*1 February immigration court on had no record of stated that the NIS Hazel moreover, on hearing and the remand the corrected having subpoena issued a year full August 2003—a date, that the not held until He also reiterated however. it Although a half after the remand. an individual with a employ did not NIS the remand was intended appears on the now corresponding to that shown name adjust- to consideration of an document, to be limited and he confirmed Ms. Grencik’s status, peti- in petitioner’s of for ment report that it was unheard earlier lawyer believed—and not regional tioner’s own anyone to summon the NIS had, in the case court, sub- without some reason —that independent a court that had words, pur- all “reopened been authority subpoena its own his poena and used poses.” forms. able to obtain petitioner nor If the had been
It is true that neither Ms. Grencik on the document authen- spoken directly claimed have relevant evidence Mr. Hazel August of I ticity question prior to depart- the NIS or with the archives why it would not have I think we know of no reason regional ment of the court. assume, therefore, him such open proffer that the vice con- been evidence must hearing petition- at the on remand. The relying given on information suls were proffer per- such a investigator by er’s failure to make them local hired immigration judge suades me that the did embassy. obviously It would have been finding adhering original to have not err in to his preferable for the memoranda forged petitioner name. had submitted investigator identified this We material, Department routinely forgeries that the documents. The know State view, my suppose in and I see no reason to investigators relies on hired the normal business, however, and, I for what- that their fabrication was deliberate. course worth, may deny petition of the vice for re- ever be both would therefore vouching accuracy consuls were for the of view. provided
the information this instance. provided The information was not with- time, specifies. out I be- adequate Given lieve, petitioner should have been able
to counter at least some of the factual ACADEMY, Plaintiff- BRENTWOOD representations set forth in the memoran- Appellee/Cross-Appellant, representations da had those been untrue. peculiar procedural Because of the course SECONDARY SCHOOL TENNESSEE took, petitioner this case had more ASSOCIATION; ATHLETIC Ronnie ample than time which to seek evidence Carter, Executive Director and his tending subpoena to show that the and the Defendants-Ap capacity, individual yet conviction were authentic after no all— pellants/Cross-Appellees. produced: such evidence was 03-5245, Nos. 03-5278. immigration The decision which the judge initially subpoena found the and con- Appeals, United States Court forgeries viction to at a was rendered Sixth Circuit. hearing September held on 1998. A Argued: Dec. copy of the Grencik memorandum had 17, 2006. and Filed: March Decided petitioner been sent to the more than six Immigra- months earlier. The Board of Appeals
tion remanded the case to the *5 ROGERS,
Before: GIBBONS and BELL, Judges; Chief District Circuit Judge.*
GIBBONS, J., opinion delivered the BELL, court, D.J., in which Chief joined.
ROGERS, 444-456), (pp. J. delivered a separate dissenting opinion.
OPINION
GIBBONS, Judge. Circuit appeal represents trip This the third parties litigation. this court for the to this The case has also before the been United Court, Supreme States which made a nota- ruling defendant-appellant ble Ten- Secondary nessee Athletic School Associa- (“TSSAA”) tion was a state actor. parties’ dispute began when the imposed penalties number Academy plaintiff-appellee Brentwood (“Brentwood”) Colbert, Richard L. Colbert result of asserted viola- ARGUED: *6 Winstead, Nashville, Tennessee, Ap- for tions Brentwood of the TSSAA’s rule & Blumstein, recruiting of student athletes. pellants. governing James F. Vanderbilt School, Nashville, Tennessee, and its execu- Ap- Law for Brentwood sued the TSSAA Colbert, director, defendant-appellant BRIEF: Ronnie pellee. ON Richard L. tive Miller, Carter, Christopher alleging violations of the First and Gregory J. W. Anderson, Winstead, Nashville, Amendments, federal antitrust Colbert & Fourteenth laws, Tennessee, Appellants. for F. and Tennessee law. After the Unit- James Blumstein, School, determined that Supreme Law Nash- ed States Court Vanderbilt actor, ville, Tennessee, II, a this court on H. Lee Barfield W. the TSSAA is state Bass, Sims, Jr., recruiting that the rule was Brantley Phillips, Barry & remand held Nashville, Tennessee, and to intermedi- Appellee. subject Dan- content-neutral Casse, scrutiny. to the district Group, House ate We remanded iel White Writers Jr., D.C., Finn, proper Washington, E. court with instructions about Chester Foundation, in the First Amend- analysis B. the case on Thomas Fordham Wash- D.C., court conducted a Daly, Trade ment issue. The district ington, John F. Federal Commission, D.C., court ten-day nonjury E. trial. The district Washington, William First Amend- Quirk, Humphrey, Shughart, found for Brentwood on the James M. Missouri, issue, holding application that the Kilroy, City, Thomson & Kansas ment narrowly not for Amici the rule to Brentwood was Curiae. * Bell, sitting by designation. Michigan, The Honorable Robert Holmes Chief District Judge States for the Western United District includ- regulations, rules and legitimate, further the TSSAA’s
tailored to Id. In ing rule. court The district substantial interests. expressly desig- the rule dropped Board on its substan- also found for Brentwood nating regulator the TSSAA as but did process claims procedural and due tive change relationship organiza- with the TSSAA, proce- as well as on its against 292-93, 924. At all tion. Id. in process against claim Carter dural due case, present relevant to the Ronnie times The capacity. his individual district executive director of the Carter served as enjoined penalties against the TSSAA’s TSSAA. held Brentwood. The district court also immunity
that the TSSAA was entitled to Academy independent is Brentwood’s antitrust claims. from Brentwood, Tennessee, and a school cross-appealed to this court on parties member of the TSSAA.
these issues. grades school had about students through twelve. Brentwood’s athletic six below, forth we For the reasons set team, teams, especially its football have part, remand part, affirm in reverse and very been successful interscholastic proceedings. for further competitions, though even its enrollment is many competitors. than of its At smaller I. question, the time of the events in Brent- A. Factual Overview Brown; Bill wood’s Headmaster was Athletic Director and Head Football Coach of the most begin description We Flatt; and Director of was Carlton supply additional facts pertinent facts Nancy Admissions was Brasher. Brent- necessary in our discussion of the vari- paid a fee to the to renew its wood TSSAA ous issues. annual membership on an basis. voluntary The TSSAA is association promulgated The TSSAA has “recruit- public independent schools and ing regulate attempts rule” in order to parochial schools from across secondary middle schools to recruit organized as a Tennessee. pro- school student athletes for athletic non-profit corporation under Tennessee rule, grams. The found the TSSAA’s law, purpose stimulating with the Bylaws, reads: regulating competi interscholastic athletic *7 The use of undue influence on a student among gov tion its member schools. Its (with record), or without an his athletic erning entity is the Board of Control. As parents guardians or of a student or her in Supreme noted in the Court’s decision connected, by any person or not con- case, the Tennessee State Board of nected, with the school to secure or Education, beginning explicitly in ac purposes a student for athletic retain “in knowledged the TSSAA’s functions recruiting shall a violation of the rule. standards, providing regulations rules and bylaws in also include a number of competition public for interscholastic guide- questions schools Tennessee.” Brentwood Acad. and answers and other Ass’n, com- Secondary interpretive v. Tenn. Sch. Athletic lines that are known as mentary. While these are meant aid rule, recruiting In interpretation L.Ed.2d 807 the Board of the designated organiza they binding the TSSAA as “the are not on the TSSAA Board the re- supervise regulate” agreed tion to interscho of Control. Carter counts, really “all that specifically approved cruiting lastic athletics and rule itself is it, in- grade any underneath seventh and above at everything else commentary discretionary non-member except is school where terpretative cir- totality pattern on the of the there is a definite feeder in- depends and it volving the schools. cumstances.” interpretive from the commen- Excerpts following:
tary may include the Private... schools not contact public
students enrolled at may schools. Public schools not con- 1. tact private students enrolled Q. interpreted How is undue influence schools. recruiting rule? exceeding what person persons A. A or an appropriate offering Admitting or normal and 7. students to athletic charge or inducement to a student free of
incentive contests when there is an athletic record. an being charged with or without admission at the except
contest where there is a defi- pattern nite feeder involved with the school. 3. pattern” exception The “definite feeder
Q. permissible for a coach to con- Is Brentwood, apply except does not parents prior tact a student or his or her regard to those students who are enrolled to his enrollment the school? Academy itself in the sixth Brentwood No, may A. a coach not contact a stu- grade higher. parents prior or her to his dent or his ap- in the school. This shall form, enrollment recruiting In some rule has they ply to all students whether or not early been effect at least since the 1950s an athletic record. have probably undergone earlier. It has auxiliary questions changes;
