BRENTWOOD ACADEMY, Plaintiff-Appellee/Cross-Appellant,
v.
TENNESSEE SECONDARY SCHOOL ATHLETIC ASSOCIATION; Ronnie Carter, Executive Director and in his individual capacity, Defendants-Appellants/Cross-Appellees.
No. 03-5245.
No. 03-5278.
United States Court of Appeals, Sixth Circuit.
Argued: December 7, 2004.
Decided and Filed: March 17, 2006.
COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED ARGUED: Richard L. Colbert, Colbert & Winstead, Nashville, Tennessee, for Appellants. James F. Blumstein, Vanderbilt Law School, Nashville, Tennessee, for Appellee. ON BRIEF: Richard L. Colbert, W. Gregory Miller, J. Christopher Anderson, Colbert & Winstead, Nashville, Tennessee, for Appellants. James F. Blumstein, Vanderbilt Law School, Nashville, Tennessee, H. Lee Barfield II, W. Brantley Phillips, Jr., Bass, Barry & Sims, Nashville, Tennessee, for Appellee. Daniel Casse, White House Writers Group, Washington, D.C., Chester E. Finn, Jr., Thomas B. Fordham Foundation, Washington, D.C., John F. Daly, Federal Trade Commission, Washington, D.C., William E. Quirk, James M. Humphrey, Shughart, Thomson & Kilroy, Kansas City, Missouri, for Amici Curiae.
Before: GIBBONS and ROGERS, Circuit Judges; BELL, Chief District Judge.*
GIBBONS, J., delivered the opinion of the court, in which BELL, Chief D.J., joined.
ROGERS, J. (pp. 444 - 456), delivered a separate dissenting opinion.
OPINION
GIBBONS, Circuit Judge.
This appeal represents the third trip to this court for the parties to this litigation. The case has also been before the United States Supreme Court, which made a notable ruling that defendant-appellant Tennessee Secondary School Athletic Association ("TSSAA") was a state actor.
The parties' dispute began when the TSSAA imposed a number of penalties on plaintiff-appellee Brentwood Academy ("Brentwood") as a result of asserted violations by Brentwood of the TSSAA's rule governing recruiting of student athletes. Brentwood sued the TSSAA and its executive director, defendant-appellant Ronnie Carter, alleging violations of the First and Fourteenth Amendments, federal antitrust laws, and Tennessee law. After the United States Supreme Court determined that the TSSAA is a state actor, this court on remand held that the recruiting rule was content-neutral and subject to intermediate scrutiny. We remanded to the district court with instructions about the proper analysis in the case on the First Amendment issue. The district court conducted a ten-day nonjury trial. The district court found for Brentwood on the First Amendment issue, holding that the application of the rule to Brentwood was not narrowly tailored to further the TSSAA's legitimate, substantial interests. The district court also found for Brentwood on its substantive and procedural due process claims against the TSSAA, as well as on its procedural due process claim against Carter in his individual capacity. The district court enjoined the TSSAA's penalties against Brentwood. The district court also held that the TSSAA was entitled to immunity from Brentwood's antitrust claims. The parties cross-appealed to this court on these issues.
For the reasons set forth below, we affirm in part, reverse in part, and remand for further proceedings.
I.
A. Factual Overview
We begin with a description of the most pertinent facts and supply additional facts as necessary in our discussion of the various issues.
The TSSAA is a voluntary association of 290 public schools and 55 independent and parochial schools from across the state of Tennessee. The TSSAA is organized as a non-profit corporation under Tennessee law, with the purpose of stimulating and regulating interscholastic athletic competition among its member schools. Its governing entity is the Board of Control. As noted in the Supreme Court's decision in this case, the Tennessee State Board of Education, beginning in 1925, explicitly acknowledged the TSSAA's functions "in providing standards, rules and regulations for interscholastic competition in the public schools of Tennessee." Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n,
Brentwood Academy is an independent school in Brentwood, Tennessee, and a member of the TSSAA. In 1998, the school had about 520 students in grades six through twelve. Brentwood's athletic teams, especially its football team, have been very successful in interscholastic competitions, even though its enrollment is smaller than many of its competitors. At the time of the events in question, Brentwood's Headmaster was Bill Brown; the Athletic Director and Head Football Coach was Carlton Flatt; and the Director of Admissions was Nancy Brasher. Brentwood paid a fee to the TSSAA to renew its membership on an annual basis.
The TSSAA has promulgated a "recruiting rule" in order to regulate the attempts of secondary schools to recruit middle school student athletes for athletic programs. The rule, found in the TSSAA's Bylaws, reads:
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 to retain a student for athletic purposes shall be a violation of the recruiting rule.
The bylaws also include a number of questions and answers and other guidelines that are known as interpretive commentary. While these are meant to aid in the interpretation of the recruiting rule, they are not binding on the TSSAA Board of Control. Carter agreed that the recruiting rule itself is "all that really counts, everything else underneath it, the interpretative commentary is discretionary and it depends on the totality of the circumstances."
Excerpts from the interpretive commentary include the following:
1.
Q. How is undue influence interpreted in the recruiting rule?
A. A person or persons exceeding what is appropriate or normal and offering an incentive or inducement to a student with or without an athletic record.
...
3.
Q. Is it permissiblе for a coach to contact a student or his or her parents prior to his enrollment in the school?
A. No, a coach may not contact a student or his or her parents prior to his enrollment in the school. This shall apply to all students whether or not they have an athletic record.
4.
Q. What are some of the guides [sic] used in determining whether there has been undue influence used which would result in a violation of the recruiting rule?
A. Some examples are, but not limited to:
3. Any initial contact or prearranged contact by a member of the coaching staff or representative of the school and a prospective student/athlete enrolled in any member school except where there is a definite feeder pattern.
4. Any initial contact or prearranged contact by a member of the coaching staff or representative of the school and a prospective student/athlete in the seventh grade and above at any non-member school except where there is a definite feeder pattern involving the schools.
...
Private...schools may not contact students enrolled at the public schools. Public schools may not contact students enrolled at the private schools.
...
7. Admitting students to athletic contests free of charge when there is an admission being charged at the contest except where there is a definite feeder pattern involved with the school.
The "definite feeder pattern" exception does not apply to Brentwood, except with regard to those students who are enrolled at Brentwood Academy itself in the sixth grade or higher.
In some form, the recruiting rule has been in effect at least since the early 1950s and probably earlier. It has undergone various changes; the auxiliary questions and answers and guidelines were added during the 1980s and 90s.
In 1997, a number of coaches at public high schools that were TSSAA members reported various alleged recruiting violations by Brentwood to the TSSAA. On behalf of the TSSAA, Carter and other TSSAA officials began an investigation into the allegations. During the investigation, Brentwood supplied Carter with a copy of a letter Flatt sent to various eighth grade boys in April 1997 as well as information regarding phone calls Flatt made to the families of the boys to whom the letter was sent. The letter read, in part:
Having officially enrolled at Brentwood Academy, the TSSAA allows you to participate in spring football practice. If you are not currently involved in a sport at your school, we would like to invite you to practice with your new team.... Due to the inconvenience to your parents, please do not feel that you must attend every practice. However, I do feel that getting involved as soon as possible would definitely be to your advantage.... We are certainly glаd that you decided to become an Eagle.
The letter was signed, "Your Coach, Carlton Flatt." This letter was sent to all incoming ninth grade male students who had applied, been tested and admitted, and signed enrollment contracts with Brentwood.1 Flatt testified that after the letter was mailed, he received "a couple of phone calls" from parents of boys who received the letter with questions about the letter and the necessity of the boys attending practice. As a result of these calls, Flatt decided to call each of the families of the boys who received the letter to clarify that the spring practice was not mandatory and should not trump any other academic or athletic responsibility the boys might have. All twelve boys who received the letter ended up attending spring practice.
The TSSAA also investigated allegations that tickets for a Brentwood football game provided by Flatt to a middle school coach were used by some of the coach's student athletes to attend the game for free. As the TSSAA put it, these tickets were "made available to uncontrolled individuals" in a way that facilitated "the possibility for abuse." Flatt later testified that he had told the coach that the tickets were not to be used to provide free admission to middle school students. The middle school coach nonetheless allowed two of the free tickets to be used by two of his students.
