are “state

actors” when operating their respective associations in their

respective states.

ii

TABLE OF CONTENTS

PAGE

STATEMENT OF ISSUE PRESENTED ............. i

pe Os ge. ee rere Pr ar rr ii

Baeeeeds GE RATERIIPEREEED 660 hh ieas ce sceccdstwaws iv

ROW Rpueeeoe S COW BEd GUPEREIRD ov cc cc cecasssecccuan 1

SUMMARY OF ARGUMENT .................2200- 1

RE 6G sh ee hk eh ake ake eee 2

I. STRUCTURE AND FUNCTION OF

gp NR rr yes ree ey ear ar rene 2

A. Analysis of TSSAA and Interscholastic

I kad wed 65-05 44NS dS eS 3

B. Brentwood Cannot Avoid its Agreement

to Abide by TSSAA Rules. ............... 8

C. The Location of Association Sponsored

Competition Does Not Make the Associ-

MUO DOGG BOOP. ask give cece isnars 9

II. THE TSSAA IS NOT A STATE ACTOR

UNDER THIS COURT’S PRECEDENT ...... 10

A. The TSSAA Does Not Perform A Public

Function Traditionally and Exclusively

Reserved to the State .................. 12

B. The State of Tennessee Is Not Legally

Responsible For The Challenged Con-

gg: gk I rererr rere 15

III. THE STATE DOES NOT CONTROL IN-

TERSCHOLASTIC ASSOCIATIONS AND

THE ASSOCIATIONS DO NOT CONTROL

SEE ND 606 cis Onn sc keudeceuae ceca 21

A. The Structure and Conduct of Inter-

scholastic Athletic Associations Demon-

strates That They Are Not State Actors

Nor Subject to State Control ............ 21

B. Some State Involvement Does Not

Mean The TSSAA Is A State Actor ....... 24

CIPO. 4. 6.6.00 044440508 64h E ee 28

iv

TABLE OF AUTHORITIES

Federal Cases PAGE(S)

Arlosoroff v. The NCAA,

746 F.2d 1019 (4th Cir. 1984) ............ 13, 23, 24

Behagen v. Amateur Basketball Association,

684 F.20 624 (10th Cir. 19GB) ... ccc cescssccn 23

Blum v. Yaretsky,

455 U2. GUE COR) v0-0.00 bee sess abare cs passim

Burton v. Wilmington Parking Authority,

966 U.S. TIO CBSE os dk eengckaseeeee eee 10

Civil Rights Cases,

100 U.S CRROS) <enbdcineckesvesee eee 10

Edmonson v. Leesville Concrete Company,

560 U.S. Gh6 CH sk awieaceues en cee ers eeu 11, 12

Jackson v. Metropolitan Edison Company,

419 UB. SEG CARPE a kine ckanevteweseees 12, 16, 23

Lugar v. Edmondson Oil Company,

467 US. GRR CIORES «cca ehc kena ccxeewees 10, 11

McCormack v. NCAA,

845 F.2d 1338 (5th Cir. 1988) ............... 13, 24

NCAA v. Tarkanian,

488 U.S. at 197-198 n. 18 (1988) ................ 13

Perkins v. Londonderry Basketball Club,

196 F.3d 13 (let Cir. TGBR) .. cv cevcctvesssuces 12, 22

Vv

Ponce v. Basketball Federation

of the Com. of Puerto Rico,

( pe by, Se > | pore re 24

Rendell-Baker v. Kohn,

GOT UP CRD nb oa 6 eee enasn 10, 11, 12, 16, 20

San Francisco Arts & Athletics v.

United States Olympic Committee,

gle % gl. 3 ERS ae ere «>» 18, 16,20, 23

United States v. Cruikshank,

gin BO fk | EARP PANS eater rer Tre are 10

United States Olympic Committee,

BES UT. OOO, 207 GR. BE coc ck tacesccwes 28

Virginia v. Rives,

Se Oh EE nck Savi ea eua hen eenereaeer 10

State Cases

Barnhorst v. Missouri State High

School Activities Association,

504 F. Supp. 449 (W.D. Mo. 1980) .............. 14

Berschback v. Grosse Point School District,

154 Mich. App.'102 (1986) ............eceeeeees 17

Kansas State High School Activities

Association, 917 P. 2d 836 (Ks. 1996) ............. 5

Kirby v. The Michigan High School Athletic

Association, 585 N.W. 2d 290 (Mich. 1998) ..... 5, 27

vi

Robinson v. Illinois High School Association,

195 N.E.2d 38 (Ill. App. Ct.. 1963) ............... 5

Robinson v. Kansas State High School

Activities Association, 917 P. 2d 836 (1996) ....... 26

Smith v. Crim,

240 S.E.2d i, eo) errr ee 17

State ex rel. Indiana High School

Athletic Association v. Lawrence,

162 N.E.2d 250 (Ind. Sup. Ct. 1959) ............. 17

Other Authorities

Sy ee ee ED x ocx 0. UNA le whe ROO ERAS 4

6 Am.Jur.2d, Association and Clubs,

Sy i Ce diac hk 0 30644405 Ewe 6

“State Action,” Equal Protection, and

California’s Proposition 14,

81 Harvard L. Rev. 69 at (1967) ................ 15

1

INTEREST OF AMICI CURIAE'

Amici curiae, similar to the TSSAA, are private, volun-

tary interscholastic (as opposed to intercollegiate) associa-

tions. While the structure of each of the Amici may vary

slightly, each shares significant key traits with the TSSAA

which renders the present case of critical importance to

their historical status as private associations subject to

contract and other laws of their respective states. Were the

decision of the Sixth Circuit reversed, a consequence would

be a drastic alteration of the law of each state as that law

pertains to the authority and status of each Amici. If the

Sixth Circuit decision is affirmed, the decision will provide

clear guidance in all states in connection with disputes

arising between and among the private school and public

school members of each voluntary association relative to the

enforcement of the rules of each such association. Affirm-

ance will result in the treatment of interscholastic associa-

tions like all other private associations under state law,

consistent with and pursuant to the terms of the constitu-

tion, by-laws or other organizational agreement of each

association, freely adopted by and between the member en-

tities.

SUMMARY OF ARGUMENT

The TSSAA does not act under color of state law because

interscholastic associations do not perform a public function

traditionally and exclusively reserved to the state, the state

does not control or coerce the conduct of interscholastic

’ Pursuant to Supreme Court Rule 37.6, Amici state that no person

or entity other than the Amici, their members, and their under-

signed counsel made a monetary contribution to the preparation or

submission of this brief. No attorney for any party authored the

brief in whole or in part. Written consent to the filing of this brief

has been obtained from the parties in accordance with Supreme

Court Rule 37.3(a).

2

associations, the state is not legally responsible for the con-

duct of most interscholastic associations, and there is no

symbiotic relationship between the state and interscholastic

associations. In other words, it cannot be rationally argued

that the Blum Trilogy presents law which is unclear or sup-

ports a finding of state action. Petitioner and its Amici in-

stead believe there is state action in this case based almost

exclusively on their finely parsed reading of one of the sen-

tences in Tarkanian footnote 13 (the other sentence plainly

militates against state action). However, Tarkanian foot-

note 13 does not answer the question of whether a private

association of schools is a state actor, it foresees the ques-

tion. There may be instances where an interscholastic asso-

ciation is a state actor, such as where the association is

an explicit structural arm of state government. However,

where the association has no such characteristic—like the

TSSAA—but is a purely voluntary association independent

of state control, oversight, regulation, funding, etc., there is

absolutely no basis to find it a state actor under this Court’s

precedent.

