Appellant, Wayne Burrow, was charged with refusing to send a minor to school, in violation of Ark. Stat. Ann. § 80-1502 (Repl. 1980):
Every parent, guardian, or other person residing within the State of Arkansas and having in custody or charge any child or children between the ages of seven [7] and fifteen [15], (both inclusive) shall send such child or children to a public, private, or parochial school under such penalty for noncompliance with this section as hereinafter provided.
Appellant had notified authorities that he was educating his daughter at home using curriculum supplied by a correspondence school. Prior to being charged, he received notice of noncompliance and was given five days to comply. Appellant was found guilty in Pulaski Municipal Court and the case was then heard in Pulaski County Circuit Court where he was again convicted and fined $1,000. Appellant presents three points for reversal: 1) the statute is void for vagueness; 2) the statute violates the free exercise clause of the Constitution; 3) the trial court erred in finding that § 80-4302 gives the state the power to approve private schools.
Appellant urges us to find the statute unconstitutionally vague. He argues that our law requires attendance of children at a “public, private or parochial school” but fails to give any definition of what constitues school and, therefore, does not provide fair notice of the conduct that is prohibited. We recognize that compulsory school attendance laws similar to ours have been struck down on this ground in two recent cases: Roemhild v. State, 251 Ga. 569, 308 S.E.2d 154 (1983); State v. Popanz, 112 Wis.2d 166, 332 N.W.2d 750 (1983), however, we decline at this point to consider the question as we think the appellant lacks standing to raise that issue on the facts of this case.
It is an accepted principle that when challenging the constitutionality of a statute on the ground of vagueness, the individual challenging the statute must be one of the “entrapped innocent,” who has not received fair warning. If, by his action, that individual clearly falls within the conduct proscribed by the statute he cannot be heard to complain. See 16A Am. Jur. 2d, § 461; L. Tribe, American Constitutional Law § 12-28 (1978); and see Winters v. Beck, 281 F. Supp. 793 (E.D. Ark. 1968). We stated the traditional standard for determining vagueness in Jordan v. State, 274 Ark. 572, 626 S.W.2d 947 (1982): “Where a man of average intelligence would not have to speculate as to the meaning of the statute the constitutional requirement of specificity is met, since fair warning of the proscribed conduct is given.”
Our statute states that parents are to “send” their children to a “public, private or parochial school.” The common understanding of this phrase connotes an institution to which a child is sent and even the appellant’s expert witnesses testified that the common conception of these terms was consistent with schools in the institutional sense. We think someone of average intelligence would readily recognize that appellant’s educational methods do not constitute a school within the common understanding of the word. The program he devised consisted of a single student, his own child; instruction was held in his own home; there is no indication that appellant wanted to open a school, as that term is popularly understood, or that his purpose went beyond anything other than educating his own child at home. There were no certified teachers conducting classes, only appellant and his wife acting as instructors, neither of whom held a college degree; the instruction was done for the most part through a correspondence course, evidently unapproved by the State. Under these circumstances, the language of the statute was clear enough to appellant to put him on adequate notice that a course of home study would not constitute a school within the meaning of the statute.
Appellant’s second contention is also without merit. He submits the statute is in violation of his First Amendment right to the free exercise of his religion. He relies primarily on the balancing test laid out in Wisconsin v. Yoder, 406 U.S. 205 (1972). However, the circumstances of the case before us plainly lack the exceptional considerations that were present in Yoder. There, the defendants, who were Amish, demonstrated distinct religious beliefs and practices supported by three centuries of tradition as an identifiable religious sect with pronounced cultural overtones, and that compulsory attendance would have damaging consequences on those longstanding traditions. In balancing the interests, the court determined that the state objectives were not seriously impeded by the Amish educational system. In contrast, the appellant, while doubtless sincere, was able to make no showing of a religious or cultural tradition comparable to that in Yoder, nor that similarly serious harm would result to the practices of a distinct group. Of course, appellant is free to send his daughter to a parochial school for a religiously oriented education, as he had previously done.
Appellant’s third point was not raised in the trial court and will not be considered. Moss v. State, 280 Ark. 27, 655 S.W.2d 375 (1983).
Finding no error, we affirm the judgment.
Purtle and Hollingsworth, JJ., concur. Adkisson, C.J., and Hickman, J., dissent.