Is a Government Entity’s Rule That Impedes the Flow of Essential and Accurate Information From School Officials to Parents Constitutional?

Petitioner Tennessee Secondary School Athletic Association (“TSSAA”) regulated interscholastic sports among its members, Tennessee public and private high schools. TSSAA sanctioned respondent Brentwood Academy, one of those private schools, because its football coach sent eighth-grade boys a letter in violation of TSSAA’s rule prohibiting members from using “undue influence” in recruiting middle school students for their athletic programs. Following internal TSSAA review, Brentwood filed a lawsuit in federal district court against TSSAA and its executive director under 42 U.S.C.S. § 1983, claiming that enforcement of the anti-recruiting rule was state action violative of the First and Fourteenth Amendments and that TSSAA’s flawed adjudication of its appeal deprived Brentwood of due process. The district court ruled in Brentwood’s favor, but the United States Court of Appeals for the Sixth Circuit reversed, holding that TSSAA was a private voluntary association that did not act under color of state law. The Supreme Court of the United States reversed that determination and on remand, the district court again ruled for Brentwood. The Sixth Circuit affirmed, holding that the anti-recruiting rule was a content-based regulation of speech that was not narrowly tailored to serve its permissible purposes and that in its internal review, TSSAA improperly considered ex parte evidence, thereby violating Brentwood’s due process rights.

Issue Areas:

School Choice

Question(s) Presented:

Whether the Sixth Ciruit erred when it held that TSSAA violated the First Amendment and Due Processes rights of Brentwood Academy when its rules impose limitations on the content of communications between the academy and its students who had entered into a contract to attend Brentwood and their parents, and imposed penalties, including a monetary fine, for violations of those rules.


ALF’s Amicus Brief:

In an amicus brief ALF argues that the TSSAA’s recruiting rule is unconstitutional under the First Amendment because it is not narrowly tailored. School choice is an essential remedy to the growing crisis that is the failure of public schools. In order to have school choice, parents need to have information from school officials with which they can evaluate the comparative performances of programs between schools. Because the Recruiting Rule impedes this flow of essential information and is not content neutral, in that it regulates what is said rather the time place or manner in which it is said, it must be evaluated under strict scrutiny. The Recruiting Rule burdens significantly more speech than is necessary to further the supposedly compelling government interest at stake, and is far from the least restrictive means of fulfilling that interest. Compelling schools to withhold information from parents about school activities is never constitutional, as it furthers no legitimate government interest. ALF asks this Court to affirm the Sixth Circuit.

Status:

On June 21, 2007, the Supreme Court issued an adverse opinion, holding that the bans on coaching recruiting were narrowly tailored to enhance the operating efficiency of high school athletic leagues.

Date Originally Posted: March 8, 2007

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