No. 99-901
In the Supreme Court of the United States
BRENTWOOD ACADEMY, PETITIONER
v.
TENNESSEE SECONDARY SCHOOL
ATHLETIC ASSOCIATION, ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONER
SETH P. WAXMAN
Solicitor General
Counsel of Record
BILL LANN LEE
Acting Assistant Attorney
General
BARBARA D. UNDERWOOD
Deputy Solicitor General
IRVING L. GORNSTEIN
Assistant to the Solicitor
General
DENNIS J. DIMSEY
GREGORY B. FRIEL
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Whether an athletic association's regulation of interscholastic athletic
competition constitutes state action under the Fourteenth Amendment and
activity under color of state law for purposes of 42 U.S.C. 1983 (1994 &
Supp. III 1997), when the association is controlled by representatives of
public schools located in the same State.
In the Supreme Court of the United States
No. 99-901
BRENTWOOD ACADEMY, PETITIONER
v.
TENNESSEE SECONDARY SCHOOL
ATHLETIC ASSOCIATION, ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONER
INTEREST OF THE UNITED STATES
The question presented in this case is whether an athletic association's
regulation of interscholastic athletic competition qualifies as state action
under the Fourteenth Amendment and as activity under color of state law
for purposes of 42 U.S.C. 1983 (1994 & Supp. III 1997) when the association
is controlled by representatives of public schools located in the same State.
The United States has participated as amicus curiae in many of this Court's
state action cases, see, e.g., American Mfrs. Mutual Ins. Co. v. Sullivan,
526 U.S. 40 (1999); Georgia v. McCollum, 505 U.S. 42 (1992); Polk County
v. Dodson, 454 U.S. 312 (1981), and it has a substantial interest in the
state action question presented here.
First, the Attorney General has authority under 42 U.S.C. 2000h-2 to intervene
in any action alleging an equal protection violation based on race, color,
religion, sex, or national origin. That statute gives the United States
the authority to intervene in cases alleging that athletic associations
have committed equal protection violations based on race or sex. The Court's
decision in this case will affect that enforcement responsibility.
The United States also has authority to bring criminal prosecutions under
18 U.S.C. 242 (1994 & Supp. IV 1998), which makes it a criminal offense
to act willfully and under color of state law to deprive a person of rights
protected by the Constitution or laws of the United States. Because the
Court has interpreted the phrase "under color of" law to have
the same meaning under Section 242 as it does under Section 1983, Lugar
v. Edmondson Oil Co., 457 U.S. 922, 928 n.9 (1982), the decision in this
case could affect that responsibility.
Finally, the United States has an interest in ensuring that it can provide
certain forms of support to private entities without subjecting them to
constitutional constraints. The decision in this case could affect that
interest.
STATEMENT
1. The Tennessee Secondary School Athletic Association (respondent) is a
non-profit Tennessee corporation that regulates interscholastic athletic
competition among public and private high schools in Tennessee. Pet. App.
4B-5B, 31B. Respondent is composed of 290 public schools and 55 private
schools. Id. at 4B. Public high schools constitute approximately 84% of
respondent's voting membership. Id. at 4B-5B. Respondent is the only interscholastic
athletic association in Tennessee, and every public high school in Tennessee
that has an interscholastic athletic program is a member of respondent.
Id. at 22B.
Respondent is governed by a Legislative Council and a Board of Control.
Pet. App. 5B. The Legislative Council has authority to enact regulations;
the Board of Control has authority to enforce them. Ibid. The Legislative
Council and the Board of Control are both nine-member bodies elected by
popular vote from nine electoral districts. Ibid. Each member school that
is represented by a principal or other school official at the annual election
is entitled to one vote. J.A. 89, 92. Only high school principals, assistant
principals, and superintendents are eligible to serve on the Legislative
Council and the Board of Control. Pet. App. 5B. During the time period at
issue here, the Legislative Council and Board of Control were composed exclusively
of public school officials. Ibid.
Since 1925, the Tennessee State Board of Education (State Board) has recognized
respondent's authority to regulate interscholastic competition. Pet. App.
