After hearing the arguments of both sides, the District Court for Middle Tennessee held that the recruiting rule violates the First Amendment, making the sanctions imposed by the TSSAA on Brentwood Academy void and unenforceable. On appeal, the Sixth Circuit failed to address the First Amendment issue due to its holding that the TSSAA did not constitute a state actor for constitutional law purposes. The Sixth Circuit concluded that the TSSAA's actions are not fairly attributable to the state of Tennessee. The court also noted that Brentwood Academy's purely voluntary association with the TSSAA prevented the private high school from bringing a § 1983 claim.
While the issue of state action is potentially dispositive for this First Amendment claim, this Note also will explore the very serious restrictions that the TSSAA recruiting rule places on free speech. This Note asserts that the recruiting rule is a content-based, rather than a content-neutral, restriction on speech that would violate the First Amendment, if state action is found. The rule allows a high school to present most of the potential benefits associated with that school, except the benefits associated with the athletic program.
David W. Dulabon,
First Amendment & Goal: High School Recruiting and the State Actor Theory,
2 Vanderbilt Journal of Entertainment and Technology Law
Available at: https://scholarship.law.vanderbilt.edu/jetlaw/vol2/iss2/7