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Randy BLACKWELDER, Alice Blackwelder, Carmon Blackwelder, Katherine Blackwelder, Stephen Standish, Debora Standish, Aaron Standish, George Lonneville, Hilda Lonneville, Amy Lonneville, and Jacqueline Lonneville, Plaintiffs,
v.
Henry SAFNAUER, in his official capacity as the Superintendent of the Cato- Meridian Central School District; Edward Garno, in his official capacity as Superintendent of the City School District of Oswego; and Michael Hunsinger, in his official capacity as Superintendent of the Waterloo Central School District, Defendants,
and
The State of New York, Intervenor-Defendant.

No. 86-CV-1208.

June 17, 1988.

*112 Michael P. Farris, Washington, D.C., David Rollinson, Syracuse, N.Y., for plaintiffs.

Bond, Schoeneck & King, Syracuse, N.Y., for defendants Safnauer, Hunsinger & Garno; Deborah H. Karalunas, Jonathan B. Fellows, of counsel.

Robert Abrams, Atty. Gen. of the State of N.Y., Albany, N.Y., for intervenor defendant State of N.Y.; Alfred J. Sciarrino, Asst. Atty. Gen., of counsel.

Norman H. Gross, Albany, N.Y., for Proposed amicus curiae New York State United Teachers, AFL-CIO, and New York School Boards Ass'n, Inc.; Jay Worona, Associate Counsel, of counsel.

MEMORANDUM-DECISION AND ORDER

MUNSON, Chief Judge.

This is an action commenced under 42 U.S.C. § 1983 that presents a variety of constitutional challenges to a New York statute governing the minimum standard of instruction that must be provided to minors between the ages of six and sixteen who are taught outside of the public schools of the cities and districts of the state. This case involves the practice of "homeschooling," or the instruction of children at home by their parents or other private instructors. Plaintiffs are homeschooling parents and children who for religious reasons have chosen this alternative form of education in lieu of public education. Defendants are the State of New York and the three superintendents of schools for the districts in which the various plaintiffs reside. The challenged statute, § 3204 of New York's Education Law, mandates that the educational services provided to a minor "elsewhere than at a public school shall be at least substantially equivalent to the instruction given to minors of like age and attainments at the public schools of the city or district where the minor resides," and that such services must be provided by "competent" instructors. N.Y.Educ.Law § 3204(2) (McKinney 1981 & Supp.1988). Plaintiffs argue that § 3204 is unconstitutionally vague, violates both the establishment and free exercise clauses of the first amendment, offends due process, and is enforced through on-site visits by public school authorities which violate the right to privacy guaranteed by the fourth and fourteenth amendments. Plaintiffs seek injunctive and declaratory relief. Before the court are cross-motions for summary judgment. [FN1]

FN1. Plaintiffs also move for leave to file a second amended complaint, apparently relying on unspecified papers previously filed with the court. Because plaintiffs have failed to adhere to Rule 10(c) of the Rules of the United States District Courts for the Northern District of New York (the "Local Rules") in making this motion, the motion to amend is summarily denied.

The following facts are deemed undisputed. [FN2] Plaintiffs Randy and Alice Blackwelder *113 are the parents of two school age children, plaintiffs Carmon and Katherine Blackwelder. The Blackwelders reside within the jurisdictional boundaries of the Cato-Meridian Central School District ("Cato-Meridian District"). The Cato-Meridian District requires the conditional approval of all proposed alternative educational programs, including homeschooling programs, prior to the commencement of the academic year for which approval is sought. To obtain such conditional approval, a family wishing to educate their children at home must submit a proposed calendar, curriculum, list of textbooks, syllabus and standardized testing schedule (if appropriate) for review by a representative of the schooldistrict. That representative must also be apprised of the credentials and life and occupational experiences of the instructor or instructors who are to conduct the homeschooling program. Final approval of a homeschooling program in the Cato-Meridian District is contingent upon the results of a scheduled visit to the home where the alternative instruction is to be given by a team of representatives of the local Board of Cooperative Educational Services. Ordinarily, one or two scheduled on-site inspections are conducted during the school year. The Blackwelders have indicated that they wish to educate their children at home for religious reasons, but refuse to permit on-site visits, and indeed contend that the state does not have "jurisdiction" over their children's education.

