Free Speech and Football
How much can state groups regulate recruiting?
Carlton Flatt is a legend in football-mad Tennessee: The winningest high school gridiron coach in state history, his Brentwood Academy Eagles were undefeated in 1995 and 1996 and capped both seasons with state championship wins over public school rivals including Riverdale High School.
Those were only two of the 10 titles his teams have won, but for opponents like Riverdale, they might have been the last straw. Flatt and Brentwood, a private Christian school south of Nashville, were about to become victims of their own on-field success-or, critics say, their own off-field misstep.
This week, what began a decade ago as a local recruiting dispute over a letter Flatt sent to prospective Brentwood students will be heard in the Supreme Court, for the second time. Justices will decide whether First Amendment free-speech rights extend to schools and coaches like Flatt operating under the rules of powerful independent high school athletic associations.
Flatt's letter invited eighth graders who weren't yet enrolled at Brentwood-but who'd paid deposits to come the following fall-to attend spring football practices at the school. The Tennessee Secondary School Athletic Association said that was a recruiting violation, and fined and suspended Brentwood from post-season play; the school denied any infraction and sued. Brentwood argued successfully before the Supreme Court in 2001 that the association is so entwined with public schools that it is a government entity. As such, school lawyers say, it must protect its members' free-speech rights-including the sort of letters sent by Flatt.
The association asserts it is a private organization, not state created, and voluntary members like Brentwood are compelled to abide by its rules. That's the argument that previously failed 5 to 4 before the high court, but the case has now traveled a circuitous route back to a more conservative Supreme Court. Association lawyer Maureen Mahoney argues that because the 2001 court was divided and the precedent is so new, a review is appropriate. Brentwood lawyer James Blumstein disagrees: "The association is asking for a drive-by overruling."
Far reaching. The outcome could have far-reaching effects. Every state has a similar association, so high school coaches nationwide will be watching closely. Brentwood lawyers argue their client doesn't want to curtail recruiting regulations but rather just limit associations to restricting conduct, not speech.
After Brentwood's back-to-back titles, the association barred any contact with incoming eighth graders and split the state's high schools up, creating one division for independent schools like Brentwood and another for public schools, including Riverdale. Flatt just retired after 33 seasons and 354 wins. "For the most unbelievably small thing to end up where it is," Flatt said last week, "well, it just blows me away."
This story appears in the April 23, 2007 print edition of U.S. News & World Report.