TENNESSEE SECONDARY SCHOOL ATHLETIC ASSOCIATION v. BRENTWOOD ACADEMY

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291 OCTOBER TERM, 2006
Syllabus
TENNESSEE SECONDARY SCHOOL ATHLETIC
ASSOCIATION v. BRENTWOOD ACADEMY
certiorari to the united states court of appeals for
the sixth circuit
No. 06–427. Argued April 18, 2007—Decided June 21, 2007
Petitioner association (TSSAA) regulates interscholastic sports among its
members, Tennessee public and private high schools. TSSAA sanc
tioned respondent (Brentwood), one of those private schools, because its
football coach sent eighth-grade boys a letter that violated TSSAA’s
rule prohibiting members from using “undue influence” in recruiting
middle school students for their athletic programs. Following internal
TSSAA review, Brentwood sued TSSAA and its executive director
under 42 U. S. C. § 1983, claiming, inter alia, that enforcement of the
antirecruiting rule was state action violative of the First and Four
teenth Amendments and that TSSAA’s flawed adjudication of its appeal
deprived Brentwood of due process. The District Court granted Brent
wood relief, but the Sixth Circuit reversed, holding that TSSAA was a
private voluntary association that did not act under color of state law.
This Court reversed that determination, Brentwood Academy v. Tennes
see Secondary School Athletic Assn., 531 U. S. 288, and the District
Court again ruled for Brentwood on remand. The Sixth Circuit af
firmed, holding that the antirecruiting rule is a content-based regulation
of speech that is not narrowly tailored to serve its permissible purposes
and that the TSSAA Board improperly considered ex parte evidence,
thereby violating Brentwood’s due process rights.
Held: The judgment is reversed, and the case is remanded.
442 F. 3d 410, reversed and remanded.
Justice Stevens delivered the opinion of the Court with respect to
Parts I, II–B, III, and IV, concluding:
1. Enforcing a rule that prohibits high school coaches from recruiting
middle school athletes does not violate the First Amendment. Brent
wood made a voluntary decision to join TSSAA and to abide by its
antirecruiting rule. See 531 U. S., at 291. An athletic league’s interest
in enforcing its rules may warrant curtailing the speech of its voluntary
participants. See, e. g., Pickering v. Board of Ed. of Township High
School Dist. 205, Will Cty., 391 U. S. 563, 568. TSSAA does not have
unbounded authority to condition membership on the relinquishment of

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ASSN. v. BRENTWOOD ACADEMY
Syllabus
constitutional rights, see Garcetti v. Ceballos, 547 U. S. 410, 419, and can
impose only those conditions that are necessary to managing an efficient
and effective state-sponsored high school athletic league. That neces
sity is obviously present here. No empirical data is needed to credit
TSSAA’s commonsense conclusion that hard-sell tactics directed at mid
dle school students could lead to exploitation, distort competition be
tween high school teams, and foster an environment in which athletics
are prized more highly than academics. TSSAA’s rule discourages pre
cisely the sort of conduct that might lead to those harms, any one of
which would detract from a high school sports league’s ability to operate
“efficiently and effectively.” Ibid. Pp. 299–300.
2. TSSAA did not violate Brentwood’s due process rights. The sanc
tion decision was preceded by an investigation, several meetings, corre
spondence, the TSSAA executive director’s adverse written determina
tion, a hearing before the director and an advisory panel, and a de novo
review by the entire TSSAA Board. During the investigation, Brent
wood was notified of all the charges against it. At each of the hearings,
it was represented by counsel and given the opportunity to adduce evi
dence, none of which was excluded. The Court rejects Brentwood’s
argument that its due process rights were nevertheless violated when
the full TSSAA Board, acting ex parte, heard from investigators and
other witnesses and considered the investigators’ notes and other evi
dence concerning a separate incident in which a basketball coach named
King, who was not a Brentwood employee, pushed a middle school bas
ketball star to attend Brentwood. Even accepting the questionable
holding that TSSAA’s closed-door deliberations were unconstitutional,
any due process violation was harmless beyond a reasonable doubt. It
is unlikely the King allegations increased the severity of the penalties
leveled against Brentwood. More importantly, Brentwood’s prejudice
claim rests on the unsupported premise that it would have adopted a
different and more effective strategy at the board hearing had it been
given an opportunity to cross-examine the investigators and review
their notes. Brentwood has identified nothing the investigators shared
with the board that Brentwood did not already know. Pp. 300–304.
Stevens, J., announced the judgment of the Court and delivered the
opinion of the Court with respect to Parts I, II–B, III, and IV, in which
Roberts, C. J., and Scalia, Kennedy, Souter, Ginsburg, Breyer, and
Alito, JJ., joined, and an opinion with respect to Part II–A, in which
Souter, Ginsburg, and Breyer, JJ., joined. Kennedy, J., filed an opin

