531 U.S.

288
121 S.Ct. 924
148 L.Ed.2d 807

NOTICE: This opinion is subject to formal revision before

publication in the preliminary print of the United States
Reports. Readers are requested to notify the Reporter of
Decisions, Supreme Court of the United States, Washington, D.
C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes
to press.
BRENTWOOD ACADEMY, PETITIONER
v.
TENNESSEE SECONDARY SCHOOL ATHLETIC
ASSOCIATION et al.
No. 99-901.

SUPREME COURT OF THE UNITED STATES

Argued October 11, 2000
Decided February 20, 2001

Syllabus
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. 5-17.
(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 entwined 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. 6-9.
(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. 9-13.
(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, Rendell&nbhyph;Baker v.
Kohn, 457 U.S. 830, distinguished. Pp. 13-15.
(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 schools themselves are state
actors subject to suit under 1983 and Title IX of the Education
Amendments of 1972. Pp. 15-16. 180 F.3d 758, reversed and remanded.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT
Souter, J., delivered the opinion of the Court, in which Stevens, O'Connor,
Ginsburg, and Breyer, JJ., joined. Thomas, J., filed a dissenting opinion,
in which Rehhquist, C. J., and Scalia and Kennedy, JJ., joined.
Opinion of the Court
Justice Souter delivered the opinion of the Court.

1 issue is whether a statewide association incorporated to regulate interscholastic

The
athletic competition among public and private secondary schools may be regarded as
engaging in state action when it enforces a rule against a member school. The
association in question here includes most public schools located within the State,
acts through their representatives, draws its officers from them, is largely funded by
their dues and income received in their stead, and has historically been seen to
regulate in lieu of the State Board of Education's exercise of its own authority. We

hold that the association's regulatory activity may and should be treated as state
action owing to the pervasive entwinement of state school officials in the structure of
the association, there being no offsetting reason to see the association's acts in any
other way.
*2 Respondent Tennessee Secondary School Athletic Association (Association) is a
not-for-profit membership corporation organized to regulate interscholastic sport
among the public and private high schools in Tennessee that belong to it. No school
is forced to join, but without any other authority actually regulating interscholastic
athletics, it enjoys the memberships of almost all the State's public high schools
(some 290 of them or 84% of the Association's voting membership), far
outnumbering the 55 private schools that belong. A member school's team may play
or scrimmage only against the team of another member, absent a dispensation.
3 Association's rulemaking arm is its legislative council, while its board of control
The
tends to administration. The voting membership of each of these nine-person
committees is limited under the Association's bylaws to high school principals,
assistant principals, and superintendents elected by the member schools, and the
public school administrators who so serve typically attend meetings during regular
school hours. Although the Association's staff members are not paid by the State,
they are eligible to join the State's public retirement system for its employees.
Member schools pay dues to the Association, though the bulk of its revenue is gate
receipts at member teams' football and basketball tournaments, many of them held in
public arenas rented by the Association.
4 constitution, bylaws, and rules of the Association set standards of school
The
membership and the eligibility of students to play in interscholastic games. Each
school, for example, is regulated in awarding financial aid, most coaches must have
a Tennessee state teaching license, and players must meet minimum academic
standards and hew to limits on student employment. Under the bylaws, "in all
matters pertaining to the athletic relations of his school," App. 138, the principal is
responsible to the Association, which has the power "to suspend, to fine, or
otherwise penalize any member school for the violation of any of the rules of the
Association or for other just cause," id., at 100.
5
Ever
since the Association was incorporated in 1925, Tennessee's State Board of
Education (State Board) has (to use its own words) acknowledged the corporation's
functions "in providing standards, rules and regulations for interscholastic
competition in the public schools of Tennessee," id., at 211. More recently, the State
Board cited its statutory authority, Tenn. Code Ann. 49-1-302 (App. 220), when it
adopted language expressing the relationship between the Association and the
Board. Specifically, in 1972, it went so far as to adopt a rule expressly
"designat[ing]" the Association as "the organization to supervise and regulate the

athletic activities in which the public junior and senior high schools in Tennessee
participate on an interscholastic basis." Tennessee State Board of Education,
Administrative Rules and Regulations, Rule 0520-1-2-.26 (1972) (later moved to
Rule 0520-1-2-.08). The Rule provided that "the authority granted herein shall
remain in effect until revoked" and instructed the State Board's chairman to
"designate a person or persons to serve in an ex-officio capacity on the
[Association's governing bodies]." App. 211. That same year, the State Board
specifically approved the Association's rules and regulations, while reserving the
right to review future changes. Thus, on several occasions over the next 20 years,
the State Board reviewed, approved, or reaffirmed its approval of the recruiting Rule
at issue in this case. In 1996, however, the State Board dropped the original Rule
0520-1-2-.08 expressly designating the Association as regulator; it substituted a
statement "recogniz[ing] the value of participation in interscholastic athletics and the
role of [the Association] in coordinating interscholastic athletic competition," while
"authoriz[ing] the public schools of the state to voluntarily maintain membership in
[the Association]." Id., at 220.
6 action before us responds to a 1997 regulatory enforcement proceeding brought
The
against petitioner, Brentwood Academy, a private parochial high school member of
the Association. The Association's board of control found that Brentwood violated a
rule prohibiting "undue influence" in recruiting athletes, when it wrote to incoming
students and their parents about spring football practice. The Association
accordingly placed Brentwood's athletic program on probation for four years,
declared its football and boys' basketball teams ineligible to compete in playoffs for
two years, and imposed a $3,000 fine. When these penalties were imposed, all the
voting members of the board of control and legislative council were public school
administrators.
7
Brentwood
sued the Association and its executive director in federal court under
Rev. Stat. 1979, 42 U.S.C. 1983 claiming that enforcement of the Rule was state
action and a violation of the First and Fourteenth Amendments. The District Court
entered summary judgment for Brentwood and enjoined the Association from
enforcing the Rule. 13 F. Supp. 2d 670 (MD Tenn. 1998). In holding the Association
to be a state actor under 1983 and the Fourteenth Amendment, the District Court
found that the State had delegated authority over high school athletics to the
Association, characterized the relationship between the Association and its public
school members as symbiotic, and emphasized the predominantly public character of
the Association's membership and leadership. The court relied on language in
National Collegiate Athletic Assn. v. Tarkanian, 488 U.S. 179, 193, n. 13 (1988),
suggesting that statewide interscholastic athletic associations are state actors, and on
other federal cases in which such organizations had uniformly been held to be acting
under color of state law.

