dissenting.
The majority assumes, without determining, that students have a constitutionally protected liberty interest in their personal appearance. I find that students have this liberty interest under the Constitution, and therefore I agree with the majority's assumption. However, the majority relegates this right to one of minimal importance by applying the lowest standard of serutiny the Supreme Court has prescribed under the Due Process clause. I find that the students's liberty interest is of a high order of importance and, under the Constitution and Indiana law, a heightened level of scrutiny is required.
Also, the majority upholds the trial court's determination that Jimmy Hines failed to carry his burden of proof in his challenges under the Due Process clause and the Equal Protection clause. But, under the heightened level of serutiny to be applied in each instance, the burden is on the school, not the student, to prove the constitutionality of its actions. I find that the school has failed to satisfy its burden of proof, and that the school's ban on boys wearing earrings violates the Due Process clause and the Equal Protection clause of the Fourteenth Amendment.
For these reasons, I respectfully dissent.
DISCUSSION
The Fourteenth Amendment safeguards citizens against state encroachment on rights protected under the Constitution. The Supreme Court of the United States has set forth standards that state infringement upon the rights of citizens must satisfy in order to pass constitutional muster. The level of serutiny to be applied under each standard is commensurate with the important nature of the right encroached upon.
"Strict serutiny," applied in cases of state infringement upon a fundamental right, requires the state to demonstrate that it has a compelling interest at stake and the means used to achieve that interest are narrowly tailored to fulfill the state's objective. See, e.g., Bernal v. Fainter (1984), 467 U.S. 216, 104 S.Ct. 2312, 81 L.Ed.2d 175. The "rational basis" test, applied in cases involving regulations affecting other constitutionally protected interests, affords the state wide latitude and requires that the state have a legitimate interest and employ methods that bear a rational relationship to the state's purpose. See, eg., Duke Power v. Carolina Environmental Study Group, Inc. (1978), 438 U.S. 59, 98 S.Ct. 2620, 57 L.Ed.2d 595. In cases concerning important liberty interests that do not arise to the status of fundamental rights, the state must satisfy "intermediate serutiny" by demonstrating an important government interest and a substantial relationship between its action and the objectives *337it is pursuing. See eg., Clark v. Jeter (1988), 486 U.S. 456, 108 S.Ct. 1910, 100 L.Ed.2d 465; see also Lawrence H. Tribe, American Constitutional Law 1888 (2d ed. 1988).
Due Process
The majority follows the lead of Kelley v. Johnson (1976), 425 U.S. 238, 96 S.Ct. 1440, 47 L.Ed.2d 708, and Pence v. Rosenquist (7th Cir.1978) 573 F.2d 395, by assuming, without determining, that students have a constitutionally protected right in their personal appearance. Under this assumption, the majority applies the "rational basis" test, as did the courts in Kelley and Pence, and upholds the trial court's finding that Jimmy failed to demonstrate that the dress code is not rationally related to the school's legitimate interest. I disagree with the majority's characterization of the liberty interest at issue and the constitutional standard employed in the analysis.
The Supreme Court and the Seventh Circuit specifically limited the application of Kelley and Pence to situations in which the government has infringed upon the rights of its employees. This is based upon the fact that government employees voluntarily choose their fields and places of employment, thereby subjecting themselves to greater government regulation.
In Kelley, the Supreme Court upheld a regulation of police officers's hair length as being rationally related to the state's interest in keeping the peace. The Supreme Court found that police officers, upon joining a "para-military" branch of government, lose a "myriad" of personal freedoms in order to fulfill their duty to keep the peace, one of which is the unlimited control of their personal appearance. Kelley, 425 U.S. at 246, 96 S.Ct. at 1445. But, the Kelley majority also noted that the distinction between police officers and common citizens is "highly significant." Id. at 244-45, 96 S.Ct. at 1444-45.
