Hutchins v. District of Columbia

188 F.3d 531, 338 U.S. App. D.C. 11, 1999 WL 397429

• Court: Court of Appeals for the D.C. Circuit
• Decided: May 22, 1998
• Docket: 96-7239
• Status: Published

Opinions

Opinion for the Court filed by Circuit Judge SILBERMAN.

Circuit Judges WALD, GINSBURG, KAREN LeCRAFT HENDERSON, and GARLAND join in Parts I, III, & IV.

Opinion concurring in part and concurring in the result filed by Chief Judge HARRY T. 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 appeals 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 problem — 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. §§ 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 establishments 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 violated 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; (S) 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 Amendment 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, guardian, 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 Services 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 violation, 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 injunction against enforcement of the curfew and a declaration that the curfew violates the minors’ Fifth Amendment Due Process 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 unreasonable searches and seizures; and is unconstitutionally vague. The district court granted summary judgment to appellees and enjoined enforcement of the curfew. Hutchins v. District 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 “[sjtate 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 tailored 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 produced by the District did not meet that test. The court also thought that four of the curfew’s defenses — the First Amendment 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 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, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993) (citing Collins v. Harker Heights, 503 U.S. 115, 125, 112 S.Ct. 1061, 117 L.Ed.2d 261 (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 assertion. It is true that the right to interstate travel is well-established. See Saenz v. Roe, — U.S. -, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999); Shapiro v. Thompson, 394 U.S. 618, 629-31, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). Although the precise source of this right remains somewhat obscure, see Shapiro, 394 U.S. at 629 n. 8, 89 S.Ct. 1322, its origins reflect a concern over state discrimination against outsiders rather than concerns over the general ability to move about. See Saenz v. Roe, — U.S. -, 119 S.Ct. 1518, 143 L.Ed.2d 689 (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, 86 S.Ct. 1170, 16 L.Ed.2d 239 (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, 102 S.Ct. 2309, 72 L.Ed.2d 672 (1982) (O’Connor, J., concurring in the judgment) (describing the right as originating in the Privileges and Immunities Clause of Art. IV); Edwards v. California, 314 U.S. 160, 173-74, 62 S.Ct. 164, 86 L.Ed. 119 (1941) (describing the right as being grounded in the Commerce Clause); Zobel, 457 U.S. at 60 n. 6, 102 S.Ct. 2309 (describing the right to travel cases as a particular application of equal protection analysis); Shapiro, 394 U.S. at 630, 89 S.Ct. 1322 (describing 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, 86 S.Ct. 1170)).

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, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958) (“Freedom of movement is basic in our scheme of values.”); Guest, 383 U.S. at 758, 86 S.Ct. 1170 (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” (quoting Crandall v. Nevada, 73 U.S. (6 Wall.) 35, 49, 18 L.Ed. 745 (1867) (quoting The Passenger Cases, 48 U.S. (7 How.) 283, 492, 12 L.Ed. 702 (1849) (Taney, C.J., dissenting)))); Williams v. Fears, 179 U.S. 270, 273, 21 S.Ct. 128, 45 L.Ed. 186 (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 Indeed, the Supreme Court in Memorial Hospital v. Maricopa County, 415 U.S. 250, 255, 94 S.Ct. 1076, 39 L.Ed.2d 306 (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 fundamental right subject to a more exacting standard. See Haig v. Agee, 453 U.S. 280, 306-07, 101 S.Ct. 2766, 69 L.Ed.2d 640 (1981) (upholding constitutionality 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 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, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972), that “wandering or strolling” from place to place was historically part of the “amenities of life,” id. at 164, 92 S.Ct. 839, the Court actually held only that the vagrancy law at issue was void for vagueness, see id. at 165-71, 92 S.Ct. 839; see also Kolender v. Lawson, 461 U.S. 352, 357-62, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). While vagrancy statutes certainly prohibit individuals from moving about, the constitutional infirmity in these statutes 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 declined to decide whether the right to interstate travel recognized 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 interstate and intrastate” travel) with Wardwell v. Board of Educ. of City School Dist. of City 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 substantive 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 upholding 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 constitutional rights that stem from basic notions of ordered liberty “deeply rooted in [our] history and tradition,” Washington v. Glucksberg, 521 U.S. 702, -, 117 S.Ct. 2258, 2268, 138 L.Ed.2d 772 (1997) (quoting Moore v. City of East Cleveland, 431 U.S. 494, 503, 97 S.Ct. 1932, 52 L.Ed.2d 531 (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, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989) (plurality) (quoting Moore, 431 U.S. at 502, 97 S.Ct. 1932). The Supreme Court has warned us that our analysis must begin with a careful description of the asserted right for the more general is the right’s description, ie., the free movement of people, the easier is the extension of substantive due process. See Reno v. Flores, 507 U.S. at 302, 113 S.Ct. 1439; see also Michael H., 491 U.S. at 127 n. 6, 109 S.Ct. 2333 (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, 113 S.Ct. 1439 (quoting Collins v. Marker Heights, 503 U.S. 115, 125, 112 S.Ct. 1061, 117 L.Ed.2d 261 (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 government 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, 104 S.Ct. 2403, 81 L.Ed.2d 207 (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 “unemancipated 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.” Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 115 S.Ct. 2386, 132 L.Ed.2d 564 (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, 64 S.Ct. 438, 88 L.Ed. 645 (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 inconsistent 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 implicating fundamental rights, see id., 321 U.S. at 166-67, 168-69, 64 S.Ct. 438 (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, 113 S.Ct. 1439 (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, 104 S.Ct. 2403 (upholding pretrial detention of juvenile delinquents after a finding of “serious risk” on the ground that it served a legitimate, nonpunitive regulatory purpose); Prince, 321 U.S. at 169-70, 64 S.Ct. 438 (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, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968) (upholding 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 curfews 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 victimization 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 considering” 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, 104 S.Ct. 2403 (quoting Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 78 L.Ed. 674 (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 unconstitutional 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, 43 S.Ct. 625, 67 L.Ed. 1042 (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, 45 S.Ct. 571, 69 L.Ed. 1070 (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 403, 43 S.Ct. 625 (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 and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations,” id. at 533, 45 S.Ct. 571. 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 thp' state can neither supply nor hinder.” Prince, 321 U.S. at 166, 64 S.Ct. 438 (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, 64 S.Ct. 438. 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, 64 S.Ct. 438. By so reasoning, the Court distinguished between the “private realm of family life,” id. at 166, 64 S.Ct. 438, and those activities subject to the evils of public places, applying something very close to rational basis review for laws restricting the latter. See also Wisconsin v. Yoder, 406 U.S. 205, 215, 231, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (high school attendance law unconstitutionally infringed 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 education 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, — U.S. -, 119 S.Ct. 1252, 143 L.Ed.2d 349 (1999).