8 United States Court of Appeals for the Sixth Circuit reversed. 180 F.3d 758
The
(1999). It recognized that there is no single test to identify state actions and state
actors but applied three criteria derived from Blum v. Yaretsky, 457 U.S. 991
(1982), Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982), and Rendell-Baker v.
Kohn, 457 U.S. 830 (1982), and found no state action under any of them. It said the
District Court was mistaken in seeing a symbiotic relationship between the State and
the Association, it emphasized that the Association was neither engaging in a
traditional and exclusive public function nor responding to state compulsion, and it
gave short shrift to the language from Tarkanian on which the District Court relied.
Rehearing en banc was later denied over the dissent of two judges, who criticized
the panel decision for creating a conflict among state and federal courts, for being
inconsistent with Tarkanian, and for lacking support in the "functional" analysis of
private activity required by West v. Atkins, 487 U.S. 42 (1988), for assessing the
significance of cooperation between public officials and a private actor. 190 F.3d
705 (CA6 1999) (Merritt, J., dissenting from denial of rehearing en banc).
9 granted certiorari, 528 U.S. 1153 (2000), to resolve the conflict1 and now
We
reverse.
II
*10Our cases try to plot a line between state action subject to Fourteenth Amendment
scrutiny and private conduct (however exceptionable) that is not. Tarkanian, supra,
at 191; Jackson v. Metropolitan Edison Co., 419 U.S. 345, 349 (1974). The judicial
obligation is not only to " 'preserv[e] an area of individual freedom by limiting the
reach of federal law' and avoi[d] the imposition of responsibility on a State for
conduct it could not control," Tarkanian, supra, at 191 (quoting Lugar, supra, at 936937), but also to assure that constitutional standards are invoked "when it can be said
that the State is responsible for the specific conduct of which the plaintiff
complains," Blum, supra, at 1004 (emphasis in original). If the Fourteenth
Amendment is not to be displaced, therefore, its ambit cannot be a simple line
between States and people operating outside formally governmental organizations,
and the deed of an ostensibly private organization or individual is to be treated
sometimes as if a State had caused it to be performed. Thus, we say 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." Jackson, supra, at 351.2
11 is fairly attributable is a matter of normative judgment, and the criteria lack
What
rigid simplicity. From the range of circumstances that could point toward the State
behind an individual face, no one fact can function as a necessary condition across
the board for finding state action; nor is any set of circumstances absolutely
sufficient, for there may be some countervailing reason against attributing activity to

the government. See Tarkanian, 488 U.S., at 193, 196; Polk County v. Dodson, 454
U.S. 312 (1981).
Our cases have identified a host of facts that can bear on the fairness of such an
12
attribution. We have, for example, held that a challenged activity may be state action
when it results from the State's exercise of "coercive power," Blum, 457 U.S., at
1004, when the State provides "significant encouragement, either overt or covert,"
ibid., or when a private actor operates as a "willful participant in joint activity with
the State or its agents," Lugar, supra, at 941 (internal quotation marks omitted). We
have treated a nominally private entity as a state actor when it is controlled by an
"agency of the State," Pennsylvania v. Board of Directors of City Trusts of
Philadelphia, 353 U.S. 230, 231 (1957) (per curiam), when it has been delegated a
public function by the State, cf., e.g., West v. Atkins, supra, at 56; Edmonson v.
Leesville Concrete Co., 500 U.S. 614, 627-628 (1991), when it is "entwined with
governmental policies" or when government is "entwined in [its] management or
control," Evans v. Newton, 382 U.S. 296, 299, 301 (1966).
13
Amidst
such variety, examples may be the best teachers, and examples from our
cases are unequivocal in showing that the character of a legal entity is determined
neither by its expressly private characterization in statutory law, nor by the failure of
the law to acknowledge the entity's inseparability from recognized government
officials or agencies. Lebron v. National Railroad Passenger Corporation, 513 U.S.
374 (1995), held that Amtrak was the Government for constitutional purposes,
regardless of its congressional designation as private; it was organized under federal
law to attain governmental objectives and was directed and controlled by federal
appointees. Pennsylvania v. Board of Directors of City Trusts of Philadelphia, supra,
held the privately endowed Gerard College to be a state actor and enforcement of its
private founder's limitation of admission to whites attributable to the State, because,
consistent with the terms of the settlor's gift, the college's board of directors was a
state agency established by state law. Ostensibly the converse situation occurred in
Evans v. Newton, supra, which held that private trustees to whom a city had
transferred a park were nonetheless state actors barred from enforcing racial
segregation, since the park served the public purpose of providing community
recreation, and "the municipality remain[ed] entwined in [its] management [and]
control," id., at 301.
14
These
examples of public entwinement in the management and control of ostensibly
separate trusts or corporations foreshadow this case, as this Court itself anticipated in
Tarkanian, supra. Tarkanian arose when an undoubtedly state actor, the University
of Nevada, suspended its basketball coach, Tarkanian, in order to comply with rules
and recommendations of the National Collegiate Athletic Association (NCAA). The
coach charged the NCAA with state action, arguing that the state university had
delegated its own functions to the NCAA, clothing the latter with authority to make

