Supreme Court to Revisit High School Recruiting Case

By Robert Barnes
Washington Post Staff Writer
Wednesday, April 18, 2007

BRENTWOOD, Tenn. -- High school football is serious business in Tennessee, and especially at Brentwood Academy, one of the winningest schools in the state.

So maybe it should come as no surprise that a legal tussle between Brentwood and the Tennessee Secondary School Athletic Association has stretched into a 10-year court battle that will go to the Supreme Court Wednesday for the second time.

The association says it is about keeping high school football pure. Brentwood is alleging violation of free speech.

What started as a $3,000 fine for a recruiting violation -- the school's legendary coach sent a letter to some eighth-graders inviting them to spring practice -- has cost the two sides an estimated $5 million in legal fees. Besides its two trips to the Supreme Court, the case has drawn the attention of a federal judge (twice), a federal appeals court (three times), and the Clinton and Bush administrations.

And while using the First Amendment to fend off a football recruiting charge seems novel, the school is on one of its enviable winning streaks. In six stops on the journey through the federal judiciary system, the score stands:

Brentwood Eagles 5, T-Double-S-Double-A 1.

TSSAA v. Brentwood Academy is one of those cases on the court's docket that illustrates how a small, seemingly inconsequential event can burst into a sprawling epic almost unrecognizable even to its participants.

Brentwood Headmaster Curtis G. Masters remembers being told when he took the job in 2000 that the school had a case that might, but probably would not, make it to the Supreme Court.

"The part I can't get over," said Ronnie Carter, executive director of the TSSAA, "is that we had a 10-day trial in federal district court about high school football."

A Goliath in High School Sports

Brentwood Academy's low-slung campus of gleaming buildings sits off Granny White Pike, which once might have been as homey as its name but now is lined with gigantic mansions whose long driveways end in four-car garages. Former farmland surrounding the Nashville suburb sprouts Land Rover dealerships and trendy Mexican cantinas.

The nondenominational Christian prep school's recent $10 million expansion produced a state-of-the-art theater and sumptuous space for choral and band practice (this being Nashville, the percussion instructor is the drummer for the country group Sawyer Brown).

There is a 10,000-square-foot weight room, with its own track. A Bible verse from Philippians counsels those who enter -- "I can do all things through Christ which strengtheneth me" -- and the stuffed trophy case across the hall testifies to BA's outsized athletic success.

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.

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."