[ Souter ]
[ Thomas ]
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
[February 20, 2001]
Justice Thomas, with whom The Chief Justice, Justice Scalia, and Justice Kennedy join, dissenting.
We have never found state action based upon mere entwinement. Until today, we have found a private organizations acts to constitute state action only when the organization performed a public function; was created, coerced, or encouraged by the government; or acted in a symbiotic relationship with the government. The majoritys holdingthat the Tennessee Secondary School Athletic Associations (TSSAA) enforcement of its recruiting rule is state actionnot only extends state-action doctrine beyond its permissible limits but also encroaches upon the realm of individual freedom that the doctrine was meant to protect. I respectfully dissent.
Like the state-action requirement of the Fourteenth Amendment, the state-action element of 42 U.S.C. § 1983 excludes from its coverage merely private conduct, however discriminatory or wrongful. American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (internal quotation marks omitted). Careful adherence to the state action requirement thus preserves an area of individual freedom by limiting the reach of federal law and federal judicial power. Lugar v. Edmondson Oil Co., 457 U.S. 922, 936 (1982). The state-action doctrine also promotes important values of federalism, avoid[ing] the imposition of responsibility on a State for conduct it could not control. National Collegiate Athletic Assn. v. Tarkanian, 488 U.S. 179, 191 (1988). Although we have used many different tests to identify state action, they all have a common purpose. Our goal in every case is to determine whether an action can fairly be attributed to the State. Blum v. Yaretsky, 457 U.S. 991, 1004 (1982); American Mfrs., supra, at 52.
Regardless of these various tests for state action, common sense dictates that the TSSAAs actions cannot fairly be attributed to the State, and thus cannot constitute state action. The TSSAA was formed in 1925 as a private corporation to organize interscholastic athletics and to sponsor tournaments among its member schools. Any private or public secondary school may join the TSSAA by signing a contract agreeing to comply with its rules and decisions. Although public schools currently compose 84% of the TSSAAs membership, the TSSAA does not require that public schools constitute a set percentage of its membership, and, indeed, no public school need join the TSSAA. The TSSAAs rules are enforced not by a state agency but by its own board of control, which comprises high school principals, assistant principals, and superintendents, none of whom must work at a public school. Of course, at the time the recruiting rule was enforced in this case, all of the board members happened to be public school officials. However, each board member acts in a representative capacity on behalf of all the private and public schools in his region of Tennessee, and not simply his individual school.
The State of Tennessee did not create the TSSAA. The State does not fund the TSSAA and does not pay its employees.1 In fact, only 4% of the TSSAAs revenue comes from the dues paid by member schools; the bulk of its operating budget is derived from gate receipts at tournaments it sponsors. The State does not permit the TSSAA to use state-owned facilities for a discounted fee, and it does not exempt the TSSAA from state taxation. No Tennessee law authorizes the State to coordinate interscholastic athletics or empowers another entity to organize interscholastic athletics on behalf of the State.2 The only state pronouncement acknowledging the TSSAAs existence is a rule providing that the State Board of Education permits public schools to maintain membership in the TSSAA if they so choose.3
Moreover, the State of Tennessee has never had any involvement in the particular action taken by the TSSAA in this case: the enforcement of the TSSAAs recruiting rule prohibiting members from using undue influence on students or their parents or guardians to secure or to retain a student for athletic purposes. App. 115. There is no indication that the State has ever had any interest in how schools choose to regulate recruiting.4 In fact, the TSSAAs authority to enforce its recruiting rule arises solely from the voluntary membership contract that each member school signs, agreeing to conduct its athletics in accordance with the rules and decisions of the TSSAA.
Even approaching the issue in terms of any of the Courts specific state-action tests, the conclusion is the same: The TSSAAs enforcement of its recruiting rule against Brentwood Academy is not state action. In applying these tests, courts of course must place the burden of persuasion on the plaintiff, not the defendant, because state action is an element of a §1983 claim. American Mfrs., 526 U.S., at 4950; West v. Atkins, 487 U.S. 42, 48 (1988).