and apply the university's rules, the result being joint action making the NCAA a
state actor.
15 be sure, it is not the strict holding in Tarkanian that points to our view of this
To
case, for we found no state action on the part of the NCAA. We could see, on the
one hand, that the university had some part in setting the NCAA's rules, and the
Supreme Court of Nevada had gone so far as to hold that the NCAA had been
delegated the university's traditionally exclusive public authority over personnel. Id.,
at 190. But on the other side, the NCAA's policies were shaped not by the
University of Nevada alone, but by several hundred member institutions, most of
them having no connection with Nevada, and exhibiting no color of Nevada law. Id.,
at 193. Since it was difficult to see the NCAA, not as a collective membership, but
as surrogate for the one State, we held the organization's connection with Nevada
too insubstantial to ground a state action claim. Id., at 193, 196.
16 dictum in Tarkanian pointed to a contrary result on facts like ours, with an
But
organization whose member public schools are all within a single State. "The
situation would, of course, be different if the [Association's] membership consisted
entirely of institutions located within the same State, many of them public
institutions created by the same sovereign." Id., at 193, n. 13. To support our
surmise, we approvingly cited two cases: Clark v. Arizona Interscholastic Assn., 695
F.2d 1126 (CA9 1982), cert. denied, 464 U.S. 818 (1983), a challenge to a state high
school athletic association that kept boys from playing on girls' interscholastic
volleyball teams in Arizona; and Louisiana High School Athletic Assn. v. St.
Augustine High School, 396 F.2d 224 (CA5 1968), a parochial school's attack on the
racially segregated system of interscholastic high school athletics maintained by the
athletic association. In each instance, the Court of Appeals treated the athletic
association as a state actor.
B
17 as we foresaw in Tarkanian, the "necessarily fact-bound inquiry," Lugar, 457
Just
U.S., at 939, leads to the conclusion of state action here. The nominally private
character of the Association 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.
18 Association is not an organization of natural persons acting on their own, but of
The
schools, and of public schools to the extent of 84% of the total. Under the
Association's bylaws, each member school is represented by its principal or a faculty
member, who has a vote in selecting members of the governing legislative council
and board of control from eligible principals, assistant principals and
superintendents.

19
Although
the findings and prior opinions in this case include no express conclusion
of law that public school officials act within the scope of their duties when they
represent their institutions, no other view would be rational, the official nature of
their involvement being shown in any number of ways. Interscholastic athletics
obviously play an integral part in the public education of Tennessee, where nearly
every public high school spends money on competitions among schools. Since a
pickup system of interscholastic games would not do, these public teams need some
mechanism to produce rules and regulate competition. The mechanism is an
organization overwhelmingly composed of public school officials who select
representatives (all of them public officials at the time in question here), who in turn
adopt and enforce the rules that make the system work. Thus, by giving these jobs to
the Association, the 290 public schools of Tennessee belonging to it can sensibly be
seen as exercising their own authority to meet their own responsibilities.
Unsurprisingly, then, the record indicates that half the council or board meetings
documented here were held during official school hours, and that public schools
have largely provided for the Association's financial support. A small portion of the
Association's revenue comes from membership dues paid by the schools, and the
principal part from gate receipts at tournaments among the member schools. Unlike
mere public buyers of contract services, whose payments for services rendered do
not convert the service providers into public actors, see Rendell-Baker, 457 U.S., at
839-843, the schools here obtain membership in the service organization and give up
sources of their own income to their collective association. The Association thus
exercises the authority of the predominantly public schools to charge for admission
to their games; the Association does not receive this money from the schools, but
enjoys the schools' moneymaking capacity as its own.
20 sum, to the extent of 84% of its membership, the Association is an organization of
In
public schools represented by their officials acting in their official capacity to
provide an integral element of secondary public schooling. There would be no
recognizable Association, legal or tangible, without the public school officials, who
do not merely control but overwhelmingly perform all but the purely ministerial acts
by which the Association exists and functions in practical terms. Only the 16%
minority of private school memberships prevents this entwinement of the
Association and the public school system from being total and their identities totally
indistinguishable.
21 complement the entwinement of public school officials with the Association
To
from the bottom up, the State of Tennessee has provided for entwinement from top
down. State Board members are assigned ex officio to serve as members of the
board of control and legislative council, and the Association's ministerial employees
are treated as state employees to the extent of being eligible for membership in the
state retirement system.

