Tenn. high school defends letter before Supreme Court

BRENTWOOD, Tenn. -- The U.S. Supreme Court gets the case again Wednesday: Did a Tennessee high school football power violate recruiting rules or simply exercise free speech?

The 10-year-old dispute pits Brentwood Academy, a wealthy private school in suburban Nashville, against the Tennessee Secondary School Athletic Association, the state body governing high school sports.

Brentwood Academy sent a letter inviting 12 eighth-graders to attend spring football practice in 1997. The students' parents already had signed contracts and paid deposits to attend the high school.

But the athletic association said the letter violated rules against recruiting high school players, and it penalized the school with a $3,000 fine and four years' probation. School officials unsuccessfully appealed twice before suing.

There have been three appeals to the 6th U.S. Circuit Court and one previous trip to the U.S. Supreme Court. Mediation ordered by a federal judge failed to resolve the case.

The federal appeals court has ruled in favor of the school, saying the letter amounts to protected speech under the First Amendment. If that ruling stands, it would prevent all high school associations from enforcing recruiting rules, say lawyers for the TSSAA.

"I don't know how in the world any of these associations can continue to operate if that is the standard," said attorney Rick Colbert, who represents the athletic association. "There's no way for them to prevent recruiting if recruiting speech has to be permitted."

Brentwood Academy officials say they support rules to prevent giving out cash or presents to football recruits. But headmaster Curt Masters, the school's second since 1997, said the letter was a harmless note to students already signed -- with money paid -- to attend the school.

"What are they really trying to protect from?" Masters said.

Attorney Lee Barfield, who has represented the school from the start, said the TSSAA is essentially asking the Supreme Court for an exemption from the First Amendment so it can crack down on recruiting violations.

"We say they should not do that," Barfield said.

In 2001, the Supreme Court ruled 5-4 in favor of Brentwood Academy, saying the athletic association acted in a quasi-governmental capacity and could be sued.

"Statistically speaking, you don't ever really expect a case to get here once, much less twice," Colbert said.

The NCAA, the National School Boards Association and the National Federation of State High School Associations have filed briefs supporting the TSSAA because they say they need broad power to protect children by enforcing recruiting rules.

But Brentwood Academy has the support of the National Women's Law Center, which is worried about holding government accountable for gender discrimination, the Association of Christian Schools International and the National Association of Independent Schools.

A ruling is expected by the end of June.

If Brentwood Academy wins, the school could ask the athletic association to pay for its legal expenses, and that could send the not-for-profit association into bankruptcy.

Brentwood Academy, where tuition is $14,450 for the 2007-08 school year, had spent more than $500,000 on this case through the first six months, Colbert said.

"We're the defendant. We've had no choice but to defend ourselves ... The only way we could have ever made it go away was just raise our hands, give up all rights, say, 'We lose. You win. How much do we owe you?'"