concurring:
I concur in my colleague’s excellent opinion. If the issues were ones of first impression, I might completely agree, but I feel the majority of the Supreme Court in Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), has established a path from which at times the majority strays.
The majority opinion in Yoder categorized two legitimate state interests in the education of children:
to prepare [its] citizens to participate effectively and intelligently in our open political system ... [and] ... [2] [to] prepare [its citizens] to be self-reliant and self-sufficient participants in society.
Id. at 221, 92 S.Ct. at 1536. Justice White, in a concurring opinion joined by Justices Brennan and Stewart, said that in addition to those interests recognized in the majority opinion, the state has a legitimate interest “in seeking to develop the latent talents of its children [and] in seeking to prepare them for the life style that they may later choose----” Id. at 240, 92 S.Ct. at 1545. Justice Douglas, the single dissenter, would have held that expansive constitutional rights attach directly to the children and balance in their favor against the First Amendment freedom-of-religion rights of their parents.
My problems arise from the following portions of the panel majority’s opinion: In footnote 3, the majority states
In addition to the mandates of the Supreme Court in Yoder, we find that our chief consideration must be the welfare of the Duro children. When we examine their well-being, along with their state constitutional right to an education, we conclude that the children’s right to an education that will prepare them for their future is paramount. Article 1, § 15 of the North Carolina Constitution expressly provides that, “[t]he people have a right to the privilege of education and it is the *100duty of the State to guard and maintain that right.”
In the final paragraph of its opinion, the panel majority concludes:
We find, therefore, that this case is factually distinguishable from Yoder. Despite Duro’s sincere religious belief, we hold that the welfare of the children is paramount and that their future well-being mandates attendance at a public or non-public school. Furthermore, we conclude that North Carolina has demonstrated an interest in compulsory education, which is of sufficient magnitude to override Duro’s religious interest.
I concur in the above-quoted sections to the extent they may be read as saying that North Carolina has a legitimate interest in the welfare and future well-being of the Duro children.1 While recognizing that this may be a departure from the Yoder majority opinion, I believe such a consideration is appropriate under the facts of this case because of the young ages of the children involved — most of them were of grade school age, unlike the children in Yoder who had received eight years of formal education.
I must disagree, however, with two possible inferences which seem to follow from the above-quoted sections of the panel majority’s opinion. First, the majority apparently gives weight, in balancing the state’s interests, to a provision in the North Carolina Constitution which provides: “[t]he people have a right to the privilege of education and it is the duty of the State to guard and maintain that right.” While I applaud that state constitutional expression, North Carolina cannot argue, and we cannot consider, that such expression increases its interests in educating children as against the parents’ rights to exercise their religion freely. A state educational policy, constitutional or otherwise, simply is not added to the scales in balancing First Amendment rights. Whatever the balancing factors, they are inherent in the First Amendment itself.
Second, any possible inference from the above-quoted sections that in deciding this case we should consider the rights of the children to choose to attend school as against their parents’ religious interests, is improper. The only issue before the court is the constitutionality of a state statute which seeks to compel the Duro parents to send their children to school. The children have not asserted their rights in this case. As Chief Justice Burger noted in Yoder, courts should exercise extreme caution in approaching the delicate balance between the Freedom of Exercise clause and the state’s vital interest in public education. At the very least, we should decline to theorize on issues which are not factually developed. The posture of this case is not different from the Yoder case in which all of the Justices, save the dissent, agreed that their case in no way involved any questions regarding the rights of the children to attend school.
. The use of the phrase “welfare and future well-being,” I assume, connotes the preparation for participation in our political system and self-reliance explained by the majority in Yoder, as well as Justice White's reasoning concerning the development of latent talents and a life-style of the child’s choice. Additionally, the language used by my panel colleagues is sufficiently broad to include many other individual values or desires not contemplated by either the majority or concurring opinions in Yoder. I would confine the language narrowly to the facts of this case.