various 4. guidelines were added and answers during the 1980s and 90s. Q. guides are some of the [sic] What determining whether there has used at public a number of coaches influence would been undue used which members high schools were TSSAA recruiting in a violation of the result reported alleged various viola- rule? tions Brentwood to TSSAA. On are, examples but not limited A. Some TSSAA, of the Carter and other behalf to: investigation began TSSAA officials During investiga- allegations. into the Any prearranged initial contact or tion, supplied Carter with coaching
contact member *8 eighth to various copy of a letter Flatt sent representative or of the school staff infor- grade boys April in 1997 as well as a en- prospective and student/athlete Flatt made regarding phone mation calls any except in school rolled member boys of the to whom the to the families pat- there is a definite feeder where read, part: in letter was The letter sent. tern. at Brentwood Having officially enrolled Any prearranged initial contact or you par- to Academy, the TSSAA allows by coaching a member of the contact practice. If ticipate spring football representative or of the school staff currently sport involved you are not prospective and a student/athlete that he school, ty for abuse.” Flatt later testified would like to invite your at we were the coach that the tickets your new team.... had told you practice to with to provide to free admission your par- to not to be used Due to the inconvenience ents, you must students. The middle school do not feel that middle school please However, I allowed two of the free every do coach nonetheless practice. attend by two of his students. that involved as soon as tickets to be used getting feel definitely your ad- possible would notified Brentwood letter dat- Carter certainly glad .... are that vantage We 29, 1997, had the TSSAA July ed you Eagle. decided to become an multiple viola- guilty found Brentwood Coach, signed, ‘Tour Carl- The letter was informed tions of TSSAA rules. The letter sent to all ton Flatt.” This letter was penalties of various would Brentwood who incoming grade ninth male students a result of the rules viola- be assessed as admitted, tested and applied, had been hearing requested tions. Brentwood signed enrollment contracts with Brent- of the with Carter and members TSSAA Flatt testified that after the letter wood.1 Control; a held on hearing Board of was mailed, phone couple he received “a 13, 1997, at Headmaster August which boys received parents calls” from who representatives Brown and Brentwood questions the letter about the letter with allega- presentation regarding made a necessity boys attending and the July determinations in the tions and calls, As a result of these Flatt practice. Following hearing, letter. Carter decided to call each of the families again providing sent a letter to Brown clarify boys who received the letter specific more information about the viola- practice mandatory was not spring against penalties tions and be assessed any trump should not other academic or By- Brentwood. Pursuant to the TSSAA responsibility boys might athletic have. laws, appealed penalties boys All the letter twelve who received Control, charged the full Board of which is up attending spring practice. ended enforcing Bylaws. An- the TSSAA 23,1997. hearing August other was held on investigated allegations also TSSAA August repre- In an letter game that tickets for a Brentwood football sented the final TSSAA decision on the provided by Flatt to a middle school coach matter, notified Brentwood that the Board used some of the student were coach’s Brentwood, specifi- found that had game athletes to attend the for free. As Flatt, it, cally recruiting rule in put tickets were violated TSSAA these ways: by granting two free admission “made available uncontrolled individu- way possibili- game als” in a that facilitated “the to a Brentwood football to two 1. Headmaster Brown later testified that those five full courses. A student shall be consid- (and sign paid students who such contracts regularly ered as enrolled after the student mind, accompanying deposit), $300 his days, engaged for three has has attended officially enrolled Brentwood and football, girls volley- days three or more TSSAA, however, committed to come. The ball, country, golf girls prac- cross soccer (as contends that the term "enrolled” used in during August period on or tice after rule) is defined in the participated or has in an athletic contest in Rules), Bylaws, (Eligibility under Article II any sport. (Academic Rules): Section 1 testimony indicating There was some trial eligible participate To be in athletic con- every year up students do not end few during any tests semester.... *9 attending signing Brentwood even after enrolled, (b) regularly Students shall be contracts. enrollment attendance, regular carrying at and least Acad., school; another the association.” Brentwood athletes from eighth grade 291, 121 (2) at 924. making U.S. sending letters and by and eighth grade boys other phone calls to Court, Supreme from the On remand spring practice football regarding schools this court considered the merits of the The Board also cited at Brentwood.2 appeal. This court reversed the conducting impermissible Brentwood granting decision of the district court sum Brentwood practice with certain off-season mary judgment to and remand Brentwood student-athletes, alleged but this rule vio- court, holding the case to the district ed appeal. in this As a lation is not an issue (1) right that: did not waive its Brentwood violations, the Board im- result of these challenge recruiting by rule volun including a posed penalties, numerous (2) TSSAA; tarily joining the recruit four-year for Brentwood’s entire probation (3) overbroad; ing facially rule is not and suspension playoff eli- program, athletic by subjecting court the district erred football and gibility for the Brentwood recruiting scrutiny, rule to strict because teams, $3,000 and a fíne. boys’ basketball content-neutral. Brentwood Acad. Ass’n, Secondary
v. Tenn.
Sch. Athletic
History
B.
(6th Cir.2001).
Procedural
court
capacity; and Carter Reliance on Its Con- A. The TSSAA’s Amendment and sub- Brentwood’s First Relationship with Its tractual Carter process against due claims stantive Members capacity. See Brentwood in his individual arguments on Permeating the TSSAA’s Athletic Secondary Acad. v. Tenn. Sch. pro- Amendment and due both the First (M.D.Tenn.2003). Ass’n, F.Supp.2d rulings by issues is its contention cess was not enti- The court held that Carter “ignored the constitution- the district immunity on Brentwood’s qualified tled to relationship ally critical fact that the be- process claim but that he procedural due arose en- tween TSSAA and [Brentwood] immunity on qualified would be entitled tirely membership contract from claim. The Brentwood’s First Amendment In oth- year.” renewed each [Brentwood] equal protec- court declined to reach the TSSAA, words, according “[e]v- er claims, law and it refused tion every and ery argument of [Brentwood] As relief damages award Brentwood. relies ruling [sic] the District Court Brentwood, enjoined pen- the court premise false that TSSAA is the sover- against imposed by alties the TSSAA power rather eign exercising police State in 1997. Brentwood than a state actor that asks its members 10, 2003, February and On contractual obli- voluntary honor 13, 2003, appealed January or- Carter undertaking analysis of gations.” Prior to February der to this court. On claim, the First Amendment we must ad- talcing issue cross-appealed, Brentwood argument dress this as it relates to that (1) with: the district court’s October claim. summary judgment granting partial order answer to the claims; There is short to defendants on the antitrust argument regard January provisions the relief claim. First Amendment The answer order.3 it the law of the is inconsistent with Analysis II. Issues opinion. In the case and this court’s 2001 opinion this court outlined the First court’s find- This court reviews district analysis employed Amendment to be ings of fact for clear error. See Waxman (6th Cir.1989). Luna, court on remand. Brent the district 881 F.2d Acad., However, law, The un of wood 262 F.3d 557-58. questions conclusions of fact, derpinning analysis ulti- of that is that “findings mixed law and clarity, we appeal did the district 4. For the sake of convenience regarding collectively court’s conclusions Brentwood's refer to the defendants equal protection or state law claims. Nor did throughout opin- this section of the "TSSAA” appeal district court's dismissal of ion. Brentwood's First Amendment and substan- against process due Carter in his tive claims capacity. individual
421
voluntarily choosing
a
in this case is that of
be member of
role
TSSAA’s
TSSAA, it
entity exercising regulatory
agreed
by
has
to abide
the rules
governmental
Acad.,
authority
recruiting
organization.”
and that the
rule must
of the
Brentwood
rejected
a content-neutral rule sub-
A
couple of nuances
the TSSAA’s characterization is
futile. The
argument
mention. The
deserve
TSSAA defendants
in their brief
urges
applicability
preferred
membership
subsidy”
“TSSAA
ais
analysis by differentiating
Sullivan,
between
Rust v.
under
“sovereign power” and its
government’s
(1991),
L.Ed.2d 233
so,
doing
“contractual
power.”
the government acting
contractor
dicta in
makes much of the
Umbehr dis-
subsidy context
able
require
“must be
cussing the
between the govern-
difference
contracting
party
speech
to limit its
“sovereign power”
ment’s
and its “contrac-
reasonably
when
necessary to effectuate
power.”
518 U.S. at
tual
purposes
the contract.” Tellingly,
*13
Reading
broadly,
2342.
