Brentwood Acad. v. TN Sec. School Ath. Assn. - Opinion Announcement

Argument of Speaker

Mr. Speaker: The opinion of the Court in No. 99-901, Brentwood Academy versus Tennessee Secondary School Athletic Association will be announced by Justice Souter.

Argument of Justice Souter

Mr. Souter: This case comes to us on writ of certiorari to the United States Courts of Appeals for the Sixth Circuit.

The respondent, Tennessee Secondary School Athletic Association is a not-for-profit athletic association that regulates interscholastic sport among Tennessee public and private high schools.

The Association sets membership standards and student eligibility rules and has the power to penalize any member school that violates those rules.

Most of the State’s public high schools rather are members and public school officials make up the voting membership of the Association’s, governing council and control board, which typically hold meetings during regular school hours.

The State Board of Education has long acknowledged the Association’s role in regulating interscholastic competition in public schools and its designees sit as nonvoting members of the Association’s governing bodies.

When the Association penalized the petitioner, Brentwood Academy for violating a recruiting rule, Brentwood sued the Association and its Executive Director under 42 U.S.C. 1983, claiming that the rule’s enforcement was state action that violated the First and Fourteenth Amendments.

The District Court granted Brentwood summary judgment, but the Sixth Circuit found no state action and reversed.

In an opinion filed today with the Clerk of the Court, we reverse the judgment of the Sixth Circuit, and hold that the Association’s regulatory activity is state action owing to the pervasive entwinement of public school officials in its structure, there being no offsetting reason to see the Association’s act in any other way.

No one fact is a necessary condition for finding state action; nor is anyone set of circumstances sufficient as a matter of law for there may always be some countervailing reason against attributing activity to the government.

In this case however, the Association’s nominally private character is overborne by the substantial entwinement of public institutions and public officials in its composition and its working.

The Association is to the extent of 84% of its membership in an organization of public schools, represented by their officials acting in an official capacity to provide an integral element of secondary public education interscholastic athletics.

There would be no recognizable association without the public school officials, who overwhelmingly determine and perform all but the Association’s purely ministerial acts.

Only the 16% minority of private school memberships keeps the entwinement of the Association and public schools from being total and their identity is totally indistinguishable.

To complement the entwinement from the bottom up, the State has provided entwinement from the top down.

State Board members sit on the Association’s governing bodies and Association employees participate in the state retirement system. In the absence of any substantial reason to claim unfairness in charging the Association with a public character, entwinement to the degree shown here requires that it would be judged by constitutional standards.

Justice Thomas has filed a dissenting opinion in which the Chief Justice, Justice Scalia and Justice Kennedy joined.