A recent decision handed down by the United States Supreme Court limits high school coaches from recruiting middle school aged children to play sports in varsity athletics. Tennessee Secondary School Athletic Association v. Brentwood Academy holds that direct solicitation and recruitment of middle-school children to participate in varsity athletics by high school coaches violates the bylaws of the State of Tennessee Athletic Association.
In Tennessee Secondary School, Brentwood Academy’s football coach sent a letter to a group of eighth-grade boys inviting them to attend spring practice sessions with the varsity team. The letter explained that getting involved as soon as possible would be to their advantage of possibly making the varsity team in the future. While the boys who received the letter had signed a contract signaling their intent to attend Brentwood, none had enrolled in the meaning of TSSAA rules.
TSSAA accordingly sanctioned Brentwood for violating the anti-recruiting rule on pre-enrollment solicitation. Brentwood appealed the ruling and, after TSSAA review, brought an action against TSSAA and its executive director in federal court under 42 U.S.C. § 1983 claiming that enforcement of the rule was state action in violation of the First and Fourteenth Amendments and that TSSAA’s adjudication of its appeal had deprived the school of due process of law.
The Tennessee District Court granted relief to Brentwood but was later reversed by the Sixth Circuit Court of Appeals, holding that TSSAA was a private voluntary association that did not act under color of state law. The case was granted certiorari to the United States Supreme Court and reversed holding that the District Court was correct on the threshold issue in the case.
On remand, the Sixth Circuit sent the case back to the District, which again ruled in favor of Brentwood. TSSAA appealed the ruling of the District Court, but the Sixth Circuit affirmed. On appeal, the Sixth Circuit majority held that the anti-recruiting rule is a content-based regulation of speech that is not narrowly tailored to serve its permissible purposes. Once again, this matter was granted certiorari by the Supreme Court, which again reversed the holding of the Sixth Circuit Court of Appeals.
In reversing the Sixth Circuit, the majority looked to the case of Ohralik v. Ohio State Bar Assn., 436 U.S. 447 (1978), for guidance on determining whether TSSAA’s regulations violated the First Amendment. In Ohralik, the court held that in-person solicitation by a lawyer of remunerative employment is a business transaction in which speech is an essential but “subordinate” component, the prohibition of which raised few First Amendment problems. Id. at 457.
The Ohralik court reasoned that direct solicitation may exert pressure and often demands an immediate response, without providing an opportunity for comparison or reflection. For those reasons, the Court believed that in-person solicitation actually may disserve the individual and societal interest in facilitating informed and reliable decision making.
In applying the holding of Ohralik to the present case, the Court stated that the dangers of undue influence and overreaching that exist when a lawyer chases an ambulance are also present when a high school coach contacts an eight grader. The failure to accept an invitation from a coach will hurt the student’s chances of to play high school sports and diminish the odds that he continues on to college. The Court reasoned that playing on the hopes and fears of young children could well exert the kind of undue pressure that disserves the individual and societal interest in making an informed and reliable decision about one’s future.
The Court went on further to hold that Brentwood made a voluntary decision to join the TSSAA and was bound to abide by its anti-recruiting rules. The Court looked to the holding in Pickering v. Board of Education of Township High School Dist. 205, Will Cty., 391 U.S. 563 (1968), finding that just as the government’s interest in running an effective workplace in some circumstances outweigh employee speech rights, so too can an athletic league’s interest in enforcing its rules sometime warrant curtailing the speech of its voluntary participants. The Court reasoned that TSSAA’s common-sense conclusion that hard-sell tactics directed at middle-school students could lead to exploitation, distort competition between high school teams, and foster an environment in which athletics are prized more highly than academics.
The effect of the Supreme Court’s decision will place high school athletic administrations and coaches on notice that direct solicitation of young middle school children to play varsity sports may be in violation of their conferences rules and bylaws. As a result, just as in the Tennessee Secondary School case, such violations may result in placing high school teams on probation for several years and imposing fines on the athletic department. More broadly, the decision is one of a number of cases from the recent Supreme Court term signaling a shift in the Court to refine and limit the stretch of Federal civil rights claims to workplace situations.
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Brian Coffman, an associate in our Chicago office, concentrates his practice in vehicle and premises liability litigation. Brian has tried several personal injury lawsuits, including obtaining a not guilty verdict for his client in his first jury trial. Brian has also been successful in achieving settlement of several lawsuits including complex tort litigation and has handled a variety of coverage issues.
If you have any questions regarding this article, please feel free to contact Brian via 312-540-7620, or bcoffman@querrey.com.