FN2. The progress of this case has been hindered by plaintiffs' failure to adhere to the procedural framework of the Federal Rules of Civil Procedure and this court's Local Rules. The court has been indulgent-- perhaps too indulgent--in forgiving a multitude of procedural errors, because it has not wanted to punish the individual plaintiffs for the shoddy motion practice of their attorneys. There comes a point, however, when forbearance of one party's carelessness unfairly prejudices their adversaries. That point has been reached in this case. Local Rule 10(j) unambiguously provides: Upon any motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, there shall be annexed to the notice of motion a separate, short and concise statement of the material facts as to which the moving party contends there is no genuine issue. The papers opposing a motion for summary judgment shall include a separate, short and concise statement of the material facts as to which it is contended that there exists a genuine issue. All material facts set forth in the statement required to be served by the moving party will be deemed admitted unless controverted by the statement required to be served by the opposing party. The motion for summary judgment may be denied if the movant fails to annex the statement required by this Paragraph. This rule serves the important purposes of narrowing the issues of dispute, focusing inquiry into areas of genuine controversy, and avoiding unnecessary waste of resources by the court and the other parties to the action. Plaintiffs' attorney should be aware of the existence of this rule; the other parties involved in this action as well as the court itself have repeatedly referred plaintiffs' attorney to the Local Rules, seemingly to no avail. Plaintiffs have failed to file a statement in compliance with Local Rule 10(j) either in opposition to defendants' motions for summary judgment or in support of their own cross-motion for summary judgment. Therefore, the court will consider the facts set out in defendants' Rule 10(j) statement as uncontested. The court will not deny plaintiffs' cross-motion for summary judgment because of their failure to file a Rule 10(j) statement, but will deem the facts set out in defendants' Rule 10(j) statement as admitted in addressing the merits of plaintiffs' cross-motion.

Plaintiffs Stephen and Debora Standish reside within the jurisdictional limits of the City School District of Oswego ("Oswego District"). Because of their religious beliefs, the Standishes wish to educate their child, plaintiff Aaron Standish, in their home. The Oswego District's procedures for giving alternative education programs conditional and permanent approval parallel those of the Cato-Meridian District. On-site inspections are to be conducted by a school district representative or a mutually acceptable third party before final approval of ahomeschooling program can be obtained. The Standishes do not recognize the jurisdiction of the Oswego District or the state to regulate their child's educational program, and have refused to cooperate with school district officials in order to gain approval for their homeschooling program.

Plaintiffs George and Hilda Lonneville similarly wish to have their children, plaintiffs Amy and Jacqueline Lonneville, educated in a homeschooling program. Like the other plaintiffs in this action, they are motivated by religious concerns, and do not recognize the state's right to approve or disapprove of the educational choices they make for their children. The Lonnevilles reside in the Waterloo Central School District ("Waterloo District"), which follows procedures comparable to those of the other school districts involved in this litigation in determining whether homeschooling programs should be given conditional and final approval. The Lonnevilles have not submitted standardized test scores to district officials nor permitted on- site visits by representatives of the Waterloo District.

On October 31, 1986 the original complaint was filed in this action. The named plaintiffs were the Blackwelders and the members two other families who have since dropped out of this case. The named defendants were Henry Safnauer, the Superintendent of the Cato-Meridian District, and two other district superintendents who were also dropped from this litigation after it began. On February 6, 1987, a motion for leave to file an amended complaint was granted. [FN3] The Standishes and the Lonnevilles *114 were added as party plaintiffs, and Edward Garno and Michael Hunsinger, Superintendents of the Oswego and Waterloo Districts, respectively, were added as defendants. On February 23, 1987, a motion by the State of New York for leave to intervene as a defendant in this action was granted. Subsequent to the commencement of this action, educational neglect proceedings [FN4] were commenced against the Blackwelders and the Standishes in the Family Court for the State of New York, Cayuga County and Oswego County, respectively. The same constitutional issues presented in this action have been raised in those state court proceedings. By order dated April 27, 1988, Judge Corning of the Cayuga County Family Court dismissed the educational neglect petition brought against the Blackwelders, finding that the Blackwelder children were receiving an education "substantially equivalent" to that offered in the public schools. In re Sarah B., 528 N.Y.S.2d 759 (Fam.Ct.1988). [FN5] The Family Court proceedings against the Standishes are still pending.