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Syllabus
ion concurring in part and concurring in the judgment, in which Roberts,
C. J., and Scalia and Alito, JJ., joined, post, p. 304. Thomas, J., filed an
opinion concurring in the judgment, post, p. 306.
Maureen E. Mahoney argued the cause for petitioner.
With her on the briefs were J. Scott Ballenger, Alexander
Maltas, and Richard L. Colbert.
Dan Himmelfarb argued the cause for the United States
as amicus curiae urging reversal. With him on the brief
were Solicitor General Clement, Assistant Attorney Gen
eral Keisler, Deputy Solicitor General Garre, and Mark B.
Stern.
James F. Blumstein argued the cause for respondent.
With him on the brief were H. Lee Barfield II, W. Brantley
Phillips, Jr., and Ross I. Booher.*
*Briefs of amici curiae urging reversal were filed for the Arizona Inter
scholastic Association, Inc., et al. by James B. Gessford, Mark Mignella,
Alexander Halpern, Kenneth L. Mallea, Mallory V. Mayse, Mark Geiger,
and Don G. Carter; for the Boyd-Buchanan School et al. by W. Lee Maddux
and Rosemarie L. Bryan; for the National Federation of State High
School Associations by William E. Quirk; and for the National School
Boards Association by Pamela S. Karlan, Jeffrey L. Fisher, Francisco M.
Negro´ n, Jr., Amy Howe, Kevin K. Russell, and Thomas C. Goldstein.
Briefs of amici curiae urging affirmance were filed for the Association
of Christian Schools International by Floyd Abrams; for Brentwood Acad
emy Parents et al. by Robert M. Bastress, Jr.; for the Bridges Academy
of Nashville, Tennessee, by Christopher D. Kratovil; for the Center for
Education Reform and Excellent Education for Everyone by Martin S.
Kaufman and Briscoe R. Smith; for the Institute for Justice by Andrew
McBride and Clark M. Neily III; for the National Alliance for Public
Charter Schools et al. by Christopher P. Ferragamo; for the National
Women’s Law Center et al. by Virginia A. Seitz, Marcia D. Greenberger,
Jocelyn F. Samuels, and Dina R. Lassow; for the Roman Catholic Diocese
of Nashville, Tennessee, et al. by William Bradford Reynolds; and for the
Tennessee Lawyers’ Association for Women by Linda Carver Whitlow
Knight.
A brief of amicus curiae was filed for the National Collegiate Athletic
Association by William C. Odle.

