190 F.3d 705 (6th Cir. 1999)
Brentwood Academy, Plaintiff-Appellee,v.Tennessee Secondary School Athletic  Association; Ronnie Carter, Executive Director  and Individually, Defendants-Appellants.
No. 98-6113
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Filed: August 30, 1999*

H. Lee Barfield, II, William Scott Sims, Bass, Berry & Sims, Nashville, TN; Bobby Lee Cook, Cook & Connelly, Summerville, GA; James F. Blumstein, Nashville, TN; G. Thomas Nebel, Nashville, TN, for Brentwood Academy.
Charles Hampton White, Richard L. Colbert, Cornelius & Collins, Nashville, TN, for Tennessee Secondary School Athletic Association and Ronnie Carter.
John J. Kitchin, Kansas City, MO, for National Federation of State High School Associations.
Edmund J. Sikorski, Jr., Ann Arbor, MI, for Michigan High School Athletic Association, Inc.
Steven L. Craig, Herbruck, Heichel & McFarren, Canton, OH, for Ohio High School Athlectic Association.
Mallory V. Mayse, Columbus, MO, for Missouri State High School Activities Association.
Danny C. Reeves, Greenebaum, Doll & McDonald, Lexington, KY, for Kentucky High School Athletic Association.
Leonard E. Ireland, Jr., Clayton, Johnston, Quincey, Ireland, Felder, Gadd, Roundtree, Gainsville, FL, for Florida High School Activities Association, Inc.
Terrence E. Kiwala, Rooks, Pitts & Poust, Chicago, IL, for Illinois High School Association.
Before: GUY, SUHRHEINRICH, and GILMAN, Circuit Judges.


1
Prior report: 180 F.3d 758.

ORDER

2
This matter is before the Court upon Brentwood Academy's petition for rehearing en banc. Having  failed to achieve the requisite number of votes to sustain the request for rehearing, the petition has been  referred to the original hearing panel.


3
The panel has further reviewed the petition for rehearing and concludes that the issues raised in the petition were fullyconsidered upon the original submission and decision of the case. However, the  panel will briefly address Brentwood Academy's argument that our decision is in conflict with earlier  Sixth Circuit cases.


4
Because we have already addressed the cases of Burrows v. Ohio High School Athletic Association,  891 F.2d 122 (6th Cir. 1989), Yellow Springs v. Ohio High School Athletic Association, 647 F.2d 651  (6th Cir. 1981), and Alerding v. Ohio High School Athletic Association, 779 F.2d 315 (6th Cir. 1985),  in our published opinion, we find no need to comment any further on those cases. As to Cape v.  TSSAA, 563 F.2d 793 (6th Cir. 1978), Hamilton v. TSSAA, 552 F.2d 681 (6th Cir. 1976), and Morris v.  Michigan State Board of Education, 472 F.2d 1207 (6th Cir. 1973), they all pre-date the Blum trilogy. See Blum v. Yaretsky, 457 U.S. 991 (1982), Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982), and Rendall-Baker v. Kohn, 457 U.S. 830 (1982). The Blum trilogy establishes the current standard for  determining when a private party's conduct can be considered state action and supercedes the earlier  decisions in Cape, Hamilton, and Morris. Because of this, those cases were not discussed in our  opinion.


5
Accordingly, the petition is denied.


6
MERRITT, Circuit Judge, separate statement on denial of rehearing en banc, in which Clay,  Circuit Judge, joined.


7
Although a substantial minority of the active judges of our court have voted for  en banc review of this case, unfortunately, there was not a majority. This is an important case because  all high school interscholastic athletic contests in the states of the Sixth Circuit and in almost all other  states in the country are conducted in similar fashion by athletic associations like the TSSAA.