23B. In 1972, the State Board adopted a regulation formally designating
respondent as "the organization to supervise and regulate the athletic
activities in which the public junior and senior high schools of Tennessee
participate on an interscholastic basis." Ibid. The State Board also
approved respondent's existing regulations and reserved the right to review
the appropriateness of any changes in rules. Id. at 10B-11B. Between 1972
and 1992, the State Board approved various regulations adopted by respondent,
including respondent's present recruiting rule. Id. at 11B, 24B-26B.
State Board documents reflect its understanding that it had delegated to
respondent the authority to regulate interscholastic athletics on behalf
of the State. Pet. App. 24B-26B. The Tennessee Attorney General expressed
that same view. Tenn. Att'y Gen. Op. No. 83-163, 1983 WL 167080, at *1 (Apr.
5, 1983) (stating that respondent's "authority to regulate athletics
is derived from the State Board of Education's broad authority to regulate
public schools").
In 1995, the State Board revoked the 1972 regulation and adopted a new one
in its place. Pet. App. 11B. The new regulation, which took effect in 1996
provides:
The State Board of Education recognizes the value of participation in interscholastic
athletics and the role of the Tennessee Secondary School Athletic Association
in coordinating interscholastic athletic competition. The State Board of
Education authorizes the public schools of the state to voluntarily maintain
membership in the Tennessee Secondary School Athletic Association.
Ibid.
Representatives of the State Board and the State Department of Education
serve as ex officio members on respondent's Board of Control and Legislative
Council. Pet. App. 35B. After the State Board amended its regulation concerning
its relationship with respondent, state representatives continued to serve
as ex officio members on respondent's governing bodies. Ibid. Respondent
receives no funding from the State, and its staff is not paid by the State.
Id. at 8A. Tennessee law nonetheless authorizes respondent's administrative
staff, including its Executive Director, to participate in the State's retirement
system. Id. at 33B. Respondent derives a substantial portion of its revenue
from gate receipts from athletic contests played at state-owned facilities.
Id. at 32B. Respondent pays the State for the use of those facilities. Id.
at 9A.
2. Petitioner Brentwood Academy is a private school and a member of respondent.
Pet. App. 4B. In 1997, certain public high school coaches accused petitioner
of violating respondent's recruiting rule. Id. at 11B-12B. That rule prohibits
members from using "undue influence" to "secure or to retain
a student for athletic purposes." Id. at 6B. After an investigation,
respondent's Executive Director concluded that petitioner had violated respondent's
recruiting rule by providing free game tickets to a coach at a public middle
school and by inviting incoming students to a spring football practice.
Id. at 14B-15B. The Executive Director also found that petitioner had violated
another one of respondent's regulations. Id. at 15B. The Executive Director
declared petitioner ineligible to participate in football and basketball
tournaments for one year and placed petitioner on probation for two years.
Ibid.
Respondent's Board of Control affirmed the Executive Director's determination
that petitioner had violated the recruiting rule. Pet. App. 16B. The Board
of Control increased the sanctions for the violations, banning petitioner
from tournaments for two years, placing petitioner on probation for four
years, and fining petitioner $3000. Id. at 17B. All nine of the voting Board
of Control members who participated in petitioner's administrative appeal
were principals of public high schools. Id. at 16B.
In December 1997, petitioner filed suit against respondent and its Executive
Director under 42 U.S.C. 1983 (1994 & Supp. III 1997), alleging that
respondent's recruiting rule violated, inter alia, the First Amendment to
the Constitution as applied to the States through the Fourteenth Amendment.
Pet. App. 3B-4B, 18B. The district court granted petitioner's motion for
summary judgment, holding that respondent's recruiting rule violated the
First Amendment. Id. at 1B-62B.
The district court first held that respondent's adoption and enforcement
of the recruiting rule constituted state action. Pet. App. 20B-37B. In reaching
that conclusion, the court relied in part on the State Board's 1972 regulation
designating respondent as the entity responsible for interscholastic athletics
in Tennessee. Id. at 23B-27B. The court rejected respondent's argument that
the 1995 regulation eliminated the basis for a finding of state action.
The district court reasoned that the new regulation still singles out respondent
by name as the organization responsible for the regulation of high school
athletics and does not materially change the relationship between the State
and respondent. Id. at 26B-27B.
The district court also relied on the composition of respondent's membership
and leadership as a basis for its state action holding. Pet. App. 27B-28B.
