Next week, the U.S. Supreme Court will be addressing another dispute regarding free speech in high schools. However, this case differs greatly from the one the justices heard last month, which involved a student being disciplined for displaying a controversial banner. In this new case, the speech in question does not come from a student, but rather from a private high school. The issue at hand is what happens when the school’s communication with incoming student-athletes violates the rules of conduct set by a state scholastic-sports association.

Brentwood Academy, an independent school located in suburban Nashville, Tennessee, has been engaged in a bitter legal battle with the Tennessee Secondary Schools Athletic Association (TSSAA), the governing body for high school sports in the state, for almost ten years. The case stems from a letter sent by Brentwood’s football coach in 1997 to a group of 8th grade boys, inviting them to spring football workouts. The association deemed the coach’s letter to be in violation of its rules against recruiting student-athletes, resulting in Brentwood being excluded from football and basketball playoffs for two years.

Brentwood sued the TSSAA, arguing that the association’s enforcement action violated the school’s First Amendment right to free speech. Curt Masters, the headmaster of Brentwood Academy, clarified that they are not seeking to change the rules in order to recruit athletes, but rather asking for the rule not to be applied in a way that prevents them from communicating with students who have already committed to attending their school.

Ronnie Carter, the executive director of the TSSAA, counters this argument by stating that member schools voluntarily join the association and agree to abide by its rules, which include a prohibition against using "undue influence" to recruit or retain students for athletic purposes. He questions the necessity of high school coaches reaching out to people to promote their school in the name of athletics and believes that society already places too much importance on sports.

On April 18, the Supreme Court will be revisiting the case of Brentwood Academy v. Tennessee Secondary School Athletic Association to consider the central question of free speech. In 2001, the Court initially took up the case to determine whether the TSSAA, which is technically a private organization, could be considered a "state actor" with the authority to enforce its rules. The Court ruled 5-4 that due to the significant number of public schools in the association and its association with the state board of education, it could be considered a state actor. However, this ruling did not settle the case. Brentwood and the TSSAA continued to engage in legal proceedings for several more years, culminating in a trial to determine whether the school’s free speech rights had been violated.

With the state-actor question now resolved, the 6th Circuit court found that the TSSAA’s recruiting rule was not inherently unconstitutional but sent the case back to the district court to determine whether its application to Brentwood’s 1997 letter violated the school’s free speech rights. The district court ruled in favor of Brentwood, and last year, a panel of the 6th Circuit court upheld this ruling in a 2-1 decision.

"When educational authorities effectively prevent schools from communicating with prospective students about school programs and financial aid, private schools suffer in a way that public schools do not," states Mr. Abrams in his brief. The TSSAA has garnered support from various organizations, including the Bush administration, the National School Boards Association, the National Federation of State High School Associations, and nine state scholastic-sports governing bodies, as stated in a joint brief.

Ten Football Titles

According to James B. Gessford, the attorney for the Nebraska School Activities Association, if the Supreme Court upholds the lower court rulings in favor of Brentwood, it could result in the exclusion of private schools from state high school sports associations. In his brief for the nine state sports associations, he argues that private schools would have the ability to challenge state athletic associations’ rules on constitutional grounds, while public schools would not have the same opportunity due to their non-private status. Mr. Gessford argues that state high school activities groups will constantly face the threat of litigation regarding the enforcement of their rules. However, even excluding private schools from membership would invite lawsuits, as some courts have mandated the admission of private schools in athletic associations, he claims.

Mr. Carter of the TSSAA emphasizes that the association consists of schools that have voluntarily come together and collectively establish the rules of conduct. For Brentwood Academy, the severity of the penalty imposed for a seemingly minor violation of the recruitment rule, involving the spring football letters, has fueled the lawsuit. Advocates for Brentwood have long argued that the TSSAA leadership, dominated by public schools, harbors resentment towards the private school’s athletic success.

"We had students who had already decided to attend the school," stated Mr. Masters, the headmaster of Brentwood. "The parents had made a commitment to come. The activity, spring football practice, was allowed under the TSSAA’s rules. Yet, the school was criticized for contacting these students when they were provided information about a legitimate permitted activity." Carlton Flatt, the Brentwood football coach who sent the 1997 letters regarding spring practice, retired from coaching to become the school’s athletic director. He returned to the head coaching position a few years ago. Last autumn, Brentwood Academy secured its 10th state football championship. Mr. Flatt announced his permanent retirement after that game. When asked about the cost of the legal battle, both Mr. Masters and Mr. Carter hesitated. Brentwood Academy has reportedly spent more than $3 million, while the TSSAA’s legal expenses may have reached approximately $2 million, according to the men. "This case will eventually come to an end," said Mr. Carter regarding the decade-old case. "When it is concluded, anyone who perceives TSSAA or Brentwood as the victor would be mistaken. We are both losers. The only ones who have truly benefitted are the attorneys."