FN3. A number of amended complaints have been passed around in this action. Plaintiffs have obtained leave to file the first amended complaint only, and it is that pleading that controls in this action. See, e.g., Washer v. Bullitt County, 110 U.S. 558, 562, 4 S.Ct. 249, 250-51, 28 L.Ed. 249 (1884); International Controls Corp. v. Vesco, 556 F.2d 665, 668-69 (2d Cir.1977), cert. denied, 434 U.S. 1014, 98 S.Ct. 730, 54 L.Ed.2d 758 (1978). In the court's order granting plaintiffs' motion for leave to file the amended complaint, the court directed plaintiffs to "serve the amended complaint on all of the defendants within 30 days of the date of this order." Blackwelder v. Safnauer, No. 86-CV-1208, slip op. at 2 (N.D.N.Y. February 6, 1987). Though copies of the proposedamended complaint were served on the attorneys representing defendant Safnauer, the amended complaint was not served on Safnauer after the date of the above- quoted order. If it were not for the language contained in the court's February 6, 1987 order, service of the amended complaint on the attorneys for this defendant--over whom the court had already obtained personal jurisdiction--would have been sufficient under Fed.R.Civ.P. 5(b). See, e.g., Roberts v. Husky Industries, Inc., 71 F.R.D. 479, 480 (E.D.Tenn.1973); Walters v. Boyd, 187 F.Supp. 479, 480-81 (S.D.Tex.1960); 2 J. Moore & J. Lucas, Moore's Federal Practice § 5.04 (1987). Since it is possible that plaintiffs' attorney misunderstood the February 6 order and believed that service on the newly named defendants within thirty days of the date of the order was all that was required, the court will not penalize plaintiffs for their failure to serve defendant Safnauer in accordance with that order. Since no additional factual allegations relevant to the claims against Safnauer was included in the amended complaint, the court will treat Safnauer's answer to the original complaint as his answer to the amended pleading.

FN4. In New York, a "neglected child" is defined as a child under the age of eighteen "whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent or other person legally responsible for his care to exercise a minimum degree of care (A) in supplying the child with adequate food, clothing, shelter or education in accordance with the provisions of part one of article sixty-five of the education law, ... though financially able to do so or offered financial or other reasonable means to do so ..." N.Y.Fam.Ct.Act § 1012(f)(i)(A) (McKinney 1983). Part I of Article 65 of New York's Education Law covers the state's compulsory education provisions, see N.Y. Educ. Law § § 3201-3234 (McKinney 1981 & Supp. 1988), and includes within it the provision of the Education Law which plaintiffs now challenge on constitutional grounds.

FN5. Though Judge Corning touched upon the constitutional concerns raised by the Blackwelders in this case, the disposition of the Family Court proceeding seems to rest entirely upon the application of state law. Consequently, the court finds that Judge Corning's decision does not have preclusive effect with regard to the federal constitutional claims at issue here.

Defendants urge this court to abstain from deciding the issues raised here, or in the alternative to grant summary judgment on the merits of plaintiffs' constitutional claims and to dismiss the amended complaint in its entirety. Plaintiffs cross-move for summary judgment on their claims, save for their claim under the free exercise clause of the first amendment. [FN6]

FN6. Also before the court is a motion by the New York School Boards Association, Inc. and the New York State United Teachers, AFL-CIO, for leave to file an amici curiae brief. This motion is granted, and the Clerk is directed to file the proposed amici curiae brief submitted by those organizations.

