No. 99-901 

In the Supreme Court of the United States 

BRENTWOOD ACADEMY, PETITIONER 

v. 

TENNESSEE SECONDARY SCHOOL 
ATHLETIC ASSOCIATION, ET AL. 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT 

BRIEF FOR THE UNITED STATES 
AS AMICUS CURIAE SUPPORTING PETITIONER 

SETH P. WAXMAN 

Solicitor General 

Counsel of Record 

BILL LANN LEE 

Acting Assistant Attorney 

General 

BARBARA D. UNDERWOOD 

Deputy Solicitor General 

IRVING L. GORNSTEIN 

Assistant to the Solicitor 

General 

DENNIS J. DIMSEY 
GREGORY B. FRIEL 

Attorneys 

Department of Justice 
Washington, D.C. 20530-0001 
(202) 514-2217 

QUESTION PRESENTED 

Whether an athletic association’s regulation of inter- 
scholastic athletic competition constitutes state action 
under the Fourteenth Amendment and activity under 
color of state law for purposes of 42 U.S.C. 1983 (1994 & 
Supp. III 1997), when the association is controlled by 
representatives of public schools located in the same 
State. 

(I) 

TABLE OF CONTENTS 

Page 

Interest of the United States ...................................................... 
1 

Statement ........................................................................................ 2 

Summary of argument .................................................................. 
8 

Argument: 

Respondent is engaged in state action because it 

is controlled by its public school members and it 

serves state educational objectives ................................... 

10 

A. Public schools and their officials are state 

actors ............................................................................. 10 

B. Government controlled entities that serve 

government objectives are state actors ................. 
11 

C. Athletic associations that are composed pri- 
marily of public schools in a single state are 

state actors ................................................................... 

13 

D. Respondent’s regulation of interscholastic 

athletic competition constitutes state action ......... 

20 

Conclusion ....................................................................................... 22 

TABLE OF AUTHORITIES 

Cases: 

American Bankers Mortgage Corp. v. Federal Home 

Loan Mortgage Corp., 75 F.3d 1401 (9th Cir.), cert. 

denied, 519 U.S. 812 (1996) ...................................................... 

15 

American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 

40 (1999) ................................................................................. 

1, 10 

Avery v. Midland County, 390 U.S. 474 (1968) ................ 

11 

Becker v. Gallaudet Univ., 66 F. Supp. 2d 16 

(D.D.C. 1999) .......................................................................... 

15 

Blum v. Yaretsky, 457 U.S. 991 (1982) .......................... 

21, 22 

Brenden v. Independent Sch. Dist. 742, 477 F.2d 1292 

(8th Cir. 1973) ......................................................................... 18 

(III) 

IV 

Cases—Continued: Page 

Carnes v. Tennessee Secondary Schs. Athletic Ass’n, 

415 F. Supp. 569 (E.D. Tenn. 1976) .................................... 

18 

Chiaffitelli v. Dettmer Hosp., Inc., 437 F.2d 429 

(6th Cir. 1971) ......................................................................... 

15 

Clark v. Arizona Intersholastic Ass’n, 695 F.2d 1126 

(9th Cir. 1982), cert. denied, 464 U.S. 818 (1983) ... 

14, 15, 16 

Communities for Equity v. Michigan High Sch. 

Athletic Ass’n, 80 F. Supp. 2d 729 (W.D. Mich. 

2000) ......................................................................................... 18 

Crane v. Indiana High Sch. Athletic Ass’n, 975 F.2d 

1315 (7th Cir. 1992) ................................................................ 

14 

Evans v. Newton, 382 U.S. 296 (1966) ....................... 

8, 12, 13 

Foster v. Ripley, 645 F.2d 1142 (D.C. Cir. 1981) .............. 

15 

Georgia v. McCollum, 505 U.S. 42 (1992) ......................... 

1 

Gilpin v. Kansas State High Sch. Activities Ass’n, 

377 F. Supp. 1233 (D. Kan. 1973) ........................................ 

18 

Griffin High Sch. v. Illinois High Sch. Ass’n, 822 F.2d 

671 (7th Cir. 1987) .................................................................. 

14 

Hack v. President and Fellows of Yale College, 

16 F. Supp. 2d 183 (D. Conn. 1998) ..................................... 

15 

Hall v. American Nat’l Red Cross, 86 F.3d 919 

(9th Cir.), cert. denied, 519 U.S. 1010 (1996) .................... 

15 

Hoover v. Meiklejohn, 430 F. Supp. 164 (D. Colo. 

1977) ......................................................................................... 18 

Jackson v. Statler Found., 496 F.2d 623 (2d Cir. 

1973) ......................................................................................... 15 

Lebron v. National R.R. Passenger Corp., 513 U.S. 

374 (1995) .................................................................... 

8, 12, 13, 14 

Louisiana High Sch. Athletic Ass’n v. St. Augustine 

High Sch., 396 F.2d 224 (5th Cir. 1968) .................. 

14, 16, 18 

Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982) .......... 

2, 

10, 11, 17 

McVarish v. Mid-Nebraska Community Mental 
Health Ctr., 696 F.2d 69 (8th Cir. 1982) ............................ 15 

V 

Cases—Continued: Page 

National Collegiate Athletic Ass’n v. Smith, 525 U.S. 

459 (1999) ................................................................................. 

19 

National Collegiate Athletic Ass’n v. Tarkanian, 

488 U.S. 179 (1988) ...................................... 

6, 9, 15, 16, 17, 18 

New Jersey v. T.L.O., 469 U.S. 325 (1985) ......................... 

