OPINION OF THE COURT
TENNESSEE SECONDARY SCHOOL ATHLETIC ASSN. V.BRENTWOOD ACADEMY
551 U. S. ____ (2007)
SUPREME COURT OF THE UNITED STATES
NO. 06-427
TENNESSEE SECONDARY SCHOOL ATHLETIC ASSOCIATION,
PETITIONER
v. BRENTWOOD ACADEMY
on writ of certiorari to the united states court of
appeals for the sixth circuit
[June 21, 2007]
Justice Stevens announced the
judgment of the Court and delivered the opinion of the Court with
respect to Parts I, II–B, III, and IV, and an opinion with respect
to Part II–A, in which Justice Souter, Justice Ginsburg, and
Justice Breyer join.
The principal issue before us is
whether the enforcement of a rule prohibiting high school coaches
from recruiting middle school athletes violates the First
Amendment. We also must decide whether the sanction imposed on
respondent for violating that rule was preceded by a fair
hearing.
I
Although this case has had a long
history, the relevant facts may be stated briefly. The Tennessee
Secondary School Athletic Association (TSSAA) is a not-for-profit
membership corporation organized to regulate interscholastic sports
among its members, which include some 290 public and 55 private
high schools in Tennessee. Brentwood Academy is one of those
private schools.
Since the early 1950’s, TSSAA has
prohibited high schools from using “undue influence” in recruiting
middle school students for their athletic programs. In April 1997,
Brentwood’s football coach sent a letter to a group of eighth-grade
boys inviting them to attend spring practice sessions. See App.
119. The letter explained that football equipment would be
distributed and that “getting involved as soon as possible would
definitely be to your advantage.”
Ibid. It was signed
“Your Coach.”
Ibid. While the boys who received the letter
had signed a contract signaling their intent to attend Brentwood,
none had enrolled within the meaning of TSSAA rules. See
id., at 182 (defining “enrolled” as having “attended 3
days of school”). All of the boys attended at least some of the
spring practice sessions. As the case comes to us, it is settled
that the coach’s pre-enrollment solicitation violated the TSSAA’s
anti-recruiting rule and that he had ample notice that his conduct
was prohibited.
TSSAA accordingly sanctioned Brentwood. After
proceeding through two layers of internal TSSAA review, Brentwood
brought this action against TSSAA and its executive director in
federal court under 42 U. S. C. §1983. As relevant here,
Brentwood made two claims: first, that enforcement of the rule was
state action in violation of the First and Fourteenth Amendments;
and second, that TSSAA’s flawed adjudication of its appeal had
deprived the school of due process of law. The District Court
granted relief to Brentwood, but the Court of Appeals reversed,
holding that TSSAA was a private voluntary association that did not
act under color of state law. We granted certiorari and reversed,
holding that the District Court was correct on the threshold issue.
Brentwood Academy v.
Tennessee Secondary School
Athletic Assn.,
531 U. S. 288 (2001). On
remand, the Sixth Circuit sent the case back to the District Court,
which once again ruled for Brentwood. 304 F. Supp. 2d 981 (MD
Tenn. 2003). TSSAA appealed, and the Court of Appeals affirmed over
one judge’s dissent. 442 F. 3d 410 (2006). The majority held
that the anti-recruiting rule is a content-based regulation of
speech that is not narrowly tailored to serve its permissible
purposes.
Id., at 420–431. It also concluded that the
TSSAA Board improperly considered
ex parte evidence during
its deliberations, thereby violating Brentwood’s due process
rights.
Id., at 433–438.
We again granted certiorari, 549 U. S. ___
(2007), and we again reverse.
II
The First Amendment protects
Brentwood’s right to publish truthful information about the school
and its athletic programs. It likewise protects the school’s right
to try to persuade prospective students and their parents that its
excellence in sports is a reason for enrolling. But Brentwood’s
speech rights are not absolute. It chose to join TSSAA, an athletic
league and a state actor invested with a three-fold obligation to
prevent the exploitation of children, to ensure that high school
athletics remain secondary to academics, and to promote fair
competition among its members. TSSAA submits that these interests
adequately support the enforcement against its member schools of a
rule prohibiting coaches from trying to recruit impressionable
middle school athletes. Brentwood disagrees, and maintains that
TSSAA’s asserted interests are too flimsy and its rule too broad to
support what the school views as a serious curtailment of its
constitutional rights. Two aspects of the case taken together
persuade us that TSSAA should prevail.