The Pence decision found this distinction critical to its application of the "rational basis" test to a school's regulation of facial hair worn by a school bus driver. "Whatever the liberty interest of the citizenry at large, the [U.S. Supreme] Court deemed 'highly significant' the fact that plaintiff in a case of this sort makes his challenge as a government employee and not as a member of the citizenry at large." Pence, 578 F.2d at 399. By voluntarily subjecting themselves to government employment, they voluntarily subject themselves to greater government regulation.
The case presented by Jimmy Hines falls clearly outside the shadow of Kelley and Pence. Simmy is not an adult who voluntarily chose government employment, but is a child faced with a state restriction on his personal appearance that is compulsorily imposed upon him by way of mandatory school attendance laws. Unlike the government employees in Kelley and Pence, Jimmy brings his challenge as a common citizen whose constitutionally protected liberty interest is being repressed by the laws of the state. Thus, the application of the "rational basis" test in Kelley and Pence does not extend to this matter. To the contrary, Indiana law requires that we review the school's rule under a heightened standard of serutiny.1
Our legislature has limited the rulemaking authority granted to public schools as follows:
Al rules, standards or actions shall be reasonably necessary in carrying out school purposes, and all rules, standards or actions shall be narrowly constructed in order to accomplish their purpose with minimal infringement on constitutionally protected rights.
1.C. 20-8.1-5-8(a) (in part) (emphasis added). Under the language of .C. 20-8.1-5-8(2), the legislature mandates that any rules or standards established by schools must be narrowly tailored and employ means that are least restrictive on the students's rights. This requires that the school's action pass a *338heightened level of scrutiny, if not "strict serutiny." See Bernal, 467 U.S. at 219, 104 8.Ct. at 2315 ("strict serutiny" requires that state action be narrowly tailored and be least restrictive on - constitutionally protected rights). Clearly, the school's rule prohibiting boys from wearing earrings must survive scrutiny more stringent than the majority's minimal "rational basis" test to pass constitutional muster.
The majority disagrees with this interpretation of I.C. 20-8-1.5-8(@), and asserts that such may even be deemed an unconstitutional attempt by our legislature to mandate a more rigorous standard. Op. at 334 n. 5. Clearly, such a conclusion would be erroneous. -It is a basic tenet of constitutional law and our system of federalism that the federal Constitution, as a restraint on government, places minimum safeguards against government intrusion upon citizen's liberty interests. States are free, through their own constitutions and statutes, to place greater restraints on government action than those imposed by the federal Constitution2 As Chief Judge Sharpnack recently noted:
The federal Constitution operates to provide at least a minimal protection to citizens no matter in what state the issues may arise. However, it by no means limits the expansiveness of rights provided to those in a particular state, which may freely provide greater protection of individual liberty than the federal Constitution requires.
Moran v. State (1993), Ind.App., 625 N.E.2d 1231, 1236, vacated, 644 N.E.2d 536, reh'g denied.3 By requiring a heightened level of serutiny, I.C. 20-8.1-5-8(a) provides greater protection than the "rational basis" test espoused in Kelley and Pence. Thus, by enacting 1.C. 20-8.1-5-3, the Indiana legislature afforded Indiana school children greater protection under the Constitution, by placing a stricter constraint on government interference with students's rights.
The distinction between the "rational basis" standard applied by the majority and the heightened standard prescribed by our legislature is pivotal to this issue. The "rational basis" test affords the state the presumption that its action is constitutional. U.S. v. Carolene Products Co. (1938), 304 U.S. 144, 152, 58 S.Ct. 778, 783, 82 L.Ed. 1234. The court will uphold the state action on any rational basis, even one not promulgated by the state. Williamson v. Lee Optical Co. (1955), 348 U.S. 483, 490, 75 S.Ct. 461, 466, 99 L.Ed. 563, reh'g denied, 349 U.S. 925, 75 S.Ct. 657, 99 L.Ed. 1256. The claimant must overcome the presumption of constitutionality by disproving the assumption that the state action is rationally related to the state's interest. Carolene Products, 304 U.S. at 152, 58 S.Ct. at 783. In effect, the "rational basis" test requires the citizen to bear the arduous burden of disqualifying every possible reason the government may have in taking the action.
