Brentwood Academy v. Tennessee Secondary School Athletic Ass'n

• Decision Date: 21 June 1999
• Docket Number: No. 98-6113,98-6113
• Citation: 180 F.3d 758
• Parties: BRENTWOOD ACADEMY, Plaintiff-Appellee, v. TENNESSEE SECONDARY SCHOOL ATHLETIC ASSOCIATION; Ronnie Carter, Executive Director and Individually, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

180 F.3d 758

BRENTWOOD ACADEMY, Plaintiff-Appellee, v. TENNESSEE SECONDARY SCHOOL ATHLETIC ASSOCIATION; Ronnie

Carter, Executive Director and Individually,

Defendants-Appellants.

No. 98-6113.

United States Court of Appeals, Sixth Circuit.

Argued April 23, 1999.

Decided and Filed June 21, 1999.

Appeal from the United States District Court for the Middle District of Tennessee at Nashville. No. 97-01249--Todd J. Campbell, District Judge.

ARGUED: Charles Hampton White, CORNELIUS & COLLINS, Nashville, Tennessee, for Appellants. James F. Blumstein, VANDERBILT UNIVERSITY LAW SCHOOL, Nashville, Tennessee, for Appellee. ON BRIEF: Charles Hampton White, Richard L. Colbert, CORNELIUS & COLLINS, Nashville, Tennessee, for Appellants. James F. Blumstein, VANDERBILT UNIVERSITY LAW SCHOOL, Nashville, Tennessee, H. Lee Barfield, II, William Scott Sims, BASS, BERRY & SIMS, Nashville, Tennessee, G. Thomas Nebel, Nashville, Tennessee, for Appellee. John J. Kitchin, Kansas City, Missouri, Edmund J. Sikorski, Jr., Ann Arbor, Michigan, Steven L. Craig, HEICHEL, CRAIG & PRELAC, Canton, Ohio, Mallory V. Mayse, Colombus, Missouri, Danny C. Reeves, GREENEBAUM, DOLL & McDONALD, Lexington, Kentucky, Leonard E. Ireland, Jr., CLAYTON, JOHNSTON, QUINCEY, IRELAND, FELDER, GADD, ROUNDTREE, Gainesville, Florida, Terrence E. Kiwala, ROOKS, PITTS & POUST, Chicago, Illinois, for Amici Curiae.

Before: GUY, SUHRHEINRICH, and GILMAN, Circuit Judges.

RONALD LEE GILMAN, Circuit Judge.

This appeal involves the constitutionality of the Tennessee Secondary School Athletic Association's "recruiting rule." The rule prohibits member schools from "[t]he use of undue influence ... to secure or retain a student for athletic purposes...." Brentwood Academy, a private school and a member of the Tennessee Secondary School Athletic Association ("TSSAA"), was found to have violated the rule on two separate occasions. After exhausting its internal appeals of TSSAA-imposed sanctions, Brentwood brought the present lawsuit to allege violations of its First and Fourteenth Amendment rights, as well as a host of other claims.

The district court granted summary judgment in favor of Brentwood on its claim that the recruiting rule violates the First Amendment, and enjoined TSSAA from enforcing the rule. TSSAA brings this interlocutory appeal, claiming that the district court erred in determining that TSSAA is a state actor, and further arguing that even if it is a state actor, that the recruiting rule is not violative of the First Amendment. For the reasons set forth below, we REVERSE the judgment of the district court, VACATE the injunction, and REMAND the case for further proceedings consistent with this opinion.

I. BACKGROUND

Brentwood Academy, a private Christian school located in Brentwood, Tennessee, is by all accounts something of a high school football powerhouse. The football team has been nationally ranked by USA Today, has amassed a 310-43 record over the past 28 years (as of March, 1998), and has won at least 7 TSSAA state championships. Brentwood's basketball team is also well known in athletic circles.

In 1997, various rival high school coaches alleged that Brentwood had violated TSSAA rules in a number of respects. TSSAA conducted an investigation, which focused on three specific incidents. The first incident occurred when Brentwood's football coach provided free tickets to a Brentwood football game for a middle school coach and two student athletes. The second claim also involved the football coach, who sent a letter to all incoming ninth-graders accepted at Brentwood that invited them to join the football team for spring practice while they were still in the eighth grade. The final incident involved the basketball coach conducting an impermissible off-season practice for Brentwood's current players. Because the off-season practice by the basketball coach allegedly violated the aptly-named "off-season practice rule" rather than the "recruiting rule," it is not at issue in this case. The two actions involving the football coach, however, are based on alleged violations of the recruiting rule and are thus the focus of this appeal.