11 

Pennsylvania v. Board of Dirs. of City Trust, 

353 U.S. 230 (1957) ...................................................... 

8, 11, 12 

Polk County v. Dodson, 454 U.S. 312 (1981) .................... 

1 

Rendell-Baker v. Kohn, 457 U.S. 830 (1982) .......... 

13, 21, 22 

San Franciso Arts & Athletics, Inc. v. United 

States Olympic Comm., 483 U.S. 522 (1987) ............... 

21-22 

Shelley v. Kraemer, 334 U.S. 1 (1948) ................................ 

10 

Thornburg v. Gingles, 478 U.S. 30 (1986) .......................... 

14 

United States ex rel. Mo. State High Sch. Activities 

Ass’n v. Missouri State High Sch. Activities, Ass’n, 

682 F.2d 147 (8th Cir. 1982) ................................................. 

14 

United States v. Morrison, No. 99-5 (May 15, 

2000) ......................................................................................... 10 

West v. Atkins, 487 U.S. 42 (1988) ...................................... 

11 

Constitution and statutes: 

U.S. Const.: 

Amend. I .................................................................................. 

5, 6 

Amend. XIV ............................................. 

1, 5, 8, 10, 11, 12, 21 

Civil Rights Act of 1964, Tit. VI, § 601, 42 U.S.C. 

2000d ........................................................................................ 19 

Education Amendments of 1972, Tit. IX, § 901, 

20 U.S.C. 1681(a) .................................................................... 

19 

18 U.S.C. 242 (1994 & Supp. IV 1998) ................................... 

2 

42 U.S.C. 1983 (1994 & Supp. III 1997) ...................... 

1, 2, 5, 10 

42 U.S.C. 2000h-2 ...................................................................... 

2 

Miscellaneous: 

Tenn. Op. Att’y Gen. No. 83-163, 1983 WL 167080 (Apr. 

5, 1983) ..................................................................................... 4, 20 

In the Supreme Court of the United States 

No. 99-901 

BRENTWOOD ACADEMY, PETITIONER 

v. 

TENNESSEE SECONDARY SCHOOL 
ATHLETIC ASSOCIATION, ET AL. 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT 

BRIEF FOR THE UNITED STATES 
AS AMICUS CURIAE SUPPORTING PETITIONER 

INTEREST OF THE UNITED STATES 

The question presented in this case is whether an 
athletic association’s regulation of interscholastic ath- 
letic competition qualifies as state action under the 
Fourteenth Amendment and as activity under color of 
state law for purposes of 42 U.S.C. 1983 (1994 & Supp. 
III 1997) when the association is controlled by repre- 
sentatives of public schools located in the same State. 
The United States has participated as amicus curiae in 
many of this Court’s state action cases, see, e.g., 
American Mfrs. Mutual Ins. Co. v. Sullivan, 526 U.S. 
40 (1999); Georgia v. McCollum, 505 U.S. 42 (1992); 
Polk County v. Dodson, 454 U.S. 312 (1981), and it has a 
substantial interest in the state action question pre- 
sented here. 

(1) 

2 

First, the Attorney General has authority under 42 
U.S.C. 2000h-2 to intervene in any action alleging an 
equal protection violation based on race, color, religion, 
sex, or national origin. That statute gives the United 
States the authority to intervene in cases alleging that 
athletic associations have committed equal protection 
violations based on race or sex. The Court’s decision in 
this case will affect that enforcement responsibility. 

The United States also has authority to bring crimi- 
nal prosecutions under 18 U.S.C. 242 (1994 & Supp. IV 
1998), which makes it a criminal offense to act willfully 
and under color of state law to deprive a person of 
rights protected by the Constitution or laws of the 
United States. Because the Court has interpreted the 
phrase “under color of ” law to have the same meaning 
under Section 242 as it does under Section 1983, Lugar 

v. Edmondson Oil Co., 457 U.S. 922, 928 n.9 (1982), the 
decision in this case could affect that responsibility. 
Finally, the United States has an interest in ensuring 
that it can provide certain forms of support to private 
entities without subjecting them to constitutional 
constraints. The decision in this case could affect that 
interest. 

STATEMENT 

1. The Tennessee Secondary School Athletic Asso- 
ciation (respondent) is a non-profit Tennessee cor- 
poration that regulates interscholastic athletic competi- 
tion among public and private high schools in Tennes- 
see. Pet. App. 4B-5B, 31B. Respondent is composed of 
290 public schools and 55 private schools. Id. at 4B. 
Public high schools constitute approximately 84% of 
respondent’s voting membership. Id. at 4B-5B. Re- 
spondent is the only interscholastic athletic association 
in Tennessee, and every public high school in Tennessee 

3 

that has an interscholastic athletic program is a 
member of respondent. Id. at 22B. 

Respondent is governed by a Legislative Council and 
a Board of Control. Pet. App. 5B. The Legislative 
Council has authority to enact regulations; the Board of 
Control has authority to enforce them. Ibid. The 
Legislative Council and the Board of Control are both 
nine-member bodies elected by popular vote from nine 
electoral districts. Ibid. Each member school that is 
represented by a principal or other school official at the 
annual election is entitled to one vote. J.A. 89, 92. Only 
high school principals, assistant principals, and super- 
intendents are eligible to serve on the Legislative 
Council and the Board of Control. Pet. App. 5B. Dur- 
ing the time period at issue here, the Legislative Coun- 
cil and Board of Control were composed exclusively of 
public school officials. Ibid. 