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294 TENNESSEE SECONDARY SCHOOL ATHLETIC
ASSN. v. BRENTWOOD ACADEMY
Opinion of the Court
Justice Stevens announced the judgment of the Court
and delivered the opinion of the Court with respect to
Parts I, II–B, III, and IV, and an opinion with respect to
Part II–A, in which Justice Souter, Justice Ginsburg,
and Justice Breyer join.
The principal issue before us is whether the enforcement
of a rule prohibiting high school coaches from recruiting mid
dle school athletes violates the First Amendment. We also
must decide whether the sanction imposed on respondent for
violating that rule was preceded by a fair hearing.
I
Although this case has had a long history, the relevant
facts may be stated briefly. The Tennessee Secondary
School Athletic Association (TSSAA) is a not-for-profit mem
bership corporation organized to regulate interscholastic
sports among its members, which include some 290 public
and 55 private high schools in Tennessee. Brentwood Acad
emy is one of those private schools.
Since the early 1950’s, TSSAA has prohibited high schools
from using “undue influence” in recruiting middle school stu
dents for their athletic programs. In April 1997, Brent
wood’s football coach sent a letter to a group of eighth-grade
boys inviting them to attend spring practice sessions. See
App. 119. The letter explained that football equipment
would be distributed and that “getting involved as soon as
possible would definitely be to your advantage.” Ibid. It
was signed “Your Coach.” Ibid. While the boys who re
ceived the letter had signed a contract signaling their intent
to attend Brentwood, none had enrolled within the meaning
of TSSAA rules. See id., at 182 (defining “enrolled” as hav
ing “attended 3 days of school”). All of the boys attended
at least some of the spring practice sessions. As the case
comes to us, it is settled that the coach’s pre-enrollment solic
itation violated the TSSAA’s antirecruiting rule and that he
had ample notice that his conduct was prohibited.

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TSSAA accordingly sanctioned Brentwood. After pro
ceeding through two layers of internal TSSAA review,
Brentwood brought this action against TSSAA and its exec
utive director in federal court under Rev. Stat. § 1979, 42
U. S. C. § 1983. As relevant here, Brentwood made two
claims: first, that enforcement of the rule was state action in
violation of the First and Fourteenth Amendments; and sec
ond, that TSSAA’s flawed adjudication of its appeal had de
prived the school of due process of law. The District Court
granted relief to Brentwood, but the Court of Appeals re
versed, holding that TSSAA was a private voluntary associa
tion that did not act under color of state law. We granted
certiorari and reversed, holding that the District Court was
correct on the threshold issue. Brentwood Academy v. Ten
nessee Secondary School Athletic Assn., 531 U. S. 288 (2001).
On remand, the Sixth Circuit sent the case back to the Dis
trict Court, which once again ruled for Brentwood. 304
F. Supp. 2d 981 (MD Tenn. 2003). TSSAA appealed, and the
Court of Appeals affirmed over one judge’s dissent. 442
F. 3d 410 (2006). The majority held that the antirecruiting
rule is a content-based regulation of speech that is not nar
rowly tailored to serve its permissible purposes. Id., at
420–431. It also concluded that the TSSAA Board improp
erly considered ex parte evidence during its deliberations,
thereby violating Brentwood’s due process rights. Id., at
433–438.
We again granted certiorari, 549 U. S. 1105 (2007), and we
again reverse.
II
The First Amendment protects Brentwood’s right to pub
lish truthful information about the school and its athletic
programs. It likewise protects the school’s right to try
to persuade prospective students and their parents that its
excellence in sports is a reason for enrolling. But Brent
wood’s speech rights are not absolute. It chose to join
TSSAA, an athletic league and a state actor invested with a

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three-fold obligation to prevent the exploitation of children,
to ensure that high school athletics remain secondary to aca
demics, and to promote fair competition among its members.
TSSAA submits that these interests adequately support
the enforcement against its member schools of a rule prohib
iting coaches from trying to recruit impressionable middle
school athletes. Brentwood disagrees, and maintains that
TSSAA’s asserted interests are too flimsy and its rule too
broad to support what the school views as a serious curtail
ment of its constitutional rights. Two aspects of the case
taken together persuade us that TSSAA should prevail.
A
The antirecruiting rule strikes nowhere near the heart of
the First Amendment. TSSAA has not banned the dissemi
nation of truthful information relating to sports, nor has it
claimed that it could. Cf. Virginia Bd. of Pharmacy v. Vir
ginia Citizens Consumer Council, Inc., 425 U. S. 748 (1976)
(striking down a prohibition on advertising prices for pre
scription drugs). It has only prevented its member schools’
coaches from recruiting individual middle school students.
Our cases teach that there is a difference of constitutional
dimension between rules prohibiting appeals to the public at
large, see 44 Liquormart, Inc. v. Rhode Island, 517 U. S. 484,
495–500 (1996), and rules prohibiting direct, personalized
communication in a coercive setting.
Ohralik v. Ohio State Bar Assn., 436 U. S. 447 (1978),
nicely illustrates the point. In Ohralik, we considered
whether the First Amendment disabled a state bar associa
tion from disciplining a lawyer for the in-person solicitation
of clients. The lawyer argued that under our decision in
Bates v. State Bar of Ariz., 433 U. S. 350, 384 (1977), which
invalidated on First Amendment grounds a ban on truthful
advertising relating to the “availability and terms of routine
legal services,” his solicitation was protected speech. We
rejected the lawyer’s argument, holding that the “in-person

