The Sixth Circuit Dropped the Ball: An Analysis of Brentwood Academy V. Tennessee Secondary School Athletic Ass'n in Light of the Supreme Court's Recent Trends in State Action Jurisprudence

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I. INTRODUCTION

If you ask any junior high or high school student what they most like about school, a significant number of them will unblinkingly respond, "Playing sports."' For the most part, this is a uniquely American phenomenon because, unlike many countries where organized sports "are tied to community-based athletic clubs," organized sports in the United States are primarily tied to schools.' These schools, in turn, have ties to the state, and it is from actions by the state that students are protected by the Constitution.

The Constitution is limited, however, in its ability to shield statesponsored interscholastic sports. Despite the best contentions of "Johnny or Jane," their parents, or their coaches that "Johnny and Jane" have a right to play football or cheer for the squad, no court has ever recognized such a right. In fact, all federal circuit courts that have considered this contention have consistently held that there is no such thing as a constitutional right to participate in interscholastic athletics.' Furthermore, because high school athletics are inextricably tied to the several states' education programs and not to any federal program, it is state law and policy, rather than constitutional or federal law, which guides these programs. Therefore, the only effective way a person can make out a federal issue when attempting to protect their school "sports rights" is either through the indirect path of

the incorporation doctrine of the Fourteenth Amendment4 to the states or through the Civil Rights Act of 42 U.S.C. 1983.5 It must be emphasized that the individual rights and liberties that the Constitution and its amendments protect apply only to "state actions" or, in other words, only to the actions of any federal, state, or local government.6 To put it another way, neither the Constitution nor any of its amendments provides any protections against private conduct no matter how unfair or egregious that conduct may be' unless that action can be traced back to some source of state action.

Recently, the Sixth Circuit held that Tennessee's Secondary School Athletic Association ("TSSAA"), which traditionally makes all of the rules and guidelines that govern high school athletics for that state, is not a state actor.8 This is groundbreaking. Every federal circuit court and every state's highest court that has ever entertained the issue of whether state high school athletic associations are state actors has nodded in the affirmative.' Therefore, these athletic associations have always had to scrupulously watch that they do not step

on anyone's constitutional toes-always until now. The Brentwood decision has set off a tremor in this formerly stable area of state action law.

Although the Sixth Circuit's Brentwood court understandably interpreted the Supreme Court's relevant state action cases to effectively limit, if not eliminate, finding state action in the actions of many private entities, the Sixth Circuit went too far when it held that the actions of the TSSAA are not state actions. Consequently, this decision unduly expands the several states' legal authority, through their athletic associations to slight, if not trample, the constitutional protections traditionally afforded students and schools engaged in states' interscholastic athletic programs.

First and foremost, this Note discusses why the Sixth Circuit wandered off the state actor charts in its Brentwood holding. Part II provides the necessary background for understanding the Brentwood court's analysis by explicating (1) the three prominent tests in the "state actor" field; (2) the pivotal Blum Trilogy of cases; and (3) the other federal circuits' respectively unanimous holdings that state interscholastic athletic associations are state actors. Part III examines the factual specifics that underlie the Brentwood decision. Part IV focuses on the Brentwood court's analysis, particularly the court's troubling analysis rooted in its interpretation of the Supreme Court's Tarkanian Footnote 13. …