Indiana High School Athletic Ass'n v. Carlberg

*835BAKER, Judge,

concurring.

While I concur in the result reached by the majority, I write because I am reluctant to join in the majority’s criticism of our Supreme Court’s decision in Sturrup v. Mahan, 261 Ind. 463, 305 N.E.2d 877 (1974). In Sturrup, the Court determined that although the reasons behind the IHSAA rules regarding transferee eligibility were valid, those rules became unreasonably over-broad when applied to a student transferring schools for reasons unrelated to athletics.

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 rales as presently constituted penalize a student-athlete who wishes to transfer for academic or religious reasons or for any number of other legitimate reasons.

Sturrup, 261 Ind. at 469, 305 N.E.2d at 881. Many decisions both in and outside of Indiana have criticized Sturrup ⅛ use of an overbreadth analysis in determining an equal protection issue. See IHSAA v. Schafer, 598 N.E.2d 540, 553 (Ind.Ct.App.1992) (federal decisions hold that under traditional equal protection scrutiny a rule may not be invalidated due to overbreadth). Nevertheless, even applying the analysis suggested by these decisions, I believe the IHSAA rule to be a violation of the guarantee of equal protection.

Generally, courts considering equal protection challenges to statutes or regulations employ a “rational basis” test. With this test, legislation is presumed to be valid, and will be sustained as long as the classification drawn by the statute is rationally related to a legitimate state interest. Schafer, 598 N.E.2d at 551. The goal, or legitimate state interest, of IHSAA’s transferee eligibility rule is to “preserve the integrity of interscholastic athletics by minimizing recruitment, proselyting, and school ‘jumping’ for athletic reasons.” Sturrup, 261 Ind. at 468, 305 N.E.2d at 881. The classification with which this action is concerned is set forth by IHSAA rule 19-6, which provides that students who transfer without a corresponding change of residence by the students’ parents may be declared to have limited eligibility, in the absence of specific circumstances such as destruction of the former school. See IHSAA Rule 19-6.1. I do not believe that this broad classification: students who change schools without a change in residence by their parents, is rationally related to the rule’s purpose. While the rule will possibly have the inadvertent effect of discouraging athletically-motivated transfers, the rale is more likely to have a detrimental effect on legitimate transfers. A better classification would require students and parents to demonstrate the motives behind the student’s transfer, and in the absence of a legitimate explanation, would then apply the presumption that the transfer was motivated by athletics.

Additionally, I believe, for reasons eloquently set forth in Anderson v. Indiana High School Athletic Association, 699 F.Supp. 719 (S.D.Ind.1988), that the trial court correctly found that IHSAA’s actions under the present circumstances were arbitrary and capricious. Although this court is generally not permitted to interfere in the internal affairs of voluntary associations, we can intervene when an association violates a member’s property or civil rights or exercises its powers to make and enforce rules in an unlawful, arbitrary or malicious manner. United States Auto Club, Inc. v. Woodward, 460 N.E.2d 1255, 1260-61 (Ind.Ct.App.1984). The transferee eligibility rules, although intended to deter transfers for athletic reasons or for undue influence, operate to discourage and prohibit transfers for non-athletic, legitimate reasons, such as religious, financial, academic or social reasons.

It is obvious that Ms. Anderson is transferring for reasons other than athletics and that no undue influence existed resulting in the transfer. Ms. Anderson quite simply only wants to attend a larger school which has more social and extracurricular oppor-tunities_ Ms. Anderson, in reviewing the Appellate Rules of the IHSAA, immediately sees, as does this Court, that a student who transfers legitimately for reasons such as Ms. Anderson will be absorbed into a rule not ever meant to affect *836her. Consequently, she and others like her will be a victim of an over-broad, over-inclusive rule.... It is apparent that the application of the rule’s ineligibility to bar Ms. Anderson and other transfer students similarly situated, is unreasonable....

Anderson, 699 F.Supp. at 730. Similarly, in the present situation, the IHSAA made a determination that Carlberg’s transfer was not motivated by athletics, yet, in the interests of discouraging other students from transferring for athletic reasons, the IHSAA chose to limit Carlberg’s athletic eligibility. This action is the result of an over-broad, over-reaching rule, which as I stated above, is not rationally related to its purpose. As a result, I believe the trial court correctly determined that the IHSAA’s actions in enforcing the rule were arbitrary and capricious.

In conclusion, I join Chief Judge Brooks in his comments regarding the IHSAA transferee eligibility rule:

The rule lacks provision for the application of common sense and reasonableness. Its rigid enforcement fails to cure or address the abuse for which it was intended. Puré and simple, it’s an overkill, which the Court hopes is rectified in the immediate future.

Anderson, 699 F.Supp. at 731.