Attorney for Appellant

Robert M. Baker III

JJohnson Smith Pence Densborn

 Wright & Heath

Indianapolis, IN

Attorneys for Appellee

James E. Carlberg

Ronald E. Elberger

George T. Patton, Jr.

Bose McKinney & Evans

Indianapolis, IN

	IN THE

	INDIANA SUPREME COURT

INDIANA HIGH SCHOOL ATHLETIC

ASSOCIATION, INC., 

	Appellant (Defendant below),

	v.

JASON CARLBERG b/n/f

JAMES E. CARLBERG and

DONNA S. CARLBERG,

	Appellee (Plaintiffs below).

)

)	Supreme Court No.

)	29S02-9610-CV-681

)

)	Court of Appeals No.

)	29A02-9412-CV-724

)

)

)

	APPEAL FROM THE HAMILTON CIRCUIT COURT

	The Honorable Richard T. Payne, Special Judge 

	Cause No. 29C01-9410-CP-737

	ON PETITION TO TRANSFER

SULLIVAN,  Justice.

	Disputes involving the rules and enforcement actions of the Indiana High School

Athletic Association (“IHSAA”) frequently find their way into state and federal court in

Indiana.  In this case, and a companion case, Indiana High School Athletic Ass’n v. Reyes, No. 79S02-9605-CV-361 (Ind. December 19, 1997), we re-examine the approach Indiana courts take to resolving such cases.  We do so here in a case involving a student’s challenges to enforcement of the IHSAA’s “Transfer Rule” and “Restitution Rule.”  We do so in Reyes in a case involving a high school’s challenge to enforcement of the Restitution Rule.

	Background

	Jason Carlberg lives with his parents near Indianapolis.  After spending his freshman year at Brebeuf Preparatory School where he swam on the varsity swim team, Carlberg

transferred to Carmel High School for academic reasons. Carlberg’s transfer prompted

enforcement of Rule 19 of the IHSAA,1 the Transfer Rule, which provides in relevant part that a student who transfers for nonathletic reasons without a change of permanent residence

by the student’s parents or guardians has only limited athletic eligibility2 for 365 days following enrollment.3  

	Carlberg exhausted the administrative remedies available to him, including a hearing

before the IHSAA Executive Committee.  After the IHSAA denied his appeals, Carlberg

took his case to court, alleging that application of the Transfer Rule was arbitrary and

capricious and violated his constitutional rights.  The trial court enjoined the IHSAA and

Carmel High School from enforcing the Transfer Rule, finding that (i) the IHSAA's decision

limiting his eligibility was arbitrary and capricious and (ii) “[t]he Transfer Rule operates, as

applied in this case, as a violation of Carlberg’s rights under the due process and equal

protection clauses of the Fourteenth Amendment of the U.S. Constitution and Article I,

Section 12 and Section 23, of the Indiana Constitution.”  (R. at  18.)  The trial court ordered

that Carlberg be allowed to participate on the Carmel High School varsity swimming team. 

In addition, the trial court enjoined the IHSAA from enforcing its Restitution Rule4 against Carlberg or Carmel High School. 

	While Carmel High School chose not to appeal the trial court’s judgment, the IHSAA presented to the Court of Appeals five different issues for its review:  (1) whether the trial

court erred in ignoring the Indiana law of judicial noninterference in the affairs of voluntary

associations, and in concluding that the IHSAA’s actions are reviewable; (2) whether the

trial court erred in concluding that the IHSAA decision was subject to scrutiny under the

Indiana or U.S. Constitution; (3) whether the trial court erred in concluding that the IHSAA

decision violated Carlberg’s equal privileges and equal protection rights under the Indiana

and U.S. Constitutions; (4) whether the trial court erred in concluding that the IHSAA

decision violated Carlberg’s due process rights under the Indiana and U.S. Constitutions;

and (5) whether the trial court erred in enjoining the IHSAA from implementing the IHSAA

Restitution Rule.  

	The Court of Appeals found one of the issues dispositive.  It upheld the trial court's

decision, holding that under Sturrup v. Mahan, 261 Ind. 463, 305 N.E.2d 877 (1974), the IHSAA Transfer Rule was overbroad in violation of the Equal Protection Clause of the

Fourteenth Amendment of the U. S. Constitution when used to deny varsity eligibility to a

student who transferred for nonathletic reasons.  The IHSAA sought and this Court granted

transfer on October 24, 1996.5

	Discussion

		I

	The IHSAA’s rules and its enforcement thereof are the source of much litigation. 

And the number of cases cited in this and the Reyes opinion illustrate that a not insubstantial number of these cases result in published opinions in the federal and state reporters.  When

first presented with such a case in 1959, we held that the courts would not interfere with the

enforcement or administration of the constitution or by-laws of the IHSAA.  State ex rel. Ind. High Sch. Athletic Ass’n v. Lawrence Cir. Ct., 240 Ind. 114, 162 N.E.2d 250 (1959).  But twenty-five years ago we began to review IHSAA decisions, Haas v. South Bend Community Sch. Corp., 259 Ind. 515, 289 N.E.2d 495 (1972), and the courts of Indiana — including our federal cousins — continue to do so to this day.

	In the course of that quarter century’s worth of cases, there has been great variation

in the claims made and law invoked by the parties and in the method of analysis employed

by the reviewing courts.  Some of the cases have treated IHSAA decisions as requiring

federal and state constitutional review under the Equal Protection, Due Process, Privileges

and Immunities, and Due Course of Law Clauses of the federal and state constitutions.  See Sturrup, 261 Ind. 463, 305 N.E.2d 877; Haas, 259 Ind. 515, 289 N.E.2d 495; Ind. High Sch. Athletic Ass’n v. Avant, 650 N.E.2d 1164 (Ind. Ct. App. 1995), trans. denied; Thomas v. Greencastle Community Sch. Corp., 603 N.E.2d 190 (Ind. Ct. App. 1992); Ind. High Sch. Athletic Ass’n v. Schafer, 598 N.E.2d 540 (Ind. Ct. App. 1992); Ruman v. Eskew, 165 Ind.App. 534, 333 N.E.2d 138 (1975); Ind. High Sch. Athletic Ass’n v. Raike, 164 Ind. App. 169, 329 N.E.2d 66 (1975).

	Other cases have treated IHSAA decisions as requiring review under the common law

of Indiana.  At least one of the common law cases analyzes the challenged IHSAA decision

by applying the extremely deferential standard of review due the internal decisions of

private membership organizations, Ind. High Sch. Athletic Ass’n v. Reyes, 659 N.E.2d 158 (Ind. Ct. App. 1995), aff’d No. 79S02-9605-CV-361 (Ind. —December 19 , 1997); others apply “an arbitrary and capricious” standard.  See Avant, 650 N.E.2d 1164; Kriss v. Brown, 180 Ind. App. 594, 390 N.E.2d 193 (1979); Crane v. Ind. High Sch. Athletic Ass’n, 975 F.2d 1315 (7th Cir. 1992).

	Not only is the method of analysis in the common law cases inconsistent, but, at

times, even the methods of common law and constitutional analysis merge.  For example,

the “arbitrary and capricious” language also appears in the context of review of the constitu

tionality of an IHSAA decision.  See Sturrup, 261 Ind. at 470, 305 N.E.2d at 882; Schafer, 598 N.E.2d at 554 (both holding IHSAA decisions to be arbitrary and capricious under

Equal Protection Clause analysis).

	This case and the Reyes case raise many of the analytical issues typical of IHSAA cases and we use them today to re-examine the way in which Indiana courts analyze

challenges to IHSAA decisions.  Our re-examination yields the following principles, each

of which will be discussed in some detail in either this opinion or in Reyes:

	First, the integral role that athletics play in our state’s constitutionally-mandated

system of education and the history of judicial scrutiny of IHSAA decisions together dictate

that the common law provide for judicial oversight of those decisions.  See part III-A, infra.

	Second, the common law will treat the IHSAA as a private membership organization

with respect to challenges to its rules and enforcement actions brought by member schools. 

See part III-A-1, infra.

	Third, the common law will treat the IHSAA as analogous to a government agency

with respect to challenges to its rules and enforcement actions brought by students and other

non-IHSAA members with standing to do so.  See part III-A-2, infra.