The TSSAA has not performed a function that has been traditionally exclusively reserved to the State. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352 (1974). The organization of interscholastic sports is neither a traditional nor an exclusive public function of the States. Widespread organization and administration of interscholastic contests by schools did not begin until the 20th century. See M. Lee, A History of Physical Education and Sports in the U.S. A. 73 (1983) (explaining that what little interscholastic athletics there was in the 19th century came almost entirely in the closing decade of the century and was largely pupil inspired, pupil controlled, and pupil coached); id., at 68, 146 (stating that no control of high school sports occurred until 1896, when a group of teachers in Wisconsin set up a committee to control such contests, and pointing out that [i]t was several years before the idea caught on in other states). Certainly, in Tennessee, the State did not even show an interest in interscholastic athletics until 47 years after the TSSAA had been in existence and had been orchestrating athletic contests throughout the State. Even then, the State Board of Education merely acquiesced in the TSSAAs actions and did not assume the role of regulating interscholastic athletics. Cf. Blum, 457 U.S., at 10041005 (Mere approval of or acquiescence in the initiatives of a private party is not sufficient to justify holding the State responsible for those initiatives . . .); see also Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 164165 (1978). The TSSAA no doubt serves the public, particularly the public schools, but the mere provision of a service to the public does not render such provision a traditional and exclusive public function. See RendellBaker v. Kohn, 457 U.S. 830, 842 (1982).
It is also obvious that the TSSAA is not an entity created and controlled by the government for the purpose of fulfilling a government objective, as was Amtrak in Lebron v. National Railroad Passenger Corporation, 513 U.S. 374, 394 (1995). See also Pennsylvania v. Board of Directors of City Trusts of Philadelphia, 353 U.S. 230 (1957) (per curiam) (holding that a state agency created under state law was a state actor).
In addition, the State of Tennessee has not exercised coercive power or . . . provided such significant encouragement [to the TSSAA], either overt or covert, Blum, 457 U.S., at 1004, that the TSSAAs regulatory activities must in law be deemed to be those of the State. The State has not promulgated any regulations of interscholastic sports, and nothing in the record suggests that the State has encouraged or coerced the TSSAA in enforcing its recruiting rule. To be sure, public schools do provide a small portion of the TSSAAs funding through their membership dues, but no one argues that these dues are somehow conditioned on the TSSAAs enactment and enforcement of recruiting rules.5 Likewise, even if the TSSAA were dependent on state funding to the extent of 90%, as was the case in Blum, instead of less than 4%, mere financial dependence on the State does not convert the TSSAAs actions into acts of the State. See Blum, supra, at 1011; Rendell-Baker, supra, at 840; see also Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 173 (1972) (The Court has never held, of course, that discrimination by an otherwise private entity would be violative of the Equal Protection Clause if the private entity receives any sort of benefit or service at all from the State . . .). Furthermore, there is no evidence of joint participation, Lugar, 457 U.S., at 941942, between the State and the TSSAA in the TSSAAs enforcement of its recruiting rule. The TSSAAs board of control enforces its recruiting rule solely in accordance with the authority granted to it under the contract that each member signs.
Finally, there is no symbiotic relationship between the State and the TSSAA. Moose Lodge, supra, at 175; cf. Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961). Contrary to the majoritys assertion, see ante, at 1011, the TSSAAs fiscal relationship with the State is not different from that of many contractors performing services for the government. Rendell-Baker, supra, at 843. The TSSAA provides a servicethe organization of athletic tournamentsin exchange for membership dues and gate fees, just as a vendor could contract with public schools to sell refreshments at school events. Certainly the public school could sell its own refreshments, yet the existence of that option does not transform the service performed by the contractor into a state action. Also, there is no suggestion in this case that, as was the case in Burton, the State profits from the TSSAAs decision to enforce its recruiting rule.