The court noted that "the overwhelming majority" of respondent's
members are public schools, and that in 1997, "all members of the Board
of Control and Legislative Council were principals of public schools."
Ibid. The court concluded that those facts are independently sufficient
to show that respondent is a state actor. Id. at 29B. In reaching that conclusion,
the court relied on the statement in National Collegiate Athletic Ass'n
(NCAA) v. Tarkanian, 488 U.S. 179, 194 n.13 (1988), that while the NCAA
is not a state actor, "[t]he situation would, of course, be different
if the membership consisted entirely of institutions located within the
same State, many of them public institutions created by the same sovereign."
Pet. App. 29B.
The district court next held that respondent's recruiting rule violated
the First Amendment on its face and as applied to petitioner. Pet. App.
40B-58B. The court enjoined respondent from enforcing that rule. Id. at
61B.
3. The court of appeals reversed, Pet. App. 1A-18A, holding that respondent
is not a state actor. The court first concluded that respondent is not an
"arm of the government" because no Tennessee law or State Board
regulation currently in effect delegates to respondent the authority to
conduct interscholastic athletics on behalf of the State. Id. at 9A.
The court of appeals next concluded that respondent's actions are not "fairly
attributable" to the State. Pet. App. 11A-18A. The court held that
respondent's actions are not fairly attributable to the State under the
"public function test" because the regulation of interscholastic
sports is not a power "traditionally exclusively reserved to the state."
Id. at 11A. It held that respondent's actions are not fairly attributable
to the State under the "state compulsion test" because, in its
view, the State had not "coerced or encouraged" the challenged
conduct. Id. at 12A-13A. And, for essentially the same reasons, the court
held that respondent's actions are not fairly attributable to the State
under the "symbiotic relationship test." Id. at 13A-14A.
The court of appeals also rejected the district court's reliance on Tarkanian.
Pet. App. 16A-17A. The court concluded that, under Tarkanian, even if respondent
is a state actor when dealing with a public school, it is not a state actor
in its relationship with private schools such as petitioner. Id. at 17A.
The court denied a petition for rehearing en banc. Pet. App. 1C-2C. Judge
Merritt, joined by Judge Clay, dissented from the denial of rehearing en
banc. Id. at 2C-6C. Judge Merritt stated that the panel's decision "appears
to be inconsistent" with language from Tarkanian. Id. at 4C. Judge
Merritt also criticized the panel for ignoring the "cooperative relationship
between [respondent] and the state's public high schools [and] the coercive
power of [respondent]." Id. at 5C.
SUMMARY OF ARGUMENT
A. Public schools engage in state action within the meaning of the Fourteenth
Amendment. Thus, if a public school were to adopt a rule governing participation
in interscholastic athletic competition, that rule would be subject to challenge
under the Fourteenth Amendment.
B. The result should not be different when such a rule is imposed by an
athletic association that is controlled by its public school members. Like
the actions of a public school, the actions of an athletic association controlled
by public schools are fairly attributable to the State.
This Court's decisions support that conclusion. In several cases, the Court
has held that nominally private entities that are publicly controlled and
that serve government objectives are engaged in state action. The Court
has applied that principle to a college created by a private will, Pennsylvania
v. Board of Directors of City Trusts, 353 U.S. 230 (1957) (per curiam),
a privately owned park, Evans v. Newton, 382 U.S. 296 (1966), and a corporation
that operates passenger trains, Lebron v. National Railroad Passenger Corp.,
513 U.S. 374 (1995). Because each of those entities was publicly controlled
and served a public purpose, the entity's actions constituted state action.
C. Under those decisions, an athletic association that is composed primarily
of public schools is engaged in state action. When public schools constitute
a voting majority of the members of an athletic association, they have effective
control over the actions of the association. And, since interscholastic
athletic competition is a component of the education program offered by
public schools, an athletic association's regulation of that activity furthers
government objectives.
With the exception of the court below, the courts of appeals have uniformly
held that athletic associations are state actors when they are composed
primarily of public schools. In NCAA v. Tarkanian, 488 U.S. 179 (1988),
the Court made clear that those decisions correctly implement state action
principles.