	Fourth, rules and decisions of the IHSAA constitute “state action” for the purposes

of constitutional review.  See part II, infra.  However, there is no right or interest to partici pate in interscholastic sports that is entitled to protection under the federal Equal Protection

or Due Process Clauses or the state Due Course of Law Clause.  See part IV-C-2, infra.  Thus, scrutiny of IHSAA decisions under the Equal Protection and Due Process Clauses will

generally be limited to whether they impinge upon a suspect classification and whether they

have a rational basis.  See parts IV-A and IV-C, infra.  Scrutiny under the Privileges and Immunities Clause will generally be limited to whether they have a reasonable basis.  See part IV-B, infra.

	II

	We turn first to the IHSAA’s claim that the trial court erred in concluding that the

IHSAA decision constituted “state action” and was, therefore, subject to scrutiny under the

U.S. or Indiana Constitutions.6  

	It is clearly established that decisions of the IHSAA with respect to student-athletes

constitute “state action” for purposes of federal and state constitutional review under the

Equal Protection and the Privileges and Immunities Clauses of the federal and state constitu

tions.  This argument has been decided repeatedly against the IHSAA by the appellate courts

of this state for almost a quarter century.  See Sturrup, 261 Ind. at 465, 305 N.E.2d at 879; Haas, 259 Ind. at 520, 289 N.E.2d at 498; Reyes, 659 N.E.2d at 167; Avant, 650 N.E.2d at 1170; Thomas, 603 N.E.2d at 192; Schafer, 598 N.E.2d at 548; Kriss, 180 Ind. App. at 604, 390 N.E.2d at 199; Raike, 164 Ind.App. at 173, 329 N.E.2d at 69; Crane, 975 F.2d at 1326 (Posner, J., dissenting) (agreeing that IHSAA decisions are state action and citing Nat’l Collegiate Athletic Ass’n  v. Tarkanian, 488 U.S. 179, 193 n. 13 (1988); Griffin High Sch. v. Ill. High Sch. Ass’n, 822 F.2d 671, 674 (7th Cir. 1987)); Robbins v. Ind. High Sch. Athletic Ass’n, 941 F.Supp. 786, 791 (S.D. Ind. 1996); Jordan v. Ind. High Sch. Athletic Ass’n, 813 F.Supp. 1372, 1377 (N.D. Ind. 1993), vacated as moot by 16 F.3d 785 (7th Cir. 1994); see also Plummer v. American Inst. of Certified Pub. Accountants, 97 F.3d 220, 227 (7th Cir. 1996) (dicta); Freeman v. Sports Car Club of America, Inc., 51 F.3d 1358, 1363 (7th Cir. 1995) (dicta).

		III

	A

	This Court looks to our state’s historical and contemporary experience and to the

prior decisions of our courts to derive the principles necessary to resolve disputes to which

neither statute nor constitution speak.  Our common law is thereby established.  We find

resolution of challenges to IHSAA rules and enforcement actions well within the ambit of

Indiana common law.

	Our state constitution specifically recognizes that “knowledge and learning” are “essential to the preservation of a free government” and so mandates a statewide system of

free public education.  Ind. Const. art. VIII, § 1.  We believe athletics are an integral part of

this constitutionally-mandated process of education.  See Haas, 259 Ind. at 528, 289 N.E.2d at 502-503 (DeBruler, J., concurring) (referring to the “substantial educational benefits”

which flow from “interscholastic athletic competitions”).

	The substantial educational benefits derived from interscholastic athletics, together

with the rationale that underlies the determination that IHSAA decisions constitute “state

action,” help explain why Indiana courts have been so willing to adjudicate disputes be

tween the IHSAA and parties aggrieved by the association’s decisions.  We reaffirm our

common law jurisdiction in this regard today and turn to an examination of the common law

principles applicable in IHSAA cases.

	A-1

	The IHSAA argues that the trial court and Court of Appeals improperly failed to

recognize that the Transfer and Restitution Rules are internal rules of the IHSAA subject to

the rule of limited judicial interference in the affairs of voluntary membership associations.7  The argument continues that, by enjoining the IHSAA from enforcing its Transfer and

Restitution Rules, the trial court wrongly interfered with the internal affairs of a voluntary

association.

	The rule in Indiana is that courts exercise limited interference with the internal affairs

and rules of a voluntary membership association:

	A voluntary association may, without direction or interference by the courts, for its

government, adopt a constitution, by-laws, rules and regulations which will control

as to all questions of discipline, or internal policy and management, and its right to

interpret and administer the same is as sacred as the right to make them.

State ex rel. Givens v. Super. Ct. of Marion County, 233 Ind. 235, 238, 117 N.E.2d 553, 555 (1954) (citations omitted).  Therefore, “[a]s a general rule courts will not interfere to control

the administration of the constitution and by-laws of such association, or to enforce rights

springing therefrom.”  Id. (citations omitted).  In this regard, the “articles of incorporation and bylaws of a not-for-profit corporation are generally considered to be a contract between

the corporation and its members and among the members themselves.”  Lozanoski v. Sarafin, 485 N.E.2d 669, 671 (Ind. Ct. App. 1985) (citing Orchard Ridge Country Club, Inc. v. Schrey, 470 N.E.2d 780 (Ind. Ct. App. 1984)).

	We deal with the law of voluntary associations in more detail in Reyes.  In that case — unlike both this one and most other IHSAA cases — we are not faced with a student

athlete’s challenge to an IHSAA decision.  Rather, in Reyes, a member high school chal lenges IHSAA enforcement of its Restitution Rule.  Although we hold infra that we will continue to review for arbitrariness and capriciousness IHSAA decisions affecting students,

we see little justification for such review when it comes to the IHSAA’s member schools. 

As to its member schools, the IHSAA is a voluntary membership association.  Those

members have the internal procedures of their own association available to them to adjudi

cate disputes and, if necessary, change rules or leadership; there is no need for courts to

micro-manage these matters.  We hold in Reyes, and reiterate here, that judicial review of IHSAA decisions with respect to its member schools will be limited to those circumstances

under which courts review the decisions of voluntary membership associations — fraud,

other illegality, or abuse of civil or property rights having their origin elsewhere.  Reyes, slip op. at 12-13. 

	A-2

	When it comes to student challenges, however, we reach a different result.  Perhaps

Judge Cummings said it best when he observed that “for a student athlete in public school,

membership in IHSAA is not voluntary, and actions of the IHSAA arguably should be held

to a stricter standard of judicial review.”  Freeman, 51 F.3d at 1363.  Therein lies what is for us a crucial distinction between this case and Reyes: as a student, Carlberg has not volun tarily subjected himself to the rules of the IHSAA; he has no voice in its rules or leadership. 

We note as well the relatively short span of time a student spends in high school compared

to the amount of time often required for institutional policies to change.  These factors all

point to the propriety of judicial scrutiny of IHSAA decisions with respect to student

challenges.

	But what should be the standard of review?  This Court has never applied de novo review to IHSAA decisions and emphatically rejects it here.  Rather than de novo review, since Sturrup v. Mahan, the appellate courts of this state have applied an “arbitrary and capricious” standard in reviewing the decisions of the IHSAA.  Sturrup, 261 Ind. at 470, 305 N.E.2d at 882; see also Avant, 650 N.E.2d at 1171 (holding the IHSAA did not act arbitrarily or capriciously in granting student limited eligibility); Kriss, 180 Ind. App. at 609, 390 N.E.2d at 202 (reviewing whether decision of IHSAA was arbitrary and capricious);  Crane, 975 F.2d at 1325 (“when the IHSAA acts arbitrarily, . . .  Indiana law tells us we must inter

vene”).

	While the doctrinal basis for judicial review of IHSAA decisions for arbitrariness and

capriciousness is not clear from the cases, we believe that it is similar to that which justifies the conclusion that IHSAA decisions constitute “state action.”8  The facts that make IHSAA decisions “state action” for purposes of federal and state constitutional analysis also suggest

an analogy with government agency decisions:  if IHSAA decisions are “state action,” then

they are like government agency decisions.  We conclude that the “arbitrary and capricious”

standard of review probably grows out of this similarity.9  That is, just as courts review IHSAA decisions in approximately the same way as those of government agencies for

purposes of constitutional law, courts review IHSAA decisions in approximately the same

way as those of government agencies for purposes of common law.

