Supremes Wrestling With Future of Student Sports

Updated: April 19, 2007



Everyone is watching

everyone who cares

especially the NCAA

schools everywhere

A rather obscure case now before the Supreme Court (again) affectionately or not around DC and the corridors of power known by their shorthand ” The Supremes ” never ever confused with the “original” Supremes – actually not the original – easily differentiated from the other by Color and Gender.

Before the DC Supremes one Case just won’t go away because it is such a closely fought contest and the implications of its ultimate resolution may be profound. That Decision becoming the very foundation on which student athlete cases especially NCAA colleges might hinge for decades to come.

Here is the Deal

This is the rare case that was supposedly decided by the Supreme Court that the Court has allowed to be argued before them again. Arguments took place again Wednesday. Why this unusual step. Because the Supreme Court is now second guessing itself and what their Decision will mean. Who will really win and lose as a Result. And who do they REALLY want to win and why.

Sounds complicated

it is in the Way only

Court cases can be

The fact that the case involves a relatively obscure high school at least outside of Tennessee where Brentwood Academy teams are perennial State Champs, and in fact involves grammar school students makes it more intriguing.

Ten long years ago Brentwood was fined $3000 by the Tennessee State Schools Athletic Association because the school’s football coach sent a form letter to a group of 8th graders inviting them to spring training back in 1997.

The state athletic association to which Brentwood belongs decided that was a violation of its by-laws about recruiting students. That Brentwood was notorious throughout Tennessee for attracting so many of the best young athletes did not add to their opinion among most other high schools in the state.

Brentwood decided to Fight

the fine in Federal Court arguing

their First Amendment Rights

were being Violated

Brentwood Academy lawyers went into Federal Court in Tennessee arguing that their right to speak to potential students was covered by free speech in the U.S. Constitution which supersede the regulations of any organization they might belong in this case TSSAA. Because they argued the TSSAA is a government like body under the meaning of law.

TSSAA’s lawyers countered that the school and the association’s rules are not covered by First Amendment issues because as a “private” organization they are not required to practice free speech. And indeed the Courts have long ruled private organizations are not subject to such Constitutional protections.

Of course Brentwood attorneys countered yes Brentwood is protected because this Tennessee athletic association to which Brentwood belongs is in fact a gov’t like organization as defined by the Constitution and the Courts.

Back and forth

Back and forth

Back and forth

Until the Supreme Court originally ruled 6 years ago in one of the Courts many 5-4 Decisions that the Tennessee association was a “state actor” under the law due to “pervasive entwinement of public institutions and public officials in its composition and workings.”


Brentwood Academy is protected

by Free Speech in the Constitution from

being restrained from communicating

with potential student athletes

no matter what the by-laws

of the TSSAA may state

The reason so many parties across the country were interested in this particular case is because if the state’s association was ruled a private group under the law not only they but the same definition would be applied to many school related governing groups which would mean as private entities they are NOT subject to Federal equal protection and other laws that apply to public institutions such as Title IX which has meant so much for women’s sports.

But the elephant in this room

is potentially far far larger

if this ruling stands and

becomes codified

in Law across

the Land

Hiding in clear sight is the NCAA which acts very much like a private association NOT subject to various Federal laws, that allows it to operate with impunity regarding college sports and student athletes. Read BLACK student athletes here in the Box.

While the Courts have always ruled in favor of the NCAA whenever they are challenged as “restraining trade” or restricting “free speech” the Brentwood Decision could become the basis of law suits contending that just as the Supreme Court ruled the Tennessee State Student Athletic Association is a “public actor” subject to Constitutional and Federal law why shouldn’t the NCAA be treated exactly the same by the Courts.

That is the unstated Dilemma

that has kept this Case alive

with huge sums spend

on legal fees

Why the Tennessee association even after losing in the Supreme Court decided to plunge back into District Federal Court with a “new” Argument. Even though the actual ruling had virtually no impact on Brentwood or high school sports in Tennessee. But the TSSAA soldiered on with their NEW Argument back in the Lower Courts. Keeping the original Supreme Court Decision in legal “limbo.” Now arguing Brentwood Academy VOLUNTARILY surrendered its First Amendment Rights by agreeing to join the TSSAA. Which they absolutely had to do if they were going to have a viable sports program in Tennessee.

How ridiculous how frivolous

to argue that one unwittingly gives

up Constitutional protections by

joining a gov’t body that violates

their own requirement to uphold

the First Amendment as a

gov’t like agency


Something has changed over the last 6 years since the earlier Supreme Court Decision. Rock Solid CONSERVATIVE Samuel Alito has replaced Sandra Day O’Connor who voted for Free Speech and ….

….. the Bush Administration has replaced the Clinton Administration and the Feds have gone from supporting Brentwood to siding with the Tennessee State Students Athletic Association. And we all know what that means a NEW 5-4 Decision going the Opposite Way !

Upholding “conservative” (sic) values

and protecting most of all

“college sports” and

the NCAA

Gee isn’t it great we live

in a country where the Courts

are not ruled by Power & Politics

the NEW ruling isn’t expected until

June but please don’t hold your breath

unless you want to asphyxiate yourself

Whenever you want to reach us with comments or better yet an idea for a topic for the Box …….