[1][2] As a preliminary matter, it must be determined whether the pendency of the Family Court proceeding against the Standishes requires the court to refrain from *115 exercising jurisdiction over any or all of the claims raised in this case under the doctrine of abstention. The abstention "doctrine"--in reality a series of equitable doctrines inspired by concerns of comity and federalism--constitutes "an extraordinary and narrow exception to the duty of a [d]istrict [c]ourt to adjudicate a controversy properly before it." County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188-89, 79 S.Ct. 1060, 1063, 3 L.Ed.2d 1163 (1959). The various categories of abstention "are not watertight," Law Enforcement Ins. Co., Ltd. v. Corcoran, 807 F.2d 38, 40 (2d Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 1896, 95 L.Ed.2d 503 (1987), nor are they "rigid pigeonholes into which federal courts must try to fit cases. Rather, they reflect a complex of considerations designed to soften the tensions inherent in a system that contemplates parallel judicial processes." Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 107 S.Ct. 1519, 1526 n. 9, 95 L.Ed.2d 1 (1987). The court must balance these factors "in a pragmatic, flexible manner with a view to the realities of the case at hand." Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 21, 103 S.Ct. 927, 940, 74 L.Ed.2d 765 (1983). That abstention from the exercise of a federal court's jurisdiction remains "the exception, not the rule" is a fundamental truism that must always be kept in mind when determining whether the doctrine is applicable under a particular set of facts. See Colorado River Water Conservation District v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976).

Despite the heavy presumption favoring the exercise of this court's jurisdiction, there are certain matters that so closely implicate the core sovereign concerns of the states that a federal court must abstain from deciding even serious constitutional questions if the exercise of federal jurisdiction would greatly interfere with those sovereign interests. Defendants urge that child neglect proceedings affect interests of such import to the states that abstention under the principles of federalism explicated in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), is mandated. With respect to the claims of the Standishes, the court agrees that abstention is mandated by Younger and its progeny. With respect to the claims of the remaining parties, however, the court finds abstention inappropriate.

[3] In Younger, the Supreme Court held that a federal court cannot, absent exceptional circumstances, enjoin a pending state criminal prosecution. Id. at 53, 91 S.Ct. at 755. At least two basic policy considerations have come to be associated with the Younger doctrine. [FN7] First, there is "the basic doctrine of equity jurisprudence that courts of equity should not act, and particularly should not act to restrain a criminal prosecution, when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief." Id. at 43- 44, 91 S.Ct. at 750. This principle is equally applicable when declaratory relief rather than injunctive relief has been sought from a federal court while a parallel state court criminal proceeding is pending, since "ordinarily a declaratory judgment will result in precisely the same interference with and disruption of state proceedings that the long-standing policy limiting injunctions was designed to avoid." *116Samuels v. Mackell, 401 U.S. 66, 72, 91 S.Ct. 764, 767, 27 L.Ed.2d 688 (1971).

FN7. A third consideration, not expressly discussed in Younger itself, has become associated with the Younger doctrine. The jurisprudential aversion to advisory opinions cautions against rendering decision on federal constitutional questions which could be raised in a pending state court proceeding. Pennzoil, 107 S.Ct. at 1526. When a state statute is challenged on federal constitutional grounds, "a constitutional determination is predicated on a reading of the statute that is not binding on state courts and may be discredited at any time--thus essentially rendering the federal-court decision advisory and the litigation underlying it meaningless." Moore v. Sims, 442 U.S. 415, 428, 99 S.Ct. 2371, 2380, 60 L.Ed.2d 994 (1979). A similar concern underlies the line of cases spawned by Railroad Comm'n of Texas v. Pullman, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). See Pennzoil, 107 S.Ct. at 1526 n. 9. For the reasons discussed in the text, infra at 119-20, where the court addresses the applicability of the Pullman doctrine to this case, the court believes that this third policy consideration that has become associated with Younger is not seriously implicated in the instant lawsuit.