Since 1925, the Tennessee State Board of Education 
(State Board) has recognized respondent’s authority to 
regulate interscholastic competition. Pet. App. 23B. In 
1972, the State Board adopted a regulation formally 
designating respondent as “the organization to super- 
vise and regulate the athletic activities in which the 
public junior and senior high schools of Tennessee 
participate on an interscholastic basis.” Ibid. The State 
Board also approved respondent’s existing regulations 
and reserved the right to review the appropriateness of 
any changes in rules. Id. at 10B-11B. Between 1972 
and 1992, the State Board approved various regulations 
adopted by respondent, including respondent’s present 
recruiting rule. Id. at 11B, 24B-26B. 

State Board documents reflect its understanding that 
it had delegated to respondent the authority to regulate 
interscholastic athletics on behalf of the State. Pet. 
App. 24B-26B. The Tennessee Attorney General ex- 

4 

pressed that same view. Tenn. Att’y Gen. Op. No. 83- 
163, 1983 WL 167080, at *1 (Apr. 5, 1983) (stating that 
respondent’s “authority to regulate athletics is derived 
from the State Board of Education’s broad authority to 
regulate public schools”). 

In 1995, the State Board revoked the 1972 regulation 
and adopted a new one in its place. Pet. App. 11B. The 
new regulation, which took effect in 1996 provides: 

The State Board of Education recognizes the value 
of participation in interscholastic athletics and the 
role of the Tennessee Secondary School Athletic 
Association in coordinating interscholastic athletic 
competition. The State Board of Education author- 
izes the public schools of the state to voluntarily 
maintain membership in the Tennessee Secondary 
School Athletic Association. 

Ibid. 

Representatives of the State Board and the State 
Department of Education serve as ex officio members 
on respondent’s Board of Control and Legislative Coun- 
cil. Pet. App. 35B. After the State Board amended its 
regulation concerning its relationship with respondent, 
state representatives continued to serve as ex officio 
members on respondent’s governing bodies. Ibid. 
Respondent receives no funding from the State, and its 
staff is not paid by the State. Id. at 8A. Tennessee law 
nonetheless authorizes respondent’s administrative 
staff, including its Executive Director, to participate in 
the State’s retirement system. Id. at 33B. Respondent 
derives a substantial portion of its revenue from gate 
receipts from athletic contests played at state-owned 
facilities. Id. at 32B. Respondent pays the State for the 
use of those facilities. Id. at 9A. 

5 

2. Petitioner Brentwood Academy is a private school 
and a member of respondent. Pet. App. 4B. In 1997, 
certain public high school coaches accused petitioner of 
violating respondent’s recruiting rule. Id. at 11B-12B. 
That rule prohibits members from using “undue influ- 
ence” to “secure or to retain a student for athletic pur- 
poses.” Id. at 6B. After an investigation, respondent’s 
Executive Director concluded that petitioner had vio- 
lated respondent’s recruiting rule by providing free 
game tickets to a coach at a public middle school and by 
inviting incoming students to a spring football practice. 
Id. at 14B-15B. The Executive Director also found that 
petitioner had violated another one of respondent’s 
regulations. Id. at 15B. The Executive Director de- 
clared petitioner ineligible to participate in football and 
basketball tournaments for one year and placed peti- 
tioner on probation for two years. Ibid. 

Respondent’s Board of Control affirmed the Execu- 
tive Director’s determination that petitioner had vio- 
lated the recruiting rule. Pet. App. 16B. The Board of 
Control increased the sanctions for the violations, ban- 
ning petitioner from tournaments for two years, placing 
petitioner on probation for four years, and fining peti- 
tioner $3000. Id. at 17B. All nine of the voting Board of 
Control members who participated in petitioner’s ad- 
ministrative appeal were principals of public high 
schools. Id. at 16B. 

In December 1997, petitioner filed suit against re- 
spondent and its Executive Director under 42 U.S.C. 
1983 (1994 & Supp. III 1997), alleging that respondent’s 
recruiting rule violated, inter alia, the First Amend- 
ment to the Constitution as applied to the States 
through the Fourteenth Amendment. Pet. App. 3B-4B, 
18B. The district court granted petitioner’s motion for 

6 

summary judgment, holding that respondent’s recruit- 
ing rule violated the First Amendment. Id. at 1B-62B. 

The district court first held that respondent’s adop- 
tion and enforcement of the recruiting rule constituted 
state action. Pet. App. 20B-37B. In reaching that 
conclusion, the court relied in part on the State Board’s 
1972 regulation designating respondent as the entity 
responsible for interscholastic athletics in Tennessee. 
Id. at 23B-27B. The court rejected respondent’s argu- 
ment that the 1995 regulation eliminated the basis for a 
finding of state action. The district court reasoned that 
the new regulation still singles out respondent by name 
as the organization responsible for the regulation of 
high school athletics and does not materially change the 
relationship between the State and respondent. Id. at 
26B-27B. 

The district court also relied on the composition of 
respondent’s membership and leadership as a basis for 
its state action holding. Pet. App. 27B-28B. The court 
noted that “the overwhelming majority” of respon- 
dent’s members are public schools, and that in 1997, “all 
members of the Board of Control and Legislative 
Council were principals of public schools.” Ibid. The 
court concluded that those facts are independently 
sufficient to show that respondent is a state actor. Id. 
at 29B. In reaching that conclusion, the court relied on 
the statement in National Collegiate Athletic Ass’n 
(NCAA) v. Tarkanian, 488 U.S. 179, 194 n.13 (1988), 
that while the NCAA is not a state actor, “[t]he situa- 
tion would, of course, be different if the membership 
consisted entirely of institutions located within the 
same State, many of them public institutions created by 
the same sovereign.” Pet. App. 29B. 

