Supreme Court to Revisit High School Recruiting Case

Brentwood Academy Headmaster Curtis G. Masters, left, and ex-football coach Carlton Flatt. The school is in a legal battle with Tennessee's athletic association that is finding its way to the Supreme Court for the second time. The 10-year case began as a recruiting-violation fine. (By Donn Jones)

Brentwood argued that state education officials over the years had turned over control of high school athletics to the organization, and that it was in effect the only game in town. A district judge agreed with Brentwood, but the U.S. Court of Appeals for the 6th Circuit in Cincinnati reversed.

At the Supreme Court, the case took on more weight than football. The Clinton administration and women's groups sided with Brentwood, worried that finding the athletic association was a private entity would mean it did not have to abide by federal equal-protection laws. Justice Ruth Bader Ginsburg asked directly during oral arguments whether such a finding would mean the TSSAA could exclude girls from varsity sports.

She and Justice Sandra Day O'Connor joined the majority in a 5 to 4 ruling that said the TSSA was a state actor because of "pervasive entwinement of public institutions and public officials in its composition and workings."

That sent the case back down the ladder, where Brentwood won again at the district court level, and this time also at the 6th Circuit, which noted that all the boys contacted had planned on attending the school.

The TSSAA decided to give it one more shot. Its lawyer, Maureen E. Mahoney, argues in her brief that Brentwood waived its First Amendment rights by agreeing to join the TSSAA. Now, it claims "a constitutional right to compete in the TSSAA's tournaments without following the rules that set the terms of competition, and victory, for others," she wrote.

This time around, the federal government also is opposing Brentwood, noting that it is allowed to place some restrictions on speech on its employees or when it contracts with a group.

Mahoney also is asking the court to take the unusual step of reconsidering its decision in the first Brentwood case decided just six years ago. Since then, Justice Samuel A. Alito Jr. has replaced O'Connor, who gave the court majority its crucial fifth vote.

So the case marches on. Both sides seem a little embarrassed, but immovable.

"The fact is, it's going to change high school athletics" if the TSSAA loses, executive director Carter says, either by opening the doors to recruiting or by forcing athletic associations to exclude private schools.

"We have always been in favor of recruiting rules," counters Brentwood headmaster Masters, but not ones that restrict the school's ability to communicate with incoming students.

The cost of the lawsuits, he says, "is way out of proportion if you're only talking about the championships and the trophies. But it isn't out of proportion to the question of the integrity of the school."