[4][5] The Younger Court also discussed "an even more vital" reason to refrain from interfering with an ongoing state criminal proceeding:
[The Court's decision] is reinforced by ... the notion of "comity," that is, a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways.... The concept does not mean blind deference to "States' Rights" any more than it means centralization of control over every important issue in our National Government and its courts. The Framers rejected both these courses. What the concept does represent is a system in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States. 401 U.S. at 44, 91 S.Ct. at 750. These comity and federalism concerns, of course, are at the heart of the Younger doctrine, and have been the justification for the extension of the doctrine to cases in which non-criminal state proceedings might be disrupted by an adjudication in a federal court. Thus, the principles underlying Younger have been found equally relevant when determination of a claim brought in federal court would disrupt ongoing civil proceedings conducted by state tribunals when those proceedings implicate important state interests. [FN8] The general rule remains, however, that separate in personam actions involving identical parties may proceed concurrently in federal and state court. McClellan v. Carland, 217 U.S. 268, 30 S.Ct. 501, 54 L.Ed. 762 (1910). Before the Younger doctrine comes into play, at least three conditions must be present: an "important," "substantial," or "vital" state interest must be at stake in the state proceeding, the state proceeding must afford the parties involved in the concurrent federal litigation an adequate opportunity to raise their federal claims, and there must be an "on-going" state proceeding with which a federal court decree would interfere. Middlesex Ethics Committee, 457 U.S. at 432, 102 S.Ct. at 2521; Moore v. Sims, 442 U.S. 415, 423-25, 99 S.Ct. 2371, 2377-78, 60 L.Ed.2d 994 (1979). All three prerequisites are present in the case at bar.

FN8. See, e.g., Ohio Civil Rights Comm'n v. Dayton Christian Schools, Inc., 477 U.S. 619, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986) (federal court should have abstained when religious school sought to enjoin state administrative hearing on sex discrimination claim); Middlesex County Ethics Committee v. Garden State Bar Ass'n, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982) (federal court should abstain from considering constitutional challenge to attorney disciplinary rules that are subject of pending state disciplinary proceeding); Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977) (state interest in vindicating orderly operation of its judicial process through contempt sanctions deemed sufficiently important to invoke Younger ); Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975) (federal court should abstain from deciding constitutional challenge to nuisance statute prohibiting exhibition of "obscene" films in face of on-going state nuisance proceedings, since challenged nuisance law implicated interests "closely related" to concerns underlying criminal laws).

The requirement that a substantial state interest be implicated before Younger abstention is invoked directly reflects the comity and federalism concerns that are the doctrine's basic justification. Particularly relevant in this regard to the case at bar is Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, where the Supreme Court found that on-going child abuse proceedings in which the state was a party were proceedings " 'in aid of and closely related to criminal statutes,' " id. at 423, 99 S.Ct. at 2377 (quoting Huffman v. Pursue, Ltd., 420 U.S. 592, 604, 95 S.Ct. 1200, 1208, 43 L.Ed.2d 482 (1975)), and thus a constitutional challenge to a state's practice of removing suspected child abuse victims from parental custody without notice pending the hearing on the abuse charge could not be *117 entertained in light of Younger. Though the educational neglect proceeding involving the Standishes does not involve the state's compelling interest in preventing the continued physical abuse of a child, it nonetheless is not so far removed from the type of proceedings involved in Moore that that case should not be deemed controlling. In Moore, the Supreme Court noted that "[f]amily relations are a traditional area of state concern." 442 U.S. at 435; see also DeSpain v. Johnston, 731 F.2d 1171, 1179 (5th Cir.1984) (child abuse proceeding); Williams v. Williams, 532 F.2d 120 (8th Cir.1976) (adoption proceeding). Indeed, the rights and duties of parents and children have long been considered matters of chiefly local concern that implicate fundamentally important state interests. See, e.g., Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944); Williams, 532 F.2d at 122. It seems clear that the neglect proceedings involving the Standishes affect vital and significant state interests.

The requirement that the parties must be able to assert their federal claims in the state proceeding gives force to the equity principles which were an important part of the development of the Younger doctrine. The availability of an adequate remedy at law makes the exercise of equitable jurisdiction less advisable. In the present case, the same constitutional arguments that are raised here can be asserted by the Standishes in the Family Court proceeding in which they are involved.