22is, of course, true that the time is long past when the close relationship between
It
the surrogate association and its public members and public officials acting as such
was attested frankly. As mentioned, the terms of the State Board's Rule expressly
designating the Association as regulator of interscholastic athletics in public schools
was deleted in 1996, the year after a Federal District Court held that the Association
was a state actor because its rules were "caused, directed and controlled by the
Tennessee Board of Education," Graham v. TSSAA, No. 1:95-CV-044, 1995 WL
115890, *5 (ED Tenn., Feb. 20, 1995).3
23 the removal of the designation language from Rule 0520-1-2-.08 affected
But
nothing but words. Today the State Board's member-designees continue to sit on the
Association's committees as nonvoting members, and the State continues to
welcome Association employees in its retirement scheme. The close relationship is
confirmed by the Association's enforcement of the same preamendment rules and
regulations reviewed and approved by the State Board (including the recruiting Rule
challenged by Brentwood), and by the State Board's continued willingness to allow
students to satisfy its physical education requirement by taking part in interscholastic
athletics sponsored by the Association. The most one can say on the evidence is that
the State Board once freely acknowledged the Association's official character but
now does it by winks and nods.4 The amendment to the Rule in 1996 affected candor
but not the "momentum" of the Association's prior involvement with the State
Board. Evans v. Newton, 382 U.S., at 301. The District Court spoke to this point in
finding that because of "custom and practice," "the conduct of the parties has not
materially changed" since 1996, "the connections between TSSAA and the State
[being] still pervasive and entwined." 13 F. Supp. 2d, at 681.
24 entwinement down from the State Board is therefore unmistakable, just as the
The
entwinement up from the member public schools is overwhelming. Entwinement
will support a conclusion that an ostensibly private organization ought to be charged
with a public character and judged by constitutional standards; entwinement to the
degree shown here requires it.
C
25
Entwinement
is also the answer to the Association's several arguments offered to
persuade us that the facts would not support a finding of state action under various
criteria applied in other cases. These arguments are beside the point, simply because
the facts justify a conclusion of state action under the criterion of entwinement, a
conclusion in no sense unsettled merely because other criteria of state action may not
be satisfied by the same facts.
26 Association places great stress, for example, on the application of a public
The
function test, as exemplified in Rendell-Baker v. Kohn, 457 U.S. 830 (1982). There,

an apparently private school provided education for students whose special needs
made it difficult for them to finish high school. The record, however, failed to show
any tradition of providing public special education to students unable to cope with a
regular school, who had historically been cared for (or ignored) according to private
choice. It was true that various public school districts had adopted the practice of
referring students to the school and paying their tuition, and no one disputed that
providing the instruction aimed at a proper public objective and conferred a public
benefit. But we held that the performance of such a public function did not permit a
finding of state action on the part of the school unless the function performed was
exclusively and traditionally public, as it was not in that case. The Association
argues that application of the public function criterion would produce the same
result here, and we will assume, arguendo, that it would. But this case does not turn
on a public function test, any more than Rendell-Baker had anything to do with
entwinement of public officials in the special school.
27 the same reason, it avails the Association nothing to stress that the State neither
For
coerced nor encouraged the actions complained of. "Coercion" and "encouragement"
are like "entwinement" in referring to kinds of facts that can justify characterizing an
ostensibly private action as public instead. Facts that address any of these criteria are
significant, but no one criterion must necessarily be applied. When, therefore, the
relevant facts show pervasive entwinement to the point of largely overlapping
identity, the implication of state action is not affected by pointing out that the facts
might not loom large under a different test.
D
28 is not to say that all of the Association's arguments are rendered beside the
This
point by the public officials' involvement in the Association, for after application of
the entwinement criterion, or any other, there is a further potential issue, and the
Association raises it. Even facts that suffice to show public action (or, standing
alone, would require such a finding) may be outweighed in the name of some value
at odds with finding public accountability in the circumstances. In Polk County, 454
U.S., at 322, a defense lawyer's actions were deemed private even though she was
employed by the county and was acting within the scope of her duty as a public
defender. Full-time public employment would be conclusive of state action for some
purposes, see West v. Atkins, 487 U.S., at 50, accord, Lugar, 457 U.S., at 935, n. 18,
but not when the employee is doing a defense lawyer's primary job; then, the public
defender does "not ac[t] on behalf of the State; he is the State's adversary." Polk
County, supra, at 323, n. 13. The state-action doctrine does not convert opponents
into virtual agents.
29 assertion of such a countervailing value is the nub of each of the Association's
The
two remaining arguments, neither of which, however, persuades us. The Association