Because I do not believe that the TSSAAs action of enforcing its recruiting rule is fairly attributable to the State of Tennessee, I would affirm.
Although the TSSAAs enforcement activities cannot be considered state action as a matter of common sense or under any of this Courts existing theories of state action, the majority presents a new theory. Under this theory, the majority holds that the combination of factors it identifies evidences entwinement of the State with the TSSAA, and that such entwinement converts private action into state action. Ante, at 78. The majority does not define entwinement, and the meaning of the term is not altogether clear. But whatever this new entwinement theory may entail, it lacks any support in our state-action jurisprudence. Although the majority asserts that there are three examples of entwinement analysis in our cases, there is no case in which we have rested a finding of state action on entwinement alone.
Two of the cases on which the majority relies do not even use the word entwinement. See Lebron, supra, at 374; City Trusts, supra, at 230. Lebron concerned the status of Amtrak, a corporation that Congress created and placed under Government control for the specific purpose of achieving a governmental objective (namely to avert the threatened extinction of passenger train service in the United States). 513 U.S., at 383, 386. Without discussing any notion of entwinement, we simply held that, when 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 corporation is part of the Government for purposes of the First Amendment. Id., at 400. Similarly, in City Trusts, we did not consider entwinement when we addressed the question whether an agency established by state law was a state actor. See 353 U.S., at 231. In that case, the Pennsylvania legislature passed a law creating a board of directors to operate a racially segregated school for orphans. Ibid. Without mentioning entwinement, we held that, because the board was a state agency, its actions were attributable to the State. Ibid.
The majoritys third example, Evans v. Newton, 382 U.S. 296 (1966), lends no more support to an entwinement theory than do Lebron and City Trusts. Although Evans at least uses the word entwined, 382 U.S., at 299 (Conduct that is formally private may become so entwined with governmental policies or so impregnated with a governmental character as to become subject to the constitutional limitations placed upon state action), we did not discuss entwinement as a distinct concept, let alone one sufficient to transform a private entity into a state actor when traditional theories of state action do not. On the contrary, our analysis rested on the recognition that the subject of the dispute, a park, served a public function, much like a fire department or a police department. Id., at 302. A park, we noted, is a public facility that serves the community. Id., at 301302. Even if the city severed all ties to the park and placed its operation in private hands, the park still would be municipal in nature, analogous to other public facilities that have given rise to a finding of state action: the streets of a company town in Marsh v. Alabama, 326 U.S. 501 (1946), the elective process in Terry v. Adams, 345 U.S. 461 (1953), and the transit system in Public Utilities Commn of D. C. v. Pollak, 343 U.S. 451 (1952). 382 U.S., at 301302. Because the park served public functions, the private trustees operating the park were considered to be state actors.6
These cases, therefore, cannot support the majoritys entwinement theory. Only Evans speaks of entwinement at all, and it does not do so in the same broad sense as does the majority.7 Moreover, these cases do not suggest that the TSSAAs activities can be considered state action, whether the label for the state-action theory is entwinement or anything else.
* * *
Because the majority never defines entwinement, the scope of its holding is unclear. If we are fortunate, the majoritys fact-specific analysis will have little bearing beyond this case. But if the majoritys new entwinement test develops in future years, it could affect many organizations that foster activities, enforce rules, and sponsor extracurricular competition among high schoolsnot just in athletics, but in such diverse areas as agriculture, mathematics, music, marching bands, forensics, and cheerleading. Indeed, this entwinement test may extend to other organizations that are composed of, or controlled by, public officials or public entities, such as firefighters, policemen, teachers, cities, or counties. I am not prepared to say that any private organization that permits public entities and public officials to participate acts as the State in anything or everything it does, and our state-action jurisprudence has never reached that far. The state-action doctrine was developed to reach only those actions that are truly attributable to the State, not to subject private citizens to the control of federal courts hearing §1983 actions.
