United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued En Banc January 27, 1999
Decided June 18, 1999
No. 96-7239
Tiana Hutchins, et al.,
Appellees
v.
District of Columbia,
Appellant
Appeal from the United States District Court
for the District of Columbia
(95cv02050)
Steven J. Rosenbaum argued the cause for appellant.
With him on the briefs were John M. Ferren, Corporation
Counsel, Charles L. Reischel, Deputy Corporation Counsel,
and Jason A. Levine. Charles F. Ruff, White House Counsel,
entered an appearance.
Mark E. Nagle, Assistant United States Attorney, argued
the cause as amicus curiae for appellant. With him on the
brief were Wilma A. Lewis, United States Attorney, R. Craig
Lawrence and Kimberly N. Brown, Assistant United States
Attorneys.
Robert S. Plotkin argued the cause for appellees. With
him on the brief was Arthur B. Spitzer.
Michael P. Farris was on the brief for amicus curiae
Home School Legal Defense Association.
Before: Edwards, Chief Judge, Wald, Silberman, Williams,
Ginsburg, Sentelle, Henderson, Randolph, Rogers, Tatel, and
Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Silberman.
Circuit Judges Wald, Ginsburg, Henderson, and Garland
join in Parts I, III, & IV.
Opinion concurring in part and concurring in the result
filed by Chief Judge Edwards, with whom Circuit Judges
Wald and Garland join in Part II.
Opinion concurring in part and concurring in the result
filed by Circuit Judges Wald and Garland.
Opinion concurring in part and dissenting in part filed by
Circuit Judge Rogers, with whom Circuit Judge Tatel joins,
and Circuit Judge Wald joins in Parts II and III, and Circuit
Judge Garland joins in Part III.
Dissenting opinion filed by Circuit Judge Tatel.
Silberman, Circuit Judge: The District of Columbia ap-
peals the district court's grant of summary judgment to
plaintiffs/appellees, a group of minors, parents, and a private
business, enjoining enforcement of the District's Juvenile
Curfew, and holding that it violates the fundamental rights of
minors and their parents and is unconstitutionally vague. A
divided panel of our circuit affirmed the district court, and
rehearing en banc was granted. A plurality believes that the
curfew implicates no fundamental rights of minors or their
parents. Even assuming the curfew does implicate such
rights, we hold that it survives heightened scrutiny. And, it
does not violate the First or Fourth Amendment rights of
minors.
I.
The District of Columbia Council, determining that juvenile
crime and victimization in the District was a serious prob-
lem--and growing worse--unanimously adopted the Juvenile
Curfew Act of 1995, which bars juveniles 16 and under from
being in a public place unaccompanied by a parent or without
equivalent adult supervision from 11:00 p.m. on Sunday
through Thursday to 6:00 a.m. on the following day and from
midnight to 6:00 a.m. on Saturday and Sunday, subject to
certain enumerated defenses. See D.C. Code Ann. ss 6-2182,
6-2183 (1996). The curfew provides that a minor (defined as
"any person under the age of 17 years," but not "a judicially
emancipated minor or a married minor") cannot remain in a
public place or on the premises of any establishment within
the District of Columbia during curfew hours. A parent or
guardian commits an offense by knowingly permitting, or
through insufficient control allowing, the minor to violate the
curfew. Owners, operators, or employees of public establish-
ments also violate the curfew by knowingly allowing the
minor to remain on the premises, unless the minor has
refused to leave and the owner or operator has so notified the
police. The curfew contains eight "defenses": it is not violat-
ed if the minor is (1) accompanied by the minor's parent or
guardian or any other person 21 years or older authorized by
a parent to be a caretaker for the minor; (2) on an errand at
the direction of the minor's parent, guardian, or caretaker,
without any detour or stop; (3) in a vehicle involved in
interstate travel; (4) engaged in certain employment activity,
or going to or from employment, without any detour or stop;
(5) involved in an emergency; (6) on the sidewalk that abuts
the minor's or the next-door neighbor's residence, if the
neighbor has not complained to the police; (7) in attendance
at an official school, religious, or other recreational activity
sponsored by the District of Columbia, a civic organization, or
another similar entity that takes responsibility for the minor,
or going to or from, without any detour or stop, such an
activity supervised by adults; or (8) exercising First Amend-
ment rights, including free exercise of religion, freedom of
speech, and the right of assembly. If, after questioning an
apparent offender to determine his age and reason for being
in a public place, a police officer reasonably believes that an
offense has occurred under the curfew law and that no
defense exists, the minor will be detained by the police and
then released into the custody of the minor's parent, guard-
ian, or an adult acting in loco parentis. If no one claims
responsibility for the minor, the minor may be taken either to
his residence or placed into the custody of the Family Ser-
vices Administration until 6:00 a.m. the following morning.
Minors found in violation of the curfew may be ordered to
perform up to 25 hours of community service for each viola-
tion, while parents violating the curfew may be fined up to
$500 or required to perform community service, and may be
required to attend parenting classes.
Appellees sued the District of Columbia seeking an injunc-
tion against enforcement of the curfew and a declaration that
the curfew violates the minors' Fifth Amendment Due Pro-
cess and Equal Protection rights to freedom of movement;
violates the parents' Fifth Amendment due process rights to
raise their children; violates the minors' First Amendment
rights to freedom of expression and assembly; violates the
minors' Fourth Amendment right to be free from unreason-
able searches and seizures; and is unconstitutionally vague.
The district court granted summary judgment to appellees
and enjoined enforcement of the curfew. Hutchins v. Dis-
trict of Columbia, 942 F. Supp. 665, 668 (D.D.C. 1996). The
court concluded that "it is a well-settled legal principle that
the right to free movement is a fundamental right generally,"
and although the "[s]tate has a great interest in regulating
the activities of, and providing protection for, minors," this
"interest does not automatically dilute the constitutional
rights of [ ] minors." Id. at 671. Thus, minors who are not in
the custody of the state have a fundamental right to free
movement. Since the curfew intrudes on minors' right to
free movement, as well as on the parents' fundamental rights
to direct their children's upbringing, it must be subjected to
strict scrutiny. Accordingly, the law must be narrowly tai-
lored to promote the District's asserted compelling interests
in protecting the welfare of minors by reducing the likelihood
that minors will perpetrate or become victims of crime, and
by promoting parental responsibility by assisting parents in
exercising reasonable supervision of minors entrusted to their
care. The district court found that the statistical data pro-
duced by the District did not meet that test. The court also
thought that four of the curfew's defenses--the First Amend-
ment defense, the emergency defense, the responsible entity
defense, and the sidewalk defense--were "woefully vague"
and did not withstand constitutional scrutiny. Appellees'
First and Fourth Amendment claims were not reached.
II.
A.
Appellees contend (and the district court determined) that
the curfew infringes on a substantive fundamental right--the
right to free movement--and as a substantive right it cannot
be taken away merely through "due process."1 Of course a
__________
1 Appellees argued below that the curfew violated both substan-
tive due process and equal protection rights. The equal protection
claim is based on the premise that the District's curfew law failed to
accord the same "equal protection of the laws" to minors as to those
17 and over. Although appellees do not and cannot claim that age
is a suspect class, see, e.g., Gregory v. Ashcroft, 501 U.S. 452, 470
(1991), they contend that the curfew violates equal protection
because the classification between these two age groups burdens
the juveniles' fundamental rights--it serves to deprive only those
under 17 of their fundamental right to "free movement." See
Hutchins, 942 F. Supp. at 670; see also Skinner v. State of
Oklahoma ex rel. Williamson, 316 U.S. 535, 541-42 (1942) (holding
that a law requiring the sterilization of certain criminals violated
equal protection because marriage and procreation are fundamental
rights, and by ordering the sterilization of some criminals but not
others, the state "has made as an invidious a discrimination as if it
had selected a particular race or nationality for oppressive treat-
right to free movement is a synonym for the right to liberty;
when one is put in jail it is obvious that one's right to free
movement has been curtailed, but that is constitutionally
permissible if the person whose liberty has been curtailed is
afforded due process. But any government impingement on
a substantive fundamental right to free movement would be
measured under a strict scrutiny standard and would be
justified only if the infringement is narrowly tailored to serve
a compelling state interest. See Reno v. Flores, 507 U.S. 292,
301-02 (1993) (citing Collins v. Harker Heights, 503 U.S. 115,
125 (1992)). But does such a substantive right exist?
Although appellees cite numerous cases in support of the
proposition that "the right to free movement is as old as the
Republic," the cases do not support such a sweeping asser-
tion. It is true that the right to interstate travel is well-
established. See Saenz v. Roe, 1999 WL 303743 (May 17,
1999); Shapiro v. Thompson, 394 U.S. 618, 629-31 (1969).
Although the precise source of this right remains somewhat
obscure, see Shapiro, 394 U.S. at 629 n.8, its origins reflect a
concern over state discrimination against outsiders rather
than concerns over the general ability to move about. See
Saenz v. Roe, 1999 WL 303743 (grounding at least one
component of the right to interstate travel in the Privileges
and Immunities Clause of the Fourteenth Amendment);
United States v. Guest, 383 U.S. 745, 758 (1966) (describing
the right to interstate travel as originating in the Articles of
Confederation and as being a "necessary concomitant of the
stronger Union the Constitution created"); Zobel v. Williams,
457 U.S. 55, 79-81 (1982) (O'Connor, J., concurring in the
judgment) (describing the right as originating in the Privi-
leges and Immunities Clause of Art. IV); Edwards v. Califor-
nia, 314 U.S. 160, 173-74 (1941) (describing the right as being
grounded in the Commerce Clause); Zobel, 457 U.S. at 60 n.6
__________
ment"). On rehearing en banc, we take appellees to have renewed
their Fifth Amendment substantive due process as well as their
Fifth Amendment equal protection claims. Appellees have couched
their claim in terms of the threshold question that must be ad-
dressed in both the substantive due process and equal protection
inquiries--is there a fundamental right at issue?
(describing the right to travel cases as a particular application
of equal protection analysis); Shapiro, 394 U.S. at 630 (de-
scribing the right as deriving from general principles of
federalism, since the right to travel from state to state
" 'occupies a position fundamental to the concept of our
Federal Union' " (quoting Guest, 383 U.S. at 757-58)).
The Court has suggested on occasion that some more
generalized right to movement may exist. See, e.g., Kent v.
Dulles, 357 U.S. 116, 126 (1958) ("Freedom of movement is
basic in our scheme of values."); Guest, 383 U.S. at 758
(proclaiming that citizens of the United States "must have the
right to pass and repass through every part of [the country]
without interruption, as freely as in [their] own states" (quot-
ing Crandall v. Nevada, 73 U.S. (6 Wall.) 35, 49 (1867)
(quoting The Passenger Cases, 48 U.S. (7 How.) 283, 492
(1849) (Taney, C.J., dissenting)))); Williams v. Fears, 179
U.S. 270, 273 (1900) (indicating that the "right of locomotion,"
like the "right to contract," is protected by substantive due
process). But those comments are only dicta--the cases
involved travel across borders, not mere "locomotion."2 In-
deed, the Supreme Court in Memorial Hospital v. Maricopa
County, 415 U.S. 250, 255 (1974), cast strong doubt on the
idea that there was a fundamental right to free movement,
noting that "[e]ven a bona fide residence requirement would
burden the right to travel if travel meant merely movement."
In any event, the Court subsequently made clear that any
right to travel involved in Kent and Aptheker was distinct
from the recognized right to interstate travel, explaining that
international travel is no more than an aspect of liberty that
is subject to reasonable government regulation within the
bounds of due process, whereas interstate travel is a funda-
mental right subject to a more exacting standard. See Haig
v. Agee, 453 U.S. 280, 306-07 (1981) (upholding constitutionali-
ty of regulation authorizing the revocation of passport on the
ground that the regulation authorized revocation only where
the holder's activities in foreign countries are causing or are
__________
2 Kent and Aptheker v. Secretary of State, 378 U.S. 500 (1964),
could even be viewed primarily as First Amendment cases.
likely to cause serious damage to national security). Since
the right to free movement would cover both interstate and
international travel, Agee at least implies that the right
recognized by the Court is decidedly more narrow.
Nor do the vagrancy cases relied on by appellees support
their claim. While Justice Douglas noted in Papachristou v.
City of Jacksonville, 405 U.S. 156 (1972), that "wandering or
strolling" from place to place was historically part of the
"amenities of life," id. at 164, the Court actually held only
that the vagrancy law at issue was void for vagueness, see id.
at 165-71; see also Kolender v. Lawson, 461 U.S. 352, 357-62
(1983). While vagrancy statutes certainly prohibit individuals
from moving about, the constitutional infirmity in these stat-
utes is not that they infringe on a fundamental right to free
movement, but that they fail to give fair notice of conduct
that is forbidden and pose a danger of arbitrary enforcement.
In other words, they do not afford procedural due process.
The Supreme Court in Maricopa County specifically de-
clined to decide whether the right to interstate travel recog-
nized in Shapiro has its analogue in intrastate travel. The
circuits are split on this question. Compare King v. New
Rochelle Mun. Hous. Auth., 442 F.2d 646, 647-48 (2d Cir.
1971) (holding that a municipal resolution imposing a five-
year residency requirement for admission to public housing
burdened fundamental right to intrastate travel and stating
that it would be "meaningless to distinguish between inter-
state and intrastate" travel) with Wardwell v. Board of Educ.
of Cincinnati, 529 F.2d 625, 627-28 (6th Cir. 1976) (rejecting
a fundamental right to intrastate as opposed to interstate
travel) and Wright v. City of Jackson, 506 F.2d 900, 902-03
(5th Cir. 1975) (same). More pertinent to the case at hand,
one circuit has recognized that traffic restrictions (although
they have been easily sustained) at least implicate a substan-
tive right of free movement. See Lutz v. City of York, 899
F.2d 255, 268 (3d Cir. 1990) (holding that ordinance outlawing
"cruising," which consisted of driving repeatedly around loop
of public roads, implicated substantive due process right to
"move freely about one's neighborhood or town," but uphold-
ing ordinance under intermediate scrutiny test derived from
First Amendment time, place, and manner doctrine); see also
Townes v. City of St. Louis, 949 F. Supp. 731 (E.D. Mo. 1996)
(assuming heightened scrutiny applied when resident claimed
that city's placement of large flower pots across the entrance
to her block infringed her fundamental right to localized
travel but holding the ordinance would survive intermediate
scrutiny), aff'd, 112 F.3d 514 (8th Cir. 1997). Appellees argue
that restrictions of that kind, even ordinary traffic lights,
impinge on this substantive free movement right. We are
rather doubtful that substantive due process, those constitu-
tional rights that stem from basic notions of ordered liberty
"deeply rooted in [our] history and tradition," Washington v.
Glucksberg, 117 S. Ct. 2258, 2268 (1997) (quoting Moore v.
City of East Cleveland, 431 U.S. 494, 503 (1977)), can be so
lightly extended. On the other hand, we recognize that a
hypothetical municipal restriction on the movement of its
citizens, for example, a draconian curfew, might bring into
play the concept of substantive due process.
Be that as it may, there is an important caveat to bear in
mind when considering potential extensions of substantive
due process, which "has at times been a treacherous field,"
Michael H. v. Gerald D., 491 U.S. 110, 122 (1988) (plurality)
(quoting Moore, 431 U.S. at 502). The Supreme Court has
warned us that our analysis must begin with a careful de-
scription of the asserted right for the more general is the
right's description, i.e., the free movement of people, the
easier is the extension of substantive due process. See Reno
v. Flores, 507 U.S. at 302; see also Michael H., 491 U.S. at
127 n.6 (proper level of generality at which to describe the
right is "the most specific level at which a relevant tradition
protecting, or denying protection to, the asserted right can be
identified") (opinion of Scalia, J., joined by Rehnquist, C.J.).
And the "doctrine of judicial self-restraint requires us to
exercise the utmost care whenever we are asked to break new
ground in this field." Reno v. Flores, 507 U.S. at 302
(quoting Collins v. Harker Heights, 503 U.S. 115, 125 (1992)).
For that reason we must ask not whether Americans enjoy a
general right of free movement, but rather whatever are the
scope and dimensions of such a right (if it exists), do minors
have such a substantive right? Do they have the right to
freely wander the streets--even at night? See id. (defining
the asserted right, not as freedom from physical restraint, but
as "the alleged right of a child who has no available parent,
close relative, or legal guardian, and for whom the govern-
ment is responsible, to be placed in the custody of a willing
and able private custodian rather than a government-
operated or government-selected child care institution").
We think that juveniles do not have a fundamental right to
be on the streets at night without adult supervision. The
Supreme Court has already rejected the idea that juveniles
have a right to "come and go at will" because "juveniles,
unlike adults, are always in some form of custody," id.