	The analogy between IHSAA decisions and government agency action is not a perfect

one, however, and courts must remember that the IHSAA is not a government agency. 

Administrative law, the body of law that governs government agency action, is largely of statutory creation and we do not suggest that the IHSAA must conform its procedures to

those mandated by the Indiana Administrative Orders and Procedures Act, Ind. Code § 4-

21.5-1-1 et seq., or other statutes.  Furthermore, the analogy can become attenuated depend ing upon the nature of the IHSAA action being challenged.10  But we do find substantial justification for our longstanding use of the “arbitrary and capricious” standard of review in

the analogy between IHSAA decisions and government agency action and reaffirm it today.

	In summary, as a matter of state common law, the courts of Indiana have jurisdiction

to review challenges to IHSAA rules and enforcement decisions applicable to a particular

student, assuming those challenges are brought by non-IHSAA members with standing. 

Such rules and decisions will not be reviewed de novo but in a manner analogous to judicial review of government agency action, recognizing, however, that the IHSAA is not a govern

ment agency and the common law will have to accommodate that difference.

	B

	The provisions of the IHSAA Transfer Rule at issue in this case apply to a student

who changes schools without a corresponding change of residence by the student’s parents. 

IHSAA Rule 19-6.2.11  Such a student may participate as a member of a junior varsity or freshman team at his or her new school unless the transfer was either primarily for athletic

reasons or as a result of undue influence.  IHSAA Rule 19-Definitions; Rule 19-4; Rule 19-

6.2.  However, such a student may not participate in interscholastic athletics as a member of

a varsity athletic team during the first 365 days after enrollment unless (i) the student meets one of the special criteria set forth in Rule 19-6.112 or (ii) is declared eligible under the IHSAA “Hardship Rule.”13

	Carlberg agrees that he changed schools without a corresponding change of residence by his parents and that none of the special criteria of Rule 19-6.1 nor the Hardship Rule

apply.  For its part, the IHSAA acknowledges that the transfer was neither for primarily

athletic reasons nor as a result of undue influence.  Carlberg argues that the IHSAA acted

arbitrarily and capriciously when it enforced the Transfer Rule against him where it was

undisputed that his transfer was neither primarily for athletic reasons nor as a result of

undue influence.

	As discussed above, we review the challenged IHSAA decision for arbitrariness or

capriciousness.  “Arbitrary and capricious” is a narrow standard of review and the reviewing

court may not substitute its judgment for the judgment of the IHSAA.  The rule or decision

will be found to be arbitrary and capricious “only where it is willful and unreasonable,

without consideration and in disregard of the facts or circumstances in the case, or without

some basis which would lead a reasonable and honest person to the same conclusion.” 

Dep’t of Natural Resources v. Indiana Coal Council, Inc., 542 N.E.2d 1000, 1007 (Ind. 1989) (citation omitted).

	We do not find the IHSAA decision that Carlberg was ineligible for varsity athletics

for 365 days following his transfer to be “willful and unreasonable, without consideration

and in disregard of the facts or circumstances in the case, or without some basis which

would lead a reasonable and honest person to the same conclusion.”  First, unlike the

IHSAA decision challenged in Crane, here there is no contention that the IHSAA failed to publicize its interpretation of the rule or failed to apply consistently its interpretation of the

rule.14  

	Second, by establishing objective standards for eligibility “governing residence and

transfer,” including the provision allowing for only limited eligibility upon a transfer not

accompanied by a parental change of residence, Rule 19(c) acts as a deterrent to athletically

motivated transfers.  The absence of such a rule might reasonably “invite strategically

motivated transfers thinly disguised as transfers in the best (nonathletic) interest of the

student.”  Crane, 975 F.2d at 1328 (Posner, J., dissenting).

	Third, the operation of the rule does not sweep too broadly in its proscription.15  While it is true that some students who change schools neither primarily for athletic reasons

nor as a result of undue influence are denied varsity eligibility for one year, conducting a factual inquiry into the motivation for every transfer would impose a considerable burden

on both the IHSAA and its member schools.  IHSAA Commissioner Gardner testified that

to the effect that the IHSAA could not afford to investigate individually each transfer:

“Regular detailed investigations by the IHSAA are cost prohibitive, could not be staffed by

the current IHSAA personnel, and would have limited success in identifying those athletic

transfers thinly disguised as nonathletic transfers.”  (R. at 227-228.)  The IHSAA has

balanced these competing interests by (i) creating the thirteen special criteria for immediate

eligibility under Rule 19-6.1, (ii) granting immediate eligibility under the Hardship Rule,

and (iii) permitting students immediate eligibility at the junior varsity and freshman level.16

	While we do not find the IHSAA’s application of the Transfer Rule to Carlberg to be

either arbitrary or capricious, we believe fairness to Carlberg’s position requires that we give

additional consideration to his common law claim.  That is, Carlberg’s claim might fairly be

categorized as a challenge to the validity of the Transfer Rule itself, asking whether the

IHSAA has the authority to enforce a rule denying varsity athletic eligibility to a student

who transfers school whether the transfer is neither primarily for athletic reasons nor as a result of undue influence.  To put the distinction in administrative law terms, Carlberg may

be seen to argue that the IHSAA has abused its rulemaking authority rather than its adjudica

tory authority.17

	Judicial review of whether a governmental agency has abused its rulemaking author

ity is highly deferential.  Ind. Bd. of Public Welfare v. Tioga Pines Living Center, 622 N.E.2d 935, 939 (Ind. 1993).  But government agency rulemaking is not exempt from

judicial review.  Ind. Dep’t of State Revenue v. Colpaert Realty Corp, 231 Ind. 463, 480, 109 N.E.2d 415, 422 (1952).  Among the factors analyzed are whether the challenged

agency rule (i) falls within the scope of the agency’s enabling legislation, (ii) is arbitrary or

unreasonable, (iii) is consistent and harmonious with the legislative pronouncement under

which it operates, and (iv) does not expand or vary the legislature’s enactment.  In re Associated Sign & Post, Inc., 485 N.E.2d 917, 922 (Ind. Ct. App. 1985) (citing cases).  

	We have already found that this rule is not arbitrary or unreasonable.  As discussed supra, the IHSAA does not derive its authority directly from the legislature but instead from a delegation of authority from member schools.  As such, the analysis with respect to the

three factors that concern authorizing legislation is conducted best by examining the chal

lenged rule’s consistency with the IHSAA’s purpose in general and the purpose of the Transfer Rule in  particular.  

	The IHSAA exists “to encourage, regulate, and give direction to wholesome amateur

interschool athletic competition between schools who are members.”  IHSAA Articles of

Incorporation, art. II; IHSAA By-Laws, art. II.  To further this purpose, the IHSAA Articles

and By-Laws mandate that it “determine qualifications of individual contestants . . . and

provide written communications to establish standards for eligibility.”  Id.   We find author ity to take such action, and to delegate that authority to the IHSAA, to be within the powers

granted Indiana public school corporations by the legislature.  Kriss, 180 Ind. App. at 608, 390 N.E.2d at 201.  We further find Rule 19-6.2 to fall within the scope of, to be consistent

and harmonious with, and not to expand or vary this authority.

	C

	The IHSAA claims that the trial court erred in enjoining it from implementing its

Restitution Rule.  The Restitution Rule, IHSAA Rule 17-6, applies where a student who

participated in interscholastic athletics in accordance with a court order is ultimately

determined to have been ineligible.  In such circumstances, the Rule permits the IHSAA to

impose such sanctions as requiring (i) the school to forfeit victories and return any trophies,

awards or funds received from tournament play, and (ii) the student to relinquish individual records and performances as well as any awards earned.18 

	Attempting to prevent enforcement of the Restitution Rule in this case, the trial judge

ordered the following in the Judgment: 

		The IHSAA and its member schools, their principals, officers, members,

agents, servants, employees and all those in active concert or participation with them,

shall not act under Rule 17-6 or otherwise against Carmel High School, the Plaintiff,

Jason Carlberg, or any school Jason Carlberg plays against because of said school’s

acquiescence in this Order, or otherwise engage in any retaliation or retribution

against Carmel High School, the Plaintiff, Jason Carlberg, or any school Jason

Carlberg plays against because of the issuance of this Order.