ARGUMENT

I. STRUCTURE AND FUNCTION OF TSSAA.

The structure and function of the TSSAA should deter-

mine whether this Court finds it to have been a state actor

when it enforced its democratically adopted “Recruiting

Rules” against a private member, Brentwood Academy.

Examination of how an association came to exist, and under

what authority it acts under its state law, is essential to

this determination. What a private association such as the

TSSAA is and what it is not, what it does and what it does

not do, and what it can and cannot do, are necessarily

dispositive in analyzing whether the association is a state

actor or acted under color of state law for purposes of 42

U.S.C. § 1983 in the case sub judice.

3

A. Analysis of TSSAA and Interscholastic Associa-

tions.

It is thus significant for this court to consider that not all

interscholastic associations are the same. While some in-

terscholastic associations have a significant level of state

involvement, most have virtually no involvement with the

state, and no more than any person or corporation may

have by doing business with an agency of the state. The

first class of associations are created by state statute, as in

California and Texas, or exist pursuant to the express auth-

ority of the legislature, as in Iowa and Kansas. (See Appen-

dix A attached hereto). Most associations, like the TSSAA,

are not created by state statute and the Association’s

authority is not granted by the legislature in any way. The

TSSAA, like many other such associations, is not created,

governed, operated, funded, or controlled by a state depart-

ment of education. That absence of control is to be com-

pared with the states of Alaska and Maryland, which are

governed, or to some extent controlled, by a state board of

education. (Appendix A). Clearly, where the legislature of

a state has deemed state involvement in interscholastic

competition to be necessary, those states have enacted

legislation to bring such activities under the aegis of the

state to the extent each deems appropriate. Conversely, the

right of states such as Tennessee to keep such activities

separate from the state should not be undermined.

In some states, including Tennessee and Amici, the state

legislature does not grant authority to the Association.

Other states’ codes, including Arizona and Minnesota have

some recognition even though control is absent. With regard

to state funds, most associations do not receive any of their

annual revenue directly from the state. In fact, certain

Amici, such as the Illinois Association and Michigan Asso-

ciation do not even charge an annual membership fee. By

contrast, Delaware and the District of Columbia do receive

revenue directly from the state government. (Appendix A.)

4

Certain other basic characteristics of the TSSAA should

also be factored into the state action analysis. The TSSAA,

like all of the Amici and many other interscholastic associa-

tions, are private, not for profit, tax exempt organizations

(26 U.S.C. § 501(cX3)) which have as one of their primary

goals the development of rules for fair and equitable

participation in interscholastic activities. Amici’s members,

like the TSSAA membership, are comprised of private,

parochial, and public high schools located throughout each

state, all of which voluntarily join the associations. In some

states a member school is even located in an adjoining

state’ and in all states, the member schools compete against

schools in adjoining states. No high school, public or pri-

vate, is required to become a member, and not all schools

are members of their state’s association.”

All of the member schools of the TSSAA like the members

of all Amici—private, parochial and public—adopt by ma-

jority vote a constitution and a set of by-laws and competi-

tion rules which govern interscholastic competition among

their voluntary members. The reason for this is to have a

uniform set of regulations to create a level playing field

when one member plays a contest against another member.

The TSSAA and these Amici do not administer any aspect

of the state’s mandated educational curriculum, including

physical education. The by-laws ultimately adopted by the

member schools are discussed on a national level through

private entities such as the National Federation. The play-

? In fact, a school located in Kentucky is a member of the TSSAA.

Several schools in California belong to the Nevada association.

Nearly every state crosses borders in competition between schools

and North Dakota even has members from Canada.

* For instance, there are at least 28 schools which are not members

of the Illinois High School Association, 30 schools which are not

members of the Ohio High School Athletic Association, and 30

public and private schools in Louisiana which are not members of

5

ing rules, likewise, are developed with the assistance of

independent agencies, such as the United States Olympic

Committee and the National Collegiate Athletic Associa-

tion, in a given sport. The by-laws for interscholastic com-

petition in all states are similar and routinely discussed so

that a student moving from one state to another or a team

from one state competing against a team from another state

know that they are participating and playing under similar

if not identical participation and conduct rules.

The cooperative efforts of the state, national and interna-

tiona! organizations result in by-laws and other sports rules

which govern competition sponsored and administered by

the interscholastic association, with the association in each

state maintaining its autonomy. Each school which is a

member of the association has equal representation in the

association’s activities. Each private and public school in

Tennessee (as in other Amici states)—including Brentwood

Academy—has an equal voice in its Association’s gover-

nance. Because of this voluntary participation, representa-

tion, and governance, it is well established that judicial

review of a private association’s conduct is available

through the state courts subject to whether the association

exercised its powers consistently with its own internal

rules,‘ in a non-arbitrary or capricious manner. See e.g.

Kirby v. The Michigan High School Athletic Association, 585

N.W. 2d 290 (Mich. 1998); Kansas State High School Ac-

tivities Association, 917 P. 2d 836 (Ks. 1996); Robinson v.

‘4 There are some who have attempted to modify the issues in this

case to promote their single minded agendas by raising concerns of

school choice, sex discrimination and Title IX, race discrimination,

voting rights, and potential remedies against state interscholastic

associations outside the state courts. While their participation and

advocacy for their particular cause is admirable, the arguments

raised in their briefs are simply not at issue. This case does not

address, pertain to, or affect parental choice of schools, Title IX,

voting rights or discrimination. Rather, the issue before this Court

is whether the TSSAA acts under color of state law.

6

Illinois High School Association, 195 N.E.2d 38 (Ill. App.

Ct. 1963); 6 Am.Jur.2d, Association and Clubs, § 8, p. 399

(1999).

The board members of the TSSAA and Amici are elected

from the membership as a whole. Each board member then

represents all private, parochial and public schools in his or

her region or even statewide. Contrary to Petitioner’s brief,

the board members do not represent their individual school

when serving on the board and exercise no authority of or

granted by their school. (Pet. Brief, p. 48). Moreover, board

members are not acting as agents of their school employers

when serving on the board of directors, but instead are

acting as private citizens.

The board members can be and often are elected from

private schools.° It is simply happenstance that at the

present time the board members of the TSSAA are from

public schools. The rules and regulations of the TSSAA, like

Amici, are therefore not administered by the public school

component of the Association’s membership but by individu-

als representing public and private schools alike. For ex-

ample, under the Illinois High School Association Constitu-

tion and By-laws, like that of the TSSAA, the executive

director and the staff are vested with the duty and author-

ity to determine whether a member school and/or individual

student is in compliance with the by-laws. The executive

director is selected by a board of control which board is

elected by all members, each of which may nominate and

elect its principal or other representative, including non-

public employees, clergy or the religious head of the school,

to the board. There is no requirement that the executive

director or staff of the association or any board member be

5 At the present time there are board members from private and

parochial schools on the Georgia, Hawaii, Idaho, Louisiana, Mich-

igan, Ohio, Wisconsin, and Wyoming associations, among others

with some such positions guaranteed by the governing contract of

the associations.