I respectfully dissent.
1. Although the TSSAAs employees, who typically are retired teachers, are allowed to participate in the state retirement system, the State does not pay any portion of the employer contribution for them. The TSSAA is one of three private associations, along with the Tennessee Education Association and the Tennessee School Boards Association, whose employees are statutorily permitted to participate in the state retirement system. Tenn. Code Ann. §835118 (1993).
2. The first formal state acknowledgement of the TSSAAs existence did not occur until 1972, when the State Board of Education passed a resolution stating that it recognizes and designates [the TSSAA] as the organization to supervise and regulate the athletic activities in which the public junior and senior high schools of Tennessee participate in on an interscholastic basis. App. 211. There is no indication that the TSSAA invited this resolution or that the resolution in any way altered the actions of the TSSAA or the State following its adoption in 1972. In fact, it appears that the resolution was not entirely accurate: The TSSAA does not supervise or regulate regular season interscholastic contests. In any event, the resolution was revoked in 1996. Contrary to the majoritys reference to its revocation as being winks and nods, ante, at 12, the repeal of the 1972 resolution appears to have had no more impact on the TSSAAs operation than did its passage. The majority also cites this resolution to support its assertion that [e]ver since the Association was incorporated in 1925, Tennessees State Board of Education . . . has acknowledged the corporations function in providing standards, rules and regulations for interscholastic competition in the public schools of Tennessee. Ante, at 3. However, there is no evidence in the record that suggests that the State of Tennessee or the State Board of Education had any involvement or interest in the TSSAA prior to 1972.
3. The rule 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 authorizes the public schools of the state to voluntarily maintain membership in the Tennessee Secondary School Athletic Association. Tenn. Comp. Rules & Regs. §052012.08(1) (2000).
4. The majority relies on the fact that the TSSAA permits members of the State Board of Education to serve ex officio on its board of control to support its top-down theory of state action. But these members are not voting members of the TSSAAs board of control and thus cannot exert any control over its actions.
5. The majority emphasizes that public schools joining the TSSAA give up sources of their own income to their collective association by allowing the TSSAA to charge for admission to their games. Ante, at 1011. However, this would be equally true whenever a State contracted with a private entity: The State presumably could provide the same service for profit, if it so chose. In Rendell&nbhyph;Baker v. Kohn, 457 U.S. 830 (1982), for example, the State could have created its own school for students with special needs and charged for admission. Or in Blum v. Yaretsky, 457 U.S. 991 (1982), the State could have created its own nursing homes and charged individuals to stay there. The ability of a State to make money by performing a service it has chosen to buy from a private entity is hardly an indication that the service provider is a state actor.
6. We have used the word entwined in another case, Gilmore v. Montgomery, 417 U.S. 556, 565 (1974), which the majority does not cite. In Gilmore, we held that a city could not grant exclusive use of public facilities to racially segregated groups. Id., at 566. The city, we determined, was engaged in an elaborate subterfuge to circumvent a court order desegregating the citys recreational facilities. Id., at 567. The grant of exclusive authority was little different from a formal agreement to run a segregated recreational program. Ibid. Thus, although we quoted the entwined language from Evans v. Newton, 382 U.S. 296 (1966), we were not using the term in the same loose sense the majority uses it today. And there is certainly no suggestion that the TSSAA has structured its recruiting rule specifically to evade review of an activity that previously was deemed to be unconstitutional state action.
7. The majoritys reference to National Collegiate Athletic Assn. v. Tarkanian, 488 U.S. 179 (1988), as foreshadowing this case, ante, at 8, also does not support its conclusion. Indeed, the reference to Tarkanian is ironic because it is not difficult to imagine that application of the majoritys entwinement test could change the result reached in that case, so that the National Collegiate Athletic Associations actions could be found to be state action given its large number of public institution members that virtually control the organization.