A contrary view would permit a publicly controlled athletic association
to engage in practices that blatantly discriminate on the basis of race
or sex without exposing those practices to constitutional challenge. For
example, such an athletic association could preclude private schools from
joining the association based on the race of their students. Such an association
could also deny girls the opportunity to participate in a wide range of
interscholastic sports.
D. Under the correct state action analysis, respondent is engaged in state
action. Public schools constitute approximately 84% of respondent's voting
members, and during the relevant period, respondent's governing bodies were
composed exclusively of public school officials. Respondent is therefore
publicly controlled. Respondent's regulation of interscholastic athletic
competition also serves state educational purposes. The Tennessee State
Board of Education has adopted a regulation that expressly recognizes the
importance of interscholastic athletic competition to public education and
respondent's role in regulating such competition. Because respondent is
controlled by public schools and serves government objectives, its regulation
of interscholastic athletic competition constitutes state action.
ARGUMENT
RESPONDENT IS ENGAGED IN STATE ACTION BECAUSE IT IS CONTROLLED BY ITS PUBLIC
SCHOOL MEMBERS AND IT SERVES STATE EDUCATIONAL OBJECTIVES
A. Public Schools And Their Officials Are State Actors
The Fourteenth Amendment to the Constitution, "by its very terms, prohibits
only state action." United States v. Morrison, No. 99-5 (May 15, 2000),
slip op. 21. It "erects no shield against merely private conduct, however
discriminatory or wrongful." Shelley v. Kraemer, 334 U.S. 1, 13 &
n.12 (1948). Similarly, 42 U.S.C. 1983 (1994 & Supp. III 1997) authorizes
a cause of action to enforce constitutional guarantees only against persons
who act "under color of" state law. Those limitations are identical
"[w]here, as here, deprivations of rights under the Fourteenth Amendment
are alleged." American Mfrs. Mutual Ins. Co. v. Sullivan, 526 U.S.
40, 50 n.8 (1999).
In general, conduct constitutes state action and action under color of law
if (1) the alleged constitutional deprivation is "caused by the exercise
of some right or privilege created by the State or by a rule of conduct
imposed by the State or by a person for whom the State is responsible,"
and (2) "the party charged with the deprivation [is] a person who may
fairly be said to be a state actor." American Mfrs., 526 U.S. at 50.
The core inquiry is whether the alleged infringement of federal rights is
"fairly attributable to the State." Lugar v. Edmondson Oil Co.,
457 U.S. 922, 937 (1982).
Application of that standard is straightforward when a suit is brought challenging
the actions of a local government entity, such as a public school system,
or a public official acting in an official capacity, such as a principal.
"The actions of local government are the actions of the State."
Avery v. Midland County, 390 U.S. 474, 480 (1968). Similarly, except in
unusual circumstances, a public employee engages in state action "while
acting in his official capacity or while exercising his responsibilities
pursuant to state law." West v. Atkins, 487 U.S. 42, 50 (1988); see
ibid (noting that a public defender is the only public official acting in
an official capacity the Court has found not to be engaged in state action).
Thus, under established state action principles, if a public school or its
principal were to adopt a rule governing participation in interscholastic
athletic competition, that rule would be subject to challenge under the
Fourteenth Amendment. New Jersey v. T.L.O., 469 U.S. 325, 334-337 (1985)
(public schools and public school officials are state actors for purposes
of the Fourteenth Amendment).
B. Government Controlled Entities That Serve Government Objectives Are State
Actors
The outcome should not be different when such a rule is adopted by an athletic
association that is controlled by its public school members. When public
entities control a nominally private entity that serves a public purpose,
the actions of the nominally private entity are "fairly attributable
to the State." Lugar, 457 U.S. at 937.
Several decisions of this Court support that conclusion. For example, in
Pennsylvania v. Board of Directors of City Trusts, 353 U.S. 230 (1957) (per
curiam), Girard College had been built and maintained pursuant to a private
trust that limited admission to the college to white students. Pursuant
to the terms of the trust, the college was operated and controlled by a
board of state appointees, which was itself a state agency. Id. at 231.
The Court held that, because the college was controlled by an agency of
the State, the college's refusal to admit black students "was discrimination
by the State * * * forbidden by the Fourteenth Amendment." Ibid.