(R. at 20.)

	Carlberg, in arguing that the trial judge properly enjoined the IHSAA from imple

menting its Restitution Rule, encourages this Court to follow the reasoning found in Avant, which invalidated the Restitution Rule.  The Avant court found the Restitution Rule to be manifestly unreasonable.  However, another panel of the Court of Appeals upheld enforce

ment of the Restitution Rule in Indiana High School Athletic Ass’n v. Reyes, 659 N.E.2d 158, a case which, as previously mentioned, we also decide on transfer today.

	Our decision today in Reyes deals primarily with the Restitution Rule and disposes of two of the issues presented in this case.  First, the Avant court grounded its decision that the Restitution Rule was “manifestly unreasonable” on the authority of Martin v. Ben Davis Conservancy District, 238 Ind. 502, 153 N.E.2d 125 (1958).  We explain in Reyes that reliance on Martin was misplaced and does not provide a basis for invalidating the Restitu tion Rule.  Reyes, slip op. at 9-10.   Second, Carlberg contends that the Restitution Rule encourages disrespect for the institution of the judiciary.  We also address this argument in Reyes and determine that the enforcement of the Restitution Rule does not impinge upon the judiciary’s function.  Id. at 16.

	As we have mentioned, Reyes involves a challenge to an IHSAA decision by an IHSAA member school.  We hold above and in Reyes that we review such challenges according to standards for judicial review of the decisions of private membership organiza tions.  See part III-A-1, supra, and Reyes, slip op. at 14.  However, here we are faced with a student challenge to an IHSAA decision and so must review whether enforcement of the

IHSAA Restitution Rule against a student is arbitrary or capricious.19    See part III-A-2, supra.

	In our view, an IHSAA decision that Carlberg relinquish any swimming record,

performances or awards would not be  “willful and unreasonable, without consideration and

in disregard of the facts or circumstances in the case, or without some basis which would

lead a reasonable and honest person to the same conclusion.”  First, as with the enforcement

of the Transfer Rule discussed supra, part III-B (but unlike the IHSAA decision challenged in Crane), here there is no contention that the IHSAA failed to publicize its interpretation of the rule or failed to apply consistently its interpretation of the rule.

	Second, we agree with the IHSAA that there is an interest in “restitution and fairness”

to schools which and athletes who compete against ineligible students.  While the IHSAA

might take a different approach to further this interest, we find the approach taken here not

arbitrary or capricious for the same reasons as did our counterparts in Michigan:

It [the restitution rule] is reasonably designed to rectify the competitive

inequities that would inevitably occur if schools were permitted without

penalty to field ineligible athletes under the protection of a temporary restrain

ing order, pending the outcome of an ultimately unsuccessful legal challenge

to one or more eligibility rules.  We find relevant to our decision the fact that

[the Michigan version of the restitution rule] does not purport to authorize

interference with any court order during the time it remains in effect, but only

authorizes restitutive penalties when a temporary restraining order is ulti

mately dissolved and the challenged eligibility rule remains undisturbed in

force . . . .  Furthermore, compliance with MHSAA rules on the part of stu

dent athletes is an appropriate and justifiable condition of the privilege of

participating in interscholastic athletics under the auspices of the MHSAA.

Cardinal Mooney High Sch. v. Mich. High Sch. Athletic Ass’n, 467 N.W.2d 21, 24 (Mich. 1991).  See also Reyes, 659 N.E.2d at 170.

	IV

	A

	Having reaffirmed that the action of the IHSAA is “state action” for purposes of a student’s challenge of IHSAA action for constitutional muster,20 we now address the IHSAA’s claim that the trial court erred in concluding that the IHSAA decision violated

Carlberg’s rights to equal protection and equal privileges under the U.S. and Indiana

Constitutions.

	A-1

	Carlberg argues that the IHSAA’s enforcement of the Transfer Rule violated his

constitutional right to equal protection of the laws as provided by the Fourteenth Amend

ment.  U.S. Const. amend. XIV, § 1.

	“The threshold question for federal equal protection analysis concerns the level of

scrutiny.”  Ind. Dep’t of Envtl. Management v. Chemical Waste Management, Inc., 643 N.E.2d 331, 337 (Ind. 1994).  Absent a burden upon the exercise of a constitutionally

protected right (none is at stake here — see part IV-C-2 infra) or creation of a suspect class (none is alleged here), the general standard of review of state action challenged under the

equal protection clause is the rational basis test.  Id.  This test merely requires “that the law be ‘rationally related to a legitimate governmental purpose.’  Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910, 1914, 100 L.Ed.2d 465, 471 (1988).”  Id.  E.g., Griffin High Sch. v. Ill. High Sch. Ass’n, 822 F.2d 671, 674 (7th Cir. 1987) (holding Illinois High School Associa tion’s version of the transfer rule did not violate federal equal protection).

	 The Transfer Rule is designed “[t]o preserve the integrity of interschool athletics and

to prevent or minimize recruiting, proselytizing and school ‘jumping’ for athletic reasons .

. . .”  Rule C-19-4. We find this to be a legitimate interest and conclude that the Transfer

Rule is rationally related to the attainment of this goal.  By establishing objective standards

for eligibility “governing residence and transfer,” including the provision allowing for only

limited eligibility upon a transfer not accompanied by a parental change of residence, Rule

19(c) acts as a deterrent to athletically motivated transfers.  As mentioned supra, the absence of such a rule might reasonably “invite strategically motivated transfers thinly disguised as

transfers in the best (nonathletic) interest of the student.”  Crane, 975 F.2d at 1328 (Posner, J., dissenting).

	A-2

	Upon finding the Transfer Rule to be rationally related to a legitimate governmental

interest, under a traditional equal protection analysis, our inquiry would be complete. 

However, this Court’s 1974 opinion in Sturrup v. Mahan extends the inquiry one step further. 

	The version of the Transfer Rule in effect at the time of Sturrup flatly denied eligibil ity for one year to any student who transferred without the student’s parents actually

changing their residence to the new school district.21  In the case, Warren Sturrup had moved from Florida to Indiana due to “demoralizing and detrimental conditions” of his home and

school; his parents remained in Florida.  Sturrup, 261 Ind. at 464, 305 N.E.2d at 878.  Enforcing the Transfer Rule, the IHSAA denied Sturrup eligibility to participate in inter

scholastic athletics at his new high school.  Id.  Sturrup’s guardian responded by seeking an injunction restraining the IHSAA from declaring Sturrup ineligible.  The trial court refused

the injunction but the Court of Appeals held that the IHSAA’s Transfer Rule violated the

Equal Protection Clause.  On appeal, this Court disagreed with the Court of Appeals’s

application of the equal protection methodology and determined that the Transfer Rule,

consistent with equal protection, provided for equal treatment of transferees.  However, this

Court went on to hold that the rule was unreasonable as it “swe[pt] too broadly in [its]

proscription and, hence, violated the Equal Protection Clause of the Fourteenth Amend

ment.”  Id. at 468, 305 N.E.2d at 881.  We wrote:

	The objective of the IHSAA bylaws regarding transferee eligibility is to preserve the

integrity of interscholastic athletics by minimizing recruitment, proselyting, and

school “jumping” for athletic reasons.  We believe that such practices at the high

school level are despicable and odious and should, if possible, be eliminated by any

reasonable method available.  These transferee eligibility bylaws are reasonably related to the above-stated objective.  That is to say, they are designed to and do, in

fact, contribute to the realization of that goal.  However, said bylaws are unreason able in that they sweep too broadly in their proscription and, hence, violate the Equal Protection Clause of the Fourteenth Amendment.  IHSAA Rules 12 (Section 1) and

22 (Sections 3 and 6) limit eligibility to those who move with their parents free of

undue influence and to those whose move is necessitated by “unavoidable circum

stances” free of undue influence.  All other transferring student-athletes, who cannot

bring themselves within one of the above two categories, are automatically denied the opportunity to participate in interscholastic athletics for a period of one year. 