A
The anti-recruiting rule strikes
nowhere near the heart of the First Amendment. TSSAA has not banned
the dissemination of truthful information relating to sports, nor
has it claimed that it could. Cf.
Virginia Bd. of Pharmacy
v.
Virginia Citizens Consumer Council, Inc.,
425 U. S. 748 (1976)
(striking down a prohibition on advertising prices for prescription
drugs). It has only prevented its member schools’ coaches from
recruiting individual middle school students. Our cases teach that
there is a difference of constitutional dimension between rules
prohibiting appeals to the public at large, see
44 Liquormart,
Inc. v.
Rhode Island,
517 U. S. 484, 495–500
(1996), and rules prohibiting direct, personalized communication in
a coercive setting.
Ohralik v.
Ohio
State Bar Assn.,
436 U. S. 447 (1978),
nicely illustrates the point. In
Ohralik, we considered
whether the First Amendment disabled a state bar association from
disciplining a lawyer for the in-person solicitation of clients.
The lawyer argued that under our decision in
Bates v.
State Bar of Ariz., 433 U. S. 350, 384 (1977), which
invalidated on First Amendment grounds a ban on truthful
advertising relating to the “availability and terms of routine
legal services,” his solicitation was protected speech. We rejected
the lawyer’s argument, holding that the “in-person solicitation of
professional employment by a lawyer does not stand on a par with
truthful advertising about the availability and terms of routine
legal services, let alone with forms of speech more traditionally
within the concern of the First Amendment.” 436 U. S., at 455. We
reasoned that the solicitation ban was more akin to a conduct
regulation than a speech restriction:
“ ‘[I]t has never been deemed an abridgment of
freedom of speech or press to make a course of conduct illegal
merely because the conduct was in part initiated, evidenced, or
carried out by means of language, either spoken, written, or
printed.’ Numerous examples could be cited of communications that
are regulated without offending the First Amendment, such as the
exchange of information about securities, corporate proxy
statements, the exchange of price and production information among
competitors, and employers’ threats of retaliation for the labor
activities of employees … . Each of these examples
illustrates that the State does not lose its power to regulate
commercial activity deemed harmful to the public whenever speech is
a component of that activity.”
Id., at 456 (citations
omitted).
Drawing on these examples, we found that the
“[i]n-person solicitation by a lawyer of remunerative employment is
a business transaction in which speech is an essential but
subordinate component,”
id., at 457, the prohibition of
which raised few (if any) First Amendment problems.
Ohralik identified several evils
associated with direct solicitation distinct from the harms
presented by conventional commercial speech. Direct solicitation
“may exert pressure and often demands an immediate response,
without providing an opportunity for comparison or reflection,”
ibid.; its goal “may be to provide a one-sided
presentation and to encourage speedy and perhaps uninformed
decisionmaking,”
ibid.; and it short circuits the
“opportunity for intervention or counter-education by agencies of
the Bar, supervisory authorities, or persons close to the solicited
individual,”
ibid. For these reasons, we concluded that
in-person solicitation “actually may disserve the individual and
societal interest, identified in
Bates, in facilitating
‘informed and reliable decisionmaking.’ ”
Id., at 458
(quoting
Bates, 433 U. S., at 364).
We have since emphasized that
Ohralik’s “narrow” holding is limited to conduct that is
“ ‘inherently conducive to overreaching and other forms of
misconduct.’ ”
Edenfield v.
Fane,
507 U. S. 761, 774
(1993) (quoting
Ohralik, 436 U. S., at 464); see also
Zauderer v.
Office of Disciplinary Counsel of Supreme
Court of Ohio,
471 U. S. 626, 641
(1985) (emphasizing that
Ohralik involved a “practice rife
with possibilities for overreaching, invasion of privacy, the
exercise of undue influence, and outright fraud”). And we have not
been chary of invalidating state restrictions on solicitation and
commercial advertising in the absence of the acute risks associated
with in-person legal solicitation. See
Edenfield, 507 U.
