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1 IN THE SUPREME COURT OF THE UNITED STATES

2 - - - - - - - - - - - - - - - -X

3 BRENTWOOD ACADEMY, :

4 Petitioner :

5 v. : No. 99-901

6 TENNESSEE SECONDARY SCHOOL :

7 ATHLETIC ASSOCIATION, ET AL. :

8 - - - - - - - - - - - - - - - -X

9 Washington, D.C.

10 Wednesday, October 11, 2000

11 The above-entitled matter came on for oral

12 argument before the Supreme Court of the United States at

13 11:06 a.m.

14 APPEARANCES:

15 JAMES F. BLUMSTEIN, ESQ., Nashville, Tennessee; on behalf

16 of the Petitioner.

17 BARBARA D. UNDERWOOD, ESQ., Deputy Solicitor General,

18 Department of Justice, Washington, D.C.; on behalf of

19 the United States, as amicus curiae, supporting the

20 Petitioner.

21 RICHARD L. COLBERT, ESQ., Nashville, Tennessee; on behalf

22 of the Respondents.

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1

1 C O N T E N T S

2 ORAL ARGUMENT OF PAGE

3 JAMES F. BLUMSTEIN, ESQ.

4 On behalf of the Petitioner 3

5 ORAL ARGUMENT OF

6 BARBARA D. UNDERWOOD, ESQ.

7 On behalf of the United States, as amicus curiae,

8 supporting the Petitioner 18

9 ORAL ARGUMENT OF

10 RICHARD L. COLBERT, ESQ.

11 On behalf of the Respondents 27

12 REBUTTAL ARGUMENT OF

13 JAMES F. BLUMSTEIN, ESQ.

14 On behalf of the Petitioner 49

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2

1 P R O C E E D I N G S

2 (11:06 a.m.)

3 CHIEF JUSTICE REHNQUIST: We'll hear argument

4 next in Number 99-901, Brentwood Academy v. Tennessee

5 Secondary School Athletic Association.

6 Mr. Blumstein.

7 ORAL ARGUMENT OF JAMES F. BLUMSTEIN

8 ON BEHALF OF THE PETITIONER

9 MR. BLUMSTEIN: Mr. Chief Justice and may it

10 please the Court:

11 This case involves the State action status of

12 the regulatory conduct of a high school athletic

13 association, the respondent, the Tennessee Secondary

14 School Athletic Association, or what we call the TSSAA.

15 Under the analysis of this Court's decision in

16 NCAA v. Tarkanian, State action exists in this case

17 because first, the regulatory conduct of the TSSAA is

18 attributable to the entity or entities that control the

19 organization and, secondly, Government institutions, in

20 this case public schools, control the TSSAA's conduct and

21 are therefore constitutionally accountable for its

22 regulatory conduct.

23 QUESTION: Mr. Blumstein, the court of appeals

24 in this case went through three different tests that they

25 thought our cases support, a public function, State

3

1 compulsion, symbiotic, and said this didn't fit into any

2 one of those three. Now, do you disagree with the court

3 of appeals on those points, or do you think we should

4 simply expand the State action concept?

5 MR. BLUMSTEIN: Mr. Chief Justice, the court of

6 appeals did not look at the local level interactions

7 between the TSSAA and the public schools. It looked

8 exclusively at the State-level relationships, and so we

9 think it overlooked the core ingredients of the Tarkanian

10 analysis. It was the local-level interconnections.

11 There are two levels of State interaction with

12 the TSSAA. At the State level, the State Board of

13 Education for 24 years explicitly designated this

14 organization as its agent to regulate interscholastic

15 athletics for all schools in Tennessee.

16 That was repealed, or changed in 1996, and now

17 it recognizes, continues to recognize the role of the

18 TSSAA and specifically authorizes the schools to maintain

19 their membership in the TSSAA and the court of appeals

20 focused exclusively on that State-level relationship.

21 Under the Tarkanian analysis, Your Honor, the

22 local levels, the public schools that control this

23 organization, that comprise 84 percent of the membership,

24 where there's one school, one vote, control the

25 organization and under the Tarkanian analysis we think

4

1 the --

2 QUESTION: Well, would you state what you think

3 the test is, without being so fact-specific? What's the

4 test for State action, in your view?

5 MR. BLUMSTEIN: Justice O'Connor, in this case,

6 building on the --

7 QUESTION: Not in this case, in all cases.

8 What's the test?

9 MR. BLUMSTEIN: Well, whether the -- in this

10 case whether the governmental institutions, in this case

11 public schools, control the activity and so that it is

12 fair to say that this is attributable to the Government

13 because the Government, or its public schools in this

14 case, control the decisionmaking.

15 This is -- case is unlike many of this Court's

16 other cases, such as Rendell-Baker v. Kohn, involving a

17 school, Blum v. Yaretsky, involving a nursing home,

18 Jackson v. Metropolitan Edison, involving a private

19 utility. In all of those circumstances, Justice O'Connor,

20 the privateness, if you will, the formal privateness of

21 the organization was assumed, and the question was whether

22 the Government as purchaser, or Government as regulator,

23 transformed that private, concededly private entity into

24 State actor status.

25 In this case, that very threshold question is

5

1 what is at stake. There is nothing really private, except

2 formally private, about this organization. It is

3 controlled by public schools, 84 percent of the membership

4 is public schools, it's run by public --

5 QUESTION: Wait, let's -- it's controlled by

6 public schools. You say that because a majority of its

7 board are public school principals?

8 MR. BLUMSTEIN: Of its members, Justice Scalia.

9 QUESTION: Of -- well, of its -- but principally

10 its governing board. It wouldn't matter if its members,

11 if its governing board, I assume, were overwhelmingly

12 governmental you'd say it's still a governmental agency.

13 MR. BLUMSTEIN: Well, I think that under the

14 control principle --

15 QUESTION: Oh. You're relying on the

16 membership, not -- I thought you were relying on the

17 control.

18 MR. BLUMSTEIN: On the composition. We think

19 both are important, but it's --

20 QUESTION: I see.

21 MR. BLUMSTEIN: -- ultimately the control of the

22 organization in a one-school, one-vote situation is the

23 membership of the organization.

24 QUESTION: So if this organization were composed

25 of 49 percent public school -- public schools and 51

6

1 percent private schools, it would be okay?

2 MR. BLUMSTEIN: Justice Scalia, we think there's

3 an analogy to the separation of powers cases, the

4 Washington Metropolitan Airports case, and Bowsher v.

5 Synar and the question of control -- there's an effective

6 control question and a formal control question. We're not

7 anywhere close to the effective control question here.

8 QUESTION: But in the Washington Airport case it

9 was the Government which said the decisionmakers here

10 shall be ex officio members of certain committees. It was

11 the Government that said that.