As set forth in TSSAA's regulations, the recruiting rule provides as follows:

The use of undue influence on a student (with or without an athletic record), his or her parents or guardians of a student by any person connected, or not connected, with the school to secure or retain a student for athletic purposes shall be a violation of the recruiting rule.

TSSAA By-laws, Article II, Section 21. The regulations then contain approximately three pages of interpretation to assist member schools in understanding the types of "influence" that TSSAA considers "undue."

With cooperation from Brentwood, TSSAA completed its investigation in August of 1997. TSSAA concluded that all three incidents described above violated TSSAA rules. Brentwood was declared ineligible to participate in TSSAA tournaments in football and basketball for one year, and was placed on probation for two years. By the end of TSSAA's two-step internal appeals process, the penalties had actually increased, banning Brentwood from the tournaments for two years, placing the school on probation for four years, and fining the school $3,000.

Brentwood filed the present suit against TSSAA on December 12, 1997, seeking an injunction against the enforcement of the recruiting rule and alleging, among other state and federal claims, a violation of 42 U.S.C. § 1983. The § 1983 claim charged that TSSAA had deprived Brentwood of its First and Fourteenth Amendment rights under color of state law. Cross-motions for summary judgment were filed with respect to all claims except for Brentwood's allegations of antitrust violations. The district court granted summary judgment in favor of Brentwood on its First Amendment claims and enjoined enforcement of the recruiting rule. It granted summary judgment in favor of TSSAA on one state-law claim, and denied both motions on the remaining counts. TSSAA now appeals the district court's decision that TSSAA violated the First Amendment, arguing that it is not a "state actor," and that even if it is, its actions were valid under the First Amendment.

II. ANALYSIS

A. Standard of review

We review de novo the district court's grant of summary judgment. See, e.g., Smith v. Ameritech, 129 F.3d 857, 863 (6th Cir.1997). Summary judgment is appropriate when there are no issues of material fact in dispute and the moving party is entitled to judgment as a matter of law. See FED.R.CIV.P. 56(C). In deciding a motion for summary judgment, the court must view the factual evidence and draw all reasonable inferences in favor of the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The judge is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine issue for trial is presented when there is sufficient "evidence on which the jury could reasonably find for the [non-moving party]." Id. at 252.

B. State action and TSSAA

To prevail on a First Amendment claim, the plaintiff must first make a showing that the defendant is a "state actor." "When Congress enacted § 1983 as the statutory remedy for violations of the Constitution, it specified that the conduct at issue must have occurred 'under color of' state law; thus liability attaches only to those wrongdoers who carry a badge of authority of a State and represent it in some capacity...." NCAA v. Tarkanian, 488 U.S. 179, 191, 109 S.Ct. 454, 102 L.Ed.2d 469 (1988). The Supreme Court has mandated careful adherence to the "state action" requirement because it "preserves an area of individual freedom by limiting the reach of federal law." Lugar v. Edmonson Oil Co., Inc., 457 U.S. 922, 936, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982).

Analyzing the structure and function of TSSAA is therefore essential to the inquiry before us. Founded in 1925, TSSAA is a voluntary association incorporated under the laws of Tennessee. It is composed of 290 public schools and 55 private schools. TSSAA's constitution and bylaws specify that the administrative authority of TSSAA is vested in a Board of Control consisting of nine members elected by the member schools. Each Board member represents a particular region of Tennessee. The Board members are principals or superintendents of the member schools. At all times relevant to this action, the Board was comprised exclusively of public high school administrators, although private high school administrators are equally eligible for election to the board.

TSSAA receives no funding from the state, nor are the salaries of its staff paid by the state. Its revenues are derived primarily from gate receipts at TSSAA tournaments. TSSAA schedules only the state tournaments, not the vast majority of interscholastic contests. Significantly, when it uses public facilities for these events, it must enter into a contract with the state to do so and pay for the privilege.

There is no authority anywhere in the Tennessee Code authorizing the state to conduct interscholastic athletics or to empower another entity to conduct such athletics on its behalf. Although a State Board of Education rule in effect from 1972 to 1995 "designated" TSSAA to conduct interscholastic athletics, that rule has since been repealed. The current rule states that public schools in Tennessee are authorized to join TSSAA, but are also authorized to withdraw from membership if they so choose.

These facts make clear that TSSAA is not an arm of the government. The more difficult question is whether we are required to treat it as such because it is so intertwined with the government that its actions should be considered as those of the state.

C. The Blum trilogy

The Supreme Court has...