Hutchins, Tiana v. DC

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,

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