III.

Even if the curfew implicated fundamental rights of children 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), intermediate scrutiny is called for. We think the latter. Considering 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, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976). Still, children’s rights are not coextensive with those of adults. See Prince, 321 U.S. at 169, 64 S.Ct. 438; see also Bellotti v. Baird, 443 U.S. 622, 633-39, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) (plurality opinion). So “although children generally are protected 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, 99 S.Ct. 3035. 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 Services International, 431 U.S. 678, 693 n. 15, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977) (plurality opinion); Bellotti 443 U.S. at 634, 99 S.Ct. 3035. The reasoning of Bellotti Prince, and Carey necessarily suggests that something 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). Compare 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) government interests.⁴ See Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976); see also Mississippi University for Women v. Hogan, 458 U.S. 718, 724, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (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 op 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 juvenile arrests for, inter alia, aggravated assault, murder, and carrying a dangerous weapon). Given this picture of juvenile 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, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) (government must demonstrate that its asserted interests 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 government’s interest, we see three interrelated concepts: the factual 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 premise 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 victimization 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 purporting to justify differential treatment of men and women. See Craig, 429 U.S. at 199-204, 97 S.Ct. 451; Hogan, 458 U.S. at 723-31, 102 S.Ct. 3331. But we think the key to understanding the Supreme Court’s close analysis in those qases is the Court’s observation in Craig “that proving broad sociological propositions by statistics is a dubious business, and one that inevitably is in tension with the normative philosophy that underlies the Equal Protection Clause.” Craig, 429 U.S. at 203, 97 S.Ct. 451. We think by that the Court implied that it is particularly troubling when legislation 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 differential treatment because of its interference with their “fundamental” 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 diagnosis 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’ arrests 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. 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 discrepancies appear to be minor.⁵ The bottom line is that the 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 aggravated assault, committed by groups of all ages, were more likely to occur during curfew hours was sufficient to demonstrate a “fit” between the curfew ordinance and the compelling state interest. See id. Similarly, that the District did not produce data showing where juvenile crime and victimization occurred (ie., that it occurred primarily outside of the home) is not problematic. That a substantial percentage of violent juvenile victim-izations (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 confíne 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 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 experiences, legislatures are not obliged to insist on scientific methodology. See City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 51-52, 106 S.Ct. 925, 89 L.Ed.2d 29 (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, 429 U.S. at 201-04, 97 S.Ct. 451 (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 successful 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 á 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 relevance of this testimony because the District did not demonstrate 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 decisionmaking 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 constitutionality of which we take up below) help ensure that the ordinance 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’ interests 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, 99 S.Ct. 3035 (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 substantially conflict with parental authority because a parent could always buy those sorts of magazines for their children. See Ginsberg, 390 U.S. at 639, 88 S.Ct. 1274. 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 without parental supervision, but the Court did not consider that theoretical impingement on parental authority worth mentioning; it saw the statute as essentially supporting parental 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 § 6-2183(b)(l)(A); id. at § 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 children to walk the dog or go to the store. Id. at § 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 § 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 §§ 6-2183(b)(l)(D)-(E), parents retain ample authority to exercise parental control. Since the curfew generously accommodates parental rights, preserving parental discretion to direct the upbringing of their children, it does not unconstitutionally 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, 97 S.Ct. 394, 50 L.Ed.2d 333 (1976); compare Nunez, 114 F.3d at 946 (striking down curfew as violation of parental rights based on broad sweep of ordinance and limited 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 undefined,” and that these defenses therefore do not withstand constitutional scrutiny. Hutchins, 942 F.Supp. at 679. Insofar as appellees contend that there is too much imprecision in the articulation of these defenses, they are really undermining 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 “unattainable 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 requirements 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, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (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, 92 S.Ct. 2294 (quoting American Communications Ass’n v. Douds, 339 U.S. 382, 412, 70 S.Ct. 674, 94 L.Ed. 925 (1950))).