(quoting Schall v. Martin, 467 U.S. 253, 265 (1984)), and we
see no reason why the asserted right here would fare any
better. That the rights of juveniles are not necessarily
coextensive with those of adults is undisputed, and "uneman-
cipated minors lack some of the most fundamental rights of
self-determination--including even the right of liberty in its
narrow sense, i.e., the right to come and go at will." Verno-
nia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995). While
appellees claim that this reasoning obscures the difference
between parental custody and governmental custody, appel-
lees necessarily concede that juveniles are always in some
form of custody. Not only is it anomalous to say that
juveniles have a right to be unsupervised when they are
always in some form of custody, but the recognition of such a
right would fly in the face of the state's well-established
powers of parens patriae in preserving and promoting the
welfare of children. The state's authority over children's
activities is unquestionably broader than that over like actions
of adults. See Prince v. Massachusetts, 321 U.S. 158, 169
(1944) (observing that the state's power to prohibit street
preaching by "children not accompanied by an older person
hardly seems open to question"). And it would be inconsis-
tent to find a fundamental right here, when the Court has
concluded that the state may intrude upon the "freedom" of
juveniles in a variety of similar circumstances without impli-
cating fundamental rights, see id., 321 U.S. at 166-67, 168-69
(citing compulsory school attendance and child labor laws),
and can do so in far more intrusive ways than is contemplated
here, see, e.g., Flores, 507 U.S. at 301-03 (upholding on
rational basis review detention of deportable juveniles for
release generally only to their parents, close relatives, or
legal guardians); Schall, 467 U.S. at 263-64 (upholding pre-
trial detention of juvenile delinquents after a finding of
"serious risk" on the ground that it served a legitimate, non-
punitive regulatory purpose); Prince, 321 U.S. at 169-70
(upholding law prohibiting children from selling magazines on
the street, even when accompanied by parent or guardian,
against claim that the law violated child's freedom of religion);
Ginsberg v. New York, 390 U.S. 629, 637-643 (1968) (uphold-
ing on rational basis review a ban on sale of material to
minors that would not be considered "obscene" for adults).
Neither does the asserted right here have deep roots in our
"history and tradition." As the District noted, juvenile cur-
fews were not uncommon early in our history, see Note,
Curfew Ordinances and the Control of Nocturnal Juvenile
Crime, 107 U. Pa. L. Rev. 66, 66-69 n.5 (1958), nor are they
uncommon now, see Debra Livingston, Police Discretion and
the Quality of Life in Public Places: Courts, Communities,
and the New Policing, 97 Colum. L. Rev. 551, 555 & n.11
(1997) (discussing research demonstrating that the use of
curfews to control delinquency and reduce juvenile victimiza-
tion is the norm in major American cities) (citing William
Ruefle & Kenneth M. Reynolds, Curfews and Delinquency in
Major American Cities, 41 Crime & Delinq. 347, 353 (1995)).
That juvenile curfews are common is, of course, not conclusive
in determining whether they comport with due process, but
the historical prevalence of such laws is "plainly worth consid-
ering" in determining whether the practice " 'offends some
principle of justice so deeply rooted in the traditions and
conscience of our people as to be ranked as fundamental.' "
Schall, 467 U.S. at 268 (quoting Snyder v. Massachusetts, 291
U.S. 97, 105 (1934)). In sum, neither history nor precedent
supports the existence of a fundamental right for juveniles to
be in a public place without adult supervision during curfew
hours, and we decline to recognize one here.3
B.
Even if juveniles themselves lack a fundamental right of
movement, appellees claim that parents have a fundamental,
substantive due process right to direct and control their
children's upbringing and that such a right is abridged by the
curfew. Whether children under the age of 17 are to be free
to be abroad at night is presumptively a matter for their
parents to determine, as part and parcel of that upbringing.
(Appellees suggest that this concept extends to permitting a
child of any age--even four--to be on the street in the middle
of the night.) This parental fundamental right alone, it is
argued, obliges us to judge the D.C. curfew by heightened
scrutiny. We disagree, not because we think that no such
fundamental right exists in any dimension, but rather because
we think it not implicated by the curfew.
In the early twenties, the Supreme Court held unconstitu-
tional a state statute that prohibited the teaching of subjects
in foreign languages and the teaching of foreign languages to
children before the eighth grade (even in a private school),
see Meyer v. Nebraska, 262 U.S. 390 (1923), and a statute that
required children 8 to 16 to attend a public school, see Pierce
v. Society of Sisters, 268 U.S. 510 (1925). Although these
cases could be thought to rest on the Court's perception that
the statutes had an irrational basis, see Meyer, 262 U.S. at
628 (concluding that the statute as applied was "arbitrary and
without reasonable relation to any end within the competency
of the state"), in Pierce the Court did observe that "[t]he child
is not the mere creature of the state; those who nurture him
__________
3 Appellees suggest in a footnote, without explanation, that the
curfew may not even survive a rational basis review of their equal
protection claim. We need not consider cursory arguments made
only in a footnote and therefore do not address whether the
classification between those 17 and over and those under 17 is
rational. See, e.g., Washington Legal Clinic for the Homeless v.
Barry, 107 F.3d 32, 39 (D.C. Cir. 1997).
and direct his destiny have the right, coupled with the high
duty, to recognize and prepare him for additional obligations,"
id. at 533. And by 1944 in Prince, the Court said that "[i]t is
cardinal with us that the custody, care and nurture of the
child reside first in the parents, whose primary function and
freedom include preparation for obligations the state can
neither supply nor hinder." Prince, 321 U.S. at 166 (citing
Pierce and Meyer) (emphasis added). Although the Court in
Prince held that the state could ban children from selling
magazines on the street, even when accompanied by a parent
and despite the religious nature of the publications, it did so
after balancing the state's interest against the parents' rights.
See id. at 165-70. That approach might suggest a more
searching inquiry than rational basis review. (This was long
prior to the doctrinal development of the formal tests that are
now part of modern substantive due process, and, therefore,
the Court did not speak in terms of strict scrutiny or rational
basis.) But the Court emphasized that the state's interest in
guarding the welfare of children--even against the wishes of
a parent--was particularly powerful to ward off the "evils ...
[of] public places" and the "possible harms arising from other
activities subject to all the diverse influences of the street."
Id. at 168. By so reasoning, the Court distinguished between
the "private realm of family life," id. at 166, and those
activities subject to the evils of public places, applying some-
thing very close to rational basis review for laws restricting
the latter. See also Wisconsin v. Yoder, 406 U.S. 205, 215,
231 (1972) (high school attendance law unconstitutionally in-
fringed on parents' rights to direct the religious upbringing
and education of their children; only those interests of the
"highest order" can overcome those parental rights).
We glean from these cases, then, that insofar as a parent
can be thought to have a fundamental right, as against the
state, in the upbringing of his or her children, that right is
focused on the parents' control of the home and the parents'
interest in controlling, if he or she wishes, the formal edu-
cation of children. It does not extend to a parent's right to
unilaterally determine when and if children will be on the
streets--certainly at night. That is not among the "intimate
family decisions" encompassed by such a right. Schleifer v.
City of Charlottesville, 159 F.3d 843, 853 (4th Cir. 1998), cert.
denied, 119 S. Ct. 1252 (1999).
III.
A.
Even if the curfew implicated fundamental rights of chil-
dren or their parents, it would survive heightened scrutiny.
Assuming such rights are implicated, we must first decide
whether, as the district court held, strict scrutiny applies or
whether, as Judge Rogers concluded, see Hutchins v. District
of Columbia, 144 F.3d 798, 809 (D.C. Cir. 1998), vacated and
reh'g en banc granted, 156 F.3d 1267 (D.C. Cir. 1998), inter-
mediate scrutiny is called for. We think the latter. Consid-
ering children's rights first, we agree that constitutional
rights do not instantaneously appear only when juveniles
reach the age of majority. See Planned Parenthood v.
Danforth, 428 U.S. 52, 74 (1976). Still, children's rights are
not coextensive with those of adults. See Prince, 321 U.S. at
169; see also Bellotti v. Baird, 443 U.S. 622, 633-39 (1979)
(plurality opinion). So "although children generally are pro-
tected by the same constitutional guarantees ... as are
adults, the State is entitled to adjust its legal system to
account for children's vulnerability" by exercising broader
authority over their activities. Bellotti, 443 U.S. at 635. This
means, at minimum, that a lesser degree of scrutiny is
appropriate when evaluating restrictions on minors' activities
where their unique vulnerability, immaturity, and need for
parental guidance warrant increased state oversight. See
Carey v. Population Servs. Int'l, 431 U.S. 678, 693 n.15 (1977)
(plurality opinion); Bellotti, 443 U.S. at 634. The reasoning
of Bellotti, Prince, and Carey necessarily suggests that some-
thing less than strict scrutiny--intermediate scrutiny--would
be appropriate here. Not only can juveniles be thought to be
more vulnerable to harm during curfew hours than adults, but
they are less able to make mature decisions in the face of
peer pressure, and are more in need of parental supervision
during curfew hours. See Schleifer, 159 F.3d at 847 (applying
intermediate scrutiny, reasoning that the "qualified rights" of
juveniles should be subject to something more than rational
basis and something less than strict scrutiny review). Com-
pare Nunez v. City of San Diego, 114 F.3d 935, 946 (9th Cir.
1997) (rejecting lesser degree of scrutiny for equal protection
challenge to juvenile curfew but noting that strict scrutiny in
the context of minors "may allow greater burdens on minors
than would be permissible on adults").
To withstand intermediate scrutiny, the curfew must be
"substantially related" (rather than narrowly tailored) to the
achievement of "important" (rather than compelling) govern-
ment interests.4 See Craig v. Boren, 429 U.S. 190, 197 (1976);
see also Mississippi Univ. for Women v. Hogan, 458 U.S.
718, 724 (1982). The asserted government interest here is to
protect the welfare of minors by reducing the likelihood that
minors will perpetrate or become victims of crime and by
promoting parental responsibility. The District presented
reams of evidence depicting the devastating impact of juvenile
crime and victimization in the District--the juvenile violent
crime arrest rate for juveniles ages 10 to 17 was higher than
that in any state and was more than three times the national
average, see Kids Count Data Book: State Profiles of Child
Well-Being (Annie E. Casey Foundation, Baltimore, Md.)
1995, the District had the highest violent death rate for teens
ages 15 to 19, which was four times the national average, and
the District was ranked dead last, almost three times worse
than the worst state, in children's overall well-being. See id.
This was the abysmal situation confronting the District when
it voted to adopt the curfew law. Statistics showed the
situation worsening. See Office of Corporation Counsel
Juvenile Section Statistical Report By Priority Charge,
Fiscal Years 1987-1995 (showing dramatic increase in juve-
nile arrests for, inter alia, aggravated assault, murder, and
carrying a dangerous weapon). Given this picture of juvenile
__________
4 Although appellees challenge the curfew as a violation of
juveniles' substantive due process and equal protection rights, they
do not claim that the standard of review (i.e., heightened scrutiny)
should be applied any differently for one or the other.
crime and victimization, there can be no serious dispute that
protecting the welfare of minors by reducing juvenile crime
and victimization is an important government interest. See
Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 669
(1994) (government must demonstrate that its asserted inter-
ests are real and not merely conjectural).
Whether the curfew is "substantially related" to the
achievement of that interest is the more difficult question
here. Neither the Supreme Court nor the lower federal
courts has expounded upon--explained in doctrinal terms--
the phrase "substantial relationship." That test obviously
calls for a more searching inquiry than rational basis (the
minimum standard for judging equal protection claims), yet a
more deferential one than strict scrutiny's narrow tailoring
component. In judging the closeness of the relationship
between the means chosen (the curfew), and the govern-
ment's interest, we see three interrelated concepts: the factu-
al premises upon which the legislature based its decision, the
logical connection the remedy has to those premises, and the
scope of the remedy employed.
The plaintiffs in this case criticize the District's legislative
decision on all three grounds. Thus, appellees argue: that
the District improperly relied on statistical evidence from
other cities showing the effectiveness of similar curfew laws
in reducing juvenile crime and victimization because the other
cities are not sufficiently comparable; that testimony as to
the effectiveness of the curfew in the District itself (during
the first three months) was unreliable; that the District's
juvenile arrest statistics (the most fundamental factual prem-
ise for the need for a curfew) were flawed because they
included 17 year olds not covered by the curfew; that the
District's statistics did not adequately establish that the
District's problem centered on juvenile crime and victimiza-
tion during curfew hours; and that the District did not
produce data showing that crimes committed by and against
juveniles occurred in "public," i.e., outside of the home where
juveniles will presumably be during curfew hours.
Of course, in considering the District Council's decision, we
must bear in mind that we are not reviewing a district court's
or an agency's findings of historical fact which is a more
structured kind of decision than a legislative judgment. And
even in the context of review of agency rulemaking, we are
obliged to give great leeway to predictive judgments based on
a matter within the agency's sphere of expertise. See Fresno
Mobile Radio, Inc. v. FCC, 165 F.3d 965, 971 (D.C. Cir. 1999).
To be sure, in two cases applying intermediate scrutiny in the
context of quasi-suspect classes, the Supreme Court closely
and skeptically examined statistical social science data pur-
porting to justify differential treatment of men and women.
See Craig, 429 U.S. at 199-204; Hogan, 458 U.S. at 23-31.
But we think the key to understanding the Supreme Court's
close analysis in those cases is the Court's observation in
Craig "that proving broad sociological propositions by statis-
tics is a dubious business, and one that inevitably is in tension
with the normative philosophy that underlies the Equal Pro-
tection Clause." Craig, 429 U.S. at 203. We think by that
the Court implied that it is particularly troubling when legis-
lation provides for differential treatment between suspect (or
quasi-suspect) classes and others. There is really no dispute
in this case comparable to the hotly contested and sensitive
question as to the differences between men and women.
Plaintiffs do not dispute that the difference between adults
and minors generally justifies a government's differential
treatment of minors; they dispute only this particular differ-
ential treatment because of its interference with their "funda-
mental" right to free movement.
Bearing in mind, then, that we are reviewing a legislative
decision, we turn to appellees' specific objections to the
District's decisionmaking. Taking first the District's diagno-
sis of its own situation, we ask whether it was impermissible
for the Council to rely on arrest statistics that included 17
year olds and victimization statistics that covered 15 to 19
year olds. Appellees claim that including 17 year olds' ar-
rests will necessarily overstate the magnitude of juvenile
crime--at least as the District has defined juveniles. But the
District brought to our attention more data showing that
arrests for youths under 17 have been increasing steadily.
In any event, the District is not obliged to prove a precise
fit between the nature of the problem and the legislative
remedy--just a substantial relation. The District can hardly
be faulted for determining not to include 17 year olds in the
curfew; obviously that would be more intrusive and create
more of an enforcement problem. And even if minors under
17 are less likely to commit crimes than 17 year olds, common
sense tells us that younger children will surely be more
vulnerable.
Appellees also claim that the District's data is flawed
because it failed to establish that the District had a problem
with juvenile crime and victimization during curfew hours.
The material presented to the Council on this point consisted
of a chart prepared by the Metropolitan Police Department
which showed that most juvenile arrests took place during
curfew hours. Echoing the district court, appellees argue
that this evidence is "woefully deficient," Hutchins, 942
F. Supp.2d at 677, because the source data, from which the
chart was compiled, appears to conflict with the chart. While
the data is admittedly less than crystal clear, any discrepan-
cies appear to be minor.5 The bottom line is that the
__________
5 At the request of the D.C. Council during its consideration of
the curfew law, the Metropolitan Police Department compiled sta-
tistics on total juvenile arrests and juvenile arrests during the
proposed curfew hours between January 1993 and February 1995.
This information--the source data--was later summarized in a
chart and included in the D.C. Council committee report on the
curfew law. There are discrepancies in this information which has
caused some confusion. The source data consists of statistics for
juvenile arrests during curfew hours by offense, the total number of
juvenile arrests during curfew hours (adding up the arrests by
offense), and the total number of juvenile arrests for all hours. The
total number of juvenile arrests during curfew hours contains
errors of addition: adding the arrests by offense for fiscal year 1994
yields a total of 2,292 rather than the 2,312 listed, and the fiscal
year 1995 totals should be 862 rather than 581. (The numbers for
fiscal year 1993 were added correctly.) These mathematical errors
District's statistics indicate that more than 50% of juvenile
arrests took place during curfew hours. The Fifth Circuit, in
evaluating an almost identical curfew, concluded that the
curfew would pass even strict scrutiny, notwithstanding that
"the city was unable to provide precise data concerning the
number of juveniles who commit crimes during curfew hours,
or the number of juvenile victims of crimes committed during
the curfew." Qutb v. Strauss, 11 F.3d 488, 493 (5th Cir.
1993). That serious crimes such as murder, rape, and aggra-
vated assault, committed by groups of all ages, were more
likely to occur during curfew hours was sufficient to demon-
strate a "fit" between the curfew ordinance and the compel-
ling state interest. See id. Similarly, that the District did
not produce data showing where juvenile crime and victimiza-
tion occurred (i.e., that it occurred primarily outside of the
home) is not problematic. That a substantial percentage of
violent juvenile victimizations (approximately 33%) occurred
on the streets adequately supports the relationship between
the government's interest and the imposition of the curfew.
Nevertheless, appellees argue that the District was obliged
to confine the curfew to high-crime areas of the city. We
flatly disagree. To have done so would have opened the
Council to charges of racial discrimination. Indeed, it would
have faced attacks on that decision similar to those directed
__________
resulted in listing a total of 3,722 juvenile arrests during curfew
hours when the correct number is 3,694--a minor discrepancy
which does not affect the bottom line conclusion. There is also
some confusion over the number of total arrests for all hours.
Appellees note that adding up the total arrests for all hours in the
source data appears to yield some 2,400 more juvenile arrests than
the number listed as the "total" in the chart. The source data for
fiscal 1993, however, included total arrests for the entire fiscal year
for 1993 but included arrests during curfew hours for only a portion
of the fiscal year--from January 1993. The summarized chart at
least appears to correct for this difference and notes that it is
making an apples-to-apples comparison--it includes a comparison of
total juvenile arrests and juvenile arrests during curfew hours from
January 1, 1993 through February 23, 1995, revealing that most
juvenile arrests occurred during curfew hours.
to the "broad sociological propositions" the Supreme Court
disapproved of in Craig.