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solicitation of professional employment by a lawyer does not
stand on a par with truthful advertising about the availabil
ity and terms of routine legal services, let alone with forms
of speech more traditionally within the concern of the First
Amendment.” 436 U. S., at 455. We reasoned that the so
licitation ban was more akin to a conduct regulation than a
speech restriction:
“ ‘[I]t has never been deemed an abridgment of freedom
of speech or press to make a course of conduct illegal
merely because the conduct was in part initiated, evi
denced, or carried out by means of language, either spo
ken, written, or printed.’ Numerous examples could be
cited of communications that are regulated without of
fending the First Amendment, such as the exchange of
information about securities, corporate proxy state
ments, the exchange of price and production information
among competitors, and employers’ threats of retaliation
for the labor activities of employees . . . . Each of these
examples illustrates that the State does not lose its
power to regulate commercial activity deemed harmful
to the public whenever speech is a component of that
activity.” Id., at 456 (citations omitted).
Drawing on these examples, we found that the “[i]n-person
solicitation by a lawyer of remunerative employment is a
business transaction in which speech is an essential but sub
ordinate component,” id., at 457, the prohibition of which
raised few (if any) First Amendment problems.
Ohralik identified several evils associated with direct so
licitation distinct from the harms presented by conventional
commercial speech. Direct solicitation “may exert pressure
and often demands an immediate response, without provid
ing an opportunity for comparison or reflection,” ibid.; its
goal “may be to provide a one-sided presentation and to en
courage speedy and perhaps uninformed decisionmaking,”
ibid.; and it short circuits the “opportunity for intervention

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or counter-education by agencies of the Bar, supervisory au
thorities, or persons close to the solicited individual,” ibid.
For these reasons, we concluded that in-person solicitation
“actually may disserve the individual and societal interest,
identified in Bates, in facilitating ‘informed and reliable deci
sionmaking.’ ” Id., at 458 (quoting Bates, 433 U. S., at 364).
We have since emphasized that Ohralik’s “narrow” holding
is limited to conduct that is “ ‘inherently conducive to over
reaching and other forms of misconduct.’ ” Edenfield v.
Fane, 507 U. S. 761, 774 (1993) (quoting Ohralik, 436 U. S., at
464); see also Zauderer v. Office of Disciplinary Counsel of
Supreme Court of Ohio, 471 U. S. 626, 641 (1985) (emphasiz
ing that Ohralik involved a “practice rife with possibilities
for overreaching, invasion of privacy, the exercise of undue
influence, and outright fraud”). And we have not been
chary of invalidating state restrictions on solicitation and
commercial advertising in the absence of the acute risks as
sociated with in-person legal solicitation. See Edenfield,
507 U. S., at 775 (striking down a restriction on in-person
solicitation by accountants because such solicitation “poses
none of the same dangers” identified in Ohralik); Zauderer,
471 U. S., at 639–647 (invalidating a restriction on truthful,
nondeceptive legal advertising directed at people with spe
cific legal problems); Shapero v. Kentucky Bar Assn., 486
U. S. 466, 472–478 (1988) (overturning a blanket proscription
on all forms of legal solicitation). In our view, however, the
dangers of undue influence and overreaching that exist when
a lawyer chases an ambulance are also present when a high
school coach contacts an eighth grader.
After all, it is a heady thing for an eighth-grade student
to be contacted directly by a coach—here, “Your Coach”—
and invited to join a high school sports team. In too many
cases, the invitation will come accompanied with a sugges
tion, subtle or otherwise, that failure to accept will hurt the
student’s chances to play high school sports and diminish the
odds that she could continue on to college or (dream of