In applying the deferential "rational basis" test, the majority fails to employ the standard of serutiny mandated by our legislature. Instead, the majority wrongfully grants the school the presumption that its dress code is constitutional, and places on Jimmy the difficult burden of overcoming that presumption. Had the majority applied the proper standard, it would have found that the school has *339failed to produce any substantiated justification for its dress code and has not satisfied its burden.
Under heightened scrutiny, the state does not enjoy a presumption of constitutionality. To the contrary, onee the claimant shows that the right involved requires a heightened level of scrutiny, the state must affirmatively demonstrate a substantial justification for its action. See, eg., Memorial Hosp. v. Maricopa County (1974), 415 U.S. 250, 258, 94 S.Ct. 1076, 1082, 89 L.Ed.2d 306 (state must demonstrate compelling interest and justify a restriction on citizens's rights). I find that the Constitution and Indiana statute mandate "intermediate serutiny," requiring the school to demonstrate that the dress code bears an actual relationship to an important school objective, and that the dress code is narrowly constructed to create a minimal infringement on the constitutional rights of students. I.C. 20-8.1-5-8(a); Tribe, American Constitutional Law 1888 (24 ed. 1988); see also, Wallace v. Ford (E.D.Ark.1972), 346 F.Supp. 156, 162, and Bannister v. Paradis (D.N.H.1970), 316 F.Supp. 185, 189 (holding schools bear the burden of showing an actual relationship between restrictive dress code provisions and school objectives).
The evidence presented by the school fails to satisfy its burden of proof under Indiana's heightened standard. I agree with the majority when it says that the evidence does not support the school's contention that its ban on boys wearing earrings discourages the influx of gangs, drug use and homosexuality into the school, or that it promotes safety concerns. The school has completely failed to demonstrate any correlation between boys wearing earrings and any of these subjects.
The majority finds that prohibiting boys from wearing earrings is rationally related to the school's effort to improve students's attitudes toward school, and that the change in attitudes has led to improvements in attendance, drop-out rates and academic performance. Applying the proper standard of "intermediate serutiny" prescribed by our legislature, I find this argument unpersuasive. First, outside of some conclusory statements made by members of the school board, there is no evidence whatsoever demonstrating that the students have better attitudes and perform better because boys are not permitted to wear earrings (or that students perform worse because boys are permitted to wear earrings)4 There is no actual relationship between the prohibition and the school's objectives.
Second, the school's argument misses the focus of the matter at hand. What is at issue here is whether Jimmy's earring created a disruption within the school that hindered the learning environment, not whether school performance has improved under the dress code.
Personal freedoms are not absolute; they must yield when they intrude upon the freedoms of others. Our task, therefore, is to weigh the competing interests asserted here. In doing so, we proceed from the premise that the school administration carries the burden of establishing the necessity of infringing upon [the student's] freedom in order to carry out the educational mission of the ... school.
Wallace, 346 F.Supp. at 161 (citing Bishop v. Colaw (8th Cir.1971), 450 F.2d 1069). The school may restrict Jimmy's constitutional right only if the school can demonstrate that the exercise of that right interferes with other students's academic endeavors. The school has failed to satisfy this burden.
Further, the school has not demonstrated that its dress code is the least restrictive means of improving the school's performance. The school seeks academic improvement by repressing students's constitutionally protected rights, rather than attempting to achieve its objectives through other activities that bear a positive correlation to student performance. The school has failed to demonstrate the absence of a less restrictive alternative, as required under 1.C. 20-8.1-5-3(a).
*340There is no question that schools may properly place limitations on the attire of students in order to preserve order in the schools and further education. See eg., Bannister, 316 F.Supp. at 189. However, the Constitution stands as a safeguard to protect the rights of all citizens who, like Jimmy Hines, one day find themselves in a political or ideological minority.
The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.