Umbehr too
S.Ct.
the defendants cite to
in
page
no
the Rust
extended
Pick-
it asserts
Umbehr
the
opinion
supports
reading
this
of the
ering
“any
“public concern” framework to
case; there is none.
gov-
Rust involved a
government
exercising
case where the
funding
ernment
program involving dis-
opposed
sovereign
to
power
contractual
as
to
patients
bursements
doctors to advise
the
Again,
applicability
the
of
power.”
on family planning topics. One condition
regula-
First
to the
Amendment
TSSAA’s
of
program
the
was that
funds
no
could be
tory
hinge
not
conduct does
on whether
programs
used in
pre-
where abortion was
or
there was a contract
not. Even if such
family
sented
planning.
as method of
a distinction
contractual
sov-
between
upheld
The
program,
Court
the
reasoning
ereign power
applicable in
mean-
any
that Congress
“merely
had
chosen to fund
ingful way
case,
present
the Court’s
activity to
one
the exclusion
the other.”
scrutiny
conclusion in Umbehr—that some
193, 111
In
Id. at
S.Ct.
later
First
scrutiny
than
more deferential
strict
jurisprudence, the
Amendment
Court “ex-
apply
government
the
exer-
should
when
plained Rust on
understanding” that
th[e]
power
suggest
cises contractual
—does
government
the
in that case was itself
apply
that the First Amendment does not
speech
engaging
and could thus make
the
TSSAA’s enforcement
its recruit-
viewpoint-based funding decisions. See
fact,
ing
sug-
rule. See id.
Umbehr
Legal
Velazquez,
Corp.
Servs.
531 U.S.
gests
approach
this court took
1043,
121
149
S.Ct.
L.Ed.2d 63
previous
was
one:
opinion
right
(2001); see also
v. Am.
United States
Li-
that the First Amendment
apply
does
Ass’n,
194, 211-12,
brary
539 U.S.
123
rule,
scrutiny
and intermediate
is the
2297,
(plural-
S.Ct.
ger v. Rector
Visitors
contractor,
disburser
Va.,
834-35,
employer,
S.Ct.
515 U.S.
Therefore,
previ-
court has
(1995);
funds.
County
Forsyth
analysis
applies
that
to content-neutral
exploitation.
it also
that
While
held
the
regulations:
in
TSSAA’s interest
a “level
fostering
play
time,
of
regulation
place,
[A]
the
or
ing
legitimate
a
governmental
field” was
manner of
must
protected speech
interest, it found that
was
this interest
narrowly
govern-
tailored to
the
serve
substantial,
especially considering that
legitimate,
ment’s
content-neutral
inter-
governmental
“[t]he substantial
interest in
ests but
...
the
need not be
least
any
trumps
govern
informed school choice
restrictive or least
means of
intrusive
controlling
mental
in
which
interest
Rather,
doing so.
requirement
the
or
win
schools
teams
athletic contests.”
tailoring
long
narrow
is
so
satisfied
as
review,
regulation promotes
the
substantial Unlike rational basis
intermediate
government
scrutiny
supplant
interest
that would be
allow a
does not
effectively
reg-
achieved less
the
absent
particular
put
by
interests
forward
time,
....
validity
place,
ulation
suppositions.
with other
See Eden
state
regulations
or manner
not turn on
does
Fane,
768,
761,
v.
113
507 U.S.
S.Ct.
field
judge’s
responsi-
agreement with the
1792,
(1993). In
768, 113
1792.6
S.Ct.
ath
exploitation of middle school student
conclusions re
district court’s
is
state interest
letes
a substantial
interests,
we
the TSSAA’s
which
garding
“actual” interests
was one of the TSSAA’s
novo,
not erroneous. With
review de
the rule to Brentwood. See
applying
in
regard
protect
the asserted interest of
277,
A.M., 529
City
Pap’s
v.
U.S.
Erie
against exploitation,
ing student athletes
312,
L.Ed.2d
presented voluminous evidence
the TSSAA
(2000)
J.,
(Souter,
in
concurring
part
trial,
testi
expert
via
witness
primarily
in
Turner Broad.
dissenting
part) (quoting
mony,
argument that
support
of its
FCC,
v.
114 S.Ct.
Sys.
U.S.
one.
testi
interest is a substantial
Carter
(plurality
L.Ed.2d 497
for
reason
fied that the “fundamental”
regu
opinion)) (noting that the
can
exploita
recruiting
preventing
rule was
speech
pre
an interest
late
to further
expert
wit
tion. One
Brentwood’s
harm,” as
venting reasonably “anticipated
preventing
that
nesses even testified
real);
Knight
long as
harm is
see also
athletes,
exploitation of
defined as
student
Intercollegiate
Foundation Commission
“selfish, unjust utilization of students
Athletics,
Reconnecting
A
Call Action:
rather than for
school’s benefit
College
20-
Sports
Higher
Education
student,”
was a
benefit of
individual
(2001) (noting
“[h]igh
sports
that
school
point
At
compelling state interest.
one
today
collegi
can reflect
worst
their
brief,
to suggest
Brentwood seems
counterparts”
exploitative
ate
terms
history
legislative
evidence such written
influences,
recruit
pervasive
commercial
testimony
from the initial drafters of
efforts,
compromises for
ing
and academic
prove
necessary
rule
only
profes
student
on a
athletes focused
preventing exploitation
of students
career);
sional athletic
Ohralik
cf.
of TSSAA’s “actual” interests in
one
Ass’n,
Bar
Ohio State
rule
For
applying the
to Brentwood.7
(1978) (hold
56 L.Ed.2d
prong
of the interme
purposes
first
ing
important
inter
the state has an
test,
only necessary
scrutiny
diate
it is
preventing
lawyers
est
solicitation
actual
interest exists
establish
intimidation,
influence,
undue
*16
involves
substantial,
and is
and this can be done
forms
overreaching, and other
of “vexa
primary
without resort
sources.
such
conduct”).
tious
no
legislative
While there is
known written
history
recruiting
the
all of
evi
rule and
The TSSAA also introduced
dead,
supports
the
the
are
contention that fos
initial drafters of
rule
dence that
its
evidence,
testimony
tering a
member
especially
playing
among
Carter’s
level
field
Thompson
prevent-
6.
and
are commercial
"TSSAAhas a substantial interest in
Edenfield
cases,
students,”
speech
they
just
apply,
but the test
like
ing exploitation
"a
defined as
here,
applicable
threatened,
the test
asks the court to
coerced,
.being
student..
or ha-
determine whether the asserted state interests
argument
rassed.” Brentwood's
that
there
are substantial. See Cent. Hudson Gas &
"problems
theory..
justifi-
are
with this
.as a
Comm’n,
Corp.
Elec.
Tub. Serv.
disciplinary
cation
action”
for TSSAA's
2343, 65
L.Ed.2d 341
against Brentwood is evaluated in the next
opinion,
argu-
section
this
an
of this
since
is
application
was not
ment that the
rule
however,
Mostly,
7.
Brentwood conflates
"narrowly tailored” to further Brentwood's
prong of the intermedi-
"substantial interest”
legitimate and substantial interests.
scrutiny
“narrowly
ate
test
tailored”
with the
conceding
prong,
its
later in
brief that the
interest,
Spe-
state
that
legitimate
right
is
interest.
was
legiti-
schools
while
cifically,
experts
mate,
and
own
Brentwood’s
is not-substantial.8
testified that
the re-
Headmaster Brown
Having
established
that
helps
cruiting prohibition
playing
level the
TSSAA has substantial state interests in
schools,
among
especially
field
as between
keeping athletics
subordinate
academics
significant
with
resources
private schools
preventing
the exploitation of student
public
with
re-
schools
more limited
athletes, the next
in
question
analysis,
to potential
and access
students.
sources
previous opinion
as set out
this court’s
length
testified at
about how the
Carter
matter,
on the
the recruiting
whether
equi-
recruiting
preserves competitive
rule
rule,
Brentwood,”
applied to
“as
is narrow
schools,
among
explaining that
ty
without
ly
tailored
further
interests.
those
rule,
rich would
real
get
“the
rich
Acad.,
557;
262 F.3d at
see
real
quick,
poor
get poor
and the
would
Sys.,
also Turner Broad.
512 U.S. at
little,
very
any,
There is
if
evi-
quick.”