S., at 775 (striking down a restriction on in-person solicitation
by accountants because such solicitation “poses none of the same
dangers” identified in
Ohralik);
Zauderer, 471 U.
S., at 639–647 (invalidating a restriction on truthful,
nondeceptive legal advertising directed at people with specific
legal problems);
Shapero v.
Kentucky Bar Assn.,
486 U. S. 466,
472–478 (1988) (overturning a blanket proscription on all forms of
legal solicitation). In our view, however, the dangers of undue
influence and overreaching that exist when a lawyer chases an
ambulance are also present when a high school coach contacts an
eighth grader.
After all, it is a heady thing for an
eighth-grade student to be contacted directly by a coach—here,
“Your Coach”—and invited to join a high school sports team. In too
many cases, the invitation will come accompanied with a suggestion,
subtle or otherwise, that failure to accept will hurt the student’s
chances to play high school sports and diminish the odds that she
could continue on to college or (dream of dreams) professional
sports. Cf. App. 119 (“I do feel that getting involved as soon as
possible would definitely be to your advantage”).[
Footnote 1] Such a potent entreaty, playing
as it does on youthful hopes and fears, could well exert the kind
of undue pressure that “disserve[s] the individual and societal
interest … in facilitating ‘informed and reliable
decisionmaking.’ ”
Ohralik, 436 U. S., at 458. Given
that TSSAA member schools remain free to send brochures, post
billboards, and otherwise advertise their athletic programs,
TSSAA’s limited regulation of recruiting conduct poses no
significant First Amendment concerns.
B
Brentwood made a voluntary
decision to join TSSAA and to abide by its antirecruiting rule. See
Brentwood, 531 U. S., at 291 (“No school is forced to
join”); cf.
Grove City College v.
Bell,
465 U. S. 555, 575
(1984). Just as the government’s interest in running an effective
workplace can in some circumstances outweigh employee speech
rights, see
Connick v.
Myers,
461 U. S. 138 (1983), so
too can an athletic league’s interest in enforcing its rules
sometimes warrant curtailing the speech of its voluntary
participants. See
Pickering v.
Board of Ed. of
Township High School Dist. 205, Will Cty.,
391 U. S. 563, 568
(1968) (holding that the scope of a government employee’s First
Amendment rights depends on the “balance between the interests of
the [employee], as a citizen, in commenting upon matters of public
concern and the interest of the State, as an employer, in promoting
the efficiency of the public services it performs through its
employees”); see also
Board of Comm’rs, Wabaunsee Cty. v.
Umbehr,
518
U. S. 668, 679 (1996) (“eschew[ing]” a formal approach to
determining which contractual relationships call for the
application of
Pickering balancing). This is not to say
that TSSAA has unbounded authority to condition membership on the
relinquishment of any and all constitutional rights. As we recently
emphasized in the employment context, “[s]o long as employees are
speaking as citizens about matters of public concern, they must
face only those speech restrictions that are necessary for their
employers to operate efficiently and effectively.”
Garcetti v.
Ceballos, 547 U. S. ___, ___ (2006)
(slip op., at 7). Assuming, without deciding, that the coach in
this case was “speaking as [a] citize[n] about matters of public
concern,”
ibid., TSSAA can similarly impose only those
conditions on such speech that are necessary to managing an
efficient and effective state-sponsored high school athletic
league.
That necessity is obviously
present here. We need no empirical data to credit TSSAA’s
common-sense conclusion that hard-sell tactics directed at middle
school students could lead to exploitation, distort competition
between high school teams, and foster an environment in which
athletics are prized more highly than academics. See
Paris
Adult Theatre I v.
Slaton,
413 U. S. 49, 60 (1973).
TSSAA’s rule discourages precisely the sort of conduct that might
lead to those harms, any one of which would detract from a high
school sports league’s ability to operate “efficiently and
effectively.”
