OCTOBER TERM, 2000
Syllabus
BRENTWOOD ACADEMY
v. TENNESSEE SECONDARY SCHOOL ATHLETIC
ASSOCIATION ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT
No.99-901. Argued October 11, 2000-Decided February 20, 2001
Respondent not-for-profit athletic association (Association)
regulates interscholastic sport among Tennessee public and private
high schools. Most of the State's public high schools are members,
representing 84% of the Association's membership. School officials
make up the voting membership of the Association's governing
council and control board, which typically hold meetings during
regular school hours. The Association is largely funded by gate
receipts. Association staff, although not state employees, may join
the state retirement system. The Association sets membership
standards and student eligibility rules and has the power to
penalize any member school that violates those rules. The State
Board of Education (State Board) has long acknowledged the
Association's role in regulating interscholastic competition in
public schools, and its members sit as nonvoting members of the
Association's governing bodies. When the Association penalized
petitioner Brentwood Academy for violating a recruiting rule,
Brentwood sued the Association and its executive director under 42
U. S. C. § 1983, claiming that the rule's enforcement was state
action that violated the First and Fourteenth Amendments. The
District Court granted Brentwood summary judgment, enjoining the
rule's enforcement, but the Sixth Circuit found no state action and
reversed.
Held: The Association's regulatory activity is state
action owing to the pervasive entwinement of state school officials
in the Association's structure, there being no offsetting reason to
see the Association's acts in any other way. Pp. 295-305.
(a) State action may be found only if there is such a "close
nexus between the State and the challenged action" that seemingly
private behavior "may be fairly treated as that of the State
itself."
Jackson v.
Metropolitan Edison Co., 419 U. S. 345,351. No one
fact is a necessary condition for finding state action, nor is any
set of circumstances sufficient, for there may be some
countervailing reason against attributing activity to the
government. The facts that can bear on an attribution's
fairness--e. g., a nominally private entity may be a state actor
when it is entwined with governmental policies or when government
is en-
289
twined in its management or control,
Evans v.
Newton, 382 U.
S. 296, 299, 301-unequivocally show that a legal entity's
character is determined neither by its expressly private
characterization in statutory law, nor by the law's failure to
acknowledge its inseparability from recognized government officials
or agencies. In
National Collegiate Athletic Assn. v.
Tarkanian, 488
U. S. 179, this Court anticipated that state action could be
found when there is public entwinement in the management or control
of an organization whose member public schools are all within a
single State. Pp. 295-298.
(b) The necessarily fact-bound inquiry leads to the conclusion
of state action here. The Association's nominally private character
is overborne by the pervasive entwinement of public institutions
and public officials in its composition and workings, and there is
no substantial reason to claim unfairness in applying
constitutional standards to it. To the extent of 84% of its
membership, the Association is an organization of public schools
represented by their officials acting in their official capacity to
provide an integral element of secondary public schooling,
interscholastic athletics. There would be no recognizable
Association without the public school officials, who overwhelmingly
determine and perform all but the Association's purely ministerial
acts. Only the 16% minority of private school memberships keeps the
entwinement of the Association and public schools from being total
and their identities totally indistinguishable. To complement the
entwinement from the bottom up, the State has provided entwinement
from the top down: State Board members sit ex officio on the
Association's governing bodies and Association employees
participate in the state retirement system. Entwinement to the
degree shown here requires that the Association be charged with a
public character and judged by constitutional standards. Pp.
298-302.
(c) Entwinement is also the answer to the Association's several
arguments that the instant facts would not support a state-action
finding under various other criteria,
e. g., the public
function test,
RendellBaker v.
Kohn, 457 U. S. 830,
distinguished. Pp. 302-303.
(d) Although facts showing public action may be outweighed in
the name of a value at odds with finding public accountability in
the circumstances,
e. g., Polk County v.
Dodson,
454 U. S. 312,
322, no such countervailing value is present here. The
Association's fear that reversing the judgment will trigger an
epidemic of federal litigation is unfounded. Save for the Sixth
Circuit, every Court of Appeals to consider a statewide athletic
association like this one has found it to be a state actor, and
there has been no litigation explosion in those jurisdictions. Nor
should the Association have dispensation merely because the
public
290
290 BRENTWOOD ACADEMY
v. TENNESSEE SECONDARY SCHOOL
ATHLETIC ASSN.
schools themselves are state actors subject to suit under § 1983
and Title IX of the Education Amendments of 1972. Pp. 303-305.
180 F.3d
758, reversed and remanded.
SOUTER, J., delivered the opinion of the Court, in which
STEVENS, O'CONNOR, GINSBURG, and BREYER, JJ., joined. THOMAS, J.,
filed a dissenting opinion, in which REHNQUIST, C. J., and SCALIA
and KENNEDY, JJ., joined,
post, p. 305.
James F. Blumstein argued the cause for petitioner.
With him on the briefs were H. Lee Barfield II and G. Thomas
Nebel.
Deputy Solicitor General Underwood argued the cause for the
United States as amicus curiae urging reversal. With her on the
brief were Solicitor General Waxman, Acting Assistant Attorney
General Lee, Irving L. Gornstein, Dennis J. Dimsey, and Gregory B.
Friel.
Richard L. Colbert argued the cause and filed a brief for
respondents. *
JUSTICE SOUTER delivered the opinion of the Court.
The issue is whether a statewide association incorporated to
regulate interscholastic athletic competition among public and
private secondary schools may be regarded as engaging in state
action when it enforces a rule against a member school. The
association in question here includes most public schools located
within the State, acts through their representatives, draws its
officers from them, is largely funded
*Briefs of
amici curiae urging reversal were filed for
the National Women's Law Center et al. by
Marcia D. Greenberger,
Barbara A. Burr, and
Neena K. Chaudhry; for the
Southeast Law Institute by
A. Eric Johnston; and for the
Tennessee Lawyers' Association for Women by
Linda Carver Whitlow
Knight.
Briefs of
amici curiae urging affirmance were filed for
the Florida High School Activities Association, Inc., by
Leonard
E. Ireland, Jr.; for the Interscholastic Associations by
Wayne F.
Plaza, Daniel M. Noland, Mallory V. Mayse,
and
Edmund J.
Sikorski, Jr.; and for the Kentucky
High School Athletic Association by
Danny C.