(“That
opinion)
2445 (plurality
dence, however,
competi-
explaining ivhy
the Government’s asserted interests are
important
equity
tive
is an
value in the
important
abstract
does not
true,
place.
may
It
as
first
defendants
[speech regulation]
mean...
that the
will in
brief,
in their
claim
“maintenance
interests.”).
fact advance those
Specifical
among
competition
TSSAA’s]
fair
[the
ly, the district court’s
task
core
TSSAA’s]
members lies
of [the
if
punishment
to decide
exacted for
for being,”
simply saying
reason
but
this is
alleged
relating
these
violations
nothing
why
so does
to demonstrate
such
tickets,
game
spring
free
football-prac
is a
being”
“reason for
substantial state
letters,
followup
tice
and the
telephone
may act
of a
interest. State actors
out
appropriate regulatory
calls was
action
interests,
variety
only
but
are
some
narrowly tailored to further TSSAA’s
The defendants can
to no
substantial.
cite
legitimate
interests
state
ac
support
evidence
the notion that ensur-
In proceeding
tor ....
this case on
high
ing
compete
schools
interscho-
remand,
parties
we caution both the
sports
equitable
is a
lastic
manner
interest,
stay
the district court to
focused on
when
especially
substantial
alleged recruiting
in-
two
rule
coupled
admittedly
with the
substantial
violations
question,
engage
rather than
in a
ensuring
terest
athletics do
wide-
important
more
than
attack or
ranging
become
academics
defense
recruit
high
court
ing
school level. The district
as a
rule
whole.9
Despite
alleged
our
9.
conclusion
the district
The "two
rule violations”
correctly
game
had
found
referred
here are:
the free
tickets
*17
keep-
spring practice
state
established substantial
interests
the
and follow-
and
letters
Acad.,
ing
Brentwood
up
athletics
subordinate
to
and
academics
calls.
F.3d at
preventing
exploitation
opinion
previous
the
of student
ath-
548.
this
While
court's
con-
letes,
the dissent devotes considerable
atten-
of these
violations
sidered both
rule
as bases
claim,
type
to a
proof
tion
discussion of the
of
for Brentwood's First Amendment
nei-
might
present
support
opinion
defendant
have to
to
ther the initial district court
nor the
opinions
being
opinion
appealed
applied
interests.
differ
such
The two
do not
First
here
is,
point,
scrutiny
application
the
that
on
ultimate
the TSSAA did
to the
of the
Amendment
recruiting
game
epi-
have substantial
state interests at
rule to
stake.
the free
tickets
point
departure
opinions,
true
of
is whether
the rule "as
sode.
both
the district
court
In
applied
narrowly
only
application
to
to
Brentwood”
is
tailored
the
of
considered
whether
those interests. See Brentwood Acade-
phone
further
the
to the letters
calls was
rule
and
my, F.3d
557.
constitutional.
state in their brief
Defendants
Acad.,
not
the
and calls was
Brentwood for
letters
431 novo, holding by we affirm the game. the district Brentwood citing football After authority that indicating court on this issue.15 the doctrine of substantive due process “gov- means that Free a Substantive Due C. Tickets as life, ernmental deprivations of liberty or Process Violation property subject are regard- limitations also held that district court less of adequacy procedures the of the application recruiting the of the rule to employed,” see City Pearson v. Grand of Blanc, (6th Cir.1992) Brentwood violated the school’s substan 1216 F.2d (internal process rights regard due quotation tive marks and citation by omitted), tickets free used two students attend district centered its by "prohibition posed the rule every application, is the on stitutional conceivable initiating from contact with coaches... middle prohibit or.. range .seeks to such a broad of purpose recruiting school students protected unconstitutionally conduct it is for of " (emphasis student athletes." Id. at add- ‘overbroad,’ challenge that the was "basical- ed). ways The rule "numerous allows ly challenge applied ordinance as message get Brentwood its about which can activities,” appellee's] [the and therefore students,” prospective athletics out to as evi- analysis "limit[ed] [the Court's] of the consti- denced the letter written Brentwood's tutionality of the ordinance the concrete lawyer detailing to the TSSAAin 1993 Brent- Oklahoma, [it]”); case before Broadrick v. cf. understanding acceptable various wood’s of 601, 612, 37 L.Ed.2d remand, of Id. On modes communication. (1973) (noting litigants bring a facial applying district court determined challenge they where attack "a statute not to the letters and calls was rule tional, unconstitu- rights expression because their own of free application since of the rule to the violated, are very but because.. .the statute’s narrowly letters calls was not tailored to may existence cause others not before the further TSSAA's substantial interests. constitutionally protect- court to refrain from previous opin- Under the terms of this court's speech”). ed ion, one could also read the district court suggestion opinion as a the communica- dissenting only arguable opinion's ref- purpose either for tions were not made of erence to the trial court record on the issue of athletes, recruiting or student fell under the application whether the rule to Brentwood category acceptable modes communica- narrowly to serve tailored the TSSAA’s rule, recruiting under tion both. suggestion substantial its interests is that the permitted rule Brentwood to distribute its let- dissenting approach opinion's 15. The to this private leagues ters to athletic and other aspect departs of the from a case record- permitted coaching schools and analysis application based of whether the potential staff to refer students who contacted recruiting rule to Brentwood was narrow- them to other Brentwood officials. The dis- ly tailored to serve the TSSAA’s substantial options sent deems these alternative channels so, doing neglects interests. consider- options for While these communication. are record, process evidentiary ation (but presumably permissible not mentioned in entails, as-applied challenge necessarily evidence), they hardly are viable alterna- analogies and substitutes theoretical between achieving purpose tives for Brentwood's recruiting rules and restrictions on adult-ori- communicating the information contained in ap- ented businesses. the dissent’s While incoming the letters to students. The dis- might proach appropriate in cases involv- noting options way sent's these another ing challenges regulation, facial to a such as saying recruiting pro- that the rule did not Ward, Renton and the dissent heavi- on which advertising sports hibit Brentwood from relies, ly proper it is with the inconsistent offerings large and other to the world at analysis challenge. as-applied for an See Tax- medium, through any public Vincent, available but payers U.S. anything that fact has little if to do with (distinguishing S.Ct. 2118 between a facial applied whether rule challenge as-applied challenge and an narrowly concluding, determining appel- Brentwood was tailored to serve the after that the TSSAA's lee could not establish that the law is "uncon- substantial interests. 555-57; City Grayned v. analysis the F.3d at see also process due substantive *21 104, 112, Rockford, notion that 408 92 S.Ct. U.S. of an 2294, Rule not L.Ed.2d 222 Recruiting (upholding the did 33 applied, [a]s Academy constitutional- give vagueness Brentwood against anti-noise ordinance a notice that tickets ly adequate providing clearly challenge because it “delineates coach, secretly to another who disre- understanding”) of reach in words common instructions to use the gards express (internal citation quotation marks and adults, a only tickets for will constitute omitted). process If the due substantive Rule is Recruiting The uncon- violation. argument that on an claim instead rests vague to Brent- stitutionally applied as application recruiting of the the TSSAA’s of Academy wood on the facts this case. rule fundamental constitu- infringed some explain went on to that “the The court no right, tional the claim fails because such give... Rule did not Brentwood Recruiting here,17 right and implicated is the Academy[] to opportunity a reasonable only subject thus to rational action was regard to prohibited know what was Op- Lee scrutiny. basis v. Williamson tickets that could act complimentary so Okla., 488, Inc., 483, 75 tical 348 U.S. of accordingly.” Lastly, if 99 563 S.Ct. L.Ed. for- vagueness argument the was When rests, the as process substantive due claim challenge, mulated a First Amendment as at one the court to intimate district seems repudiated this court it. See Brentwood point, allegation on an that the TSSAA (“As Acad., whole, a F.3d at 557 262 arbitrarily capriciously deprive or acted gives of [recruiting] rule reasonable notice a inter- property liberty of or Brentwood prohibited, especially is as applied what est, fails, a it still at least as substantive Brentwood.”). Essentially, the district due not process claim. Brentwood could previous holding court now recast its has reasonably allege that the defendants striking recruiting rule over- down gov- perpetrated “egregious abuse of (a that vague holding broad and was re- rise to power” give ernmental sufficient versed) as a determination Brent- claim, a process substantive due because rights due process wood’s substantive were suggest there is no evidence Acad., violated. See Brentwood 13 intentionally “maliciously defendants Yet, F.Supp.2d at 693. if the substantive authority abused in order [their] is process due claim characterized as injure” Camp- Vinson v. Brentwood. See challenge,16 vagueness then for reasons Court, County bell Fiscal 820 F.2d opinion, out court’s previous set in this Cir.1987). (6th Acad., Indeed, claim fails. See Brentwood such a claim complaint lumps process precludes 16. Brentwood’s initial to- that substantive due certain gether justifications for government "regardless a number its claim of the fair- actions pro- violated its substantive due procedures implement used ness of instance, rights. cess For Brentwood claims them”) (citation omitted). recruiting infringed liberty rule parents to interests of students and choose right to educate one's The fundamental schools, vague, their rule is too Sisters, children, Soc’y own see Pierce fundamentally and the unfair rule is in that 510, 534-35, 268 U.S. 69 L.Ed. punished per- actions issue, (1925), especially is not at since beyond argument son its control. third is regulation penalties applied procedural analyzed process better as a due Brentwood, against only against par- County claim is considered infra. Cf. ents children involved. Lewis, Sacramento v. (1998) (holding L.Ed.2d liberty need property panel potential of a inter- not decide whether deprivation est, zoning context, lost revenues the ban playoff least outside of the due to from Pearson, participation qualify also as a property 961 F.2d at is more in- see as a terest. procedur- characterized appropriately claim, process considered al due which step proce second reasons, For all of the dis- these
infra.