Carter notified Brentwood by letter dated July 29, 1997, that the TSSAA had found Brentwood guilty of multiple violations of TSSAA rules. The letter informed Brentwood of various penalties that would be assessed as a result of the rules violations. Brentwood requested a hearing with Carter and members of the TSSAA Board of Control; a hearing was held on August 13, 1997, at which Headmaster Brown and representatives of Brentwood made a presentation regarding the allegations and determinations in the July 29 letter. Following the hearing, Carter again sent a letter to Brown providing more specific information about the violations and penalties to be assessed against Brentwood. Pursuant to the TSSAA Bylaws, Brentwood appealed the penalties to the full Board of Control, which is charged with enforcing the TSSAA Bylaws. Another hearing was held on August 23, 1997. In an August 23, 1997, letter that represented the final TSSAA decision on the matter, the Board notified Brentwood that it had found that Brentwood, and specifically Flatt, violated the recruiting rule in two ways: (1) by granting free admission to a Brentwood football game to two eighth grade athletes from another school; and (2) by sending letters and making phone calls to eighth grade boys at other schools regarding spring football practice at Brentwood.2 The Board also cited Brentwood for conducting impermissible off-season practice with certain Brentwood student-athletes, but this аlleged rule violation is not an issue in this appeal. As a result of these violations, the Board imposed numerous penalties, including a four-year probation for Brentwood's entire athletic program, suspension of playoff eligibility for the Brentwood football and boys' basketball teams, and a $3,000 fine.
B. Procedural History
Brentwood sued the TSSAA and Carter (in his official and individual capacities) on December 12, 1997, alleging that the TSSAA violated the First and Fourteenth Amendments; the Sherman Act, 15 U.S.C. §§ 1-2; and Tennessee law. On July 29, 1998, the district court found that the TSSAA and Carter were state actors and granted summary judgment to Brentwood on its First Amendment claim brought under 42 U.S.C. § 1983. See Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n,
On remand from the Supreme Court, this court considered the merits of the TSSAA's appeal. This court reversed the decision of the district court granting summary judgment to Brentwood and remanded the case to the district court, holding that: (1) Brentwood did not waive its right to challenge the recruiting rule by voluntarily joining the TSSAA; (2) the recruiting rule is not facially overbroad; and (3) the district court erred by subjecting the recruiting rule to strict scrutiny, because it is content-neutral. See Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n,
After remand and prior to trial, on October 25, 2002, the district court granted partial summary judgment to defendants on Brentwood's antitrust claims, reasoning that since TSSAA is an organization "pervasively entwined" with the state, it is entitled to antitrust immunity under Parker v. Brown,
In December 2002, the district court held a bench trial and considered the issues addressed by this court in its 2001 opinion, as well as Brentwood's substantive due process, procedural due process, equal protection, and Tennessee state law claims. The court issued a memorandum opinion and order on January 13, 2003, finding: (1) for Brentwood on its First Amendment, substantive due process, and procedural due process claims against the TSSAA; (2) for Brentwood on its procedural due process claim against Carter in his individual capacity; and (3) for Carter with regard to Brentwood's First Amendment and substantive due process claims against Carter in his individual capacity. See Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n,
On February 10, 2003, the TSSAA and Carter appealed the January 13, 2003, order to this court. On February 24, 2003, Brentwood cross-appealed, taking issue with: (1) the district court's October 2002 order granting partial summary judgment to defendants on the antitrust claims; and (2) the relief provisions of the January 13, 2003, order.3
II. Analysis of the Issues
This court reviews a district court's findings of fact for clear error. See Waxman v. Luna,
A. The TSSAA's Reliance on Its Contractual Relationship with Its Members
Permeating the TSSAA's arguments4 on both the First Amendment and due process issues is its contention that rulings by the district court "ignored the constitutionally critical fact that the relationship between TSSAA and [Brentwood] arose entirely from a membership contract that [Brentwood] renewed each year." In other words, according to the TSSAA, "[e]very argument of [Brentwood] and every ruling by the District Court relies [sic] on the false premise that TSSAA is the sovereign State exercising police power rather than a state actor that asks its members to honor its voluntary contractual obligations." Prior to undertaking analysis of the First Amendment claim, we must address this argument as it relates to that claim.
There is a short answer to the TSSAA's argument with regard to the First Amendment claim. The answer is that it is inconsistent with the law of the case and this court's 2001 opinion. In the 2001 opinion this court outlined the First Amendment analysis to be employed by the district court on remand. See Brentwood Acad.,
The TSSAA's reasoning invites us to stray from the 2001 panel's road map and follow another analytical route it deems more favorable to its position. In making its argument, it suggests that two lines of First Amendment cases—unconstitutional conditions cases represented by cases such as Board of County Commissioners v. Umbehr,
One argument made by the TSSAA in 2001, bearing substantial resemblance to its present position, was that Brentwood "waived its right to question the constitutionality of the recruiting rule because, by voluntarily choosing to be a member of TSSAA, it has agreed to abide by the rules of the organization." Brentwood Acad.,
Our agreement or disagreement with the 2001 panel decision is not at issue here. We have no authority to overturn a prior published decision of this court, see Darrah v. City of Oak Park,
While this court's 2001 ruling provides the definitive answer to the First Amendment argument based on the TSSAA's contractual relationship with its members, we note also that clear problems exist with the manner in which the TSSAA seeks to apply the "unconstitutional conditions" doctrine. The TSSAA relies on Umbehr to argue that the "unconstitutional conditions doctrine specifically allows a state agency to impose conditions, even on fundamental rights like free speech, when those conditions are rеasonably necessary to accomplish the objectives of the contract." This is not an accurate reading of Umbehr, which held that the First Amendment limits the government's ability to terminate relationships with independent contractors because of their speech. See
Similarly, there are obvious differences between the TSSAA's role in this case and the government's role as employer, cf. Pickering,
A couple of nuances in the TSSAA's argument deserve mention. The TSSAA urges the applicability of its preferred analysis by differentiating between the government's "sovereign power" and its "contractual power." In doing so, it makes much of the dicta in Umbehr discussing the difference between the government's "sovereign power" and its "contractual power." See
A second nuance relates to the TSSAA's efforts to cast the present case as a "subsidy" case, where the government has considerable autonomy over how a government program is administered. This characterization is similarly futile. The defendants state in their brief that "TSSAA membership is a subsidy" and that under Rust v. Sullivan,
Thus, as the 2001 panel determined, the appropriate characterization of the TSSAA's role is as a government regulator, a context to which the First Amendment surely applies. See, e.g., Rosenberger v. Rector & Visitors of the Univ. of Va.,
We thus reject the defendants' attempt to reshape the framework through which we view this case—a framework set out by this court previously and utilized by the district court in trying the case. The TSSAA, in administering its rules and regulations and imposing penalties against member schools, acts as a regulator, not as an employer, contractor, or disburser of funds. Therefore, as this court has previously concluded, Brentwood's First Amendment rights are at issue in this case, and intermediate scrutiny applies to the TSSAA's application and enforcement of the recruiting rule.
The dissenting opinion accepts the TSSAA's invitation to revisit previously rejected arguments and to recharacterize them as new ones. In fact, it even goes beyond the TSSAA's arguments and suggests that no First Amendment rights are implicated here.
The opening sentences of the dissenting opinion are conceptually attractive when first read. They are: "High school football is a game. Games have rules." Of course, games have rules. And so do cases. Here, the rule is called "law of the case." The dissent correctly notes that this dispute hardly evokes our notions of the core values of the First Amendment; the same could doubtless be said of other examples of First Amendment jurisprudence. But, in this case, the time for appellate court observation of any lack of a First Amendment issue was long ago.
In recycling the TSSAA's waiver argument, the dissent characterizes the 2001 panel decision as dealing with a broad issue of whether Brentwood had waived its right to sue entirely. The problem with this interpretation is that in 2001 Brentwood had sued and had challenged the same rule at issue in this appeal. The panel was discussing waiver in this context, and the clear import of its decision is that Brentwood had not waived or given up its right to challenge the rule at issue here by entering into a contract with the TSSAA.
Another difficulty with the dissent's waiver theory is that it is implicitly based on the content of the contract. Yet the contract here contains no provision that assists in the analysis. Brentwoоd does agree to be bound by the rules. If the TSSAA were not a state actor, that would be the end of the story. Since the TSSAA is a state actor, the contract gives no guidance as to whether Brentwood waived a right to challenge a rule it considered unconstitutional. The contract's silence thus becomes evidence of an absence of waiver of constitutional rights. The silence provides no basis for differentiating between a waiver of some rights and not others.
B. Application of the Recruiting Rule to Brentwood
Turning to the analysis of the First Amendment issue, we consider whether the TSSAA's application of the recruiting rule to Brentwood violates the First Amendment. In the 2001 opinion, the court laid out the intermediate scrutiny analysis that applies to content-neutral regulations:
[A] regulation of the time, place, or manner of protected speech must be narrowly tailored to serve the government's legitimate, content-neutral interests but . . . it need not be the least restrictive or least intrusive means of doing so. Rather, the requirement of narrow tailoring is satisfied so long as the regulation promotes a substantial government interest that would be achieved less effectively absent the regulation. . . . The validity of time, place, or manner regulations does not turn on a judge's agreement with the responsible decisionmaker concerning the most appropriate method for promoting significant government interests or the degree to which those interests should be promoted.