Similarly, in Evans v. Newton, 382 U.S. 296 (1966), a person devised a tract
of land to the City of Macon, Georgia, to be used as a municipal park for
use by whites only. When the City determined that it could no longer constitutionally
operate the park on a segregated basis, private trustees were appointed
and title to the park was vested in them. Id. at 298. The Court held that
the change in trustees did not automatically eliminate Fourteenth Amendment
constraints. Id. at 301-302. The Court explained that the park served the
public purpose of providing recreational opportunities to the community,
ibid., and that "[i]f the municipality remains entwined in the management
or control of the park, it remains subject to the restraints of the Fourteenth
Amendment," id. at 301.
Finally, in Lebron v. National Railroad Passenger Corp., 513 U.S. 374 (1995),
the Court held that an operator of passenger trains commonly known as Amtrak
is a government actor for constitutional purposes, despite Congress's designation
of it as a private corporation. The Court emphasized that Amtrak "is
established and organized under federal law for the very purpose of pursuing
federal governmental objectives, under the direction and control of federal
governmental appointees." Id. at 398. The Court added that "where,
as here, the Government creates a corporation by special law, for the furtherance
of governmental objectives, and retains for itself permanent authority to
appoint a majority of the directors of that corporation, the corporation
is part of the Government for purposes of the First Amendment." Id.
at 400.
While Lebron involved a nominally private entity that was governmentally
created, furthered a government objective, and was governmentally controlled,
the Court did not suggest that all three features are necessary prerequisites
to a finding of state action. To the contrary, the Court expressly reaffirmed
the holding in City Trusts that Girard College was a state actor, even though
it was created pursuant to a private trust, rather than a special law. 513
U.S. at 397. The fact that Amtrak "was created by a special statute"
simply made it "an a fortiori case." Ibid.
Thus, the entities involved in City Trusts, Evans, and Lebron shared two
important characteristics. First, each of the entities was subject to government
control. Second, the services provided by each of the entities furthered
government objectives.1 City Trusts, Evans, and Lebron therefore support
the following state action principle: A publicly-controlled entity that
furthers government objectives is engaged in state action.
C. Athletic Associations That Are Composed Primarily Of Public Schools In
A Single State Are State Actors
1. Applying that principle, an athletic association's regulation of interscholastic
athletic competition constitutes state action when public schools constitute
a majority of the association's voting members. When public schools constitute
a voting majority, they have effective control over elections for the association's
governing body. In such circumstances, the association is fairly viewed
as publicly-controlled. See Lebron, (entity is government controlled when
the government appoints a majority of the members of the governing body);
cf. Thornburg v. Gingles, 478 U.S. 30, 50 & n.17 (1986) (group that
is in the majority has potential to elect candidates of its choice). Moreover,
since interscholastic athletic competition is a component of the education
program offered by public schools, an athletic association's regulation
of that activity furthers government objectives. Because athletic associations
composed primarily of public schools are publicly controlled and serve government
objectives, they are state actors for constitutional purposes.
2. The courts of appeals have long taken that view. With the exception of
the court below, the courts of appeals have uniformly held that athletic
associations composed primarily of public schools are state actors.2 The
courts of appeals have also held in other contexts that entities are state
actors when their governing bodies consist primarily of state officials
or persons appointed by state officials.3 In contrast, the courts have refused
to find state action when government appointees and public officials constitute
less than a majority on an entity's governing body and government control
is not otherwise established.4 That approach correctly implements the state
action requirement.
3. NCAA v. Tarkanian, 488 U.S. 179 (1988), provides further support for
the conclusion that an athletic association is a state actor when public
schools constitute a majority of its voting members. In Tarkanian, the Court
held that the NCAA did not engage in state action when it pressured the
University of Nevada at Las Vegas to suspend its head basketball coach.
The Court reasoned that, because the NCAA is composed primarily of universities
from States other than Nevada, NCAA's conduct could not be viewed as action
under color of Nevada law. Id. at 191.
The Court observed, however, that "[t]he situation would, of course,
be different if the membership consisted entirely of institutions located
within the same State, many of them public institutions created by the same
sovereign." Tarkanian, 488 U.S. at 193 n.13. The Court then cited with
approval two court of appeals decisions that had held that athletic associations
composed primarily of public schools located within the same State are state
actors for purposes of the Constitution. Ibid (citing Clark, supra, and
Louisiana High Sch. Athletic Ass'n, supra). Tarkanian therefore supports
the state action theory we have articulated here.