process analysis
dural due
is determining
concluding
trict
erred
deprivation
whether
the TSSAA’s
*22
penal-
of
rule to
application
the
property
Brentwood’s
interest contravened
game
ize Brentwood for the free
tickets
notions of
process.
due
Under circuit
episode violated Brentwood’s substantive
§a
can
precedent,
plaintiff
prevail
1983
on
rights.
reverse the
process
due
We
dis-
procedural
a
due
claim
process
demon
court on
trict
this issue.
strating that
property deprivation
the
re
(1)
sulted from either:
an “established
D. Procedural Due Process Claim
procedure
state
that itself
pro
violates due
The district court also found
rights,”
cess
or
a “random and unau
process
due
procedural
that Brentwood’s
act”
a loss
causing
thorized
for which avail
rights were violated.
Fourteenth
state
would
adequately
able
remedies
part,
that
provides,
Amendment
“[n]o compensate
plaintiff.
Macene v.
life,
any person
shall ...
of
deprive
State
MJW,
(6th
Inc.,
700,
951 F.2d
706
Cir.
liberty,
property,
process
or
due
of
without
1991).
plaintiff alleging
A
the first ele
XIV, §
U.S. Const.
1. Pro
law.”
amend.
ment of this test
not need
would
to demon
process
requires
due
generally
cedural
of
inadequacy
strate
state remedies.
state
with
provide person
that the
a
notice
v.
City
Moore
Bd.
Educ.
Johnson
of
of
opportunity
an
heard before
to be
(6th
Sch.,
Cir.1998).
781,
134
785
F.3d
If
that
a
depriving
person
property
or
plaintiff pursues
the second line of
See,
liberty
e.g., Thompson
interest.
argument,
navigate
he must
the rule of
(6th Cir.2001)
Ashe,
399,
250 F.3d
407
451
Taylor,
Parratt v.
U.S.
101
(“Courts
long recognized
have
that
1908,
(1981),
S.Ct.
68 L.Ed.2d
which
requires
Fourteenth
that an
Amendment
may satisfy procedural
holds that a state
of an
deprived
individual who is
interest in
an
process
only
adequate
with
postde
due
liberty
property
given
or
notice and a
procedure when the state action
privation
hearing.”).
plaintiff
Only after a
has met was “random and unauthorized.” See Ma
demonstrating
that
pos
the burden
he
cene, 951
In
F.2d at 706.
Zinermon v.
protected property
liberty
a
or
in
sessed
Burch,
113, 128-29, 110
S.Ct.
deprived
and was
that
interest
terest
(1990),
Supreme
As there nowas Board the allegations discussed surround- indication from the before TSSAA the final ing King’s actions. In depo- Reed’s initial hearing that it was still the considering case, sition this Reed asked wheth- fact, was King allegation.20 Bart In the district King allegations er the one of the court determined were that “the TSSAA and reasons misled behind the ultimate Academy Carter Brentwood Board’s find- about a person ing (upon based, which the allegation penalties which ultimately “[cjontact in part) mattered to the that decision.” See there was with Brentwood Acad., F.Supp.2d student-athletes, at 1004 n. 29. De- by initiated spite this lack of indication that King’s Academy, while those were en- students 29, 1997, July 20. Carter's hearing August letter to Brown on Brentwood sub- details six ''concerns” and violations on King denying mitted an affidavit from the penalties the Only which based. are the sixth allegations exchange detailed in the earlier concern, obliquely which refers to contacts correspondence between the TSSAA and persons "by not connected with Brentwood Then, hearing, Brentwood. after the first Academy,” arguably anything has to do with August Carter sent Brown a dated letter six, King. The violation listed under concern 1997, listing the violations found at the first however, gives no indication the TSSAA hearing. implicates None of these violations assign any responsibility seeks to to Brent- King any way. any by King. wood for actions At first the Board interests as TSSAA answered witnesses’ rolled at other schools.” Reed However, trial, Id. Reed of Control members.” affirmatively. although King alle- testified that first finding that The district court’s factual were a “factor” the discussion gations during the Board of there was discussion penalty “final not penalty, final did Kang about the alle- Control’s deliberations Bart Bart King”: “[W]e involve discussed and, clearly gations was not erroneous place, we King and situation took fact, well-supported by the evidence. was it, did, penalty final we discussed but the correct The district court was also really dealt the letter from Mr. with Academy that Brentwood did conclusion deposition about his Flatt.” When asked King have that the matter was a not notice trial, testimony at Reed also referred final action possible basis for deposition testimony memory lack of in his King against Brentwood. Whether the is- further the situation indicated penalties in the actually was a factor sue King a factor in the overall “was ultimately far imposed is less certain. Yet pen- that the final penalty.” The assertion was the district court entitled credit allegations alty King was based on testimony deposition Reed’s and trial Hammond in
was reiterated Carter and King influenced Board’s find- issue testimony their at trial. penalties contrary over trial ings his testimony and other evidence The district court found that the TSSAA King penal- issue not a for the basis procedur- and Carter violated Brentwood’s 52(a) (“Findings ties.21 See Fed.R.Civ.P. process rights considering al due ex fact, on whether based oral or documen- their during private evidence delib- parte evidence, tary shall not be set aside unless reaching August erations erroneous, clearly regard and due shall be conclusion, the district court recount- trial court given opportunity of the testimony ed the of Board of Pres- Control judge credibility wit- Reed well as Board members ident nesses.”). Thus, finding King that the Hammond, Dunn, Rog- Mickey and Morris *25 is also penalties issue influenced the ers, all of whom indicated in their testimo- clearly erroneous. ny investigators that TSSAA Childress provided to and Menees some information applicable precedent There is no regarding findings during the Board their precise process describes the a school such private Additionally, the session. the from a as Brentwood should receive court noted that testified that Car- Carter athletic such as the TSSAA association ter, Meness, pres- and Childress were all penalties the imposes before association to answer questions ent from the Board such as the ones assessed here. Loud- Cf. during private the session. court be- ermill, The 545-46, 470 at S.Ct. U.S. 105 1487 ac- pointed King, low also out that “Bart (setting process requirements due out the Reed, to cording was and.. .was discussed public employ- for termination of tenured Id. penalties imposed.” ees); a factor the at 419 Lopez, Goss v. U.S. 95 (1975) court credited all of this evi- (setting 42 L.Ed.2d S.Ct. 725 dence “based on the demeanor of the wit- process requirements out the due for nesses, testimony, consistency suspensions); the of Morrissey the short-term school Brewer, 471, 488-89, testimony 92 and because the is adverse to v. part deposition testimony prior in- the 21. Reed's on the TSSAA. Fed.R.Evid. given 801(d)(1) consistent statement under oath and & against amounts also to an admission interest
437 (1972) oral (setting L.Ed.2d out to or written notice of charges 484 33 him, process requirements parole against explanation the due an employ- revocations). court therefore evidence, The district opportunity er’s and an pres- correctly balancing general looked Moore, story.”); ent his side of the 134 Eldridge, Mathews v. U.S. test of (“[T]he process F.3d offered Moore 334-35, L.Ed.2d constitutionally sufficient. re- She is due in this process what determine ceived written notice of the charges balancing test Mathews situation. her, against explanation well as an states: evidence, the Board [of Education]’s dictates specific
[Identification
opportunity
present
was offered
her
generally requires consider-
process
due
Smart,
story.”);
side of the
Swank v.