The district court next held that respondent’s re- 
cruiting rule violated the First Amendment on its face 

7 

and as applied to petitioner. Pet. App. 40B-58B. The 
court enjoined respondent from enforcing that rule. Id. 
at 61B. 

3. The court of appeals reversed, Pet. App. 1A-18A, 
holding that respondent is not a state actor. The court 
first concluded that respondent is not an “arm of the 
government” because no Tennessee law or State Board 
regulation currently in effect delegates to respondent 
the authority to conduct interscholastic athletics on 
behalf of the State. Id. at 9A. 

The court of appeals next concluded that respon- 
dent’s actions are not “fairly attributable” to the State. 
Pet. App. 11A-18A. The court held that respondent’s 
actions are not fairly attributable to the State under the 
“public function test” because the regulation of inter- 
scholastic sports is not a power “traditionally exclu- 
sively reserved to the state.” Id. at 11A. It held that 
respondent’s actions are not fairly attributable to the 
State under the “state compulsion test” because, in its 
view, the State had not “coerced or encouraged” the 
challenged conduct. Id. at 12A-13A. And, for essen- 
tially the same reasons, the court held that respon- 
dent’s actions are not fairly attributable to the State 
under the “symbiotic relationship test.” Id. at 13A-14A. 

The court of appeals also rejected the district court’s 
reliance on Tarkanian. Pet. App. 16A-17A. The court 
concluded that, under Tarkanian, even if respondent is 
a state actor when dealing with a public school, it is not 
a state actor in its relationship with private schools 
such as petitioner. Id. at 17A. 

The court denied a petition for rehearing en banc. 
Pet. App. 1C-2C. Judge Merritt, joined by Judge Clay, 
dissented from the denial of rehearing en banc. Id. at 
2C-6C. Judge Merritt stated that the panel’s decision 
“appears to be inconsistent” with language from 

8 

Tarkanian. Id. at 4C. Judge Merritt also criticized the 
panel for ignoring the “cooperative relationship be- 
tween [respondent] and the state’s public high schools 
[and] the coercive power of [respondent].” Id. at 5C. 

SUMMARY OF ARGUMENT 

A. Public schools engage in state action within the 
meaning of the Fourteenth Amendment. Thus, if a pub- 
lic school were to adopt a rule governing participation 
in interscholastic athletic competition, that rule would 
be subject to challenge under the Fourteenth Amend- 
ment. 

B. The result should not be different when such a 
rule is imposed by an athletic association that is con- 
trolled by its public school members. Like the actions 
of a public school, the actions of an athletic association 
controlled by public schools are fairly attributable to 
the State. 

This Court’s decisions support that conclusion. In 
several cases, the Court has held that nominally private 
entities that are publicly controlled and that serve 
government objectives are engaged in state action. The 
Court has applied that principle to a college created by 
a private will, Pennsylvania v. Board of Directors of 
City Trusts, 353 U.S. 230 (1957) (per curiam), a pri- 
vately owned park, Evans v. Newton, 382 U.S. 296 
(1966), and a corporation that operates passenger 
trains, Lebron v. National Railroad Passenger Corp., 
513 U.S. 374 (1995). Because each of those entities was 
publicly controlled and served a public purpose, the 
entity’s actions constituted state action. 

C. Under those decisions, an athletic association that 
is composed primarily of public schools is engaged in 
state action. When public schools constitute a voting 
majority of the members of an athletic association, they 

9 

have effective control over the actions of the associa- 
tion. And, since interscholastic athletic competition is a 
component of the education program offered by public 
schools, an athletic association’s regulation of that 
activity furthers government objectives. 

With the exception of the court below, the courts of 
appeals have uniformly held that athletic associations 
are state actors when they are composed primarily of 
public schools. In NCAA v. Tarkanian, 488 U.S. 179 
(1988), the Court made clear that those decisions 
correctly implement state action principles. 

A contrary view would permit a publicly controlled 
athletic association to engage in practices that blatantly 
discriminate on the basis of race or sex without ex- 
posing those practices to constitutional challenge. For 
example, such an athletic association could preclude 
private schools from joining the association based on 
the race of their students. Such an association could 
also deny girls the opportunity to participate in a wide 
range of interscholastic sports. 

D. Under the correct state action analysis, respon- 
dent is engaged in state action. Public schools consti- 
tute approximately 84% of respondent’s voting mem- 
bers, and during the relevant period, respondent’s gov- 
erning bodies were composed exclusively of public 
school officials. Respondent is therefore publicly con- 
trolled. Respondent’s regulation of interscholastic ath- 
letic competition also serves state educational purposes. 
The Tennessee State Board of Education has adopted a 
regulation that expressly recognizes the importance of 
interscholastic athletic competition to public education 
and respondent’s role in regulating such competition. 
Because respondent is controlled by public schools and 
serves government objectives, its regulation of inter- 
scholastic athletic competition constitutes state action. 