The court of appeals in this case drew a different conclusion. In its view
(Pet. App. 17A), Tarkanian suggests that a single-State athletic association
may be engaged in state action when it regulates a public school, but not
when it regulates a private school. That reading of Tarkanian is mistaken.
One of the cases cited by Tarkanian with approval (488 U.S. at 193 n.13)
held that a high school athletic association engaged
in state action when it denied membership to a private school. See Louisiana
High Sch. Athletic Ass'n, 396 F.2d at 225-226. More fundamentally, Tarkanian
makes clear that the critical distinction for state action purposes is between
a national athletic association composed primarily of private schools from
many States and an athletic association composed primarily of public schools
in a single State. 488 U.S. at 193 & n.13. The former is not a state
actor, but the latter is. Ibid. The dissent in Tarkanian drew a distinction
between an athletic association's regulation of public schools and its regulation
of private schools. Id. at 202 & n.2 (White, J., dissenting). The Court,
however, rejected the dissent's theory. Id. at 193 & n.13, 197 n.17.
Tarkanian therefore supports the conclusion that an athletic association
is a state actor when a majority of its voting members are public schools
in a single State.5
4. Treating athletic associations as state actors when public schools constitute
a voting majority also accords with the purposes of the state action requirement.
Those purposes are to "preserve[] an area of individual freedom,"
and to "avoid[] imposing on the State, its agencies or officials, responsibility
for conduct for which they cannot fairly be blamed." Lugar, 457 U.S.
at 936. When public schools constitute a voting majority of an athletic
association and control the elections for the association's governing body,
subjecting the association's decisions to constitutional scrutiny does not
intrude into an area of individual freedom. At the same time, since public
entities have effective control over the association's decisions, it is
not unfair to hold the State responsible for them.
5. Failing to subject the decisions of such an association to constitutional
scrutiny could also have far-reaching consequences. It would mean that an
athletic association that is controlled by public schools could preclude
a private school from joining the association based on the race of its students,
and the actions of the association would not be subject to challenge under
the Constitution. It would also mean that such an athletic association could
deny high school girls the opportunity to participate in a wide range of
interscholastic sports without subjecting that practice to constitutional
challenge.
In the past, athletic associations have been guilty of such discriminatory
practices. See, e.g., Louisiana High Sch. Athletic Ass'n, supra (denying
admission to school composed of black students); Brenden v. Independent
Sch. Dist. 742, 477 F.2d 1292 (8th Cir. 1973) (precluding girls from participating
in certain sports); Hoover v. Meiklejohn, 430 F. Supp. 164 (D. Colo. 1977)
(same); Carnes v. Tennessee Secondary Schs. Athletic Ass'n, 415 F. Supp.
569 (E.D. Tenn. 1976) (same); Gilpin v. Kansas State High Sch. Activities
Ass'n, 377 F. Supp. 1233 (D. Kan. 1974) (same). Allegations that high school
athletic associations discriminate against female athletes persist today.
Communities for Equity v. Michigan High Sch. Athletic Ass'n, 80 F. Supp.
2d 729 (W.D. Mich. 2000).
A party may always sue a public school when it enforces an athletic association's
discriminatory rule. See Tarkanian, 488 U.S. at 192-193. Not all rules imposed
by an athletic association, however, are enforced by individual public schools.
For example, when a private school is denied membership in an athletic association
on the basis of the race or gender of its students, there is no enforcement
of the rule by an individual public school. Thus, unless the athletic association
itself may be sued, there would be no way to prevent the enforcement of
such discrimination.
