A private, voluntary organization may be deeded a state actor where it is so pervasive that it regulates an activity that may be within the extended gambit of government because it has become intertwined with state authority.
Tennessee Secondary School Athletic Association, plaintiff, was a non-profit, private membership corporation organized to regulate interscholastic sports among public and private high schools in Tennessee that were members of the Association. Although schools were not forced to join, almost all of the state’s public schools, and many of its private schools were members as there was no other interscholastic sports regulatory authority in the state. The Tennessee State Board of Education even recognized the plaintiff as the primary regulatory agency in the state for high school sports, and their voting membership was almost exclusively composed of public high school administrators. In 1997, the plaintiff brought a regulatory enforcement proceeding against Brentwood Academy, defendant, a private member school. Brentwood was charged with improperly recruiting new students for its sports teams and was given a large fine and suspension by the plaintiff. Brentwood Academy sued the plaintiff after sustaining these penalties in federal court under 42 U.S.C. § 1983, alleging that enforcement of the recruitment rule against it was a state action and a violation of the First and Fourteenth Amendments to the United States Constitution. The district court entered summary judgment for Brentwood Academy, but the court of appeals reversed. The United States Supreme Court granted certiorari.
Was the statewide association incorporated to regulate interscholastic athletic competition among public and private secondary schools to be regarded as engaging in state action when it enforced a rule against a member school?
This line of cases requires a balance between not subjecting a state to needless liability for private actions, and also holding a state accountable when it could be said to have sufficiently acted through a private entity. It is necessary to look at the totality of the circumstances to determine whether an action is public or private. 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.