(Slip Opinion) OCTOBER TERM, 2006 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
TENNESSEE SECONDARY SCHOOL ATHLETIC
ASSOCIATION v. BRENTWOOD ACADEMY
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT
No. 06–427. Argued April 18, 2007—Decided June 21, 2007
Petitioner association (TSSAA) regulates interscholastic sports among
its members, Tennessee public and private high schools. TSSAA
sanctioned respondent (Brentwood), one of those private schools, be
cause its football coach sent eighth-grade boys a letter that violated
TSSAA’s rule prohibiting members from using “undue influence” in
recruiting middle school students for their athletic programs. Follow
ing internal TSSAA review, Brentwood sued TSSAA and its executive
director under 42 U. S. C. §1983, claiming, inter alia, that enforce
ment of the antirecruiting rule was state action violative of the First
and Fourteenth Amendments and that TSSAA’s flawed adjudication
of its appeal deprived Brentwood of due process. The District Court
granted Brentwood relief, but the Sixth Circuit reversed, holding that
TSSAA was a private voluntary association that did not act under
color of state law. This Court reversed that determination, Brent-
wood Academy v. Tennessee Secondary School Athletic Assn., 531
U. S. 288, and the District Court again ruled for Brentwood on re
mand. The Sixth Circuit affirmed, holding that the antirecruiting
rule is a content-based regulation of speech that is not narrowly tai
lored to serve its permissible purposes and that the TSSAA board
improperly considered ex parte evidence, thereby violating Brent-
wood’s due process rights.
Held: The judgment is reversed, and the case is remanded.
442 F. 3d 410, reversed and remanded.
JUSTICE STEVENS delivered the opinion of the Court with respect to
Parts I, II–B, III, and IV, concluding:
1. Enforcing a rule that prohibits high school coaches from recruit
2 TENNESSEE SECONDARY SCHOOL ATHLETIC ASSN. v.
BRENTWOOD ACADEMY
Syllabus
ing middle school athletes does not violate the First Amendment.
Brentwood made a voluntary decision to join TSSAA and to abide by
its antirecruiting rule. See 531 U. S., at 291. An athletic league’s
interest in enforcing its rules may warrant curtailing the speech of its
voluntary participants. See, e.g., Pickering v. Board of Ed. of Town
ship High School Dist. 205, Will Cty., 391 U. S. 563, 568. TSSAA
does not have unbounded authority to condition membership on the
relinquishment of constitutional rights, see Garcetti v. Ceballos, 547
U. S. ___, ___, and can impose only those conditions that are neces
sary to managing an efficient and effective state-sponsored high
school athletic league. That necessity is obviously present here. No
empirical data is needed to credit TSSAA’s commonsense conclusion
that hard-sell tactics directed at middle school students could lead to
exploitation, distort competition between high school teams, and fos
ter an environment in which athletics are prized more highly than
academics. 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 effec
tively.” Garcetti, 547 U. S., at ___. Pp. 7–8.
2. TSSAA did not violate Brentwood’s due process rights. The
sanction decision was preceded by an investigation, several meetings,
correspondence, the TSSAA executive director’s adverse written de
termination, a hearing before the director and an advisory panel, and
a de novo review by the entire TSSAA board. During the investiga
tion, Brentwood was notified of all the charges against it. At each of
the hearings, it was represented by counsel and given the opportu
nity to adduce evidence, none of which was excluded. The Court re
jects Brentwood’s argument that its due process rights were never
theless violated when the full TSSAA board, acting ex parte, heard
from investigators and other witnesses and considered the investiga
tors’ notes and other evidence concerning a separate incident in
which a basketball coach named King, who was not a Brentwood em
ployee, pushed a middle school basketball star to attend Brentwood.
Even accepting the questionable holding that TSSAA’s closed-door
deliberations were unconstitutional, any due process violation was
harmless beyond a reasonable doubt. It is unlikely the King allega
tions increased the severity of the penalties leveled against Brent-
wood. More importantly, Brentwood’s prejudice claim 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 opportu
nity to cross-examine the investigators and review their notes.
Brentwood has identified nothing the investigators shared with the
Board that Brentwood did not already know. Pp. 8–12.
Cite as: 551 U. S. ____ (2007) 3
Syllabus
STEVENS, J., announced the judgment of the Court and delivered the
opinion of the Court with respect to Parts I, II–B, III, and IV, in which
ROBERTS, C. J., and SCALIA, KENNEDY, SOUTER, GINSBURG, BREYER, and
ALITO, JJ., joined, and an opinion with respect to Part II–A, in which
SOUTER, GINSBURG, and BREYER, JJ., joined. KENNEDY, J., filed an opin
ion concurring in part and concurring in the judgment, in which ROB
ERTS, C. J., and SCALIA, and ALITO, JJ., joined. THOMAS, J., filed an
opinion concurring in the judgment.
