Fourth and 13 at the Supreme Bowl

Illustration by Robert Neubecker

Brentwood Academy is a private Christian high school in Tennessee, with a long and noble tradition of kicking butt and taking names out on the football field. Its shorter and less noble tradition of violating the Tennessee Secondary School Athletic Association’s recruiting rules in order to do so dates back only as far as 1997. That year, the TSSAA (called variously “the T-S-S-A-A” or “the T-double-S-double-A” in this morning’s oral argument) determined that Brentwood’s football coach had sent recruiting letters to promising eighth-graders and offered free game tickets to some others.

The TSSAA’s “recruiting rule” prohibits the use of “undue influence … to secure or retain a student for athletic purposes.” As a result of its violation, Brentwood was barred from TSSAA tournaments for two years, placed on probation for four years, and fined $3,000.

But that is not what today’s argument in Brentwood Academy v. TSSAA is about.

Brentwood filed suit in 1997, claiming that, among other things, the TSSAA’s recruiting rules violated their First Amendment speech rights. And because a day without a federal constitutional free speech lawsuit is evidently like a day without sunshine in Tennessee, the case ended up in federal district court in a squabble over Brentwood’s right to “speak” to potential ninth-graders.

But that’s not what Brentwood is about, either.

As lawyer-lings around the land are learning this week in their first-year constitutional law classes, there can be no constitutional claim unless the party encroaching upon your rights is a state actor. Knowing that fact alone got me a B%2B in Con Law. It can do the same for you. So, long before the courts can tackle the question of what weaselly things the Brentwood football coach did or did not do, and long before they can scrimmage over whether the TSSAA’s recruiting rules violate the First Amendment, they must resolve this coin toss over whether the TSSAA is a “state actor” or private entity.

The Tennessee district court found that the TSSAA was a state actor. The 6th Circuit Court of Appeals, looking at the same case law and precedents, held it was not. Thus does a trivial dispute over the weaselly conduct of a lone football coach wind its way up the judicial food chain to become a seminal case on whether state athletic associations may be subject to federal constitutional constraints.

James Blumstein, arguing for Brentwood Academy, argues that the TSSAA, while not authorized or regulated by the state of Tennessee, nevertheless acts “under color of law” because 84 percent of its member-schools are public. Both Scalia and Rehnquist pound away on Blumstein because their general (and ill-concealed) constitutional nightmare is of every slighted cheerleader in America seeking legal recourse under the federal Constitution. Rehnquist asks if a hypothetical association of high-school principals who “get together once a month and hold a convention each summer” would create a state actor. Scalia hits him from the left on how much pressure a public school could really bring to bear on a principal who sits on the TSSAA. Rehnquist piles on with a line of questions about what “control” the state really has over TSSAA activities. Blumstein, who is nervous, seems occasionally to assert that the mere possibility that states might control a principal’s decisions suffices to show state control.

Justice Ginsburg tosses Blumstein a few Nerf balls to help him recover, suggesting that whether a voluntary organization gets together to set interscholastic athletic rules or curricula, they are playing an equally governmental function. Just as Blumstein is starting to get his color back, Kennedy blindsides him with a hypothetical about whether a TSSAA regulation banning crucifixes from locker rooms in parochial Christian schools would be permissible. Blumstein says such a rule would be permissible, since the TSSAA as a state actor could force compliance with the First Amendment. Then it’s Kennedy’s turn to turn white.

In the strange-bedfellow twists apt to arise in such cases, the United States Solicitor General’s office argues today on the side of the private Christian high school that violated the recruiting rules. The school’s fear, and that of the myriad women’s groups who filed briefs on behalf of Brentwood, is that if the court finds the TSSAA not to be a state actor for free-speech purposes, all school athletic associations would be outside the dominion of federal equal protection laws. That could open the door for another state athletic association to bar women, or Asian-Americans, or Canadian-Americans from varsity athletic teams without the protection of the civil rights laws.

The flip side (call it Rehnquist’s Nightmare) would be a decision that any voluntary statewide extracurricular association is a state actor. That could open the door for billions of angry members of the Illinois glee club association, or worse yet, the Vermont interscholastic juggling club, to sue the federal government for alleged civil rights violations. Barbara Underwood, of the Solicitor General’s office, may someday be arguing on behalf of these maltreated jugglers, but today she merely urges that if it walks like a state actor, and quacks like a state actor, it’s most likely a state actor.

Which brings us inexorably to the “Footnote 13” problem.

There is always a Footnote 13, even when it’s called a “Footnote 7” or “long-winded-parenthetical.” Today’s Footnote 13 lurks within a 1988 case called NCAA v. Tarkanian—a case in which UNLV coach Jerry “Tark the Shark” Tarkanian tried to sue the NCAA in federal court on the theory that the NCAA was a state actor. While the Supremes held that the actions of the NCAA did not constitute state action, Justice Stevens, in explaining that the NCAA is an amalgam of multiple state and private institutions whose powers derive not from the state of Nevada but from its “collective membership,” dropped a footnote suggesting that: “The situation would, of course, be different if the membership consisted entirely of institutions located within the same State, many of them public institutions created by the same sovereign.”

Now whenever some justice or their eager-beaver law clerk drops a footnote asserting that “if X, Y, and F were to occur, the Supreme Court might well decide this differently,” as sure as night follows day, a case in which X, Y, and F do occur, will make its way up to a Supreme Court, with newer, different justices, who will then need to write a new opinion—featuring a new Footnote 13—explaining how this X, Y, and F are somehow different. So while Ms. Underwood argues that this case is precisely the scenario presaged by Tarkanian’s Footnote 13, the TSSAA’s Richard Colbert argues that Tarkanian didn’t mean what it said it meant. No, he says, Tarkanian means that an athletic association is only a state actor when the power flows directly from the state.

Now it’s Ginsburg’s and Kennedy’s and Souter’s time to pile on. They query how, if all the principals participating in the TSSAA are there solely by virtue of the fact that they are principals, the state cannot be calling the association’s shots? Souter and Scalia get involved in a brief comic half-time show about whether they play hockey in Tennessee, and then Ginsburg asks the $3,000 question: “What’s to keep the TSSAA from limiting varsity teams to just boys?” Colbert’s response: that individual public schools cannot do that without running afoul of the federal Constitution. So, he argues, the TSSAA can discriminate but its member-schools cannot. Allowing, as Ginsburg points out, for the odd prospect of an organization in which every component member is defending a federal discrimination suit while it continues to promulgate discriminatory policies.

Both Brentwood and this morning’s other case— Board of Trustees of University of Alabama v. Garrett—involve tricky questions of whether to expand the federal constitutional ambit to effect commendable anti-discrimination legislation. But whether those goals are noble, or trivial, there can be no doubt that somewhere, somehow, a new Footnote 13 will be there to light our way to the answer.

Illustration by Robert Nuebecker.