suggests, first, that reversing the judgment here will somehow trigger an epidemic of
unprecedented federal litigation. Brief for Respondents 35. Even if that might be
counted as a good reason for a Polk County decision to call the Association's action
private, the record raises no reason for alarm here. Save for the Sixth Circuit, every
Court of Appeals to consider a statewide athletic association like the one here has
found it a state actor. This majority view began taking shape even before Tarkanian,
which cited two such decisions approvingly, see supra, at 9, (and this was six years
after Blum, Rendell-Baker, and Lugar, on which the Sixth Circuit relied here). No
one, however, has pointed to any explosion of 1983 cases against interscholastic
athletic associations in the affected jurisdictions. Not to put too fine a point on it, two
District Courts in Tennessee have previously held the Association itself to be a state
actor, see Graham, 1995 WL 115890, at *5; Crocker v. Tennessee Secondary School
Athletic Assn., 735 F. Supp. 753 (MD Tenn. 1990), affirmance order, 908 F.2d 972,
973 (CA6 1990), but there is no evident wave of litigation working its way across
the State. A reversal of the judgment here portends nothing more than the harmony
of an outlying Circuit with precedent otherwise uniform.
30 do we think there is anything to be said for the Association's contention that
Nor
there is no need to treat it as a state actor since any public school applying the
Association's rules is itself subject to suit under 1983 or Title IX of the Education
Amendments of 1972, 86 Stat. 373, 20 U.S.C. 1681-1688. Brief for Respondents 30.
If Brentwood's claim were pushing at the edge of the class of possible defendant
state actors, an argument about the social utility of expanding that class would at
least be on point, but because we are nowhere near the margin in this case, the
Association is really asking for nothing less than a dispensation for itself. Its
position boils down to saying that the Association should not be dressed in state
clothes because other, concededly public actors are; that Brentwood should be kept
out of court because a different plaintiff raising a different claim in a different case
may find the courthouse open. Pleas for special treatment are hard to sell, although
saying that does not, of course, imply anything about the merits of Brentwood's
complaint; the issue here is merely whether Brentwood properly names the
Association as a 1983 defendant, not whether it should win on its claim.
31 judgment of the Court of Appeals for the Sixth Circuit is reversed, and the case
The
is remanded for further proceedings consistent with this opinion. It is so ordered.

NOTES:
1

A number of other courts have held statewide athletic associations to be state

actors. Griffin High School v. Illinois High School Assn., 822 F.2d 671, 674
(CA7 1987); Clark v. Arizona Interscholastic Assn., 695 F.2d 1126, 1128 (CA9

1982), cert. denied, 464 U.S. 818 (1983); In re United States ex rel. Missouri
State High School Activities Assn., 682 F.2d 147, 151 (CA8 1982); Louisiana
High School Athletic Assn. v. St. Augustine High School, 396 F.2d 224, 227228 (CA5 1968); Oklahoma High School Athletic Assn. v. Bray, 321 F.2d 269,
272-273 (CA10 1963); Indiana High School Athletic Assn. v. Carlberg, 694 N.
E. 2d 222, 229 (Ind. 1997); Mississippi High School Activities Assn., Inc. v.
Coleman, 631 So. 2d 768, 774-775 (Miss. 1994); Kleczek v. Rhode Island
Interscholastic League, Inc., 612 A. 2d 734, 736 (R. I. 1992); see also Moreland
v. Western Penn. Interscholastic Athletic League, 572 F.2d 121, 125 (CA3
1978) (state action conceded).
2

If a defendant's conduct satisfies the state-action requirement of the Fourteenth

Amendment, the conduct also constitutes action "under color of state law" for
1983 purposes. Lugar v. Edmondson Oil Co., 457 U.S. 922, 935 (1982).

The District Court in Graham held that "[t]his delegation of authority to

TSSAA by Tennessee, standing alone, is sufficient to make TSSAA a state
actor" under the "state compulsion test," which it understood to provide that a
State could exercise such coercive power or provide such significant
encouragement, either overt or covert, that the choice of the private actor must
be deemed to be that of the State as a matter of law. 1995 WL 115890, at *4-*5
(citing Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)).

The significance of winks and nods in state-action doctrine seems to be one of

the points of the dissenters' departure from the rest of the Court. In drawing the
public-private action line, the dissenters would emphasize the formal clarity of
the legislative action providing for the appointment of Gerard College's
trustees, see supra, at ___, post, at ___, in preference to our reliance on the
practical certainty in this case that public officials will control operation of the
Association under its bylaws. Similarly, the dissenters stress the express
formality of the special statute defining Amtrak's ties to the Government, see
supra, at ___, post, at ___, in contrast to the reality in this case that the
Association's organizers structured the Association's relationships to the
officialdom of public education. But if formalism were the sine qua non of state
action, the doctrine would vanish owing to the ease and inevitability of its
evasion, and for just that reason formalism has never been controlling. For
example, a criterion of state action like symbiosis (which the dissenters accept,
post, at ___ ) looks not to form but to an underlying reality.

32
Justice
Thomas, with whom The Chief Justice, Justice Scalia, and Justice Kennedy
join, dissenting.
We have never found state action based upon mere "entwinement." Until today, we
33