First,
three distinct factors:
ation
(7th Cir.1990) (“[The
F.2d
po-
by
interest
that will
affected
private
lice
to challenge
officer] was entitled
second,
action;
the risk of an
the official
chiefs assessment of the damage caused
deprivation of such interest
erroneous
by the
in which the
[incident
officer was
used,
through
procedures
giving a
girl
motorcycle].
seen
a ride
his
value, if
probable
any,
additional or
parte presentation
Ex
of evidence denies
safeguards;
procedural
substitute
”);
(“[A]
process....
id. at
due
ten-
interest,
finally, the
in-
Government’s
public employee
ured
has a constitutional
cluding the function involved and the
hearing
being
entitlement to a fair
before
and administrative burdens that
fiscal
fired and that
immaterial
exceptions
procedural
additional or
substitute
right
fair
hearing includes
to be shown
would entail.
requirement
the evidence on which the tribunal has
335, 96
Id. at
S.Ct. 893.
relied, including
pertaining
evidence
gravity
imposed
of the sanction to be
when
correctly
The district court
con
conceded.”) (citations omitted);
liability is
that in
such
cluded
a situation
as the one
Newsome,
at 927 (holding
842 F.2d
case,
presented
process
due
re
procedural
pro-
student was “denied
due
quires that a school be informed of all of
superintendent
cess when the
disclosed
relied on
an athletic associa
the issues
board, during
school
their
closed delib-
levying penalties against
tion
the school
erations, new evidence which had not been
given
respond
and be
chance to
to those
open
presented during
hearing
are
penalties
imposed.22
issues before the
attorney
which Newsome and his
requirement
only a mini
imposes
Such a
*26
present”);
McElroy,
see also
v.
Greene
360
mal
on the
burden
state actor
would
474,
1400,
496,
U.S.
79
3
S.Ct.
L.Ed.2d
ensuring that
great
be of
value in
a school
(1959) (“[W]here governmental
1377
action
wrongfully
Moreover,
penalized.
is not
as
individual,
seriously injures an
noted,
require
court
district
such
action
on
depends
reasonableness of the
clearly
ment is
consistent
the notifica
with
findings,
fact
used to
requirements
prove
tion
evidence
set out
court and
See,
must
analogous
the Government’s case
be disclosed
e.g.,
others
situations.
Loudermill,
546, 105
opportu-
470
at
S.Ct.
to the individual so that he has an
U.S.
(“The
untrue.”).
nity to
public employee
tenured
is entitled
show that it is
exactly
complains
TSSAA
that
22. The
the district
but fails to articulate
how the contrac-
again’' ignored
relationship
court "once
the contractual
tual
the TSSAA's obli-
lessens
gation
relationship
provide procedural
to
between it and Brentwood in
as a state actor
claim,
evaluating
process
procedural
process.
due
due
Carter,
of a
employee
an
to
even available
court’s
the district
sum,
affirm
we
that has been found
corporation
non-profit
vio-
and Carter
the TSSAA
that
conclusion
regu
engaging
actor when
a state
to be
process
due
procedural
Brentwood’s
lated
assessing whether
activity. “In
correctly
latory
deter-
court
The district
rights.
immunity
state officials
afforded
qualified
Brent-
was due to
process
what
mined
are consid
who
private
to
actors
extends
upon
evidence relied
of the
notice
wood:
1983,
§
court]
[the
under
state actors
ered
opportunity
Brentwood
penalizing
of
purposes
quali
must consider both
penal-
before
to
evidence
respond
that
of
and the nature
immunity protection
Here,
fied
imposed.
ties
the state and
relationship between
to the
as it
notice
related
give
that
failed
v. Lohis
Bartell
party.”
putative private
had no notice
therefore
King. Brentwood
Cir.2000).
(6th
This
er,
550, 556
F.3d
evidence
King
respond
it should
that workers
held in Bartell
Yet,
court
King
evidence
hearings.
at
had
corporation
foster-care
non-profit
in its delibera-
by the TSSAA
used
was
government and
with the
contracted
court’s find-
and,
the district
under
tions
agency were
by a state
closely supervised
penalties imposed
influenced the
ings,
immunity.
Id.
at
qualified
req-
entitled
to afford
The failure
Brentwood.
distinguished Richard
Four- The Bartell
Brentwood’s
process violated
uisite
399, 412, 117
McKnight, 521 U.S.
son
procedural
rights
Amendment
teenth
(1997), in
2100,
L.Ed.2d
S.Ct.
process.
due
private
held that
Supreme Court
which the
Qualified
Availability
Immuni-
E.
quali
entitled to
guards were not
prison
ty for Carter
for-profit cor
immunity,
involving a
as
fied
limited
operated
with
direct
poration
court also held
The district
Bar
See
government.
supervision
qualified
not entitled
Carter was
Richardson,
tell,
(citing
215 F.3d
556-57
is enti
a defendant
immunity. Whether
2100). Here,
question
immunity is
qualified
tled
weighs in favor
one of these factors
City
Thacker v.
de
reviewed
novo.
law
(because
non-profit
is a
the TSSAA
Carter
(6th
Columbus,
Cir.
328 F.3d
weighs
favor
and one
corporation)
2003).
immunity
gov
Qualified
protects
(because
operates
the TSSAA
liability for ac
civil
officials from
ernment
governmental supervi
limited direct
official discretion
within their
taken
tions
sion).
do
violate
these actions
insofar
statutory or constitu
clearly established
Nevertheless, a
examination
closer
a reasonable official
of which
rights
tional-
indicates that the
and Richardson
Bartell
Harlow v.
have been aware.
would
argu-
Carter’s
tipped
balance
towards
Fitzgerald, 457 U.S.
immunity is available
qualified
ment
is not
It
liberations
this issue.
on
of its decision
explanation
ex-
of Carter’s
Regardless
rights.
process
analysis, that
explained, without
The court
investigation
in the
involvement
tensive
“perva
on
decision
Supreme
Court’s
regard
making with
decision
and
the TSSAA
meant
Brentwood,
sive entwinement”
against
penalties
TSSAA’s
of antitrust
purposes
“for
state actor
was a
his conduct was
is no evidence
there
However,
there are sim
while
immunity.”
unreasonable,
Brent-
or that
objectively
tests, the Parker
between
two
(or
ilarities
First
rights
process
due
wood’s
different
inquiry is
immunity
matter)
antitrust
in this
rights, for
Amendment
action
state
into
inquiry
from the
whether
For
clearly established.
context
§
and the
1983
purposes
exists
reasons,
district
reverse
we
these
Nat’l Colle
Amendment. See
Fourteenth
find that Carter is
and
court on this issue
Tarkanian,
U.S.
v.
488
Ass’n
giate Athletic
immunity.
qualified"
to
entitled
454,
L.Ed.2d
179,
14,
102
n.
109 S.Ct.
inquiries
(1988)
the two
(noting that
Immunity
Antitrust
F.
“by no means
but
similar”
are “somewhat
in an
ruled
Oc
district
Reg’l
identical”);
McAlester
v.
Tarabishi
TSSAA
2002 order
tober
(10th
1558,
n. 6
Cir.
Hosp., 951 F.2d
immunity
under
to antitrust
entitled
1991). Indeed,
law on
case
the extensive
Brown,
341,
317 U.S.
Parker v.
doctrine of
immunity re
of Parker antitrust
the issue
Brent-
441
J.))
removed). omitted).
Brennan,
(emphasis
“clearly
ion of
articulated” state
clarified that while Parker
The Court has
policy requirement
is not satisfied “when
immunity clearly applies
legisla
to a state
position
State’s
is one of mere neutral
supreme
acting
ture or a state
ity respecting
municipal
actions chal
regulatory
legislative capacity, when
lenged
anticompetitive.” Cmty.
as
Com
activity
by
pursuant
out
others
is carried
Boulder,
City
munications Co. v.
455
of
authorization,
program
to state
must
40, 55,
835,
102
U.S.
S.Ct.
the state is
involved
(6th
Court,
Cir.1994) (in-
22 F.3d
fact,
In
sug-
TSSAA.
the evidence
omitted).
ternal citation
The district court
gests that
opposite
is the case. See
damages
found that the
by
claimed
Brent-
Aluminum,
also Midcal
445 U.S. at
wood (reputational
spent
harms and time
(“The
policy
national
S.Ct. 937
favor
case)
by employees
proxi-
on the
were not
competition
by
cannot
thwarted
cast-
mately
by
ap-
caused
the defendants. On
ing
gauzy
such a
cloak of state involvement
peal,
argues
the district
essentially
private price-
over what is
court should have considered whether the
fixing arrangement.”).26
damages were “foreseeable” and that the
Defendants therefore cannot establish
by
harms suffered
Brentwood were fore-
prong
either
of the Midcal Aluminum
consequences
seeable
of the defendants’
reasons,
test. For these
we reverse the
conduct.
district court’s October 2002 decision find-
rightly
district
ing that the TSSAA is entitled to Parker
pointed
any
by
out that
costs
immunity
incurred
antitrust
and remand for further
proceedings
litigation
Brentwood as a result of the
respect
to Brentwood’s
claim.
were
incur
it
antitrust
costs
chose to
when
filed
reputational
the case. As to Brentwood’s
Relief
G.