10 

ARGUMENT 

RESPONDENT IS ENGAGED IN STATE ACTION 
BECAUSE IT IS CONTROLLED BY ITS PUBLIC 
SCHOOL MEMBERS AND IT SERVES STATE 
EDUCATIONAL OBJECTIVES 

A. Public Schools And Their Officials Are State Actors 

The Fourteenth Amendment to the Constitution, “by 
its very terms, prohibits only state action.” United 
States v. Morrison, No. 99-5 (May 15, 2000), slip op. 21. 
It “erects no shield against merely private conduct, 
however discriminatory or wrongful.” Shelley v. Krae- 
mer, 334 U.S. 1, 13 & n.12 (1948). Similarly, 42 U.S.C. 
1983 (1994 & Supp. III 1997) authorizes a cause of 
action to enforce constitutional guarantees only against 
persons who act “under color of” state law. Those limit- 
ations are identical “[w]here, as here, deprivations of 
rights under the Fourteenth Amendment are alleged.” 
American Mfrs. Mutual Ins. Co. v. Sullivan, 526 U.S. 
40, 50 n.8 (1999). 

In general, conduct constitutes state action and 
action under color of law if (1) the alleged constitutional 
deprivation is “caused by the exercise of some right or 
privilege created by the State or by a rule of conduct 
imposed by the State or by a person for whom the State 
is responsible,” and (2) “the party charged with the 
deprivation [is] a person who may fairly be said to be a 
state actor.” American Mfrs., 526 U.S. at 50. The core 
inquiry is whether the alleged infringement of federal 
rights is “fairly attributable to the State.” Lugar v. 
Edmondson Oil Co., 457 U.S. 922, 937 (1982). 

Application of that standard is straightforward when 
a suit is brought challenging the actions of a local gov- 
ernment entity, such as a public school system, or a 
public official acting in an official capacity, such as a 

11 

principal. “The actions of local government are the 
actions of the State.” Avery v. Midland County, 390 
U.S. 474, 480 (1968). Similarly, except in unusual cir- 
cumstances, a public employee engages in state action 
“while acting in his official capacity or while exercising 
his responsibilities pursuant to state law.” West v. 
Atkins, 487 U.S. 42, 50 (1988); see ibid (noting that a 
public defender is the only public official acting in an 
official capacity the Court has found not to be engaged 
in state action). Thus, under established state action 
principles, if a public school or its principal were to 
adopt a rule governing participation in interscholastic 
athletic competition, that rule would be subject to 
challenge under the Fourteenth Amendment. New 
Jersey v. T.L.O., 469 U.S. 325, 334-337 (1985) (public 
schools and public school officials are state actors for 
purposes of the Fourteenth Amendment). 

B. Government Controlled Entities That Serve Govern- 
ment Objectives Are State Actors 

The outcome should not be different when such a rule 
is adopted by an athletic association that is controlled 
by its public school members. When public entities 
control a nominally private entity that serves a public 
purpose, the actions of the nominally private entity are 
“fairly attributable to the State.” Lugar, 457 U.S. at 
937. 

Several decisions of this Court support that conclu- 
sion. For example, in Pennsylvania v. Board of Direc- 
tors of City Trusts, 353 U.S. 230 (1957) (per curiam), 
Girard College had been built and maintained pursuant 
to a private trust that limited admission to the college 
to white students. Pursuant to the terms of the trust, 
the college was operated and controlled by a board of 
state appointees, which was itself a state agency. Id. at 

12 

231. The Court held that, because the college was 
controlled by an agency of the State, the college’s 
refusal to admit black students “was discrimination by 
the State * * * forbidden by the Fourteenth Amend- 
ment.” Ibid. 

Similarly, in Evans v. Newton, 382 U.S. 296 (1966), a 
person devised a tract of land to the City of Macon, 
Georgia, to be used as a municipal park for use by 
whites only. When the City determined that it could no 
longer constitutionally operate the park on a segre- 
gated basis, private trustees were appointed and title 
to the park was vested in them. Id. at 298. The Court 
held that the change in trustees did not automatically 
eliminate Fourteenth Amendment constraints. Id. at 
301-302. The Court explained that the park served the 
public purpose of providing recreational opportunities 
to the community, ibid., and that “[i]f the municipality 
remains entwined in the management or control of the 
park, it remains subject to the restraints of the Four- 
teenth Amendment,” id. at 301. 

Finally, in Lebron v. National Railroad Passenger 
Corp., 513 U.S. 374 (1995), the Court held that an opera- 
tor of passenger trains commonly known as Amtrak is a 
government actor for constitutional purposes, despite 
Congress’s designation of it as a private corporation. 
The Court emphasized that Amtrak “is established and 
organized under federal law for the very purpose of 
pursuing federal governmental objectives, under the 
direction and control of federal governmental appoint- 
ees.” Id. at 398. The Court added that “where, as here, 
the Government creates a corporation by special law, 
for the furtherance of governmental objectives, and 
retains for itself permanent authority to appoint a 
majority of the directors of that corporation, the cor- 

13 

poration is part of the Government for purposes of the 
First Amendment.” Id. at 400. 

While Lebron involved a nominally private entity 
that was governmentally created, furthered a govern- 
ment objective, and was governmentally controlled, the 
Court did not suggest that all three features are 
necessary prerequisites to a finding of state action. To 
the contrary, the Court expressly reaffirmed the hold- 
ing in City Trusts that Girard College was a state actor, 
even though it was created pursuant to a private trust, 
rather than a special law. 513 U.S. at 397. The fact that 
Amtrak “was created by a special statute” simply made 
it “an a fortiori case.” Ibid. 

Thus, the entities involved in City Trusts, Evans, and 
Lebron shared two important characteristics. First, 
each of the entities was subject to government control. 
Second, the services provided by each of the entities 
furthered government objectives.1 City Trusts, Evans, 
and Lebron therefore support the following state action 
principle: A publicly-controlled entity that furthers 
government objectives is engaged in state action. 

C. Athletic Associations That Are Composed Primarily Of 

Public Schools In A Single State Are State Actors 

1. Applying that principle, an athletic association’s 
regulation of interscholastic athletic competition consti- 
tutes state action when public schools constitute a 
majority of the association’s voting members. When 

1 Evans and Lebron specifically referred to the public objec- 
tives served by the entity. Evans, 382 U.S. at 301-302 (park serves 
a public purpose); Lebron, 513 U.S. 397-398 (passenger rail service 
furthers government objectives). While City Trusts did not spe- 
cifically mention that factor, it was present in that case as well. 
See Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982) (education 
serves a public function). 

14 

public schools constitute a voting majority, they have 
effective control over elections for the association’s 
governing body. In such circumstances, the association 
is fairly viewed as publicly-controlled. See Lebron, 
(entity is government controlled when the government 
appoints a majority of the members of the governing 
body); cf. Thornburg v. Gingles, 478 U.S. 30, 50 & n.17 
(1986) (group that is in the majority has potential to 
elect candidates of its choice). Moreover, since 
interscholastic athletic competition is a component of 
the education program offered by public schools, an 
athletic association’s regulation of that activity furthers 
government objectives. Because athletic associations 
composed primarily of public schools are publicly con- 
trolled and serve government objectives, they are state 
actors for constitutional purposes. 

2. The courts of appeals have long taken that view. 
With the exception of the court below, the courts of 
appeals have uniformly held that athletic associations 
composed primarily of public schools are state actors.2 

2 See Griffin High School v. Illinois High Sch. Ass’n, 822 F.2d 
671, 674 (7th Cir. 1987) (“Public schools make up 85% of the 
[association’s] membership,” and “the overwhelmingly public char- 
acter of the [association’s] membership is sufficient to confer state 
action.”); United States ex rel. Mo. State High Sch. Activities Ass’n 

v. Missouri State High Sch. Activities Ass’n, 682 F.2d 147, 151 (8th 
Cir. 1982) (“Because MSHSAA is an association comprised prima- 
rily of public schools, its rules are state action.”); Louisiana High 
Sch. Athletic Ass’n v. St. Augustine High Sch., 396 F.2d 224, 227 
(5th Cir. 1968) (emphasizing that 85% of members are public 
schools); see Crane v. Indiana High Sch. Athletic Ass’n, 975 F.2d 
1315, 1326 (7th Cir. 1992) (Posner, J., dissenting) (association is 
“composed primarily of public schools—so its actions, I agree, are 
state action”); see also Clark v. Arizona Interscholastic Ass’n, 695 
F.2d 1126, 1128 (9th Cir. 1982) (concluding that actions of an ath- 
letic association are state action because “member public schools 

15 

The courts of appeals have also held in other contexts 
that entities are state actors when their governing 
bodies consist primarily of state officials or persons 
appointed by state officials.3 In contrast, the courts 
have refused to find state action when government 
appointees and public officials constitute less than a 
majority on an entity’s governing body and government 
control is not otherwise established.4 That approach 
correctly implements the state action requirement. 

3. NCAA v. Tarkanian, 488 U.S. 179 (1988), pro- 
vides further support for the conclusion that an athletic 
association is a state actor when public schools consti- 
tute a majority of its voting members. In Tarkanian, 

play a substantial role in determining and enforcing the policies 
and regulations of the [association]”), cert. denied, 464 U.S. 818 
(1983). 

3 McVarish v. Mid-Nebraska Community Mental Health Ctr., 
696 F.2d 69, 71 (8th Cir. 1982) (mental health center); Foster v. 
Ripley, 645 F.2d 1142, 1147 (D.C. Cir. 1981) (scientific research 
organization); Jackson v. Statler Found., 496 F.2d 623 (2d Cir. 
1973) (foundation); Chiaffitelli v. Dettmer Hosp., Inc., 437 F.2d 
429, 430 (6th Cir. 1971) (hospital). 

4 American Bankers Mortgage Corp. v. Federal Home Loan 
Mortgage Corp., 75 F.3d 1401, 1407-1409 (9th Cir.) (Freddie Mac is 
not a government actor since government is entitled to appoint 
fewer than one-third of Freddie Mac’s directors), cert. denied, 519 
U.S. 812 (1996); Hall v. American Nat’l Red Cross, 86 F.3d 919, 
921-922 (9th Cir.) (Red Cross is not a government actor since 
President appoints only 8 of the 50 members of its Board of 
Governors), cert. denied, 519 U.S. 1010 (1996); Becker v. Gallaudet 
Univ., 66 F. Supp. 2d 16, 20-21 (D.D.C. 1999) (Gallaudet University 
is not a government actor since only three of the 21 members of its 
governing body are public officials); Hack v. President & Fellows 
of Yale College, 16 F. Supp. 2d 183, 188-189 (D. Conn. 1998) (Yale 
College is not a government actor since Governor and Lieutenant 
Governor are the only two government officials on the 19-member 
governing body). 

16 

the Court held that the NCAA did not engage in state 
action when it pressured the University of Nevada at 
Las Vegas to suspend its head basketball coach. The 
Court reasoned that, because the NCAA is composed 
primarily of universities from States other than 
Nevada, NCAA’s conduct could not be viewed as action 
under color of Nevada law. Id. at 191. 