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dreams) professional sports. Cf. App. 119 (“I do feel that
getting involved as soon as possible would definitely be to
your advantage”).1 Such a potent entreaty, playing as it
does on youthful hopes and fears, could well exert the kind of
undue pressure that “disserve[s] the individual and societal
interest . . . in facilitating ‘informed and reliable decision
making.’ ” Ohralik, 436 U. S., at 458. Given that TSSAA
member schools remain free to send brochures, post bill
boards, and otherwise advertise their athletic programs,
TSSAA’s limited regulation of recruiting conduct poses no
significant First Amendment concerns.
B
Brentwood made a voluntary decision to join TSSAA and
to abide by its antirecruiting rule. See Brentwood, 531
U. S., at 291 (“No school is forced to join”); cf. Grove City
College v. Bell, 465 U. S. 555, 575 (1984). Just as the govern
ment’s interest in running an effective workplace can in some
circumstances outweigh employee speech rights, see Con
nick v. Myers, 461 U. S. 138 (1983), so too can an athletic
league’s interest in enforcing its rules sometimes warrant
curtailing the speech of its voluntary participants. See
Pickering v. Board of Ed. of Township High School Dist.
205, Will Cty., 391 U. S. 563, 568 (1968) (holding that the
scope of a government employee’s First Amendment rights
depends on the “balance between the interests of the [em
ployee], as a citizen, in commenting upon matters of public
concern and the interest of the State, as an employer, in pro
moting the efficiency of the public services it performs
through its employees”); see also Board of Comm’rs, Wa
baunsee Cty. v. Umbehr, 518 U. S. 668, 679 (1996) (“eschew
[ing]” a formal approach to determining which contractual
relationships call for the application of Pickering balancing).
1 When asked at trial about this language from the offending letter, the
Brentwood football coach acknowledged that “[i]n some cases” the middle
school student is “not going to think that’s optional.” App. 301.

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This is not to say that TSSAA has unbounded authority to
condition membership on the relinquishment of any and all
constitutional rights. As we recently emphasized in the em
ployment context, “[s]o long as employees are speaking as
citizens about matters of public concern, they must face only
those speech restrictions that are necessary for their em
ployers to operate efficiently and effectively.” Garcetti v.
Ceballos, 547 U. S. 410, 419 (2006). Assuming, without de
ciding, that the coach in this case was “speaking as [a] citi
ze[n] about matters of public concern,” ibid., TSSAA can
similarly impose only those conditions on such speech that
are necessary to managing an efficient and effective state
sponsored high school athletic league.
That necessity is obviously present here. We need no em
pirical data to credit TSSAA’s commonsense conclusion that
hard-sell tactics directed at middle school students could lead
to exploitation, distort competition between high school
teams, and foster an environment in which athletics are
prized more highly than academics. See Paris Adult The
atre I v. Slaton, 413 U. S. 49, 60 (1973). TSSAA’s rule dis
courages precisely the sort of conduct that might lead to
those harms, any one of which would detract from a high
school sports league’s ability to operate “efficiently and effec
tively.” Garcetti, 547 U. S., at 419. For that reason, the
First Amendment does not excuse Brentwood from abiding
by the same antirecruiting rule that governs the conduct of
its sister schools. To hold otherwise would undermine the
principle, succinctly articulated by the dissenting judge at
the Court of Appeals, that “[h]igh school football is a game.
Games have rules.” 442 F. 3d, at 444 (opinion of Rogers, J.).
It is only fair that Brentwood follow them.
III
The decision to sanction Brentwood for engaging in pro
hibited recruiting was preceded by an investigation, several
meetings, exchanges of correspondence, see App. 120–123