Reeves
and
David A. French.
David A. Wilson, John C.
Bonifaz, and
Brenda
Wright filed a brief for the National Voting Rights Institute
as
amicus curiae.
291
by their dues and income received in their stead, and has
historically been seen to regulate in lieu of the State Board of
Education's exercise of its own authority. We hold that the
association's regulatory activity may and should be treated as
state action owing to the pervasive entwinement of state school
officials in the structure of the association, there being no
offsetting reason to see the association's acts in any other
way.
I
Respondent Tennessee Secondary School Athletic Association
(Association) is a not-for-profit membership corporation organized
to regulate interscholastic sport among the public and private high
schools in Tennessee that belong to it. No school is forced to
join, but without any other authority actually regulating
interscholastic athletics, it enjoys the memberships of almost all
the State's public high schools (some 290 of them or 84% of the
Association's voting membership), far outnumbering the 55 private
schools that belong. A member school's team may play or scrimmage
only against the team of another member, absent a dispensation.
The Association's rulemaking arm is its legislative council,
while its board of control tends to administration. The voting
membership of each of these nine-person committees is limited under
the Association's bylaws to high school principals, assistant
principals, and superintendents elected by the member schools, and
the public school administrators who so serve typically attend
meetings during regular school hours. Although the Association's
staff members are not paid by the State, they are eligible to join
the State's public retirement system for its employees. Member
schools pay dues to the Association, though the bulk of its revenue
is gate receipts at member teams' football and basketball
tournaments, many of them held in public arenas rented by the
Association.
The constitution, bylaws, and rules of the Association set
standards of school membership and the eligibility of students to
play in interscholastic games. Each school, for
292
292 BRENTWOOD ACADEMY
v. TENNESSEE SECONDARY SCHOOL
ATHLETIC ASSN.
example, is regulated in awarding financial aid, most coaches
must have a Tennessee state teaching license, and players must meet
minimum academic standards and hew to limits on student employment.
Under the bylaws, "in all matters pertaining to the athletic
relations of his school," App. 138, the principal is responsible to
the Association, which has the power "to suspend, to fine, or
otherwise penalize any member school for the violation of any of
the rules of the Association or for other just cause," id., at
100.
Ever since the Association was incorporated in 1925, Tennessee's
State Board of Education (State Board) has (to use its own words)
acknowledged the corporation's functions "in providing standards,
rules and regulations for interscholastic competition in the public
schools of Tennessee," id., at 211. More recently, the State Board
cited its statutory authority, Tenn. Code Ann. § 49-1-302 (1996)
(App. 220), when it adopted language expressing the relationship
between the Association and the State Board. Specifically, in 1972,
it went so far as to adopt a rule expressly "designat[ing]" the
Association as "the organization to supervise and regulate the
athletic activities in which the public junior and senior high
schools in Tennessee participate on an interscholastic basis."
Tennessee State Board of Education, Administrative Rules and
Regulations, Rule 0520-1-2-.26 (1972) (later moved to Rule
0520-1-2-.08). The Rule provided that "the authority granted herein
shall remain in effect until revoked" and instructed the State
Board's chairman to "designate a person or persons to serve in an
ex-officio capacity on the [Association's governing bodies]." App.
211. That same year, the State Board specifically approved the
Association's rules and regulations, while reserving the right to
review future changes. Thus, on several occasions over the next 20
years, the State Board reviewed, approved, or reaffirmed its
approval of the recruiting Rule at issue in this case. In 1996,
however, the State Board dropped the original Rule 0520-1-2-.08
expressly designating the Association
293
as regulator; it substituted a statement "recogniz[ing] the
value of participation in interscholastic athletics and the role of
[the Association] in coordinating interscholastic athletic
competition," while "authoriz[ing] the public schools of the state
to voluntarily maintain membership in [the Association]."
Id., at 220.
The action before us responds to a 1997 regulatory enforcement
proceeding brought against petitioner, Brentwood Academy, a private
parochial high school member of the Association. The Association's
board of control found that Brentwood violated a rule prohibiting
"undue influence" in recruiting athletes, when it wrote to incoming
students and their parents about spring football practice. The
Association accordingly placed Brentwood's athletic program on
probation for four years, declared its football and boys'
basketball teams ineligible to compete in playoffs for two years,
and imposed a $3,000 fine. When these penalties were imposed, all
the voting members of the board of control and legislative council
were public school administrators.
Brentwood sued the Association and its executive director in
federal court under Rev. Stat. § 1979, 42 U. S. C. § 1983, claiming
that enforcement of the Rule was state action and a violation of
the First and Fourteenth Amendments. The District Court entered
summary judgment for Brentwood and enjoined the Association from
enforcing the Rule. 13 F. Supp. 2d 670 (MD Tenn. 1998). In holding
the Association to be a state actor under § 1983 and the Fourteenth
Amendment, the District Court found that the State had delegated
authority over high school athletics to the Association,
characterized the relationship between the Association and its
public school members as symbiotic, and emphasized the
predominantly public character of the Association's membership and
leadership. The court relied on language in
National Collegiate
Athletic Assn. v.
Tark ani an, 488 U. S. 179, 193, n. 13
(1988), suggesting that statewide interscholastic athletic
associations are state actors, and on other federal cases
294
294 BRENTWOOD ACADEMY
v. TENNESSEE SECONDARY SCHOOL
ATHLETIC ASSN.
in which such organizations had uniformly been held to be acting
under color of state law.
The United States Court of Appeals for the Sixth Circuit
reversed.
180 F.3d
758 (1999). It recognized that there is no single test to
identify state actions and state actors but applied three criteria
derived from
Blum v.
Yaretsky, 457 U. S. 991 (1982),
Lugar v.
Edmondson Oil Co., 457 U. S. 922 (1982), and
Rendell-Baker v.
Kohn, 457 U. S. 830 (1982), and
found no state action under any of them. It said the District Court
was mistaken in seeing a symbiotic relationship between the State
and the Association, it emphasized that the Association was neither
engaging in a traditional and exclusive public function nor
responding to state compulsion, and it gave short shrift to the
language from
Tarkanian on which the District Court relied.
Rehearing en banc was later denied over the dissent of two judges,
who criticized the panel decision for creating a conflict among
state and federal courts, for being inconsistent with
Tarkanian, and for lacking support in the "functional"
analysis of private activity required by
West v.