Brentwood Acad.,
The district court held that the TSSAA has a substantial governmental interest in protecting student athletes from exploitation. While it also held that the TSSAA's interest in fostering a "level playing field" was a legitimate governmental interest, it found that this interest was not substantial, especially considering that "[t]he substantial governmental interest in informed school choice trumps any governmental interest in controlling which schools or teams win athletic contests." Unlike rational basis review, intermediate scrutiny does not allow a court to supplant the particular interests put forward by the state with other suppositions. See Edenfield v. Fane,
The district court's conclusions regarding the TSSAA's interests, which we review de novo, were not erroneous. With regard to the asserted interest of protecting student athletes against exploitation, the TSSAA presented voluminous evidence at trial, primarily via expert witness testimony, in support of its argument that this interest is a substantial one. Carter testified that the "fundamental" reason for the recruiting rule was preventing exploitation. One of Brentwood's expert witnesses even testified that preventing the exploitation of student athletes, defined as the "selfish, unjust utilization of students for a school's benefit rather than for the benefit of the individual student," was a compelling state interest. At one point in its brief, Brentwood seems to suggest that evidence such as written legislative history or testimony from the initial drafters of the recruiting rule is necessary to prove that preventing exploitation of students was one of TSSAA's "actual" interests in applying the rule to Brentwood.7 For the purposes of the first prong of the intermediate scrutiny test, it is only necessary to establish that the actual interest exists and is substantial, and this can be done without resort to such primary sources. While there is no known written legislative history for the recruiting rule and all of the initial drafters of the rule are dead, the evidence, especially Carter's testimony under oath, suggests that preventing the exploitation of middle school student athletes is a substantial state interest and was one of the TSSAA's "actual" interests in applying the rule to Brentwood. See City of Erie v. Pap's A.M.,
The TSSAA also introduced evidence that supports its contention that fostering a level playing field among member schools is a legitimate state interest. Specifically, its experts and Brentwood's own Headmaster Brown testified that the recruiting prohibition helps level the playing field among schools, especially as between private schools with significant resources and public schools with more limited resources and access to potential students. Carter testified at length abоut how the recruiting rule preserves competitive equity among schools, explaining that without the rule, "the rich would get rich real quick, and the poor would get poor real quick." There is very little, if any, evidence, however, explaining why competitive equity is an important value in the first place. It may be true, as defendants claim in their brief, that "maintenance of fair competition among [the TSSAA's] members lies at the core of [the TSSAA's] reason for being," but simply saying this is so does nothing to demonstrate why such a "reason for being" is a substantial state interest. State actors may act out of a variety of interests, but only some are substantial. The defendants can cite to no evidence to support the notion that ensuring that high schools compete in interscholastic sports in an equitable manner is a substantial state interest, especially when coupled with the admittedly substantial interest of ensuring that athletics do not become more important than academics at the high school level. The district court was right that this interest, while legitimate, is not substantial.8
Having established that the TSSAA has substantial state interests in keeping athletics subordinate to academics and preventing the exploitation of student athletes, the next question in the analysis, as set out in this court's previous opinion on the matter, is whether the recruiting rule, "as applied to Brentwood," is narrowly tailored to further those interests. See Brentwood Acad.,
to decide if the punishment exacted for these alleged violations relating to the free game tickets, spring football-practice letters, and the followup telephone calls was appropriate regulatory action narrowly tailored to further TSSAA's legitimate interests as a state actor.... In proceeding with this case on remand, we caution both the parties and the district court to stay focused on the two alleged recruiting rule violations in question, rather than engage in a wide-ranging attack or defense of the recruiting rule as a whole.9
Brentwood Acad.,
Reviewing de novo, we affirm this conclusion. The defendants import a definition of "enrolled" from a separate provision in the TSSAA Bylaws to support their argument that the students contacted by the letters and calls were not truly enrolled at Brentwood and that Brentwood therefore violated the recruiting rule by contacting them. Putting aside the fact that the Bylaw provision upon which defendants rely seems to apply not to practices or recruiting but rather only to eligibility to participate in athletic contests, the defendants' contention that the students at issue were not enrolled misses the point. Considering that the interpretive commentary to the recruiting rule is not binding and serves only as a guideline, the TSSAA's use of its discretion to punish Brentwood for the letters and calls was not a narrowly tailored way to keep athletics subordinate to academics at Brentwood or ensure that the student athletes being contacted were not being exploited.11
First, surely, however one defines "exploitation," this interest was not furthered by punishing Brentwood. As the district court pointed out, the students contacted by the letter and calls had already signed enrollment contracts with Brentwood Academy, and the letter and calls were directed to all male students who had done so. In fact, Brentwood did not send the letter to one male student who had been accepted by Brentwood but had not yet signed an enrollment contract. Indeed, the students contacted had all agreed, and by all accounts were excited, to attend Brentwood the following year. Additionally, it is clear that the followup phone calls were made to clarify for the students involved that the practice was optional and should not preclude any other commitments they might have. The district court was right that "[n]either students nor parents were exploited in theory or in fact."
With regard to the former interest (keeping athletics subordinate to academics), it is a closer call, but the TSSAA's use of the regulation to punish Brentwood seems to "burden substantially more speech than is necessary to further the government's legitimate interest[]" in keeping athletics subordinate to academics. See Ward,
If the letters and calls were the first or only piеces of information the students or their families had ever received about Brentwood or would receive before arriving at the school, then an argument could be made that the school was unduly emphasizing athletics over academics. This was not the case. Each of the families of the children in question had already signed enrollment contracts with Brentwood. The information about spring football practice was simply information being provided to incoming students about an extracurricular activity available to them—an activity in which incoming students were allowed to participate under TSSAA rules.12 Incoming students at Brentwood received a variety of information about a multitude of topics and activities, including academics at the school, and the letters and calls should be seen in this context.13
Even if the students could (and sometimes did) "wiggle out" of their contracts with Brentwood, this did not mean that Brentwood should be punished for disseminating information about an optional activity for incoming Brentwood students. In fact, defendants' argument that the students in question were not technically enrolled and could have still decided to attend another school might even weigh in Brentwood's favor, in that the letters and calls could be seen as part of an ongoing attempt to make sure the incoming students were informed about what Brentwood had to offer. That these particular communications emphasized athletics does not mean that punishing Brentwood for the communications served the TSSAA's interest in keeping athletics subordinate to academics. In this context, the harm the TSSAA sought to prevent was "conjectual," not "real," or at least not based on the evidence in the record. See id. Put another way, it is not clear that the TSSAA's substantial interest in subordinating athletics to academics was achieved any more effectively by punishing Brentwood for Flatt's letters and calls than it would have been had no punishment been handed down. Cf. Ward,
To justify its regulation on Brentwood's speech, the TSSAA cannot rely on "shoddy data or reasoning"; rather, its evidence must "fairly support [its] rationale" for the application of the recruiting rule to the letters and calls. See City of L.A. v. Alameda Books, Inc.,
Well, I think, first of all, you can't measure—you can't measure it on the effect that it had on those kids or any other circumstance that would occur. If [exploitation] occurs, then it's very difficult to imagine what impact it has on or to figure out what impact—I very seldom have seen kids in those situations that think it's had any impact on them. But it's very hard to turn around and determine that.
Carter's instinct was accurate, since despite evidence by numerous parents, school officials, and experts at trial, there was no evidence to show that the punishment of Brentwood was justified due to the effect of Brentwood's actions on the children or the relative standing of academics and athletics at the school. In sum, the TSSAA did not show that the application of the recruiting rule to Brentwood was narrowly tailored to serve the TSSAA's substantial interests.14 Reviewing de novo, we affirm the holding by the district court on this issue.15
C. Free Tickets as a Substantive Due Process Violation
The district court also held that the application of the recruiting rule to Brentwood violated the school's substantive due process rights with regard to the free tickets used by two students to attend a Brentwood football game. After citing authority indicating that the doctrine of substantive due process means that "governmental deprivations of life, liberty or property are subject to limitations regardless of the adequacy of the procedures employed," see Pearson v. City of Grand Blanc,
[a]s applied, the Recruiting Rule did not give Brentwood Academy constitutionally adequate notice that providing tickets to another coach, who secretly disregards express instructions to use the tickets only for adults, will constitute a violation. The Recruiting Rule is unconstitutionally vague as applied to Brentwood Academy on the facts of this case.
The court went on to explain that "the Recruiting Rule did not give ... Brentwood Academy[] a reasonable opportunity to know what was prohibited with regard to complimentary tickets so that it could act accordingly."