The bylaws, in essence, create an irrebuttable conclusion of law that all other trans

ferees have been the victims of unscrupulous practices.  This is precisely where the

rules sweep too broadly, they create an over-inclusive class—those who move from

one school to another for reasons wholly unrelated to athletics are grouped together

with those who have been recruited or who have ”jumped” for athletic reasons.  In

short, the purported objective of the transferee eligibility rules is to prevent the use

of undue influence and school “jumping,” but their practical effect is to severely limit

the transferee eligibility in general.  The rules as presently constituted penalize a

student-athlete who wishes to transfer for academic or religious reasons or for any number of other legitimate reasons.  Surely, denying eligibility to such transferees in

no way furthers IHSAA objectives.

Sturrup, 261 Ind. at 468-469, 305 N.E.2d at 881.  We concluded, “[T]he IHSAA’s decision to deny Warren Sturrup eligibility—in the absence of any evidence of ‘undue

influence’—can only be viewed as patently arbitrary and capricious, and must be reversed.” 

Sturrup, 261 Ind. at 470, 305 N.E.2d at 882.

	The Sturrup opinion has been the target of much criticism.  See Thomas, 603 N.E.2d at 193 (“[T]he Sturrup court gave no reason for its departure from traditional equal protec tion analysis and did not provide any guidance as to its future implications . . . .”); Schafer, 598 N.E.2d at  553 (“Sturrup is out of the mainstream of caselaw on equal protection analysis . . . . (citation omitted)); Robbins, 941 F.Supp. at 793 (“Federal equal protection ‘rational basis’ analysis does not contain an ‘overbroad’ component.  Rather, high school

transfer rules, like the rule in question, are valid and enforceable.” (citations omitted));

Jordan, 813 F.Supp. at 1381 (refusing to apply Sturrup overbreadth scrutiny and writing “Indiana’s practice of subjecting equal protection and procedural due process claims to

‘overbreadth scrutiny’ is not harmonious with the analysis of claims brought pursuant to the

Fourteenth Amendment of the United States Constitution.”); Cooper v. Or. Sch. Activities Ass’n, 629 P.2d 386, 395 (Or. Ct. App. 1981) (“We are aware that one state court has used overbreadth as a basis for declaring a similar transfer rule to be in violation of the federal Equal Protection Clause. With respect, we do not think that the Indiana court correctly

applied federal law.” (citations omitted)); Berschback v. Grosse Pointe Pub. Sch. Dist., 397 N.W.2d 234, 240 (Mich. Ct. App. 1986) (“The decision[ ] in . . . Sturrup appear[s] to be [an] anomal[y] in this area of the law. [T]he focus on the ‘overbroad’ and ‘overinclusive’ nature

of the rules . . . to find a denial of equal protection departs significantly from traditional

equal protection analysis.”), appeal denied, 398 N.W.2d 1 (1986).

	In addition, a number of courts have expressly held that various versions of high

school association transfer rules do not violate the Equal Protection Clause of the Fourteenth

Amendment.  See e.g.,  Griffin High Sch., 822 F.2d 671 (holding that transfer rule denying eligibility to students transferring from public to private schools did not violate the students’

rights to due process or equal protection of the laws as provided by the fourteenth amend

ment); In re United States ex. rel. Mo. State High Sch. Activities Ass’n, 682 F.2d 147 (8th Cir. 1982) (upholding transfer rule denying eligibility for one year after transfer as denying

neither equal protection nor due process of the federal Constitution); Walsh v. La. High Sch. Athletic Ass’n, 616 F.2d 152 (5th Cir. 1980) (finding Louisiana’s version of transfer rule not to violate equal protection rights of transferring students); Barnhorst v. Mo. State Sch. Activities Ass’n, 504 F.Supp. 449 (W.D. Mo. 1980) (holding Missouri transfer rule did not violate equal protection); Kulovitz v. Ill. High Sch. Ass’n, 462 F.Supp. 875 (N.D. Ill. 1978) (finding Illinois version of Transfer Rule did not violate equal protection); Simkins v. S.D. High Sch. Activities Ass’n, 434 N.W.2d 367 (S.D. 1989) (holding transfer rule did not violate federal equal protection); Chabert v. La. High Sch. Athletic Ass’n, 323 So. 2d 774 (La. 1975) (holding transfer rule did not violate federal equal protection as rule was uni

formly applied, not arbitrary and rationally related to legitimate government interest);

Berschback, 397 N.W.2d 234 (denying equal protection challenge to high school transfer rule); Whipple v. Or. Sch. Activities Ass’n, 629 P.2d 384 (Or. Ct. App. 1981) (holding transfer eligibility rule did not deny the student equal protection of the laws or procedural

or substantive due process under the fourteenth amendment); Cooper, 629 P.2d at 395  (holding that Oregon’s version of the transfer rule “is constitutionally valid under the federal

Constitution.”); Genusa v. Holy Cross College, 389 So. 2d 908 (La. Ct. App. 1980) (finding no equal protection violation where high school transfer rule was not arbitrary, was uni

formly applied, and was rationally related to legitimate government interest); Ky. High Sch. Athletic Ass’n v. Hopkins County Bd. of Educ., 552 S.W.2d 685, 687 (Ky. Ct. App. 1977) (finding transfer rule a “valid regulation intended to eliminate the pernicious practice of

recruiting high school athletes.”); see also Don F. Vaccaro, Annotation, Validity of Regula tion of Athletic Eligibility of Students Voluntarily Transferring from One School to An

other, 15 A.L.R.4th, 885 (1982 & Supp.).22 

	Upon reflection, we agree that Sturrup v. Mahan was wrong to the extent that it included overbreadth as part of federal equal protection analysis and overrule it to that

extent.

	B

	Carlberg also contends that the IHSAA’s enforcement of its Transfer Rule violates his rights under Article 1, Section 23, of the Constitution of the State of Indiana.  The

Privileges and Immunities Clause of the Indiana Constitution provides:

	The General Assembly shall not grant to any citizen, or class of citizens, privileges

or immunities, which, upon the same terms, cannot equally belong to all citizens.

Ind. Const. art. I, § 23.  For many years, this Court analyzed claims made under the Privi

leges and Immunities Clause using the same methodology as that applied in federal equal

protection analysis.  See part IV-A, supra.  However, in the watershed case of Collins v. Day, 644 N.E.2d 72 (Ind. 1994), we held that the analytical framework required to resolved Privileges and Immunities Clause claims did not include “applying varying degrees of

scrutiny for different protected interests,” a key element of federal equal protection analysis. 

Id. at 80.  Rather, the same level of scrutiny is applied to analyze the constitutional propriety of “any and all” grants of unequal privileges or  immunities.  Id.  That level of scrutiny examines whether “the disparate treatment . . . [is] reasonably related to inherent character

istics which distinguish the unequally treated classes.”  Id.  Collins requires that the chal lenger bear the burden “to negative every reasonable basis for the classification.”  Id. at 81.  This is because of the substantial deference due the enactment.  Id. at 80.  In addition, “the preferential treatment must be uniformly applicable and equally available to all persons

similarly situated.”  Id.

	Collins v. Day identified two types of Privileges and Immunities Clause claims — claims that seek to invalidate enactments which grant special privileges and claims that seek

to impose special burdens.  Id. at 79.  Carlberg’s claim falls into the latter category — the burden of limited eligibility is imposed by the IHSAA upon the class of students who

transfer schools where there has been no change in parental residence and who do not

qualify under either Rule 19-6.1 or the Hardship Rule.23  We find that Carlberg has not carried his burden to  “negative every reasonable basis” for the burden of limited eligibility imposed upon the class of which he is a member.24

	Under Collins, we must determine whether there are inherent distinctions between transfer students in the class and the general class of students that are reasonably related to

imposing the burden of limited eligibility.  We find the “reasonable relationship” test met for

several reasons.  First, in furtherance of its goal “[t]o preserve the integrity of interschool

athletics and to prevent or minimize recruiting, proselytizing and school ‘jumping’ for

athletic reasons,” Rule C-19-4, the IHSAA views the rule as “a deterrent to students who

would transfer schools for athletic reasons and to individuals who would seek to recruit

student athletes to attend a particular school for the purpose of building athletic strength.” 