~~ 2,

ag Ze

se

7

a public employee. Indeed, the executive director of the

TSSAA is a private citizen, not a state employee, and has

no voting rights on the Board.

The mere fact that an interscholastic association is com-

posed of a majority of public members does not convert it to

a state actor; it simply means there are more public schools

than private schools desiring to join such an association.

While the public school component of the TSSAA may be

one factor for consideration as pointed out in Tarkanian

footnote 13, it is not the talisman of state action analysis

under the Blum Trilogy. See part II, infra. If it were, the

result for many private athletic associations, including the

Amateur Athletic Union, National Collegiate Athletic Asso-

ciation, USA Hockey and others would be incongruous. It

may also serve to indirectly elevate athletics to fundamen-

tal right status in direct contravention of the uniform

consensus of federal and state courts (See footnote 8, infra),

and open the floodgates to the federal courts for students

who feel they have been wronged by one of the thousands of

eligibility decisions made annually by interscholastic asso-

ciations.

It is therefore evident that Tarkanian footnote 13 fore-

saw, but did not answer the question of whether an associa-

tion of public and private schools is a state actor. Other-

wise, it would be necessary to confront the seemingly con-

tradictory first and second sentences of the footnote. This

appears to be recognized by Petitioner and many of its

Amici, including part IV of the amicus curiae brief of the

Tennessee Lawyers’ Association For Women, wherein they

struggle to solve the apparent incongruity. However, they

fail to recognize the most rational explanation of the foot-

note—this Court was not deciding the issue because the

issue was not before it. As a result, there is nothing whatso-

ever contradictory about the footnote. The court decisions

relied upon by Petitioner and its Amici simply rely upon the

first sentence of footnote 13 without any regard for or

analysis of the second sentence or the issue of state actor

8

status as this Court analyzed the question in the body of

the Tarkanian opinion. (See footnote 7, infra.)

B. Brentwood Cannot Avoid its Agreement to Abide

by TSSAA Rules.

In the TSSAA, private schools enjoy equal status to public

schools. Each member school has identical legislative and

identical elective rights, regardless of the size or location of

the school or whether the school is public or private. By

joining, the rules of the association become the rules of each

member school agreed upon by the members schools. Thus,

when Brentwood joined the association, which it was not

mandated to do, it agreed to abide by the Recruiting Rule

here in question. All schools, including Brentwood, benefit

equally from the rules. It is therefore disingenuous for a

member school to now complain about the rules it volun-

tarily accepted and participated in forming simply because

it was found to have violated those rules in a given in-

stance.

The member schools of the Amici have adopted recruiting

rules similar to that of the TSSAA. Like the other rules of

the associations, the Recruiting Rule is rationally designed

to address genuine concerns of the membership, such as

discouraging the exploitation of students; providing maxi-

mum opportunity for all students to participate; discourag-

ing adults from jeopardizing a student’s eligibility; prevent-

ing the misuse of athletic programs; preventing district

hopping; discouraging school selection for solely athletic

reasons; maintaining a competitive balance among member

schools and their students; preventing recruiting abuses;

preventing red-shirting;® ensuring equality of competition

between member schools; and, ensuring that sports do not

* Red-shirting is not permitted at this level of competition. Red-

holding back of an athlete so that they compete at

age, is a useful recruiting tool.

ules een

9

assume greater importance than academics. In short, at the

high school level recruiting is not regulated—it is prohib-

ited. As a means of addressing these concerns, such rules

have been developed and are administered in a framework

completely free of regulation or interference by the state. To

alter this well established framework would result in detri-

ment to not only the Association’s members and their rights

of free association and contract, but more importantly the

interests of individual students.

There is also a possible misconception concerning the

extent of the involvement of the TSSAA and Amici in the

athletic and other extracurricular events in which schools

and students choose to participate. During the vast majority

of the school year, member schools compete among them-

selves under nationally recognized contest rules, but pur-

suant to their individual scheduling choices throughout a

particular activities’ season. The TSSAA and Amici are not

involved in those events, do not run those events, do not

sponsor those events, and do not control those events or

receive any revenue from those events. Rather, the only

events controlled by the TSSAA and Amici are the end of

season tournaments: here, the association statewide football

tournament. As a result, the overwhelming majority of

athletic and other extracurricular events take place outside

any control of the interscholastic association, while eligibil-

ity is subject to the rules if that school wishes to participate

in association post season tournaments. 2

C. The Location of Association Sponsored Competi-

tion Does Not Make the Association a State Actor.

An activity common to the TSSAA and the Amici is the

organization of tournaments. The location of such tourna-

ments varies from the gymnasia of member schools to field-

houses of public and private universities to private facili-

ties, such as the Carver Arena in Illinois, the Super Dome

in Louisiana, Vanderbilt University in Nashville, and num-

10

erous other private tennis and golf clubs. When an associa-

tion conducted event (i.e. a tournament) is held at the loca-

tion of a member school—whether it be a private, parochial,

or public school—the association contracts with the member

school to use the facility, just like any other private party

using the school facility, and a rental charge or percentage

of gate receipts is paid to the school by the association. In

a rare instance, a local school board may decide to offer its

facility rent-free, but even then some financial accommoda-

tion is made for use of the facility. Petitioner’s attempt to

place reliance on Burton v. Wilmington Parking Authority,

365 U.S. 715 (1961) is therefore compietely misplaced (see

part II, infra).

In sum, the structure and function of the TSSAA and

Amici do not support a finding of state action under the

factors traditionally analyzed by this Court. Blum v.

Yaretsky, 457 U.S. 991 (1982); Rendell-Baker v. Kohn, 457

U.S. 830 (1982); and Lugar v. Edmondson Oil Company,

457 U.S. 922 (1982). In light of the above-mentioned char-

acteristics, these private and voluntary associations are not

state actors simply because some, albeit even a majority of

their members, are public schools.

Il. THE TSSAA IS NOT A STATE ACTOR UNDER THIS

COURT’S PRECEDENT.

At the outset, it is important to recognize the distinction

between “state action” which is proscribed by the Four-

teenth Amendment and “private conduct” which is not so

proscribed. This distinction remains deeply embedded in

constitutional law and first emanated from early decisions

of this Court, United States v. Cruikshank, 92 U.S. 542,

554-555 (1875); Virginia v. Rives, 100 U.S. 313, 318 (1879)

and the Civil Rights Cases, 109 U.S. 3, 11 (1883). As a

“fundamental fact of our political order”, this Court has

warned that “[{clareful adherence to the ‘state action’ re-

quirement preserves an area of individual freedom by

oe et

Baa ses

11

limiting the reach of federal law and federal judicial power,”

Lugar v. Edmundson Oil Company, 457 U.S. 922, 936-937

(1982) and that “courts must consider from time to time

where the governmental sphere ends and the private sphere

begins,” Edmonson v. Leesville Concrete Company, 500 U.S.