Appellees claim that the First Amendment defense⁹ is impermissibly vague because juveniles would need to be “constitutional scholars” to know what activities were forbidden 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 ensures that the curfew will not be applied to protected expression; 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 Schleifer, 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 impermissi-bly vague because it does not define the term “a civic organization, or another similar entity that takes responsibility for the minor.” While “civic organization” and “entity that takes responsibility for the minor” are admittedly imprecise 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 organizations, or the District of Columbia. In this context, the addition of “civic organization, or another similar entity” simply includes within the defense the general class of organizations that may be thought analogous to schools, religious organizations, or governmental entities. Compare Hynes v. Mayor of Oradell, 425 U.S. 610, 621, 96 S.Ct. 1755, 48 L.Ed.2d 243 (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 unconstitutionally vague because it “improperly delegates standard-less 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 evaluating 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 situation 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 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 “speculative 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 discretion 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, 104 S.Ct. 2118, 80 L.Ed.2d 772 (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, 106 S.Ct. 3172, 92 L.Ed.2d 568 (1986). The curfew regulates the activity of juveniles during nighttime hours; it does not, by its terms, regulate expressive conduct. See Spence v. Washington, 418 U.S. 405, 410-11, 94 S.Ct. 2727, 41 L.Ed.2d 842 (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 disproportionately 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 significantly deter juveniles from engaging in First Amendment activities in the first instance. But appellees have not provided 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.”! 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, 83 S.Ct. 1623, 10 L.Ed.2d 726 (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.

HARRY T. 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 them 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 society’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.

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, “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. However, the opinion never specifically defines what fundamental parental rights are at issue here. Some explication is necessary, 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 formulation 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 “intimate” 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. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944); accord Reno v. ACLU, 521 U.S. 844, 865 n. 31, 117 S.Ct. 2329, 138 L.Ed.2d 874 (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 established beyond debate as an enduring American tradition.

Wisconsin v. Yoder, 406 U.S. 205, 232, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); see also Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (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 arrangements.’ ” (quoting Kovacs v. Cooper, 336 U.S. 77, 95, 69 S.Ct. 448, 93 L.Ed. 513 (1949) (Frankfurter, J., concurring))); Pierce v. Society of Sisters, 268 U.S. 510, 534-35, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) (striking down state law requiring children to attend public schools as “interfering] 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 Supreme 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 definition — regulates activity that takes place outside the home and school. The fact that some of the aforecited Supreme Court cases inyolve 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, 88 S.Ct. 1274, 20 L.Ed.2d 195 (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 imposed 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 activities in sports programs, summer camps, tutorial counseling, college selection, and scores of other such activities, all arising outside of the family residence and school classroom. To ignore this reality is to ignore the Supreme Court’s admonition 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, 92 S.Ct. 1526.

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, 64 S.Ct. 438, 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, 92 S.Ct. 1208 (internal quotation marks omitted). However, when the Government 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 Children’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 shoiving 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, 92 S.Ct. 1526, and that it may regulate and even prohibit child labor, see Prince, 321 U.S. at 166, 64 S.Ct. 438. Rather, the case law suggests that if there is a significant and important goal to be achieved that generally enhances the health, safety, or welfare 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 children: (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; however, 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.

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, 64 S.Ct. 438 (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’ decision 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, § 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 emergency. Finally, subsection (G) allows a minor to 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,” 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 impermissibly preempt parental rights. See Action for Children’s Television 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 between 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 supervision of children’s exposure to indecent material.”). No responsible 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 imper-missibly 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.

1 . Appellees argued below that the curfew violated both substantive 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, 111 S.Ct. 2395, 115 L.Ed.2d 410 (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, 62 S.Ct. 1110, 86 L.Ed. 1655 (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 treatment”). 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 addressed in both the substantive due process and equal protection inquiries—is there a fundamental right at issue?

2 . Kent and Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964), could even be viewed primarily as First Amendment cases.

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).

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.

5 . At the request of the D.C. Council during its consideration of the curfew law, the Metropolitan Police Department compiled statistics 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 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.

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 substantial 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.

8 . Thai 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 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, 92 S.Ct. 2294. 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 organization, or another similar entity that takes responsibility for the minor.”

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)(l)(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.” 2d. at § 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 § 6-2182 (11).

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., 472 U.S. 491, 503-04, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985); Sanjour v. EPA, 56 F.3d 85, 92 n. 10 (1995).

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.