531 U.S. 288121 S.Ct. 924148 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, PETITIONERv.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
The issue is whether a statewide association incorporated to regulate  interscholastic 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
The Association's rulemaking arm is its legislative council, while its board  of control 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
The constitution, bylaws, and rules of the Association set standards of  school 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
The action before us responds to a 1997 regulatory enforcement proceeding  brought 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
The United States Court of Appeals for the Sixth Circuit reversed. 180 F.3d  758 (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
We granted certiorari, 528 U.S. 1153 (2000), to resolve the conflict1 and  now reverse.

II

10
* Our 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 936-937), 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
What is fairly attributable is a matter of normative judgment, and the  criteria lack 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).


12
Our cases have identified a host of facts that can bear on the fairness of  such an 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
To be sure, it is not the strict holding in Tarkanian that points to our  view of this 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
But dictum in Tarkanian pointed to a contrary result on facts like ours,  with an 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
Just as we foresaw in Tarkanian, the "necessarily fact-bound inquiry,"  Lugar, 457 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
The Association is not an organization of natural persons acting on their  own, but of 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
In sum, 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.  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
To complement the entwinement of public school officials with the  Association 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.


22
It is, of course, true that the time is long past when the close  relationship between 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
But the removal of the designation language from Rule 0520-1-2-.08 affected  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
The entwinement down from the State Board is therefore unmistakable, just as  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
The Association places great stress, for example, on the application of a  public 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
For the same reason, it avails the Association nothing to stress that the  State neither 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
This is not to say that all of the Association's arguments are rendered  beside the 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
The assertion of such a countervailing value is the nub of each of the  Association's 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
Nor do we think there is anything to be said for the Association's  contention that 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
The judgment of the Court of Appeals for the Sixth Circuit is reversed, and  the case 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, 227-228 (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).


3
  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)).


4
  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.


33
We have never found state action based upon mere "entwinement." Until today,  we 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 state-action doctrine beyond its permissible limits but also  encroaches upon the realm of individual freedom that the doctrine was meant to  protect. I respectfully dissent.


34
* Like the state-action requirement of the Fourteenth Amendment, the  state-action 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.


35
* Regardless 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
The State of Tennessee did not create the TSSAA. The State does not fund 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
Even approaching the issue in terms of any of the Court's specific  state-action tests, 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
The TSSAA has not performed a function that has been "traditionally  exclusively 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).


39
It is also obvious that the TSSAA is not an entity created and controlled by  the 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
In addition, the State of Tennessee has not "exercised coercive power or . .  . 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 941-942, 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
Two of the cases on which the majority relies do not even use the word  "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
The majority's third example, Evans v. Newton, 382 U.S. 296 (1966), lends no  more 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.


49
I respectfully dissent.



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. 8-35-118 (1993).


2
  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.


3
  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).


4
  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.


6
  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.


7
  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.


