6TH CIRCUIT FINDS THAT TSSAA IS NOT A STATE ACTOR AND OVERTURNS DISTRICT
COURT DECISION ENJOINING USE OF RECRUITING RULE.
The federal district court's decision in Brentwood Academy was
discussed in Volume 1, Number 3. On appeal to the 6th Circuit, the Tennessee Secondary
School Athletic Association (TSSAA) argued that the district court incorrectly determined
that it was a state actor, and that, even if it is a state actor, the court erroneously
ruled that the recruiting rule violated the First Amendment.
The appellate court observed that Brentwood Academy must show that the
TSSAA is a state actor to prevail on a First Amendment claim. After noting that the TSSAA
is a voluntary association, receives no state funding, and is not legislatively authorized
to regulate interscholastic athletics, the court determined that TSSAA was not an arm of
the Tennessee government.
The Sixth Circuit then considered whether TSSAA is so intertwined with the
government to justify treating it as a state actor. Examining the Supreme Court's Blum
trilogy and its own precedent, the court of appeals pointed to three different tests that
it has used to resolve this issue. The public function test asks whether "'the
private entity exercises powers which are traditionally exclusively reserved to the
state.'" The court determined that the coordination of interscholastic athletics is
not such a public function. The state compulsion test "requires that the party
seeking to establish state action prove that the state has so coerced or encouraged a
private entity to act that the choice of that entity must be regarded as the choice of the
state." The court held that this test is not satisfied because the State of
Tennessee's interaction with TSSAA has been minimal. The symbiotic relationship test
considers whether "there is ' a sufficiently close nexus between the state and the
challenged action of the latter [that] may be fairly treated as that of the state it
self." After analyzing precedent applying this test, the court found that it does not
support a finding that TSSAA is a state actor.
In conclusion, the court held that Brentwood could not show that TSSAA is
a state actor. Therefore, the court did not consider the merits of Brentwood's First
Amendment claim. As a result, the Sixth Circuit reversed the district court's grant of
summary judgment in favor of Brentwood, vacated the injunction, and remanded the case for
further proceedings.
Brentwood immediately asked for a rehearing en banc claiming that the
panel's decision conflicted with its own precedent. After referring the issue to the
original panel for reconsideration, the full court denied Brentwood's petition.
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You Make the Call. . . Index
"You Make The Call..." is a newsletter published four times per year (spring,
summer, fall, winter) by the National Sports Law Institute of Marquette University Law
School, PO Box 1881, Milwaukee, Wisconsin, 53201-1881. (414) 288-5815, fax (414) 288-5818,
munsli@vms.csd.mu.edu. (www.marquette.edu/law/sports/call.html).
This publication is distributed via fax and email to individuals in the sports field upon
request.
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Editorial Staff:
Paul M. Anderson, Editor & Designer
Kirsten Hauser, Associate Editor
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Copyright © 1999 -- All rights reserved.
