dissenting. I must respectfully dissent from the majority opinion. In State, ex rel. Nagle, v. Olin (1980), 64 Ohio St. 2d 341, 18 O.O. 3d 503, 415 N.E. 2d 279, this court noted:
“In balancing an individual’s right to freely exercise religious beliefs against a state’s legitimate interest in assuring that its citizens receive quality educations, a court performs a sensitive and delicate task. Wisconsin v. Yoder, supra, at page 235. Our decision today, as in State v. Whisner, demonstrates simply that until such time as the State Board of Education adopts minimum standards which go no further than necessary to assure the state’s legitimate interests in the education of children in private elementary schools, the balance is weighted, ab initio, in favor of a First Amendment claim to religious freedom.” Id. at 354-355, 18 O.O. 3d at 511, 415 N.E. 2d at 288.
R.C. 3321.04 provides in part that excuses from future attendance at or past absence from school or a special education program may be granted for cause by the superintendent of schools under the following condition:
“* * * (A)(2) That * * * [the child] is being instructed at home by a person qualified to teach the branches in which instruction is required, and such additional branches, as the advancement and needs of the child may, in the opinion of such superintendent, require. * * *” (Emphasis added.)
This statute gives the school superintendent the unbridled discre*38tion to determine if a home-schooling teacher is “qualified.” In fact, the superintendent admitted upon cross-examination that the statute provides wide latitude to school superintendents and different superintendents interpret and apply the code section differently. He testified the statute could be interpreted six hundred fifteen different ways by each of the six hundred fifteen superintendents of schools in the state. He further testified that the code section is not clear, is ambiguous, and needs clarification by the court so that parents and superintendents of schools will know what conduct is permitted and what conduct is prohibited.
In Roemhild v. State (1983), 251 Ga. 569, 308 S.E. 2d 154, the Georgia Supreme Court held that the Georgia compulsory school attendance statute was not sufficiently definite to provide a person of ordinary intelligence, who desired to avoid its penalties by having his or her children attend private school, fair notice of what constituted a “private school” and, thus, was void for vagueness. The court also noted that the law failed to establish minimum guidelines as to what constituted a “private school,” so as to impermissibly delegate to local enforcement officials, judges and juries the policy decision of what constituted a “private school” in determining whether individuals had complied with law and was, therefore, unconstitutionally vague. See, also, State v. Popanz (1983), 112 Wis. 2d 166, 332 N.W. 2d 750.
As generally stated, “the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson (1983), 461 U.S. 352, 357.
R.C. 3321.04(A)(2) is unconstitutionally void for its vagueness in that the definition of a “person qualified to teach” does not afford a person of average intelligence what is required under the statute, and it violates the Due Process Clauses of the Ohio and United States Constitutions since it delegates unbridled discretion to a government official as to whether parents can exercise the fundamental constitutional right of teaching their child at home.
If a statute or regulation is void on its face because it is impermissibly vague, an individual may refuse to comply with the law’s requirements and still raise the law’s facial invalidity as a defense in a subsequent prosecution under it. Staub v. Baxley (1958), 355 U.S. 313; Thornhill v. Alabama (1940), 310 U.S. 88; Lowell v. Griffin (1938), 303 U.S. 444, 452-453.
I would reverse the judgment of the court of appeals and enter judgment for the appellants.