The U.S. Supreme Court recently addressed the issue of regulating high school sports for the first time, specifically examining whether a state athletic association acts with government authority when enforcing its rules. The case involves Brentwood Academy, a private Christian school near Nashville, Tennessee, which is challenging the constitutionality of the recruiting rules set by the Tennessee Secondary School Athletic Association (TSSAA). The main question before the high court is whether the TSSAA should be considered a "state actor" whose actions are subject to scrutiny under the U.S. Constitution.
During oral arguments on October 10th, the lawyer for Brentwood Academy, James F. Blumstein, argued that the TSSAA is not truly a private organization since it is controlled by public schools. On the other hand, Richard L. Colbert, representing the TSSAA, claimed that the association is a private group regulating interscholastic sports, which is not a core function of the state education system. However, some justices expressed skepticism about considering the TSSAA purely private. Justice Ruth Bader Ginsburg pointed out that students can receive high school course credit for participating in sports teams, and Justice David H. Souter stated that inter-scholastic athletics are part of the educational system.
Furthermore, Justice Anthony M. Kennedy highlighted that the association’s legislative council is chosen by principals of member schools, a majority of which are public schools. This raised the question of whether the principals, while casting their votes, are acting in a state capacity.
The case originated in 1997 when Brentwood Academy was investigated for alleged recruiting violations. The TSSAA, like many other state athletic governing bodies, prohibits member schools from using "undue influence" in attracting student athletes. Following the investigation, Brentwood Academy, known for its athletic success, faced punishment for three rule violations. The school then filed a lawsuit against the TSSAA in federal district court, arguing that the interpretation of the recruiting rule violated their First Amendment right to free speech. Brentwood initially won in district court but lost in the U.S. Court of Appeals for the 6th Circuit, which ruled that the TSSAA cannot be sued on constitutional grounds since it is not a state actor. Brentwood appealed to the Supreme Court and received support from the Clinton administration.
Barbara D. Underwood, the deputy U.S. solicitor general, argued that when a group of public schools joins together to run a program, the association itself should be considered a state actor. This would ensure constitutional coverage of school programs. Advocates of girls’ participation in school sports also supported Brentwood’s appeal, expressing concerns about losing the ability to sue state athletic associations over alleged unequal opportunities for girls. Justice Ginsburg, known for her advocacy of women’s rights, showed sympathy towards these arguments, emphasizing that if state athletic associations are not considered state actors, schools could decide to exclude girls’ teams. However, Mr. Colbert countered that even if the TSSAA cannot be sued, public schools themselves can be sued for any constitutional violations.
According to a friend-of-the-court brief filed by several other state associations, 45 states have athletic governing bodies that are technically private. Only in California, Delaware, Maryland, New York, Nevada, and the District of Columbia are the athletic governing bodies operated or controlled by the state’s department of education or another state agency. The Supreme Court is expected to reach a decision on this case by next summer.
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