Atkins, 487 U.
S. 42 (1988), for assessing the significance of cooperation
between public officials and a private actor.
190
F.3d 705 (CA6 1999) (Merritt, J., dissenting from denial of
rehearing en banc).
We granted certiorari, 528 U. S. 1153 (2000), to resolve the
conflict 1 and now reverse.
1 A number of other courts have held statewide athletic
associations to be state actors. Griffin High School v. Illinois
High School Assn.,
822 F.2d
671, 674 (CA7 1987); Clark v. Arizona Interscholastic Assn.,
695 F.2d
1126, 1128 (CA9 1982), cert. denied, 464 U. S. 818 (1983); In
re United States ex rel. Missouri State High School Activities
Assn.,
682 F.2d
147, 151 (CA8 1982); Louisiana High School Athletic Assn. v.
St. Augustine High School,
396 F.2d
224, 227-228 (CA5 1968); Oklahoma High School Athletic Assn. v.
Bray,
321 F.2d
269, 272-273 (CAlO 1963); Indiana High School Athletic Assn. v.
Carlberg, 694 N. E. 2d 222, 229 (Ind. 1997); Mississippi High
School Activities Assn., Inc. v. Coleman, 631 So. 2d 768, 774775
(Miss. 1994); Kleczek v. Rhode Island Interscholastic League, Inc.,
612 A. 2d 734, 736 (R. 1. 1992); see also Moreland v. Western Penn.
Inter-
295
II A
Our cases try to plot a line between state action subject to
Fourteenth Amendment scrutiny and private conduct (however
exceptionable) that is not.
Tarkanian, supra, at
191;
Jackson v.
Metropolitan Edison Co., 419 U. S. 345, 349
(1974). The judicial obligation is not only to "'preserv[e] an area
of individual freedom by limiting the reach of federal law' and
avoi[d] the imposition of responsibility on a State for conduct it
could not control,"
Tarkanian, supra, at 191 (quoting
Lugar, supra, at 936-937), but also to assure that
constitutional standards are invoked "when it can be said that the
State is
responsible for the specific conduct of which the
plaintiff complains,"
Blum, supra, at 1004 (emphasis in
original). If the Fourteenth Amendment is not to be displaced,
therefore, its ambit cannot be a simple line between States and
people operating outside formally governmental organizations, and
the deed of an ostensibly private organization or individual is to
be treated sometimes as if a State had caused it to be performed.
Thus, we say that state action may be found if, though only if,
there is such a "close nexus between the State and the challenged
action" that seemingly private behavior "may be fairly treated as
that of the State itself."
Jackson, supra, at 351.2
What is fairly attributable is a matter of normative judgment,
and the criteria lack rigid simplicity. From the range of
circumstances that could point toward the State behind an
individual face, no one fact can function as a necessary condition
across the board for finding state action; nor is any set of
circumstances absolutely sufficient, for there may be some
scholastic Athletic League, 572 F.2d
121, 125
(CA3 1978) (state action conceded).
2 If a defendant's conduct satisfies the state-action
requirement of the Fourteenth Amendment, the conduct also
constitutes action "under color of state law" for § 1983 purposes.
Lugar v.
Edmondson Oil Co., 457 U. S. 922, 935
(1982).
296
296 BRENTWOOD ACADEMY
v. TENNESSEE SECONDARY SCHOOL
ATHLETIC ASSN.
countervailing reason against attributing activity to the
government. See
Tark ani an, 488 U. S., at 193, 196;
Polk
County v.
Dodson, 454 U. S. 312 (1981).
Our cases have identified a host of facts that can bear on the
fairness of such an attribution. We have, for example, held that a
challenged activity may be state action when it results from the
State's exercise of "coercive power,"
Blum, 457 U. S., at
1004, when the State provides "significant encouragement, either
overt or covert,"
ibid., or when a private actor operates as
a "willful participant in joint activity with the State or its
agents,"
Lugar, supra, at 941 (internal quotation marks
omitted). We have treated a nominally private entity as a state
actor when it is controlled by an "agency of the State,"
Pennsylvania v.
Board of Directors of City Trusts of
Philadelphia, 353
U. S. 230, 231 (1957)
(per curiam), when it has been
delegated a public function by the State, cf.,
e. g., West
v.
Atkins, supra, at 56;
Edmonson v.
Leesville
Concrete Co., 500
U. S. 614, 627-628 (1991), when it is "entwined with
governmental policies," or when government is "entwined in [its]
management or control,"
Evans v.
Newton, 382 U. S. 296, 299, 301
(1966).
Amidst such variety, examples may be the best teachers, and
examples from our cases are unequivocal in showing that the
character of a legal entity is determined neither by its expressly
private characterization in statutory law, nor by the failure of
the law to acknowledge the entity's inseparability from recognized
government officials or agencies.
Lebron v.
National
Railroad Passenger Corporation, 513 U. S. 374 (1995), held that
Amtrak was the Government for constitutional purposes, regardless
of its congressional designation as private; it was organized under
federal law to attain governmental objectives and was directed and
controlled by federal appointees.
Pennsylvania v.
Board
of Directors of City Trusts of Philadelphia, supra, held the
privately endowed Girard College to be a state actor and
enforcement of its private founder's limitation of admission
297
to whites attributable to the State, because, consistent with
the terms of the settlor's gift, the college's board of directors
was a state agency established by state law. Ostensibly the
converse situation occurred in
Evans v.
Newton,
supra, which held that private trustees to whom a city had
transferred a park were nonetheless state actors barred from
enforcing racial segregation, since the park served the public
purpose of providing community recreation, and "the municipality
remain[ed] entwined in [its] management [and] control," id., at
30l.
These examples of public entwinement in the management and
control of ostensibly separate trusts or corporations foreshadow
this case, as this Court itself anticipated in
Tarkanian.
Tarkanian arose when an undoubtedly state actor, the University
of Nevada, suspended its basketball coach, Tarkanian, in order to
comply with rules and recommendations of the National Collegiate
Athletic Association (NCAA). The coach charged the NCAA with state
action, arguing that the state university had delegated its own
functions to the NCAA, clothing the latter with authority to make
and apply the university's rules, the result being joint action
making the NCAA a state actor.