When the vagueness argument was formulated as a First Amendment challenge, this court repudiated it. See Brentwood Acad.,
D. Procedural Due Process Claim
The district court also found that Brentwood's procedural due process rights were violated. The Fourteenth Amendment provides, in part, that "[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. Procedural due process generally requires that the state provide a person with notice and an opportunity to be heard before depriving that person of a property or liberty interest. See, e.g., Thompson v. Ashe,
The first issue is whether Brentwood was deprived of a property interest. Clearly, at a minimum, fining Brentwood $3,000 deprived Brentwood of a property interest. See Herrada v. City of Detroit,
The second step in the procedural due process analysis is determining whether the TSSAA's deprivation of Brentwood's property interest contravened notions of due process. Under circuit precedent, a § 1983 plaintiff can prevail on a procedural due process claim by demonstrating that the property deprivation resulted from either: (1) an "established state procedure that itself violates due process rights," or (2) a "random and unauthorized act" causing a loss for which available state remedies would not adequately compensate the plaintiff. Macene v. MJW, Inc.,
Whether seen as an attack on an established state procedure or as an attack on a "random and unauthorized" act, Brentwood's claim is not subject to the Parratt rule, as it clearly was not "impossible" for the TSSAA to grant a predeprivation hearing18 to Brentwood on these facts. See id. at 128,
Brentwood first argues that it was deprived of the right to a "neutral, impartial decisionmaker." Brentwood points out that Carter acted as investigator, trial judge, initial appellate judge, and participant in the final appeal. This court, however, has rejected arguments that due process is violated when the same official plays multiple roles in the process, such as when he acts as investigator, witness, presiding officer at hearing, and final decisionmaker. See Moore,
In finding a violation of Brentwood's procedural due process rights, the district court focused on Brentwood's alternative procedural due process argument: that during the TSSAA Board of Control's private deliberations after the August 23, 1997, hearing, the Board heard ex parte evidence regarding contacts with middle school students allegedly made on behalf of Brentwood, and that this evidence affected the Board's final decision and penalty. Brentwood claims that it should have had the chance to rebut this evidence by cross-examining the TSSAA investigators who discussed these contacts with the Board during the private deliberations. See Goldberg v. Kelly,
In evaluating Brentwood's argument, it is necessary to recount in some detail the evidence about the subject of the ex parte discussion. There had been reports made to the TSSAA alleging that an Amateur Athletic Union (AAU) basketball coach named Bart King urged particular middle school student athletes to attend Brentwood, had provided transportation to Brentwood for those students, and promised scholarships to those students. Brentwood alleged in its initial complaint that King was in no way affiliated with the school and that Brentwood never represented to King or others that King had authority to act on its behalf. After the TSSAA received reports containing the allegations involving King, two TSSAA officials, Gene Meness and Bernard Childress, investigated the matter. Meness and Childress met with Brentwood Headmaster Brown in early June 1997 and asked Brown about King. Brown suggested that they put questions regarding King and other issues in writing and send them to him. Through an exchange of letters during July 1997, the TSSAA informed Brentwood that it was investigating the allegations relating to King, and Brentwood stressed to the TSSAA that King was in no way associated with Brentwood Academy. Meness and Childress did not speak to King during the investigation.
As the district court found, there was no indication from the TSSAA before the final hearing that it was still considering the Bart King allegation.20 In fact, the district court determined that "the TSSAA and Carter misled Brentwood Academy about a person and allegation which ultimately mattered to the decision." See Brentwood Acad.,
Meness and Childress were present during the Board of Control's private deliberations following the August 23 hearing. While Childress recalled answering some questions posed by Board members, neither Meness nor Carter recalled answering any questions about Bart King. Board of Control President Mike Reed and Board member Michael Hammond testified that during the Board's private session, the Board discussed the allegations surrounding King's actions. In Reed's initial deposition in this case, Reed was asked whether the King allegations were one of the reasons behind the Board's ultimate finding (upon which the penalties were based, in part) that there was "[c]ontact with student-athletes, initiated by Brentwood Academy, while those students were enrolled at other schools." Reed answered affirmatively. However, at trial, Reed first testified that although the King allegations were a "factor" in the discussion of the final penalty, the "final penalty did not involve Bart King": "[W]e discussed Bart King and the situation that took place, we did, we discussed it, but the final penalty really dealt with the letter from Mr. Flatt." When asked about his deposition testimony at trial, Reed also referred to a lack of memory in his deposition testimony and further indicated that the situation with King "was a factor in the overall penalty." The assertion that the final penalty was not based on the King allegations was reiterated by Carter and Hammond in their testimony at trial.
The district court found that the TSSAA and Carter violated Brentwood's procedural due process rights by considering ex parte evidence during their private deliberations on August 23, 1997. In reaching this conclusion, the district court recounted the testimony of Board of Control President Reed as well as Board members Hammond, Mickey Dunn, and Morris Rogers, all of whom indicated in their testimony that TSSAA investigators Childress and Menees provided some information to the Board regarding their findings during the private session. Additionally, the court noted that Carter testified that Carter, Meness, and Childress were all present to answer questions from the Board during the private session. The court below also pointed out that "Bart King, according to Reed, was discussed and ... was a factor in the penalties imposed." Id. at 1004. The court credited all of this evidence "based on the demeanor of the witnesses, the consistency of the testimony, and because the testimony is adverse to the witnesses' interests as TSSAA Board of Control members." Id.
The district court's factual finding that there was discussion during the Board of Control's deliberations about the King allegations was not clearly erroneous and, in fact, was well-supported by the evidence. The district court was also correct in its conclusion that Brentwood Academy did not have notice that the King matter was a possible basis for final TSSAA action against Brentwood. Whether the King issue was actually a factor in the penalties ultimately imposed is far less certain. Yet the district court was entitled to credit Reed's deposition and trial testimony that the King issue influenced the Board's findings and penalties over his contrary trial testimony and other evidence that the King issue was not a basis for the penalties.21 See Fed.R.Civ.P. 52(a) ("Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses."). Thus, the finding that the King issue influenced the penalties is also not clearly erroneous.
There is no applicable precedent that describes the precise process a school such as Brentwood should receive from a state athletic association such as the TSSAA before the association imposes penalties such as the ones assessed here. Cf. Loudermill,
[I]dentification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Id. at 335,
The district court correctly concluded that in a situation such as the one presented by this case, due process requires that a school be informed of all of the issues relied on by an athletic association levying penalties against the school and be given a chance to respond to those issues before the penalties are imposed.22 Such a requirement imposes only a minimal burden on the state actor and would be of great value in ensuring that a school is not wrongfully penalized. Moreover, as the district court noted, such a requirement is clearly consistent with the notification requirements set out by this court and others in analogous situations. See, e.g., Loudermill,
In sum, we affirm the district court's conclusion that the TSSAA and Carter violated Brentwood's procedural due process rights. The district court correctly determined what process was due to Brentwood: notice of the evidence relied upon in penalizing Brentwood and an opportunity to respond to that evidence before penalties were imposed. Here, the TSSAA failed to give that notice as it related to King. Brentwood therefore had no notice that it should respond to the King evidence at the hearings. Yet, the King evidence was used by the TSSAA in its deliberations and, under the district court's findings, influenced the penalties imposed on Brentwood. The failure to afford the requisite process violated Brentwood's Fourteenth Amendment rights to procedural due process.
E. Availability of Qualified Immunity for Carter
The district court also held that Carter was not entitled to qualified immunity. Whether a defendant is entitled to qualified immunity is a question of law reviewed de novo. Thacker v. City of Columbus,
The initial question here is whether the qualified immunity defense is even available to Carter, an employee of a non-profit corporation that has been found to be a state actor when engaging in regulatory activity. "In assessing whether the qualified immunity afforded state officiаls extends to private actors who are considered state actors under § 1983, [the court] must consider both the purposes of qualified immunity protection and the nature of the relationship between the state and the putative private party." Bartell v. Lohiser,
Nevertheless, a closer examination of Bartell and Richardson indicates that the balance is tipped towards Carter's argument that qualified immunity is available to him. Specifically, one of the key reasons qualified immunity was unavailable in Richardson was because the purposes of qualified immunity were already served by "marketplace pressures" that themselves "provide[d] the private firm with strong incentives to avoid overly timid, insufficiently vigorous, unduly fearful, or `nonarduous' employee job performance."