Even when an individual public school enforces a discriminatory rule, moreover,
a suit against the school may not be as efficacious in remedying the discrimination
as a suit against the athletic association itself. For example, a public
school may be sued for enforcing a rule that unconstitutionally precludes
a girl at its school from participating in a particular interscholastic
sport. And, in such a case, the court may order the schools to give girls
at the school the same opportunity to play on its interscholastic team as
it gives to boys. But if the athletic association decides to enforce its
discriminatory rule against the school and refuses to permit a team with
girls on it to play, the court's remedy could leave the victims of discrimination
without an effective remedy and deprive innocent third parties of interscholastic
athletic opportunities as well. Those harsh consequences can be avoided
if the acts of a publicly controlled athletic association may be challenged
directly.6
D. Respondent's Regulation Of Interscholastic Athletic Competition Constitutes
State Action
1. Under the principles discussed above, respondent's regulation of interscholastic
athletic competition constitutes state action. Respondent is governed by
a Legislative Council, which has authority to promulgate rules, and a Board
of Control, which is responsible for enforcing the rules. Pet. App. 5B.
Since approximately 84% of respondent's members are public schools, id.
at 4B-5B, and each school is entitled to one vote in elections for respondent's
Legislative Council and Board of Control, J.A. 89, 92, public schools have
the power to control the elections for those governing bodies.
The membership of the Legislative Council and Board of Control is evidence
of that power. At the time that sanctions were imposed against petitioner,
the Legislative Council and Board of Control were composed exclusively of
public school officials. Pet. App. 5B. In those circumstances, public schools
and their officials effectively control respondent's regulation of interscholastic
competition.
Respondent's regulation of interscholastic athletic competition also furthers
government objectives. Tennessee has recognized, in a variety of ways, that
interscholastic athletic competition is an integral part of public education.
For example, as a component of its power to regulate the public school curriculum,
the State Board has broad authority over interscholastic athletics. Tenn.
Att'y Gen. Op. No. 83-163, 1983 WL 167080, at *2 (Apr. 5, 1983). The State
Board allows interscholastic athletics to be substituted for the physical
education graduation requirement, thus enabling students to earn academic
credit for participating in activities sponsored by respondent. Pet. App.
34B.
Between 1972 and 1996, the State Board formally delegated to respondent
its authority to regulate interscholastic athletics for the State's public
schools. Pet. App. 23B. The State treated respondent as its agent for that
purpose, closely monitoring respondent's activities and repeatedly approving
the association's regulations, including the recruiting rule challenged
by petitioner. Id. at 11B, 24B-26B. In 1995, the State Board adopted a regulation
"recogniz[ing] the value of participation in interscholastic athletics
and the role of [respondent] in coordinating interscholastic athletic competition."
Id. at 11B. That regulation also expressly authorizes public schools to
join respondent, ibid., which is the only interscholastic athletic association
for public schools in Tennessee, id at 28B, 31B. Representatives of both
the State Board of Education and the State Department of Education continue
to serve as ex officio members of respondent's Board of Control and Legislative
Council, id. at 35B, and the State allows respondent's employees to participate
in the State's retirement system, id. at 33B.
Those circumstances show that public schools and their officials control
respondent's actions and that those actions further the State's educational
objectives. Respondent is therefore engaged in state action for purposes
of the Fourteenth Amendment.
2. In reaching a contrary conclusion, the court of appeals relied primarily
on this Court's decisions in Blum v. Yaretsky, 457 U.S. 991 (1982) (private
nursing home not engaged in state action), Rendell-Baker v. Kohn, 457 U.S.
830 (1982) (private school not engaged in state action, and San Francisco
Arts & Athletics, Inc. v. United States Olympic Committee, 483 U.S.
522, 545 (1987) (United States Olympic Committee not engaged in state action).
In those cases, however, the entities involved were controlled by private
parties, and the question was whether certain forms of government action,
such as extensive regulation, Blum, 457 U.S. at 1004, government funding,
Rendell-Baker, 457 U.S. at 840-841, or the granting of a right to exclusive
use of a word, San Francisco Arts, 483 U.S. at 544, transformed the private
entities into state actors.
The situation here is entirely different. Here, respondent is composed primarily
of public schools and those schools have effective control over respondent's
governing bodies. Respondent's regulation of interscholastic competition
therefore constitutes state action, and nothing in Blum, Rendell-Baker,
or San Fransciso Arts suggests otherwise.
CONCLUSION
The judgment of the court of appeals should be reversed.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
BILL LANN LEE
Acting Assistant Attorney
General
BARBARA D. UNDERWOOD
Deputy Solicitor General
IRVING L. GORNSTEIN
Assistant to the Solicitor
General
DENNIS J. DIMSEY
GREGORY B. FRIEL
Attorneys
MAY 2000
1 Evans and Lebron specifically referred to the public objectives served
by the entity. Evans, 382 U.S. at 301-302 (park serves a public purpose);
Lebron, 513 U.S. 397-398 (passenger rail service furthers government objectives).