614, 620 (1990). Thus, the Constitution permits citizens to

“structure their private relations as they choose,” Edmon-

son, supra at 619. Petitioner acknowledges these important

principles [See Petitioner’s Brief at p. 19-21).

No state action inquiry of the TSSAA should proceed

without regard for the outer boundaries and defined con-

tours of proper state action analysis restated by this Court

in Blum v. Yaretsky, 457 U.S. 991 (1982), Rendell-Baker v.

Kohn, 457 U.S. 830 (1982) and Lugar v. Edmondson Oil

Company, 457 U.S. 922 (1982). These cases, commonly re-

ferred to as the “Blum Trilogy”, contain bedrock principles

that were intended to guide federal courts in determining

when private actions may or may not be fairly attributable

to the state to constitute state action. The Court of Appeals

Opinion, 180 F.3d 758 and the Order Denying Rehearing

En Banc, 190 F.3d 705 were consistent with these princi-

ples and the District Court decision was not, 13 F. Supp. 2d

670.

Petitioner and several of its Amici, contend that there is

a consensus of opinion nationwide that state interscholastic

associations are state actors. A review of the cases cited,

however, reveals that such an assertion is unwarranted. In

several cases cited there is no discussion whatsoever of the

state action question.’

7 See Alerding v. Ohio High School Athletic Ass’n, 779 F.2d 315

(6th Cir. 1985) (finding in favor of the association on other grounds

without considering state action); Crane v. Indiana High School

Athletic Ass’n, 975 F.2d 1315 (7th Cir. 1992) (decided on state law,

rather than constitutional, grounds); Moreland v. Western Penn-

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

(continued...)

12

A. The TSSAA Does Not Perform A Public Function

Traditionally and Exclusively Reserved to the

State.

Turning first to the public function test, the TSSAA is not

a state actor if the public functions it performs are not

traditionally and exclusively the State’s prerogative,

Blum v. Yaretsky, 457 U.S. 991 at 1005, 1011-1012 citing

Jackson v. Metropolitan Edison Company, 419 U.S. 345, 353

(1974) and Rendell-Baker v. Kohn, 457 U.S. at 842. To pre-

vail on this theory, a plaintiff must show more than the

performance of a public function, but that the function is

one “exclusively reserved” to the State. Perkins v. Lon-

donderry Basketball Club, 196 F3d 13 at 19 (1st Cir. 1999).

In Blum v. Yaretsky, supra, this Court declined to find

state action under the public function test because it found

that the administration of a nursing home was not such a

public function traditionally and exclusively reserved to

the sovereign, 457 U.S. at 1011-12 (emphasis added). Like-

wise, in Rendell-Baker v. Kohn, supra, this Court declined

to declare the private operator of a school for maladjusted

high school students a state actor for similar reasons

holding that such public services were not the “exclusive

province of the State.” 457 U.S. at 842. See also, Edmonson

7 (...continued)

1978) (state action not an issue in appeal). Many cases simply state

that the association is a state actor with little or no analysis of the

issue, often citing only to Tarkanian, See, e.g., Brewer v. Purvis,

816 F. Supp. 1560, 1575 (M.D. Ga. 1993); Libby v. South Inter-Con-

ference Ass’n, 728 F. Supp. 504, 506 (N.D. Ill. 1990); Robbins v.

Indiana High School Athletic Ass’n, 941 F. Supp. 786 (S.D. Ind.

1996). Many which applied some state action analysis to determine

the issue, were decided prior to the Blum trilogy. See, e.g., Brenden

v. Independent School Dist. 742, 477 F.2d 1292 (8th Cir. 1973);

Kelley v. Metropolitan County Bd. of Educ. of Nashville and David-

son County, Tenn., 293 F. Supp. 485 (M.D. Tenn. 1968); Louisiana

High School Athletic Assoc. v. St. Augustine High School, 396 F.2d

224 (5th Cir. 1968).

13

v. Leesville Concrete Company, 500 U.S. at 624 (holding

that a jury is a “quintessential governmental body” which

performs “critical governmental powers”). As observed by

Justice O’Connor in her dissenting opinion in Edmonson,

state action under the public function doctrine requires that

the “conduct must not only comprise something that the

government traditionally does, but something that only the

government traditionally does.” 500 U.S. at 640.

It is settled law in this Court that “neither the conduct

nor the coordination of amateur sports has been a tra-

ditional governmental function.” San Francisco Arts &

Athletics v. United States Olympic Committee, 483 U.S. 522

at 545 (1987). In accord with San Francisco Arts & Athlet-

ics, Id. and NCAA v. Tarkanian, 488 U.S. at 197-198 n. 18

(1988) (holding that the function of fostering amateur

athletics at the college level is by no means a “traditional,

let alone exclusive state function”), are McCormack v.

NCAA, 845 F.2d 1338, 1346 (5th Cir. 1988) (coordination

and oversight of intercollegiate athletics may serve a public

purpose, but hardly a function traditionally reserved ex-

clusively to the state; and Ponce v. Basketball Federation of

the Com. of Puerto Rico, 760 F.2d 375, 381 (1st Cir. 1985)

stating:

If education is not traditionally an exclusive function of

the state id., then a fortiori, neither is the regulation of

amateur sports. Amateur sports groups commonly re-

ceive assistance from the state in the form of state-

maintained or state-operated playing fields, but that it

has traditionally been the state’s sole province to decide

the number of teams, the range of sports, eligibility re-

quirements and many other details is not a supportable

assertion. That the state or municipality may assist the

cause of amateur sports, through regulation or financial

support, does not make the state’s role one traditionally

and exclusively reserved to it. Arlosoroff v. National

Collegiate Athletic Association, 746 F.2d 1019, 1021 (4th

Cir. 1984).

14

Underscoring the proposition that extracurricular high

school athletics is not a traditional function nor the exclu-

sive prerogative of the state is a virtual avalanche of

state and federal cases generally holding that there is no

“fundamental right” to play high school athletics protected

by the Fourteenth (14th) Amendment to the U.S. Constitu-

tion.®

In its state action analysis below, the District Court in

this case made no factual or legal finding that either the

conduct or coordination of amateur athletics was a public

function traditionally and exclusively reserved to the

state. See 13 F. Supp. 2d 679-685. Instead, the District

Court merely referred to education as a “traditional func-

tion of the state” and extracurricular activities as an

“important component of an education in today’s modern

society.” 13 F. Supp. 2d at 685 citing another Pre-Blum

district court in Barnhorst v. Missouri State High School

® Walsh v. Louisiana High School Athletic Ass’n., 616 F.2d 152, re-

hearing denied, 621 F.2d 440 (5th Cir. 1980); Mitchell v. Louisiana

High School Athletic Ass’n. , 430 F.2d 1155 (5th Cir. 1970); Sullivan

v. University Interscholastic League, 599 SW2d 860 (Tex. Civ. App.