12 Here it is not the Government, it is the

13 organization which has a rule that you have to be a

14 principal to be -- to serve on the governing board, and it

15 is the organization, certainly not the Government, that

16 says, you know, what schools will be a member, members of

17 the organization. It seems to me that's very different

18 from --

19 MR. BLUMSTEIN: But it is the organization

20 that's controlled by governmental institutions, so --

21 QUESTION: Well, Mr. Blumstein, supposing that

22 all the principals, say in Eastern Tennessee, or Middle

23 Tennessee, some area, got together, private schools,

24 public schools, and said we want to form a principals

25 association and get together once a month and we'll have a

7

1 convention in the summertime, and they don't get paid,

2 they do it on their own time, and they decide they're

3 going to give a principals' award to the best student in

4 Eastern Tennessee, and they give that award. Now, is that

5 State action?

6 MR. BLUMSTEIN: Your Honor, if the

7 organization -- if they're serving in their official

8 capacity as principals, if they're representing the

9 schools, and if they are allowing private and public

10 schools to participate in some awarding process, whether

11 it be a principals' association or a German Club, if the

12 German departments of the State decided that they --

13 QUESTION: Well, my hypothesis was that the

14 principals did it on their own time. They're in the

15 organization because they're a principal of a school, but

16 the Government isn't paying their way, and they're not

17 exercising any State power, really, when they do this.

18 They're just conceiving this award on their own and

19 they're giving it away.

20 MR. BLUMSTEIN: Your Honor, as one moves towards

21 the -- a coaches' association or principals' association,

22 I concede that it is conceivable that public officials

23 will have a nonpublic function, or nongovernmental

24 function that they can perform, and they would not be

25 State actors.

8

1 I think in this case the public officials are

2 serving because of their relationship to the school,

3 because they are the principals in the school, and the

4 clearest example of that is in the constitutional

5 provision of the TSSAA regarding vacancies.

6 If there is a person who is a member of the

7 board of control, or a member of the legislative council,

8 and that person's school disaffiliates with the

9 organization, then that person's term of office on the

10 board of control or the legislative council terminates, so

11 it is clear that these persons are not there as

12 individuals, but there as -- in their representative

13 capacity of the schools that they represent.

14 QUESTION: You could have had the same rule in

15 the hypothetical that the Chief Justice posed. Would that

16 rule have changed your answer to that question?

17 MR. BLUMSTEIN: Well, Your Honor, in this

18 case --

19 QUESTION: That sure doesn't seem to me to

20 establish whether the principal is serving as an agent of

21 the Government or is serving on his own. It seems to me

22 that's the crucial question.

23 MR. BLUMSTEIN: Well, I agree, Your Honor, and I

24 think that in this case, as the Government argues in its

25 amicus brief, that you have control linked with a

9

1 functional analysis as to what is the function that is

2 being performed, and here the public schools, all of which

3 have joined this organization, so that if you want to play

4 a game against a public school, you must either be a

5 member of this organization or you must get game-by-game

6 written approval by the organization.

7 QUESTION: Well now, that's a different

8 question. I mean, you have a remedy there.

9 I assume that there could be a constitutional

10 violation in a Government turning over its determination

11 of who will play in intramural sports to an organization

12 that is not providing due process, or to an organization

13 that discriminates on the basis of race, but that's not

14 the argument that you're making here, that it's improper

15 for the schools to deal with this organization. You're

16 saying this organization itself is the State.

17 MR. BLUMSTEIN: Well, we're saying that it's

18 controlled by governmental institutions, whether formally

19 we are -- we want to argue, following the Court's decision

20 in Lebron, that this is an arm of the State, or whether we

21 want to provide a bright-line rule so that we don't have

22 to traverse this difficult area of State action in every

23 case, this case is different from every other case that

24 the Court has decided in this regard because the control

25 is by governmental institutions, and the organization is

10

1 exercising a governmental function.

2 QUESTION: And it hasn't --

3 QUESTION: You say the control is by

4 governmental institution, and the principal of the school

5 goes to this -- sits on this board, or belongs to the --

6 by reason of the fact he's a principal. What other

7 control does the school he comes from exercise over him?

8 MR. BLUMSTEIN: Over him?

9 QUESTION: Yes, or over his vote in the

10 association.

11 MR. BLUMSTEIN: Well, the --

12 QUESTION: I mean, does the record show?

13 MR. BLUMSTEIN: The record only shows that the

14 vote must -- can only be done by a principal or by a

15 teacher of the school as the representative of the school.

16 We don't know exactly how control is exercised within the

17 institution of the Government, but this person is acting

18 in his or her official --

19 QUESTION: How -- why do you say that?

20 MR. BLUMSTEIN: -- ex officio.

21 Because the schools are the members of the

22 organization. It's not the officials. It's not a

23 coaches' association. It's not an association of

24 principals. This is an association of schools, of public

25 schools and private schools, 84 percent public schools.

11

1 QUESTION: And -- but the fact that the

2 principals are joined in the organization by private

3 school principals too makes no difference?

4 MR. BLUMSTEIN: Well, the control in this case

5 is with the schools that run the organization and I think

6 under the circumstances the decision is fairly

7 attributable to the State. This is a decision that public

8 schools are making. They control the organization, they

9 drive the agenda, and that they have control over the --

10 QUESTION: Excuse me. You say they control the

11 organization. I -- every issue isn't brought to the whole

12 body. I mean, do they assemble all of the principals? I

13 thought this was run by a governing board, and your

14 complaint is that the governing board is what, elected by

15 all the principals, which come from mostly public schools?

16 MR. BLUMSTEIN: There's both an as-applied and a

17 facial challenge. The facial challenge does not focus

18 upon action of the governing board. It focuses upon the

19 recruiting rule, which is adopted by the body. Then there

20 is the implementation, the disciplinary proceeding --

21 QUESTION: Well, excuse me, which is adopted by

22 the body how? How does the body adopt that rule?

23 MR. BLUMSTEIN: In a one-school, one-vote --

24 QUESTION: Okay. That is done on a floor vote?

25 MR. BLUMSTEIN: Yes, and the as-applied

12

1 challenge focuses on the implementation, the disciplinary

2 proceeding, and that requires a decision at first by the

3 executive director, and then it was appealed through

4 the -- an internal procedure, appeals procedure,

5 ultimately ending up at the board of control, which is

6 this governing body, and they affirmed the decision and

7 ultimately the disciplinary action was taken by the board

8 of control, which was composed in the relevant time frame

9 of 100-percent public school principals serving ex officio

10 again.

11 QUESTION: Do you have to -- if you're a school

12 that plays in this league, do you have to send somebody to

13 this organization to vote on such things as this rule that

14 you're objecting to?

15 MR. BLUMSTEIN: Is there a duty to vote?

16 QUESTION: Is there a duty to have a person

17 there on the floor?

