At last the Tennessee Secondary School Athletic Association v. Brentwood Academy case appears to be lurching toward a conclusion after the U.S. Supreme Court agreed to hear a case that many believe could impact high school recruiting for years.
The case got its start ten years ago when a Brentwood Academy football coach wrote what he believed was an innocuous letter to 8th grade students inviting them to a spring football practice. This violated the TSSAA rules, which forbade such contact until the student had attended the school for three days. The TSSAA punished the academy, which had run one of the most successful football programs in the state for the better part of two decades, by banning it from the football and basketball playoffs for two years.
Brentwood sued, alleging the TSSAA had violated its Constitutional rights to free speech. In 2001, the litigation rose all the way to the U.S. Supreme Court as the two sides argued whether the TSSAA should be considered a “state actor.” In a controversial 5-4 ruling, the court agreed with Brentwood that the association was a state actor, meaning Brentwood could have been deprived of its Constitutional rights.
Brentwood then maintained its winning streak at the district court level, which found the association had violated its free speech and due process rights. The 6th U.S. Circuit Court of Appeals affirmed, spawning the present appeal from the association.
The association is obviously hoping the Supreme Court agrees with 6th Circuit Appeals Court Judge John Rogers, who wrote, in a dissent, that “High school football is a game. Games have rules. To have federal courts, under the guise of applying the enduring principles of the 1st Amendment, reverse the ordinary application of high school football recruiting rules — where the core values of the Amendment are not even remotely involved — unduly trivializes these constitutional principles.”
In a twist, the association is also asking the high court to reverse its own finding that it is a state actor. While such a reversal would be unusual, the association’s strategy is very deliberate as shown as evidenced by the association’s petition, which was written by Washington, D.C. attorney Maureen Mahoney.
“Lower courts have been confused by [the first Brentwood ruling’s] ‘entwinement’ doctrine, describing it as ‘labyrinthine,’ ‘nebulous,’ ‘vague,’ and a ‘freewheeling gestalt analysis,’” Mahoney wrote in referring to the High Court’s conclusion that the association was a state actor.
Tony Mauro, an expert for the First Amendment Center, recently wrote that “asking the Court to reverse itself is usually a long-shot gamble. But Mahoney, a veteran high court advocate, may not have risked too much by asking in this case, for one reason: The composition of the Court has changed since 2001. The four justices who dissented in the 2001 ruling were on the conservative end of the spectrum: the late Chief Justice William Rehnquist, Justices Antonin Scalia, Clarence Thomas and Anthony Kennedy.
“With conservative John Roberts Jr. replacing Rehnquist and conservative Samuel Alito Jr. replacing the moderate Sandra Day O’Connor, the chances of picking up a vote and reversing the earlier ruling are good. The fact that the Court agreed to add TSSAA’s appeal to its docket means that at least four justices think reversal is worth considering.”
Nashville lawyer H. Lee Barfield II, who is representing the academy, criticized the association’s strategy, writing in his own brief: “Since no subsequent change of law has taken place … one is left to the natural inference that TSSAA is appealing to the two newly appointed justices to reconsider a recent precedent in the context of that very case.”
The court will hear oral arguments in April, with a decision expected to come this summer.
