Public Schools consider boycott of private schools

Public high schools recently were knocked to the canvas in their ongoing sports dispute with private schools, but one leading advocate for public schools said not to count them out yet.

Somerset Superintendent Wilson Sears sent an email last week to every superintendent in the state outlining five possible reactions – including a boycott of private schools.

Sears, who has been on the frontline for the public schools in this nearly three-year debate, said it was "too early to talk about" the next step. He said that public schools still feel that private schools have an unfair athletic advantage and that his group doesn’t plan to walk away without a fight."We have heard from a whole lot of people," Sears said. "If anybody feels like this has gone away they are mistaken. It’s not going to go away."We’re not inclined to give it up for our kids.

There will be some strategy sessions that will happen among public school leaders. It’s not over."The final — and most controversial — suggestion in the email was for public schools to band together and refuse to play private schools during the regular season."It would take a huge buy-in for that to work, and we don’t know if that’s possible," Sears said. "Everyone hopes it doesn’t come to that. But I do think if the guys that voted on this don’t go back and reconsider it — and I have no reason to believe they would – but if they don’t reconsider it and no discussion...

"Do people really expect the public school people across the state – which is 90 percent of the population – to tuck our tails and say we lost?"...

This from the Courier-Journal.

Athletic group's attempt to enforce its no-recruiting rule did not violate Academy's First Amendment rights

The U S Supreme Court held in Tennessee Secondary School Athletic Association v. Brentwood Academy that the TSSAA's attempt to enforce its no-recruiting rule did not violate Brentwood Academy's First Amendment rights.

The TSSAA fined the school and suspended it for four years after a Brentwood football coach sent a letter inviting 12 eighth-graders to spring training. The students had already signed agreements to attend the school in the fall.

In 2001, the Supreme Court decided the TSSAA was a state actor and could be be sued for alleged First Amendment violations.

On remand, the Sixth Circuit ruled on the merits in favor of the school.

The Supreme Court reversed this decision Thursday, holding that "an athletic league's interest in enforcing its rules sometimes warrant curtailing the speech of its voluntary participants." The Court also determined that the TSSAA held a fair hearing in the case and did not violate Brentwood's due process rights.

Read the Court's opinion per Justice Stevens, along with a concurrence from Justice Kennedy and a second concurrence from Justice Thomas.

Oral Arguments courtesy of Jurist.
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Nina Totenberg story from NPR (audio).
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This background from Slate:

Brentwood Academy is a private Christian high school in Tennessee, with a long and noble tradition of kicking butt and taking names out on the football field.

Its shorter and less noble tradition of violating the Tennessee Secondary School Athletic Association's recruiting rules in order to do so dates back only as far as 1997. That year, the TSSAA determined that Brentwood's football coach had sent recruiting letters to promising eighth-graders and offered free game tickets to some others.

The TSSAA's "recruiting rule" prohibits the use of "undue influence ... to secure or retain a student for athletic purposes." As a result of its violation, Brentwood was barred from TSSAA tournaments for two years, placed on probation for four years, and fined $3,000.

But that is not what the argument in Brentwood Academy v. TSSAA is about.

Brentwood filed suit in 1997, claiming that, among other things, the TSSAA's recruiting rules violated their First Amendment speech rights. And because a day without a federal constitutional free speech lawsuit is evidently like a day without sunshine in Tennessee, the case ended up in federal district court in a squabble over Brentwood's right to "speak" to potential ninth-graders.

But that's not what Brentwood is about, either.

As lawyer-lings around the land are learning this week in their first-year constitutional law classes, there can be no constitutional claim unless the party encroaching upon your rights is a state actor. Knowing that fact alone got me a B+ in Con Law. It can do the same for you. So, long before the courts can tackle the question of what weaselly things the Brentwood football coach did or did not do, and long before they can scrimmage over whether the TSSAA's recruiting rules violate the First Amendment, they must resolve this coin toss over whether the TSSAA is a "state actor" or private entity.

The Tennessee district court found that the TSSAA was a state actor. The 6th Circuit Court of Appeals, looking at the same case law and precedents, held it was not. Thus does a trivial dispute over the weaselly conduct of a lone football coach wind its way up the judicial food chain to become a seminal case on whether state athletic associations may be subject to federal constitutional constraints.