[6] Finally, for the Younger doctrine to apply in this case, there must be an "on-going state proceeding" with which a federal court adjudication of plaintiffs' claims for injunctive and declaratory relief would interfere. As one court observed, "[t]iming is crucial to the applicability of Younger. " DeSpain, 731 F.2d at 1177. When a state proceeding is pending at the time a federal complaint is filed, that proceeding is clearly an "ongoing state proceeding" within the meaning of Younger. The Younger doctrine has not been limited, however, to cases in which state proceedings predate the federal action. In Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975), the Supreme Court held that where state proceedings are commenced against the plaintiffs in a federal action after the filing of the federal complaint "but before any proceedings of substance on the merits have taken place in the federal court," the Younger principles "should apply in full force." Id. at 349, 95 S.Ct. at 2292.

[7] Whether "proceedings of substance on the merits" occurred in this case prior to the institution of the Family Court actions is a close question. It is clear that a denial of a temporary restraining order by the federal court prior to the commencement of a state action does not sufficiently advance the federal lawsuit that abstention under Younger is unwarranted, for that was the procedural posture of the Hicks case. On the other hand, the issuance of a preliminary injunction by the federal court before state proceedings are begun does amount to "proceedings of substance on the merits," foreclosing the application of Younger. Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 238, 104 S.Ct. 2321, 2328, 81 L.Ed.2d 186 (1984); Doran v. Salem Inn, Inc., 422 U.S. 922, 929-31, 95 S.Ct. 2561, 2566-68, 45 L.Ed.2d 648 (1975). There is authority to the effect that the denial of preliminary injunctive relief, at least after an extended evidentiary hearing, constitutes "proceedings of substance on the merits" within the meaning of Hicks. Adultworld Bookstore v. City of Fresno, 758 F.2d 1348, 1350-51 (9th Cir.1985); Red Bluff Drive-In, Inc. v. Vance, 648 F.2d 1020, 1033 (5th Cir.1981), cert. denied, 455 U.S. 913, 102 S.Ct. 1264, 71 L.Ed.2d 453 (1982). In the instant case, the court granted a motion by plaintiffs for leave to file an amended complaint and granted a motion by the State of New York to intervene before state educational neglect proceedings were commenced. These motions did not substantially involve the court in the merits of the underlying constitutional issues raised here, and the court finds that they are not the sort of proceedings contemplated by Hicks. Though it is true that the complaint in this action was filed months before the commencement of the neglect proceedings, it is equally true *118 that plaintiffs, largely because of various procedural snafus, see supra note 2, were unable to present the merits of their case to the court prior to the institution of state proceedings. Therefore, the court finds that the requirement that there be an "on-going state proceeding" before Younger abstention is invoked has been satisfied under the facts of this case.

[8][9][10][11] Having found that the three conditions discussed above are present, the court must abstain from hearing the claims of the Standishes, at least, unless The limited exceptions to Younger are applicable. DeSpain, 731 F.2d at 1180. A federal court should not abstain under Younger when the state proceeding was brought in bad faith or as a means to harass the federal plaintiffs, or when other "extraordinary circumstances" necessitate federal judicial intervention. [FN9] Plaintiffs allege that the Family Court proceedings initiated against the Blackwelders and Standishes were instituted at the insistence of the attorneys for the defendant superintendents in retaliation for bringing this lawsuit. The neglect proceedings brought against the Blackwelders and the Standishes, however, were initiated by the local districts of New York's Department of Social Services for Cayuga County and Oswego County, respectively, and not the defendant superintendents or their representatives. Indeed, school superintendents are not empowered to unilaterally originate such neglect proceedings. [FN10] Even if the court were to find that the defendant superintendents were impelled by evil motives in notifying the Department of Social Services that the plaintiff children were not enrolled in an approved alternative education program, a conclusion not supported by the record, the court would be unable to find that the neglect proceedings themselves were instituted in bad faith, since there is no reason to believe that the local social services agencies involved had any interest in punishing plaintiffs for bringing this lawsuit in federal court. Nor are other "extraordinary circumstances" justifying federal judicial intervention present in this case. Plaintiffs do not challenge a statute that is so " 'flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph,' " *119Younger, 401 U.S. at 53, 91 S.Ct. at 755 (quoting Watson v. Buck, 313 U.S. 387, 402, 61 S.Ct. 962, 967, 85 L.Ed. 1416 (1941)), that immediate relief must be afforded by a federal court, and no other reason for not abstaining has been suggested by plaintiffs.