Issues
damage, foreseeability is an element of the
proximate
analysis,
cause
it is distinct
appeals
Brentwood also
but
damages.
requirement
plaintiff
district
court’s
denial
from
that a
show
differing
company
operate
26. The dissent rests its
result on our
the cable
created
system,
supervisory
in Consolidated
decision
Television Cable Ser-
and exercised continued
vice,
City
Frankfort,
company
Inc. v.
also ROGERS, dissenting. Judge, Circuit speech more cruiting applied rule “as game. is a Games High school football asserts in its brief generally.” Brentwood have rules. injunction “[o]nly decision-forcing [recruiting against applying rule] courts, guise To have federal under the First-Amend speech can assure TSSAA’s applying enduring principles calculation of the menb-mandated ‘careful Amendment, ordinary First reverse the ” argu These speech interests involved.’ high football recruit- application school previous In its ments are not well-taken. the core values of ing rules —where rejected a facial opinion, clearly this court remotely in- Amendment are not even recruiting rule challenge to the based unduly trivializes these constitu- volved'— argument regulation an that the was inval principles. This is no more a case tional Brentwood applications. id all of its nation’s ideal of freedom of involving our Acad., sug The court F.3d 554-57. involving a coach expression than a case in fact gested that the rule could talking game is out of a for who thrown cases, constitutionally in applied some This instead a case to a referee. is back district court’s task on remand and the challenge involving game participants who only was to consider whether the rule discretionary partic- administration of constitutional as to Brentwood. applied course, lawyers can ipation good rules. Of correctly Id. at 554-58. The district court injustice any perceived characterize almost en remedy accordingly limited its (and maybe even as a constitutional case joined only application of the rule boot), case to but courts antitrust affirm Brentwood in this case.27 We along. go should be hesitant to remedy granted by the district court. case, brief, injunc- why argues be the or this should In its penalties imposed by enjoins injunction also be di- tion all of district court’s should injunc- against capacity. is the TSSAA Brentwood. rected at in his official It Carter argument complete. why this tive relief was thus unclear Brentwood makes may in- properly “speech,” has inhibit but so do the ordi- Supreme Court nary of a game us this case the defendant rules football that allow structed purposes, players and coaches to be removed is a state actor for constitutional for properly disputing propriety in its 2003 decision of a referee’s call. and this court Academy that Brentwood did determined Accordingly, por- I from dissent those its away not contract all of constitutional majority’s upholding tions of the decision If, instance, rights joining TSSAA. I plaintiffs First Amendment claims. also on the basis of race TSSAA discriminated finding dissent from the of a process due religion expression political or the violation and from the decision to reverse views, holdings in this the earlier court the district court’s determination that availability of feder- case would insure liability there is no basis for antitrust clearly al court But here relief. case,1 doing nothing administering more than game game being rules —the interschool I. Dissatisfaction with
high school football.
insubstantiality
plaintiffs
While
application
game
rules does not become
clear,
First Amendment claim is
the com-
merely
a First
violation
be-
Amendment
plexities
ju-
of modern First Amendment
speech.
the rule involves
cause
risprudence
precisely
make it less clear
*33
Recruiting
eligibility
and
rules are of why the claim is not substantial. There
itself,
First,
very
part
game
course a
real
of the
parts
are two
to the answer.
ordi-
nary
and the
protecting
game
the student-athlete
enforcement of
rules does not
game
to
limit of
competition agreed
brand of
to. The
amount
an unconstitutional
free
football,
any game,
expression
part
participants
which
in
like
has rules
because
Second,
part
agree
play
games.
to
in the
ordi-
competitors accept
as an inherent
nary
game
In
to
rules does not
participation.
addition
the basics
enforcement
limit
game,
many players
of the
such as how
amount to an unconstitutional
on free
may
many
expression
(including
at one time and how
because rules
rules
participate
touchdown,
limiting speech)
inherently necessary
com-
are
points are awarded for
governing
competition.
to
course these
petitors agree on further rules
ordered
Of
broadly,
substantially overlap,
they
on
but
competition
agreeing
more
two ideas
find
in different strands of
govern
grouped
expression
rules that
how teams are
law. Both strands re-
leagues,
champion
into
how the
of the First Amendment
that rules have
league
eligible
underlying
determined and who is
to
flect the
idea
is
rules,
competition
being
only
in a
Fierce
value for the sake of
participate
game.
talented student
trench on First Amendment concerns
among high schools for
athletes,
relationship
game
is too
and the demand for success from when their
alumni,
recruit-
bring
potential
fans and
attenuated. Enforcement of the
result,
leagues
clearly
com-
rule in this case is
warranted
excess. As
athletic
ment
institutions,
agreed
general ap-
prised of educational
such as because Brentwood
TSSAA,
(although not to
governing
plicability
rules
both the re-
of the rules
have
that draw distinctions unrelated to
eligi-
cruitment of student-athletes and the
rules
rules,
interpre-
such as
bility
participate
purpose
for the
of student-athletes
discriminate, for
Anti-recruiting rules
tations of the rules that
athletic contests.
majority opin-
process
claim.
I concur in Part II.C. of
rejecting
substantive due
ion
Brentwood's
of whether a
not to reach the issue
party-
cision
political
example, on
basis
rights had been
affiliation).
speech
union’s free
of the recruit-
labor
Enforcement
court had
where the district
first
clearly war-
violated
rule in this case is also
ment
its First
that the union waived
because,
of athletic
determined
in the context
ranted
in a collective bar-
protections
Amendment
sufficiently related
competition, the rule is
in short
agreement). Brentwood
narrowly
gaining
legitimate public interests
right
speak
violation
arguments,
gave up its
each of these
tailored. Under
two,
anti-
game
(including
rules
certainly
under at least one
rules)
for ac-
as consideration
violation
there is no First Amendment
tournaments,
leagues and
cess to TSSAA
this case.
from TSSAA’s enforcement
and to benefit
is
argument
I
the first
recognize
against competitors.
of its rules
it
our
subject
ignores
to the criticism that
and renders the ex-
earlier 2001 decision
Speech Rights May Be Given
1. Free
proceedings
district court
re-
tensive
Up
addition,
futility.
mand an exercise
individually
constitutional
subject to the criti- Most
held
argument
the second
waived,
may
knowingly,
if done
adequately
rights
defer to
cism that
does not
awareness
intelligently,
court.
and with sufficient
findings
the factual
of the district
likely
circumstances and
conse
sympathetic
I am
with the inclina- of relevant
While
States, 397
arguments,
quences.
Brady
I can-
v. United
undergirding
tions
these
they compel
L.Ed.2d
accept
the end
us U.S.
con
(recognizing
of 747
waiver
finding
to affirm the
enforcement
a trial
in a criminal
unexceptional
anti-recruiting
right
athletic
stitutional
Leonard,
case);
(uphold
lenge prison guard, the idea. To become a . feet person may give up right a to be out of Brentwood’s, day. for hours a prison premises eight does not run afoul waiver of, judge, person may give up
To
a
a
.the-
conditions” doc-
become
“unconstitutional
anti-recruiting rules
contributions.
trine because the
right
to solicit charitable
re.-
think that Coach
there is no reason to
participation
TSSAA athletics
late to
follow-up phone
or
recruiting
and Flatt’s
letter
Flatt’s
letter
and Coach
con-
upon any
public
mat-
touch
matter of
calls do not bear on
calls
follow-up phone
Consequently, there
cern under Connick.
public
ters of
concern.
conditions doctrine
is no unconstitutional
of ‘un
the well-settled doctrine
“Under
com-
agreement
in Brentwood’s
defect
conditions,’
government
constitutional
with recruitment rules.
ply
person
give up
may
require
no
to limit the Connick
exchange
...
for a
There is
reason
right
constitutional
analysis strictly
gov-
gov no-public-concern
discretionary benefit conferred
is anal-
sought
employee
lit
ernment
cases. Connick
where the benefit
has
ernment
restriction on Brent-
relationship
right
ogous
to the”
surren
because the
tle or no
emanates from
City
Tigard,
recruiting speech
wood’s
dered. Dolan v.
U.S.
of
374, 385,
necessity
limiting game participants’
L.Ed.2d 304 the
Sindermann,
competitor-referee
speech
part
as
(citing Perry v.
(observ-
Maj.
relationship.