Having found that qualified immunity is available to Carter, the next question is whether it applies in this case. If an official acts within his discretionary authority and asserts qualified immunity, the burden shifts to the plaintiff to prove that the officer violated a right so clearly established that any reasonable official in his position would have understood it was unlawful to engage in the conduct that violated the right. See Gardenhire v. Schubert,
Having found that a violation of Brentwood's procedural due process rights occurred, the next question is whether Brentwood's rights were clearly established such that "it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier,
F. Antitrust Immunity
The district court ruled in an October 2002 order that the TSSAA was entitled to antitrust immunity under the doctrine of Parker v. Brown,
In addition to the facts noted earlier about the TSSAA as an organization, the following facts are pertinent to the antitrust immunity inquiry. The bulk of the TSSAA's revenues come from gate receipts at member teams' tournaments, but member schools do pay annual dues. TSSAA employees are not paid by the state but are eligible to join the state employee retirement system. The voting membership of the Board of Control and Legislative Council (the rulemaking body of the TSSAA) are composed of school administrators, and the public school administrators who typically serve in these positions carry out their TSSAA duties during regular school hours.
The district court issued only a cursory explanation of its decision on this issue. The court explained, without analysis, that the Supreme Court's decision on "pervasive entwinement" meant that the TSSAA was a state actor "for purposes of antitrust immunity." However, while there are similarities between the two tests, the Parker antitrust immunity inquiry is different from the inquiry into whether state action exists for the purposes of § 1983 and the Fourteenth Amendment. See Nat'l Collegiate Athletic Ass'n v. Tarkanian,
In Parker, the Supreme Court held that when a "state in adopting and enforcing [a regulatory] program..., as sovereign, imposed the restraint as an act of government," the program could not violate the Sherman Act, because the Act was directed against "individual and not state action."
The first question under the Midcal Aluminum test is whether the TSSAA acts pursuant to a "clearly articulated and affirmatively expressed" state policy to displace competition.
Other Supreme Court precedent, however, suggests that "`explicit authorization' by state legislatures to displace competition [is] not necessary to pass the clear articulation test. The Parker exemption applies as long as the suppression of competition is the foreseeable or logical result of what the state authorizes." Id. at 535 (citing Town of Hallie v. City of Eau Claire,
Assuming, arguendo, that the TSSAA acts pursuant to a "clearly articulated and affirmatively expressed" anticompetitive state policy, the next question is whether its regulatory program is actively supervised by the state. See Midcal Aluminum,
Defendants therefore cannot establish either prong of the Midcal Aluminum test. For these reasons, we reverse the district court's October 2002 decision finding that the TSSAA is entitled to Parker antitrust immunity and remand for further proceedings with respect to Brentwood's antitrust claim.
G. Relief Issues
Brentwood also appeals the district court's denial of damages. "[W]hen § 1983 plaintiffs seek damages for violations of constitutional rights, the level of damages is ordinarily determined according to principles derived from the common law of torts." Memphis Cmty. Sch. Dist. v. Stachura,
The district court rightly pointed out that any costs incurred by Brentwood as a result of the litigation were costs it chose to incur when it filed the case. As to Brentwood's reputational damage, foreseeability is an element of the proximate cause analysis, but it is distinct from the requirement that a plaintiff show the injury was directly caused by the defendant. See Perry v. Am. Tobacco Co.,
Brentwood also argues that the district court, which enjoined the penalties assessed against Brentwood, should have also enjoined the enforcement of the recruiting rule "as applied to speech more generally." Brentwood asserts in its brief that "[o]nly a decision-forcing injunction against applying the [recruiting rule] to speech can assure TSSAA's First-Amendment-mandated `careful calculation of the speech interests involved.'" These arguments are not well-taken. In its previous opinion, this court clearly rejected a facial challenge to the recruiting rule based on an argument that the regulation was invalid in all of its applications. Brentwood Acad.,
III.
For the foregoing reasons, we: (1) affirm those parts of the district court's decision finding for Brentwood on its First Amendment and procedural due process claims and granting injunctive relief on these claims; (2) reverse the district court's decision finding for Brentwood on its substantive due process claim; (3) reverse the district court's decision finding that Carter is not entitled to qualified immunity; (4) reverse the district court's order finding that the TSSAA is entitled to antitrust immunity; and (5) remand for further proceedings on Brentwood's antitrust claim.
Notes:
Notes
The Honorable Robert Holmes Bell, Chief United States District Judge for the Western District of Michigan, sitting by designation
Headmaster Brown later testified that those students who sign such contracts (and paid the accompanying $300 deposit), in his mind, were officially enrolled at Brentwood and committed to come. The TSSAA, however, contends that the term "enrolled" (as used in the recruiting rule) is defined in the TSSAA Bylaws, under Article II (Eligibility Rules), Section 1 (Academic Rules):
To be eligible to participate in athletic contests during any semester....
(b) Students shall be regularly enrolled, in regular attendance, and carrying at least five full courses. A student shall be considered as regularly enrolled after the student has attended for three days, has engaged in three or more days of football, girls volleyball, cross country, golf or girls soccer practice during the period on or after August 1, or has participated in аn athletic contest in any sport.
There was some testimony at trial indicating that a few students every year do not end up attending Brentwood even after signing the enrollment contracts.
To be clear, the alleged violation of the recruiting rule was theinvitation to attend football practice, not the practice itself. It is undisputed that in 1997, participation by incoming Brentwood students in spring football practice was permissible under TSSAA rules. The rule was subsequently changed to prohibit such participation.
Brentwood did not appeal the district court's conclusions regarding Brentwood's equal protection or state law claims. Nor did it appeal the district court's dismissal of Brentwood's First Amendment and substantive due process claims against Carter in his individual capacity
For the sake of convenience and clarity, we refer to the defendants collectively as "TSSAA" throughout this section of the opinion
It is interesting to note that the TSSAA, in its first appeal to this court, challenged the "analytical framework that the district court used" in its initial decisionBrentwood Acad.,
Edenfield and Thompson are commercial speech cases, but the test they apply, just like the test applicable here, asks the court to determine whether the asserted state interests are substantial. See Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n,
Mostly, however, Brentwood conflates the "substantial interest" prong of the intermediate scrutiny test with the "narrowly tailored" prong, conceding later in its brief that the "TSSAA has a substantial interest in preventing exploitation of students," defined as "a student...being threatened, coerced, or harassed." Brentwood's argument that there are "problems with this theory...as a justification for TSSAA's disciplinary action" against Brentwood is evaluated in the next section of this opinion, since this is an argument that the application of the rule was not "narrowly tailored" to further Brentwood's legitimate and substantial interests
Despite our conclusion that the district court correctly found that the TSSAA had established substantial state interests in keeping athletics subordinate to academics and preventing the exploitation of student athletes, the dissent devotes considerable attention to a discussion of the type of proof a defendant might have to present to support such interests. The two opinions do not differ on the ultimate point, that is, the TSSAA did have substantial state interests at stake. The true point of departure is whether the rule "as applied to Brentwood" is narrowly tailored to further those interestsSee Brentwood Academy,
The "two alleged recruiting rule violations" referred to here are: (1) the free game tickets and (2) the spring practice letters and followup callsSee Brentwood Acad.,
The disconnect between this court's previous opinion and the district court's opinions on this point is likely due to the fact that, judging from its brief, Brentwood has focused its First Amendment claim on the punishment for the letters and calls, recognizing, perhaps, that it is unclear whether the First Amendment is implicated by the provision of free game tickets. Regardless, we confine our "narrowly tailored" inquiry to the letters and calls, leaving the free tickets episode to be considered under substantive due process analysis.
Even though the district court found that fostering a level playing field was not a substantial state interest, it nonetheless included the interest in its "narrowly tailored" analysis
It is worth noting again that the district court's task was to consider the application of the recruiting rule specifically to Brentwood on these facts. The district court's opinion does not mean that application of the recruiting rule to other schools communicating in similar ways to students would be unconstitutional. For example, it is possible that letters and calls similar to the ones at issue here would be exploitative in a different context
That the rule was subsequently changed to prevent such participation in spring practice bolsters the conclusion that the TSSAA's punishment of Brentwood in this case was not narrowly tailored. Banning spring practice participation, rather than applying the recruiting rule punitively to Brentwood's invitation to participate in the approved activity, would have been a more narrowly tailored way to promote the TSSAA's substantial interestsSee Thompson,
Headmaster Brown testified:
[A]s far as enrollment, we had to deal with our kids to get them acclimated to the school before they came. It would be — there's no way that they could start with no contact from the school before. I mean that's part of what all schools do. I meаn they have got to get reading lists, got to know about the picnics, got to know about the options in the summer retreat, work options, and all of that so we have to communicate with them.