FN9. The traditional showing that must be made to obtain equitable relief is "irreparable injury." Such a showing is not enough when the comity principles underlying Younger are implicated, since it is assumed that "state courts will adhere to constitutional standards, and the mere possibility of erroneous application of those standards will not amount to the irreparable injury necessary to justify a disruption of orderly state proceedings." DeSpain, 731 F.2d at 1180 n. 22 (quotation omitted). Instead, a showing of "great and immediate" irreparable injury must be made to overcome the comity considerations upon which Younger abstention is founded. See 401 U.S. at 46, 91 S.Ct. at 751; see also Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). A showing of bad faith or harassment in the institution of a criminal or "quasi- criminal" proceeding (such as a neglect proceeding, at issue in the instant case) constitutes "great and immediate" irreparable injury in and of itself. See, e.g., Fitzgerald v. Peek, 636 F.2d 943, 944 (5th Cir.), cert. denied, 452 U.S. 916, 101 S.Ct. 3051, 69 L.Ed.2d 420 (1981). The Supreme Court has indicated that a showing of "great and immediate" irreparable injury might also be established by demonstrating that "[o]ther unusual situations calling for federal intervention" exist. Younger, 401 U.S. at 54, 91 S.Ct. at 755.

FN10. Under New York law, abuse or neglect proceedings may only be instituted by a "child protective agency" or a person who has obtained prior authorization from the Family Court to originate such a proceeding. N.Y. Fam.Ct.Act § 1032 (McKinney 1983 & Supp. 1988). A "child protective agency" is defined as "any duly authorized society for the prevention of cruelty to children or the child protective service of the appropriate local department of social services or such other agencies with whom the local department has arranged for the provision of child protective services under the local plan for child protective services." N.Y.Fam.Ct.Act § 1012(i) (McKinney 1983 & Supp. 1988); see also N.Y. Soc. Serv. Law § 423 (McKinney 1983 & Supp. 1988). As the New York Court of Appeals recently noted, "[t]he requirement for court approval or authorization for proceedings prompted by those other than child protective agencies indicates the Legislature's concern that judicial proceedings touching the family relationship should not be casually initiated and imposes upon the courts the obligation to exercise sound discretion before permitting such petitions to be filed." Weber v. Stony Brook Hospital, 60 N.Y.2d 208, 212, 469 N.Y.S.2d 63, 65, 456 N.E.2d 1186, 1188 (1983) (per curiam), cert. denied, 464 U.S. 1026, 104 S.Ct. 560, 78 L.Ed.2d 732 (1983).

[12][13][14][15] In light of the foregoing, the court concludes that the Younger doctrine compels it to refrain from deciding the claims made by the Standishes, and consequently their claims against defendant Garno are dismissed. See Gibson v. Berryhill, 411 U.S. 564, 577, 93 S.Ct. 1689, 1697, 36 L.Ed.2d 488 (1973). More problematical is the application of Younger to the claims of the other families involved in this lawsuit. Neglect proceedings are not pending against either of these families. [FN11] As a general proposition, abstention is mandated under Younger only when the federal plaintiff is actually a party to the state proceeding; the doctrine does not bar non-parties from raising constitutional claims in federal court, even if the same claims are being addressed in a concurrent state proceeding involving similarly situated parties. Doran v. Salem Inn, Inc., 422 U.S. 922, 928-29, 95 S.Ct. 2561, 2566, 45 L.Ed.2d 648 (1975); cf. Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). An exception to this rule comes into play when "legally distinct parties are so closely related that they should all be subject to the Younger considerations which govern any Them." Doran, 422 U.S. at 928, 95 S.Ct. at 2566. When the interests of a federal plaintiff and a party involved in a pending state proceeding are so "intertwined" that the federal plaintiff can vindicate his rights in the pending state proceeding, those parties may be treated as one in applying Younger principles. Such a close relationship between the parties does not exist here, even though plaintiffs are represented by the same attorney, hold similar religious beliefs, and resist state interference with the home instruction of their children for similar reasons. The individual rights of the Blackwelders and Lonnevilles have not merged legally with those of the Standishes; members of the former two families cannot intervene in the pending Family Court proceeding involving the Standishes in order to have their constitutional claims heard, and thus the Younger doctrine does not bar this court from entertaining those claims. [FN12]

FN11. Neglect proceedings have not been instituted against the Lonnevilles. A petition was filed against the Blackwelders, but the Family Court for Cayuga County has dismissed the petition, see In re Sarah B., 528 N.Y.S.2d 759 (1988), and this determination has not been appealed.