Appellees' claim that the District was not entitled to rely on
curfew experiences in other cities strikes us as particularly
weak. Of course no city is exactly comparable to any other,
but it would be folly for any city not to look at experiences of
other cities. And in drawing conclusions from those experi-
ences, legislatures are not obliged to insist on scientific
methodology. See City of Renton v. Playtime Theatres, Inc.,
475 U.S. 41, 51-52 (1986) (holding that under intermediate
scrutiny in the First Amendment context, a city may rely on
evidence generated by other cities "so long as whatever
evidence the city relies upon is reasonably believed to be
relevant to the problem that the city addresses"); see also
Craig, 420 U.S. at 201-04 (noting that state had relied on
statistical evidence from other jurisdictions and, although
criticizing state's proof on many grounds, not disapproving of
such evidence per se). The Fourth Circuit in Schleifer noted
that Charlottesville, in adopting its own juvenile curfew, had
relied on a showing that Lexington, Kentucky had a success-
ful juvenile curfew. Although the court there recognized that
there was testimony that curfews may be more effective in
smaller cities (suggesting that Lexington and Charlottesville
may have similar experiences), the court also emphasized that
the judgment about the potential efficacy of a curfew "is a
political debate, not a judicial one." Schleifer, 159 F.3d at
850. In any event, the District had its own indications that
the curfew was effective in the District of Columbia--the
Deputy Chief of the Metropolitan Police Department testified
before the D.C. Council that in its first three months the
curfew had resulted in fewer juveniles on the streets during
curfew hours, and thus a "reduction of the number of juvenile
late night arrests," noting a 34% decrease in arrests of
juveniles under 17 years old. Appellees question the rele-
vance of this testimony because the District did not demon-
strate that this drop in juvenile arrests was attributable to
the curfew as opposed to some other factor. We think that
objection calls for an absurd preciseness in legislative deci-
sionmaking which would make it virtually impossible for any
city to adopt any curfew.
Finally, we note that the eight defenses to the curfew
strengthen the relationship between the curfew and its goal of
reducing juvenile crime and victimization by narrowing the
scope of the curfew.6 That is, the defenses (the constitution-
ality of which we take up below) help ensure that the ordi-
nance does not sweep all of a minor's activities into its ambit
but instead focuses on those nocturnal activities most likely to
result in crime or victimization.
B.
Assuming, as we do in this section of the opinion, that the
fundamental rights of parents are implicated by curfews,7 we
also conclude that this curfew passes intermediate scrutiny
because it is carefully fashioned much more to enhance
parental authority than to challenge it. If the parents' inter-
ests were in conflict with the state's interests, we would be
faced with a more difficult balancing of sharply competing
claims. See generally Bellotti, 443 U.S. at 637-39 & n.18
(noting that limitations on children's rights can be justified by
the state's attempt to support parental authority). Thus, in
Ginsberg, the Supreme Court observed that a ban on selling
magazines to minors--magazines that would not be judged
constitutionally obscene if sold to adults--did not substantial-
ly conflict with parental authority because a parent could
always buy those sorts of magazines for their children. See
Ginsberg, 390 U.S. at 639. It could be said in that case that
the ban nevertheless interfered with a parent's desire to allow
his or her children independence to purchase magazines
__________
6 To be sure, the defenses, to the extent they provide for
juveniles to be out during curfew hours, will not by themselves
necessarily result in reduced juvenile victimization. But the sub-
stantial relationship test does not demand that every aspect of the
curfew law advance the asserted government interests equally.
7 For purposes of Part III.B we do not assume a narrow
definition of parental rights, limited to activities within the home or
classroom, but rather assume a substantially broader formulation.
without parental supervision, but the Court did not consider
that theoretical impingement on parental authority worth
mentioning; it saw the statute as essentially supporting pa-
rental authority. The same dynamic is true here. The
curfew's defenses allow the parents almost total discretion
over their children's activities during curfew hours. There
are no restrictions whatsoever on a juvenile's activities if the
juvenile is accompanied by a parent, guardian, or an adult
over the age of 21 authorized by the parent to supervise the
juvenile. See D.C. Code s 6-2183(b)(1)(A); id. at
s 6-2182(8). Parents can allow their children to run errands,
which gives the parents great flexibility in exercising their
authority. Contrary to appellees' view, we do not see how
the curfew would preclude parents from allowing their chil-
dren to walk the dog or go to the store. Id. at
s 6-2183(b)(1)(B). Juveniles may attend any "official school,
religious, or other recreational activity sponsored by the
District of Columbia, a civic organization, or another similar
entity that takes responsibility for the minor" as well as to
travel to and from such activities. Id. at s 6-2183(b)(1)(G).
Although the extent to which this "civic organization" defense
would cover events at the Kennedy Center, lectures at the
Smithsonian, church group activities, athletic events, early
morning sports practice, high school band practice, and the
like, can wait for the test of concrete cases raising those
questions, the defense certainly gives parents a good deal of
discretion over their children's activities. Together with the
defenses provided for employment and emergencies, see id. at
ss 6-2183(b)(1)(D)-(E), parents retain ample authority to ex-
ercise parental control. Since the curfew generously accom-
modates parental rights, preserving parental discretion to
direct the upbringing of their children, it does not unconstitu-
tionally infringe on such rights. See Schleifer, 159 F.3d at
853 (concluding that parents' fundamental rights were not
implicated by curfew, and then stating that exceptions to the
curfew would accommodate the rights of parents); Qutb, 11
F.3d at 496 (same); Bykofsky v. Borough of Middletown, 401
F. Supp. 1242, 1264 (M.D. Pa. 1975) (same), aff'd, 535 F.2d
1245 (3d Cir.), cert. denied, 429 U.S. 964 (1976); compare
Nunez, 114 F.3d at 946 (striking down curfew as violation of
parental rights based on broad sweep of ordinance and limit-
ed exceptions). We think under applicable precedent the
curfew facilitates rather than usurps parental authority.
IV.
Appellees' remaining attacks on the curfew fall away.
They contend that the district court correctly concluded that
four of the curfew's defenses--the First Amendment activity
defense, the responsible entity defense, the sidewalk defense,
and the emergency defense--are "woefully vague and unde-
fined," and that these defenses therefore do not withstand
constitutional scrutiny. Hutchins, 942 F. Supp. at 679. Inso-
far as appellees contend that there is too much imprecision in
the articulation of these defenses, they are really undermin-
ing their claim that parental rights are impinged upon. For
the very flexibility that the administration of the curfew
contemplates enhances parental control.8 In any event, as
the District noted, the Constitution does not require "unat-
tainable feats of statutory clarity." United States v. Maude,
481 F.2d 1062, 1068 (D.C. Cir. 1973). Rather, a statutory
provision is sufficiently definite to satisfy due process require-
ments so long as a person of ordinary intelligence would have
a reasonable opportunity to know what is prohibited. See
Grayned v. City of Rockford, 408 U.S. 104, 108 (1972); Con-
nally v. General Constr. Co., 269 U.S. 385, 391 (1926). That
"the fertile legal 'imagination can conjure up hypothetical
cases in which the meaning' " of disputed terms could be
questioned does not render the provision unconstitutionally
vague. Terry v. Reno, 101 F.3d 1412, 1421 (D.C. Cir. 1996)
(quoting Grayned, 408 U.S. at 110 n.15 (quoting American
Communications Ass'n v. Douds, 339 U.S. 382, 412 (1950))).
Appellees claim that the First Amendment defense9 is
impermissibly vague because juveniles would need to be
__________
8 That may well suggest that appellees really object to any sort
of curfew.
9 Section 6-2183(b)(1)(H) provides a defense if a minor is
"[e]xercising First Amendment rights protected by the United
"constitutional scholars" to know what activities were forbid-
den and that police officers untrained in the intricacies of the
First Amendment will, in their unguided discretion, enforce
the curfew unconstitutionally. But the defense simply en-
sures that the curfew will not be applied to protected expres-
sion; it is no more vague than the First Amendment itself.
As the Fourth Circuit noted in upholding a nearly identical
exception against a vagueness challenge, it is perfectly clear
that some activities, such as religious worship and political
protests, would be protected under the defense, and that
other activities, such as rollerblading, would not. See Schleif-
er, 159 F.3d at 854. That there may be marginal cases
between these two poles can be addressed as they arise, but
such cases do not render the provision void for vagueness.10
The responsible entity defense,11 according to the appellees,
is impermissibly vague because it does not define the term "a
civic organization, or another similar entity that takes respon-
sibility for the minor." While "civic organization" and "entity
that takes responsibility for the minor" are admittedly impre-
cise terms, any ambiguity is not of constitutional magnitude.
As the District points out, the defense by its own terms
applies to activities sponsored by schools, religious organiza-
tions, or the District of Columbia. In this context, the
__________
States Constitution, including free exercise of religion, freedom of
speech, and the right of assembly."
10 As the District points out, it is ordinarily for local courts to
provide definitive interpretations of state laws. See Grayned, 408
U.S. at 110. We do not purport to provide such an interpretation of
D.C. law here; we merely conclude that the challenged provisions
are not facially vague.
11 Section 6-2183(b)(1)(G) provides a defense if a minor is "[i]n
attendance at an official school, religious, or other recreational
activity sponsored by the District of Columbia, a civic organization,
or another similar entity that takes responsibility for the minor, or
going to, or returning home from, without any detour or stop, an
official school, religious, or other recreational activity supervised by
adults and sponsored by the District of Columbia, a civic organiza-
tion, or another similar entity that takes responsibility for the
minor."
addition of "civic organization, or another similar entity"
simply includes within the defense the general class of organi-
zations that may be thought analogous to schools, religious
organizations, or governmental entities. Compare Hynes v.
Mayor of Oradell, 425 U.S. 610, 621 (1976) (finding the term
"civic" vague when striking down ordinances that required
permits for door-to-door solicitation but that exempted civic
organizations) with Schleifer, 159 F.3d at 854 (noting that
Hynes does not stand for the broad proposition that "civic" is
per se vague, and noting that the ordinary meaning of the
term as used in the curfew law was not vague).
Appellees contend that the sidewalk defense12 is unconstitu-
tionally vague because it "improperly delegates standardless
discretion to neighbors." This argument is also without
merit. The defense provides clear parameters as to what
conduct is prohibited. It is irrelevant, for purposes of evalu-
ating vagueness, that a neighbor has the "discretion" to call
the police if a juvenile remains on the neighbor's sidewalk
during curfew hours--the discretion exercised in this situa-
tion is analogous to that exercised by property owners under
trespass laws.
Appellees also challenge the "emergency" defense,13 despite
the detailed definition of emergency provided in the statute.
It is argued that "emergency" is unconstitutionally vague
__________
12 Section 6-2183(b)(1)(F) provides a defense if a minor is "[o]n
the sidewalk that abuts the minor's residence or that abuts the
residence of a next-door neighbor if the neighbor did not complain
to the Metropolitan Police Department about the minor's presence."
13 Section 6-2183(b)(1)(E) provides a defense if a minor is
"[i]nvolved in an emergency." "Emergency" is defined as "an
unforeseen combination of circumstances or the resulting state that
calls for immediate action. The term 'emergency' includes, but is
not limited to, a fire, natural disaster, an automobile accident, or
any situation that requires immediate action to prevent serious
bodily injury or loss of life." Id. at s 6-2182 (2). "Serious bodily
injury" is defined as "bodily injury that creates a substantial risk of
death or that causes death, serious permanent disfigurement, or
protracted loss or impairment of the function of any bodily member
or organ." Id. at s 6-2182 (11).
because it is unclear whether the need to walk the dog or to
go buy typing paper the night before a homework assignment
is due constitutes an emergency under the curfew law.
Again, this argument borders on the frivolous. Mere "specu-
lative musings" about the possible meaning of a term do not
render it unconstitutionally vague; to do so would make the
drafting of laws an impossible task. Schleifer, 159 F.3d at
854.
Appellees argued before the district court that the curfew
also violated their First and Fourth Amendment rights, but
because the district court found the curfew unconstitutional
on equal protection and due process grounds, it did not reach
these additional constitutional claims. We exercise our dis-
cretion to resolve these purely legal claims in the interest of
judicial economy. See Committee of 100 on the Federal City
v. Hodel, 777 F.2d 711, 718-19 (D.C. Cir. 1985).
The curfew "possesses the potential to suppress First
Amendment rights," according to appellees, and this defect is
not cured by the curfew's defense for First Amendment
activities. This argument is self-defeating because we cannot
hold a statute facially unconstitutional (appellees' challenge is
a facial one) based on a mere possibility that the statute
might be unconstitutional in particular applications. See City
Council of Los Angeles v. Taxpayers for Vincent, 466 U.S.
789, 797 (1984).14 In any event, the curfew does not itself
regulate or proscribe expression, and thus would only be
subject to scrutiny under the First Amendment if it regulated
"conduct that has an expressive element," or if it "impose[d] a
disproportionate burden upon those engaged in protected
First Amendment activity." Arcara v. Cloud Books, Inc., 478
U.S. 697, 703-04 (1986). The curfew regulates the activity of
__________
14 We do not understand appellees' reference to the statute's
"overbreadth" to be an assertion of a facial challenge under the
First Amendment overbreadth doctrine--which is really a standing
exception (not applicable here) for parties engaged in unprotected
conduct to challenge applications of the statute against third parties
not before the court. See Brockett v. Spokane Arcades, Inc., 422
U.S. 491, 503-04 (1985); Sanjour v. EPA, 56 F.3d 85, 92 n.10 (1995).
juveniles during nighttime hours; it does not, by its terms,
regulate expressive conduct. See Spence v. Washington, 418
U.S. 405, 410-11 (1974) (to be expressive, conduct must intend
to convey a particular message, and the likelihood of that
message being understood by others must be great). Nor
can the curfew, on its face, be said to burden disproportion-
ately those engaged in expressive conduct--the curfew covers
all activities and provides a specific defense for juveniles
engaged in First Amendment activities. Appellees suggest,
however, that the curfew--even with the defense--will signifi-
cantly deter juveniles from engaging in First Amendment
activities in the first instance. But appellees have not provid-
ed a convincing argument as to why this might be so. Given
that the First Amendment defense by definition provides full
protection, any residual deterrent caused by the curfew would
pose at most an incidental burden on juveniles' expressive
activity or rights of association.
Finally, appellees argue that the curfew violates the Fourth
Amendment because it allows a police officer to arrest an
individual without probable cause. The curfew provides that
a police officer may not make an arrest "unless the officer
reasonably believes that an offense has occurred."
s 6-2183(c)(1). This formulation, however, is precisely how
the Supreme Court has defined probable cause, see Ker v.
California, 374 U.S. 23, 34 (1963), and the curfew therefore
conforms to the requirements of the Fourth Amendment.
* * * *
For these reasons, we conclude that the curfew law is
constitutional. Accordingly, we reverse the district court's
grant of summary judgment in favor of appellees and remand
for the district court to enter summary judgment for the
District of Columbia.
So ordered.
Edwards, Chief Judge, concurring in part and concurring in
the result, with whom Circuit Judges Wald and Garland join
in Part II: In my view, the disputed curfew law implicates
significant rights of both minors and parents and, accordingly,
is subject to no less than so-called "intermediate scrutiny." I
therefore do not join Part II of the opinion for the court,
which rests on the proposition that the curfew law does not
implicate the fundamental rights of minors or their parents.1
However, generally for the reasons cited in Part III.A of the
opinion, I agree that the law survives intermediate scrutiny
with respect to the rights of minors. I also agree that, in the
final analysis, the law survives intermediate scrutiny with
respect to parents' rights as well. Accordingly, I concur in
Parts I, III.A, and IV, and I concur in the result reached in
Part III.B. I do not join the analysis underlying Part III.B,
because I start from a very different premise. In my view,
parental rights are implicated in this case and they are truly
significant--indeed, these rights are at the core of our soci-
ety's moral and constitutional fiber. I have more than a little
difficulty in finding that the curfew law passes constitutional
muster as against the claim of parents.
I.
Part II of the opinion for the court suggests that the
fundamental rights accorded to parents are limited to "the
parents' control of the home and the parents' interest in
controlling, if he or she wishes, the formal education of
children." This section of the opinion concludes that this
right "does not extend to a parent's right to unilaterally
determine when and if children will be on the streets--
certainly at night." It goes on to hold that the curfew law
does not implicate any fundamental rights of parents, because
limitations on where one's child may be at night are "not
among the 'intimate family decisions' encompassed by such a
right." In Part III, the opinion holds, alternatively, that,
__________
1 A majority of the court has not concurred in Part II, so I see no
need to air my dissent with respect to that portion of the opinion for
the court.
"even if the curfew implicated fundamental rights of ...
parents," the curfew law survives intermediate scrutiny. The
opinion acknowledges in a footnote that "a substantially
broader formulation" of parental rights than that discussed in
Part II.B is assumed for the purposes of Part III.B. Howev-
er, the opinion never specifically defines what fundamental
parental rights are at issue here. Some explication is neces-
sary, I think.
Certainly it should be clear that parents' rights cannot be
limited to only those activities that are within the home or
involve the formal education of one's child--such a formula-
tion is much too narrow. I do not agree with the suggestion
in Part II.B of the opinion for the court that parents' rights
are limited solely to "intimate family decisions," unless "inti-
mate" is meant to include more than just what goes on within
the confines of the home and with regard to the child's
education. As numerous Supreme Court decisions make
clear, a parent's stake in the rearing of his or her child surely
extends beyond the front door of the family residence and
even beyond the school classroom.
Over fifty years ago, the Supreme Court broadly stated
that "[i]t is cardinal with us that the custody, care and
nurture of the child reside first in the parents, whose primary
function and freedom include preparation for obligations the
state can neither supply nor hinder." Prince v. Massachu-
setts, 321 U.S. 158, 166 (1944); accord Reno v. ACLU, 521
U.S. 844, 865 n.31 (1997). More recently, the Court has
recognized that the parental right to raise children in the
manner that the parents see fit is deeply entrenched:
The history and culture of Western civilization reflect a
strong tradition of parental concern for the nurture and
upbringing of their children. This primary role of the
parents in the upbringing of their children is now estab-
lished beyond debate as an enduring American tradition.
Wisconsin v. Yoder, 406 U.S. 205, 232 (1972); see also Stan-
ley v. Illinois, 405 U.S. 645, 651 (1972) ("It is plain that the
interest of a parent in the companionship, care, custody, and
management of his or her children 'come[s] to this Court with
a momentum for respect lacking when appeal is made to
liberties which derive merely from shifting economic arrange-
ments.' " (quoting Kovacs v. Cooper, 336 U.S. 77, 95 (1949)
(Frankfurter, J., concurring))); Pierce v. Society of Sisters,
268 U.S. 510, 534-35 (1925) (striking down state law requiring
children to attend public schools as "interfer[ing] with the
liberty of parents and guardians to direct the upbringing and
education of children under their control").
To be sure, there are circumstances, as I discuss below,
under which the state's interests may trump the rights of
parents. To say, however, as Part II.B of the opinion for the
court suggests, that a curfew law that regulates and restricts
minors' activities outside the home during the nighttime
hours does not even implicate the broad fundamental rights
of parents is to disregard the teachings of decades of Su-
preme Court case law. The Court has never limited its
definition of parental rights to include only the right to
supervise activities that take place literally inside the home or
literally inside the classroom. Indeed, such a limitation is
implausible.
Surely a nighttime curfew law implicates parents' rights to
control the "care," "nurture," "upbringing," "management,"
and "rearing" of their children, even if the law--by defini-
tion--regulates activity that takes place outside the home and
school. The fact that some of the aforecited Supreme Court
cases involve parents' rights to control the education of their
children is not surprising, but neither is it evidence that the
Court meant to imply that parents have no rights to control
other aspects of their children's lives. Thus, when the Court
explained in Ginsberg v. New York, 390 U.S. 629, 639 (1968),
that "constitutional interpretation has consistently recognized
that the parents' claim to authority in their own household to
direct the rearing of their children is basic in the structure of
our society," no one could reasonably believe that the Court
meant to limit parents' authority to only child-rearing that
takes place literally within the physical confines of "their own
household." Such a view would come as a stunning surprise
to countless parents throughout our history who have im-
posed restrictions on their children's dating habits, driving,
movie selections, part-time jobs, and places to visit, and who
have permitted, paid for, and supported their children's activi-
ties in sports programs, summer camps, tutorial counseling,
college selection, and scores of other such activities, all aris-
ing outside of the family residence and school classroom. To
ignore this reality is to ignore the Supreme Court's admoni-
tion in Yoder that the "primary role of the parents in the
upbringing of their children is now established beyond debate
as an enduring American tradition." 406 U.S. at 232.
There is no doubt that, in certain instances, the state may
lawfully regulate the activity of children without regard to
parental preferences. Indeed, the Supreme Court has noted
that "the state has a wide range of power for limiting
parental freedom and authority in things affecting the child's
welfare," Prince, 321 U.S. at 167, and has permitted parental
rights to be circumscribed to accommodate the Government's
legitimate interest in the "moral, emotional, mental, and
physical welfare of the minor," Stanley, 405 U.S. at 652
(internal quotation marks omitted). However, when the Gov-
ernment does intervene in the rearing of children without
regard to parents' preferences, "it is usually in response to
some significant breakdown within the family unit or in the
complete absence of parental caretaking," Action for Chil-
dren's Television v. FCC, 58 F.3d 654, 679 (D.C. Cir. 1995)
(Edwards, C.J., dissenting), or to enforce a norm that is
critical to the health, safety, or welfare of minors. The
difficult question, then, is how to accommodate both the
state's interests and parents' rights where there has been no
specific finding of a breakdown within an identified family
unit and there is no indisputable threat to the health, safety,
or welfare of minors.
It would be unreasonable to require the state to make a
particularized showing that every child will benefit from a
specific law enacted to protect the welfare of minors. For
example, not every child will gain precisely equal benefits
from child labor laws or education laws, but there is no doubt
that the state may reasonably regulate education, see Yoder,
406 U.S. at 213, and that it may regulate and even prohibit
child labor, see Prince, 321 U.S. at 166. Rather, the case law
suggests that if there is a significant and important goal to be
achieved that generally enhances the health, safety, or wel-
fare of unemancipated minors, the state may pass legislation
to achieve that goal, so long as the legislation does not unduly
tread on parents' rights to raise their children.
There are three obvious categories of cases in which the
state may pass legislation that is aimed at protecting chil-
dren: (1) laws in which parents' rights are not accommodated,
because accommodating parents' interests would defeat the
entire purpose of the legislation, e.g., preventing parents from
retaining custody of children they have abused; (2) laws in
which parents' rights are not implicated at all, e.g., preventing
convicted sex offenders from working in places where they
would have substantial contact with children; and (3) laws in
which parents' rights are implicated, but are accommodated.
This case involves the third category, i.e., accommodation.
A good example of the "accommodation" category is found in
the area of education. It is by now well-established that a
state may enact compulsory education requirements; howev-
er, it is equally clear that the state must accommodate
parents' rights to raise their children by allowing a child to
attend private, rather than public school, see Pierce, or by
allowing parents to teach their children at home, see Yoder.
In other words, as long as certain standards are met, parents
may educate their children as they see fit.
II.
As the opinion for the court acknowledges, the Court in
Prince appeared to engage in a more searching inquiry than
mere rational basis review, although that case was decided
before the Court had adopted the labels of strict scrutiny,
intermediate scrutiny, or rational basis to characterize the
appropriate standard of review. See Prince, 321 U.S. at 165-
70 & nn.15-16 (balancing the parental interest with the state
interest and looking to child labor statistics for support). In
my view, Prince and other such cases indicate that there
must be a substantial relationship between the objectives of a
law that limits parents' rights and the protection of children.
Such a law must also reasonably accommodate parents' rights
to raise their children as they see fit.
In this case, I have no real doubt that, as the opinion for
the court shows, the curfew law is substantially related to the
protection of minors from the dangers of juvenile crime. The
difficult question here is whether the curfew law, in seeking
to protect children, adequately accommodates parents' rights
to determine what activities are necessary to their children's
upbringing and growth. In my view, the D.C. law adequately
accommodates parents' rights, because, although parents' de-
cision making is not unfettered, the law allows parents great
discretion in how to manage the activities of their children.
First, as the opinion for the court notes, s 6-2183(b)(1)(A)
allows a minor to travel anywhere with a parent or other
adult. In addition, subsection (B) allows minors to run
"errands" for their parents, and I read this to include any
task a parent may assign a child, including walking the family
dog, running to the store for milk, and checking on an elderly
family member. Furthermore, subsection (D) allows a minor
to travel to and from work, and subsection (E) allows a minor
to be out during curfew hours if necessitated by an emergen-
cy. Finally, subsection (G) allows a minor to attend any
"official school, religious, or other recreational activity spon-
sored by the District of Columbia, a civic organization, or
another similar entity that takes responsibility for the minor,"
or travel to or return from "an official school, religious, or
other recreational activity supervised by adults and sponsored
by the District of Columbia, a civic organization, or another
similar entity that takes responsibility for the minor" during
curfew hours. I read this exception to allow a minor to
attend a movie at a local theater or musical concert at the
Kennedy Center. Theaters are adult supervised, because an
adult must be in charge of the premises while it is open, and
may remove a patron if his or her behavior is inappropriate.
Furthermore, business owners are generally responsible for
the welfare of patrons on their premises, at least in the sense
that owners must protect against obvious dangers. In short,
when read broadly--as it should be to accommodate the
significant parental rights implicated by the law--the law's
list of exceptions leaves great room for the exercise of
parental control.
In a different context, I have had much to say about the
distinction between governmental regulations that facilitate
parental rights as distinguished from those that impermissi-
bly preempt parental rights. See Action for Children's Tele-
vision v. FCC, 58 F.3d at 678-82 (Edwards, C.J., dissenting).
So I will not belabor the point further here. Suffice it to say,
in my view, this case involves a situation in which the
Government's interests are clear, as is the connection be-
tween the objectives of the law and the protection of minors.
In fact, this is one of those unique cases in which the
governmental regulations both serve to protect minors and,
also, to facilitate parents' control over the activities of their
children. See id. at 682 ("It would be hard to object to some
sort of regulation of indecency in broadcast as well as other
media were it narrowly tailored to facilitate parental supervi-
sion of children's exposure to indecent material."). No re-
sponsible parent would willingly send a child into danger. A
law designed to curb the possibility of danger, while at the
same time affording parents wide freedom to direct their
children's activities, is one that passes constitutional muster.
Although parental rights have been implicated by the curfew
law, they have not been impermissibly infringed.
I therefore concur in the conclusion that the curfew is
constitutional, but only because I find that the curfew law is
substantially related to the protection of children and that the
rights of parents have been adequately accommodated.
Wald and Garland, Circuit Judges, concurring in part and
concurring in the result: For the reasons stated in the
Fourth Circuit's opinion in Schleifer v. City of Charlottesville,
159 F.3d 843, 846-47 (4th Cir. 1998), as well as those ex-
pressed in Part II of Chief Judge Edwards' opinion and Part
III of Judge Rogers' opinion, we conclude that the District of
Columbia's Juvenile Curfew Act implicates the constitutional
rights of children and their parents, and that intermediate
scrutiny is the appropriate level of review. For the reasons
stated in Part III of the Opinion of the Court, we conclude
that the Curfew Act passes that scrutiny, and for the reasons
stated in Part IV agree that it is otherwise constitutional as
well.
Rogers, Circuit Judge, with whom Circuit Judge Tatel,
joins, concurring in part and dissenting in part, and with
whom Circuit Judge Wald joins in Parts II and III, and
Circuit Judge Garland joins in Part III: All members of the
court agree that a test at least as rigorous as intermediate
scrutiny would be proper for evaluating burdens on minors'
fundamental right to freedom of movement. To the extent
that the court hedges on the breadth of the right to free
movement, however, the court mistakenly concludes that the
right, if it exists at all, does not protect minors here.1 Were
the plurality to define the right without regard to age,
inasmuch as the Constitution applies to people of all ages, and
consider age only in determining that minors can less suc-
cessfully resist the interests of the government in their
welfare, then it could avoid departing from traditional analy-
sis of fundamental rights and suggesting that adults may lack
a right to freedom of movement.
Even when the court assumes that the curfew burdens a
fundamental right to movement, it fails to conform its applica-
tion of intermediate scrutiny to Supreme Court instruction
and example demonstrating that the proper judicial role
requires attention to the evidence on which the legislature
relies in intruding upon a fundamental right. When properly
__________
1 Only four judges of the court expressly state that the curfew
does not burden a fundamental right, while Judges Wald and Tatel
join me in concluding in Part II that it burdens a fundamental right
to movement. Judge Garland, in concurring in Part III of my
opinion, agrees that the Curfew Act implicates constitutional rights
of minors. Chief Judge Edwards likewise agrees that the curfew
implicates significant rights of minors. Judges Ginsburg and
Henderson do not reach this question because they would sustain
the curfew even under the heightened standard of review that
would apply assuming a fundamental right were at stake. In
discussing minors' fundamental right of movement in Parts I and
II, therefore, I refer to Part II(A) of Judge Silberman's opinion as
that of a "plurality." Elsewhere I refer to Judge Silberman's
opinion as that of "the court."
applied, intermediate scrutiny reveals that key elements of
the curfew--age and time--are insufficiently tailored to ad-
dress the problem of juvenile crime and victimization that
confronted the legislature. By ignoring evidence that almost
half of juvenile crime is committed by persons not covered by
the curfew, and that most of that crime occurs at hours not
within the curfew, the legislature has failed to demonstrate,
on this record, the requisite fit between the problem and the
chosen solution.
Enticed by the apparent success of curfews in other cities,
the District of Columbia transplanted a Dallas, Texas ordi-
nance without apparent determination that circumstances
here warranted exactly the same solution. The Council of the
District of Columbia had an accurate understanding that
juvenile crime and victimization are serious problems, but, so
far as the record shows, no accurate basis for concluding that
nocturnal crime in certain public areas by youths under 17
was a sufficiently serious part of this problem to warrant
severely limiting the rights of thousands of minors who were
neither criminals nor likely victims of crime. The rhetoric
supporting the curfew therefore does not fit the reality of
what the curfew does. Consequently, the court's labored
effort to construct a rationale for the curfew, attempting to
avoid the inconveniences created by flawed and deficient
information before the legislature, see, e.g., Op. at 18, eviscer-
ates the distinction between intermediate scrutiny, which
requires that justifications for complex, but burdensome,
policy choices emanate from the legislature and that burdens
be tailored to specific ends, and the less rigorous rational-
basis scrutiny, where the court defers to legislative policy
choices with far less concern for serious evidentiary defects or
loose tailoring.
Accordingly, because the court accords less respect to
minors than is constitutionally required, and more deference
to the D.C. Council than is constitutionally warranted, I
respectfully dissent from its holding that the curfew survives
intermediate scrutiny.2
__________
2 Specifically, I dissent from Part II(A) of Judge Silberman's
plurality opinion, which states that the curfew does not implicate a
I.
A.
Claims invoking fundamental rights have been a source of
institutional diffidence for Article III courts, which are reluc-
tant to venture where "guideposts for responsible decision-
making ... are scarce and open-ended." Collins v. City of
Harker Heights, 503 U.S. 115, 125 (1992). Yet though the
terrain may be unchartered, the Constitution's guarantees of
"liberty" and "due process" are entrusted, along with count-
less others, to independent oversight by the judiciary. See,
e.g., Roberts v. United States Jaycees, 468 U.S. 609, 618-20
(1984). Courts must carefully define the contested right,
employing sufficient specificity to ground the right in a
concrete application and sufficient generality to connect the
right to its animating principles. See, e.g., Washington v.
Glucksberg, 117 S. Ct. 2258, 2268 (1997); Griswold v. Con-
necticut, 381 U.S. 479, 481-85 (1965).
The parties differ as to how abstractly the court should
define the right that plaintiffs invoke. Appellees-plaintiffs
assert a broad right, regardless of age, to "freedom of move-
ment," while appellant-defendant denies that juveniles have a
fundamental right "to wander in public places at night with-
out adult supervision." The United States, as amicus curiae,
similarly opposes juveniles' alleged right "to roam the streets
unsupervised" during curfew hours.
The plurality initially vacillates between reviewing a broad
and narrow right, but ultimately views this case as raising
only a narrow question. The opinion first suggests that
plaintiffs invoke a right to "liberty," Op. at 6, but then
proceeds as if this case has nothing to do with whether
__________
fundamental right to movement; I concur in the conclusion of Part
III(A) of the court's opinion holding that intermediate scrutiny is
the proper standard for reviewing burdens on minors' fundamental
rights; and I dissent from the court's holding in Part III(A) that
the curfew survives intermediate scrutiny. I do not reach the
issues that the court resolves in Parts II(B), III(B), and IV. See
Hutchins v. District of Columbia, 144 F.3d 798, 817 (D.C. Cir. 1998)
(opinion of Rogers, J.).
"Americans" in general have a right to "free movement"
because it relates only to juveniles' claimed right to be free
from adult supervision at night. See Op. at 9-10. The
plurality seems to assume that the general right to free
movement is entirely distinct from a right of (1) minors to (2)
unsupervised movement (3) at night. This distinction be-
tween the right and a particular manifestation of it is an
unhelpful means of weighing a state burden on an asserted
liberty interest. Rather, by confronting the broader claim
the court can develop meaningful standards to guide its
review of the subsidiary claim that is directly at issue.
At first glance, the plurality's narrow construction of the
contested right seems sensible. This country lacks a tradi-
tion of tolerance for the nocturnal wanderlust of minors, and
the plurality's recognition of this uncontested fact avoids the
more searching analysis that fundamental rights review en-
tails.3 But, on closer inspection, the plurality's narrow state-
ment of what is at issue relies on a suspect methodology.
First, defining a right as the mirror-image of a particular
burden (i.e., the right to do the specific thing that a chal-
lenged rule prevents) tips the scales against recognizing the
right. Safeguarding the abstract ideals of the Constitution
frequently entails protecting conduct that many citizens find
deeply offensive. See, e.g., Texas v. Johnson, 491 U.S. 397
(1989) (flag burning); Cohen v. California, 403 U.S. 15 (1971)
(wearing jacket with "Fuck the Draft" in courthouse corri-
dor); Brandenburg v. Ohio, 395 U.S. 444 (1969) (Ku Klux
Klan rally). Hence, rights must be defined in a manner that
will protect disfavored conduct while not needlessly constrain-
ing legislative and executive discretion. See, e.g., Kennedy v.
Mendoza-Martinez, 372 U.S. 144, 160 (1963). By defining
__________
3 While the curfew defines a category of "minor[s]," see D.C.
Code s 6-2182(5), this opinion uses "minors," "juveniles," and "chil-
dren" interchangeably. These terms are not precise because the
cutoff age for adulthood varies throughout the D.C. Code from
under 15, see D.C. Code s 3-301, to under 16, see D.C. Code
ss 16-1021, 22-2011, 24-1101, to under 17, see D.C. Code
s 22-2001, to under 18, see D.C. Code ss 3-401, 3-441, 16-2301,
21-301, 24-1101, 28:1-103, 31-401, to under 21, see D.C. Code
s 16-2301.
minors' rights in the narrowest sense possible, the plurality
separates conduct that is discomforting to many adults from
principles that animate due process doctrine. Disfavored
conduct will rarely resist state regulation of its own force
absent intervention of a more abstract guiding principle. By
using the ostensibly neutral process of defining a right to
transform a case about freedom of movement into one about
nocturnal rambling, the plurality in effect ignores the role
that abstract rights play in shaping constitutional discourse.
Second, the plurality's decision to define the asserted right
narrowly confuses the ultimate question of balancing state
interests against individual interests with the question of how
to define an individual's interest with sufficient care to ensure
that judicial review is not a hollow exercise of deference to
conventional wisdom. The plurality has relied on the District
of Columbia's strong defense of the curfew to hold that there
is nothing to defend against--that there is no principle
against which the curfew need be tested. See Op. at 10. The
difficult issue in this case involves reconciling two conflicting
interests: individual freedom to walk on public streets with-
out fear of police intervention, see, e.g., Gomez v. Turner, 672
F.2d 134, 143 n.18 (D.C. Cir. 1982), and the authority of the
state to act in the best interest of minors, see, e.g., Bellotti v.
Baird, 443 U.S. 622, 633-34 (1979) (plurality opinion). This
issue arises only if one recognizes a right at a sufficient
degree of abstraction to connect with precedent in analogous
areas. The plurality avoids this question by citing clear
governmental interests--controlling the aimless wandering of
minors in areas where harm can befall them--to eliminate
any possibility that a contrary right may exist. Yet the fact
that a state may have good reasons to treat the movement of
minors differently from that of adults does not therefore
mean that minors lack a right to movement; it means only
that the right may in some circumstances be insufficient to
overcome a particular burden. See Mississippi Univ. for
Women v. Hogan, 458 U.S. 718, 724 n.9 (1982). Consequently,
age should not be an element of the right at issue because the
state interests that are relevant at the balancing stage of
analysis do not aid the distinct inquiry at the definitional
stage.
Third, construing rights narrowly displaces delicate value
judgments, but does not avoid them. The admirable aim of
narrowly defining a right is to "rein in the subjective ele-
ments that are necessarily present in due-process judicial
review." Glucksberg, 117 S. Ct. at 2268. Broadly defined
rights are prone to manipulation, and afford courts ample
discretion when applying general principles to concrete fact
patterns. Rights defined too narrowly, however, suffer from
the opposite problem: the more specific the definition of a
right, the more its vitality can become a question of judicial
preference or unwarranted deference to legislative discretion
because the court lacks external standards to guide its analy-
sis. By asking a broader question, such as 'does a curfew
impermissibly interfere with a generally applicable right of
movement,' the court can gain access to standards and prece-
dents to structure and guide its analysis. There may never
be an objective answer to a claim involving the balance
between individual rights and state interests, cf. Moore v.
City of East Cleveland, 431 U.S. 494, 502-03 (1977) (plurality
opinion), but some ways of framing the claim make the
ensuing analysis more principled than others. See Poe v.
Ullman, 367 U.S. 497, 541-45 (1961) (Harlan, J., dissenting).
The plurality's methodology also obscures another, still
deeper, value judgment. Here, the plurality defines the
asserted right narrowly; in another case, the court might
define a right more broadly, because the plurality does not
articulate a standard to guide the process of defining rights.
The court's choice about how abstractly to define a right may
easily become influenced by its view of the underlying con-
duct at issue. Favored conduct will be integrated with simi-
lar cases that have protected analogous rights, while disfa-
vored conduct will be relegated to unprotected isolation.
Compare Franz v. United States, 707 F.2d 582, 595 (D.C. Cir.
1983) (recognizing "freedom of a parent and child to maintain,
cultivate, and mold their ongoing relationship") with Dronen-
burg v. Zech, 741 F.2d 1388, 1395 (D.C. Cir. 1984) (rejecting
right to "homosexual conduct in the Navy"). Although this
subjectivity plagues any attempt to find an appropriate level
of generality at which to define a right, it is more disconcert-
ing where the court professes to act out of concern for judicial
restraint. See Op. at 9.
Fourth, narrowly focusing on the movement rights of mi-
nors--as opposed to a right of movement generally--need-
lessly entangles equal protection and due process analysis by
defining a fundamental right with reference to the class of
people asserting it. Usually, due process challenges involve
generally applicable rights, while equal protection challenges
involve burdens that fall disproportionally on classes that
share a disfavored trait. Here, appellees-plaintiffs have
raised both types of claim under the Fifth Amendment.
However, because they do not allege that youth is a suspect
classification,4 their Fifth Amendment claims turn on the
same question: whether the rights at issue are fundamental,
such that burdens on minors' movement warrant heightened
judicial scrutiny. Cf. Bearden v. Georgia, 461 U.S. 660, 666-
67 (1983). The plurality recognizes this overlap, see Op. at 5
n.1, but blurs the tests: by incorporating a class component
(youth) into the definition of the right, the plurality avoids
answering the difficult question of whether youth is an ac-
ceptable criteria for narrowing the scope of an otherwise
applicable right (i.e., a right that would shield adults from a
similar curfew), and instead assumes no rights are applicable.5
__________
4 The Supreme Court has subjected classifications based on old
age to rational basis review, see Gregory v. Ashcroft, 501 U.S. 452,
470 (1991); Massachusetts Bd. of Retirement v. Murgia, 427 U.S.
307, 313 (1976), but has not considered classifications based on
youth. Whether laws that target the young rather than the elderly
would warrant a different result under the political process theories
on which the Court has relied in this area, see, e.g., Murgia, 427
U.S. at 313; Vance v. Bradley, 440 U.S. 93, 113-14 & n.1 (1979)
(Marshall, J., dissenting); cf. United States v. Carolene Prod. Co.,
304 U.S. 144, 152 n.4 (1938), is a question for another day; while
appellees-plaintiffs have advanced a vaguely stated equal protection
theory, they have not attempted to define a suspect or quasi-suspect
class.
5 The Supreme Court has avoided such age-based distinctions
in other fundamental rights cases. For example, in abortion cases,
Finally, the plurality's reductionist reasoning relies on a
methodology that the Supreme Court has repudiated. See
Op. at 9. In Michael H. v. Gerald D., 491 U.S. 110 (1989),
Justice Scalia foreshadowed the court's approach by suggest-
ing that fundamental rights must be defined at "the most
specific level at which a relevant tradition protecting, or
denying protection to, the asserted right can be identified."
Id. at 127 n.6. Higher "level[s] of generality" were to be
avoided. Id. However, only Chief Justice Rehnquist joined
this portion of Justice Scalia's opinion; Justices O'Connor and
Kennedy, who joined the remainder of Justice Scalia's opin-
ion, pointedly refused to concur in his discussion of how to
define fundamental rights. See id. at 132 (O'Connor, J.,
concurring in part, joined by Kennedy, J.). Likewise, Jus-
tices Brennan, Marshall, and Blackmun rejected Justice Sca-
lia's analysis, noting that it relied on a vision of the Constitu-
tion as a "stagnant, archaic, hidebound document steeped in
the prejudices and superstitions of a time long past." See id.
at 141-42 (Brennan, J., dissenting).6 In the ten years since
Michael H. was decided, Justice Scalia's approach to defining
fundamental rights has never garnered a majority on the
Supreme Court;7 yet a plurality of this court now embraces
it, inviting the subjectivity that the plurality seeks to avoid.
__________
the Court has never held that the underlying right is separately
defined for adults and juveniles. Instead, the court has weighed
state interests against minors' interests in light of the right at issue.
See, e.g., Lambert v. Wicklund, 520 U.S. 292 (1997); Hodgson v.
Minnesota, 497 U.S. 417 (1990); Ohio v. Akron Ctr. for Reprod.
Health, 497 U.S. 502 (1990); City of Akron v. Akron Ctr. for
Reprod. Health, 462 U.S. 416 (1983); Planned Parenthood Ass'n v.
Ashcroft, 462 U.S. 476 (1983); H.L. v. Matheson, 450 U.S. 398
(1981); Bellotti v. Baird, 443 U.S. 622 (1979); Planned Parenthood
v. Danforth, 428 U.S. 52 (1976). But cf. Reno v. Flores 507 U.S.
292, 302 (1993); id. at 341 (Stevens, J., dissenting).
6 Neither Justice Stevens' concurring opinion nor Justice
White's dissenting opinion address Justice Scalia's methodology for
defining rights. See 491 U.S. at 132, 138 (Stevens, J., concurring in
the judgment); id. at 157 (White, J., dissenting).
7 See, e.g., Planned Parenthood of Southeastern Pa. v. Casey,
505 U.S. 833, 847 (1992) (opinion of O'Connor, Kennedy, and Souter,
JJ.). Cf. Lutz v. City of York, 899 F.2d 255, 267-68 (3d Cir. 1990).
B.
From this analysis it follows that the contested right should
be defined more abstractly in two ways: first without regard
to age, and second without regard to the manner in which it is
exercised. This section discusses the former issue, the next
section discusses the latter. In neither section is it necessary
to define a "right to liberty," Op. at 6, but neither is it
necessary to disconnect the rights of minors at night from
those of citizens in general, see Op. at 10.
The plurality defines a right that is coherent only in cases
involving minors, as the age of the claimant is an element of
the definition. Apparently, the plurality views freedom of
movement as a privilege earned--if at all--by ritual passage
into adulthood. Yet "[c]onstitutional rights do not mature
and come into being magically only when one attains the
state-defined age of majority. Minors, as well as adults, are
protected by the Constitution and possess constitutional
rights." Danforth, 428 U.S. at 74. The question here is
whether "fundamental" rights, like "constitutional" rights
more generally, apply to minors.8
There is no doubt that minors possess rights that are
"fundamental,"9 including First Amendment10 and due pro-
__________
8 Whether such rights apply to all minors of any age is irrele-
vant because the curfew applies to all minors under 17, and thus
presents no occasion to distinguish among age groups or speculate
about when a particular age cutoff might warrant additional defer-
ence. In discussing rights burdened by a curfew, there is no reason
to become distracted by the claims of toddlers. Neither the D.C.
Council nor the District of Columbia in the district court indicated
that persons of tender ages were part of the problem that the
curfew sought to remedy.
9 Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S.
503, 511 (1969); see also Danforth, 428 U.S. at 74; In re Gault, 387
U.S. 1, 13 (1967).
10 See Tinker, 393 U.S. at 506; West Virginia State Bd. of
Educ. v. Barnette, 319 U.S. 624 (1943). The plurality cites Ginsberg
cess rights,11 as well as the right of equal protection to
similarly situated children.12 Likewise, minors bear some of
the burdens that accompany rights.13 The more difficult
question is how to define the scope of these fundamental
rights in view of the fact that "[t]he state's authority over
children's activities is broader than over like actions of
adults." Prince v. Massachusetts, 321 U.S. 158, 168 (1944);
see also id. at 169. The Supreme Court has confronted this
dilemma in various circumstances, in each case attempting to
tailor concepts from adult jurisprudence to fit claims by
juveniles. For example, minors "are entitled to a significant
measure of First Amendment protection," Erznoznik v. City
of Jacksonville, 422 U.S. 205, 212 (1975), but the "First
Amendment rights of minors are not 'co-extensive with those
of adults.' " Id. at 214 n.11 (quoting Tinker, 393 U.S. at 515
(Stewart, J., concurring)). Similarly, in the due process
context, "certain basic constitutional protections enjoyed by
adults accused of crimes also apply to juveniles.... But the
Constitution does not mandate elimination of all differences in
the treatment of juveniles." Schall v. Martin, 467 U.S. 253,
263 (1984); see also McKeiver v. Pennsylvania, 403 U.S. 528
(1971).
__________
v. New York, 390 U.S. 629 (1968), for the proposition that minors
have narrow First Amendment interests. Op. at 11. However, in
Ginsberg the Supreme Court held only that states may use separate
standards of obscenity for adults and children to account for the
different reactions of minors and adults to similar material. See id.
at 637-38. This holding is hardly surprising because obscenity is
not protected speech, see id. at 635, and obscenity standards focus
in part on audience composition and thus may account for the
differences between adult and juvenile audiences.
11 See Goss v. Lopez, 419 U.S. 565, 581-82 (1975); In re
Winship, 397 U.S. 358, 365-68 (1970); Gault, 387 U.S. at 28.
12 See, e.g., Plyler v. Doe, 457 U.S. 202 (1982); Stanton v.
Stanton, 421 U.S. 7 (1975); Gomez v. Perez, 409 U.S. 535, 538
(1973); Brown v. Board of Educ., 347 U.S. 483 (1954). But see
Reno v. Flores, 507 U.S. 292, 306 (1993).
13 See, e.g., Stanford v. Kentucky, 492 U.S. 361 (1989).
The most reasonable reading of these cases is that minors
and adults share many fundamental rights, but that the
protective force of some of these rights is contracted or
diluted when applied to minors. To the extent that a right
defines a boundary to state authority, age is generally not a
meaningful credential for access to the protected zone, "magi-
cally" conferring admission on a given birthday. There may
be good reasons for making the boundaries of a right more
malleable for minors than adults--states have stronger coun-
tervailing interests and minority status renders minors less
competent to resist state intervention14--but not for denying
the existence of the right altogether, at least not where
minors are capable of exercising the right. Of course, where
the rationale for a right raises questions about its suitability
for minors, minors might not possess the right at all, as
opposed to having a less robust version of it. For example,
although there is a fundamental right to marriage, see, e.g.,
Turner v. Safley, 482 U.S. 78, 95 (1987), it might not apply
below a certain relatively mature age. (The age of consent
for marriage in the District of Columbia is 16. See D.C. Code
s 30-103.) The developmental prerequisites for walking
down a public street, however, are substantially lower than
for the bundle of rights and responsibilities that attend
marriage.
In a relative sense, a right that is "fundamental" for adults
in their relationship with the state is equally fundamental, if
not equally forceful, for minors because it defines the few
areas of activity warranting especially careful tailoring of
intrusive state means to worthy state ends. Minors, like
adults, are able to enjoy the fruits of free movement and to
chafe under its restriction, and thus there is little reason to
link the fundamentality of the right to the age of the claimant.
The cases on which the court relies to contract the scope of
minors' rights are inapposite to curfews because they arise in
unique contexts, such as challenges to school regulations and
disciplinary procedures, involving state interests associated
__________
14 See generally Thompson v. Oklahoma, 487 U.S. 815, 823-25,
834-35 (1988) (plurality opinion).
with the educational environment warranting enhanced con-
trol over minors' behavior. See, e.g., Vernonia School Dist.
47J v. Acton, 515 U.S. 646, 656 (1995); Hazelwood School
Dist. v. Kuhlmeier, 484 U.S. 260, 266-67 (1988); Bethel
School Dist. No. 403 v. Fraser, 478 U.S. 675, 685 (1986);
Ingraham v. Wright, 430 U.S. 651, 681 (1977). Just as adults
may have more freedom as civilians than as prison inmates or
members of the armed forces,15 minors' rights vary depending
on whether they are at home, on the streets, or in school.
The plurality assumes that minors cannot claim a right to
be "unsupervised" because they are always in "some form of
custody." Op. at 10. This characterization misses the point.
Minors subject to the curfew are by definition unaccompanied
by a responsible adult. To say that they are in some meta-
physical bond of "custody" begs the question of whose custo-
dy they are in, and the extent to which certain personal
prerogatives are immune from custodial restraint, at least by
a government custodian. At a minimum, unaccompanied
minors are not under direct government control, and thus
theories of custody announced in a case dealing with incarcer-
ated juvenile delinquents are unhelpful in assessing the bur-
dens imposed by a curfew. See Op. at 10, citing Schall v.
Martin, 467 U.S. 253, 265 (1984). The Supreme Court ap-
peared to recognize as much in Prince, which relied on a
balancing of state and parental interests rather than an
undifferentiated notion of custody to regulate the activities of
minors in public streets. See Prince, 321 U.S. at 164-71.16
__________
15 See, e.g., Hudson v. Palmer, 468 U.S. 517, 524 (1984); Brown
v. Glines, 444 U.S. 348, 354-55 (1980).
16 Even if custody were a relevant concept, simply reciting its
presence would be insufficient to negate a generally applicable
right. Cf. Pell v. Procunier, 417 U.S. 817, 822 (1974) (holding, in
the analogous area of prisoners' rights, that inmates in state
custody generally possess rights that are "not inconsistent with ...
status as a prisoner or with the legitimate penological objectives of
the corrections system."). Even if minors are in some form of
custody, they possess rights not inconsistent with their status as
minors or with the legitimate objectives of the custodial entity. The
C.
For the reasons discussed, the conduct at issue should be
more generally defined to encompass the activity of move-
ment rather than how particular minors engage in it. The
plurality's limited definition of the contested right appears to
flow from an unarticulated perception of what minors might
be doing while "freely wander[ing] ... at night." Op. at 10.
How minors exercise, and whether they abuse, their right to
movement is relevant in weighing the constitutionality of a
contrary state burden, but should not be part of the definition
of the right itself. Plaintiffs in this case contend that the
curfew prevents them from using public streets as a means of
conveyance from one place to another. See Complaint p p 3,
4, 6, 7, 11, 12, 13, 14, 15. They do not seek to linger in any
one location, or to access any particular area, such as a park,
that the District of Columbia might have a special reason to
close. Rather, they protest a blanket restriction on their
movement. Whether they plan to "wander" Op. at 10,--or
amble, stroll, sashay, or saunter--is irrelevant; the only
question under the Constitution is whether the District's
action burdens a fundamental right to be on and to use public
streets. When one chooses to walk, how one does so, where
one goes, and what one does once there are factors relevant
to reviewing burdens on the right, but not to defining the
right itself. Therefore, the question before the court should
be defined as whether there is a fundamental right to walk in
public without thereby subjecting oneself to police custody; in
short, a right to free movement.
II.
A.
