Alaska Employment Law

Today’s opinion in Tennessee Secondary School Athletic Ass’n v. Brentwood Academy, 2007 WL 1773196 (June 21, 2007), resolved two issues: Did the Ass’n violate the 1st Amendment when it enforced its rule barring high school coaches from recruiting middle school athletes (Answer: No)? and Did the Ass’n violate Due Process when its hearing panel, during deliberations, examined some ex parte evidence?  That second question bears on some public sector employment issues.

At the deliberations after an evidentiary hearing, the TSSAA Board

heard from witnesses and considered evidence that [Brentwood Academy] had no opportunity to respond to. . . . 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 a violation of the DP clause, and the Court of Appeals affirmed that finding. 

The Supreme Court (unanimously, on this point) reversed, stating:

Even accepting the questionable holding that TSSAA’s closed-door deliberations were unconstitutional, we can safely conclude that any due process violation was harmless beyond a reasonable doubt.  Brentwood’s claim of prejudice 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. 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.

Justice Stevens wrote the opinion. Justices Kennedy (with Roberts, Scalia, and Alito) and Thomas concurred on 1st Amendment issues.