314
Thomas, J., dissenting
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.
* * *
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 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 297-298, 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.
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