To be sure, it is not the strict holding in
Tarkanian
that points to our view of this case, for we found no state action
on the part of the NCAA. We could see, on the one hand, that the
university had some part in setting the NCAA's rules, and the
Supreme Court of Nevada had gone so far as to hold that the NCAA
had been delegated the university's traditionally exclusive public
authority over personnel. 488 U. S., at 190. But on the other side,
the NCAA's policies were shaped not by the University of Nevada
alone, but by several hundred member institutions, most of them
having no connection with Nevada, and exhibiting no color of Nevada
law.
Id., at 193. Since it was difficult to see the NCAA,
not as a collective membership, but as surrogate for the one State,
we held the organization's connection with Ne-
298
298 BRENTWOOD ACADEMY
v. TENNESSEE SECONDARY SCHOOL
ATHLETIC ASSN.
vada too insubstantial to ground a state-action claim.
Id., at 193, 196.
But dictum in
Tarkanian pointed to a contrary result on
facts like ours, with an organization whose member public schools
are all within a single State. "The situation would, of course, be
different if the [Association's] membership consisted entirely of
institutions located within the same State, many of them public
institutions created by the same sovereign."
Id., at 193, n.
13. To support our surmise, we approvingly cited two cases:
Clark v.
Arizona Interscholastic Assn., 695 F.2d
1126 (CA9 1982), cert. denied, 464 U. S. 818 (1983), a
challenge to a state high school athletic association that kept
boys from playing on girls' interscholastic volleyball teams in
Arizona; and
Louisiana High School Athletic Assn. v.
St.
Augustine High School, 396 F.2d
224 (CAS 1968), a parochial school's attack on the racially
segregated system of interscholastic high school athletics
maintained by the athletic association. In each instance, the Court
of Appeals treated the athletic association as a state actor.
B
Just as we foresaw in
Tark ani an, the "necessarily
factbound inquiry,"
Lugar, 457 U. S., at 939, leads to the
conclusion of state action here. The nominally private character of
the Association is overborne by the pervasive entwinement of public
institutions and public officials in its composition and workings,
and there is no substantial reason to claim unfairness in applying
constitutional standards to it.
The Association is not an organization of natural persons acting
on their own, but of schools, and of public schools to the extent
of 84% of the total. Under the Association's bylaws, each member
school is represented by its principal or a faculty member, who has
a vote in selecting members of the governing legislative council
and board of control from eligible principals, assistant
principals, and superintendents.
299
Although the findings and prior opinions in this case include no
express conclusion of law that public school officials act within
the scope of their duties when they represent their institutions,
no other view would be rational, the official nature of their
involvement being shown in any number of ways. Interscholastic
athletics obviously play an integral part in the public education
of Tennessee, where nearly every public high school spends money on
competitions among schools. Since a pickup system of
interscholastic games would not do, these public teams need some
mechanism to produce rules and regulate competition. The mechanism
is an organization overwhelmingly composed of public school
officials who select representatives (all of them public officials
at the time in question here), who in turn adopt and enforce the
rules that make the system work. Thus, by giving these jobs to the
Association, the 290 public schools of Tennessee belonging to it
can sensibly be seen as exercising their own authority to meet
their own responsibilities. Unsurprisingly, then, the record
indicates that half the council or board meetings documented here
were held during official school hours, and that public schools
have largely provided for the Association's financial support. A
small portion of the Association's revenue comes from membership
dues paid by the schools, and the principal part from gate receipts
at tournaments among the member schools. Unlike mere public buyers
of contract services, whose payments for services rendered do not
convert the service providers into public actors, see
Rendell-Baker, 457 U. S., at 839-843, the schools here
obtain membership in the service organization and give up sources
of their own income to their collective association. The
Association thus exercises the authority of the predominantly
public schools to charge for admission to their games; the
Association does not receive this money from the schools, but
enjoys the schools' moneymaking capacity as its own.
In sum, to the extent of 84% of its membership, the Association
is an organization of public schools represented by their
300
300 BRENTWOOD ACADEMY
v. TENNESSEE SECONDARY SCHOOL
ATHLETIC ASSN.
officials acting in their official capacity to provide an
integral element of secondary public schooling. There would be no
recognizable Association, legal or tangible, without the public
school officials, who do not merely control but overwhelmingly
perform all but the purely ministerial acts by which the
Association exists and functions in practical terms. Only the 16%
minority of private school memberships prevents this entwinement of
the Association and the public school system from being total and
their identities totally indistinguishable.
To complement the entwinement of public school officials with
the Association from the bottom up, the State of Tennessee has
provided for entwinement from top down. State Board members are
assigned ex officio to serve as members of the board of control and
legislative council, and the Association's ministerial employees
are treated as state employees to the extent of being eligible for
membership in the state retirement system.
It is, of course, true that the time is long past when the close
relationship between the surrogate association and its public
members and public officials acting as such was attested frankly.
As mentioned, the terms of the State Board's Rule expressly
designating the Association as regulator of interscholastic
athletics in public schools were deleted in 1996, the year after a
Federal District Court held that the Association was a state actor
because its rules were "caused, directed and controlled by the
Tennessee Board of Education,"
Graham v.
TSSAA, No.
1:95-CV -044, 1995 WL 115890, *5 (ED Tenn., Feb. 20, 1995).3
3 The District Court in
Graham held that "[t]his
delegation of authority to TSSAA by Tennessee, standing alone, is
sufficient to make TSSAA a state actor" under the "state compulsion
test," which it understood to provide that a State could exercise
such coercive power or provide such significant encouragement,
either overt or covert, that the choice of the private actor must
be deemed to be that of the State as a matter of
301
But the removal of the designation language from Rule
0520-1-2-.08 affected nothing but words. Today the State Board's
member-designees continue to sit on the Association's committees as
nonvoting members, and the State continues to welcome Association
employees in its retirement scheme. The close relationship is
confirmed by the Association's enforcement of the same preamendment
rules and regulations reviewed and approved by the State Board
(including the recruiting Rule challenged by Brentwood), and by the
State Board's continued willingness to allow students to satisfy
its physical education requirement by taking part in
interscholastic athletics sponsored by the Association. The most
one can say on the evidence is that the State Board once freely
acknowledged the Association's official character but now does it
by winks and nods.4 The amendment to the Rule in 1996 affected
candor but not the "momentum" of the Association's prior
involvement with the State Board.