Garcetti, 547 U. S., at ___ (slip op., at
7). For that reason, the First Amendment does not excuse Brentwood
from abiding by the same anti-recruiting rule that governs the
conduct of its sister schools. To hold otherwise would undermine
the principle, succinctly articulated by the dissenting judge at
the Court of Appeals, that “[h]igh school football is a game. Games
have rules.” 442 F. 3d, at 444 (opinion of Rogers, J.). It is
only fair that Brentwood follow them.
III
The decision to sanction
Brentwood for engaging in prohibited recruiting was preceded by an
investigation, several meetings, exchanges of correspondence, see
App. 120–123 (fax from Brentwood’s coach to TSSAA’s executive
director),
id., at 124–127 (memorandum from director to
Brentwood’s headmaster),
id., at 128–133 (letter from the
headmaster responding to the director’s memorandum),
id.,
at 204–211 (letter from TSSAA director to headmaster with further
questions);
id., at 212–229 (responsive letter from
Brentwood’s headmaster), an adverse written determination from
TSSAA’s executive director,
id., at 238–244, a hearing
before the director and an advisory panel composed of three members
of TSSAA’s Board of Control, see
id., at 254–258, and
finally a
de novo review by the entire TSSAA Board of
Directors, see
id., at 269–271. During the investigation,
Brentwood was notified of all the charges against it. At each of
the two hearings, Brentwood was represented by counsel and given
the opportunity to adduce evidence. No evidence offered by
Brentwood was excluded.
Brentwood nevertheless maintains
that its due process rights were violated when the full TSSAA
board, during its deliberations, heard from witnesses and
considered evidence that the school had no opportunity to respond
to. Some background is necessary to understand the claim. One of
the matters under investigation was whether an Amateur Athletic
Union basketball coach named Bart King had pushed talented middle
school students—including a basketball star named Jacques Curry—to
attend Brentwood. See,
e.g.,
id., at 220, 222
(letter from Brentwood’s headmaster discussing the allegation that
King had told Curry that if he attended Brentwood, he “would
probably have a car when he is in the tenth grade”).
Brentwood consistently maintained that King had no affiliation with
the school and no authority to act on its behalf. See,
e.g.,
id., at 221–222. Nevertheless, the initial
decision by TSSAA’s executive director, as well as the subsequent
decision by the director and the advisory panel, declared Curry (as
well as several other players) ineligible to play for Brentwood.
See
id., at 243 (blanket ineligibility), 255
(ineligibility for varsity sports).
As it had in earlier stages of the case, in
Brentwood’s final appeal to the TSSAA Board, the school offered
live testimony from Curry and an affidavit from King denying the
alleged recruiting violations. See
id., at 264–267
(Curry’s testimony);
id., at 261 (listing “Affidavit of
Bart King” as an exhibit).[
Footnote
2] Once Curry had testified, Brentwood’s counsel advised the
board that King was available to answer any questions, but did not
call him as a witness.[
Footnote
3] After reviewing the evidence, the board found that Brentwood
had committed three specific violations of its rules, none of which
appeared to involve either King or Curry, and it reinstated Curry’s
eligibility.
Id., at 269–271. As a penalty for the three
violations, the board put Brentwood’s athletic program on probation
for four years, excluded the boys’ basketball and football teams
from tournament playoffs for two years, and imposed a $3,000 fine.
Id., at 270.
During its deliberations, the board discussed
the case with the executive director who had presided at the
earlier proceedings and two TSSAA investigators, none of whom had
been cross-examined. The investigators also provided handwritten
notes to the board detailing their investigations; Brentwood never
received those notes. The District Court found that the
consideration of the
ex parte evidence influenced the
board’s penalty decision and contravened the Due Process Clause.
304 F. Supp. 2d, at 1003–1006. The Court of Appeals accepted
that finding, as well as the conclusion that the evidence tainted
the fairness of the proceeding. 442 F. 3d, at 433–438. TSSAA
now maintains that the lower courts erred.
