Federal judge: Tennessee athletic association rule violates school's free speech

By The Associated Press

01.14.03

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NASHVILLE, Tenn. — In a case that could determine how high school sports are regulated in Tennessee, a federal judge yesterday declared unconstitutional a state athletic association's recruiting guideline as it applied to a private school.

U.S. District Judge Todd Campbell's ruling came in a 5-year-old case involving the Tennessee Secondary Schools Athletic Association and Brentwood Academy, a football powerhouse in suburban Nashville.

Brentwood Academy sued the TSSAA, saying a fine and probation it received in 1997 for alleged recruiting violations infringed on its First Amendment rights.

The case began in Campbell's court in 1998 after the school lost two appeals before the TSSAA. The case also has been argued before the 6th U.S. Circuit Court of Appeals and the U.S. Supreme Court, which found the TSSAA functions as a "state actor" because it oversees secondary school athletics across the state, and therefore can be sued on constitutional grounds.

In yesterday's decision, Campbell wrote that the recruiting rule, as applied to Brentwood Academy, is unconstitutional in violation of the First Amendment right to free speech and the 14th Amendment right to due process, and he dismissed the penalties against the school.

"This does not mean that the TSSAA cannot or should not have a recruiting rule," Campbell wrote. "The TSSAA has demonstrated that it has substantial governmental interest in having a recruiting rule. Brentwood Academy agrees that there should be a strong recruiting rule. In this case, however, the recruiting rule, as applied to Brentwood Academy, was not narrowly tailored to achieve the TSSAA's legitimate governmental interests. The recruiting rule also was applied without due process."

The 6th Circuit earlier had ruled that the recruiting guideline "on its face" did not violate the First Amendment. But the appeals court returned the case to the lower court to determine if the rule, as applied to Brentwood Academy, violated the First Amendment.

TSSAA spokesman Matt Gillespie said the association received the 51-page ruling late yesterday morning and had no immediate comment.

Lee Barfield, attorney for Brentwood Academy, was in a meeting and did not immediately return a telephone call from the Associated Press.

Campbell made his decision after hearing 10 days of testimony in a bench trial that concluded Dec. 31.

During the trial, TSSAA Executive Director Ronnie Carter outlined a bleak vision of high school athletics if recruiting were allowed, and detailed how his office tried to stop such activity when the TSSAA clamped down on Brentwood Academy.

If recruiting were allowed, Carter said, "the rich would get richer and the poor would get poorer." He said high school coaches, already difficult for schools to find, would quit in droves if their job requirements grew to scouting, courting and battling over middle school athletic talent.

The exploitation of the children would be inevitable, he said, even if students didn't realize it at first.

The TSSAA said the academy broke the association's rules when it allowed two middle school athletes to attend an academy game for free, and when it sent spring-practice letters to a dozen students who had already signed contracts to attend the school the next fall.

The association determined that the two sets of actions constituted "undue influence" on the middle schoolers. The school was fined $3,000 and placed on four years probation.

Brentwood Academy argued it did not violate the TSSAA recruiting rule. The rule was so vague and unfairly applied, it was difficult to know when a school had stepped over the line, the school said.

The school also argued that it had a right to tell "the school's story" to prospective students.

During the trial, Campbell said that regardless of his ruling, he expected the losing side to appeal his decision to the 6th Circuit.

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Free-speech fight between state athletic association, school back before court
Brentwood Academy sued Tennessee group in 1998, saying recruiting restrictions violated the private school's First Amendment rights.  12.11.02