While City Trusts did not specifically mention that factor, it was present
in that case as well. See Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982)
(education serves a public function).
2 See Griffin High School v. Illinois High Sch. Ass'n, 822 F.2d 671, 674
(7th Cir. 1987) ("Public schools make up 85% of the [association's]
membership," and "the overwhelmingly public character of the [association's]
membership is sufficient to confer state action."); United States ex
rel. Mo. State High Sch. Activities Ass'n v. Missouri State High Sch. Activities
Ass'n, 682 F.2d 147, 151 (8th Cir. 1982) ("Because MSHSAA is an association
comprised primarily of public schools, its rules are state action.");
Louisiana High Sch. Athletic Ass'n v. St. Augustine High Sch., 396 F.2d
224, 227 (5th Cir. 1968) (emphasizing that 85% of members are public schools);
see Crane v. Indiana High Sch. Athletic Ass'n, 975 F.2d 1315, 1326 (7th
Cir. 1992) (Posner, J., dissenting) (association is "composed primarily
of public schools-so its actions, I agree, are state action"); see
also Clark v. Arizona Interscholastic Ass'n, 695 F.2d 1126, 1128 (9th Cir.
1982) (concluding that actions of an athletic association are state action
because "member public schools play a substantial role in determining
and enforcing the policies and regulations of the [association]"),
cert. denied, 464 U.S. 818 (1983).
3 McVarish v. Mid-Nebraska Community Mental Health Ctr., 696 F.2d 69, 71
(8th Cir. 1982) (mental health center); Foster v. Ripley, 645 F.2d 1142,
1147 (D.C. Cir. 1981) (scientific research organization); Jackson v. Statler
Found., 496 F.2d 623 (2d Cir. 1973) (foundation); Chiaffitelli v. Dettmer
Hosp., Inc., 437 F.2d 429, 430 (6th Cir. 1971) (hospital).
4 American Bankers Mortgage Corp. v. Federal Home Loan Mortgage Corp., 75
F.3d 1401, 1407-1409 (9th Cir.) (Freddie Mac is not a government actor since
government is entitled to appoint fewer than one-third of Freddie Mac's
directors), cert. denied, 519 U.S. 812 (1996); Hall v. American Nat'l Red
Cross, 86 F.3d 919, 921-922 (9th Cir.) (Red Cross is not a government actor
since President appoints only 8 of the 50 members of its Board of Governors),
cert. denied, 519 U.S. 1010 (1996); Becker v. Gallaudet Univ., 66 F. Supp.
2d 16, 20-21 (D.D.C. 1999) (Gallaudet University is not a government actor
since only three of the 21 members of its governing body are public officials);
Hack v. President & Fellows of Yale College, 16 F. Supp. 2d 183, 188-189
(D. Conn. 1998) (Yale College is not a government actor since Governor and
Lieutenant Governor are the only two government officials on the 19-member
governing body).
5 Because the NCAA is composed primarily of private schools, Tarkanian did
not address the question whether a national (or regional) athletic association
would be engaged in state action if public colleges and universities from
different States constituted a majority of its members. Nor is that issue
presented in this case.
6 Regardless of whether it engages in state action, an athletic association
that receives federal financial assistance would be prohibited from discriminating
on the basis of race and sex by Title VI of the Civil Rights Act of 1964,
42 U.S.C. 2000d, and Title IX of the Education Amendments of 1972, 20 U.S.C.
1681(a). See National Collegiate Athletic Ass'n v. Smith, 525 U.S. 459 (1999).
We have argued that an athletic association is also covered by Title VI
and Title IX when a school that receives federal assistance cedes controlling
authority over its athletic program to the athletic association. Id. at
469. In Smith, the Court declined to resolve that issue. Id. at 470. The
question whether an athletic association is covered by Title VI and Title
IX when a recipient cedes to it controlling authority is distinct from the
question presented here-whether the actions of an athletic association constitute
state action when the association is controlled by representatives of public
schools located in the same State.