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.” Op. at 229. 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 Seevs., 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.
*244In 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 cheek 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 associa*245tion 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, op. at 233 (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 *246matter 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 *247normally 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 Indiána 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.” Op. at 241 (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 “[bjecause 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.
. Many of the facts are established in the factual findings of the trial court, which are accorded deference by this Court, Indiana Trial Rule 52(A), and are unchallenged in this appeal.
. That the school permitted Jason to participate at the varsity level is not surprising — the trial court ordered that Jason “shall be allowed to participate on the varsity swimming team,” Record at 19, and enjoined the IHSAA from imposing on the high school any “penalty or adverse action.” Record at 20. School reliance on a court order in allowing an athlete to play was a major factor in the Court of Appeals opinion which held the Restitution Rule manifestly unreasonable. Indiana High Sch. Athletic Ass'n, Inc. v. Avant, 650 N.E.2d 1164, 1171 (Ind.Ct. App.1995).
. "Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” An Ordinance for the government of the United States northwest of the river Ohio, July 13, 1787, art. 3, reprinted in 1 Constitution Making of Indiana 1780-1850, § 10, at 31-32 (Charles Kettleborough, 1971).
. "Knowledge and learning, generally diffused through a community, being essential to the preservation of a free government, and spreading the opportunities and advantages of education through the various parts of the country being highly conducive to this end, ... The general assembly shall, from time to time, pass such laws as shall be calculated to encourage intellectual ... improvement, by allowing ... for the promotion and improvement of arts, sciences ... and to countenance and encourage the principles of humanity, industry and morality.” Ind.Const. of 1816 art. 9, § 1.
“It shall be the duty of the general assembly, as soon as circumstances will permit, to provide, by law, for a general system of education ... wherein tuition shall be gratis, and equally open to all.” Ind Const, of 1816 art. 9, § 2.