Admissions Director Brasher noted that admission is generally granted in November or February of the previous school year, and after a student is admitted and signs the enrollment contract, the student receives a packet of information, including a letter from the admission director, the student-parent agreement, and the handbook for Brentwood Academy with policies and procedures. Also, once an enrollment contract is signed, that student's family is put on the school's general mailing list, and they receive all the information that is sent to current students. Brasher provided more details:
We have a mailing that goes out usually about the end of May that will include reading list, letters from the English teachers, information about our summer session which includes summer school, computer camps, drama camps, athletic camp, driver's ed. We have arts in April, it's a big fine arts venue in April and we send them information on that.
Brasher also noted that there are some mailings that are targeted to particular groups of students, such as a letter about cheerleading tryouts that is sent only to girls.
This court's previous opinion supports this conclusion. In determining that the recruiting rule is content-neutral, rather than content-based, this court pointed out that the recruiting rule does not impose a "total ban . . . on communications between secondary schools and middle school athletes regarding high school athletics."Brentwood Acad.,
The dissenting opinion's approach to this aspect of the case departs from a record-based analysis of whether the application of the recruiting rulе to Brentwood was narrowly tailored to serve the TSSAA's substantial interests. In doing so, it neglects consideration of the evidentiary record, a process that an as-applied challenge necessarily entails, and substitutes theoretical analogies between recruiting rules and restrictions on adult-oriented businesses. While the dissent's approach might be appropriate in cases involving facial challenges to a regulation, such asRenton and Ward, on which the dissent heavily relies, it is inconsistent with the proper analysis for an as-applied challenge. See Taxpayers for Vincent,
The dissenting opinion's only arguable reference to the trial court record on the issue of whether application of the rule to Brentwood was narrowly tailored to serve the TSSAA's substantial interests is its suggestion that the rule permitted Brentwood to distribute its letters to private athletic leagues and other schools and permitted Brentwood coaching staff to refer potential students who contacted them to other Brentwood officials. The dissent deems these options alternative channels for communication. While these options are presumably permissible (but not mentioned in the evidence), they are hardly viable alternatives for achieving Brentwood's purpose and communicating the information contained in the letters to incoming students. The dissent's noting of these options is another way of saying that the recruiting rule did not prohibit Brentwood from advertising its sports and other offerings to the world at large through any available public medium, but that fact has little if anything to do with whether the recruiting rule as applied to Brentwood was narrowly tailored to serve the TSSAA's substantial interests.
Brentwood's initial complaint lumps together a number of justifications for its claim that TSSAA violated its substantive due process rights. For instance, Brentwood claims that the recruiting rule infringed on liberty interests of students and parents to choose their schools, the recruiting rule is too vague, and the rule is fundamentally unfair in that Brentwood was punished for actions of a person beyond its control. The third argument is better analyzed as a procedural due process claim and is consideredinfra. Cf. County of Sacramento v. Lewis,
The fundamental right to educate one's own children,see Pierce v. Soc'y of Sisters,
The district court stated that Brentwood was deprived of its property interests immediately upon issuance of the July 29, 1997, letter, simply because the letter itself said the penalties were effective immediatelySee Brentwood Acad.,
Even if the acts were "random and unauthorized," and theParratt rule did apply, the ultimate issue would be this same question: whether the procedure provided (the hearings in front of the Board of Control) was adequate. See Macene,
Carter's July 29, 1997, letter to Brown details six "concerns" and violations on which the penalties are based. Only the sixth concern, which obliquely refers to contacts "by persons not connected with Brentwood Academy," arguably has anything to do with King. The violation listed under concern six, however, gives no indication that the TSSAA seeks to assign any responsibility to Brentwood for any actions by King. At the first hearing on August 13, 1997, Brentwood submitted an affidavit from King denying the allegations detailed in the earlier exchange of correspondence between the TSSAA and Brentwood. Then, after the first hearing, Carter sent Brown a letter dated August 14, 1997, listing the violations found at the first hearing. None of these violations implicates King in any way
Reed's deposition testimony is a prior in-consistent statement given under oath and also amounts to an admission against interest on the part of the TSSAA. Fed.R.Evid. 801(d)(1) & (2)
The TSSAA complains that the district court "once again" ignored the contractual relationship between it and Brentwood in evaluating the procedural due process claim, but fails to articulate exactly how the contractual relationship lessens the TSSAA's obligation as a state actor to provide procedural due process
In its brief the TSSAA argues a number of issues relating to the antitrust claim. Before the district court, however, it raised only the antitrust immunity issue, and we will therefore not consider the other issues on appealSee Barner v. Pilkington N. Am., Inc.,
InMidcal Aluminum, the Court held that a California price-setting system for wine met the first but not the second prong of the test, because the state simply authorized the price setting and enforced the prices established by private parties.
A threshold question before reaching this second prong of the test is whether the second prong applies to the TSSAATown of Hallie stands for the proposition that the active state supervision requirement is not applicable in cases where the actor is a municipality, and the Court suggested in dicta in that case that the same should go for cases in which the actor is a "state agency." See
The dissent rests its differing result on our decision inConsolidated Television Cable Service, Inc. v. City of Frankfort,
In its brief, Brentwood argues that the district court's injunction should also be directed at Carter in his official capacity. It is unclear why Brentwood makes this argument or why this should be the case, as the injunction enjoins all of the penalties imposed by the TSSAA against Brentwood. The injunctive relief was thus complete
ROGERS, Circuit Judge, dissenting.
High school football is a game. Games have rules.
To have federal courts, under the guise of applying the enduring principles of the First Amendment, reverse the ordinary application of high school football recruiting rules—where the core values of the Amendment are not even remotely involved—unduly trivializes these constitutional principles. This is no more a case involving our nation's ideal of freedom of expression than a case involving a coach who is thrown out of a game for talking back to a referee. This is instead a case involving game participants who challenge the discretionary administration of participation rules. Of course, good lawyers can characterize almost any perceived injustice as a constitutional case (and maybe even an antitrust case to boot), but courts should be hesitant to go along.
The Supreme Court has properly instructed us in this case that the defendant is a state actor for constitutional purposes, and this court in its 2003 decision properly determined that Brentwood Academy did not contract away all of its constitutional rights by joining TSSAA. If, for instance, TSSAA discriminated on the basis of race or religion or the expression of political views, the earlier court holdings in this case would insure the availability of federal court relief. But here TSSAA is clearly doing nothing more than administering its game rules—the game being interschool high school football. Dissatisfaction with application of game rules does not become a First Amendment violation merely because the rule involves speech.
Recruiting and eligibility rules are of course a very real part of the game itself, protecting the student-athlete and the brand of competition agreed to. The game of football, like any game, has rules which the competitors accept as an inherent part of participation. In addition to the basics of the game, such as how many players may participate at one time and how many points are awarded for a touchdown, competitors agree on further rules governing competition more broadly, agreeing on rules that govern how teams are grouped into leagues, how the champion of the league is determined and who is eligible to participate in a game. Fierce competition among high schools for talented student athletes, and the demand for success from fans and alumni, bring the potential for excess. As a result, athletic leagues comprised of educational institutions, such as TSSAA, have rules governing both the recruitment of student-athletes and the eligibility of student-athletes to participate in athletic contests. Anti-recruiting rules may inhibit "speech," but so do the ordinary rules of a football game that allow players and coaches to be removed for disputing the propriety of a referee's call.
Accordingly, I dissent from those portions of the majority's decision upholding plaintiff's First Amendment claims. I also dissent from the finding of a due process violation and from the decision to reverse the district court's determination that there is no basis for antitrust liability in this case.1
I.
While the insubstantiality of plaintiff's First Amendment claim is clear, the complexities of modern First Amendment jurisprudence make it less clear precisely why the claim is not substantial. There are two parts to the answer. First, ordinary enforcement of game rules does not amount to an unconstitutional limit of free expression in part because participants agree to play in the games. Second, ordinary enforcement of game rules does not amount to an unconstitutional limit on free expression because rules (including rules limiting speech) are inherently necessary to ordered competition. Of course these two ideas substantially overlap, but they find expression in different strands of First Amendment law. Both strands reflect the underlying idea that rules have value for the sake of being rules, and only trench on First Amendment concerns when their relationship to the game is too attenuated. Enforcement of the recruitment rule in this case is clearly warranted because Brentwood agreed to general applicability of the rules (although not to rules that draw distinctions unrelated to the purpose for the rules, such as interpretations of the rules that discriminate, for example, on the basis of political party affiliation). Enforcement of the recruitment rule in this case is also clearly warranted because, in the context of athletic competition, the rule is sufficiently related to legitimate public interests and narrowly tailored. Under each of these arguments, and certainly under at least one of the two, there is no First Amendment violation in this case.
I recognize that the first argument is subject to the criticism that it ignores our earlier 2001 decision and renders the extensive district court proceedings on remand an exercise in futility. In addition, the second argument is subject to the criticism that it does not adequately defer to the factual findings of the district court. While I am sympathetic with the inclinations undergirding these arguments, I cannot in the end accept that they comрel us to affirm the finding that enforcement of an unexceptional athletic anti-recruiting rule violates the First Amendment.
