Oral Agruments in TSSAA v. Brentwood Academy (Updated)

For those interested, this morning's oral argument in TSSAA v. Brentwood Academy is available here (HT: SCOTUSBlog).

I will provide some comments and thoughts once I have a chance to read it, probably tomorrow.


UPDATE and MOVED TO TOP

Having read the oral argument transcript, it appears one of my earlier predictions proved false: No sports puns or analogies from anyone. I stand by my other prediction, however: the Supreme Court will reverse the Sixth Circuit.

Some random thoughts:

* The TSSAA focused the First Amendment argument on its interests in preventing the exploitation of young student-athletes and on ensuring that athletics do not take precedence over academics. The lawyer never mentioned the interest in maintaining a level playng field, although the Chief tried to bring her in that direction at one point, by suggesting that public schools cannot recruit while private schools can.

* Several justices, including the Chief and Justice Kennedy, seemed inclined to accept that the recruiting rule should be subject to the First Amendment analysis reserved for government-employee and government-contractor cases, a less-burdensome analysis for the government to clear. There also was a lot of discussion of the voluntary nature of TSSAA membership and the fact that there are other, smaller athletic associations in the state.

* Several Justices seemed concerned with the possible breadth of the recruiting ban. They pushed both the TSSAA and the attorney for the United States about whether the rule would apply to all contacts between a school and prospective student--such as a brochure that mentioned Brentwood's stellar football program. Both the TSSAA and the United States pulled back from suggesting that the rule could apply that broadly. This allowed them to argue that Brentwood had other ways to get its message out, an important First Amendment consideration. There also was an interesting exchange between the lawyer for the TSSAA and the Chief about whether a coach could be penalized for criticizing game officials; the lawyer suggested that might not be within the Association's power.

* Brentwood's lawyer got hit hard about the fact that the speech at issue was more than general expression to the public at large about the school and the football program. This was recruiting; it was targeted at student-athletes and signed "Your Coach."

* Justice Breyer was extremely skeptical of Brentwood's procedural due process claim, in part because Brentwood was not clear about the precise nature of the claim. To the extent the problem was that a TSSAA investigator had ex parte contact with the Board, Breyer pointed out this happens every day in federal administrative agencies and that Brentwood's argument would invalidate the Administrative Procedures Act (Breyer is a former Ad Law scholar). To the extent the problem was lack of an opportunity to present certain evidence, it is not clear that opportunity mattered.

So, I still go with a reversal of the Sixth Circuit, probably unanimous. The rub in the case(and perhaps the source of divisions in the Court) may be what type of First Amendment analysis the Court adopts--whether it treats this as the equivalent of a government-employee speech case, which could have far-reaching effects.

Posted in: