Brentwood Academy (p. 1150)

Casebook p. 1150: "The issue is whether a statewide association incorporated to regulate interscholastic athletic competition among public and private secondary schools may be regarded as engaging in state action when it enforces a rule against a member school."  

From Oyez:

Facts of the case

The Tennessee Secondary School Athletic Association (Association) is a not-for-profit membership corporation organized to regulate interscholastic sports among its members, a large portion of the public and private high schools in Tennessee. The Association's role in regulating interscholastic competition in public schools has been long acknowledged by the State Board of Education. Brentwood Academy sued the Association after it penalized the academy for placing "undue influence" on football recruits. At the time, all the voting members of the Association were public school administrators. Brentwood claimed that the rule's enforcement was state action that violated the First and Fourteenth Amendments. The District Court agreed and enjoined the rule's enforcement. In reversing, the Court of Appeals concluded that there was no state action.

Question

May a statewide association, incorporated to regulate interscholastic athletic competition among public and private secondary schools, be regarded as engaging in state action when it enforces a rule against a member school?

Conclusion

 

    Yes. In a 5-4 opinion delivered by Justice David H. Souter, the Court held that the pervasive entwinement of state school officials in the ostensibly private organization, which regulated school sports, and the state education board's acknowledgment of the organization, indicated that the organization is a state actor for civil rights purposes. "The nominally private character of the Association is overborne by the pervasive entwinement of public institutions and public officials in its composition and workings, and there is no substantial reason to claim unfairness in applying constitutional standards to it," wrote Justice Souter for the majority. Chief Justice William H. Rehnquist and Justices Antonin Scalia and Anthony M. Kennedy joined Justice Clarence Thomas' dissent.

 

In Brentwood, public schools comprised 84% of the membership of  the Secondary School Association and public school officials overwhelmingly controlled its rule-making body. Thus, this close nexus between the state and the association was sufficient to treat the action of the association as that of the state.

Note that in National Collegiate Athletic Association v. Tarkanian, 488 U.S. 179 (1988), the Supreme Court held  that  the nexus between  UNLV  and  the  NCAA  was  insufficient  to  turn  the NCAA's conduct into state action. Coach Jerry Tarkanian was suspended by UNLV from his position as head bas­ketball coach in response to a recommendation by the NCAA Committee on Infractions.  This is a difficult case to understand, because Tarkanian was suspended not by the NCAA, but by UNLV, a state university. UNLV basically could have withdrawn from membership in the NCAA if it did not wish to go along with the NCAA's recommendations.  These cases are very fact-dependent and often seem inconsistent with other similar cases.