We agree. Even accepting the questionable
holding that TSSAA’s closed-door deliberations were
unconstitutional, we can safely conclude that any due process
violation was harmless beyond a reasonable doubt. To begin with, it
is hard to believe that the King allegations increased the severity
of the penalties leveled against Brentwood.[
Footnote 4] But more importantly, Brentwood’s claim of
prejudice rests on the unsupported premise that it would have
adopted a different and more effective strategy at the board
hearing had it been given an opportunity to cross-examine the
investigators and review their notes. Despite having had nearly a
decade since the hearing to undertake that cross-examination and
review, Brentwood has identified nothing the investigators shared
with the board that Brentwood did not already know.[
Footnote 5] Perhaps that is why Brentwood
never explains what a more effective strategy might have looked
like. Brentwood obliquely suggests it might have had King testify
at the hearing, but it gives no inkling of what his testimony would
have added to the proceedings. We are not inclined to speculate on
its behalf.
IV
We accordingly reverse the
judgment of the Court of Appeals and remand the case for further
proceedings consistent with this opinion.
It is so ordered.
Footnote 1
When asked at trial about this language from
the offending letter, the Brentwood football coach acknowledged
that “[i]n some cases” the middle school student is “not going to
think that’s optional.” App. 301.
Footnote 2
The District Court’s conclusion that “[t]here
was no indication from the TSSAA before the final hearing … that
the organization was still considering the Bart King allegations”
is clearly erroneous. 304 F. Supp. 2d 981, 1004, n. 29 (MD
Tenn. 2003); see also 442 F. 3d 410, 435, and n. 20 (CA6
2006) (affirming finding). Brentwood appealed to the full board in
part to overturn the ineligibility sanction that had been leveled
against Curry and several other players. See App. 255. Because the
only justification for declaring Curry ineligible was that King had
improperly recruited him to play for Brentwood, the King
allegations were obviously at issue. Brentwood understood as much.
It otherwise would have been wasted effort for King to submit an
affidavit and for Curry to testify.
Similarly, given that Curry testified in some
detail about his relationship with King,
id., at 264–267,
the Court of Appeals incorrectly concluded that the discussion of
King was limited to a brief exchange about whether King would
testify. See 442 F. 3d, at 435 (“Evidently this was the only
discussion of King at the hearing”).
Footnote 3
“[Brentwood’s lawyer]: Any other questions?
That’s going to be it for our proof. If I could make just a few
concluding remarks.
“By the way, we have Bart King here to answer any questions. And
it was our intention to put him on, but I don’t know if you all are
interested in extending for five minutes to hear from Bart King or
not. He’s here if you want him.
“[TSSAA’s Executive Director]: No.
“[Brentwood’s lawyer]: No. All right.” App.
267.
Footnote 4
At trial, a board member testified that the
board “dropped” the charges relating to King,
id., at 347
(testimony of Michael Hammond), which explains why the board
restored Curry’s eligibility. The fine, the probationary period,
and the playoff suspension had all been imposed at earlier stages
of the proceedings, see
id., at 243, 255, suggesting that
the board was as a practical matter just affirming penalties
associated with the remaining recruiting violations. The King
allegations appear to have played a negligible role in choosing
which penalties to assess.
The District Court drew its contrary
conclusion from a single piece of evidence: the board president’s
affirmative response during a deposition to a question about
whether the King allegations supported the board’s finding that the
recruiting rule had been violated. 442 F. 3d, at 435–436. As
the board president clarified at trial, however, while the King
allegations were a “ ‘factor’ ” in the board’s
discussions, the “ ‘final penalty did not involve Bart
King … . [T]he final penalty really dealt with the letter
from Mr. Flatt.’ ”
Id., at 436. Thinking it a close
call,
ibid. (“Whether the King issue was actually a factor
in the penalties ultimately imposed is far less certain”), the
Court of Appeals held that the District Court could credit the
board president’s deposition testimony over his subsequent
qualification of that testimony. We agree with the dissenting judge
below that “so slender an evidentiary reed” cannot support the
conclusion that TSSAA violated Brentwood’s procedural rights.
Id., at 454 (opinion of Rogers, J.).
Footnote 5
Nor has our independent review of the
investigators’ notes unearthed any allegation of misconduct that
would have been new to Brentwood. See XV App. in No. 03–5245 etc.
(CA 2006), pp. 4178–4193.
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