18 MR. BLUMSTEIN: I don't believe that there is,

19 Your Honor.

20 QUESTION: So -- and although being a principal

21 is a condition of being a member, a voting member, can a

22 principal decide, I'm not interested in this and I won't

23 do it?

24 MR. BLUMSTEIN: Not to participate in --

25 QUESTION: Yes, not to participate in the

13

1 organization.

2 MR. BLUMSTEIN: I believe the school can

3 exercise its right not to vote in the process, but they

4 have ultimate control and in Bowsher v. Synar we were told

5 that it is the ability to control, not how the control is

6 exercised, that is critical.

7 QUESTION: Mr. Blumstein, isn't a question of

8 not simply control, but control over what?

9 For example, returning to the Chief's

10 hypothetical, if this were a group of principals meeting

11 not to make an award to a student for diligence, but were

12 meeting to set the curriculum that would be used in all

13 the schools within the association. If that's what the

14 purpose of the principals' meeting, and what they decided

15 became the curriculum for the school --

16 MR. BLUMSTEIN: Yes, Justice Ginsburg. There

17 has to be a mixture of the control and also an analysis of

18 the function, the governmental function that is being

19 performed and in this case you're quite correct, if it

20 were a curriculum matter, or in this case an

21 extracurricular matter that this Court in the Santa Fe

22 case talked about being a highly visible, Government-

23 sponsored school-related activity, under those

24 circumstances the allocation of this resource, the ability

25 to play against the public schools in sports, is the

14

1 public, or governmental function that is being performed

2 in this case.

3 It's part of the overall educational process of

4 the State of Tennessee, and it's part of the fabric of the

5 educational institution, and in the Santa Fe case this --

6 QUESTION: So you would say it's just like if

7 they were having a body that would decide what will be

8 taught in the math courses in the schools.

9 MR. BLUMSTEIN: Well, Your Honor, if this -- if

10 the lower court is affirmed in this case, then we can

11 expect to have associations of the German department

12 chairs, and of the history department chairs and so forth,

13 and if the court of appeals is right in this, that all

14 that it takes is a formalistic change in a State-wide

15 rule, then we can see delegation and privatization I think

16 of many other areas of our school activity and

17 noneducational activity as well.

18 QUESTION: In this case I suppose it follows

19 from your argument that all of the rules and regulations

20 that are promulgated by the association are promulgated by

21 a State entity, correct?

22 MR. BLUMSTEIN: From the TSSAA, Your Honor?

23 QUESTION: These are just like -- there are --

24 all rules and regulations they pronounce after -- if you

25 prevail will be State rules.

15

1 MR. BLUMSTEIN: If those rules --

2 QUESTION: Are there parochial schools that are

3 members of this association?

4 MR. BLUMSTEIN: There are religious schools that

5 are members of this association.

6 QUESTION: And so the result would be that all

7 rules and regulations must be governed by the First

8 Amendment, no crucifixes in the locker room. That would

9 be a permissible regulation.

10 MR. BLUMSTEIN: If the -- I'm sorry, if the

11 association promulgated --

12 QUESTION: Under your view, all of the rules and

13 regulations are now the rules of the State actor, and

14 parochial schools are members of this body.

15 MR. BLUMSTEIN: Yes, Your Honor, the parochial

16 schools are members of the body, and if the organization,

17 the TSSAA had a rule that, for example, banned prayer at

18 games in which the organizations participated, then it

19 would be -- the rules would be subject to constitutional

20 scrutiny. The rules of the association would be subject

21 to constitutional scrutiny.

22 QUESTION: But do you agree that the -- even if

23 two parochial schools were playing each other?

24 MR. BLUMSTEIN: Well, under the TSSAA bylaws,

25 schools do not have the authority to undo these rules.

16

1 They are bound to abide by the rules, and the rules

2 themselves would -- I think would be subject to scrutiny.

3 If a religious organization is uncomfortable with a

4 constraint upon its religious exercise, then it has the

5 ability to choose not to play against the public schools.

6 QUESTION: Well, I suppose we could say the same

7 thing about Brentwood Academy. You can just withdraw from

8 the association if you don't like it.

9 MR. BLUMSTEIN: Well, that's the respondent's

10 position, Your Honor, but if you want to play against the

11 public schools --

12 QUESTION: I thought you just said that was your

13 position with reference to the parochial schools.

14 MR. BLUMSTEIN: Yes, Your Honor, but it

15 wouldn't -- I'm staying with the State actor status. It

16 would be a State actor, and I'm trying to be consistent

17 with our position that the activity of the association as

18 controlled by these governmental institutions would be

19 subject to constitutional scrutiny, and if --

20 QUESTION: You're not arguing that the parochial

21 school would be a State actor?

22 MR. BLUMSTEIN: No.

23 QUESTION: No, okay.

24 MR. BLUMSTEIN: No, no. Just the rules of the

25 association are subject --

17

1 QUESTION: And you're not claiming -- you don't

2 concede that in Justice Kennedy's hypothetical that the

3 prayer rule would be unconstitutional, do you?

4 MR. BLUMSTEIN: A ban on prayer? No.

5 QUESTION: Yes.

6 MR. BLUMSTEIN: No.

7 QUESTION: And you're saying this is

8 unconstitutional, and as a member of the association you

9 have a right to object to it because the association has a

10 public character.

11 MR. BLUMSTEIN: Yes. The -- whether it be a

12 ban, or whatever the rule would be that would be

13 promulgated by this organization would be subject to

14 constitutional scrutiny. Yes, Justice Souter, that is our

15 position.

16 QUESTION: You're not discussing the merits,

17 whether the First Amendment gives Brentwood a right to

18 recruit outside the rules?

19 MR. BLUMSTEIN: No, Mr. Chief Justice. We're

20 hoping to survive to live another day to fight that issue

21 in the lower court.

22 And I'd like to reserve some time, if I might.

23 QUESTION: Very well.

24 Ms. Underwood, we'll hear from you.

25 ORAL ARGUMENT OF BARBARA D. UNDERWOOD

18

1 ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE,

2 SUPPORTING THE PETITIONER

3 MS. UNDERWOOD: Mr. Chief Justice, and may it

4 please the Court:

5 When a group of public schools, all State

6 actors, join together in an association to run a program

7 for students, that association is a State actor, too, and

8 its status should not change when it admits a relatively

9 small number of private school members.

10 QUESTION: What if it admitted a huge number of

11 private school members?

12 MS. UNDERWOOD: Well, if the -- if it

13 admitted -- if the membership were more private school

14 than public school, it would cease to be a public entity

15 on the theory that we're advancing here. One would have

16 to look at other questions. There might be other reasons

17 why its actions should be attributed to the State, or they

18 might not be.