A.
First of all, Brentwood agreed to comply with TSSAA anti-recruiting rules, and thus gave up its right to engage in some expressive activity otherwise protected by the First Amendment. That is not to say that it gave up all of its rights to engage in expressive activity vis-à-vis TSSAA. But it obviously gave up some. By comparison, a person by accepting employment by the government gives up some rights protected by the First Amendment (e.g., the right to read the newspaper all day long), but does not give up all First Amendment rights (e.g., the right to talk politics during a break).
Brentwood in this case gave up its right to engage in certain types of speech, and may not assert such a right now. See Leonard v. Clark,
1. Free Speech Rights May Be Given Up
Most individually held constitutional rights may be waived, if done knowingly, intelligently, and with sufficient awareness of relevant circumstances and likely consequences. See Brady v. United States,
The power to waive individually held constitutional rights extends to First Amendment speech-related protections. The Supreme Court has repeatedly held that contractual waivers of free speech protections may be judicially enforced. In Snepp v. United States, the Supreme Court held that the Central Intelligence Agency (CIA) was not barred by the First Amendment from enforcing an employment agreement that required CIA employees to get its permission before publishing writings about agency activities.
The Third, Fourth, and Ninth circuits have also honored contractual waivers of First Amendment rights contained in contracts with state actors. Erie Telecomms.,
While these cases demonstrate that constitutional rights can be bargained away, they do not begin to cover all the possibilities. Some constitutional rights are so obviously alienable that no one would challenge the idea. To become a prison guard, a person may give up the right to be out of the prison premises for eight hours a day. To become a judge, a person may give up the right to solicit charitable contributions. To become a flight attendant, a person may give up the right to refrain from speaking before the plane takes off. And so on. Again, this is not to say that such persons give up all free expression rights, but they certainly give up some.
2. Brentwood Gave Up its Right to Certain Speech
In this case Brentwood gave up some of its free speech rights when it signed a one-year contract agreeing to abide by TSSAA's game rules, including its anti-recruiting rules. Brentwood's promise is not materially different from the CIA's employment agreement or the speech restrictions on the Rust staff employees. In each of these situations, the promisors agreed not to speak in certain ways in return for something they desired.
Brentwood's waiver was doubtless knowing, voluntary, and intelligent. The anti-recruiting rule and supplemental materials explicitly forbade Coach Flatt from "contact[ing] a student or his or her parents prior to his enrollment in the school." Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n,
3. Brentwood's Waiver Has No Unconstitutional Conditions Doctrine Defect
Brentwood's waiver does not run afoul of the "unconstitutional conditions" doctrine because the anti-recruiting rules relate to participation in TSSAA athletics and Coach Flatt's recruiting letter and follow-up phone calls do not bear on matters of public concern.
"Under the well-settled doctrine of `unconstitutional conditions,' the government may not require a person to give up a constitutional right . . . in exchange for a discretiоnary benefit conferred by the government where the benefit sought has little or no relationship to the" right surrendered. Dolan v. City of Tigard,
In this case the unconstitutional conditions doctrine will invalidate Brentwood's waiver only if Brentwood's membership in TSSAA has "little or no relationship" to the free speech rights surrendered (i.e., to the anti-recruiting rules); or if, applying the Connick standard, Coach Flatt's recruiting speech bore on a matter of public concern.
The anti-recruiting rules relate to participation in TSSAA and limit no speech on any matter of public concern. By limiting Coach Flatt's right to recruit unenrolled middle-school students for the football team, the anti-recruiting rules regulate the formation of teams that compete in TSSAA. It is an off-the-field regulation thought to enhance the quality of on-the-field competition by promoting equity in the relative strength of teams. The anti-recruiting rules, therefore, have a clear relationship, not "little or no relationship," to participation in TSSAA. Obviously, there is no reason to think that Coach Flatt's recruiting letter or follow-up phone calls touch upon any matter of public concern under Connick. Consequently, there is no unconstitutional conditions doctrine defect in Brentwood's agreement to comply with recruitment rules.
There is no reason to limit the Connick no-public-concern analysis strictly to government employee cases. Connick is analogous because the restriction on Brentwood's recruiting speech emanates from the necessity of limiting game participants' speech as part of the competitor-referee relationship. Cf. Maj. Op. at 422 (observing that lawful restrictions on government employees' speech emanate from the necessity of limiting their speech as part of the employer-employee relationship). The operation of a sports league demands speech limits that are germane to the agreed-upon venture no less than does employment. To extend an earlier analogy, a government employee harms the employer-employee relationship when he exercises his First Amendment right to read the newspaper for his entire workday. Likewise, Coach Flatt harmed the competitor-referee relationship between Brentwood and TSSAA when he disobeyed anti-recruiting rules that others were presumably following.
Brentwood's promise to follow the anti-recruiting rules has no unconstitutional conditions doctrine defect because it has a relationship to Brentwood's participation in TSSAA and limits no speech of public concern. Brentwood's First Amendment сlaims should be dismissed.
4. Our 2001 Opinion Leaves Open the Possibility That Brentwood Gave Up Those Free Speech Rights That Might Interfere With TSSAA Game Rules
In my view, this court's 2001 opinion does not at all foreclose the foregoing argument. Compare Maj. Op. at 420; Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n,
By analogy, the staff personnel in Rust did not waive their right to sue about their employment conditions or free speech rights generally. Surely a court could have heard a political discrimination claim brought against the government funding authority by any such staff members. Yet the Court still held that the staff members, by accepting employment, waived First Amendment objections to Title X's abortion-speech restrictions. See Rust,
The 2001 opinion never addressed this narrower theory of waiver and thus does not foreclose any and all arguments based on waiver. Brentwood waived its right to have Coach Flatt contact as yet unenrolled students. Its First Amendment claim should be dismissed on that ground.
B.
While our previous decision did not foreclose the above argument, it did direct the lower court to apply the test for content-neutral speech restrictions, and I certainly respect the majority's reluctance to disregard the district court's extensive factual inquiry. In my view, however, none of the district court's factual findings are sufficient to warrant the legal conclusion that Brentwood's First Amendment rights were violated by TSSAA's enforcement of the anti-recruiting rules. The very nature of game rules requires that they be somewhat arbitrary. If upon remand the district court had found a restriction on speech of a public concern, or a restriction on speech unrelated to the game of football, our review of the district court's conclusion might support affirmance. Nothing like that was found in this case.
In this case, TSSAA's game-related legitimate interests in subordinating athletics to academics, preventing the exploitation of middle school student-athletes, and furthering competitive equality of teams, together fully justify the enforcement of the anti-recruiting rules against Brentwood. The anti-recruiting rules are reasonable time, place or manner restrictions on speech that are narrowly tailored to serve a significant government interest and leave open alternative channels of communication. See Ward v. Rock Against Racism,
The majority relies extensively on the required "roadmap" of our previous opinion in this case, but following that roadmap leads directly to the conclusion that there is no First Amendment violation. We held, in approximately one page of analysis, that the anti-recruiting rules amount to a content-neutral regulation subject to intermediate scrutiny.
Repeatedly cited in those two pages are the adult entertainment ordinance case of City of Renton v. Playtime Theatres, Inc.,
The zoning ordinance at issue in Renton prohibited the location of adult theatres within 1000 feet of any residential zone, single- or multiple-family dwelling, church, park, or school.
Similar analysis compels a rejection of Brentwood's First Amendment claim. In First Amendment jargon, TSSAA is attempting to regulate the negative secondary effects of Brentwood's speech: the exploitation of middle school athletes, the subordination of academics to athletics, and unevenly matched teams. The district court recognized the validity of these interests.
It is not right to say that because the parents in this case were happy to receive the letter and that there was no exploitation of students or subordination of academics in this particular case, TSSAA has relied on "shoddy dаta or reasoning" that does not "fairly support [its] rationale" for the enforcement of the anti-recruiting rules against Brentwood. Compare Maj. Op. at 430 (quoting Alameda Books,
Moreover, the anti-recruiting rule as applied to Brentwood is narrowly tailored and leaves Brentwood alternative channels to communicate its message. Communications not for athletic purposes are of course permitted. Moreover, had the spring practice letter been distributed to representatives of private sports leagues near Brentwood, school administrators of other schools with a request for distribution, or students who on their own had contacted appropriate Brentwood officials, there would be no violation of the anti-recruiting rules.3
The as-applied nature of the district court's inquiry does not require a different conclusion. A rule that precludes coach contact with not-yet-enrolled incoming students cannot be constitutional on its face if the underlying purposes of the rule have to be demonstrated every time the rule is applied in order to survive an as-applied challenge. Otherwise there would be no basis for having the rule. Just as the City of Renton does not have to show ill-effects from each proposed adult theatre placement in order to enforce its rule, and just as New York in the Ward case does not have to show ill effects each time it requires a band to use city provided sound technicians, TSSAA does not have to show ill effects each time it punishes coach contact with not-yet-enrolled students.