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(fax from Brentwood’s coach to TSSAA’s executive director);
id., at 124–127 (memorandum from director to Brentwood’s
headmaster); id., at 128–133 (letter from the headmaster
responding to the director’s memorandum); id., at 204–211
(letter from TSSAA director to headmaster with further
questions); id., at 212–229 (responsive letter from Brent
wood’s headmaster), an adverse written determination from
TSSAA’s executive director, id., at 238–244, a hearing before
the director and an advisory panel composed of three mem
bers of TSSAA’s Board of Control, see id., at 254–258, and
finally a de novo review by the entire TSSAA Board of
Directors, see id., at 269–271. During the investigation,
Brentwood was notified of all the charges against it. At
each of the two hearings, Brentwood was represented by
counsel and given the opportunity to adduce evidence. No
evidence offered by Brentwood was excluded.
Brentwood nevertheless maintains that its due process
rights were violated when the full TSSAA Board, during its
deliberations, heard from witnesses and considered evidence
that the school had no opportunity to respond to. Some
background is necessary to understand the claim. One of
the matters under investigation was whether an Amateur
Athletic Union basketball coach named Bart King had
pushed talented middle school students—including a basket
ball star named Jacques Curry—to attend Brentwood. See,
e. g., id., at 220, 222 (letter from Brentwood’s headmaster dis
cussing the allegation that King had told Curry that if he
attended Brentwood, he “would probably have a car when he
is in the tenth grade”). Brentwood consistently maintained
that King had no affiliation with the school and no authority
to act on its behalf. See, e. g., id., at 221–222. Neverthe
less, the initial decision by TSSAA’s executive director, as
well as the subsequent decision by the director and the advi
sory panel, declared Curry (as well as several other players)
ineligible to play for Brentwood. See id., at 243 (blanket
ineligibility), 255 (ineligibility for varsity sports).

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As it had in earlier stages of the case, in Brentwood’s final
appeal to the TSSAA Board, the school offered live testi
mony from Curry and an affidavit from King denying the
alleged recruiting violations. See id., at 264–267 (Curry’s
testimony); id., at 261 (listing “Affidavit of Bart King” as
an exhibit).2 Once Curry had testified, Brentwood’s counsel
advised the board that King was available to answer any
questions, but did not call him as a witness.3 After review
ing the evidence, the board found that Brentwood had com
mitted three specific violations of its rules, none of which
appeared to involve either King or Curry, and it reinstated
Curry’s eligibility. Id., at 269–271. As a penalty for the
three violations, the board put Brentwood’s athletic program
on probation for four years, excluded the boys’ basketball
2 The District Court’s conclusion that “[t]here was no indication from the
TSSAA before the final hearing . . . that the organization was still consid
ering the Bart King allegations” is clearly erroneous. 304 F. Supp. 2d
981, 1004, n. 29 (MD Tenn. 2003); see also 442 F. 3d 410, 435, and n. 20
(CA6 2006) (affirming finding). Brentwood appealed to the full board in
part to overturn the ineligibility sanction that had been leveled against
Curry and several other players. See App. 255. Because the only justi
fication for declaring Curry ineligible was that King had improperly re
cruited him to play for Brentwood, the King allegations were obviously at
issue. Brentwood understood as much. It otherwise would have been
wasted effort for King to submit an affidavit and for Curry to testify.
Similarly, given that Curry testified in some detail about his relationship
with King, id., at 264–267, the Court of Appeals incorrectly concluded that
the discussion of King was limited to a brief exchange about whether King
would testify. See 442 F. 3d, at 435 (“Evidently this was the only discus
sion of King at the hearing”).
3 “[Brentwood’s lawyer]: Any other questions? That’s going to be it for
our proof. If I could make just a few concluding remarks.
“By the way, we have Bart King here to answer any questions. And it
was our intention to put him on, but I don’t know if you all are interested
in extending for five minutes to hear from Bart King or not. He’s here if
you want him.
“[TSSAA’s executive director]: No.
“[Brentwood’s lawyer]: No. All right.” App. 267.