have found a private organization's acts to constitute state action only when the
organization performed a public function; was created, coerced, or encouraged by
the government; or acted in a symbiotic relationship with the government. The
majority's holding-that the Tennessee Secondary School Athletic Association's
(TSSAA) enforcement of its recruiting rule is state action-not only extends stateaction doctrine beyond its permissible limits but also encroaches upon the realm of
individual freedom that the doctrine was meant to protect. I respectfully dissent.
* Like the state-action requirement of the Fourteenth Amendment, the state-action
34
element of 42 U.S.C. 1983 excludes from its coverage "merely private conduct,
however discriminatory or wrongful." American Mfrs. Mut. Ins. Co. v. Sullivan, 526
U.S. 40, 50 (1999) (internal quotation marks omitted). "Careful adherence to the
'state action' requirement" thus "preserves an area of individual freedom by limiting
the reach of federal law and federal judicial power." Lugar v. Edmondson Oil Co.,
457 U.S. 922, 936 (1982). The state-action doctrine also promotes important values
of federalism, "avoid[ing] the imposition of responsibility on a State for conduct it
could not control." National Collegiate Athletic Assn. v. Tarkanian, 488 U.S. 179,
191 (1988). Although we have used many different tests to identify state action, they
all have a common purpose. Our goal in every case is to determine whether an
action "can fairly be attributed to the State." Blum v. Yaretsky, 457 U.S. 991, 1004
(1982); American Mfrs., supra, at 52.
*35Regardless of these various tests for state action, common sense dictates that the
TSSAA's actions cannot fairly be attributed to the State, and thus cannot constitute
state action. The TSSAA was formed in 1925 as a private corporation to organize
interscholastic athletics and to sponsor tournaments among its member schools. Any
private or public secondary school may join the TSSAA by signing a contract
agreeing to comply with its rules and decisions. Although public schools currently
compose 84% of the TSSAA's membership, the TSSAA does not require that public
schools constitute a set percentage of its membership, and, indeed, no public school
need join the TSSAA. The TSSAA's rules are enforced not by a state agency but by
its own board of control, which comprises high school principals, assistant
principals, and superintendents, none of whom must work at a public school. Of
course, at the time the recruiting rule was enforced in this case, all of the board
members happened to be public school officials. However, each board member acts
in a representative capacity on behalf of all the private and public schools in his
region of Tennessee, and not simply his individual school.
36 State of Tennessee did not create the TSSAA. The State does not fund the
The
TSSAA and does not pay its employees.1 In fact, only 4% of the TSSAA's revenue
comes from the dues paid by member schools; the bulk of its operating budget is
derived from gate receipts at tournaments it sponsors. The State does not permit the
TSSAA to use state-owned facilities for a discounted fee, and it does not exempt the

TSSAA from state taxation. No Tennessee law authorizes the State to coordinate
interscholastic athletics or empowers another entity to organize interscholastic
athletics on behalf of the State.2 The only state pronouncement acknowledging the
TSSAA's existence is a rule providing that the State Board of Education permits
public schools to maintain membership in the TSSAA if they so choose.3 Moreover,
the State of Tennessee has never had any involvement in the particular action taken
by the TSSAA in this case: the enforcement of the TSSAA's recruiting rule
prohibiting members from using "undue influence" on students or their parents or
guardians "to secure or to retain a student for athletic purposes." App. 115. There is
no indication that the State has ever had any interest in how schools choose to
regulate recruiting.4 In fact, the TSSAA's authority to enforce its recruiting rule
arises solely from the voluntary membership contract that each member school signs,
agreeing to conduct its athletics in accordance with the rules and decisions of the
TSSAA.
B
37 approaching the issue in terms of any of the Court's specific state-action tests,
Even
the conclusion is the same: The TSSAA's enforcement of its recruiting rule against
Brentwood Academy is not state action. In applying these tests, courts of course
must place the burden of persuasion on the plaintiff, not the defendant, because state
action is an element of a 1983 claim. American Mfrs., 526 U.S., at 49-50; West v.
Atkins, 487 U.S. 42, 48 (1988).
38 TSSAA has not performed a function that has been "traditionally exclusively
The
reserved to the State." Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352
(1974). The organization of interscholastic sports is neither a traditional nor an
exclusive public function of the States. Widespread organization and administration
of interscholastic contests by schools did not begin until the 20th century. See M.
Lee, A History of Physical Education and Sports in the U.S. A. 73 (1983)
(explaining that what little interscholastic athletics there was in the 19th century
"came almost entirely in the closing decade of the century and was largely pupil
inspired, pupil controlled, and pupil coached"); id., at 68, 146 (stating that no control
of high school sports occurred until 1896, when a group of teachers in Wisconsin set
up a committee to control such contests, and pointing out that "[i]t was several years
before the idea caught on in other states"). Certainly, in Tennessee, the State did not
even show an interest in interscholastic athletics until 47 years after the TSSAA had
been in existence and had been orchestrating athletic contests throughout the State.
Even then, the State Board of Education merely acquiesced in the TSSAA's actions
and did not assume the role of regulating interscholastic athletics. Cf. Blum, 457
U.S., at 1004-1005 ("Mere approval of or acquiescence in the initiatives of a private
party is not sufficient to justify holding the State responsible for those initiatives . .
."); see also Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 164-165 (1978). The TSSAA