The Supreme Court's jurisprudence on the right to "move"
encompasses several distinct concepts. The discrete compo-
nents include the right to relocate from state to state, the
right to cross state borders for purposes other than reloca-
__________
court would therefore need to inquire whether a curfew survives
this test.
tion, the right to cross national borders, and the right to
intrastate or localized movement. These rights are "funda-
mental" under established doctrine.17 As early as the Arti-
cles of Confederation, state citizens "possessed the funda-
mental right, inherent in citizens of all free governments,
peacefully to dwell within the limits of their respective states,
to move at will from place to place therein, and to have free
ingress thereto and egress therefrom." United States v.
Wheeler, 254 U.S. 281, 293 (1920) (emphasis added).
To date, however, the Court has not expressly held that
there is a fundamental right to intrastate movement, possibly
because it has not been seriously contested.18 While most of
__________
17 See, e.g., Saenz v. Roe, 119 S. Ct. 1518 (1999); Kolender v.
Lawson, 461 U.S. 352, 358 (1983); Zobel v. Williams, 457 U.S. 55,
60 n.6 (1982); Jones v. Helms, 452 U.S. 412, 418 (1981); Memorial
Hosp. v. Maricopa County, 415 U.S. 250, 254 (1974); Dunn v.
Blumstein, 405 U.S. 330, 338 (1972); Papachristou v. City of
Jacksonville, 405 U.S. 156, 164 (1972); Griffin v. Breckenridge, 403
U.S. 88, 105 (1971); Shapiro v. Thompson, 394 U.S. 618, 629 (1969);
United States v. Guest, 383 U.S. 745, 757 (1966); Aptheker v.
Secretary of State, 378 U.S. 500, 517 (1964); Kent v. Dulles, 357
U.S. 116, 126 (1958); Edwards v. California, 314 U.S. 160, 174
(1941); Twining v. New Jersey, 211 U.S. 78. 97 (1908); Williams v.
Fears, 179 U.S. 270, 274 (1900); Slaughter-House Cases, 83 U.S. 36,
79 (1872); Ward v. Maryland, 79 U.S. 418, 430 (1870); Paul v.
Virginia, 75 U.S. 168, 180 (1868); Crandall v. Nevada, 73 U.S. 35,
47 (1867); Passenger Cases, 48 U.S. 283, 492 (1849) (Taney, C.J.,
dissenting); Corfield v. Coryell, 6 F. Cas. 546, 552 (C.C.E.D. Pa.
1823) (No. 3,230) (per Washington, Circuit Justice). Cf. Civil
Rights Cases, 109 U.S. 3, 39 (1883) (Harlan. J., dissenting) (noting,
while discussing "the right of a colored person to use an improved
public highway," that "personal liberty consists, says Blackstone, in
the power of locomotion, of changing situation, or removing one's
person to whatever place one's own inclination may direct, without
restraint, unless by due course of law") (quotation marks omitted).
18 Even the plurality concedes that a "draconian" curfew could
implicate a fundamental right, see Op. at 9, avoiding the question of
whether the present curfew would be impermissible if applied to
adults. If the curfew would fail intermediate scrutiny as applied to
the cases discussing the "right to travel" or "right to free
movement" have involved an interstate or international com-
ponent, language in the decisions suggests that the right
extends to purely local movement, see, e.g., Kolender, 461
U.S. at 358; Papachristou, 405 U.S. at 164; Kent, 357 U.S. at
126; Wheeler, 254 U.S. at 293; Bell v. Maryland, 378 U.S.
226, 255 (1964) (Douglas, J., concurring), and at least two
circuits have expressly agreed. See Lutz v. City of York, 899
F.2d 255, 268 (3d Cir. 1990);19 King v. New Rochelle Mun.
Housing Auth., 442 F.2d 646, 648 (2d Cir. 1971).20 This
circuit has also recognized the value of free movement, noting
that the ability to "walk the streets, without explanations or
formal papers, is surely among the cherished liberties that
distinguish this nation from so many others." Gomez v.
Turner, 672 F.2d 134, 143 n.18 (D.C. Cir. 1982); see also
Waters v. Barry, 711 F. Supp. 1125, 1134 (D.D.C. 1989).
Thus, simply being on a public street, without some further
incidence of misfeasance, is usually not a crime. Cf. Shuttles-
worth v. City of Birmingham, 382 U.S. 87, 96 (1965) (Douglas
J., concurring).
The importance of intrastate mobility is apparent from its
utility and the implications of its denial. As Justice Douglas
explained:
Freedom of movement, at home and abroad, is important
for job and business opportunities--for cultural, political,
and social activities--for all the commingling which gre-
__________
adults, then the court has given scant weight to minors' rights; if
not, then the court's conception of fundamental rights is too narrow.
19 The Third Circuit held that the "right to move freely about
one's neighborhood or town" was subject to reasonable time, place,
and manner restrictions, and that such restrictions were reviewable
under intermediate rather than strict scrutiny. See Lutz, 899 F.2d
at 268-69.
20 Cf. Memorial Hosp., 415 U.S. at 255-56. But cf. Bray v.
Alexandria Women's Health Clinic, 506 U.S. 263, 264, 277 (1993);
Wardwell v. Board of Educ. of Cincinnati, 529 F.2d 625, 627-28
(6th Cir. 1976); Wright v. City of Jackson, 506 F.2d 900, 902-03
(5th Cir. 1975).
garious man enjoys. Those with the right of free move-
ment use it at times for mischievous purposes. But that
is true of many liberties we enjoy. We nevertheless
place our faith in them, and against restraint, knowing
that the risk of abusing liberty so as to give rise to
punishable conduct is part of the price we pay for this
free society.
Aptheker, 378 U.S. at 519-20 (Douglas, J., concurring).
Plaintiffs have asked for nothing more than the "cultural,
political, and social ... commingling" that free movement
permits. For example, one would like to go to swimming
practice, Complaint at p 4, another to ballet performances, id.
at p 11, and another to dances and late-night movies, id. at
p 16. Viewed in isolation, these activities are of no great
constitutional moment; viewed together, they constitute the
rhythm of daily life for our city's youth, and the fruits of a
stable pluralist society tolerant of individual liberty. Thus,
even if this case raises a purely intrastate question--which is
not at all clear21--precedents recognize a fundamental right
to walk through public streets without thereby subjecting
oneself to police custody.22
__________
21 The record does not indicate whether the curfew impedes
interstate travel, which is likely because numerous residential com-
munities in the District of Columbia abut the Maryland and Virginia
borders, and the region shares an integrated mass transit network.
The curfew thus prevents young District of Columbia residents
from leaving and presumably attempts to bar young Virginia and
Maryland residents from entering their nation's capitol, with limited
exceptions (in the form of "defenses" to the curfew).
22 Less clear, however, is the origin of this right, which the
Supreme Court has never authoritatively pinpointed, partly because
of the differences, and thus potentially distinct origins, among the
discrete rights that the Court has addressed. Among the possible
sources of the right are the due process clauses of the Fifth and
Fourteenth Amendments, see, e.g., Aptheker, 378 U.S. at 505-06;
Kent, 357 U.S. at 125; Williams, 179 U.S. at 274, the privileges and
immunities clauses of Article IV, see, e.g., Saenz, 119 S. Ct. 1518;
Ward, 79 U.S. at 430; Paul, 75 U.S. at 180; Corfield, 6 F. Cas. at
551-52, and the Fourteenth Amendment, see, e.g., Saenz, 119 S. Ct.
B.
The plurality apparently fears that "lightly extend[ing]" the
right to movement will require searching review of trivial or
incidental impediments to movement that do not bear any
relation to the "basic notions" that animate the right. Op. at
9. These concerns are misplaced. As with any right, the
right to free movement is not unlimited; reasonable burdens,
including those that are "incidental[ ] and remote[ ]"--are
acceptable. Williams, 179 U.S. at 274; see also Shapiro, 394
U.S. at 629; Califano v. Aznavorian, 439 U.S. 170, 177 (1978);
Lutz, 899 F.2d at 269. Cf. Glucksburg, 117 S. Ct. at 2282 n.8
(Souter, J., concurring); Burdick v. Takushi, 504 U.S. 428,
434 (1992). For example, the Supreme Court has noted that
the government might bar travel to certain regions in emer-
gencies and may constrain the travel options of certain
classes of citizens, such as felons. See Zemel v. Rusk, 381
U.S. 1, 15 (1965); Jones v. Helms, 452 U.S. at 420. Likewise,
regulating conduct in public spaces and legitimate law en-
forcement objectives, see, e.g., Terry v. Ohio, 392 U.S. 1
(1968), may also justify burdens on free movement. These
limits should vitiate the plurality's concern that recognizing a
right to free movement would impair a state's authority to
operate traffic lights. See Op. at 9. The right to free
movement does not shield all conduct of which movement is a
component, but simply protects an individual from police
__________
1518; Edwards, 314 U.S. at 178 (Douglas J., concurring); id. at
183-84 (Jackson, J., concurring); Twining, 211 U.S. at 97; Slaugh-
ter-House Cases, 83 U.S. at 79, and the dormant commerce clause,
see, e.g., Edwards, 314 U.S. at 174. Given the Supreme Court's
reluctance to attach the right to movement to a single constitutional
provision, see, e.g., Guest, 383 U.S. at 757; Jones v. Helms, 452 U.S.
at 418-19; Memorial Hosp., 415 U.S. at 280 n.4 (Rehnquist, J.,
dissenting); Shapiro, 394 U.S. at 630, there is no reason for this
court to resolve the debate; rather, it suffices here simply to
conclude that the complaint states a claim subject to review under
the balancing test generally applied to fundamental rights, most
frequently under the substantive component of the Due Process
Clause.
interference for mere presence, without more, on a public
street.
Moreover, the plurality's preoccupation with incidental bur-
dens is misplaced. Whatever else the curfew might be, it is
not an incidental burden. The curfew does not cover a few
specifically identified people, it covers a class of thousands; it
does not apply to a few discrete areas, but to an entire city; it
does not constrain specific types of movement, but with few
exceptions bars all movement in public; it is not confined to a
brief period, but extends for roughly 25% of the day. In
short, the imagined consequences of recognizing the proposed
right are inapposite, exaggerated, and can be addressed by
settled doctrine.
III.
Having concluded in Part II that the curfew burdens a
fundamental right, I join the court in holding, as has the
Fourth Circuit, see Schleifer v. City of Charlottesville, 159
F.3d 843, 847 (4th Cir. 1998), cert. denied, 119 S. Ct. 1252
(1999), that the appropriate standard of review is intermedi-
ate scrutiny. See Op. at 14; see also Hutchins, 144 F.3d at
809-10 (opinion of Rogers, J.).23
Fifth Amendment substantive due process and equal pro-
tection scrutiny is generally two-tiered: strict scrutiny ap-
plies to burdens on fundamental rights, while rational basis
scrutiny applies to burdens on rights that do not qualify as
fundamental. See, e.g., Glucksberg, 117 S. Ct. at 2271; Heller
v. Doe, 509 U.S. 312, 320 (1993). Under either standard,
courts must determine whether the state's interest in impos-
ing a challenged burden is sufficiently weighty, and whether
the state's means are sufficiently tailored to its ends. Strict
__________
23 Two circuits have applied strict scrutiny to juvenile curfews
based on the assumption that a fundamental right was at issue;
none has applied rational basis scrutiny. See Nunez v. City of San
Diego, 114 F.3d 935, 946 (9th Cir. 1997); Qutb v. Strauss, 11 F.3d
488, 492 (5th Cir. 1993).
scrutiny demands narrow tailoring to a compelling interest,
see Reno v. Flores, 507 U.S. 292, 302 (1993), while rational
basis review demands a rational relationship to a legitimate
interest. See Ohio Bureau of Employment Serv. v. Hodory,
431 U.S. 471, 489 (1977). Between these poles lies intermedi-
ate scrutiny, which allows more refined analysis than usually-
fatal strict scrutiny and rarely-fatal rational basis review. To
satisfy intermediate scrutiny, a burden must be substantially
related to an important interest. See United States v. Virgi-
nia, 518 U.S. 515, 533 (1996). As explained in Part IV, this
standard is flexible enough to respect state regulatory pre-
rogatives while exacting enough to protect individual rights
from unnecessary encroachment.
Nothing inherent in the definition of a fundamental right
requires that "strict scrutiny" apply here. While burdens on
fundamental rights trigger the most exacting review avail-
able, which as to adults is strict scrutiny, it is possible for a
less stringent standard to be the most exacting available for
minors. See Carey v. Population Serv. Int'l, 431 U.S. 678,
693 n.15 (1977) (plurality opinion). Even though there is a
formalistic allure to treating all fundamental rights alike, and
therefore applying strict scrutiny to laws regulating minors as
well as adults, to do so would ignore the real, and legally
accepted, differences between minors and adults. As noted in
Part I, minors and adults share basic rights, but these rights
have less force when used by minors as shields against
regulation. Unduly intrusive judicial scrutiny of laws burden-
ing minors would fail to respect the relative amenability of
minors to regulation and would demand too much justification
from government in an area in which it frequently must act.
Cf. Burdick v. Takushi, 504 U.S. 428, 433-34 (1992). Given
that the force of the right to movement varies with the status
of the people asserting it, the standard of review must be
sensitive to the context in which it is applied. As Justice
Frankfurter cautioned, "[l]egal theories and their phrasing in
other cases readily lead to fallacious reasoning if uncritically
transferred to determination of a State's duty towards chil-
dren," May v. Anderson, 345 U.S. 528, 536 (1953) (Frankfurt-
er, J., concurring).
When a minor's fundamental right to movement is at issue,
intermediate rather than strict scrutiny is most appropriate.24
The essence of intermediate scrutiny, as distinct from rational
basis review, is that the government must tailor its burden to
relatively specific and important ends and justify incidents of
the law that exceed or depart from those ends. Tailoring is
particularly important when the rights of minors are at stake,
inasmuch as substantial discrepancies between the treatment
of adults and minors have often turned on unsubstantiated
assumptions rather than persuasive evidence. The Supreme
Court's opinion in In re Gault, 387 U.S. 1 (1967), which
invalidated procedures in juvenile courts that vastly differed
from procedures in adult courts, is instructive. In Gault, the
Court recognized the state's special interest in providing
informal justice for juveniles, but was concerned by the
magnitude of the 'reforms' that states adopted in pursuit of
this interest, stating that "[s]o wide a gulf between the State's
treatment of the adult and of the child requires a bridge
sturdier than mere verbiage, and reasons more persuasive
than cliche can provide." Id. at 29-30; see also id. at 21-22.
The Gault holding reflects judicial concern for ensuring a
reasonable "fit" between legitimate state ends and the means
adopted to advance them in cases predicated on distinctions
between juveniles and adults. Such scrutiny ensures that
regulations that disproportionately burden juveniles are well-
considered and not merely well-intentioned.
__________
24 Intermediate scrutiny emerged from equal protection and
First Amendment jurisprudence, but is also appropriate in due
process cases. See Schleifer, 159 F.3d at 847; Lutz, 899 F.2d at
269; Dolan v. City of Tigard, 512 U.S. 374, 391 (1994); Moore, 431
U.S. at 499 (plurality opinion); cf. Duke Power Co. v. Carolina
Envtl. Study Group, Inc., 438 U.S. 59, 83-84 (1978). Moreover, the
instant due process claim has equal protection overtones because
the court in part uses the status of the plaintiffs to determine the
scope of their entitlements. Borrowing from equal protection anal-
ysis is thus particularly appropriate given the need to tailor adult
due process rights to younger claimants.
IV.
Some juvenile curfews may survive intermediate scrutiny,
but the present curfew does not. The curfew has legitimate
ends, but the D.C. Council inadequately tailored its means to
these ends in light of the severe burdens that the curfew
imposes on minors' fundamental rights.
To survive intermediate scrutiny, statutory burdens must
be substantially related to an important government interest.
See, e.g., Clark v. Jeter, 486 U.S. 456, 461 (1988); Hogan, 458
U.S. at 724. Review under this standard is far from "tooth-
less," Mathews v. Lucas, 427 U.S. 495, 510 (1976), and this
court has given it meaningful bite. See Lamprecht v. Federal
Communications Comm'n, 958 F.2d 382, 391-98 (D.C. Cir.
1992) (per Thomas, Circuit Justice). The standard places
duties on both legislatures and courts: legislative analysis
must be "reasoned," and judicial analysis must be "search-
ing." Hogan, 458 U.S. at 726, 728. Only burdens that
demonstrate a reasonable fit--or "congruen[ce]"--with their
benefits may withstand scrutiny. See, e.g., Turner Broad.
Sys. v. Federal Communications Comm'n, 520 U.S. 180, 215
(1997); Board of Trustees v. Fox, 492 U.S. 469, 480 (1989). A
legislature seeking to protect minors need not produce "scien-
tifically certain criteria of legislation," Ginsberg, 390 U.S. at
643 (citation omitted), but neither can it rest on unsubstanti-
ated speculation. See, e.g., Gault, 387 U.S. at 29-30. Or as
this circuit has put it, "[a]ny 'predictive judgments' concern-
ing group behavior and the differences in behavior among
different groups must at the very least be sustained by
meaningful evidence." Lamprecht, 958 F.2d at 393.
The curfew clearly satisfies the "important interest" re-
quirement of intermediate scrutiny. The curfew seeks to
reduce crime by and against minors, and to assist parents and
guardians "in carrying out their responsibility to exercise
reasonable supervision of minors." D.C. Code s 6-2181(e)(1)-
(3). Each is a laudable goal. See, e.g., Hodgson, 497 U.S. at
444; Schall, 467 U.S. at 264; Bellotti, 443 U.S. at 637
(plurality opinion). As the court notes, the D.C. Council was
presented with a wealth of evidence of the seriousness of the
juvenile crime problem in the District of Columbia. See Op.
at 15. The difficulty, however, lies in the D.C. Council's
conclusion that these ends warrant the particular burdens
that the curfew imposes on minors. There are many ways to
reduce juvenile crime and victimization and to strengthen
family units, some of which are more extreme than others.