The Court observed, however, that “[t]he situation 
would, of course, be different if the membership con- 
sisted entirely of institutions located within the same 
State, many of them public institutions created by the 
same sovereign.” Tarkanian, 488 U.S. at 193 n.13. The 
Court then cited with approval two court of appeals 
decisions that had held that athletic associations com- 
posed primarily of public schools located within the 
same State are state actors for purposes of the 
Constitution. Ibid (citing Clark, supra, and Louisiana 
High Sch. Athletic Ass’n, supra). Tarkanian therefore 
supports the state action theory we have articulated 
here. 

The court of appeals in this case drew a different 
conclusion. In its view (Pet. App. 17A), Tarkanian sug- 
gests that a single-State athletic association may be 
engaged in state action when it regulates a public 
school, but not when it regulates a private school. That 
reading of Tarkanian is mistaken. One of the cases 
cited by Tarkanian with approval (488 U.S. at 193 n.13) 
held that a high school athletic association engaged 
in state action when it denied membership to a private 
school. See Louisiana High Sch. Athletic Ass’n, 396 
F.2d at 225-226. More fundamentally, Tarkanian 
makes clear that the critical distinction for state action 
purposes is between a national athletic association com- 
posed primarily of private schools from many States 
and an athletic association composed primarily of public 

17 

schools in a single State. 488 U.S. at 193 & n.13. The 
former is not a state actor, but the latter is. Ibid. The 
dissent in Tarkanian drew a distinction between an 
athletic association’s regulation of public schools and its 
regulation of private schools. Id. at 202 & n.2 (White, 
J., dissenting). The Court, however, rejected the dis- 
sent’s theory. Id. at 193 & n.13, 197 n.17. Tarkanian 
therefore supports the conclusion that an athletic asso- 
ciation is a state actor when a majority of its voting 
members are public schools in a single State.5 

4. Treating athletic associations as state actors when 
public schools constitute a voting majority also accords 
with the purposes of the state action requirement. 
Those purposes are to “preserve[] an area of individual 
freedom,” and to “avoid[] imposing on the State, its 
agencies or officials, responsibility for conduct for which 
they cannot fairly be blamed.” Lugar, 457 U.S. at 936. 
When public schools constitute a voting majority of an 
athletic association and control the elections for the 
association’s governing body, subjecting the associa- 
tion’s decisions to constitutional scrutiny does not 
intrude into an area of individual freedom. At the same 
time, since public entities have effective control over 
the association’s decisions, it is not unfair to hold the 
State responsible for them. 

5. Failing to subject the decisions of such an associa- 
tion to constitutional scrutiny could also have far-reach- 
ing consequences. It would mean that an athletic asso- 
ciation that is controlled by public schools could pre- 

5 Because the NCAA is composed primarily of private schools, 
Tarkanian did not address the question whether a national (or 
regional) athletic association would be engaged in state action if 
public colleges and universities from different States constituted a 
majority of its members. Nor is that issue presented in this case. 

18 

clude a private school from joining the association based 
on the race of its students, and the actions of the 
association would not be subject to challenge under the 
Constitution. It would also mean that such an athletic 
association could deny high school girls the opportunity 
to participate in a wide range of interscholastic sports 
without subjecting that practice to constitutional 
challenge. 

In the past, athletic associations have been guilty of 
such discriminatory practices. See, e.g., Louisiana 
High Sch. Athletic Ass’n, supra (denying admission to 
school composed of black students); Brenden v. Inde- 
pendent Sch. Dist. 742, 477 F.2d 1292 (8th Cir. 1973) 
(precluding girls from participating in certain sports); 
Hoover v. Meiklejohn, 430 F. Supp. 164 (D. Colo. 1977) 
(same); Carnes v. Tennessee Secondary Schs. Athletic 
Ass’n, 415 F. Supp. 569 (E.D. Tenn. 1976) (same); 
Gilpin v. Kansas State High Sch. Activities Ass’n, 377 
F. Supp. 1233 (D. Kan. 1974) (same). Allegations that 
high school athletic associations discriminate against 
female athletes persist today. Communities for Equity 

v. Michigan High Sch. Athletic Ass’n, 80 F. Supp. 2d 
729 (W.D. Mich. 2000). 

A party may always sue a public school when it 
enforces an athletic association’s discriminatory rule. 
See Tarkanian, 488 U.S. at 192-193. Not all rules im- 
posed by an athletic association, however, are enforced 
by individual public schools. For example, when a 
private school is denied membership in an athletic asso- 
ciation on the basis of the race or gender of its students, 
there is no enforcement of the rule by an individual 
public school. Thus, unless the athletic association itself 
may be sued, there would be no way to prevent the 
enforcement of such discrimination. 