19 QUESTION: Well, assume -- let's assume that it

20 performs the same function that is being performed here in

21 regulating public school contests. Would you say that

22 that was a factor that ought to be considered, even though

23 the membership was predominantly private?

24 MS. UNDERWOOD: It would be a factor that ought

25 to be considered, but it would be a different case and a

19

1 weaker case, and perhaps more like --

2 QUESTION: Sure.

3 MS. UNDERWOOD: -- NCAA v. --

4 QUESTION: But that's one of the things you'd

5 look to?

6 MS. UNDERWOOD: Absolutely. Absolutely, but

7 this case is easier, because in fact -- well, Tarkanian

8 held that an association of mostly private colleges from

9 many States did not acquire State actor status from one of

10 its members, the member, the public university that was at

11 issue in that case. The court noted that the case would

12 be different if the members were largely public and from

13 the same State, and that's this case.

14 QUESTION: And it would be the case, I take it,

15 any State athletic association, given the current mix of

16 public and private schools.

17 MS. UNDERWOOD: That's correct. The litigation

18 against -- involving these associations in many States

19 across the country where the record shows the numbers,

20 shows similar numbers to this case -- that is, 80 percent,

21 or 85 percent public, the world could, of course, change

22 and then the issues might be different, but that is the

23 case in Tennessee and, as far as the cases show,

24 everywhere else as well.

25 QUESTION: I wanted to see the cases you thought

20

1 most applicable, and in your brief at page 8 you cite the

2 Gerard College case, Evans and Newton, and Lebron.

3 I think Lebron is not so much in point because

4 there was a lot of top-down governmental delegation there

5 that is different than in this case, precise delegation

6 from the legislature, Pennsylvania and Evans, much closer.

7 In those cases, as I recall, the public trustees

8 were voting in their public capacity. Is it clear that

9 that's happening here as well, to you?

10 MS. UNDERWOOD: It is clear that that's

11 happening here. I mean, each of these cases is slightly

12 different, of course.

13 QUESTION: Sure.

14 MS. UNDERWOOD: But in this case it is the

15 schools that are members, not the individual coaches.

16 They are members in order to provide a program for their

17 students. That's what schools do. That's their general

18 public function, and this is a piece of that function, and

19 they represent their schools.

20 So that it seems to me that there's no other

21 capacity in which they could be acting than in their

22 public capacity as officials of their -- of the public

23 schools. That is, the public school members. Obviously,

24 the private school members are representing their private

25 schools, but they are a very small minority.

21

1 And on the question whether it's the board or

2 the membership that's important here, it seems to me --

3 and membership isn't entirely the right way to describe

4 it. These are voting members. They choose their board,

5 and they can remove their board members, and so it seems

6 to me that the -- it is the membership. It happens that

7 it's not surprising that this membership has chosen

8 governing boards that are either exclusively or

9 overwhelmingly composed of public members, but --

10 QUESTION: What if the rules were changed so

11 that to be a delegate you didn't have to be a principal,

12 that you were just a parent from the school in question,

13 so there's a representative from each one of the schools?

14 MS. UNDERWOOD: Well, that would be a different

15 sort of association. It would be less clear.

16 QUESTION: I know it would.

17 MS. UNDERWOOD: It would be less --

18 QUESTION: I know it would, but would it --

19 would that still be --

20 MS. UNDERWOOD: It would be like --

21 QUESTION: -- State action?

22 MS. UNDERWOOD: It would depend on what that

23 parent's responsibility was. It would be less -- I

24 understand your hypothetical to say that that parent does

25 not take direction, or cannot be directed by the school in

22

1 the way --

2 QUESTION: Right.

3 MS. UNDERWOOD: -- the school employee does, and

4 so I think it would be less clear to say then that the

5 schools control the organization.

6 QUESTION: So this hinges on whether the

7 principals take directions from the school. Is there any

8 indication that the principals act in anything other than

9 their own best --

10 MS. UNDERWOOD: I don't think it hinges on

11 whether they in fact do. It hinges on the fact that the

12 schools and, indeed, in this case ultimately the State

13 legislature and the State Board of Education to whom the

14 schools are accountable have the capacity to give them

15 direction, that they act in their official capacity, and

16 whether they in fact give direction as to any particular

17 decision or not is not the point. The point is that they

18 have the ability to do so.

19 QUESTION: Is that conceded, that the principals

20 could be instructed to vote a certain way in this

21 organization?

22 MS. UNDERWOOD: Well, I don't believe the issue

23 was squarely joined, but they are school officials, and

24 the schools are members, and --

25 QUESTION: Who instructs principals? I thought

23

1 the principals instruct the other people in the schools.

2 MS. UNDERWOOD: They do, but ultimately a

3 principal of a public school is accountable to a Board of

4 Education, and ultimately to the State Board of Education

5 or to the legislature.

6 QUESTION: Oh, but do you think the Board of

7 Education is apt to tell a principal what to do when he

8 goes to these meetings? I mean, is there any finding in

9 the first place?

10 MS. UNDERWOOD: Well, the record establishes

11 that the State Board of Education so recognized the

12 important role of this association in the provision of

13 educational activities to its students that it has sent

14 members ex officio to the board meetings, and it has

15 reserved -- over an extensive period of time it reserved

16 the right to review the rules of the association, so I

17 think --

18 QUESTION: That ceased, did it not, the review?

19 MS. UNDERWOOD: Well, actually the district

20 judge found that nothing changed when the regulation

21 changed, so I'm not sure that it's fair to say that that

22 ceased.

23 It is true that the State Board of Education

24 revised the regulation that it had that expressly reserved

25 the right to review the rules. It isn't clear that they

24

1 stopped reviewing the rules at all. In fact --

2 QUESTION: Is there any question that if the

3 State board did, in fact, instruct the principals by

4 passing a general standard that would be applicable to

5 these athletic contests that the principals would be bound

6 to follow the State board's rule?

7 For example, a State board says, no athlete will

8 be allowed to play in intramural games who is found

9 drinking beer within a month of the game. I mean, would a

10 principal be free to disregard that?

11 MS. UNDERWOOD: I don't think he would, but if,

12 under the particular structure of education in Tennessee

13 he might be, then it is surely within the power of the

14 Tennessee legislature to arrange things to give the board

15 that power.

16 That is, I don't know whether the board

17 currently has that power, although I would assume so. If

18 it doesn't, Tennessee, as a State, in some capacity

19 certainly does have the power to instruct -- to direct the

20 conduct of public education in Tennessee, including the

21 rules that govern interscholastic athletics.

22 If this association is not a State actor, then a

23 gap will open up in the constitutional coverage of public

24 school programs, because schools may often collaborate in

25 providing programs for their students, not only in

25

1 athletics but also, for example, in language and travel

2 and music and art, in devising and administering

3 standardized tests, and that collaboration should not

4 shelter the programs from constitutional accountability.