The question here is whether the curfew is too extreme given
the evidence considered by the D.C. Council before adopting
it. Cf. Plyler v. Doe, 457 U.S. 202, 229 n.25 (1982).
The curfew has three essential elements: it operates on a
defined class in defined places at defined times. The District
government defends each definition with statistical evidence
cataloging a severe epidemic of juvenile crime and victimiza-
tion. While juveniles are the source of and victims of an
intolerably large volume of crime in the District, examination
of the record reveals that the evidence does not fit the
definitions that the D.C. Council crafted. See Craig v. Boren,
429 U.S. 190, 200 (1976).
First, the evidence upon which the D.C. Council relied is
too broad because it documents a problem that the curfew
does not address. The curfew applies only to persons under
17, but the statistics include crimes by youths as old as 17 and
victimization of youths as old as 19.25 See 942 F. Supp. at
675; Annie E. Casey Foundation, Kids Count Data Book:
State Profiles of Child Well-Being at 49 (1995). This statisti-
cal anomaly is more than technical because approximately
42% of all juvenile referrals in the District of Columbia courts
from 1990-1994 involved youths over age 16.26 Relying on
__________
25 Section five of the curfew also applies to seventeen year-olds
when operating a motor vehicle. The scope of this motor vehicle
curfew is unclear: it applies "after midnight" but has no termi-
nation time. If challenged, this omission could prove problematic.
See Naprstek v. City of Norwich, 545 F.2d 815, 818 (2d Cir. 1976).
26 See DISTRICT OF COLUMBIA COURTS, 1994 ANNUAL
REPORT tbl. 31 (1994); DISTRICT OF COLUMBIA COURTS,
1993 ANNUAL REPORT tbl. 31 (1993); DISTRICT OF COLUM-
BIA COURTS, 1992 ANNUAL REPORT tbl. 29 (1992); DIS-
TRICT OF COLUMBIA COURTS, 1991 ANNUAL REPORT tbl.
data that includes youths aged 17 therefore significantly
overstates the problem that a curfew limited to those under
17 can solve. The District government is of course free to
limit a curfew to whatever ages it deems appropriate, but it
may justify the curfew only with data that is relevant to the
targeted ages. Here the District has not explained why the
curfew targets substantially less crime and victimization than
outlined in the data offered to support it, and the court
accordingly has no basis for deferring to the legislature's
decision to impose a curfew that excludes minors seventeen
and older while burdening minors under seventeen.
Second, the evidence on which the D.C. Council relied is
also too narrow because it does not indicate when juvenile
crime and victimization occur.27 Such information is critical
to assessing a curfew, which does not directly affect crime
outside of curfew hours.28 Again, this evidentiary defect is
more than merely technical because uncontested evidence
indicates that, nationwide, juvenile victimization is most prev-
alent during after-school hours at around 3-4 p.m.,29 and FBI
__________
24 (1991); DISTRICT OF COLUMBIA COURTS, 1990 ANNUAL
REPORT tbl. 27 (1990).
27 The District of Columbia did offer a chart purporting to
document crimes by juveniles during curfew hours. The district
court found, however, that this chart was "woefully deficient"
because it included crimes by minors not covered by the curfew,
was "undated ... [and] prepared by an unknown author, under
circumstances that are also mysterious," and contained unreliable
information. 942 F. Supp. at 677. For example, the chart suggests
that more juvenile crimes were committed during the 6-8 curfew
hours than other, more reliable, data show were committed during
the entire 24 hour day during the same period. See id. Despite
the district court's rejection of this evidence--even after a hearing
in which the District of Columbia sought to defend it--the court has
decided to credit it. See Op. at 18 n.5.
28 Given the evidentiary problems as to age and time, I do not
address possible deficiencies with regard to where the crime and
victimization occur.
29 See Deposition of Jeffrey A. Butts.
statistics show that violent juvenile crime peaks in the mid- to
late-afternoon.30 The D.C. Council has discretion to address
only part of a larger problem, and therefore may enact a
curfew even if it will not solve all juvenile crime. Cf. New
Orleans v. Dukes, 427 U.S. 297, 303 (1976). However, before
burdening a fundamental right, the legislature must have a
clear picture of the problem it is addressing. See Craig, 429
U.S. at 200-04.31 Intermediate scrutiny, by contrast with
rational basis review, requires that a legislature pay more
attention to detail than the record indicates was expended in
the instant case; otherwise, a court cannot determine if an
ordinance is appropriately tailored to the details it addresses.
See Phillips v. Borough of Keyport, 107 F.3d 164, 174 (3d Cir.
1997) (in banc). Here, the D.C. Council had ample evidence
of a general juvenile crime problem, but far too little evidence
describing the specific problem that it chose to address in an
extraordinarily burdensome way.
The weakness of the evidence that the D.C. Council did
consider is particularly troubling in light of evidence it did not
consider. As the district court noted, the D.C. Council ig-
nored evidence showing that more than 90% of all juveniles
do not commit any crimes, at night or otherwise. See 942
F. Supp. at 676. The curfew thus burdens a far larger class
of minors than are responsible for crime or at risk because of
it. If the D.C. Council had decided that the benefits of the
curfew for a subset of the affected class (or the public in
general) were worth the costs to the entire class, the court
might properly defer to legislative discretion. But because
__________
30 See Snyder, Howard. "Time of Day Juveniles are Most
Likely to Commit Violent Crime Index Offenses." Adapted from
Sickmund, M., Snyder, H., Poe-Yamagata, E. Juvenile Offenders
and Victims: 1997 Update on Violence. Office of Juvenile Justice
and Delinquency Prevention, 1997. OJJDP Statistical Briefing
Book. Available: http: //ojjdp.ncjrs.org/ojstatbb/qa053.html.
31 On appeal, the District of Columbia obliquely contends that it
has statistics showing a high incidence of crime during curfew
hours, but in the district court it conceded that the D.C. Council did
not consider such data. See 942 F. Supp. at 676-77; see also
Deposition Testimony of Sally B. Weinbrom at 60.
there is virtually no record to indicate that the D.C. Council
assessed the extent to which the affected class was responsi-
ble for or at risk from the targeted activities, and whether the
targeted ages and hours were a significant component of the
perceived problem, the foundation for deference evaporates.
This view is consistent with the purpose of intermediate
scrutiny, which does not require the least restrictive means
necessary to satisfy important governmental interests, but
does result in judicial invalidation of laws that burden "sub-
stantially" more rights than necessary. Ward v. Rock
Against Racism, 491 U.S. 781, 799 (1989); cf. Pickett v.
Brown, 462 U.S. 1, 17-18 (1983); Plyler, 457 U.S. at 228-29.
If the curfew did not burden fundamental rights, these
evidentiary defects would not warrant judicial intervention
under rational basis scrutiny. See Exxon Corp. v. Governor
of Maryland, 437 U.S. 117, 124 (1978) (citations omitted).
Unlike an administrative agency, which generally must ex-
plain the basis for the rules it promulgates, see 5 U.S.C.
s 553(c); Securities & Exch. Comm'n v. Chenery Corp., 318
U.S. 80, 88 (1943), legislatures need offer express rationales
for statutes, and courts rarely scrutinize the legislative pro-
cess to determine if adequate evidence justifies its work
product. Cf. Turner Broad. Sys., 520 U.S. at 195-96. But
when legislation substantially burdens a fundamental right or
relies on a disfavored class distinction, judicial scrutiny inten-
sifies to examine the need for and scope of challenged stat-
utes. See, e.g., Mills v. Habluetzel, 456 U.S. 91, 101 n.9
(1982); Trimble v. Gordon, 430 U.S. 762, 771-72 (1977);
Lamprecht, 958 F.2d at 391-92 (per Thomas, Circuit Justice).
In such cases, the state cannot rely on its lawyers to sift
through the record and cobble evidentiary shards into a post-
hoc rationalization. See Craig, 429 U.S. at 200 n.7; cf. Maine
v. Taylor, 477 U.S. 131, 149 (1986); Hughes v. Oklahoma, 441
U.S. 322, 338 n.20 (1979). Rather, for a legislative judgment
to warrant judicial deference, there must be a contemporane-
ous factual foundation from which the court can conclude that
there is a close nexus between the burden on fundamental
rights and the important state interest. See, e.g., Turner
Broad. Sys. v. Federal Communications Comm'n, 512 U.S.
622, 666 (1994) (plurality opinion). The importance of the
District of Columbia's interest is evident, but the congruence
between the particular curfew it enacted and that interest is
only minimally developed.
The Supreme Court has repeatedly demonstrated that,
under intermediate scrutiny, it will not tolerate a severe
burden on a fundamental right simply because a legislature
has concluded that the law is necessary. Rather, the Court
has independently examined the evidence before the legisla-
ture to determine whether an adequate foundation justified
the challenged burdens. For example, in Craig, the Supreme
Court held that the Oklahoma legislature lacked an adequate
basis for permitting women to consume low-alcohol beer at a
younger age then men.32 See 429 U.S. at 204. The Court
recognized that the state had legitimate interests in traffic
safety and public health, see id. at 199-200, but found that the
gender distinction did not "closely serve[ ]" these interests.
Id. at 200. Although the state proffered statistics showing
that young men were more likely than women to be arrested
or injured in alcohol-related traffic incidents, the Court ques-
tioned the accuracy of these statistics and closely scrutinized
__________
32 The court distinguishes Craig because it concerned "the
hotly contested and sensitive question as to the differences between
men and women," which the court deems "[in]comparable" to the
instant case where the "[p]laintiffs do not dispute that the differ-
ence between adults and minors generally justifies a government's
differential treatment of minors...." Op. at 17. Yet the court
seems to forget that in this section of its analysis, it has assumed
that the curfew burdens a fundamental right, which, given the
intrusions by the curfew, renders the curfew "hotly contested and
sensitive." Moreover, the court's attempt to limit the instruction in
Craig by reference to the Supreme Court's statement "that proving
broad sociological propositions by statistics is dubious business, and
one that inevitably is in tension with the normative philosophy that
underlies the Equal Protection Clause," 429 U.S. at 203, is no more
successful. For, as it admits, the court must still address the
plaintiffs' "dispute [about] this particular differential treatment
[that] interfere[s] with their 'fundamental' right to free movement."
Op. at 17. Craig, as well as other intermediate scrutiny precedent,
tells the court how to proceed.
the numerical correlations on which the state relied, conclud-
ing that the data provided an "unduly tenuous 'fit.' " Id. at
201. Likewise, the Court noted that the data did not address
the "salient" characteristics of the challenged burden because
it did not expressly relate sex, age, and consumption of the
specific type of alcohol at issue. See id. at 202-03. The
looseness of these statistics is disturbingly parallel to the
evidentiary shortcomings in the instant case because the
present record lacks evidence of a connection between the
salient characteristics of age, time, and violence.
As in Craig, a plurality of the Supreme Court in Turner
Broadcasting refused to accept that interests which in the
"abstract" were important could "in fact" justify a particular
burden. 512 U.S. at 664. In Turner, where the Supreme
Court was asked to affirm a decision by Congress to require
cable operators to carry local broadcast signals, the Court
recognized that Congress was entitled to "substantial defer-
ence," but refused to uphold the statute because the record
provided insufficient evidence of a "genuine" problem creat-
ing a "need" for the particular burdens that Congress im-
posed. Id. at 665. Rather than rely on legislative "findings,"
the Court remanded for further development of facts suffi-
cient to permit the judiciary to fulfill its "obligation to exer-
cise independent judgment" and test Congress's inferences
against the record. Id. at 666. The Court also rejected
statistics proffered by the government because they were
either too general or failed to address the salient features of
the regulations. For example, statistics showing that the
programming rules would prevent broadcasters from being
dropped from cable systems were unhelpful because they did
not explain what the consequence of such action would be,
and whether there was a "serious risk of financial difficulty"
for broadcasters absent the regulation. Id. at 667. Likewise,
the Court faulted the "paucity" of evidence describing the
precise burdens that the statute imposed on cable operators
because the absence of such evidence precluded the court
from determining whether the burdens were substantially
broader than necessary to achieve Congress's goals. See id.
at 667-68. This evidentiary failure is similar to the problem
in the instant case: this court lacks sufficient evidence to
determine whether the curfew restrains too many minors in
too severe a manner in light of the volume of crime for which
minors of the targeted ages are responsible during the target-
ed hours.
This court has been similarly vigilant when applying inter-
mediate scrutiny. In Lamprecht, the court, writing through
Circuit Justice Thomas, reviewed gender preferences within
the FCC's scheme for licencing radio stations. Recognizing
that it must defer to the policy judgments of Congress and
the FCC, the court nevertheless demanded "meaningful evi-
dence" of a link between the rule and an important purpose.
958 F.2d at 393. It then went on to dissect the statistics
supporting the gender distinction, concluding that awarding
women licences solely on the basis of gender did not advance
the goal of programming diversity because, among other
reasons, stations owned primarily by women were only 1.25
times more likely to broadcast "women's programming" than
stations owned by men. See id. at 397. The court concluded
that this correlation, and similar evidence, was an insufficient
predicate to survive intermediate scrutiny. See id. at 398.
Decisions of other circuits affirming curfews do not suggest
a contrary methodology, as the curfews under review were
founded upon sturdier evidence. In Schleifer, the Fourth
Circuit reviewed a curfew enacted by Charlottesville based on
specific data documenting a crime problem in that city with
reference to the age of offenders, see 159 F.3d at 850, the
time of occurrence, see id., and the place of occurrence, see id.
at 851. Moreover, the city supplemented evidence of the
effects of curfews in other cities with specific analysis relating
these studies to local circumstances. See id. at 850. This
greater effort at tailoring established the requisite congru-
ence and thus led the Fourth Circuit to conclude that the
curfew is "a meaningful step towards solving a real, not
fanciful problem." Id. at 849.33 By contrast, there is little
basis in the present record on which the court may rely to
__________
33 The opinion of the Fifth Circuit affirming the Dallas curfew
likewise suggests that Dallas presented more evidence than the
make the same statement about the D.C. curfew, or to
conclude that the curfew is not substantially over-restrictive.
Given the inadequacy of the District's statistics, all that
remains to justify the curfew are bare assumptions about the
demographics of crime and conventional political wisdom.
Neither is sufficient to justify a sweeping restriction of mi-
nors' fundamental right to movement. See Turner Broad.
Sys., 512 U.S. at 664 (plurality opinion); Weinberger v. Wies-
enfield, 420 U.S. 636, 643 (1975); Gault, 387 U.S. at 29-30.
Cf. Cleburne Living Ctr., 473 U.S. at 448-49. If the legisla-
ture wants to solve pressing problems by carving exceptions
to fundamental rights, intermediate scrutiny requires that it
use a restrained and delicate blade; here, the D.C. Council
sliced broadly with too little regard for available evidence.
Nor can the evidentiary deficiencies be overcome by look-
ing to the experiences of other cities, as the court and the
District of Columbia urge. The experience of other cities
with law enforcement tools may be relevant and may provide
useful information to inform the D.C. Council's decisions.
But this is not the same as saying that the tools used by other
cities can be imported without consideration of the character-
istics of the two communities. In concluding that the D.C.
Council could properly rely on the experiences of New Or-
leans, San Antonio, and Dallas with juvenile curfews, the
court relies on Renton v. Playtime Theaters, Inc., 475 U.S.
41, 52-53 (1986), in which the Supreme Court acknowledged
that intermediate scrutiny permits one jurisdiction to rely on
evidence accumulated by another addressing a similar prob-
__________
District has presented in the instant case, including statistical data
that fit the ages covered by the curfew, the time of offenses, and the
places they occurred, see Qutb, 11 F.3d at 493, although the opinion
does not provide enough detail to conclude whether the court
exercised the scope of review that Craig and other cases demand.
It is of some significance, however, that this was the second time
that the Fifth Circuit had considered a juvenile curfew, and its
opinion indicates that the deficiencies that the court had previously
identified in the first curfew had been rectified. See id. at 494.
lem. Compare City of Richmond v. J.A. Croson Co., 488 U.S.
469, 505 (1989). Yet under Renton, a city may rely on data
collected in another city only "so long as whatever evidence
the city relies upon is reasonably believed to be relevant to
the problem that the city addresses." Renton, 475 U.S. at
52-53. Indeed, Renton and Seattle, the city that had gath-
ered the data on which Renton relied, chose different reme-
dies to their common problem. See id. at 52. By contrast,
the D.C. Council appears to have adopted the Dallas ordi-
nance "wholesale" without attempting to tailor it, save in a
few very inconsequential ways, to the District's circum-
stances. 942 F. Supp. at 678. The need for substantial
tailoring precludes off-the-rack solutions on the scale present
here. See Renton, 475 U.S. at 52-53. Thus, while Renton's
reasoning may be applicable, the D.C. Council failed to estab-
lish a fit between local circumstances and the borrowed
ordinance and data.34
Finally, efficacy can be no substitute for constitutional
scrutiny. See Op. at 20. Assuming that the decline in
arrests of juveniles during curfew hours demonstrates the
curfew's effectiveness during its brief three-month period of
operation, the efficacy of the curfew cannot alone save it from
constitutional infirmity.35 The fact that well-enforced noctur-
__________
34 In addition, the Renton analogy may be inapt to the extent
that curfews present more complex questions, and are thus more in
need of tailoring to local peculiarities, than the zoning at issue in
Renton. Moreover, Renton involved one city borrowing data from
another when it could not have collected any data of its own, in an
effort to prevent a problem that had not yet arisen. See 475 U.S. at
44, 50-51. Forcing Renton to develop local data would have been
extraordinarily burdensome in an area of law (zoning) over which
cities have substantial discretion. In contrast, the District of
Columbia had ample opportunities to examine its own local juvenile
crime problem in light of local demographics and available re-
sources. Requiring evidentiary tailoring here would therefore not
be inconsistent with the more permissive result in Renton.