1980); Blue v. University Interscholastic League, 503 F. Supp. 1030

(N.D. TX. 1980); Albach v. Odle, 531 F.2d 983 (10th Cir. 1976);

Alerding v. Ohio High School Athletic Association, 779 F.2d 315

(6th Cir. 1985); Bucha v. Illinois, 351 F. Supp. 69 (N.D. Ill. 1972);

Herbert v. Ventetuolo, 638 F.2d 5 (1st Cir. 1981) affirming Rhode

Island Supreme Court at 480 A2d 403 (1984) deciding same

question under Rhode Island State Constitution; Parish v. NCAA,

506 F.2d 1028 (5th Cir. 1975); Kulovitz v. Illinois High School

Ass’n., 462 F. Supp. 875 (N.D. Ill. 1978); Jones v. Oklahoma Sec-

ondary Schools Activities Ass’n., 453 F. Supp. 150 (W.D. Okla.

1977); Moreland v. Pennsylvania Interscholastic Athletic Associa-

tion, 572 F.2d 121 (3d Cir. 1978); Paschal v. Purdue, 320 F. Supp.

1274 (S.D. Fla. 1970); Taylor v. Alabama High School Athletic

Association, 336 F. Supp. 54 (N.D. Ala. 1972); Niles v. Texas Uni-

versity Interscholastic League, 715 F.2d 1027 (5th Cir. 1983) and

Oklahoma High School Athletic Association v. Bray, 321 F.2d 269

(10th Cir. 1963).

15

Activities Association, 504 F. Supp. 449 (W.D. Mo. 1980).

Even though the District Court below was fully aware of

this Court’s decision in Blum v. Yaretsky, 13 F. Supp. 2d at

679, it refused to follow this Court’s directive in Blum that

state action cannot be established under the public function

test unless the public function is one traditionally and

exclusively reserved to the state. Blum v. Yaretsky, 457

U.S. at 1011-12. Moreover, the District Court and Petitioner

totally ignored this Court’s decision in San Francisco Arts

& Athletics v. U.S. Olympic Committee, supra, (neither the

conduct nor coordination of amateur sports is even a tra-

ditional governmental function). The Sixth Circuit was

obviously not fooled by this approach to the issue.

In its Brief before this Court, the Petitioner engages in

the same slight of hand approach as the District Court

describing athletics as an “important component of educa-

tion in today’s modern society” (Petitioner’s Brief, p. 14-15)

and “an integral component of the state’s educational sys-

tem” (Petitioner’s Brief, p. 35). Thus, by ignoring “exclusive

prerogative of the state” the Petitioner invites this Court’s

return to Pre-Blum analysis of state action which has been

described as a “conceptual disaster area.” Black, Foreword:

“State Action,” Equal Protection, and California’s Proposi-

tion 14, 81 Harvard L. Rev. 69 at 95 (1967). The Petitioner’s

Brief before this Court is totally devoid of any argument

that state action can be found here under application of the

public function test, and the silence is deafening. The Peti-

tioner appears to have abandoned any hope of sustaining

state action under the public function test within the strict

guidelines recognized by this Court.

B. The State of Tennessee Is Not Legally Responsible

For The Challenged Conduct of The TSSAA.

Constitutional standards cannot be invoked on a private

party unless it can be said that the state is “responsible

for the specific conduct of which the plaintiff complains.”

16

Blum v. Yaretsky, supra, 457 U.S. at 1004. A atate cannot

be held responsible for a private decision unless it has

“exercised coercive power or provided such significant en-

couragement, either overt or covert, that the choice must in

law be deemed to be that of the State.” Blum v. Yaretsky,

supra, 457 U.S. at 1004. “Mere approval of or acquiescence

in the initiatives of a private party is not sufficient to

justify holding the state responsible for those initiatives

under the terms of the Fourteenth Amendment,” Blum v.

Yaretsky, supra, 457 U.S. at 1004-1005 (citations omitted).

The fact that a private party is subject to extensive regula-

tion by the State does not by itself convert its action into

that of the State for purposes of the Fourteenth Amend-

ment. Blum v. Yaretsky, supra, 457 U.S. at 1004 citing

Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974).

The receipt of public funds does not make one a state actor.

Rendell-Baker v. Kohn, 457 U.S. at 840 citing Blum uv.

Yaretsky. Performance of a public contract does not make

one a state actor, Rendell-Baker v. Kohn, 457 U.S. at 840-

841. And it is not enough even if individual members of an

athletic association, acting collectively with non public

members, are themselves public institutions which could be

classified as state actors. NCAA v. Tarkanian, supra, 488

U.S. at 191-199 (1988).

Petitioner here cannot prevail because it cannot show

that the TSSAA Recruiting Rule in particular was com-

pelled or influenced by state regulation. Despite extensive

regulation of the school under review in Rendell-Baker v.

Kohn, this Court held that the discharges of petitioners

there were not compelled or influenced by any state regula-

tion. 457 U.S. at 841. Likewise, in Blum v. Yaretsky, it could

not be shown that the discharge or transfer of particular

patients receiving Medicaid benefits was influenced or

required by state regulations. 457 U.S. at 1005. There is

absolutely no record in this case that the TSSAA Recruiting

Rule was compelled, required or influenced by any official

17

action of the State of Tennessee.”

Petitioner also argues erroneously that the extracurricu-

lar amateur athletic program operated by the TSSAA is

part of the free public education mandated by the Tennes-

see Constitution, Article XI, Section 12 [Petitioner’s Brief p.

8, 39, 42, 43]. Courts deciding the outer boundaries of state

constitutional provisions requiring free public schools for

the gratuitous instruction of all citizens below a certain age

do not create a “state entitlement” for participation in

“extracurricular athletics.” See State ex rel. Indiana High

School Athletic Association v. Lawrence, 162 N.E.2d 250 at

255 (Ind. Sup. Ct. 1959) holding that Article 8, Section 1 of

the Indiana State Constitution requiring common schools to

impart knowledge and learning without charge did not

extend to “extracurricular activities;” and Smith v. Crim,

240 S.E.2d 884 at 885 (Ga. Sup. Ct. 1977) holding that

provisions of Georgia law requiring tuition-free education

for all children six to nineteen years old did not include

“extracurricular” sports; and Berschback v. Grosse Point

School District, 154 Mich. App. 102 (1986) at 117-118

holding:

Although Michigan law may, through its compulsory

education statute, create a protected interest in public

education, this protected interest in public education

does not extend to a student’s participation in inter-

scholastic sports. ... The compulsory education statute

may create a protected, legitimate claim of entitlement

to basic classroom attendance, but, alone, it does not

create a legitimate claim of entitlement to participation

in interscholastic athletics.

® However, it is noteworthy that the headmaster of a private in-

dependent school authored some of the printed guidelines used for

understanding and interpreting the TSSAA Recruiting Rule while

serving as Vice President of the TSSAA Legislative Council [See

Respondent’s Brief, Statement of the Case].

18

Thus, courts distinguish between that which is “curricular”

and that which is “extracurricular” in defining the outer

limits of what public schools are mandated to provide their

citizens under state constitutions. The Petitioner is obvi-

ously trying to blur the distinction between physical edu-

cation programs offered within the mandated curriculum of

schools and extracurricular activities of which neither Peti-

tioner nor its Amici make any mention of or distinction

between, preferring to further blur the lines of distinction.

There is a distinct difference because state constitutions do

not mandate extracurricular forms of education, though

hopefully students learn from their experience, including

the obligations to comply with reasonable and necessary

rules.