IHSAA Rule 19 Philosophy.  We find that by establishing objective standards for eligibility

“governing residence and transfer,” including the provision allowing for only limited

eligibility upon a transfer not accompanied by a parental change of residence, Rule 19(c)

acts as a deterrent to athletically motivated transfers. 

	Second, the “limited eligibility” provision diminishes the harsh effect of the Transfer

Rule by permitting athletic participation but limiting that participation to the junior varsity level.  As noted earlier in this opinion, the IHSAA based the rule on the belief that “athletic

transfer rules which permit subvarsity level participation but prohibit varsity level participa

tion, are more likely to discourage athletically motivated transfers and athletic recruitment,

and at the same time permit greater athletic participation in a school’s athletic program and

eliminate or significantly reduce the athletic advantage enjoyed by a school receiving a

transfer student athlete.”

	Third, we accept the IHSAA position that it cannot afford to investigate individually

each transfer: “Regular detailed investigations by the IHSAA are cost prohibitive, could not

be staffed by the current IHSAA personnel, and would have limited success in identifying

those athletic transfers thinly disguised as nonathletic transfers.”  (R. at 227-28.)

	In Collins, we described our deference to the enactment as follows:

Legislative classification becomes a judicial question only where the lines

drawn appear arbitrary or manifestly unreasonable.  So long as the classifica

tion is based upon substantial distinctions with reference to the subject matter,

we will not substitute our judgment for that of the legislature; nor will we

inquire into the legislative motives prompting such classification.

Collins, 644 N.E.2d at 80 (quoting Chaffin v. Nicosia, 261 Ind. 698, 701, 310 N.E.2d 867, 869 (1974)).  The deterrent value of the rule, the availability of limited eligibility, and the

prohibitive cost of monitoring the motives of every transfer are not arbitrary or manifestly unreasonable lines.  The Transfer Rule as applied to Carlberg does not violate the Privileges

and Immunities Clause.

		C

	The trial court concluded that the IHSAA decision to enforce its Transfer Rule

violated Carlberg’s due process rights under the Indiana and U.S. Constitutions:25  

	The Transfer Rule operates, as applied in this case, as a violation of

Jason’s rights under the due process and equal protection clauses of the 14th

Amendment of the U.S. Constitution and Article I, Section 12 and Section 23,

of the Indiana Constitution.

(R. at 18.)

	C-1

	The Due Process Clause and Due Course of Law Clause prohibit state action which

deprives a person of life, liberty, or property without the “process” or “course of law” that

is due, that is, a fair proceeding.  Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950); Howard v. Incorporated Town of North Judson, 661 N.E.2d 549, 553 (1996).  The same analysis is applicable to both the federal and state claims.  Shook Heavy & Envtl. Constr. Group v. City of Kokomo, 632 N.E.2d 355, 361 (Ind. 1994).  Predicate to any analysis of whether the process provided was fair is a determination that the claimant

had a “protectable interest” — life, liberty, or property — at stake.  Board of Regents of State Colleges v. Roth, 408 U.S. 564, 571 (1972); Shook Heavy & Envtl. Constr. Group, 632 N.E.2d at 361.

	The trial court made no finding of a protectable interest and Carlberg asserts none on

appeal.26  

	Even assuming that Carlberg was entitled to procedural due process, there is not

evidence that he was denied the procedure that is due.  

	“An essential principle of due process is that a deprivation of life, liberty, or property

‘be preceded by notice and opportunity for hearing appropriate to the nature of the

case.’” [Cleveland Bd. of Educ. v.] Loudermill, 470 U.S. [532,] 542, 105 S.Ct. [1487,] 1493, 84 L.Ed.2d [494,] 503 (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656, 94 L.Ed. 865, 873 (1950)).

Howard, 661 N.E.2d at 553.  The IHSAA Rules provide for an appeal of the Commis sioner’s investigation and decision to the Executive Committee, a hearing before that

Committee (along with general procedures to be followed at such hearing), and a review of

that Committee’s decision.  See Rules 17-1 to 17-5.3.  In this case Carlberg was granted a hearing before the IHSAA Executive Committee at which Carlberg presented witnesses and

exhibits.  (R. at 56-170.)  Carlberg fails to contend that this procedure was inadequate and

the trial court did not discuss the IHSAA procedure.

	C-2

	While the trial court concluded that enforcement of the Transfer Rule violated

Carlberg’s constitutional right to due process, the trial court made no findings that can be

interpreted as holding that Carlberg’s constitutional right to procedural due process had been

violated.  Therefore, it appears that the trial court’s conclusion was that it was Carlberg’s

constitutional right to substantive due process that had been violated.27  Indeed, the Due Process Clause, in addition to guaranteeing fair process, also provides heightened protection

against state interference with certain fundamental rights and liberty interests.  Washington v. Glucksberg, 117 S.Ct. 2258, 2267 (1997) (citing Reno v. Flores, 507 U.S. 292, 301-302 (1993), and Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 851 (1992)).

	But is participation in interscholastic sports one of the rights or interests protected by

substantive due process?  We answered this question twenty-five years ago:  “[A] student

has no constitutional right to participate in interscholastic athletics,”  Haas, 259 Ind. at 521, 289 N.E.2d at 498.  Accord, Davenport v. Randolph Co. Bd.. of Educ., 730 F.2d 1395, 1397 (11th Cir. 1984) (privilege of participation in sports falls outside due process); Niles v. Univ. Interscholastic League, 715 F.2d 1027, 1031 (5th Cir. 1983) (student’s interest in interscholastic activities falls outside of due process rights); Hamilton v. Tenn. Secondary Sch. Athletic Ass’n, 552 F.2d 681, 682 (6th Cir. 1976) (privilege of participation in inter scholastic sports is outside due process protections); Albach v. Odle 531 F.2d 983, 984 (10th Cir. 1976) (interscholastic athletic participation not a constitutionally protected right); Zehner v. Central Berkshire Reg’l Sch. Dist., 921 F.Supp. 850, 862 (D. Mass. 1995) (taking part in interscholastic athletics was not constitutionally protected claim of entitlement);

Simkins, 434 N.W.2d at 368 (interscholastic participation is mere expectancy); Bruce v. S.C. High Sch. League, 189 S.E.2d 817, 819 (S.C. 1972) (participation in high school extracurricular activities is a privilege); Menke v. Ohio High Sch. Athletic Ass’n, 441 N.E.2d 620, 623 (Ohio Ct. App. 1981) (holding that student has no fundamental right to

participate in high school athletics);  Whipple, 629 P.2d at 386 (“While we think that participation in interscholastic sports is an important part of the educational process, we are

not persuaded by plaintiff’s argument that it is a liberty or property interest of constitutional

proportions.”); 68 Am. Jur. 2d Schools § 259 (1993). 

	The United States Supreme Court, in a recent reiteration of the “established method

of substantive-due-process analysis,” provided the following “guidepost” for identifying the

rights or interests protected by substantive due process:

[W]e have regularly observed that the Due Process Clause specially protects

those fundamental rights and liberties which are, objectively, “deeply rooted

in this Nation’s history and tradition,” [Moore v. East Cleveland, 432 U.S.

494,] 503 (plurality opinion); Snyder v. Massachusetts, 291 U.S. 97, 105 (1934) (“so rooted in the traditions and conscience of our people as to be ranked as fundamental”), and “implicit in the concept of ordered liberty,”

such that “neither liberty nor justice would exist if they were sacrificed,”

Palko v. Connecticut, 302 U.S. 319, 325, 326 (1937).

Glucksberg, 117 S.Ct. at 2268.  While recognizing that the importance of participation in interscholastic sports requires scrutiny as a matter of state common law, see part III-A, supra, we do not find that it rises to the level of the kinds of fundamental rights and liberties described in Glucksberg.  Carlberg has no right under the Due Process Clause to participate in interscholastic sports.

	Conclusion

	Having granted transfer, we vacate the opinion of the Court of Appeals and reverse

the decision of the trial court.

SHEPARD, C.J., and SELBY and BOEHM, JJ., concur.

DICKSON, J., concurs and dissents with separate opinion.

ATTORNEY FOR APPELLANT			ATTORNEYS FOR APPELLEE

Robert M. Baker, III					James E. Carlberg

Johnson Smith Pence Densborn			Ronald E. Elberger

   Wright & Heath					George T. Patton, Jr.