5 QUESTION: You don't think a line can be drawn

6 between German and sports?

7 MS. UNDERWOOD: I do think a line can be drawn,

8 but in fact both the Tennessee Board of Education and

9 Boards of Education in general have regarded sports as

10 part of the educational program. They wouldn't have to do

11 so, but they have done so here, and have typically done

12 so, and it's not -- it was suggested that it would be

13 sufficient to hold each public school accountable, but in

14 fact the individual public schools have no power one by

15 one to change the rules or the actions of the association.

16 Together they control it, but alone no one of

17 them does, so unless the association itself is regarded as

18 a public actor because it is the -- an aggregate of public

19 actors, then collective action by the association could

20 escape constitutional review.

21 QUESTION: Perhaps I should have asked the

22 question of petitioner, but his time was running out, as

23 yours is. On page 8 of the blue brief, the first full

24 paragraph says that for a school to be a member, its coach

25 must be a full-time employee of the Board of Education.

26

1 Does Brentwood's coach have to be a full-time employee of

2 the Board of Education, as you understand it?

3 MS. UNDERWOOD: Well, that's my understanding of

4 the rules, but I'm really not sure of the answer to that.

5 Perhaps Brentwood --

6 QUESTION: Because it seems to me that would

7 have certainly a bearing on the case.

8 MS. UNDERWOOD: I think that's correct.

9 QUESTION: Thank you, Ms. Underwood.

10 Mr. Colbert, we'll hear from you.

11 ORAL ARGUMENT OF RICHARD L. COLBERT

12 ON BEHALF OF THE RESPONDENTS

13 MR. COLBERT: Mr. Chief Justice, and may it

14 please the Court:

15 TSSAA's authority to enforce rules for high

16 school sports competition comes from the private choice of

17 the schools that join TSSAA to abide by those rules and

18 not from any authority given to TSSAA by the State of

19 Tennessee, and whether the court examines the case as the

20 Sixth Circuit did, using Jackson, and Blum, and Rendell-

21 Baker, and the U.S. Olympic Committee case, and Tarkanian,

22 and Sullivan, the result is the same.

23 The question is, where does the authority for

24 the power exercised by the association come from, and in

25 this case it is quite clear in Brentwood Academy's case

27

1 and in the case of the other member schools, it comes from

2 the decision, school-by-school, which each school is given

3 the choice to make under State law, of joining the

4 association and abiding by those rules.

5 QUESTION: Suppose all of the schools in the

6 association were public schools. Suppose everything is

7 the same, except that the organization is only for public

8 schools, and only public schools compete in these

9 competitions. Would your answer be the same? Based on

10 what you just said, I take it it would be. It still

11 wouldn't be a State actor, even if it regulated only

12 public schools.

13 MR. COLBERT: My answer would be the same, Your

14 Honor. It would not be a State actor because it is

15 engaging in a function that is not a function that the

16 State of Tennessee has chosen to regulate by statute or by

17 constitution. The function involved is an extracurricular

18 activity, high school sports competition. Like band

19 competition, cheerleading, art competition, forensics --

20 QUESTION: The students get some credit for

21 physical education, toward that requirement, from being on

22 this varsity team?

23 MR. COLBERT: There is a statute, the only

24 statute in Tennessee that addresses interscholastic

25 athletics at all allows a local public school board, if it

28

1 chooses, to give credit for participation in

2 interscholastic sports or band, either one, to allow that

3 in lieu of physical, the required physical education

4 classes, but Tennessee does not regulate, the State does

5 not regulate, the State says nothing about, in

6 legislation, how interscholastic sports competitions from

7 one school to the next will be conducted.

8 Now, I would agree, Your Honor, that any

9 individual school would be a State actor in the decisions

10 that school makes for its own athletic program, but the

11 school, the principal of school A has no authority from

12 the State of Tennessee to regulate school B's athletic

13 programs.

14 QUESTION: But why wouldn't the principal, when

15 he or she goes to the meeting and casts a vote, it seems

16 to me that that principal, when he or she casts a vote,

17 must be acting in a State capacity because that's why that

18 principal is there.

19 MR. COLBERT: The principal is actually there in

20 a capacity -- and I need to clarify this, because I think

21 there was a misstatement made about how the rules get

22 adopted. The membership at large does not adopt the

23 rules, and this is in the -- part of the TSSAA

24 constitution is in the appendix. There's a separate body.

25 There's a board of control that enforces the rules.

29

1 There's a legislative council that enacts the rules. It's

2 also a nine-member representative body.

3 The principals who are there, voting, who are on

4 that body, are serving in a representative capacity. They

5 have been elected by the member schools, both public and

6 private, to serve in a representative capacity on that

7 board.

8 QUESTION: Well, the record doesn't tell us, but

9 it's just incredible to me that the principal would not be

10 accountable to the Board of Education for the principal's

11 actions in voting.

12 MR. COLBERT: Well, the --

13 QUESTION: And it seems to me somewhat unlike

14 the Chief Justice's hypothetical of a principals'

15 association, because the principal is there in order to

16 advance the interests of the school as a school.

17 MR. COLBERT: The principal is there on the

18 legislative council or on the board of control in order to

19 advance the interests of the voters who elected him and

20 represent -- to serve in a representative capacity on the

21 legislative council. That may be public schools --

22 QUESTION: So in your view the principal would

23 be quite unconstrained by the Constitution from voting to

24 deny membership to a school because its athletes were

25 black, or Catholic, or something like that?

30

1 MR. COLBERT: The principal as a representative,

2 as a representative of Brentwood Academy and any other

3 school who elected him, would not be accountable

4 constitutionally for that.

5 Now, if the principal of a public school does

6 not allow his school to participate, refuses to schedule a

7 contest against a school because of -- for

8 unconstitutional reasons, then he, as the principal of his

9 school, makes his school accountable for that, but he is

10 not acting as the principal of his school when he serves

11 on the board of control or the legislative council.

12 He's eligible to be on the board or the council

13 because he is a principal of a member school, just like

14 the headmaster of Brentwood Academy is eligible.

15 QUESTION: Except that's the only reason he's

16 there, is because he is the principal.

17 MR. COLBERT: He -- well, he is there to further

18 the interests of the entire association, which includes

19 the public and private school members as well. He is

20 eligible to be there because he is a principal.

21 QUESTION: Is it theoretically possible that the

22 legislative council could be -- which enacts the rules

23 could be composed of a majority of private school

24 principals?

25 MR. COLBERT: It's entirely possible, Your

31

1 Honor. It's strictly a function of which principals

2 decide to run for the body and which principals are

3 elected to serve on the body, and there have been private

4 school principals or headmasters who have served on one

5 body or the other, so it's -- you could have -- even

6 though, because in the State of Tennessee, as in any other

7 State at the secondary level, there are more public

8 schools than there are private schools, there are going to

9 be more public schools engaged in extracurricular

10 activities than there are private schools.