West Virginia Bd. of Educ. v. Barnette (1943), 319 U.S. 624, 638, 63 S.Ct. 1178, 1185-86, 87 L.Ed. 1628. Elected school officials should not be in the business of dictating the standards of the community, and cannot force students to submit to their interpretations of "community standards" without justifying the restraint on students's liberty under the Constitution.5 To protect the constitutional rights of Indiana students, the Indiana legislature requires that the school demonstrate that any rules or standards established by the school bear an actual relationship to the school's objectives and be narrowly constructed to minimally interfere with the constitutional rights of the students.
The record is devoid of any evidence demonstrating an actual relationship between the school's action and its objectives. The school's determination and enforcement of "community standards" is not narrowly constructed to minimally infringe on students's rights. I find the school's prohibition on boys wearing earrings impermissible under the Due Process clause and I.C. 20-8.1-5-8.
Equal Protection
Jimmy Hines also challenges the school's ban on boys wearing earrings under the Equal Protection clause of the Fourteenth Amendment, arguing that the school allows girls to wear earrings while wrongfully prohibiting boys from doing the same. The trial court upheld the dress code against Jimmy Hines's challenge, finding that Jimmy Hines failed to demonstrate that the prohibition is not substantially related to the legitimate interest of creating a positive learning environment.
The Supreme Court has declared that a class based upon gender is a "suspect" class which must survive "intermediate serutiny." Reed v. Reed (1971), 404 U.S. 71, 75-76, 92 S.Ct. 251, 253-54, 30 L.Ed.2d 225; Craig v. Boren (1976), 429 U.S. 190, 197, 97 S.Ct. 451, 457, 50 L.Ed.2d 397, reh'g denied, 429 U.S. 1124, 97 S.Ct. 1161, 51 LEd.2d 574. "To withstand constitutional challenge, ... classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives." Craig, 429 U.S. at 197, 97 S.Ct. at 457.
Jimmy Hines challenges the school's determination that "community standards" permit only girls to wear earrings and the enforcement of that interpretation to prohibit boys from engaging in the identical conduct. The enforcement of the rule is based solely on gender. Therefore, the appropriate standard for weighing the constitutionality of the school's action under the Equal Protection clause is whether the classification serves important school objectives and is substantially related to achievement of those objectives. Craig, 429 U.S. at 197, 97 S.Ct. at 457.
The majority affirms the trial court's determination that Jimmy failed to carry his burden of proof, The court incorrectly places the onus of proof upon the student. Under the standard set forth by the Supreme Court, the burden rests upon the school to show a substantial relationship be*341tween its actions and an important objective. Frontiero v. Richardson (1973), 411 U.S. 677, 689, 93 S.Ct. 1764, 1772, 36 L.Ed.2d 583. Again, the majority wrongfully affords the school the presumption that its action is constitutional. The burden of proof is upon the Caston School Corporation, not Jimmy Hines.
As with Jimmy's challenge under the Due Process clause, an examination of the facts reveals a complete absence of evidence demonstrating a relationship between the ban on boys wearing earrings and an important school objective. Without a substantial correlation between the interest pursued and the means employed, the school cannot justify treating males differently than females under the Equal Protection clause.
In Craig, the Supreme Court reviewed an Oklahoma law that allowed women between the ages of 18 and 21 to purchase 3.2% beer but prohibited men that age from doing the same. The state presented statistical evidence indicating that (1) significantly more males under the age of 21 were arrested for drunk driving or drunkenness, (2) among the youths of that age that were killed or injured in accidents, males outnumbered females, (8) males were more apt to drive and drink beer than women, (4) drunk driving arrests in general had increased, and (5) other states had experienced an increase in accidents in which youths drove after imbibing in alcohol. Id. at 200-01, 97 S.Ct. at 458-59.
Despite the evidence presented, the Court held that allowing women to purchase 3.2% beer while precluding men the same age from doing the same was not substantially related to the achievement of the important state objective in traffic safety. The Court found that the evidence presented by the state failed to demonstrate that being male was a "proxy" for driving drunk. Id. at 201-02, 97 S.Ct. at 459; see also, J.E.B. v. Alabama ex rel. T.B. (1994), -- U.S. --, 114 S.Ct. 1419, 128 L.Ed.2d 89 (gender is not a proxy for a biased juror).