Cite as: 551 U. S. ____ (2007) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
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 enforce
ment of a rule prohibiting high school coaches from re
cruiting middle school athletes violates the First Amend
ment. 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 interscho
lastic sports among its members, which include some 290
public and 55 private high schools in Tennessee. Brent-
wood Academy is one of those private schools.
Since the early 1950’s, TSSAA has prohibited high
2 TENNESSEE SECONDARY SCHOOL ATHLETIC ASSN. v.
BRENTWOOD ACADEMY
Opinion of the Court
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 (defin
ing “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 pro
ceeding 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
Cite as: 551 U. S. ____ (2007) 3
Opinion of the Court
Opinion of STEVENS, J.
one judge’s dissent. 442 F. 3d 410 (2006). The majority
held that the anti-recruiting rule is a content-based regu
lation 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 sec
ondary 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 dis
agrees, 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 Phar
4 TENNESSEE SECONDARY SCHOOL ATHLETIC ASSN. v.
BRENTWOOD ACADEMY
Opinion of the Court
Opinion of STEVENS, J.
macy v. Virginia Citizens Consumer Council, Inc., 425
U. S. 748 (1976) (striking down a prohibition on advertis
ing 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 pro
hibiting 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 associa
tion from disciplining a lawyer for the in-person solicita
tion 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 free
dom of speech or press to make a course of conduct il
legal merely because the conduct was in part initi
ated, evidenced, or carried out by means of language,
either spoken, written, or printed.’ Numerous exam
ples could be cited of communications that are regu
lated without offending the First Amendment, such as
the exchange of information about securities, corpo
Cite as: 551 U. S. ____ (2007) 5
Opinion of the Court
Opinion of STEVENS, J.
rate proxy statements, the exchange of price and pro
duction information among competitors, and employ
ers’ 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 conven
tional commercial speech. Direct solicitation “may exert
pressure and often demands an immediate response,
without providing an opportunity for comparison or reflec
tion,” ibid.; its goal “may be to provide a one-sided presen
tation and to encourage speedy and perhaps uninformed
decisionmaking,” ibid.; and it short circuits the “opportu
nity for intervention or counter-education by agencies of
the Bar, supervisory authorities, or persons close to the
solicited individual,” ibid. For these reasons, we con
cluded 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.’ ” Eden-
field v. Fane, 507 U. S. 761, 774 (1993) (quoting Ohralik,
436 U. S., at 464); see also Zauderer v. Office of Discipli
nary Counsel of Supreme Court of Ohio, 471 U. S. 626, 641
(1985) (emphasizing that Ohralik involved a “practice rife
6 TENNESSEE SECONDARY SCHOOL ATHLETIC ASSN. v.
BRENTWOOD ACADEMY
Opinion of the Court
Opinion of STEVENS, J.
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 restric
tion 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) (over
turning a blanket proscription on all forms of legal solici
tation). In our view, however, the dangers of undue influ
ence 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 sugges
tion, subtle or otherwise, that failure to accept will hurt
the student’s chances to play high school sports and dimin
ish 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 defi
nitely be to your advantage”).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 ‘in
formed and reliable decisionmaking.’ ” Ohralik, 436 U. S.,
at 458. Given that TSSAA member schools remain free to
——————
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.
Cite as: 551 U. S. ____ (2007) 7
Opinion of the Court
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, with
out deciding, that the coach in this case was “speaking as
8 TENNESSEE SECONDARY SCHOOL ATHLETIC ASSN. v.
BRENTWOOD ACADEMY
Opinion of the Court
[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 oper
ate “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 execu
tive 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 memoran
dum), id., at 204–211 (letter from TSSAA director to
headmaster with further questions); id., at 212–229 (re
sponsive letter from Brentwood’s headmaster), an adverse
written determination from TSSAA’s executive director,
Cite as: 551 U. S. ____ (2007) 9
Opinion of the Court
id., at 238–244, a hearing before the director and an advi
sory panel composed of three members of TSSAA’s Board
of Control, see id., at 254–258, and finally a de novo re
view by the entire TSSAA Board of Directors, see id., at
269–271. During the investigation, Brentwood was noti
fied of all the charges against it. At each of the two hear
ings, 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
10 TENNESSEE SECONDARY SCHOOL ATHLETIC ASSN. v.
BRENTWOOD ACADEMY
Opinion of the Court
King” as an exhibit).2 Once Curry had testified, Brent-
wood’s counsel advised the board that King was available
to answer any questions, but did not call him as a wit
ness.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
——————
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 rela
tionship 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”).
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 inter
ested 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.
Cite as: 551 U. S. ____ (2007) 11
Opinion of the Court
proceedings and two TSSAA investigators, none of whom
had been cross-examined. The investigators also provided
handwritten notes to the board detailing their investiga
tions; 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.4 But
——————
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 testi
mony 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 proce
12 TENNESSEE SECONDARY SCHOOL ATHLETIC ASSN. v.
BRENTWOOD ACADEMY
Opinion of the Court
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.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.
——————
dural rights. Id., at 454 (opinion of Rogers, J.).