19 

Even when an individual public school enforces a 
discriminatory rule, moreover, a suit against the school 
may not be as efficacious in remedying the discrimina- 
tion as a suit against the athletic association itself. For 
example, a public school may be sued for enforcing a 
rule that unconstitutionally precludes a girl at its school 
from participating in a particular interscholastic sport. 
And, in such a case, the court may order the schools to 
give girls at the school the same opportunity to play on 
its interscholastic team as it gives to boys. But if the 
athletic association decides to enforce its discriminatory 
rule against the school and refuses to permit a team 
with girls on it to play, the court’s remedy could leave 
the victims of discrimination without an effective rem- 
edy and deprive innocent third parties of interscholastic 
athletic opportunities as well. Those harsh conse- 
quences can be avoided if the acts of a publicly con- 
trolled athletic association may be challenged directly.6 

6 Regardless of whether it engages in state action, an athletic 
association that receives federal financial assistance would be 
prohibited from discriminating on the basis of race and sex by Title 
VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d, and Title IX of 
the Education Amendments of 1972, 20 U.S.C. 1681(a). See 
National Collegiate Athletic Ass’n v. Smith, 525 U.S. 459 (1999). 
We have argued that an athletic association is also covered by Title 
VI and Title IX when a school that receives federal assistance 
cedes controlling authority over its athletic program to the athletic 
association. Id. at 469. In Smith, the Court declined to resolve 
that issue. Id. at 470. The question whether an athletic association 
is covered by Title VI and Title IX when a recipient cedes to it 
controlling authority is distinct from the question presented 
here—whether the actions of an athletic association constitute 
state action when the association is controlled by representatives 
of public schools located in the same State. 

20 

D. Respondent’s Regulation Of Interscholastic Athletic 

Competition Constitutes State Action 

1. Under the principles discussed above, respon- 
dent’s regulation of interscholastic athletic competition 
constitutes state action. Respondent is governed by a 
Legislative Council, which has authority to promulgate 
rules, and a Board of Control, which is responsible for 
enforcing the rules. Pet. App. 5B. Since approximately 
84% of respondent’s members are public schools, id. at 
4B-5B, and each school is entitled to one vote in elec- 
tions for respondent’s Legislative Council and Board of 
Control, J.A. 89, 92, public schools have the power to 
control the elections for those governing bodies. 

The membership of the Legislative Council and 
Board of Control is evidence of that power. At the time 
that sanctions were imposed against petitioner, the 
Legislative Council and Board of Control were com- 
posed exclusively of public school officials. Pet. App. 
5B. In those circumstances, public schools and their 
officials effectively control respondent’s regulation of 
interscholastic competition. 

Respondent’s regulation of interscholastic athletic 
competition also furthers government objectives. Ten- 
nessee has recognized, in a variety of ways, that inter- 
scholastic athletic competition is an integral part of 
public education. For example, as a component of its 
power to regulate the public school curriculum, the 
State Board has broad authority over interscholastic 
athletics. Tenn. Att’y Gen. Op. No. 83-163, 1983 WL 
167080, at *2 (Apr. 5, 1983). The State Board allows 
interscholastic athletics to be substituted for the physi- 
cal education graduation requirement, thus enabling 

21 

students to earn academic credit for participating in 
activities sponsored by respondent. Pet. App. 34B. 

Between 1972 and 1996, the State Board formally 
delegated to respondent its authority to regulate inter- 
scholastic athletics for the State’s public schools. Pet. 
App. 23B. The State treated respondent as its agent 
for that purpose, closely monitoring respondent’s activi- 
ties and repeatedly approving the association’s regula- 
tions, including the recruiting rule challenged by peti- 
tioner. Id. at 11B, 24B-26B. In 1995, the State Board 
adopted a regulation “recogniz[ing] the value of partici- 
pation in interscholastic athletics and the role of 
[respondent] in coordinating interscholastic athletic 
competition.” Id. at 11B. That regulation also ex- 
pressly authorizes public schools to join respondent, 
ibid., which is the only interscholastic athletic associa- 
tion for public schools in Tennessee, id at 28B, 31B. 
Representatives of both the State Board of Education 
and the State Department of Education continue to 
serve as ex officio members of respondent’s Board of 
Control and Legislative Council, id. at 35B, and the 
State allows respondent’s employees to participate in 
the State’s retirement system, id. at 33B. 

Those circumstances show that public schools and 
their officials control respondent’s actions and that 
those actions further the State’s educational objectives. 
Respondent is therefore engaged in state action for 
purposes of the Fourteenth Amendment. 

2. In reaching a contrary conclusion, the court of 
appeals relied primarily on this Court’s decisions in 
Blum v. Yaretsky, 457 U.S. 991 (1982) (private nursing 
home not engaged in state action), Rendell-Baker v. 
Kohn, 457 U.S. 830 (1982) (private school not engaged 
in state action, and San Francisco Arts & Athletics, 
Inc. v. United States Olympic Committee, 483 U.S. 522, 

22 

545 (1987) (United States Olympic Committee not 
engaged in state action). In those cases, however, the 
entities involved were controlled by private parties, 
and the question was whether certain forms of govern- 
ment action, such as extensive regulation, Blum, 457 
U.S. at 1004, government funding, Rendell-Baker, 457 
U.S. at 840-841, or the granting of a right to exclusive 
use of a word, San Francisco Arts, 483 U.S. at 544, 
transformed the private entities into state actors. 

The situation here is entirely different. Here, re- 
spondent is composed primarily of public schools and 
those schools have effective control over respondent’s 
governing bodies. Respondent’s regulation of inter- 
scholastic competition therefore constitutes state ac- 
tion, and nothing in Blum, Rendell-Baker, or San 
Fransciso Arts suggests otherwise. 

CONCLUSION 

The judgment of the court of appeals should be 
reversed. 

Respectfully submitted. 

SETH P. WAXMAN 

Solicitor General 

BILL LANN LEE 

Acting Assistant Attorney 

General 

BARBARA D. UNDERWOOD 

Deputy Solicitor General 

IRVING L. GORNSTEIN 

Assistant to the Solicitor 

General 

DENNIS J. DIMSEY 
GREGORY B. FRIEL 

Attorneys 

MAY 2000 

23