The school has failed to produce any evidence whatsoever demonstrating a causal nexus between boys wearing earrings and a negative learning environment. There is virtually no evidence demonstrating that boys wearing earrings is a proxy for gang activity, drug use or homosexuality in schools. The school has not shown a substantial relationship, or even any relationship at all, between these concerns and boys wearing earrings.
Likewise, the unsubstantiated claims of school officials that boys not wearing earrings is a proxy for creating discipline, instilling pride in the children and making the children better students is unpersuasive. In Craig, the state presented empirical data relating gender to drunk driving, although the correlation was minimal. The Supreme Court held that the state's statistical evidence failed to satisfy its burden of demonstrating a correlation between gender and the interest pursued. The Caston School Corporation has provided even less evidence of a causal nexus between its dress code and scholastic performance, pointing to improvements in student performance that are otherwise unrelated to boys wearing earrings.
I find that the majority and the trial court have wrongfully placed the burden of proof on Jimmy Hines. The school has failed to demonstrate that its ban on boys wearing earrings is substantially related to providing an environment conducive to learning and is an impermissible gender-based classification under the Equal Protection clause.
CONCLUSION
I would reverse the decision of the trial court because the trial court applied the wrong constitutional standard and incorrectly placed the burden of proof on the student under the Fourteenth Amendment and Indiana statute. The school has failed to demonstrate that the infringement upon Jimmy Hines's liberty interest in his personal appearance is substantially related to, or the least restrictive means to create, an environment conducive to learning. In that it prohibits boys from wearing earrings in school, the dress code violates the Due Process clause and the Equal Protection clause of the Fourteenth Amendment.
I respectfully DISSENT.
. There is considerable disagreement among the jurisdictions as to what constitutional standard is to be applied to school regulation of students's appearance. See Tribe, American Constitutional Law 1388 n. 32 (2d ed. 1988). However, the Indiana legislature has put this dispute to rest by setting forth the standard of scrutiny we are to apply in all constitutional challenges to rules and standards promulgated by Indiana public schools. Ind.Code 20-8.1-5-3(a).
. This power is not limited to state legislatures. A recent example of the federal legislature exercising its power to establish greater protections than the minimum safeguards afforded by the federal Constitution is the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb, et seg. In Employment Division v. Smith (1990), 494 U.S. 872, 110 S.Ct. 1595, 108 LEd.2d 876, reh'g denied, the Supreme Court applied the "rational basis" test in upholding a state action that substantially burdened the free exercise of religion. Congress subsequently enacted the Religious Freedom Restoration Act, which requires judicial review of such action under the "strict scrutiny" standard, and affords citizens greater protections than the minimum constitutional safeguards. See Campos v. Coughlin (S.D.N.Y.1994), 854 F.Supp. 194; Lawson v. Dugger (S.D.Fla.1994), 844 F.Supp. 1538.
. In Moran, we faced the question of whether a warrantless search of a garbage container was lawful under the Indiana Constitution, even though the United States Supreme Court has determined that such was not lawful under the federal Constitution. While our Supreme Court disagreed with our conclusion that Indiana law affords citizens greater protection than the federal Constitution in that matter, the principle that a state may provide its citizens greater protection than that required by the federal Constitution remains a pillar of federalism.
. In Bannister, school board members offered justifications for its restrictive dress code that are similar to those promulgated by the school board members in this case. Finding the arguments unpersuasive, the court held that membership on a school board alone does not qualify one as an expert in education and teaching methods. 316 F.Supp. at 188.
. The majority asserts that, under this proposed analysis, the court would improperly become the "arbiters of fashion in the public schools." Op. at 335 n. 7. I find this averment disingenuous. To the contrary, it is the majority that casts the court as arbiters of fashion by cloaking a seemingly arbitrary dress code with judicial approval without requiring the school to demonstrate any justification under the Constitution.