Evans v.
Newton,
382 U. S., at 301. The District Court spoke to this point in
finding that because of "custom and
law. 1995 WL 115890, at *4-*5 (citing
Blum v.
Yaretsky, 457
U. S. 991, 1004 (1982)).
4 The significance of winks and nods in state-action doctrine
seems to be one of the points of the dissenters' departure from the
rest of the Court. In drawing the public-private action line, the
dissenters would emphasize the formal clarity of the legislative
action providing for the appointment of Girard College's trustees,
see
supra, at 296-297;
post, at 310, in preference to
our reliance on the practical certainty in this case that public
officials will control operation of the Association under its
bylaws. Similarly, the dissenters stress the express formality of
the special statute defining Amtrak's ties to the Government, see
supra, at 296;
post, at 310, in contrast to the
reality in this case that the Association's organizers structured
the Association's relationships to the officialdom of public
education. But if formalism were the
sine qua non of state
action, the doctrine would vanish owing to the ease and
inevitability of its evasion, and for just that reason formalism
has never been controlling. For example, a criterion of state
action like symbiosis (which the dissenters accept,
post, at
311) looks not to form but to an underlying reality.
302
302 BRENTWOOD ACADEMY
v. TENNESSEE SECONDARY SCHOOL
ATHLETIC ASSN.
practice," "the conduct of the parties has not materially
changed" since 1996, "the connections between TSSAA and the State
[being] still pervasive and entwined." 13 F. Supp. 2d, at 681.
The entwinement down from the State Board is therefore
unmistakable, just as the entwinement up from the member public
schools is overwhelming. Entwinement will support a conclusion that
an ostensibly private organization ought to be charged with a
public character and judged by constitutional standards;
entwinement to the degree shown here requires it.
c
Entwinement is also the answer to the Association's several
arguments offered to persuade us that the facts would not support a
finding of state action under various criteria applied in other
cases. These arguments are beside the point, simply because the
facts justify a conclusion of state action under the criterion of
entwinement, a conclusion in no sense unsettled merely because
other criteria of state action may not be satisfied by the same
facts.
The Association places great stress, for example, on the
application of a public function test, as exemplified in
Rendell-Baker v.
Kohn, 457 U. S. 830 (1982).
There, an apparently private school provided education for students
whose special needs made it difficult for them to finish high
school. The record, however, failed to show any tradition of
providing public special education to students unable to cope with
a regular school, who had historically been cared for (or ignored)
according to private choice. It was true that various public school
districts had adopted the practice of referring students to the
school and paying their tuition, and no one disputed that providing
the instruction aimed at a proper public objective and conferred a
public benefit. But we held that the performance of such a public
function did not permit a finding of state action on the part of
the school unless the function performed was exclusively and
tradition-
303
ally public, as it was not in that case. The Association argues
that application of the public function criterion would produce the
same result here, and we will assume,
arguendo, that it
would. But this case does not turn on a public function test, any
more than
Rendell-Baker had anything to do with entwinement
of public officials in the special school.
For the same reason, it avails the Association nothing to stress
that the State neither coerced nor encouraged the actions
complained of. "Coercion" and "encouragement" are like
"entwinement" in referring to kinds of facts that can justify
characterizing an ostensibly private action as public instead.
Facts that address any of these criteria are significant, but no
one criterion must necessarily be applied. When, therefore, the
relevant facts show pervasive entwinement to the point of largely
overlapping identity, the implication of state action is not
affected by pointing out that the facts might not loom large under
a different test.
D
This is not to say that all of the Association's arguments are
rendered beside the point by the public officials' involvement in
the Association, for after application of the entwinement
criterion, or any other, there is a further potential issue, and
the Association raises it. Even facts that suffice to show public
action (or, standing alone, would require such a finding) may be
outweighed in the name of some value at odds with finding public
accountability in the circumstances. In
Polk County, 454 U.
S., at 322, a defense lawyer's actions were deemed private even
though she was employed by the county and was acting within the
scope of her duty as a public defender. Full-time public employment
would be conclusive of state action for some purposes, see
West v.
Atkins, 487 U. S., at 50, accord,
Lugar, 457 U. S., at 935, n. 18, but not when the employee
is doing a defense lawyer's primary job; then, the public defender
does "not ac[t] on behalf of the State; he is the State's
adversary."
Polk County, supra, at
304
304 BRENTWOOD ACADEMY
v. TENNESSEE SECONDARY SCHOOL
ATHLETIC ASSN.
323, n. 13. The state-action doctrine does not convert opponents
into virtual agents.
The assertion of such a countervailing value is the nub of each
of the Association's two remaining arguments, neither of which,
however, persuades us. The Association suggests, first, that
reversing the judgment here will somehow trigger an epidemic of
unprecedented federal litigation. Brief for Respondents 35. Even if
that might be counted as a good reason for a
Polk County
decision to call the Association's action private, the record
raises no reason for alarm here. Save for the Sixth Circuit, every
Court of Appeals to consider a statewide athletic association like
the one here has found it a state actor. This majority view began
taking shape even before
Tarkanian, which cited two such
decisions approvingly, see
supra, at 298 (and this was six
years after
Blum, Rendell-Baker, and
Lugar, on which
the Sixth Circuit relied here). No one, however, has pointed to any
explosion of § 1983 cases against interscholastic athletic
associations in the affected jurisdictions. Not to put too fine a
point on it, two District Courts in Tennessee have previously held
the Association itself to be a state actor, see
Graham, 1995
WL 115890, at *5;
Crocker v.
Tennessee Secondary School
Athletic Assn., 735 F. Supp. 753 (MD Tenn. 1990), affirmance
order,
908 F.2d
972, 973 (CA6 1990), but there is no evident wave of litigation
working its way across the State. A reversal of the judgment here
portends nothing more than the harmony of an outlying Circuit with
precedent otherwise uniform.