8
Our court should grant en banc review in this case on the issue of whether the TSSAA -- the agency  delegated the authority to control all high school athletic contests in Tennessee -- is engaged in "state  action" under the Fourteenth Amendment. It should do so because our panel's holding that TSSAA is  not a "state actor" contradicts the uniform case law in the field from other circuits and is inconsistent  with the clearly established constitutional theory of state action. Under the panel's theory that such  statewide athletic associations are not state actors, and hence not subject to fourteenth amendment  restraints, the TSSAA could maintain a racially segregated system of interscholastic high school  athletics like the one declared invalid in Louisiana High School Athletic Ass'n v. St. Augustine High  School, 396 F.2d 224, 227 (5th Cir. 1968) (private black high school sued LHSAA and the court held  "there can be no substantial doubt that conduct of the affairs of LHSAA is state action in the  constitutional sense"), or refuse to allow girls to participate in interscholastic high school athletics, see  Clark v. Arizona Interscholastic Ass'n, 695 F.2d 1126, 1128 (9th Cir. 1982) (suit by a student to test  gender regulations of AIA and the court held that "AIA regulations in question [respecting gender]  meet the state action requirement of the fourteenth amendment"). The panel's decision that TSSAA is  not a state actor is also inconsistent with at least four other circuit court decisions. The Third, Seventh,  Eighth and Tenth Circuits have also held that high school interscholastic athletic associations are state  actors. See Moreland v. Western Pennsylvania Interscholastic Athletic League, 572 F.2d 121, 125 (3d  Cir. 1978); Griffin High School v. Illinois High School Athletic Ass'n, 822 F.2d 671, 674 (7th Cir.  1987); In Re: United States, ex rel. Missouri State High School Activities Ass'n, 682 F.2d 147, 151 (8th  Cir. 1982); Oklahoma High School Athletic Ass'n v. Bray, 321 F.2d 269, 273 (10th Cir. 1963). In  addition, all of the several state supreme courts which have addressed the question have held that their  high school interscholastic athletic associations are state actors. I find no circuit or statesupreme court decision supporting our court's cramped view of state action, and our panel's opinion does not  recognize or discuss these authorities from other courts.


9
In addition the panel's decision appears to be inconsistent with the Supreme Court's language in National Collegiate Athletic Association v. Tarkanian, 488 U.S. 179, 193 (1988), quoted below, citing  with approval the Louisiana and Arizona cases mentioned above:


10
Those institutions [of higher education], the vast majority of which were located in states other  than Nevada, did not act under color of Nevada law. It necessarily follows that the source of the  legislation adopted by the NCAA is not Nevada but the collective membership, speaking through  an organization that is independent of any particular state.


11
The situation would, of course, be different if the membership consisted entirely of  institutions located within the same state, many of them public institutions created by the same  sovereign. See Clark v. Arizona Interscholastic Ass'n, . . . [and] Louisiana High School Athletic  Ass'n v. St. Augustine High School . . . .


12
The panel's decision also appears to be inconsistent with our court's ruling in Alreding v. Ohio High  School Athletic Ass'n, 779 F.2d 315, 316 n. 1 (6th Cir. 1985): "OHSAA is a state actor for purposes of  § 1983 because Ohio has implicitly delegated to OHSAA its power to regulate and organize  interscholastic athletic activities."


13
The panel's decision seems clearly inconsistent with the theory of state action set out in West v.  Adkins, 487 U.S. 42, 55-56 (1988). There a unanimous Court said that state action analysis requires a  "functional" analysis of the activity of the private individual or agency in question to determine the  degree of "cooperation" between state and local officials and the actor and an analysis of the degree of  "coercion" exercised by the actor over persons under the control of a state or local governmental  institution. Our panel made no effort to analyze the cooperative relationship between TSSAA and the  state's public high schools or the coercive power of TSSAA. The fact is that TSSAA establishes and  enforces all of the rules by which high school teams and players, at both public and private schools,  compete throughout the state of Tennessee. Its board consists entirely of public school officials. Its  funding comes from receipts from the athletic contests of public schools. The state delegates to TSSAA  its authority to collect and retain gate receipts from public interscholastic contests. The state has chosen  to allow its athletic fields and gyms to be used in this way. It has chosen to make TSSAA its agent for  controlling an important, highly visible component of its statewide educational program -- inter-school  athletics.


14
The Tennessee Department of Education delegates all of its plenary authority to control high school  athletics to TSSAA. TSSAA has run high school interscholastic athletics with an iron hand for most of  this century. For the most part, it has done a very good job; but under the panel's ruling that the  fourteenth amendment does not apply to TSSAA because it is not a state actor, TSSAA could rule  ineligible for competition high school athletes on the basis of race, gender, national origin, or religion.  It could disqualify, suspend or otherwise punish high schools and their students without notice and  without a statement of reasons or a hearing or the other procedural protections provided by the due  process clause.


15
Because our panel's decision is inconsistent with the basic authorities on state action, and with the  well-established legal theory underlying their holdings, I dissent from our failure to grant en banc  review of this case. We have created an unnecessary conflict in the circuits on an important question of  constitutional law. Theconflict will have to be remedied now by the Supreme Court.



Note:


*
 This order was originally issued as an "unpublished order" filed on August 30, 1999.