Petitioner abandons in its Brief any argument that the

TSSAA Recruiting Rule was adopted or enforced against

Petitioner by the State of Tennessee through the exercise of

“coercive power,” Blum, supra, 457 U.S. at 1004. Instead,

Petitioner argues that the State of Tennessee provided

“significant encouragement” [Petitioner’s Brief p. 48-50].

Does the Petitioner do this because it cannot make a case

for the exercise of “coercive power” and views the “signifi-

cant encouragement” test as a lower standard? To the con-

trary, “significant encouragement” must be read with “coer-

cive power” and cannot support a determination of state

action unless the choice must in law be deemed to be that

of the state. Blum, supra, 457 U.S. at 1004.

The Petitioner is completely and utterly wrong when it

argues that the TSSAA “simply could not exist” without the

“overt, significant participation of the government” [Peti-

tioner’s Brief p. 49]. The TSSAA came into existence in

1925 and exists today through the free exercise of a contract

between private, parochial and public school members and

not through the coercion or significant encouragement of

any Tennessee constitutional provision, statute or govern-

mental regulation. The TSSAA exists, but does not receive

any direct subsidy from public tax funds and generates

19

alnost all of its entire operating budget from gate receipts -

at playoffs and championship tournaments [Respondent’s

Bief, Statement of the Case]. The TSSAA exists, but mem-

be-ship is voluntary without any state coercion or encour-

agment. The TSSAA exists, but no accreditation criteria

for any public or private school in the State of Tennessee

reyuires membership in the TSSAA. The TSSAA exists, but

no wages or retirement benefits of the TSSAA Executive

Director or any TSSAA staff are paid by the State of

Teinessee. The TSSAA exists, but no decisions by the

TSSAA Board of Control or Legislative Council are directly

apealable to any government agency or state judicial body

wih plenary authority to overrule or change the same

ouside the common law of Tennessee. The TSSAA exists,

bu: is not dependent on the rent free use of public facilities

for its playoffs or championships while paying rent for

pwlic and private facilities and holding many of its cham-

pimship events at private institutions (i.e., state football

chimpionship at Vanderbilt University). The TSSAA exists,

bu does not occupy a public building at taxpayer expense

for its executive offices. The TSSAA exists, but does so

wihout any direct regulation of the Tennessee State Board

of Education. The TSSAA exists, but does not enjoy or

exercise state power to subpoena witnesses, impose con-

tenpt citations or exercise sovereign authority over any

indvidual apart from its contractual authority over member

sctools. And finally, the TSSAA exists, but does not enjoy

sovereign immunity from civil lawsuits. While one must

adnit that TSSAA programs, budget and activities would

be substantially smaller if public schools withdrew from

TS3AA membership, it would not cease to exist.

Feduced to simple expression, Petitioner chiefly argues

tha state action must be sustained simply because the

TSSAA Board of Control and Legislative Council at the

tine of enforcement consisted of administrators from

pwlic schools. However, the Petitioner fails to recognize

thit these administrators were not sent to their positions

20

with the TSSAA based upon the unilateral actions of their

respective school boards, but were individuals selected and

called to serve upon a vote in which all private, parochial

and public school members of the TSSAA voted. One must

only assume that Petitioner operates from an erroneous

belief or a belief not supported by evidence in the record

below, that no private school member would ever vote for a

public school administrator and vice versa.

It is not enough to simply point to the involvement of

public school administrators on the TSSAA Board of Control

and Legislative Council, but Petitioner must show that the

professional judgments or decisions of these athletic admin-

istrators to adopt and/or enforce the TSSAA Recruiting Rule

were required or influenced by the State of Tennessee. See

Blum v. Yaretsky, supra, (citing Polk County v. Dodson, 454

U.S. 312 (1981) and stating that those decisions ultimately

turn on professional judgments made by private parties

based upon professional standards that are not established

by the State). (457 U.S. at 1008-1010).

As recognized by the Fifth Circuit U.S. Court of Appeals

in McCormack v. NCAA, 845 F.2d 1338, 1345-1346 (1988),

substantial or even pervasive involvement of state funded

public schools in an organization which coordinates ama-

teur athletics is not enough alone to meet the test of state

action under Blum v. Yaretsky and Rendell-Baker v. Kohn,

even when, as in McCormack, all but one member was from

the same state in the conference. Otherwise, thousands of

private parties and associations doing business with a

public school would arguably also become state actors.

The involvement of the State of Tennessee in affairs of

the TSSAA is far less extensive than the government in

affairs of the United States Olympic Committee which were

reviewed by this Court in San Francisco Arts & Athletics v.

United States Olympic Committee, 483 U.S. 522 (1987)

(congressionally granted charter to U.S.O.C. and exclusive

use of word “Olympic,” congressional regulation of U.S.O.C.

and direct funding of U.S.O.C. by the government).

21

Neither the defacto nor dejure relationship of the Tennes-

see State Board of Education (SBE) to the TSSAA appears

anything more than mere approval or acquiescence and

that, simply put, is not enough, Blum v. Yaretsky, supra,

457 U.S. at 1004-1005. As such, the State of Tennessee

would not be legally responsible for actions of the TSSAA or

subject the TSSAA to the status of a state actor for the lack

of coercive power over or legally significant encouragement

to the TSSAA which would make its actions fairly attribut-

able to the State. The choice here is not one compelled by

the State of Tennessee, but one freely exercised by the

Respondent Brentwood Academy to voluntarily belong and

enjoy the benefits of TSSAA membership. The factual

circumstances in each of the Amici states is similar and

even further removed from involvement with the state than

is the TSSAA, and all states would be drastically affected

by the adoption of Petitioner’s unsupported position, de jure

or de facto.

ll. THE STATE DOES NOT CONTROL INTERSCHO-

LASTIC ASSOCIATIONS AND THE ASSOCIATIONS

DO NOT CONTROL THE SCHOOLS.

The question for review can be stated alternatively as,

does the state control the interscholastic athletic associa-

tion such that its actions are tantamount to state action

under the Fourteen Amendment as a general uniform

constitutional principal?

A. The Structure and Conduct of Interscholastic

Athletic Associations Demonstrates That They Are

Not State Actors Nor Subject to State Control.

Interscholastic athletic contests in the Sixth Circuit and

most states are conducted in a similar fashion by in-

terscholastic athletic associations such as TSSAA, but not

all interscholastic athletic associations are identical (See

Section I herein). The factual premise for the District

22

Court’s ruling and the thesis for Judge Merritt’s sole dis-

sent, including the factual assumption of Footnote 13,

Tarkanian, supra is that all such associations must be the

same and are different than the NCAA, AAU and hundreds

of other athletic associations throughout the United States.

They are not, as previously presented.

As illustrated in the discussion of Section I of this brief,

dissimilarity of structure of (but not the purpose of)

interscholastic athletic associations in the respective states

is the rule rather than the exception. That discussion shows

that a few interscholastic athletic associations are creatures

of state statute. The discussion also shows that some, but

few, interscholastic athletic associations have been dele-

gated their function directly by legislature or by the state

board of education. (See Appendix A). Most interscholastic

associations exist independent of any regulatory or over-

sight control by either the state legislature or any govern-

mental agency or other entity of the state. Such is the case

of the TSSAA and all Amici participating in this brief.

