Brentwood Academy v. Tennessee Secondary School Athletic Assn.
The Supreme Court ruled that the Tennessee Secondary School Athletic Association counts as a government actor when it enforces its rules, because public schools and public officials are so deeply woven into how the association runs itself.
The decision means a private-sounding athletic organization can be sued under the same constitutional rules that apply to government agencies, since its board members, funding, and history are all tied up with public schools.
“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."”
The core legal test the majority used to decide when private conduct counts as government action.
How it got here: A federal trial court ruled for Brentwood that the Association was a state actor; the Sixth Circuit reversed; the Supreme Court agreed to hear the case to resolve a circuit split.
The Case in Depth
What happened
Brentwood Academy, a private religious high school in Tennessee, belonged to the Tennessee Secondary School Athletic Association, which almost every public high school in the state also joined. After the Association penalized Brentwood for allegedly using undue influence to recruit athletes — probation, playoff bans, and a fine — Brentwood sued, arguing the punishment violated its constitutional free speech and due process rights.
The question before the Court
Can a statewide association that regulates high school sports, and is run mostly by public school officials, be treated as part of the government when it punishes a member school?
The Court's answer
Yes — the Court ruled that the Tennessee Secondary School Athletic Association counts as a government actor when it enforces its rules, even though it's technically a private nonprofit. The Court introduced "entwinement" as a basis for finding state action: when a nominally private organization's membership, leadership, and funding are so deeply intertwined with public schools and public officials that their identities effectively overlap, the organization's actions can be treated as government action.
Here, public schools made up 84% of the Association's membership, its governing committees were staffed entirely by public school administrators acting in their official capacities, and the State Board of Education had for decades designated the Association as the official regulator of school sports and let its staff join the state retirement system. That pervasive entwinement, running both from the schools up and the state down, was enough on its own, without needing to show coercion or a traditional public function.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Private-sounding organizations that are dominated by public officials and public institutions — not just school athletic associations but potentially other groups run largely by government employees — may now be held to constitutional standards and sued under federal civil rights law when they enforce rules against members.
What changes now
The case was sent back to the lower courts for further proceedings on the merits of Brentwood's constitutional claims, since the Supreme Court only decided that the Association could be sued as a state actor — not whether its punishment of Brentwood actually violated the Constitution. That question remains to be litigated on remand.
What this does not decide
The Court decided only that the Association's enforcement of its recruiting rule against Brentwood counted as state action, not whether that enforcement actually violated Brentwood's constitutional rights. The dissent worried the new 'entwinement' reasoning could sweep in many other organizations, but the majority did not define its outer limits.
Concurrences and dissents
Dissent — Justice Thomas
“We have never found state action based upon mere "entwinement."”Thomas's central objection that the majority invented a new, unsupported legal theory.
Justice Thomas argued the Court had never before found state action based on mere 'entwinement' and that the majority's new theory has no grounding in precedent, since the cases it cites rest on other doctrines like public function or direct government control. He contended the Association was created privately, mostly self-funded through gate receipts, and enforced its recruiting rule solely under a voluntary membership contract with no state coercion or encouragement. He warned the vague new test could sweep in countless organizations run by public officials, from firefighters' groups to teachers' associations, and would have affirmed the Sixth Circuit.
How the Court got there
The legal reasoning, step by step
- The Court explained that a nominally private organization's actions count as government action when there is a 'close nexus' between the state and the challenged conduct, so that the private behavior can fairly be treated as if the state itself had done it.
- The Court identified 'entwinement' — deep, pervasive intermingling of public officials and institutions with a private organization's structure and operations — as one of several fact patterns that can establish this close nexus, alongside coercion, encouragement, and delegation of public functions.
- Applying entwinement here, the Court found that public schools made up 84% of the Association's membership, that its governing committees were staffed entirely by public school administrators acting in their official roles, and that meetings were often held during school hours.
- The Court also found entwinement running from the state downward: the State Board of Education had for decades formally designated the Association as the official regulator of school sports, continued to place nonvoting representatives on its governing bodies, and let the Association's employees join the state retirement system.
- The Court concluded this overlapping identity between the Association and the public school system was so pervasive that no separate showing of state coercion or a traditional public function was needed, and rejected the Association's argument that finding state action here would open the door to a flood of new lawsuits.
Doctrinal impact
Cases affected by this decision
Distinguishes Tarkanian (488 U. S. 179)
The Court said Tarkanian found no state action for the NCAA because its members spanned many states, unlike this single-state association.
Distinguishes Rendell-Baker v. Kohn (457 U. S. 830)
The Court said this case doesn't turn on the public-function test used in Rendell-Baker, since entwinement independently establishes state action.