This conclusion is further supported by the traditional deference given to educators in carrying out policies that affect First Amendment rights. This dispute arises in the context of high school education, and the courts have consistently given great deference to educators' decisions that have an impact on First Amendment rights. The Supreme Court has recognized the "important, delicate, and highly discretionary functions" that the educational system undertakes, and emphasized a consistent concern for "the need [to] affirm[ ] the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools." Tinker v. Des Moines Indep. Cmty. Sch. Dist.,
The Supreme Court and our court have both recognized that the federal courts are ill-equipped to regulate high school education. "It long has been the case that constitutional claims generally receive less rigorous review in the secondary and middle school setting than they do in other settings." Id. Federal courts are even less well-equipped to regulate high school athletics.
Finally, I note the "Catch-22" implication of the argument that the particular application of the anti-recruiting rules violated the First Amendment in this case. By prohibiting all communication between coaches and unenrolled students, the regulation is more rigorously content neutral. The more the prohibition is "tailored," for instance by permitting some types of communication but not others, the less content nеutral it becomes. An attack on the particular application of the no-communication rule thus gives TSSAA the Hobson's choice of (1) making the prohibition more content specific, thereby coming closer to treading on First Amendment values, or (2) discarding the rule—not required if the rule is facially valid.
II.
Brentwood's procedural due process rights were not violated because the presentation of ex parte evidence, if any, did not affect TSSAA's final decision.
Based on TSSAA's written decision and the testimony at trial, the district court clearly erred in determining that the TSSAA Board of Control heard ex parte evidence related to Bart King during its deliberations following Brentwood's final hearing, and that the allegations regarding Mr. King were a basis for the penalty imposed. The only support for the district court's finding that the King allegations were a basis for Brentwood's punishment are two statements by TSSAA Board of Control President Mike Reed. In his deposition, Mr. Reed stated that the King allegation was one of the reasons Brentwood was found to have violated the anti-recruiting rules. At trial, Mr. Reed disclaimed his deposition testimony, stating that Brentwood's final penalty was due to Coach Flatt's letter rather than Mr. King's activities. He went on to state that the Bart King allegations were a "factor" in "what was going on and so forth," interrupting Brentwood's counsel before the follow up question was finished.
With all due respect to the district court's better position to judge the credibility and demeanor of witnesses, the district court clearly erred in determining that Mr. Reed's single statement at deposition was sufficient to show that ex parte evidence was presented to the Board of Control and formed a basis for the penalty imposed on Brentwood. Michael Hammond and Ronnie Carter, in addition to Mr. Reed, testified that the King allegations were not a basis for the final penalty. Mr. Hammond further indicated that the discussion of the King allegations during the Board of Control's private deliberations was superficial. Gene Meness and Bernard Childress, the TSSAA investigators who looked into the King allegations, could not recall answering any question from the Board of Control related to Mr. King. Indeed, it is unclear what evidence they could have presented given that they did not interview Mr. King and the investigation consisted of a series of letters between Brentwood's headmaster and TSSAA. In short, other than a single statement in a lengthy deposition, there is no evidence that TSSAA based its final penalty on ex parte evidence related to Bart King and the district court clearly erred in resting the entire weight of its finding that Brentwood's procedural due process rights were violated on so slender an evidentiary reed.
III.
Finally, the fact that TSSAA has been granted state authority to regulate athletic competition requires us to affirm the district court's conclusion that state antitrust immunity applies in this case. TSSAA is entitled to state antitrust immunity because, as an agent of the Tennessee Board of Education (the Board), TSSAA partakes of the Board's state authorization to displace competition. TSSAA has done so using foreseeable means pursuant to clearly articulated Tennessee policy. As a result, TSSAA satisfies the applicable test for state antitrust immunity designed for municipalities and state political subdivisions. I would therefore affirm the decision of the district court granting summary judgment in favor of the TSSAA on Brentwood's antitrust claims based on state antitrust immunity.
A. TSSAA is the Tennessee State Board of Education's Agent
TSSAA is an agent of the Board and, as such, receives state antitrust immunity if it satisfies the test for municipalities or state political subdivisions. Our ruling in Consolidated Television Cable Service, Inc. v. City of Frankfort indicates that TSSAA is an agent of the Board.
More specifically, the City had "ultimate control" over the corporation because (1) it was a municipal corporation; (2) the corporation's form and method had been dictated by the City; (3) the corporation existed at the City's pleasure; (4) and the City appointed one half of the corporation's board of directors. See Consolidated,
Analogously, the Board exercises "ultimate control" over TSSAA. The Board enjoys ultimate control over TSSAA because the Board delegated to TSSAA all of TSSAA's regulatory powers and therefore can revoke its authority at any time. See Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n,
B. The State Antitrust Immunity Test for Municipalities and State Political Subdivisions Applies to TSSAA's Allegedly Anticompetitive Conduct
Because TSSAA is the Board's agent, and the Board is a state agency, TSSAA need only satisfy the state antitrust immunity test for municipalities or state political subdivisions, not the more stringent test for private actors. See Consolidated,
C. Tennessee's Policy to Displace Competition in Interscholastic Athletics is Evident in Its Broad Grant of Authority to Regulate Interscholastic Athletics
Tennessee's policy to displace competition in interscholastic sports may be inferred from its grant of authority to the Board. As the Supreme Court has noted, Tennessee law vests in the Board wide-ranging authority to regulate primary and secondary education. See Brentwood Acad.,
In Omni, the Supreme Court held that state antitrust immunity applied to a city that had used its state-granted zoning authority to restrict billboard construction. See id. at 368-79,
In this case, the delegation to TSSAA of comprehensive power to regulate interscholastic athletics is the equivalent of the city's grant of zoning authority in Omni. Just as the exercise of zoning authority in Omni stopped a company from competing in the billboard construction market, TSSAA's anti-recruiting rules restrict schools' efforts to build their best teams by wooing talented players with scholarships or perquisites. In a broader sense, also, TSSAA's potential efforts to determine the venues of games, what teams will face each other, the grouping of schools into divisions, the dates of the athletic seasons or pre-seasons, and any number of other restrictions run the risk of "preventing normal acts of competition" in a manner analogous to the zoning authority in Omni. Such regulations are a "foreseeable result" of Tennessee's decision to authorize the statewide regulation of interscholastic sports.
The Supreme Court has impliedly acknowledged the inherent need for rules that "prevent[ ] normal acts of competition" in the football context. The Court has written regarding the National Collegiate Athletic Association (NCAA):
What the NCAA and its member institutions market in this case is competition itself—contests between competing institutions. Of course, this would be completely ineffective if there were no rules on which the competitors agreed to create and define the competition to be marketed. A myriad of rules affecting such matters as the size of the field, the number of players on a team, and the extent to which physical violence is to be encouraged or proscribed, all must be agreed upon, and all restrain the manner in which institutions compete. Moreover, the NCAA seeks to market a particular brand of football—college football.
NCAA v. Bd. of Regents of the Univ. of Okla.,
Notes:
I concur in Part II.C. of the majority opinion rejecting Brentwood's substantive due process claim
The majority makes the remarkable observation that TSSAA provided no "evidence to support the notion that ensuring that high schools compete in interscholastic sports in an equitable manner is a substantial state interest," and no evidence "explaining why competitive equity is an important value." Maj. Op. at 427. Presumably the City of Renton need not provide evidence for the obvious proposition that crime increases are against the public interest, and New York in theWard case need not provide evidence that appropriate modulation of band concerts is in the public interest. Similarly, it can hardly be argued that TSSAA needs to provide evidence for the obvious proposition that more evenly balanced high school football matches are in the public interest.
The majority opinion also discounts the interpretive commentary accompanying the anti-recruiting rules as non-binding to find that the anti-recruiting rules are not narrowly tailored and burden substantially more speech than necessary. Maj. Op. at 429. Thus, the majority avoids the fact that Brentwood was punished for behavior specifically cited as examples of conduct that would violate the anti-recruiting rules. The commentary to the anti-recruiting rules is non-binding only to the extent that TSSAA has a certain amount of discretion in enforcing the rule, and the examples cited in the interpretive commentary are a non-exclusive list. The discretion vested in TSSAA under the anti-recruiting rules is not so broad that the anti-recruiting rules, despite content neutrality, become a de facto prior restraint on speechSee City of Lakewood v. Plain Dealer Publ'g Co.,