Under these circumstances it is impossible to fashion an

across the board classification of interscholastic athletic

associations as either state actors or not state actors. Ra-

ther, the well established judicial approach to a determina-

tion of state actor status must be on an approach consistent

with this Court’s precedent (See Part II herein).

Many courts have suggested that the approach to the

question, considering court precedent, should be on a case-

by-case basis. On November 8, 1999 the First Circuit

succinctly stated that a case-by-case approach to the propo-

sition is appropriate and necessary. In Perkins v. London-

derry Basketball Club, 196 F.3d 13 (1st Cir. 1999) the Court

states:

“The line of demarcation between public and private

action, though easily proclaimed, has proven elusive in

application. As the Justices, mindful of the fact-sensi-

tive nature of the inquiry, have staunchly eschewed any

attempt to construct a universally applicable litmus

23

test to distinguished state action from private conduct.

Instead, they have directed lower courts to take a case-

by-case approach “sifting facts and weighing circum-

stances so that the non-obvious involvement of the state

and private conduct can be attributed its true signifi-

cance.” Burton v. Wilmington Park Authority, 365 U.S.

715, 722, 81S. Ct. 856, 6th LED 2d 45 (1961).

In a prior opinion the Fourth Circuit, Arlosoroff v. The

NCAA, 746 F.2d 1019 (4th Cir. 1984) stated:

“There is no precise formula to determine whether

otherwise private conduct constitutes “state action.”

After sifting facts and weighing circumstances, . . .”

Burton v. Wilmington Park Authority, 365 U.S. 715,

722, 81S. Ct. 856, 860, 6th LED 2d 45 (1961).

“The inquiry in each case was whether the conduct is fairly

attributable to the state.” Lugar v. Edmondson Oil Com-

pany, 457 U.S. 922, 937, 102 S. Ct. 2744, 2754, 73 LED 2d

482 (1982).

The function of an interscholastic athletic association is

to introduce some order into the conduct of interscholastic

athletic programs and assistance in institutional enforce-

ment of uniform rules of eligibility. However, the regula-

tion of interscholastic athletics like intercollegiate athletics

is not a function traditionally exclusively reserved for the

state. Jackson v. The Metropolitan Edison Company, 419

U.S. 345, 352, 95 S. Ct. 449, 454, 42 LED 2d 477 (1975). Nor

is the administration of interscholastic athletics a public

function. See Tarkanian, 488 U.S. 197 Note 18, 109 S. Ct.

454 (discussing the NCAA’s overriding function of fostering

amateur athletics at the college level and noting that “while

we have described that function as “critical” by no means is

it a traditional let alone an exclusive state function” (cita-

tions omitted)); San Francisco Arts and Athletics, Inc. v.

U.S. Olympic Committee, 483 U.S. 522, 545, 107 S. Ct.

2971, 97 LED 2d 427 (1987). “Neither the conduct nor the

coordination of amateur sports has been a traditional

governmental function.” Behagen v. Amateur Basketball

24

Association, 884 F.2d 524, 531 (10th Cir. 1989); McCormack

uv. National Collegiate Athletic Association, 845 F.2d 1338,

1346 (5th Cir. 1988); Ponce v. Basketball Federation, 760

F.2d 375, 381 (1st Cir. 1985).

Except in those instances where the interscholastic asso-

ciation is either the creature of the state of explicitly

subjects it to the authority of the state, neither congress nor

the legislature of any state has exercised oversight or

control over the rules, regulations or by-iaws of an inter-

scholastic association; or, for that matter, any other athletic

association including the NCAA or TSSAA. As previously

noted, most legislatures of the respective states have opted

against exercising control or oversight over the inter-

scholastic association of secondary schools of their states

(Appendix A). In such circumstances the presumption and

conclusion that the interscholastic association is not a ‘state

actor’ must apply. The clear result, under court precedent,

is that the broad rule of no ‘state actor’ status applies to

interscholastic associations operating in their respective

states unless (1) the athletic association is a statutory arm

of government, Perkins, supra, or (2) the state legislature

has opted to affirmatively exercise direct statutory and

regulatory oversight of the athletic association. Absent such

position or affirmative action there is a complete absence of

state compulsion or control.

B. Some State Involvement Does Not Mean The

TSSAA Is A State Actor.

Even where there is oversight by legislative action of a

particular interscholastic athletic association or approval of

the eligibility rules by a state agency or, in some instances,

a state legislature, which is not present in Tennessee, such

approval does not automatically transform the actions of

that interscholastic athletic association to a state actor

status. As stated in Arlosoroff, supra:

25

“It is not enough that an institution is highly regu-

lated and subsidized by a state. If the state in its

regulatory or subsidizing function does not order or

cause the action complained of, the function is not one

traditionally reserved for the state, there is no state .

action.” Rendell-Baker v. Kohn, Blum v. Yaretsky, Polk

County v. Don Dodson, Jackson v. Metropolitan Edison

Company, supra. (Citations omitted).

The simple reason for this fact is that interscholastic

associations do not control member institutions even when

they are structured arms of government. No athletic asso-

ciation in the country, regardless of structure, can dictate

to its member institutions what extracurricular activities

‘the member institution is to sponsor. No athletic association

has control over a member institution’s budget. No athletic

association can dictate the use of member institution’s

facilities. No interscholastic association has independent

authority over any member institution or their students.

Not one law in any state of this nation requires a high

school to be a member of an interscholastic association.

What then is the nature of the control exercised by an

interscholastic association?

Every private association in this country, regardless of

structure, is first and foremost voluntary. No institution is

required by any law to form an athletic team or participate

in any particular program. No institution is required by any

law to place any athletic team in any interscholastic com-

petition, much less tournament competition. No law re-

quires any institution of any state to belong to an athletic

association. If an institution chooses to field a team and if

the institution further chooses to allow that team to partici-

pate in interscholastic competitive athletics, that institution

may choose to apply for membership in an association con-

sisting of other institutions who support like competition.

The price of admission is that the respective institutions

agree to play not only by the same rules of the game, they

agree upon the eligibility rules, such as a recruiting rule,

for members and participants as minimum standards. The

26

member institutions are always free to require higher

standards than the minimum set forth by the consensus of

the membership.

Every rule of a voluntary association is but a statement

of the consensus of the opinion of the membership set forth

to establish minimum standards so that athletic competi-

tion, which is adversarial by nature, can occur on a some-

what level playing field to accomplish the goal of participa-

tion in a reasonably equitable competitive environment. To

that end, every association serves the common needs of

member institutions for regulations of athletics while cor-

relating their diverse interests. Regulations are adopted not

as a result of governmental compulsion but in the service of

the common interests of the voluntary members. Anderson

uv. IHSAA, 669 F.Supp. 719, 728 (S.D. Ind. 1988).