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and football teams from tournament playoffs for two years,
and imposed a $3,000 fine. Id., at 270.
During its deliberations, the board discussed the case with
the executive director who had presided at the earlier
proceedings and two TSSAA investigators, none of whom
had been cross-examined. The investigators also provided
handwritten notes to the board detailing their investigations;
Brentwood never received those notes. The District Court
found that the consideration of the ex parte evidence influ
enced the board’s penalty decision and contravened the Due
Process Clause. 304 F. Supp. 2d, at 1003–1006. The Court
of Appeals accepted that finding, as well as the conclusion
that the evidence tainted the fairness of the proceeding.
442 F. 3d, at 433–438. TSSAA now maintains that the lower
courts erred.
We agree. Even accepting the questionable holding that
TSSAA’s closed-door deliberations were unconstitutional, we
can safely conclude that any due process violation was harm
less beyond a reasonable doubt. To begin with, it is hard to
believe that the King allegations increased the severity of
the penalties leveled against Brentwood.4 But more impor
4 At trial, a board member testified that the board “dropped” the charges
relating to King, id., at 347 (testimony of Michael Hammond), which ex
plains why the board restored Curry’s eligibility. The fine, the probation
ary period, and the playoff suspension had all been imposed at earlier
stages of the proceedings, see id., at 243, 255, suggesting that the board
was as a practical matter just affirming penalties associated with the
remaining recruiting violations. The King allegations appear to have
played a negligible role in choosing which penalties to assess.
The District Court drew its contrary conclusion from a single piece of
evidence: the board president’s affirmative response during a deposition
to a question about whether the King allegations supported the board’s
finding that the recruiting rule had been violated. 442 F. 3d, at 435–436.
As the board president clarified at trial, however, while the King allega
tions were a “ ‘factor’ ” in the board’s discussions, the “ ‘final penalty did
not involve Bart King . . . . [T]he final penalty really dealt with the letter
from Mr. Flatt.’ ” Id., at 436. Thinking it a close call, ibid. (“Whether
the King issue was actually a factor in the penalties ultimately imposed is

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Opinion of Kennedy, J.
tantly, Brentwood’s claim of prejudice rests on the unsup
ported premise that it would have adopted a different and
more effective strategy at the board hearing had it been
given an opportunity to cross-examine the investigators and
review their notes. Despite having had nearly a decade
since the hearing to undertake that cross-examination and
review, Brentwood has identified nothing the investigators
shared with the board that Brentwood did not already know.5
Perhaps that is why Brentwood never explains what a more
effective strategy might have looked like. Brentwood
obliquely suggests it might have had King testify at the
hearing, but it gives no inkling of what his testimony would
have added to the proceedings. We are not inclined to spec
ulate on its behalf.
IV
We accordingly reverse the judgment of the Court of Ap
peals and remand the case for further proceedings consistent
with this opinion.
It is so ordered.
Justice Kennedy, with whom The Chief Justice, Jus
tice Scalia, and Justice Alito join, concurring in part and
concurring in the judgment.
Although I have little difficulty concluding that the regula
tion at issue does not contravene the First Amendment, I do
not agree with the principal opinion’s reliance on Ohralik v.
Ohio State Bar Assn., 436 U. S. 447 (1978). Ohralik, as the
far less certain”), the Court of Appeals held that the District Court could
credit the board president’s deposition testimony over his subsequent
qualification of that testimony. We agree with the dissenting judge below
that “so slender an evidentiary reed” cannot support the conclusion that
TSSAA violated Brentwood’s procedural rights. Id., at 454 (opinion of
Rogers, J.).
5 Nor has our independent review of the investigators’ notes unearthed
any allegation of misconduct that would have been new to Brentwood.
See XV App. in No. 03–5245 etc. (CA6 2006), pp. 4178–4193.