Indianapolis, Indiana					Bose McKinney & Evans

							Indianapolis, Indiana

In The

INDIANA SUPREME COURT

											                 INDIANA HIGH SCHOOL ATHLETIC		)	

ASSOCIATION, INC. 			 	)

		Appellant (Defendant below),	)			

							)

		v.					)	29S02-9610-CV-681

							)					 JASON CARLBERG b/n/f				)

JAMES E. CARLBERG and			)			

DONNA S. CARLBERG,				)

		Appellees (Plaintiffs below).	)

                          ________________________________________________  

APPEAL FROM THE HAMILTON CIRCUIT COURT

The Honorable Richard T. Payne, Special Judge

Cause No. 29C01-9410-CP-737

                        _________________________________________________

On Petition To Transfer

DICKSON, J., concurring and dissenting.  

	I agree with the majority that the Indiana State High School Athletics Association (“IHSAA”) is subject to common law oversight in Indiana’s courts and that IHSAA action

is equivalent to “state action” subjecting it to judicial enforcement for violations of the

federal or state constitutions.  However, I disagree with the majority’s grant of special treatment to the IHSAA as a private membership organization with respect to challenges

by member schools.  Also contrary to the majority, I am convinced that the trial court was

correct in finding the IHSAA’s attempts to apply its Transfer Rule and its Restitution

Rule to be arbitrary and capricious and thus improper.  Finally, I conclude that

application of the Transfer Rule violates Article 1, Section 23 of the Indiana Constitution. 

I would affirm the judgment of the trial court in favor of Jason Carlberg and against the

IHSAA.  

	Jason Carlberg attended Brebeuf Preparatory School, a private school, his ninth-

grade year and also participated in their swimming program.  However, Jason did not

thrive academically in the environment at Brebeuf.1  Because Jason’s parents, James and Donna Carlberg, believed that he would do better in a more structured environment, they

transferred Jason to the public school in their area for the tenth grade.  The parents’

choice of schools proved to be well-founded, as Jason’s grades improved significantly. 

When Jason’s parents sought to obtain an athletic transfer from the IHSAA so that Jason

could also compete for a place on the school swimming team, the IHSAA Assistant

Commissioner found no athletic motivation in the transfer in schools and this decision

was upheld throughout the IHSAA appeals process.  However, the IHSAA denied Jason

eligibility for varsity competition under its Transfer Rule.  The trial court later enjoined the IHSAA from preventing Jason from participating in varsity athletics.2

	The choices faced by the Carlbergs are choices all parents face: what school and

type of education is best for their children.  For some, one facet of that education is

athletics.  As noted by the majority, “athletics are an integral part of this constitutionally-

mandated process of education.”  Slip op. at 11.  Physical fitness lowers mortality rates,

promotes cardiovascular and muscular fitness, generates a general feeling of well-being,

and reduces the symptoms of depression and anxiety.  U.S. Dep’t of Health and Human Servs., Physical Activity and Health: A Report of the Surgeon General 85-136 (1996).  The “potentially positive outcomes of organized sport competition” have

been documented.  Wilbert Marcellus Leonard II, A Sociological Perspective of Sport 124 (1993).  Among these outcomes are enhanced decision-making skills, self- image, character, morality, independence, and opportunities for youth to experience a

sense of achievement.  Id.  Witnesses for both sides also testified that athletics provided several benefits, including “learning how to be part of a team, the process of goal setting

and working hard, individually and within a team, to achieve goals, and how to deal with

successes and overcome the failures provided in sports.”  Record at 12.

	In addition, for the student who is not academically inclined, participation in

sports requires a certain amount of academic progress and provides motivation for the

athlete to meet those standards in order to compete.  For example, to compete in

collegiate athletics in Division I or II of the National College Athletic Association

(“NCAA”), incoming freshmen must meet certain academic criteria, which include a

scale of certain entrance exam scores and minimum grades in core classes taken in high

school.  National Collegiate Athletic Association, 1996-97 NCAA Manual 166- 173 (1996).  This can have a motivating effect on those high school athletes who wish to

continue their athletic participation into college.  Athletics can also be an avenue for

economically underprivileged students to attend college on a scholarship when they might

not otherwise afford to do so.  The availability of such scholarships is significant. 

Schools participating in Division I of the NCAA spent an average of almost one-and-a-

half million dollars per school in athletic scholarships for the academic year 1993-94. 

Fact File: Athletics Participation and Scholarships at 257 NCAA Division I Institutions, The Chronicle of Higher Education, Oct. 26, 1994, at A51.  

	Throughout Indiana’s history, government has been assigned a special

responsibility with respect to education.  Explicit requirements were included in the

Northwest Ordinance,3 which governed the Indiana Territory before statehood, and our State’s initial 1816 Constitution.4  Our present Constitution, ratified in 1851, provides: 

	Knowledge and learning, generally diffused throughout a community, being

essential to the preservation of a free government; it shall be the duty of the

General Assembly to encourage, by all suitable means, moral, intellectual,

scientific, and agricultural improvement; and to provide, by law, for a general and

uniform system of Common Schools, wherein tuition shall be without charge, and

equally open to all.  

Ind. Const. art. 8, § 1.

	The Indiana General Assembly has basically delegated the governance of the

athletics component of education to the schools themselves.  The schools have then sub-

delegated that governance to the IHSAA.  The former IHSAA Assistant Commissioner,

Robert Gardner, acknowledged that the IHSAA is supported by tax dollars and revenue

from the participating schools.  As recognized by the majority, we have long viewed

IHSAA determinations as state action for the purpose of constitutional analysis. 

	I agree with the majority that decisions of the IHSAA constitute “state action” for

purposes of federal and state constitutional review.  The majority is further correct in its decision to apply the “arbitrary and capricious” standard of review to determine

challenges to IHSAA action.  “Judicial review thus serves as an important check on the

legality of the action that agencies may undertake. . . . Judicial review of [] statutory and

constitutional issues is fully in accord with the institutional expertise of the judiciary and

the role that courts are expected to play in our constitutional system.”  Alfred C. Aman,  Jr. & William T. Mayton, Administrative Law 435 (1993). 

	I dissent, however, to the limitations imposed upon this review by the majority. 

To describe the IHSAA as a voluntary association apart from its integral relation to public

schools contradicts reality.  The IHSAA is the only governing body for high school

athletics in the state of Indiana.  Every public high school and approximately thirty

private schools are members of the IHSAA.  In effect, if a school wants to offer any kind

of interscholastic athletic program, it has only two choices:  the IHSAA and its rules or

nothing.  I cannot agree that the IHSAA should be considered a “voluntary” association

not subject to meaningful judicial review in its disputes with “member” schools.  On one

hand, the majority correctly recognizes IHSAA action as “state action” and therefore

reviewable under administrative law concepts as to its actions against individual students. 

However, by declaring the IHSAA to be a voluntary association, the majority effectively

immunizes it from judicial oversight as to its disputes with individual schools.  Because

the majority would apply essentially the same arbitrary and capricious standard to the

IHSAA that it applies to administrative agencies, slip op. at 19 ( quoting Dep’t of Natural Resources v. Indiana Coal Council, Inc., 542 N.E.2d 1000, 1007 (Ind. 1989), cert. denied, 493 U.S. 1078, 110 S.Ct. 1130, 107 L.Ed.2d 1036 (1990)), and because the IHSAA is a

quasi-state actor, prudence and reason favor application of the same standard regardless

of whether we are reviewing challenges from students or schools.  

	The trial court found that the Transfer Rule and the IHSAA’s rulings were

arbitrary and capricious.  These findings should not be reversed unless clearly erroneous. 

Ind.Trial Rule 52(A).  The trial court’s findings were not erroneous.  To the contrary, I

am convinced that the IHSAA’s attempts to enforce the Transfer Rule and the Restitution

Rule in this case are clearly arbitrary and capricious.