11 QUESTION: Mr. Colbert, you told me, and I think

12 you were quite candid in this, that it doesn't matter,

13 that you would be arguing the very same thing if this were

14 an association where the members were all public

15 schools --

16 MR. COLBERT: Right.

17 QUESTION: -- and it excluded private schools.

18 MR. COLBERT: Right.

19 QUESTION: Your argument would be identical to

20 what it is.

21 MR. COLBERT: That's right. That's right, and

22 I'm -- simply, in answer to Justice Scalia's question, you

23 could have an association that has 86 percent public

24 school membership, as TSSAA does, and have the entire

25 board of control consist of private school --

32

1 QUESTION: But that's surely more hypothetical

2 than real, because at least for this board, and every

3 other similar State association that we've ever heard of

4 either has either all public school on its board or

5 overwhelming majority. That's in -- how these things

6 operate in the real world.

7 MR. COLBERT: That's because there are more of

8 them and they're more --

9 QUESTION: Yes.

10 MR. COLBERT: And they're more likely to run.

11 QUESTION: And they might change, as counsel for

12 the Government told us, if there were a different mix of

13 school at some future time, but right now, these leagues

14 are overwhelmingly public.

15 MR. COLBERT: But Your Honor, I don't know that

16 a different mix of schools would necessarily make a

17 difference in the governing body.

18 QUESTION: No. I think you've clarified that,

19 that if you're dealing with a universe that's all public

20 schools, your argument is still the same, no State action.

21 MR. COLBERT: Well, if you -- and in the

22 Tarkanian case, for example, you were dealing with a

23 universe of, as reflected in the argument transcript,

24 roughly 1,000 schools, a roughly even split between public

25 and private schools, but you had a committee on

33

1 infractions that made the challenge decision there, and

2 four of the five members of the committee on infractions

3 came from public schools, so the make-up of the membership

4 at large does not necessarily dictate the makeup of the

5 governing body in the organization. It is a function of

6 choice, just like --

7 QUESTION: In that case the Court seemed to be

8 impressed by the fact that it wasn't -- any one State

9 could never have control of that organization. You

10 couldn't belong to one State, because it covered all the

11 States.

12 MR. COLBERT: Well, that's right, Your Honor,

13 but there was also -- there were also some other issues in

14 that case, such as whether UNLV as a single State actor

15 had delegated its authority to regulate its athletic

16 program to the NCAA, and whether that delegation was

17 sufficient to make the NCAA a State actor, and the Court

18 said no, because there was no statutory or constitutional

19 requirement that UNLV engage in interscholastic athletics

20 at all, much less that it defer to the NCAA for the

21 regulation of interscholastic athletics.

22 And you have the same thing in Tennessee. There

23 is no statutory or constitutional requirement that any

24 school, public or private, have an interscholastic

25 athletic program, much less that they defer to the TSSAA

34

1 to regulate that program.

2 QUESTION: Does the record tell us if there are

3 any private, substantially equivalent league which is --

4 well, any league which is made up of all private schools

5 which is substantially equivalent?

6 MR. COLBERT: The --

7 QUESTION: In the State of Tennessee?

8 MR. COLBERT: The record itself does not --

9 there is some mention of that in the brief, Your Honor,

10 that there is one in East Tennessee, but that's not in the

11 record itself.

12 QUESTION: While I've got you on the facts, is

13 it correct where the blue brief says at page 8 that for a

14 school to be a member its coach must be a full-time

15 employee of the Board of Eduction?

16 MR. COLBERT: There --

17 QUESTION: Is Brentwood's coach a full-time

18 member of the Board of Education?

19 MR. COLBERT: No, he is not. There is a --

20 QUESTION: Full-time employee.

21 MR. COLBERT: There is a rule that as you read

22 it, and if you apply it to -- in the public school context

23 it would require a public school coach to be an employee

24 of the public school system.

25 QUESTION: Just in the public school context?

35

1 MR. COLBERT: Not -- right, and the key is so

2 that the coach is not somebody off the street who has no

3 accountability to the member school.

4 In Brentwood Academy's case, the coach would

5 have to be an employee of the member school.

6 QUESTION: So it -- but it wouldn't rule out a

7 part-time coach, I take it, so long as the part-time coach

8 was an employee rather than an independent contractor?

9 MR. COLBERT: That's right. It allows for --

10 and actually the rule -- the rules now do allow some

11 assistant coaching from individuals who are not full-time

12 employees of the school.

13 Every aspect --

14 QUESTION: But the main coach, even in the

15 private school, would have to be a full-time employee?

16 Because the rule as quoted on page 8 says, have a

17 Tennessee State teacher's license, be a full-time

18 employee. How does it work now for the private schools,

19 for the main coach, not the assistant coach? Must the

20 main coach be a full-time employee of Brentwood under

21 these rules?

22 MR. COLBERT: The coach is -- the head coach is

23 expected to be a full-time employee of the school.

24 QUESTION: So that this rule, to the extent that

25 it requires a full-time employee, does apply to private

36

1 schools as well.

2 MR. COLBERT: It applies to private schools,

3 except that they're not required to be -- the term Board

4 of Education connotates a public school board.

5 QUESTION: Yes.

6 MR. COLBERT: And that's not -- the rule does

7 not apply to private schools in that respect.

8 QUESTION: But it does in other respects. That

9 is, full-time employee --

10 MR. COLBERT: Of the school.

11 QUESTION: Yes.

12 QUESTION: May I ask whether you think your

13 client was a State actor before -- 1995, was it, they

14 changed the rules?

15 MR. COLBERT: 1996.

16 QUESTION: 1996.

17 MR. COLBERT: No, Your Honor, we do not. TSSAA

18 was formed in 1925 without any involvement of the State.

19 TSSAA operated for 47 years, until 1972 without any

20 involvement of the State.

21 In 1972, the State Board of Education on its

22 own, without any legislative action, without any

23 constitutional authority, passed an administrative rule

24 designating -- it doesn't -- the language of the rule is

25 important. It doesn't delegate to TSSAA.

37

1 It designates TSSAA as the association for

2 public schools to join for their -- for the regulation of

3 their interscholastic athletic programs, but that

4 designation is no more than an authorization, or an

5 acquiescence by the State in the function of the private

6 entity, which this Court has held over and over, back

7 starting with Jackson and Blum and Rendell-Baker, that

8 State acquiescence, State approval of the private actions

9 of a private entity is not tantamount to State action and

10 does not convert the private entity's acts into State

11 action, and that's what you have here.