Nor do we think there is anything to be said for the
Association's contention that there is no need to treat it as a
state actor since any public school applying the Association's
rules is itself subject to suit under § 1983 or Title IX of the
Education Amendments of 1972, 86 Stat. 373, 20 U. S. C. §§
16811688. Brief for Respondents 30. If Brentwood's claim were
pushing at the edge of the class of possible defendant state
actors, an argument about the social utility of expand-
305
ing that class would at least be on point, but because we are
nowhere near the margin in this case, the Association is really
asking for nothing less than a dispensation for itself. Its
position boils down to saying that the Association should not be
dressed in state clothes because other, concededly public actors
are; that Brentwood should be kept out of court because a different
plaintiff raising a different claim in a different case may find
the courthouse open. Pleas for special treatment are hard to sell,
although saying that does not, of course, imply anything about the
merits of Brentwood's complaint; the issue here is merely whether
Brentwood properly names the Association as a § 1983 defendant, not
whether it should win on its claim.
The judgment of the Court of Appeals for the Sixth Circuit is
reversed, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
JUSTICE THOMAS, with whom THE CHIEF JUSTICE, JusTICE SCALIA, and
JUSTICE KENNEDY join, dissenting.
We have never found state action based upon mere "entwinement."
Until today, we have found a private organization's acts to
constitute state action only when the organization performed a
public function; was created, coerced, or encouraged by the
government; or acted in a symbiotic relationship with the
government. The majority's holdingthat the Tennessee Secondary
School Athletic Association's (TSSAA) enforcement of its recruiting
rule is state actionnot only extends state-action doctrine beyond
its permissible limits but also encroaches upon the realm of
individual freedom that the doctrine was meant to protect. I
respectfully dissent.
I
Like the state-action requirement of the Fourteenth Amendment,
the state-action element of 42 U. S. C. § 1983 excludes from its
coverage "merely private conduct, however
306
306 BRENTWOOD ACADEMY
v. TENNESSEE SECONDARY SCHOOL
ATHLETIC ASSN.
THOMAS, J., dissenting
discriminatory or wrongful."
American Mfrs. Mut. Ins. Co.
v.
Sullivan, 526 U. S. 40, 50 (1999)
(internal quotation marks omitted). "Careful adherence to the
'state action' requirement" thus "preserves an area of individual
freedom by limiting the reach of federal law and federal judicial
power."
Lugar v.
Edmondson Oil Co., 457 U. S. 922, 936
(1982). The state-action doctrine also promotes important values of
federalism, "avoid [ing] the imposition of responsibility on a
State for conduct it could not control."
National Collegiate
Athletic Assn. v.
Tarkanian, 488 U. S. 179, 191
(1988). Although we have used many different tests to identify
state action, they all have a common purpose. Our goal in every
case is to determine whether an action "can fairly be attributed to
the State."
Blum v.
Yaretsky, 457 U. S. 991, 1004
(1982); American Mfrs., supra, at 52.
A
Regardless of these various tests for state action, common sense
dictates that the TSSAA's actions cannot fairly be attributed to
the State, and thus cannot constitute state action. The TSSAA was
formed in 1925 as a private corporation to organize interscholastic
athletics and to sponsor tournaments among its member schools. Any
private or public secondary school may join the TSSAA by signing a
contract agreeing to comply with its rules and decisions. Although
public schools currently compose 84% of the TSSAA's membership, the
TSSAA does not require that public schools constitute a set
percentage of its membership, and, indeed, no public school need
join the TSSAA. The TSSAA's rules are enforced not by a state
agency but by its own board of control, which comprises high school
principals, assistant principals, and superintendents, none of whom
must work at a public school. Of course, at the time the recruiting
rule was enforced in this case, all of the board members happened
to be public school officials. However, each board member acts
in
307
a representative capacity on behalf of all the private and
public schools in his region of Tennessee, and not simply his
individual school.
The State of Tennessee did not create the TSSAA. The State does
not fund the TSSAA and does not pay its employees.1 In fact, only
4% of the TSSAA's revenue comes from the dues paid by member
schools; the bulk of its operating budget is derived from gate
receipts at tournaments it sponsors. The State does not permit the
TSSAA to use stateowned facilities for a discounted fee, and it
does not exempt the TSSAA from state taxation. No Tennessee law
authorizes the State to coordinate interscholastic athletics or
empowers another entity to organize interscholastic athletics on
behalf of the State.2 The only state pronouncement ac-
1 Although the TSSAA's employees, who typically are retired
teachers, are allowed to participate in the state retirement
system, the State does not pay any portion of the employer
contribution for them. The TSSAA is one of three private
associations, along with the Tennessee Education Association and
the Tennessee School Boards Association, whose employees are
statutorily permitted to participate in the state retirement
system. Tenn. Code Ann. §8-35-118 (1993).
2 The first formal state acknowledgment of the TSSAA's existence
did not occur until 1972, when the State Board of Education passed
a resolution stating that it "recognizes and designates [the TSSAA]
as the organization to supervise and regulate the athletic
activities in which the public junior and senior high schools of
Tennessee participate in on an interscholastic basis." App. 211.
There is no indication that the TSSAA invited this resolution or
that the resolution in any way altered the actions of the TSSAA or
the State following its adoption in 1972. In fact, it appears that
the resolution was not entirely accurate: The TSSAA does not
supervise or regulate regular season interscholastic contests. In
any event, the resolution was revoked in 1996. Contrary to the
majority's reference to its revocation as being "winks and nods,"
ante, at 301, the repeal of the 1972 resolution appears to
have had no more impact on the TSSAA's operation than did its
passage.
The majority also cites this resolution to support its assertion
that "[e]ver since the Association was incorporated in 1925,
Tennessee's State Board of Education ... has acknowledged the
corporation's function 'in
308
308 BRENTWOOD ACADEMY
v. TENNESSEE SECONDARY SCHOOL
ATHLETIC ASSN.
THOMAS, J., dissenting
knowledging the TSSAA's existence is a rule providing that the
State Board of Education permits public schools to maintain
membership in the TSSAA if they so choose.3
Moreover, the State of Tennessee has never had any involvement
in the particular action taken by the TSSAA in this case: the
enforcement of the TSSAA's recruiting rule prohibiting members from
using "undue influence" on students or their parents or guardians
"to secure or to retain a student for athletic purposes." App. 115.
There is no indication that the State has ever had any interest in
how schools choose to regulate recruiting.4 In fact, the TSSAA's
authority to enforce its recruiting rule arises solely from the
voluntary membership contract that each member school signs,
agreeing to conduct its athletics in accordance with the rules and
decisions of the TSSAA.