	The IHSAA’s action against Jason is blatantly contrary to the expressed purpose of

the IHSAA Transfer Rule.  The IHSAA rules provide that, “Standards governing

residence and transfer are a necessary prerequisite to participation in interschool activities

because: . . . (5) they keep the focus of students and educators on the fact that they attend school to receive an education first and participate in athletics second.”  Record at 170 (citing I.H.S.A.A. Rule 19(c)(5)) (emphasis added).  The trial court found that the

Carlbergs have always put Jason’s education first and the IHSAA officials “indicated they

had no reason to believe Jason Carlberg’s transfer was athletically motivated.”  Record at

11.  Thus, the arbitrariness of the IHSAA’s application of its rule becomes apparent in the

present case:  A rule purporting to limit athletically-motivated transfers and promote

education as the primary value of school in fact punishes a student whom the IHSAA found did not transfer for an athletic reason and where the uncontradicted evidence points only to academic reasons for the transfer.  Common sense instructs that application of the

Transfer Rule to limit Jason’s opportunities for participation would be blatantly arbitrary

and capricious.  The trial court was correct in making such a finding.

	I must also dissent from the majority view upholding the IHSAA Restitution Rule

and authorizing its application to punish the school which permitted Jason to participate

in compliance with a court order.  As noted above, I would not grant the IHSAA any

preferred treatment as a voluntary association, but would rather require it to refrain from

arbitrary and capricious actions as to its member schools and participating student-

athletes.

	While the Restitution Rule purports to protect the interests of those who competed

against a team with an ineligible player, it wholly fails to protect the interests of an

equally innocent set of actors:  those teammates with whom the student participated and

the schools they represented.  When, as in this case, a trial court enjoins the IHSAA from

prohibiting participation, neither the ineligible player’s teammates nor his school are free

to ignore a court order.  Punishing Jason’s innocent teammates and his school is

manifestly arbitrary and capricious.

	Moreover, in individual sports such as swimming, where individual scores are

aggregated to achieve a final team score, a rule which permits the revocation and

confiscation of all the awards earned by teammates and the school can only be punitive, not restitution-oriented.  It would be a relatively simple matter to recompute the total

score minus the contribution of the ineligible athlete to see whether the team should have

placed where it did or whether it should receive a lesser award or any award at all.  The

IHSAA should not be allowed to impose such a manifestly arbitrary and capricious rule

without demonstrating the practical inability to make a provision for the other team

members who were eligible to play. 

	Furthermore, our system of justice has always favored compliance with injunctions

and court orders, even ones which are eventually found to be erroneous.  Had the school

disregarded the trial court’s order, even if the injunction or order was later found

erroneous for non-jurisdictional reasons, a contempt citation could have issued.  Carson v. Ross, 509 N.E.2d 239, 243 (Ind.Ct.App. 1987).  To punish a school or the ineligible player’s teammates for complying with a court order is wrong.  Cf.  Indiana High Sch. Athletic Ass’n v. Avant, 650 N.E.2d 1164, 1171 (Ind.Ct.App. 1995) (finding the Restitution Rule manifestly unreasonable because it punishes parties who comply with

court orders).

	I further dissent because I believe that the IHSAA Transfer Rule as applied to

Carlberg violates the Privileges and Immunities Clause of the Indiana Constitution.  This

clause imposes two requirements upon legislative action that grants unequal privileges or

immunities to differing classes of persons:  

	First, the disparate treatment accorded by the legislation must be reasonably related to inherent characteristics which distinguish the unequally treated classes. 

Second, the preferential treatment must be uniformly applicable and equally

available to all persons similarly situated.  

Collins v. Day, 644 N.E.2d 72, 80 (Ind. 1994).  In determining whether statutes violate this provision, courts must exercise substantial deference to legislative discretion.  Id. 

	Looking to the first part of our Equal Privileges and Immunities analysis, the

threshold inquiry is whether any disparate treatment exists.  In this case, the disparate

treatment is obvious.  The role of athletics in education parallels, in important ways, other

decisions made by parents and students concerning what classes and activities will suit

the students’ abilities, interests, and preparation for the future.  Unfortunately, under the

majority opinion, parents and students making decisions about athletic opportunities are

not treated the same as those making decisions about other, non-athletic, opportunities. 

The IHSAA Transfer Rule treats parents and athletically-gifted students differently than

other parents and students seeking to maximize the educational opportunities available in

non-athletic areas of education; such as, computer technology, foreign language, drama

and performing arts, interscholastic debate competition, and marching band.  Parents and

students are generally free to make family decisions and perhaps incur considerable

sacrifice to relocate in order to enroll the student in a school believed to be best suited to

the student’s individual abilities.  But the IHSAA Transfer Rule denies student-athletes

and their parents this same privilege.  Likewise, the Transfer Rule provides disparate

treatment as to high school athletes who transfer in contrast with those who do not, as is evident in the present case.  Jason Carlberg, a high school athlete who transferred for

concededly non-athletic reasons, would only have been allowed to compete at the junior

varsity level while the athletes who had not transferred were allowed to compete at the

varsity level.

	However, this disparate treatment of student athletes and their parents--in contrast

to the freedom of students and parents to transfer schools to experience the best available

programs in specialized academic areas or in competitive or performing arts--is not

justified by any inherent difference between the two classes of persons.  Nor is there any

inherent difference reasonably related to the disparate treatment imposed upon the student

athlete who transfers as opposed to the student who does not.  While Collins cautions that courts “must accord considerable deference to the manner in which the legislature has

balanced the competing interests involved,” id., the special privileges and immunities affected by the Transfer Rule are not the product of any legislative policy judgment.  The

rule here was not adopted by the Indiana General Assembly, with all the attendant debate

and political accountability normally involved in legislative action.  When the IHSAA

was given the authority by the schools to make rules binding upon Indiana’s public

schools and students, the legislature did not enact any limitations reflective of any public

policy determination.  Courts need not give deference to legislative discretion when, as here, none was exercised.5  

	Notwithstanding the absence of any legislative policy discretion requiring

deference in this case, I observe that, by prohibiting eligibility for varsity participation for

those who were not expressly found to have transferred for athletic reasons, the Transfer

Rule cannot be reasonably related to the disparate treatment given to the two classes.  If

the rule is designed to prevent athletically-motivated transfers, then a rule which prohibits involvement in varsity sports because a student transferred for non-athletic reasons is not reasonably related to the disparate treatment.  Thus, the enormous breadth of the rule

clearly undermines any argument that the rule is reasonably related to providing

significant deterrent value in preventing athletic transfers.  

	Finally, the majority finds that the limited ability of the IHSAA to make individual

determinations may justify its use of such a broad rule.  However, as a matter of our

equal privileges and immunities jurisprudence, we do not consider the relative costs to the

institution of providing such determinations.  We only look to whether privileges are

extended equally to the same class of persons and whether different treatments are

inherently justified.  This analysis is not to be confused with the current federal due

process analysis under Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), which does weigh the burden of providing the additional services. 

	In responding to Carlberg’s claim that IHSAA’s enforcement of the Transfer Rule

violated the Due Course of Law provision of the Indiana Constitution, the majority is, I

believe, mistaken in suggesting that our state constitutional due course of law analysis is

necessarily co-extensive with federal due process jurisprudence.  The majority recites that

“the same analysis is applicable to both the federal and state claims.”  Slip op. at 40

(citing Shook Heavy & Envtl. Constr. Group v. City of Kokomo, 632 N.E.2d 355, 361 (Ind. 1994)).  Notwithstanding our language “explicitly extending” federal analysis to

Article 1, Section 12 of the Indiana Constitution, this Court did not engage in any

analysis and construction of Article 1, Section 12 of the Indiana Constitution.  Shook Heavy, 632 N.E.2d at 361.  The Indiana constitutional claim in Shook was not raised until oral argument before this Court.  We noted that because the “issue was not briefed, we

decline to give it extensive treatment.”  Id. at 360 (footnote omitted).  We therefore merely looked to federal due process concepts in our disposition of the state

constitutional claim “[b]ecause these are familiar principles in Indiana jurisprudence.”  Id. at 361.  Because of the absence of any argument in Shook regarding the history and previous treatment of Article 1, Section 12 of the Indiana Constitution, our utilization of

the federal analysis therein should be seen as merely a convenient guide for cursory

analysis and should not be read to dispositively hold that the federal and state analyses

are identical.

	I would affirm the judgment of the trial court.