no doubt serves the public, particularly the public schools, but the mere provision of
a service to the public does not render such provision a traditional and exclusive
public function. See Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982).
39is also obvious that the TSSAA is not an entity created and controlled by the
It
government for the purpose of fulfilling a government objective, as was Amtrak in
Lebron v. National Railroad Passenger Corporation, 513 U.S. 374, 394 (1995). See
also Pennsylvania v. Board of Directors of City Trusts of Philadelphia, 353 U.S. 230
(1957) (per curiam) (holding that a state agency created under state law was a state
actor). Indeed, no one claims that the State of Tennessee played any role in the
creation of the TSSAA as a private corporation in 1925. The TSSAA was designed
to fulfill an objective-the organization of interscholastic athletic tournaments-that the
government had not contemplated, much less pursued. And although the board of
control currently is composed of public school officials, and although public schools
currently account for the majority of the TSSAA's membership, this is not required
by the TSSAA's constitution.
40 addition, the State of Tennessee has not "exercised coercive power or . . .
In
provided such significant encouragement [to the TSSAA], either overt or covert,"
Blum, 457 U.S., at 1004, that the TSSAA's regulatory activities must in law be
deemed to be those of the State. The State has not promulgated any regulations of
interscholastic sports, and nothing in the record suggests that the State has
encouraged or coerced the TSSAA in enforcing its recruiting rule. To be sure, public
schools do provide a small portion of the TSSAA's funding through their
membership dues, but no one argues that these dues are somehow conditioned on the
TSSAA's enactment and enforcement of recruiting rules.5 Likewise, even if the
TSSAA were dependent on state funding to the extent of 90%, as was the case in
Blum, instead of less than 4%, mere financial dependence on the State does not
convert the TSSAA's actions into acts of the State. See Blum, supra, at 1011;
Rendell-Baker, supra, at 840; see also Moose Lodge No. 107 v. Irvis, 407 U.S. 163,
173 (1972) ("The Court has never held, of course, that discrimination by an
otherwise private entity would be violative of the Equal Protection Clause if the
private entity receives any sort of benefit or service at all from the State . . .").
Furthermore, there is no evidence of "joint participation," Lugar, 457 U.S., at 941942, between the State and the TSSAA in the TSSAA's enforcement of its recruiting
rule. The TSSAA's board of control enforces its recruiting rule solely in accordance
with the authority granted to it under the contract that each member signs.
41
Finally,
there is no "symbiotic relationship" between the State and the TSSAA.
Moose Lodge, supra, at 175; cf. Burton v. Wilmington Parking Authority, 365 U.S.
715 (1961). Contrary to the majority's assertion, see ante, at 10-11, the TSSAA's
"fiscal relationship with the State is not different from that of many contractors
performing services for the government." Rendell-Baker, supra, at 843. The TSSAA

provides a service-the organization of athletic tournaments-in exchange for

membership dues and gate fees, just as a vendor could contract with public schools
to sell refreshments at school events. Certainly the public school could sell its own
refreshments, yet the existence of that option does not transform the service
performed by the contractor into a state action. Also, there is no suggestion in this
case that, as was the case in Burton, the State profits from the TSSAA's decision to
enforce its recruiting rule.
42
Because
I do not believe that the TSSAA's action of enforcing its recruiting rule is
fairly attributable to the State of Tennessee, I would affirm.
II
43
Although
the TSSAA's enforcement activities cannot be considered state action as a
matter of common sense or under any of this Court's existing theories of state action,
the majority presents a new theory. Under this theory, the majority holds that the
combination of factors it identifies evidences "entwinement" of the State with the
TSSAA, and that such entwinement converts private action into state action. Ante, at
7-8. The majority does not define "entwinement," and the meaning of the term is not
altogether clear. But whatever this new "entwinement" theory may entail, it lacks
any support in our state-action jurisprudence. Although the majority asserts that
there are three examples of entwinement analysis in our cases, there is no case in
which we have rested a finding of state action on entwinement alone.
44 of the cases on which the majority relies do not even use the word
Two
"entwinement." See Lebron, supra, at 374; City Trusts, supra, at 230. Lebron
concerned the status of Amtrak, a corporation that Congress created and placed
under Government control for the specific purpose of achieving a governmental
objective (namely to avert the threatened extinction of passenger train service in the
United States). 513 U.S., at 383, 386. Without discussing any notion of
entwinement, we simply held that, when "the Government creates a corporation by
special law, for the furtherance of governmental objectives, and retains for itself
permanent authority to appoint a majority of the directors of that corporation, the
corporation is part of the Government for purposes of the First Amendment." Id., at
400. Similarly, in City Trusts, we did not consider entwinement when we addressed
the question whether an agency established by state law was a state actor. See 353
U.S., at 231. In that case, the Pennsylvania legislature passed a law creating a board
of directors to operate a racially segregated school for orphans. Ibid. Without
mentioning "entwinement," we held that, because the board was a state agency, its
actions were attributable to the State. Ibid.
45 majority's third example, Evans v. Newton, 382 U.S. 296 (1966), lends no more
The
support to an "entwinement" theory than do Lebron and City Trusts. Although Evans