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305 Cite as: 551 U. S. 291 (2007)
Opinion of Kennedy, J.
principal opinion notes, involved communications between
attorney and client, or, more to the point, the in-person solic
itation by an attorney of an accident victim as a potential
client. Ohralik was later extended to attorney solicitation
of accident victims through direct mail, though the Court
was closely divided as to the constitutionality of that exten
sion. See Florida Bar v. Went For It, Inc., 515 U. S. 618
(1995). But the Court has declined to extend the Ohralik
rule beyond the attorney-client relationship.
In Edenfield v. Fane, 507 U. S. 761 (1993), the Court struck
down a ban on solicitation from accountants to potential cli
ents. The Court there made clear that Ohralik “did not
hold that all personal solicitation is without First Amend
ment protection.” 507 U. S., at 765, 774. It further noted
that “Ohralik’s holding was narrow and depended upon cer
tain ‘unique features of in-person solicitation by lawyers’
that were present in the circumstances of that case.” Ibid.
(quoting Zauderer v. Office of Disciplinary Counsel of Su
preme Court of Ohio, 471 U. S. 626, 641 (1985)).
In my view it is both unnecessary and ill advised to rely
upon Ohralik in the instant matter. By doing so, the princi
pal opinion, at a minimum, is open to the implication that the
speech at issue is subject to state regulation whether or not
the school has entered a voluntary contract with a state
sponsored association in order to promote a code of conduct
affecting solicitation. To allow freestanding state regula
tion of speech by coaches and other representatives of non
member schools would be a dramatic expansion of Ohralik
to a whole new field of endeavor. Yet by relying on Ohralik
the principal opinion undermines the argument that, in the
absence of Brentwood Academy’s consensual membership in
the Tennessee Secondary School Athletic Association, the
speech by the head coach would be entitled to First Amend
ment protection.
For these reasons I must decline to join Part II–A of the
principal opinion and any other portion of Part II that sug

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306 TENNESSEE SECONDARY SCHOOL ATHLETIC
ASSN. v. BRENTWOOD ACADEMY
Thomas, J., concurring in judgment
gests Ohralik is applicable here. It is evident, furthermore,
that a majority of the Court agrees with this position. See
post this page and 307 (Thomas, J., concurring in judgment).
I do join the remainder of the Court’s opinion and the judg
ment that ensues.
Justice Thomas, concurring in the judgment.
In resolving this case, the Court applies the Pickering v.
Board of Ed. of Township High School Dist. 205, Will Cty.,
391 U. S. 563 (1968), line of cases to hold that the Tennessee
Secondary School Athletic Association (TSSAA) did not vio
late Brentwood’s First Amendment rights. Ante, at 299–
300. Until today, Pickering governed limitations on the
speech rights of government employees and contractors.
The Court uproots Pickering from its context and applies it
to speech by a private school that is a member of a private
athletic association. The need to stretch Pickering to fit
this case was occasioned by the Court when it held that
TSSAA, a private organization, was a state actor. Brent
wood Academy v. Tennessee Secondary School Athletic
Assn., 531 U. S. 288 (2001) (Brentwood I). Because Brent
wood I departed so dramatically from our earlier state-action
cases, it is unsurprising that no First Amendment frame
work readily applies to this case. Rather than going
through the bizarre exercise of extending obviously inappli
cable First Amendment doctrine to these circumstances,
I would simply overrule Brentwood I.* See id., at 305–315
(Thomas, J., dissenting).
The Court’s extension of Pickering to this context is
therefore unnecessary, but the principal opinion’s application
of Ohralik v. Ohio State Bar Assn., 436 U. S. 447 (1978), ante,
at 296–299, is outright wrong. For the reasons expressed in
Justice Kennedy’s opinion concurring in part and concur
ring in the judgment, ante, at 304–305 and this page, Ohralik
*Holding that TSSAA is not a state actor would also resolve Brent
wood’s due process claim.

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307 Cite as: 551 U. S. 291 (2007)
Thomas, J., concurring in judgment
is a narrow rule addressed to a particular context that has
no application to the facts of this case. For these reasons,
I concur in the Court’s judgment.