B
Even approaching the issue in terms of any of the Court's
specific state-action tests, the conclusion is the same: The
TSSAA's enforcement of its recruiting rule against Brentwood
Academy is not state action. In applying these tests,
providing standards, rules and regulations for interscholastic
competition in the public schools of Tennessee.' "
Ante, at
292. However, there is no evidence in the record that suggests that
the State of Tennessee or the State Board of Education had any
involvement or interest in the TSSAA prior to 1972.
3 The Rule 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." Tenn. Compo Rules & Regs. §
0520-1-2-.08(1) (2000).
4 The majority relies on the fact that the TSSAA permits members
of the State Board of Education to serve ex officio on its board of
control to support its "top-down" theory of state action. But these
members are not voting members of the TSSAA's board of control and
thus cannot exert any control over its actions.
309
courts of course must place the burden of persuasion on the
plaintiff, not the defendant, because state action is an element of
a § 1983 claim.
American Mfrs., 526 U. S., at 49-50;
West v.
Atkins, 487 U. S. 42, 48
(1988).
The TSSAA has not performed a function that has been
"traditionally exclusively reserved to the State."
Jackson
v.
Metropolitan Edison Co., 419 U. S. 345, 352
(1974). The organization of interscholastic sports is neither a
traditional nor an exclusive public function of the States.
Widespread organization and administration of interscholastic
contests by schools did not begin until the 20th century. See M.
Lee, A History of Physical Education and Sports in the U. S. A. 73
(1983) (explaining that what little interscholastic athletics there
was in the 19th century "came almost entirely in the closing decade
of the century and was largely pupil inspired, pupil controlled,
and pupil coached"); id., at 68, 146 (stating that no control of
high school sports occurred until 1896, when a group of teachers in
Wisconsin set up a committee to control such contests, and pointing
out that "[i]t was several years before the idea caught on in other
states"). Certainly, in Tennessee, the State did not even show an
interest in interscholastic athletics until 47 years after the
TSSAA had been in existence and had been orchestrating athletic
contests throughout the State. Even then, the State Board of
Education merely acquiesced in the TSSAA's actions and did not
assume the role of regulating interscholastic athletics. Cf.
Blum, 457 U. S., at 1004-1005 ("Mere approval of or
acquiescence in the initiatives of a private party is not
sufficient to justify holding the State responsible for those
initiatives ... "); see also
Flagg Bros., Inc. v.
Brooks, 436 U.
S. 149, 164-165 (1978). The TSSAA no doubt serves the public,
particularly the public schools, but the mere provision of a
service to the public does not render such provision a traditional
and exclusive public function. See
RendellBaker v.
Kohn, 457 U.
S. 830, 842 (1982).
310
310 BRENTWOOD ACADEMY
v. TENNESSEE SECONDARY SCHOOL
ATHLETIC ASSN.
THOMAS, J., dissenting
It is also obvious that the TSSAA is not an entity created and
controlled by the government for the purpose of fulfilling a
government objective, as was Amtrak in
Lebron v.
National
Railroad Passenger Corporation, 513 U. S. 374, 394
(1995). See also
Pennsylvania v.
Board of Directors of
City Trusts of Philadelphia, 353 U. S. 230 (1957)
(per curiam) (holding that a state agency created under
state law was a state actor). Indeed, no one claims that the State
of Tennessee played any role in the creation of the TSSAA as a
private corporation in 1925. The TSSAA was designed to fulfill an
objective-the organization of interscholastic athletic
tournaments-that the government had not contemplated, much less
pursued. And although the board of control currently is composed of
public school officials, and although public schools currently
account for the majority of the TSSAA's membership, this is not
required by the TSSAA's constitution.
In addition, the State of Tennessee has not "exercised coercive
power or ... provided such significant encouragement [to the
TSSAA], either overt or covert,"
Blum, 457 U. S., at 1004,
that the TSSAA's regulatory activities must in law be deemed to be
those of the State. The State has not promulgated any regulations
of interscholastic sports, and nothing in the record suggests that
the State has encouraged or coerced the TSSAA in enforcing its
recruiting rule. To be sure, public schools do provide a small
portion of the TSSAA's funding through their membership dues, but
no one argues that these dues are somehow conditioned on the
TSSAA's enactment and enforcement of recruiting rules.5
5 The majority emphasizes that public schools joining the TSSAA
"give up sources of their own income to their collective
association" by allowing the TSSAA "to charge for admission to
their games."
Ante, at 299. However, this would be equally
true whenever a State contracted with a private entity: The State
presumably could provide the same service for profit, if it so
chose. In
Rendell-Baker v.
Kohn, 457 U. S. 830 (1982), for
example, the State could have created its own school for students
with special needs and charged for admission. Or in
Blum v.
Yaretsky, 457
311
Likewise, even if the TSSAA were dependent on state funding to
the extent of 90%, as was the case in
Blum, instead of less
than 4%, mere financial dependence on the State does not convert
the TSSAA's actions into acts of the State. See
Blum, supra,
at 1011;
Rendell-Baker, supra, at 840; see also
Moose
Lodge No. 107 v.
Irvis, 407 U. S. 163, 173 (1972)
("The Court has never held, of course, that discrimination by an
otherwise private entity would be violative of the Equal Protection
Clause if the private entity receives any sort of benefit or
service at all from the State ... "). Furthermore, there is no
evidence of "joint participation,"
Lugar, 457 U. S., at
941-942, between the State and the TSSAA in the TSSAA's enforcement
of its recruiting rule. The TSSAA's board of control enforces its
recruiting rule solely in accordance with the authority granted to
it under the contract that each member signs.
Finally, there is no "symbiotic relationship" between the State
and the TSSAA.
Moose Lodge, supra, at 175; cf.
Burton
v.
Wilmington Parking Authority, 365 U. S. 715 (1961).
Contrary to the majority's assertion, see
ante, at 299-300,
the TSSAA's "fiscal relationship with the State is not different
from that of many contractors performing services for the
government."
Rendell-Baker, supra, at 843. The TSSAA
provides a service-the organization of athletic tournaments-in
exchange for membership dues and gate fees, just as a vendor could
contract with public schools to sell refreshments at school events.