12 And in fact, analytically speaking, the argument

13 of the petitioner that somehow the makeup of the board of

14 control converts TSSAA's action into State action is

15 really no different than the principle that this Court has

16 rejected in Rendell-Baker, which is extensive State

17 regulation of a private entity does not convert the

18 private entity's --

19 QUESTION: But there's something really

20 different about that Rendell-Baker and -- and here, it's a

21 public official being paid by the State, goes to meetings.

22 It's not out of his own pocket, is it, the principal, when

23 he goes to the board it's on State time, or municipal

24 time, whoever hires him?

25 MR. COLBERT: The record reflects that there

38

1 have been times when meetings were held during the school

2 days, meetings of the board of control or the legislative

3 council. There are other times when meetings are not.

4 They're held on Saturdays or in the evenings.

5 QUESTION: Is the principal expected, out of his

6 private purse, to fund his participation in this

7 organization?

8 MR. COLBERT: There -- yes. I mean, that's left

9 strictly up to the local people. There is no requirement

10 in the State of Tennessee, in the law, that a principal be

11 reimbursed for service on the board of control.

12 QUESTION: Do you know what the practice, the

13 custom or practice is?

14 MR. COLBERT: I could not tell you what the

15 custom or practice is, Your Honor. I think there are

16 different customs and practices from one person to the

17 next and one school system to the next, and I think in

18 some systems there is some reimbursement, I think in

19 others there is not.

20 QUESTION: Could the State Board of Education,

21 if it so chose, say we're no longer going to rely in any

22 sense upon this organization, and we ourselves will set

23 the rules for intramural contests? Would it have the

24 authority legally to do that?

25 MR. COLBERT: Yes, Your Honor. I believe the

39

1 State Board of Education would have the authority to do

2 that. The State --

3 QUESTION: So that what this organization, then,

4 is doing in effect is filling the vacuum created by the

5 choice of the State Board of Education not to regulate.

6 MR. COLBERT: That's correct. The State Board

7 of Education, the State of Tennessee has chosen not to

8 regulate interscholastic athletic competition, and let me

9 clarify that. The State Board of Education has the

10 choice, if it wants to regulate interscholastic athletic

11 competition among public schools in Tennessee. It doesn't

12 have the choice to regulate that competition among private

13 schools. It has the choice to regulate among public

14 schools. It has chosen not to.

15 QUESTION: But it could -- if it were the

16 regulator in the first instance it, I presume, would have

17 the authority to say that no public school may engage in

18 an interscholastic contest with a private school unless

19 these rules are observed. That would be within its

20 authority, wouldn't it?

21 MR. COLBERT: Yes, but it has -- the State of

22 Tennessee -- and that's an important part of Fourteenth

23 Amendment jurisprudence, Your Honor, is the entire premise

24 of the State action doctrine is to, a) ensure that private

25 parties are free to conduct themselves as private parties

40

1 without constitutional restraint, and b) to ensure that

2 the State does not have to take responsibility for every

3 private activity that it allows to occur, simply because

4 it does not exercise its extreme authority to take over

5 certain responsibilities.

6 QUESTION: I suppose in Jackson v. Metropolitan

7 Edison the Pennsylvania legislature could have legislated

8 and controlled what Metropolitan Edison did.

9 MR. COLBERT: The Pennsylvania legislature could

10 have taken over responsibility for providing electric

11 service to residents rather than leaving it up to a

12 privately owned utility to provide that service. The

13 State chose not to involve itself in that activity, and

14 the Fourteenth Amendment State action requirement gives

15 the State that right without the State having to take

16 responsibility simply because it could have taken over

17 something.

18 QUESTION: Isn't there a difference -- and maybe

19 there isn't historically in Tennessee, but isn't there a

20 difference in the fact that intramural athletic contests

21 are sort of accepted as a standard part of the educational

22 scheme, whereas State provision of electric power is not?

23 Is that a fair distinction?

24 MR. COLBERT: No, Your Honor, I don't believe

25 that is a fair distinction. At least in Tennessee I don't

41

1 believe it is, because interscholastic athletic

2 competition in Tennessee has been something that's been

3 entirely voluntary for the history of that competition,

4 dating back all the way to 1925. There has never been a

5 requirement that any public school have interscholastic

6 athletic competitions --

7 QUESTION: All right, but since 1925, I take it,

8 it has been the common practice of the schools in

9 Tennessee to engage in interscholastic athletic contests.

10 MR. COLBERT: Well, it is, but it varies from

11 one school to the next, and even among public schools,

12 what activities they may engage in for --

13 QUESTION: But nobody in Tennessee would say,

14 when they heard that the X school was having -- was

15 engaging in interscholastic athletics, no one in Tennessee

16 would say, what are they doing that for, that's crazy for

17 a school to be doing that.

18 MR. COLBERT: No. That -- well, they might.

19 They might when they find out they're engaging in swimming

20 competition, for example. There are schools in

21 Tennessee --

22 QUESTION: They think it's crazy to swim in

23 Tennessee?

24 (Laughter.)

25 MR. COLBERT: There are schools in Tennessee --

42

1 in Tennessee, swimming competition is very unusual.

2 (Laughter.)

3 MR. COLBERT: In Tennessee, hockey competition

4 is very unusual, but there are schools that have it. It's

5 not regulated by TSSAA.

6 QUESTION: Mr. Souter's from New England.

7 (Laughter.)

8 QUESTION: Different mores.

9 MR. COLBERT: It's -- now, football --

10 QUESTION: Yes, what have they got against

11 hockey?

12 MR. COLBERT: It's a bit unusual to say someone

13 doesn't play football, but in Tennessee there are sports

14 like swimming, for example, that some schools have chosen

15 to engage in and to compete in, and compete for

16 championships in. TSSAA doesn't even regulate --

17 QUESTION: Okay, but the basic point is, schools

18 customarily play each other in Tennessee.

19 MR. COLBERT: That's right. That's right. But

20 that, we submit, Your Honor, does not establish State

21 action simply because it is an action that's customarily

22 engaged in.

23 QUESTION: I thought that there was a finding

24 in -- that the principals who attend these meetings are

25 customarily reimbursed.

43

1 MR. COLBERT: There was not -- there's a --

2 there is a statement in the petitioner's brief about that

3 that suggests that the meetings of the board of control

4 occur during the school day, and that the principals are

5 reimbursed, but there's -- that does not appear in the

6 record, that I'm --

7 QUESTION: Do you dispute that as a matter of

8 fact?

9 MR. COLBERT: Yes, Your Honor. As I said, I

10 think it varies from one -- I do know that the meetings

11 occur at all different times. They may occur on a school

12 day. They may occur on a Saturday. The meeting that led

13 to the filing of this lawsuit took place on a Saturday at

14 a privately owned hotel, and whether there is

15 reimbursement for the members of the board of control or

16 the legislative council varies from one to the next.

