No First Amendment protection from sports organization's rules, justices declare unanimously
UPDATE 6:40 p.m. Thursday:
Curt Masters, headmaster of Brentwood Academy, commented this afternoon on the U.S. Supreme Court decision in his school's case against the Tennessee Secondary School Athletic Association.
"Our position was that we ought to stand up on principle for what we knew to be right," Masters said of the decision to bring the lawsuit and then to continue pursuing it through a decade of legal proceedings that included two arguments before the Supreme Court. The headmaster noted that B.A.'s positions were upheld numerous times by lower courts during those ten years.
Masters said he and the school's trustees maintained their commitment to the case, at a substantial cost in legal fees, because they never doubted the propriety of the acts that led the TSSAA to impose sanctions on the school in 1997 — the mailing of letters inviting eighth graders who were slated to enroll at B.A. the following autumn to attend its spring football practice.
"Our intentions were good," Masters said. "Our conduct was not inappopriate." If he or the board had felt otherwise, he said, "it would have been much easier to take our lumps and move on" by submitting to the sanctions.
"B.A.'s argument has never been that we ought to be able to recruit students," Masters said. "What we did couldn't reasonably be considered recruiting." The letters, he noted, were sent only to parents of students who had already signed enrollment contracts to attend Brentwood Academy. "The characterization by TSSAA that B.A. wants to recruit students has no basis in fact."
Masters said that what comes next in the case is up to U.S. District Judge Todd Campbell, not to the school. Earlier today, TSSAA attorney Rick Colbert had said that if Brentwood decided not to pursue an anti-trust claim that has been in abeyance before Campbell, "that would be the end of the case."
"It's not a question of us initiating anything," Masters said. "But we certainly hope to resolve this soon and take every step to move forward."
Attorneys comment on result
In looking back on the oral arguments made before the high court on April 18 of this year, Colbert recalled that he had been encouraged to find that "some of the most vigorous questioning of the other side's arguments came from the justices who I figured would be the hardest for us to get on our side." He cited Justices Steven Breyer, David Souter and Ruth Bader Ginsberg as "among the most outspoken critics and questioners of the Brentwood Academy arguments."
Colbert noted that the overall outcome of this case is not entirely positive for TSSAA and other organizations like it. The 2001 high court ruling in B.A.'s favor set a precedent for viewing such entities as "state actors," regulators effectively operating under color of law. "That ruling subjects us to these kinds of lawsuits, and those lawsuits can have legs." Today's ruling, though, will help bodies like TSSAA avoid First Amendment claims in the future, he added.
Vanderbilt constitutional law scholar Jim Blumstein, representing Brentwood Academy, concurred that the 2001 ruling represented a "silver lining" in the case, noting that TSSAA had asked the court to overrule its own 2001 finding regarding state action but had gotten only Justice Thomas (see below) onto its side in today's opinions.
"We would have preferred to prevail, obviously," Blumstein said. But he commended the way that "the school has stood on principle here" in trying to hold the association accountable — "and at the end of the day, they have succeeded in that regard," he said, noting that the TSSAA has now changed the rule B.A. had been accused of breaking. Inviting incoming middle-schoolers to spring practice is now banned outright, a position Blumstein said the school favors and finds much preferable to allowing spring practice attendance but punishing communications to the students about it.
"This is a very tentative, narrow holding, but it opens a door that I wish hadn't been opened" Blumstein said when asked about the impact of today's ruling. "There is a risk, down the road, that schools are potentially subject to restraint by government" in how they can communicate with prospective students.
UPDATE 2:58 p.m. Thursday:
It will be up to Brentwood Academy to decide whether any further legal proceedings ensue in its case against the Tennessee Secondary School Athletic Association, now that the U.S. Supreme Court has rejected B.A.'s argument that recruiting pitches to middle school athletes are protected speech under the First Amendment to the Constitution.
That was the word today from Rick Colbert, attorney for the TSSAA, who noted that a claim by Brentwood on anti-trust grounds remains before the U.S. District Court in Nashville as part of the same litigation that went to the Supreme Court.
Jim Blumstein, counsel to Brentwood Academy, said today that he could not yet speak for the school regarding its options to pursue the case further. B.A. officials were planning a press conference for later today.
Colbert estimated that each side in the decade-long legal battle has incurred "millions" of dollars in legal fees.
As originally posted:
The United States Supreme Court this morning ruled unanimously in favor of the Tennessee Secondary School Athletic Association and against Brentwood Academy in a dispute over whether an organization like the TSSAA has the right to prohibit high schools from recruiting younger athletes.
The ruling may put an end to a decade of litigation between the Midstate football powerhouse and the governing body for high-school sports in Tennessee. Today's ruling is the second by the high court in the case. In 2001, a closely divided court ruled in Brentwood Academy's favor on the issue of whether the TSSAA was tantamount to a public entity.
In today's decision, which is available at this link, Justice John Paul Stevens wrote: "Enforcing a rule that prohibits high school coaches from recruiting middle school athletes does not violate the First Amendment. Brentwood made a voluntary decision to join TSSAA and to abide by its antirecruiting rule. An athletic league's interest in enforcing its rules may warrant curtailing the speech of its voluntary participants."
The case originated in claims that Brentwood Academy coach Carlton Flatt, who has since retired, sent a letter to several eighth graders in 1997 inviting them to attend the school's spring football practice. Also, free football tickets were distributed to a middle school football coach.
The TSSAA deemed these activities to be violations of its recruiting rules.
Although today's ruling was unanimous, Justice Clarence Thomas filed a concurring opinion objecting to its reasoning. Thomas argued that the precedent cited by Stevens, a case involving limitations on free speech by government employees and contractors, was being taken out of context.
"Rather than going through the bizarre exercise of extending obviously inapplicable First Amendment doctrine to these circumstances, I would simply overrule Brentwood I," Thomas wrote. He was one of four justices opposed to the 2001 ruling, on which now-retired Justice Sandra Day O'Connor cast the deciding vote.
Franklin attorney Rick Colbert of Colbert & Wilbert was counsel to the TSSAA in the case. Representing Brentwood Academy were Vanderbilt law professor Jim Blumstein and Bass Berry & Sims attorney Lee Barfield.