Op. at
92 S.Ct.
waiver yet Flatt have Coach contact as unenrolled sue,” right their explicitly “waived students. Its First Amendment claim “[tjhere comparable is no concluded that ground. should be dismissed on that prohibiting members provision constitutionality of challenging from B. added). (emphasis rule.” Id. words, says only opinion In the 2001 other previous our did not fore- While decision right did not waive its that Brentwood argument, it close the above did direct retain generally. That is true. While sue apply lower court to the test for content- generally, to sue ing right restrictions, certainly I speech neutral group rights— limited
waived a more
respect
majority’s
reluctance to disre-
theories
including any
speech-related
free
gard the district court’s extensive factual
normal adminis
invalidate the
would
however,
view,
inquiry.
my
none of the
to,
agreed
that Brentwood
tration of rules
findings
court’s factual
are suffi-
district
anti-recruiting rules. Brent-
including the
legal
cient to warrant
conclusion
for instance sue on the basis
wood could
rights
Brentwood’s First Amendment
conditions doctrine
the unconstitutional
enforcement of the
violated
TSSAA’s
upon such
and indeed this court relied
anti-recruiting
very
rules. The
nature of
rejection
cases in our
of the blanket waiver
they
game
requires
rules
be some-
argument. See id.
arbitrary.
upon
If
remand the dis-
what
By analogy,
personnel
the staff
Rust
found a restriction on
trict court had
right
not waive their
to sue about their
did
concern,
or a restriction
speech
public
speech
conditions or
free
employment
foot-
game
unrelated to the
speech
on
generally. Surely a court could
rights
ball,
con-
our review of the district court’s
political
discrimination claim
have heard
Noth-
might support affirmance.
clusion
funding
brought against
government
found in this case.
ing like that was
Yet
authority by any such staff members.
case,
game-related le-
In this
members,
still held that the staff
the Court
subordinating
athlet-
gitimate interests
First
by accepting employment, waived
academics,
exploita-
preventing
ics
X’s abor-
objections
Amendment
Title
student-athletes, and
tion of middle school
Rust, 500
tion-speech restrictions.
teams,
furthering competitive equality
(“employees’
U.S. at
justify
enforcement of
together fully
during
is limited
expression
freedom of
Brent-
anti-recruiting
against
rules
they actually
pro-
work for the
time that
anti-recruiting rules are rea-
wood.
ject;
consequence
limitation is a
but this
time, place or manner restrictions
sonable
employment in a
accept
their decision to
narrowly tailored to
that are
speech
scope
permissibly
of which is
project, the
*37
interest
significant government
In
funding authority”).
serve
restricted
41,
925,
alternative channels of 475 U.S.
106 S.Ct.
89 L.Ed.2d
open
and leave
(1986),
v. Rock
and the New York rock concert
communication.
See Ward
Racism,
Racism,
v.
Against
Against
109 case of Ward Rock
2746, 105
(1989);
L.Ed.2d 661
Tucker U.S.
109 S.Ct.
Repeatedly cited in
pages
recognized
validity
those two
are
of these inter-
the adult entertainment
F.Supp.2d
ordinance case of
ests. 304
at 994. TSSAA has
Theatres,
City
Inc.,
Playtime
Renton v.
by restricting
furthered these interests
*38
case,
in
particular
the coach and a demics
this
TSSAA has
between
communication
enrollment, just many
as
“shoddy
reasoning”
relied on
data or
prior
student
message
the erotic
“fairly support
cities have restricted
does not
rationale” for
[its]
away
it
from residen
by keeping
dancers
anti-recruiting
the enforcement
cases,
churches.
In both
tial areas and
Maj.
against
Compare
rules
Brentwood.
secondary
controlled
negative
effects are
Books,
Op.
(quoting
at 430
Alameda
the time and the nature
by restricting
1728).
438, 122
at
to an
Applied
U.S.
S.Ct.
may convey.
messages
speaker
a
business,
reasoning
adult oriented
such
neutral,
time,
context of a content
would allow the owner of an adult business
regulating
ordinance
place, or manner
as-applied
to mount an
First Amendment
businesses,
First
“[t]he
adult oriented
if
challenge
zoning
a
ordinance
she
require
city,
not
a
before
Amendment does
negative
could show that
there
no
ordinance,
enacting ... an
to conduct new
effects,
secondary
prostitution
such
or
as
independent
evidence
produce
studies or
crime, at her establishment. Such is not
cities,
by
so
already generated
other
anti-recruiting
the state of the law. The
city
evidence the
relies
long as whatever
rules, like restrictions on an adult oriented
reasonably
to be relevant
upon is
believed
business, operate
aggregate
in the
and are
city
that the
addresses.”
problem
to the
judged based on the overall effect on
Renton,
51-52,
at
Board’s review A. TSSAA is the Tennessee State Moreover, TSSAA. id. Board’s
Board
Agent
Education’s
power
chairman has
to designate
person
persons
and,
capaci-
to serve
an ex-officio
agent
TSSAA is
of the Board
such,
immunity
ty
receives state antitrust
if it
governing
on TSSAA’s
bodies.
Id. at
authority
grant
from its
may thus
ferred
The Board
minute
noted,
most
directly influence TSSAA’s
Supreme Court has
Board. As the
decision-making
populating
decisions
vests in the Board wide-
Tennessee law
of its selection.
people
bodies
authority
regulate primary and
ranging
dominion over TSSAA
complete
Board’s
secondary
education.
See Brentwood
Consolidated,
under
“ultimate control”
(cit
Acad.,
in the billboard anti-recruiting rules restrict TSSAA’s build their best teams efforts to schools’ players scholarships wooing talented Dorothy HARRIS, Legal sense, also, Guardian In a broader perquisites. or Washington; M. K. the Willie Suzanne efforts determine potential Balikci, Legal Lil what teams will face each Guardian Jennie games, venues Schankowski; Mary Ruffin, lian other, into divi- grouping schools Ruffin, Legal sions, of Issac dates of the athletic seasons Guardian and all any number of other re- behalf of themselves other pre-seasons, and similarly [certi situated individuals “preventing run risk of nor- strictions action], Plaintiffs-Appel fied in a manner anal- class competition” mal acts of lees, Omni. authority in ogous zoning a “foreseeable result” regulations Such are decision to authorize the Tennessee’s OLSZEWSKI, Janet Director regulation of interscholastic
statewide Community Michigan Department of sports. Health, Defendant-Appellant. impliedly has ac- Supreme Court knowledged the inherent need for rules L.F., Legal J.H., Guardian of individual “prevent[] competi- normal acts of ly similarly and on behalf of all other *43 tion” the football context. The Court [certified situated individuals class ac National regarding has written Colle- tion], Plaintiffs-Appellees, (NCAA): giate Athletic Association v. What the NCAA and its member institu- Olszewski, Janet of the Michi Director competition case is tions market gan Community Department competing itself —contests between insti- Reinhart, Health and Paul Director of course, com- tutions. Of this would be Michigan’s Medical Services Adminis pletely if there no ineffective rules tration, Defendants-Appellants. competitors agreed on which the to cre- competition ate and define the to be 04-2479, Nos. 05-1047. myriad affecting A of rules marketed. Appeals, United States Court of field, such matters the size of the Sixth Circuit. team, players number of on a extent to which physical violence is Argued: Sept. 2005. encouraged or proscribed, all must be Decided and Filed: March 2006. agreed all man- upon, and restrain the Rehearing and En Banc Rehearing ner in which compete. institutions April Denied Moreover, seeks to NCAA market particular college brand of football—
football.
Regents
NCAA Bd.
the Univ.
Okla.,
85, 101-102,
dissent
notes
case.”
relationship
government
the
the
between
dispute hardly
our notions of
this
evokes
speaker
voluntary
and the
is
or contractu
Amendment;
of the
the core values
First
example,
government
al. For
when the
same could doubtless be said of other
the
can
regulates how and when citizens
enter
jurispru-
examples
First Amendment
voluntary
into
relationships
contractual
case,
But,
in this
the time for
dence.
government
regulate
with the
certain
any
a
court observation of
lack of
appellate
citizens,
speech by those
government’s
the
long ago.
issue
First Amendment
licensing
regulatory
scheme must meet
argu-
recycling
the TSSAA’s waiver
standards,
regardless
constitutional
of ment, the
characterizes the 2001
dissent
the
a
speech
whether
issue involves
panel
dealing
with a
decision
broad
public
Forsyth
matter of
concern. See
of whether
had
its
issue
waived
129-31,
County, 505
U.S.
S.Ct.
entirely.
problem
to sue
The
with
right
Promotions,
2395; Southeastern
Ltd. v.
interpretation is
Brent-
this
that in 2001
Conrad,
546, 552-53,
U.S.
challenged
had
and
wood
sued
had
(1975). The