at least uses the word "entwined," 382 U.S., at 299 ("Conduct that is formally
'private' may become so entwined with governmental policies or so impregnated
with a governmental character as to become subject to the constitutional limitations
placed upon state action"), we did not discuss entwinement as a distinct concept, let
alone one sufficient to transform a private entity into a state actor when traditional
theories of state action do not. On the contrary, our analysis rested on the
recognition that the subject of the dispute, a park, served a "public function," much
like a fire department or a police department. Id., at 302. A park, we noted, is a
"public facility" that "serves the community." Id., at 301-302. Even if the city
severed all ties to the park and placed its operation in private hands, the park still
would be "municipal in nature," analogous to other public facilities that have given
rise to a finding of state action: the streets of a company town in Marsh v. Alabama,
326 U.S. 501 (1946), the elective process in Terry v. Adams, 345 U.S. 461 (1953),
and the transit system in Public Utilities Comm'n of D. C. v. Pollak, 343 U.S. 451
(1952). 382 U.S., at 301-302. Because the park served public functions, the private
trustees operating the park were considered to be state actors.6
46
These
cases, therefore, cannot support the majority's "entwinement" theory. Only
Evans speaks of entwinement at all, and it does not do so in the same broad sense as
does the majority.7 Moreover, these cases do not suggest that the TSSAA's activities
can be considered state action, whether the label for the state-action theory is
"entwinement" or anything else.
***
47
48
Because
the majority never defines "entwinement," the scope of its holding is
unclear. If we are fortunate, the majority's fact-specific analysis will have little
bearing beyond this case. But if the majority's new entwinement test develops in
future years, it could affect many organizations that foster activities, enforce rules,
and sponsor extracurricular competition among high schools-not just in athletics, but
in such diverse areas as agriculture, mathematics, music, marching bands, forensics,
and cheerleading. Indeed, this entwinement test may extend to other organizations
that are composed of, or controlled by, public officials or public entities, such as
firefighters, policemen, teachers, cities, or counties. I am not prepared to say that any
private organization that permits public entities and public officials to participate
acts as the State in anything or everything it does, and our state-action jurisprudence
has never reached that far. The state-action doctrine was developed to reach only
those actions that are truly attributable to the State, not to subject private citizens to
the control of federal courts hearing 1983 actions.
I respectfully dissent.
49

NOTES:
1

Although the TSSAA's employees, who typically are retired teachers, are
allowed to participate in the state retirement system, the State does not pay any
portion of the employer contribution for them. The TSSAA is one of three
private associations, along with the Tennessee Education Association and the
Tennessee School Boards Association, whose employees are statutorily
permitted to participate in the state retirement system. Tenn. Code Ann. 8-35118 (1993).
The first formal state acknowledgement of the TSSAA's existence did not occur
until 1972, when the State Board of Education passed a resolution stating that it
"recognizes and designates [the TSSAA] as the organization to supervise and
regulate the athletic activities in which the public junior and senior high schools
of Tennessee participate in on an interscholastic basis." App. 211. There is no
indication that the TSSAA invited this resolution or that the resolution in any
way altered the actions of the TSSAA or the State following its adoption in
1972. In fact, it appears that the resolution was not entirely accurate: The
TSSAA does not supervise or regulate regular season interscholastic contests.
In any event, the resolution was revoked in 1996. Contrary to the majority's
reference to its revocation as being "winks and nods," ante, at 12, the repeal of
the 1972 resolution appears to have had no more impact on the TSSAA's
operation than did its passage.
The majority also cites this resolution to support its assertion that "[e]ver since
the Association was incorporated in 1925, Tennessee's State Board of
Education . . . has acknowledged the corporation's function 'in providing
standards, rules and regulations for interscholastic competition in the public
schools of Tennessee.' " Ante, at 3. However, there is no evidence in the record
that suggests that the State of Tennessee or the State Board of Education had
any involvement or interest in the TSSAA prior to 1972.

The rule provides: "The State Board of Education recognizes the value of
participation in interscholastic athletics and the role of the Tennessee
Secondary School Athletic Association in coordinating interscholastic athletic
competition. The State Board of Education authorizes the public schools of the
state to voluntarily maintain membership in the Tennessee Secondary School
Athletic Association." Tenn. Comp. Rules & Regs. 0520-1-2-.08(1) (2000).

The majority relies on the fact that the TSSAA permits members of the State
Board of Education to serve ex officio on its board of control to support its

"top-down" theory of state action. But these members are not voting members
of the TSSAA's board of control and thus cannot exert any control over its
actions.
5

The majority emphasizes that public schools joining the TSSAA "give up
sources of their own income to their collective association" by allowing the
TSSAA "to charge for admission to their games." Ante, at 10-11. However, this
would be equally true whenever a State contracted with a private entity: The
State presumably could provide the same service for profit, if it so chose. In
Rendell&nbhyph;Baker v. Kohn, 457 U.S. 830 (1982), for example, the State
could have created its own school for students with special needs and charged
for admission. Or in Blum v. Yaretsky, 457 U.S. 991 (1982), the State could
have created its own nursing homes and charged individuals to stay there. The
ability of a State to make money by performing a service it has chosen to buy
from a private entity is hardly an indication that the service provider is a state
actor.

We have used the word "entwined" in another case, Gilmore v. Montgomery,

417 U.S. 556, 565 (1974), which the majority does not cite. In Gilmore, we
held that a city could not grant exclusive use of public facilities to racially
segregated groups. Id., at 566. The city, we determined, was "engaged in an
elaborate subterfuge" to circumvent a court order desegregating the city's
recreational facilities. Id., at 567. The grant of exclusive authority was little
different from a formal agreement to run a segregated recreational program.
Ibid. Thus, although we quoted the "entwined" language from Evans v.
Newton, 382 U.S. 296 (1966), we were not using the term in the same loose
sense the majority uses it today. And there is certainly no suggestion that the
TSSAA has structured its recruiting rule specifically to evade review of an
activity that previously was deemed to be unconstitutional state action.

The majority's reference to National Collegiate Athletic Assn. v. Tarkanian, 488

U.S. 179 (1988), as foreshadowing this case, ante, at 8, also does not support its
conclusion. Indeed, the reference to Tarkanian is ironic because it is not
difficult to imagine that application of the majority's entwinement test could
change the result reached in that case, so that the National Collegiate Athletic
Association's actions could be found to be state action given its large number of
public institution members that virtually control the organization.