- The Washington Times - Monday, March 5, 2001

Threats to liberty come in many guises, not least in judicial decisions. Consider Brentwood Academy vs. Tennessee Secondary School Athletic Association, a case decided last month by the Supreme Court.

TSSAA is a private, nonprofit entity that regulates interscholastic sports among its 350 member schools, one of which is Brentwood Academy near Nashville. Four years ago, TSSAA sanctioned the academy for recruiting violations. You might think Brentwood, being a private, Christian school,would have complained if it did complain at all without resorting to litigation. But the academy, an athletic powerhouse facing four years' probation, filed a federal lawsuit. In taking that step, Brentwood became party to a contraction of freedom.

Brentwood contended that TSSAA, by enforcing its recruiting rules,violated the First Amendment right of association. But because the First Amendment applies only to government, the courts first had to decide whether TSSAA was, in effect, government what the law calls a "state actor." The court of appeals said TSSAA wasn't and thus couldn't be sued. But the Supreme Court, with Justice David Souter writing for a five-justice majority, disagreed.

Decades ago, the Supreme Court expanded the "state action" doctrine to reach racial discrimination by private parties who nonetheless were in some relationship to government. Recent state-action cases haven't involved the transcendent problem of race. The doctrine remains, yet as the Brentwood case shows, it can be manipulated at the expense of freedom.

The court previously had tested for state action by asking three questions. Does the private entity perform a public function? Was its challenged action required or encouraged by the state? And was the action undertaken by a state official or someone acting in concert with the state?

Had the court adhered to that approach in Brentwood, it couldn't have found TSSAA a state actor. That may explain why the court brushed aside its traditional approach and offered an entirely new one.

"We say," said Justice Souter in an especially dense sentence, "that state action may be found if, though only if, there is such a 'close nexus between the state and the challenged action' that seemingly private behavior 'may be fairly treated as that of the state itself.'" Noting that the "criteria" for determining such a nexus "lack rigid simplicity," Justice Souter stated with the certainty that permits judicial flexibility that "no one fact" is a necessary condition for state action, "nor is any set of circumstances absolutely sufficient, for there may be some countervailing reason against attributing activity to the government."

The court used three prior cases to come up with a theory of "public entwinement" by which it declared TSSAA a state actor. Thus, while TSSAA was "nominally private," the state was "entwined" in its management and control. To prove that, the court cited facts not in dispute that 84 percent of TSSAA's member schools are public and that members of the state board of education serve ex officio on key committees.

Justice Clarence Thomas, in a dissent joined by Chief Justice William Rehnquist and Justices Antonin Scalia and Anthony Kennedy, showed that under the court's traditional approach TSSAA couldn't be deemed a state actor.

Noting the novelty of the majority's "entwinement" theory, Justice Thomas observed that the cases from which it was drawn failed to support it. Strikingly, two of the cases don't even use the word "entwinement."

Justice Thomas' opinion is most important, however, for its awareness of the precise import of the court's decision: "[It] not 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."

Had the court not reached beyond its authority, the people of Tennessee would have been able to exercise their freedom as they wished keeping TSSAA private or making it public. The merits of that choice aside, Brentwood is a classic case of what Raoul Berger, the great legal scholar, once called "government by judiciary."

No one can predict Brentwood's impact, though many if not most private state athletic associations now would seem to qualify as state actors. Justice Thomas worried that the case could affect other private entities whose members include or are managed by public officials, such as firefighters, teachers and police officers. Yet he took solace in the vagueness of the majority's "entwinement" theory, expressing hope that it might be confined to Brentwood.

One must hope he is right. Liberty hangs in the balance.

Terry Eastland is a free-lance writer specializing in law and politics. His most recent book is "Freedom of Expression in the Supreme Court."

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