17 There is no standard practice in that respect.

18 In this case there are several problems with the

19 rule of law that's proposed by Brentwood Academy, problems

20 that cause that rule of law to run contrary to the

21 Fourteenth Amendment. The first problem is that the

22 rule -- and this is even consistent with the Solicitor

23 General's remark.

24 The rule proposed by Brentwood Academy would

25 mean that if schools in extra -- in any extracurricular

44

1 activity compete with each other in Tennessee, that -- the

2 regulation of that interscholastic activity is going to

3 amount to State action regardless of how it's conducted.

4 Forensics, band competition, cheerleading competition, any

5 sort of regulation of those activities would all be State

6 action. It would --

7 QUESTION: On the other hand, if your position

8 is right, then this association, where most of the members

9 are public school principals, can decide as far as the

10 Fourteenth Amendment is concerned, we don't want to have

11 any teams for girls. We're going to limit our varsity

12 teams to boys.

13 MR. COLBERT: The -- you have to distinguish

14 between what the association can do and what the

15 individual schools can do. An individual public school

16 could not do that, and if an individual -- and that's one

17 of the problems with the amicus briefs in this case, is

18 they suggest that there's no remedy for any sort of

19 discrimination if you hold that TSSAA is not a State

20 actor, and that's simply not the case, because an

21 individual public school still makes the choice of whether

22 it's going to be a member of the association or not, and

23 whether it's going to abide by the rules or not, and if --

24 QUESTION: No, but that association could impose

25 that rule on Brentwood. It could say, Brentwood, if you

45

1 want to be a member of our association you can't let women

2 participate in intercollegiate sports, or interscholastic

3 sports.

4 MR. COLBERT: And Brentwood Academy would be

5 free not to join the association.

6 QUESTION: Right.

7 MR. COLBERT: And any public school would be

8 free not to join the association, and if a public school

9 joined the association and followed a rule like that,

10 there would be constitutional recourse against that

11 school, or against that local school board. That does not

12 turn the actions of the association itself into State

13 action.

14 QUESTION: Even though the people who have made

15 up that rule are the very same principals of the schools

16 that would be sued individually?

17 MR. COLBERT: That's right. That's right, but

18 you would also --

19 QUESTION: And even though they're appearing in

20 that body as a representative of their school, not as an

21 individual?

22 MR. COLBERT: Well, that's -- that's where I

23 disagree, Your Honor. They're not appearing as a

24 representative of that school. They're appearing as an

25 elected representative of all the schools, and in that

46

1 respect you would open a Brentwood Academy up, for

2 example, to constitutional challenge. If you're going to

3 use the association to sweep every member up with it, then

4 you are subjecting the private schools --

5 QUESTION: Oh, but that's not right. I don't

6 think there's any claim that Brentwood is a State actor,

7 is there?

8 MR. COLBERT: Well, I don't think there is a

9 claim that Brentwood is a State actor, but if you allow

10 the Constitution -- if you allow the Fourteenth Amendment

11 to reach the individual schools not by challenge to the

12 action of an individual school, but by challenge to the

13 action of the association, then you're allowing the

14 Fourteenth Amendment to reach the private school members

15 of the association as well.

16 QUESTION: No, you're just allowing it to say

17 that the rules that the association imposes on its members

18 are a State action. That doesn't mean that the individual

19 school -- the -- if Brentwood complied with those rules it

20 would not be a State actor.

21 MR. COLBERT: But the association has no power

22 to impose those rules --

23 QUESTION: Well, but that's one of the issues.

24 MR. COLBERT: -- except to the extent that the

25 schools choose to abide by them.

47

1 The -- ultimately, this case really goes back to

2 Justice O'Connor's first question when Mr. Blumstein stood

3 up and that is, what should the test be and I think, as

4 Justice O'Connor mentioned in the dissent in the Amtrak

5 case, if you look at Blum, if you look at Rendell-Baker,

6 if you look at Jackson, if you look at all the different

7 cases that have phrased the test in all different ways,

8 they really come back to whether the challenged action

9 results from a matter of private choice, and that's

10 exactly what you have here.

11 Membership in TSSAA, service on the board of

12 control, following the rules or not following the rules is

13 a matter of private choice. Brentwood Academy made the

14 private choice that it wanted to play in the TSSAA and

15 compete for TSSAA championships, and now it doesn't want

16 to follow the rules, and that's what this case is about.

17 QUESTION: Well, surely it's not a matter of

18 private choice whether a public school chooses to join the

19 association or not. I mean, the decision to join the

20 association has to be a -- you don't acknowledge that that

21 decision is an official public school decision?

22 MR. COLBERT: The school itself in the case of a

23 public school makes a -- makes its --

24 QUESTION: Okay.

25 MR. COLBERT: -- own decision, makes a --

48

1 QUESTION: A decision to join.

2 MR. COLBERT: To join, that's right. It is also

3 free, however, there is no State compulsion -- the school,

4 even a public school is free not to join.

5 If there are no further questions, thank you.

6 QUESTION: Thank you, Mr. Colbert.

7 Mr. Blumstein, you have 2 minutes remaining.

8 REBUTTAL ARGUMENT OF JAMES F. BLUMSTEIN

9 ON BEHALF OF THE RESPONDENTS

10 MR. BLUMSTEIN: Mr. Chief Justice, may it please

11 the Court:

12 The TSSAA has been very candid in stating the

13 breadth of its position, but I'd like to point out on page

14 32 of its brief their position seems to be that even a

15 coach who is a public school teacher and a public school

16 official is not a State actor, so their position is that

17 extracurricular activities are so outside of the scope of

18 public accountability that even if there is a decision by

19 a coach about a decision affecting athletic contests, that

20 that does not fall within State action.

21 The other -- another point on the question of

22 control, in the joint appendix at page 89 and page 92 it

23 makes it pretty clear that the principals are

24 representatives of the school in voting on the legislative

25 council and on the board of control, and joint appendix 89

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1 and 92 sets that out.

2 And finally, I would like to just indicate, we

3 haven't talked about the existing state of the law, but

4 this circuit, the Sixth Circuit decision is the only

5 decision that finds a comparable institution not to be a

6 State actor. This case is an outlier in that sense. The

7 law has been settled for over 30 years. Some of the

8 concerns that the respondent has I think have not been

9 manifested.

10 The way that the courts have dealt with the

11 issue of reviewing decisions of these associations is

12 through a proper level of deference on a matter of

13 substantive law, and so if the Court affirms below it will

14 be unsettling what has been settled law in every

15 jurisdiction that has heard this case for 30 years.

16 Thank you, Your Honor.

17 CHIEF JUSTICE REHNQUIST: Thank you, Mr.

18 Blumstein. The case is submitted.

19 (Whereupon, at 12:04 p.m., the case in the

20 above-entitled matter was submitted.)

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