Not all control is tantamount to state compulsion or state

action. The concept of control must not be confused with the

concept of coordination of conduct to achieve uniform eli-

gibility rules in voluntary competitive athletics which is an

adversarial undertaking by definition. Athletic associations

can only enforce a set of rules which the contestants have

handed them by mutual voluntary agreement. This agree-

ment does not come from the state and the only available

means of enforcement is contractual. The theory of state

control or state delegation of authority and the functions of

athletic associations are discussed in two cases in the

United States.

The first case was decided by the Supreme Court of Kan-

sas in 1996. In Robinson v. Kansas State High School Ac-

tivities Association, 917 P. 2d 836, 844-46 (1996), the court

analyzed the nature of an athletic association as follows:

“The relationship of a voluntary association with its

members is governed by contract law. Cunningham uv.

Independent Soap and Chemical Workers, 207 Kansas

812, 818, 486 P. 3d 1316, cert. denied 404 U.S. 985, 92

S. Ct. 453, 30 LED 2d 369 (1971).

* * *

27

Nothing compels a high school to join KSHSAA or

refrain from withdrawing its membership, if the school

is willing to accept the consequences, however unpalat-

able. Schools are not required to have an interscholastic

athletic program.

* * *

“How can the schools organize themselves in inter-

scholastic competition unless they all agree to play by

the same rules? How can an individual school board

adopt its own rules for interscholastic competition and

how to find other schools willing to compete, if each

school has difference rules? How is the sport, debate, or

music event played out, if each team or group brings

along not only its own ball, debate topics, or instru-

ments, but also its own rules? The voluntary aspect in

agreeing to abide by KSHSAA’s rules is the desire

to become involved in interscholastic competition. The

nature of interscholastic competition demands that

there be a set of rules all competing schools are willing

to abide by. It should be understood that a school

wanting to compete in sports or other activities with

other schools will agree to abide by the rules they all

agree on—whether each school may like or dislike a

particular rule.

In Kirby v. The Michigan High School Athletic Associa-

tion, 585 N.W. 2d 290, 296, n. 17 (1998), the Michigan

Supreme Court described the nature of an athletic associa-

tion as follows:

“Athletic competition takes place under a unique set

of circumstances. . . . The means and objectives of

athletic competition do not always “make sense” in an

external fashion—rather, participants seek to better

themselves through discipline of striving for goals that

exist within the specific rules of each sport.

Ftnt. 17 The articles or bylaws that establish the

MHSAA are not part of this record. However, as in-

dicted earlier, the MHSAA is an association of Michigan

high schools. Thus, it is a creature of its members, with

no independent authority over schools or students. The

28

schools can and should exercise appropriate oversight

of the MHSAA.”

Even in those cases where the eligibility rules of the

athletic association are subject to oversight by an agency of

the state, it does not change the voluntariness of or the

contractual aspect of the competing teams to play by those

rules since there is no requirement that students partici-

pate in interscholastic athletic competition as part of their

compulsory education.

Interscholastic associations only administer rules given

to them by the membership. The interscholastic association

enforces those rules to keep the adversarial contestants

within prior agreed upon bounds. When the member ex-

ceeds or flaunts those bounds, as did Brentwood, the asso-

ciation’s responsibility to its membership is to enforce the

rules. The authority of the athletic association is derived

from contract between the membership, subject to the laws

of the state and not any state authority. Interscholastic

associations are generally not state actors because they

have no state governmental authority to legislate, mandate

or promulgate the rules which the schools must follow apart

from the wil! of its membership. They are merely contrac-

tual arbitrators subject to state laws. Review of the actions

of the interscholastic association, whether involving a con-

tract, civil right or otherwise is available through the state

court and against the public or private members according

to existing law. Federal inte. vention is neither warranted

nor appropriate, nor necessary to protect individuals rights.

CONCLUSION

The “state actor” inquiry is a targeted one with the chal-

lenged conduct at the hub of the analytical wheel. The

focal point is the connection between the state and the

challenged conduct not the broader relationship between

the state and the private entity. Regulation, without more,

cannot establish the necessary nexus. See United States

29

Olympic Committee, 483 U.S. at 547, 107 S. Ct. 2971; Blum,

supra. Indeed, even when a state has conferred monopoly

status on a private entity, courts will not find state action

on the nexus theory absent the snug relationship between

the grant of the monopoly power and the challenged

conduct itself. See Jackson, supra, and Perkins, supra. The

false premise of Petitioner’s perspective is that its claims

mistake certain spokes of the analytical wheel for the hub,

i.e. the centrality of the challenged conduct. The lack of any

“symbiotic relationship” belies the applicability of state

actor status to the TSSAA. Never, in the history of the

United States has sports nor any specific aspect of sports

been found to present a fundamental federal right nor

constitute an aspect of a state’s conduct of education. As a

result, a private interscholastic athletic association such as

the TSSAA is not a state actor as ¢. general uniform consti-

tutional principal. The Sixth Circuit should therefore be

affirmed.

Respectfully submitted,

MALLORY V. MAYSE WAYNE F. PLAZA

28 North Eighth Street DANIEL M. NOLAND

Guitar Building ROOKS, PITTS AND POUST

Suite 411 10 South Wacker Drive

Columbia, MO 65201 Suite 2300

(573) 875-1988 Chicago, IL 60606

(312) 876-1700

EDMUND J. SIKORSKI, JR.

3300 Washtenaw Avenue

Suite 240

Ann Arbor, MI 48104

(734) 677-2110

Attorneys for Amici Curiae

Interscholastic Associations

rand i

Compiled With the Assistance of th Nat onal Federation

unction of State E

A ce ;

tt A. hool 2 ssocia

Question Yes No

1. Is your Association CA, FL, KS, NJ, WA AL, AS, AZ, AR, CO, CT,

created by your state DE, DC, GA, HI, ID, IL, IN,

legislature? IA, KY, LA, ME, MD, MA,

MI, MN, MO, MS, MT, NE,

NV, NH, NM, NY, NC, ND,

OH, OK, OR, PA, RI, SC, SD,

TN, TX, UT, VT, VA, WV,

WI, WY

2. Is your Association CA, DE, DC, MD, NY, NV AL, AS, AZ, AR, CO, CT, FL,

governed or operated, GA, HI, ID, IL, IN, IA, KS,

controlled by a state LA, ME, MA, MI, MN, MO,

department of MS, MT, NE, NH, NJ, NM,

education or other NC, ND, OH, OK, OR, PA,

state agency? RI, SC, SD, TN, TX, UT, VT,

3. Does any of your CA, DE, DC, MD AL, AS, AZ, AR, CO, CT, FL,

annual revenue come GA, HI, ID, IL, IN, IA, KS,

directly from the KY, LA, ME, MA, MI, MN,

state? MO, MS, MT, NE, NV, NH,

NJ, NM, NY, NC, ND, OH,

OK, OR, PA, RI, SC, SD, TN,

TX, UT, VT, VA, WA, WV,

WI, WY

4. Does your AL, AS, AZ, AR, CA, CO, MD, TX, VA

Association include CT, DE, DC, FL, GA, HI, ID,

public, private and IL, IN, IA, KS, KY, LA, ME,

religious schools as MA, MI, MN, MO, MS, MT,

full members? NE, NV, NH, NJ, NM, NY,

NC, ND, OH, OK, OR, PA,

RI, SC, SD, TN, UT, VT, WA,

3

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