Brentwood Academy v. Tennessee Secondary School Athletic Assn.
531 U.S. 288 (2001)

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No.99-901. Argued October 11, 2000-Decided February 20, 2001

Respondent not-for-profit athletic association (Association) regulates interscholastic sport among Tennessee public and private high schools. Most of the State's public high schools are members, representing 84% of the Association's membership. School officials make up the voting membership of the Association's governing council and control board, which typically hold meetings during regular school hours. The Association is largely funded by gate receipts. Association staff, although not state employees, may join the state retirement system. The Association sets membership standards and student eligibility rules and has the power to penalize any member school that violates those rules. The State Board of Education (State Board) has long acknowledged the Association's role in regulating interscholastic competition in public schools, and its members sit as nonvoting members of the Association's governing bodies. When the Association penalized petitioner Brentwood Academy for violating a recruiting rule, Brentwood sued the Association and its executive director under 42 U. S. C. § 1983, claiming that the rule's enforcement was state action that violated the First and Fourteenth Amendments. The District Court granted Brentwood summary judgment, enjoining the rule's enforcement, but the Sixth Circuit found no state action and reversed.

Held: The Association's regulatory activity is state action owing to the pervasive entwinement of state school officials in the Association's structure, there being no offsetting reason to see the Association's acts in any other way. Pp. 295-305.

(a) State action may be found 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." Jackson v. Metropolitan Edison Co., 419 U. S. 345,351. No one fact is a necessary condition for finding state action, nor is any set of circumstances sufficient, for there may be some countervailing reason against attributing activity to the government. The facts that can bear on an attribution's fairness--e. g., a nominally private entity may be a state actor when it is entwined with governmental policies or when government is en-


twined in its management or control, Evans v. Newton, 382 U. S. 296, 299, 301-unequivocally show that a legal entity's character is determined neither by its expressly private characterization in statutory law, nor by the law's failure to acknowledge its inseparability from recognized government officials or agencies. In National Collegiate Athletic Assn. v. Tarkanian, 488 U. S. 179, this Court anticipated that state action could be found when there is public entwinement in the management or control of an organization whose member public schools are all within a single State. Pp. 295-298.

(b) The necessarily fact-bound inquiry leads to the conclusion of state action here. The Association's nominally private character 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. To the extent of 84% of its membership, the Association is an organization of public schools represented by their officials acting in their official capacity to provide an integral element of secondary public schooling, interscholastic athletics. There would be no recognizable Association without the public school officials, who overwhelmingly determine and perform all but the Association's purely ministerial acts. Only the 16% minority of private school memberships keeps the entwinement of the Association and public schools from being total and their identities totally indistinguishable. To complement the entwinement from the bottom up, the State has provided entwinement from the top down: State Board members sit ex officio on the Association's governing bodies and Association employees participate in the state retirement system. Entwinement to the degree shown here requires that the Association be charged with a public character and judged by constitutional standards. Pp. 298-302.

(c) Entwinement is also the answer to the Association's several arguments that the instant facts would not support a state-action finding under various other criteria, e. g., the public function test, RendellBaker v. Kohn, 457 U. S. 830, distinguished. Pp. 302-303.

(d) Although facts showing public action may be outweighed in the name of a value at odds with finding public accountability in the circumstances, e. g., Polk County v. Dodson, 454 U. S. 312, 322, no such countervailing value is present here. The Association's fear that reversing the judgment will trigger an epidemic of federal litigation is unfounded. Save for the Sixth Circuit, every Court of Appeals to consider a statewide athletic association like this one has found it to be a state actor, and there has been no litigation explosion in those jurisdictions. Nor should the Association have dispensation merely because the public

Full Text of Opinion

Primary Holding
If state officials are pervasively entangled with the structure of an association, its actions are state action even if it is not technically a government organization.
The Tennessee Secondary School Athletic Association is a non-profit corporation designed to regulate interscholastic athletics in private and public secondary schools. It is not a government organization, and its staff is not paid by the state, but most of its member schools are public schools, some of its members are administrators at public schools, and members could gain access to the state public retirement program. The state repeatedly declared its support for the organization and gave it a designation as the entity that manages and regulates interscholastic sports in the state.

Some of the organization's responsibilities include student eligibility for athletic participation. It sought sanctions against Brentwood Academy, a private secondary school, for violating its recruiting rules. The penalties included a two-year postseason ban and a fine. The State Board of Education supported the organization's belief that Brentwood was subject to its policies. At the time that the penalties were imposed, the organization consisted entirely of public school administrators. Brentwood argued that this action was unconstitutional.



  • David H. Souter (Author)
  • John Paul Stevens
  • Sandra Day O'Connor
  • Ruth Bader Ginsburg
  • Stephen G. Breyer

Rather than being a nationwide organization, this organization is located entirely within the same state. Its existence hinges on the support and management of public school officials throughout the state. This means that its actions can be considered state action, and constitutional protections apply.


  • Clarence Thomas (Author)
  • William Hubbs Rehnquist
  • Antonin Scalia
  • Anthony M. Kennedy

The three main tests for state action are that an organization has performed a public function, has been created, coerced, or encouraged by the state, or has acted in a symbiotic relationship with the state. None of those tests is satisfied here. The state action doctrine has been extended too broadly by the majority when it embraces the concept of entwinement. The vagueness surrounding what this new principle actually means also places too great a burden on states.

Case Commentary

Many state constitutions explicitly apply to private actors that discriminate, but the Fourteenth Amendment still applies only to state actors except when courts have seen fit to consider private action as state action. This doctrine is often inconsistent and unpredictable.

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