Certainly the public school could sell its own refreshments, yet
the existence of that option does not transform the service
performed by the contractor into a state action. Also, there is no
suggestion in this case that, as was the case in
Burton, the
State profits from the TSSAA's decision to enforce its recruiting
rule.
u. S. 991 (1982), the State could have created its own nursing
homes and charged individuals to stay there. The ability of a State
to make money by performing a service it has chosen to buy from a
private entity is hardly an indication that the service provider is
a state actor.
312
312 BRENTWOOD ACADEMY
v. TENNESSEE SECONDARY SCHOOL
ATHLETIC ASSN.
THOMAS, J., dissenting
Because I do not believe that the TSSAA's action of enforcing
its recruiting rule is fairly attributable to the State of
Tennessee, I would affirm.
II
Although the TSSAA's enforcement activities cannot be considered
state action as a matter of common sense or under any of this
Court's existing theories of state action, the majority presents a
new theory. Under this theory, the majority holds that the
combination of factors it identifies evidences "entwinement" of the
State with the TSSAA, and that such entwinement converts private
action into state action.
Ante, at 296-297. The majority
does not define "entwinement," and the meaning of the term is not
altogether clear. But whatever this new "entwinement" theory may
entail, it lacks any support in our state-action jurisprudence.
Although the majority asserts that there are three examples of
entwinement analysis in our cases, there is no case in which we
have rested a finding of state action on entwinement alone.
Two of the cases on which the majority relies do not even use
the word "entwinement." See
Lebron v.
National Railroad
Passenger Corporation, supra; Pennsylvania v.
Board of
Directors of City Trusts of Philadelphia, supra. Lebron
concerned the status of Amtrak, a corporation that Congress created
and placed under Government control for the specific purpose of
achieving a governmental objective (namely, to avert the threatened
extinction of passenger train service in the United States). 513 U.
S., at 383, 386. Without discussing any notion of entwinement, we
simply held that, when "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. Similarly, in
313
City Trusts, we did not consider entwinement when we
addressed the question whether an agency established by state law
was a state actor. See 353 U. S., at 231. In that case, the
Pennsylvania Legislature passed a law creating a board of directors
to operate a racially segregated school for orphans.
Ibid.
Without mentioning "entwinement," we held that, because the board
was a state agency, its actions were attributable to the State.
Ibid.
The majority's third example,
Evans v.
Newton,
382 U. S. 296
(1966), lends no more support to an "entwinement" theory than do
Lebron and
City Trusts. Although
Evans at
least uses the word "entwined," 382 U. S., at 299 ("Conduct that is
formally 'private' may become so entwined with governmental
policies or so impregnated with a governmental character as to
become subject to the constitutional limitations placed upon state
action"), we did not discuss entwinement as a distinct concept, let
alone one sufficient to transform a private entity into a state
actor when traditional theories of state action do not. On the
contrary, our analysis rested on the recognition that the subject
of the dispute, a park, served a "public function," much like a
fire department or a police department.
Id., at 302. A park,
we noted, is a "public facility" that "serves the community."
Id., at 301302. Even if the city severed all ties to the
park and placed its operation in private hands, the park still
would be "municipal in nature," analogous to other public
facilities that have given rise to a finding of state action: the
streets of a company town in
Marsh v.
Alabama,
326 U. S. 501
(1946), the elective process in
Terry v.
Adams,
345 U. S. 461
(1953), and the transit system in
Public Util. Comm'n of D.
C. v.
Pollak, 343 U. S. 451 (1952). 382
U. S., at 301-302. Because the park served public functions, the
private trustees operating the park were considered to be state
actors.6
6We have used the word "entwined" in another case,
Gilmore v.
Montgomery, 417 U. S. 556, 565
(1974), which the majority does not cite. In
Gilmore, we
held that a city could not grant exclusive use of public
facili-
314
314 BRENTWOOD ACADEMY
v. TENNESSEE SECONDARY SCHOOL
ATHLETIC ASSN.
THOMAS, J., dissenting
These cases, therefore, cannot support the majority's
"entwinement" theory. Only
Evans speaks of entwinement at
all, and it does not do so in the same broad sense as does the
majority.7 Moreover, these cases do not suggest that the TSSAA's
activities can be considered state action, whether the label for
the state-action theory is "entwinement" or anything else.
***
Because the majority never defines "entwinement," the scope of
its holding is unclear. If we are fortunate, the majority's
fact-specific analysis will have little bearing beyond this case.
But if the majority's new entwinement test develops in future
years, it could affect many organizations that foster activities,
enforce rules, and sponsor extracurricular competition among high
schools-not just in athletics, but in such diverse areas as
agriculture, mathematics, music, marching bands, forensics, and
cheerleading. Indeed, this entwinement test may extend to other
organizations that are composed of, or controlled by, public
officials or public entities, such as firefighters, policemen,
teachers, cities, or coun-
ties to racially segregated groups.
Id., at 566. The
city, we determined, was "engaged in an elaborate subterfuge" to
circumvent a court order desegregating the city's recreational
facilities.
Id., at 567. The grant of exclusive authority
was little different from a formal agreement to run a segregated
recreational program.
Ibid. Thus, although we quoted the
"entwined" language from
Evans v.
Newton, 382 U. S. 296 (1966), we
were not using the term in the same loose sense the majority uses
it today. And there is certainly no suggestion that the TSSAA has
structured its recruiting rule specifically to evade review of an
activity that previously was deemed to be unconstitutional state
action.
7The majority's reference to
National Collegiate Athletic
Assn. v.
Tarkanian, 488 U. S. 179 (1988), as
foreshadowing this case,
ante, at 297-298, also does not
support its conclusion. Indeed, the reference to
Tarkanian
is ironic because it is not difficult to imagine that application
of the majority's entwinement test could change the result reached
in that case, so that the National Collegiate Athletic
Association's actions could be found to be state action given its
large number of public institution members that virtually control
the organization.
315
ties. I am not prepared to say that any private organization
that permits public entities and public officials to participate
acts as the State in anything or everything it does, and our
state-action jurisprudence has never reached that far. The
state-action doctrine was developed to reach only those actions
that are truly attributable to the State, not to subject private
citizens to the control of federal courts hearing § 1983
actions.
I respectfully dissent.
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