5 Nor has our independent review of the investigators’ notes un
earthed any allegation of misconduct that would have been new to
Brentwood. See XV App. in No. 03–5245 etc. (CA 2006), pp. 4178–4193.
Cite as: 551 U. S. ____ (2007) 1
Opinion of KENNEDY, J.
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 KENNEDY, with whom THE CHIEF JUSTICE,
JUSTICE SCALIA, and JUSTICE ALITO join, concurring in
part and concurring in the judgment.
Although I have little difficulty concluding that the
regulation at issue does not contravene the First Amend
ment, I do not agree with the principal opinion’s reliance
on Ohralik v. Ohio State Bar Assn., 436 U. S. 447 (1978).
Ohralik, as the principal opinion notes, involved commu
nications between attorney and client, or, more to the
point, the in-person solicitation by an attorney of an acci
dent victim as a potential client. Ohralik was later ex
tended to attorney solicitation of accident victims through
direct mail, though the Court was closely divided as to the
constitutionality of that extension. See Florida Bar v.
Went For It, Inc., 515 U. S. 618 (1995). But the Court has
declined to extend the Ohralik rule beyond the attorney-
client relationship.
In Edenfield v. Fane, 507 U. S. 761 (1993), the Court
struck down a ban on solicitation from accountants to
potential clients. The Court there made clear that Ohralik
“did not hold that all personal solicitation is without First
Amendment protection.” 507 U. S., at 774. It further
noted that “Ohralik’s holding was narrow and depended
upon certain ‘unique features of in-person solicitation by
2 TENNESSEE SECONDARY SCHOOL ATHLETIC ASSN. v.
BRENTWOOD ACADEMY
Opinion of KENNEDY, J.
lawyers’ that were present in the circumstances of that
case.” Ibid. (quoting Zauderer v. Office of Disciplinary
Counsel of Supreme Court of Ohio, 471 U. S. 626, 641
(1985)).
In my view it is both unnecessary and ill advised to rely
upon Ohralik in the instant matter. By doing so, the
principal opinion, at a minimum, is open to the implication
that the speech at issue is subject to state regulation
whether or not the school has entered a voluntary contract
with a state-sponsored association in order to promote a
code of conduct affecting solicitation. To allow free
standing state regulation of speech by coaches and other
representatives of nonmember schools would be a dra
matic expansion of Ohralik to a whole new field of en
deavor. Yet by relying on Ohralik the principal opinion
undermines the argument that, in the absence of Brent-
wood Academy’s consensual membership in the Tennessee
Secondary School Athletic Association, the speech by the
head coach would be entitled to First Amendment protec
tion.
For these reasons I must decline to join Part II–A of the
principal opinion and any other portion of Part II that
suggests Ohralik is applicable here. It is evident, fur
thermore, that a majority of the Court agrees with this
position. See post, at 2 (THOMAS, J., concurring in judg
ment). I do join the remainder of the Court’s opinion and
the judgment that ensues.
Cite as: 551 U. S. ____ (2007) 1
THOMAS, J., concurring in judgment
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 THOMAS, concurring in the judgment.
In resolving this case, the Court applies the Pickering v.
Board of Ed. of Township High School Dist. 205, Will Cty.,
391 U. S. 563 (1968), line of cases to hold that the Tennes
see Secondary School Athletic Association (TSSAA) did not
violate Brentwood’s First Amendment rights. Ante, at 7–
8. Until today, Pickering governed limitations on the
speech rights of government employees and contractors.
The Court uproots Pickering from its context and applies
it to speech by a private school that is a member of a
private athletic association. The need to stretch Pickering
to fit this case was occasioned by the Court when it held
that TSSAA, a private organization, was a state actor.
Brentwood Academy v. Tennessee Secondary School Ath
letic Assn., 531 U. S. 288 (2001) (Brentwood I). Because
Brentwood I departed so dramatically from our earlier
state-action cases, it is unsurprising that no First
Amendment framework readily applies to this case.
Rather than going through the bizarre exercise of extend
ing obviously inapplicable First Amendment doctrine to
these circumstances, I would simply overrule Brentwood
2 TENNESSEE SECONDARY SCHOOL ATHLETIC ASSN. v.
BRENTWOOD ACADEMY
THOMAS, J., concurring in judgment
I.* See id., at 305–315 (THOMAS, J., dissenting).
The Court’s extension of Pickering to this context is
therefore unnecessary, but the principal opinion’s applica
tion of Ohralik v. Ohio State Bar Assn., 436 U. S. 447
(1978), ante, at 4–6, is outright wrong. For the reasons
expressed in JUSTICE KENNEDY’s opinion concurring in
part and concurring in the judgment, ante, at 1–2, Ohralik
is a narrow rule addressed to a particular context that has
no application to the facts of this case. For these reasons,
I concur in the Court’s judgment.
——————
* Holding that TSSAA is not a state actor would also resolve Brent-
wood’s due process claim.