Supreme Court to Revisit High School Recruiting Case

Despite its enrollment -- fewer than 800 students in all and 450 in grades 9-12 -- Brentwood is a Goliath in Tennessee high school sports. As even TSSAA lawyer Richard Colbert says, it wasn't long after BA's establishment in 1969 that "it was beating the brains out" of the big public high schools.

Carlton Flatt, the winningest high school football coach in state history, is retiring this year after winning the school's 10th state championship. The Eagles basically own boys track and field. They have won state championships in four girls sports and racked up four straight boys basketball championships before the streak ended this year.

According to the school Web site: "We long to reach students and touch lives, to God's glory, through athletics."

But not everyone touched by Brentwood's success has been gratified by the experience. There were loud whispers -- unsubstantiated and denied by the school -- that Brentwood was recruiting athletes.

Things came to a head after the Eagles whipped much larger Riverdale High of Murfreesboro in the 1995 state football championship. And eventually, the public school principals and coaches who dominate the TSSAA pushed the association to create a separate division for private schools that offered need-based financial aid (Brentwood's tuition next year will be just under $15,000).

And soon after came allegations that Brentwood had violated the TSSAA's recruiting rule, which prohibits "the use of undue influence on a student . . . 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."

All state high school athletic associations have a similar rule, which they contend is the only thing standing in the way of visiting the scandals that have plagued big-time college athletics on 13-year-olds with a talent for playing ball.

The TSSAA found that Flatt's letter to the eighth-graders -- informing them of the dates of spring practice, encouraging them to attend, signed "Your Coach" -- constituted undue influence.

Brentwood lawyer Lee Barfield said the letter had nothing to do with "recruiting." All 12 boys who received it had already committed to come to the school; their parents had signed contracts and put down deposits. The school maintained it had a right to tell incoming students about opportunities available to them, be they academic or athletic.

The TSSAA ruled that the students must be enrolled before coaches can have contact. It imposed the $3,000 fine and banned Brentwood from the playoffs for two years (a separate allegation about a Brentwood booster actively recruiting middle-schoolers does not figure into the First Amendment arguments the justices will hear).

A Free-Speech Defense

Brentwood raised its free-speech defense for the first time in federal court. But to prove a First Amendment violation, one must prove that the group imposing the speech restrictions is either a governmental body or a representative of the government. In legal terms, a "state actor."

The TSSAA said that it is a private organization able to set whatever rules it wanted, and that schools decide annually whether to accept the terms of membership.