35 Relying on arrest statistics, see Op. at 20, can be misleading
because arrests often do not occur contemporaneously with of-
fenses, and presumably will decline during periods--such as curfew
nal juvenile curfews reduce crime is hardly surprising; mi-
nors cannot readily injure the public when not permitted to
mingle with it. But it is equally clear that a nocturnal adult
curfew would also reduce crime, as would extending the
present juvenile curfew to cover the entire day.36 Yet both
options would be extreme, and raise the same question as the
instant case: whether the severity of the District of Colum-
bia's remedy is warranted by a substantial relation to an
important interest. A court reviewing an adult curfew could
not substitute effectiveness as a proxy for constitutional
propriety, and this court likewise must look beyond any
apparent attractiveness of the curfew to determine if it is a
constitutionally acceptable exercise of legislative authority.
In a time too-often punctuated by reports of senseless
youth violence and untimely death, and of promising lives lost
to the sadly familiar vices of the streets, minors are easy
__________
hours--when potential arrestees are not out in public. For exam-
ple, the curfew led to fewer arrests of fugitive minors and minors
carrying weapons, but this does not mean that the curfew reduced
the number of juvenile fugitives or weapons offenders living in the
city. Seemingly more relevant in assessing the curfew's effective-
ness would be whether juvenile crime fell during curfew hours, and
whether juvenile crime increased during non-curfew hours or after
the district court's injunction. Along these lines, it is interesting to
note that while juvenile crime fell during the period in which the
curfew was in effect, it also appears to have continued to fall
significantly even after the district court enjoined enforcement of
the curfew. See Jay Matthews, "Lives of D.C. Children Improve,
Study finds," Washington Post, September 3, 1998, Metro section
(citing the Fifth Annual D.C. Kids Count report). While this data
may not preclude the possibility that the curfew might have precip-
itated an even greater decline had it remained in force, it does
undermine the court's inference that the decline in juvenile crime
during the curfew period is attributable to the curfew.
36 Extending the D.C. curfew to encompass the entire day
(other than school hours) may seem like a fanciful hypothetical, but
at oral argument counsel for the United States contended that such
a curfew would survive rational basis scrutiny.
targets of ambitious law enforcement measures, as well as
well-intentioned government paternalism, and cannot readily
defend their rights in political fora. When challenges to
legislative reforms are presented, it falls to the courts to
ensure that the political branches respect minors' rights even
as they exercise their considerable discretion to assess and
promote minors' best interests in the face of pervasive
threats. See, e.g., Gault, 387 U.S. at 21-22. The court
appropriately concludes that intermediate scrutiny best
serves this important but limited judicial role of protecting
fundamental rights while deferring to delicate legislative
judgements. Applying such scrutiny to the record at hand,
the court falters, however, attempting to finesse the congru-
ence required by intermediate scrutiny. Accordingly, I re-
spectfully dissent, concluding that in the absence of a record
warranting deference the curfew does not survive the height-
ened scrutiny that accompanies the burdens it places on
minors' right to free movement.
Tatel, Circuit Judge, dissenting:
I agree with Judge Rogers that the District of Columbia
juvenile curfew implicates a fundamental right to free move-
ment and that the right should be defined without regard to
the age of the right-holder. See Rogers Op. at 4-12. Al-
though I still believe that the curfew should be subject to
strict scrutiny and that the compelling interest prong of the
analysis can adequately account for "the government's legiti-
mate need to regulate minors," Hutchins v. District of Co-
lumbia, 144 F.3d 798, 826 (D.C. Cir. 1998) (Tatel, J., concur-
ring in the judgment), I join Judge Rogers's conclusion that
this curfew fails to survive even intermediate scrutiny. Mod-
eled nearly verbatim on a Dallas juvenile curfew "without
apparent determination that circumstances here warranted
exactly the same solution," Rogers Op. at 2, and made
permanent by the D.C. Council without any assessment of its
effectiveness simply to avoid mooting this litigation when the
initial temporary measure expired, see Hutchins, 144 F.3d at
827 (Tatel, J., concurring in the judgment), the D.C. curfew
applies at specific times to juveniles of specific ages despite
virtually no record evidence that the particular restrictions
will deter crime by and against the city's youth. See Rogers
Op. at 22-25. Indeed, to conclude on this record that the
juvenile curfew survives intermediate scrutiny, as this court
now does, strips an already elastic standard of any semblance
of heightened review, with grave consequences for other
rights protected by intermediate scrutiny. See Mississippi
Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982); Craig v.
Boren, 429 U.S. 190, 197 (1976). I write separately to ex-
press my view that quite apart from the question of its
constitutionality with respect to the rights of minors, the D.C.
curfew fails to survive the strict scrutiny triggered by the
restriction it imposes on parents' fundamental right to control
the upbringing of their children.
I know that many parents believe that the curfew rein-
forces their efforts to ensure their children's safety and
proper upbringing. Indeed, one of the curfew's stated pur-
poses is to "[a]id[ ] parents or guardians in carrying out their
responsibility to exercise reasonable supervision of minors
entrusted to their care." D.C. Code Ann. s 6-2181(e)(3)
(Supp. 1998). As Chief Judge Edwards and Judge Silberman
observe, moreover, the law contains several "defenses" that to
some extent preserve parents' control over their children's
activities. See Silberman Op. at 22 (citing D.C. Code
s 6-2183(b)(1)(A), (B), (D), (E), (G)); Edwards Op. at 6
(same).
Restating the legislative judgment that "the curfew facili-
tates rather than usurps parental authority," Silberman Op.
at 22, however, does not answer plaintiffs' assertion of paren-
tal rights. Whatever views the judges of this court, members
of the D.C. Council, or even the majority of D.C. parents may
have regarding the range of discretion needed for proper
parenting, the relevant fact is that plaintiffs in this case
disagree. In their complaint, see Complaint p p 5, 8, 10, 16,
33, 43, and uncontroverted affidavits, they claim that the
curfew interferes with their ability to raise their children as
they see fit. For example, Kimberly Denise Dean, a plaintiff
who lives in Northeast Washington, said this:
I am the mother of Natiya Daniel Tapper, who is 14
years old, and subject to the District of Columbia's new
curfew law. I have one other child, Qiana Shontay Dean,
who is 17 years old.
I have taken great care to raise my daughters and
hope they will grow up to be responsible adults. Natu-
rally, this includes setting limits on their activities, such
as hours by which they should be in at night. However,
the curfew law, [sic] takes away my parental discretion to
set those limits. As a responsible parent, I do not often
allow my fourteen-year-old child, Natiya, to go out after
11:00 p.m. However, there are times when I decide after
careful consideration that she should be allowed to par-
ticipate in activities that require her to be out after 11:00
p.m.
For instance, last May I allowed Natiya to help Qiana
celebrate her seventeenth birthday. Qiana, Natiya and a
couple of Qiana's girlfriends ate dinner at a local restau-
rant, saw a late-movie, and then completed the celebra-
tion with an early breakfast. My daughters did not
arrive home until after 2 a.m.
....
Soon Natiya will be in high school, and I expect that,
like her sister, she will become more involved in social
activities that will keep her out late at night. I will try
to make wise decisions about whether to allow Natiya to
engage in these activities when the time comes. The
curfew law, if allowed to stand, will unfairly restrict
Natiya's legitimate social activities and interests, as well
as my ability to raise Natiya in the way that I see fit.
Dean Decl. p p 2-4, 6 [JA 402-03]. Another plaintiff, Robert
Jablon of Northwest Washington, said:
My wife and I have taken great care to try to raise our
children so that they will--we hope--grow into responsi-
ble adults.... [J]ust as part of teaching children about
responsible behavior involves setting limits, part of that
teaching also involves showing them that rules are not
rigid, and that reasonable exceptions should be made
when there is good justification. Accordingly, my wife
and I allow [our eleven-year-old son] Joel to stay out late
from time to time, or to go out early in the morning,
when in our view there is an appropriate reason. For
example, we regularly allow our son Joel to walk our
family dog, Calle, around the block before going to bed at
night, which could be after midnight during the summer
or before 6:00 a.m. We have also allowed Joel to ride his
bike to and from a neighborhood friend's house four or
five blocks away when Joel is invited to attend a movie
and to return home after midnight on a weekend night or
during the week in summer.... It usurps our role as
parents for the government to step in and tell us and our
children that we cannot make those decisions for our-
selves, and it threatens to make us, as well as our
children, criminals if we exercise parental discretion in
customary, reasonable ways.
Jablon Decl. p 3 [JA 423-24].
Even if walking the family dog could be classified as an
"errand" under the curfew's defenses, see Edwards Op. at 6,
no fair reading of the law would allow parents to permit their
children during curfew hours to participate in a birthday
celebration or ride a bike to a friend's house. The curfew
likewise eliminates parents' discretion to allow their children
to take an early-morning jog through the neighborhood, go to
a restaurant with friends after a school dance, or--as the
District conceded at oral argument--"go out to a friend's
house to do math homework at night" unaccompanied by an
adult. Oral Arg. Tr. at 17. The D.C. law makes criminals of
parents who consent to their children's participation during
curfew hours in a wide range of social, educational, and
recreational activities--non-criminal activities that some par-
ents (however few or many) consider fundamental to their
children's growth and well-being. See D.C. Code
s 6-2183(a)(2), (d) (providing for enforcement and criminal
penalties).
Thus, not only do I disagree that "[t]he curfew's defenses
allow the parents almost total discretion over their children's
activities during curfew hours," Silberman Op. at 22, I think
the curfew squarely implicates the well-established "liberty of
parents and guardians to direct the upbringing and education
of children under their control." Pierce v. Society of Sisters,
268 U.S. 510, 534-35 (1925). As the Supreme Court stated in
Wisconsin v. Yoder, "The history and culture of Western
civilization reflect a strong tradition of parental concern for
the nurture and upbringing of their children. This primary
role of the parents in the upbringing of their children is now
established beyond debate as an enduring American tradi-
tion." 406 U.S. 205, 232 (1972). See Meyer v. Nebraska, 262
U.S. 390, 399 (1923); see also Bellotti v. Baird, 443 U.S. 622,
639 n.18 (1979) (opinion of Powell, J.); Stanley v. Illinois, 405
U.S. 645, 651 (1972).
State interference with this long-recognized parental right
to raise children demands strict judicial scrutiny. It is in the
context of family, in addition to school and other societal
institutions, that children of this diverse and democratic
nation begin to develop habits of responsibility necessary for
self-governance and to observe not only the formal rules
established by government but also the informal rules and
understandings that undergird civil society. Through par-
ents, children first learn to relate conduct to consequences, to
exercise freedom with responsibility, and to respect the views
of others. Ms. Dean's and Mr. Jablon's affidavits describe
precisely that process: They are attempting to teach their
children in the way they think best, granting them more
freedom when they demonstrate responsibility. As Justice
Powell said, "[t]his affirmative process of teaching, guiding,
and inspiring by precept and example is essential to the
growth of young people into mature, socially responsible
citizens." Bellotti, 443 U.S. at 638 (opinion of Powell, J.).
The parenting process described by Justice Powell--the very
process that the curfew curtails for these plaintiffs--is like-
wise essential, in my view, to equipping young people with the
confidence they need to resist the many destructive influences
of society. Schools and other governmental institutions, to be
sure, are indispensable to this learning process. Parents,
however, retain a critical role because "[w]e have believed in
this country that this process, in large part, is beyond the
competence of impersonal political institutions." Id.
Heightened constitutional protection for parental autonomy
is required for another reason. In Yoder, the Supreme
Court's unqualified characterization of parents' "primary
role" in child-rearing as "an enduring American tradition"
reflected its recognition that " '[t]he fundamental theory of
liberty upon which all governments in this Union repose
excludes any general power of the State to standardize its
children....' " 406 U.S. at 232-33 (quoting Pierce, 268 U.S.
at 535). Indeed, we refuse to regard "[t]he child [as] the
mere creature of the state," Pierce, 268 U.S. at 535, because
insistence on a particular theory of parenting, like "affirma-
tive sponsorship of particular ethical, religious, or political
beliefs[,] is something we expect the State not to attempt in a
society constitutionally committed to the ideal of individual
liberty and freedom of choice," Bellotti, 443 U.S. at 638
(opinion of Powell, J.). Of course, this does not mean that
Ms. Dean's and Mr. Jablon's authority to raise their children
is impervious to state regulation. It does mean that to be
valid, limitations on parental rights not only must seek to
achieve compelling objectives (which the D.C. juvenile curfew
does), but also must demonstrate a close fit--substantiated by
record evidence--between means and ends (which the curfew
does not).
Relying on Prince v. Massachusetts, 321 U.S. 158 (1944),
the District argues that parental authority in child-rearing
implicates no fundamental right and is subject to reasonable
regulation. To be sure, Prince, which was decided before the
modern three-tier framework for reviewing equal protection
and fundamental rights claims, said that "the state has a wide
range of power for limiting parental freedom and authority in
things affecting the child's welfare." Id. at 167. But as I
read Prince, it stands not for the broad proposition that
reasonable state regulations may override parental judgments
on matters of child welfare, but for the now-settled principle
that religious practices may be circumscribed by reasonable,
neutral laws of general applicability.
Prince sustained the conviction of a Jehovah's Witness
under a Massachusetts child labor law for allowing her nine-
year-old niece to distribute religious magazines on the street.
Characterizing the issue before the Court, Prince's opening
paragraph states: "The case brings for review another epi-
sode in the conflict between Jehovah's Witnesses and state
authority. This time Sarah Prince appeals from convictions
for violating Massachusetts' child labor laws, by acts said to
be a rightful exercise of her religious convictions." Id. at 159.
In other words, Prince claimed a right to allow her niece, not
to ply the trade of a newsgirl or magazine seller, but to
proselytize, to engage in "the public proclaiming of religion."
Id. at 170; see id. at 164 (stating that Prince claimed "the
parent's [liberty] to bring up the child in the way he should
go, which for appellant means to teach him the tenets and the
practices of their faith") (emphasis added). Although
Prince's niece offered her magazines for "5per copy," thus
technically bringing her conduct under the child labor law,
the Court observed that she "received no money" on the
evening the offenses occurred, id. at 162, and that while
"specified small sums are generally asked and received[,] ...
the publications may be had without the payment if so
desired," id. at 161 n.4. As suggested by the decision's
analogy between child labor and compulsory vaccination laws,
see id. at 166, Prince is thus neither a case about "child labor"
nor a vindication of state power to trump parental authority,
but a case limiting free exercise of religion in the face of
otherwise valid state regulation.
Confirming this view, the Supreme Court recently situated
Prince in the line of cases establishing that "the right of free
exercise does not relieve an individual of the obligation to
comply with a 'valid and neutral law of general applicability
on the ground that the law proscribes (or prescribes) conduct
that his religion prescribes (or proscribes).' " Employment
Div., Dep't of Human Resources v. Smith, 494 U.S. 872, 879
(1990) (quoting United States v. Lee, 455 U.S. 252, 263 n.3
(1982) (Stevens, J., concurring in the judgment)); see id. at
880 (characterizing Prince as finding "no constitutional infir-
mity in 'excluding [these children] from doing there what no
other children may do' ") (quoting Prince, 321 U.S. at 171).
Explaining the different approach taken in Wisconsin v.
Yoder, where the Court demanded "more than merely a
'reasonable relation to some purpose within the competency
of the State' " in holding compulsory school attendance laws
inapplicable to Amish parents who refused to send their
children to school, 406 U.S. at 233, quoted in Smith, 494 U.S.
at 881 n.1, Smith said that Yoder implicated not only free
exercise but also "the right of parents, acknowledged in
Pierce ..., to direct the education of their children," id. at
881. Smith thus makes clear that a square assertion of
parental rights elevates the standard of review applicable to a
free exercise claim otherwise subject to rational basis scruti-
ny. See id. ("The only decisions in which we have held that
the First Amendment bars application of a neutral, generally
applicable law to religiously motivated action have involved
not the Free Exercise Clause alone, but the Free Exercise
Clause in conjunction with other constitutional protections,
such as ... [parental rights]...."). In light of Smith, I am
unconvinced by the District's reliance on Prince for the
proposition that rational basis review applies to parental
rights claims. Smith leaves no doubt that if the child labor
law in Prince, like the compulsory school attendance law in
Yoder, had genuinely implicated a parental right distinct from
the right of free exercise, then some form of heightened
scrutiny should have applied. See Smith, 494 U.S. at 881;
accord City of Boerne v. Flores, 117 S. Ct. 2157, 2161 (1997).
In sum, the inquiry triggered by plaintiffs' claim of a
fundamental right is not whether the curfew on the whole
helps or hinders parental control--that is a policy question
for D.C. lawmakers, not federal judges--but rather whether
the District has provided sufficient justification for imposing
the particular restrictions on parental control to which these
plaintiffs object. On this question, I stand by my view that
although the District's goal of reducing crime by and against
juveniles is important enough to justify restrictions on paren-
tal liberty under either strict or intermediate scrutiny, the
method it chose so plainly lacks an evidentiary link to the
stated goal that it fails the tailoring prong of both strict and
intermediate scrutiny. See Hutchins, 144 F.3d at 826-27
(Tatel, J., concurring in the judgment); Rogers Op. at 22-31.
I respectfully dissent.