FN12. Though there are no neglect proceedings pending against these plaintiffs, the court concludes that they do have standing to maintain this action. To satisfy the "case or controversy" requirement of Article III of the Constitution, "the plaintiff must show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant." Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 66 (1979); Warth v. Seldin, 422 U.S. 490, 498-99, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). The State of New York clearly intends to enforce the requirements of its Education Law, including the provision challenged here, as is demonstrated by the institution of neglect proceedings against the Blackwelders and Standishes. The Blackwelders and Lonnevilles have been equally unambiguous in their intention not to allow on-site visits or otherwise comply with the defendants' attempts to enforce the mandate of § 3204 of the Education Law. Therefore, the threat of possible future neglect proceedings against those plaintiffs is more than a mere speculative possibility. Cf. Trucke v. Erlemeier, 657 F.Supp. 1382, 1387 (N.D.Iowa 1987) ("While a past prosecution of the plaintiffs [for violation of an Iowa compulsory attendance law] does not always create standing [in an action challenging the law], it is a relevant indication of the State's willingness to prosecute and the plaintiffs' willingness to risk prosecution.").

[16] The claims of the remaining plaintiffs are not barred by the policy considerations underlying Railroad Comm'n of Texas v. Pullman, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). The Pullman abstention doctrine requires a federal court to stay a federal action raising a substantial federal constitutional issue when a state court's interpretation of an unclear state law could render resolution of the constitutional question unnecessary. Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 236, 104 S.Ct. 2321, 2327, 81 L.Ed.2d 186 (1984). In such cases, delaying decision might *120 "avoid both unnecessary adjudication of federal questions and 'needless friction with state policies.' " Id. (quoting Pullman, 312 U.S. at 500, 61 S.Ct. at 645). The Second Circuit has identified "three essential conditions" which must be present before Pullman abstention is properly invoked: (1) the state law that is the subject of a constitutional challenge must be ambiguous or uncertain; (2) resolution of the federal issues raised must depend on the construction given the state law at issue; and (3) the state law must be "susceptible of an interpretation that would avoid or modify the federal constitutional issue." McRedmond v. Wilson, 533 F.2d 757, 761 (2d Cir.1976); see also West v. Village of Morrisville, 728 F.2d 130, 133-34 (2d Cir.1984).

[17][18] The provision of New York's Education Law that is challenged in this litigation has been the subject of considerable case law in New York's state courts, and is part of a well-developed system of assessing alternative educational programs. See text, infra at 121-25. Interpretation of the requirements of § 3204 of the Education Law by the courts of the State of New York has been basically consistent. In addition, the portions of subdivision 2 of § 3204 that are challenged here have remained unchanged since the statute's enactment in 1947, see 1947 N.Y. Laws ch. 820, § 3204; see also People v. Turner, 277 A.D. 317, 98 N.Y.S.2d 886 (4th Dept.1950), and are derived from New York's compulsory education act of 1894. See 1894 N.Y. Laws ch. 671; see also In re Falk, 110 Misc.2d 104, 107, 441 N.Y.S.2d 785, 788 (Fam.Ct.1981). Abstention seems particularly inappropriate when a constitutional challenge is made to a statute that has "been on the books" for such a substantial period, has not become dormant through lack of enforcement, and has been the subject of a number of largely consistent state court decisions. Sherr v. Northport-East Northport Union Free School District, 672 F.Supp. 81 (E.D.N.Y.1987). Under such circumstances, the state law implicated by the constitutional challenge cannot be fairly deemed "unsettled." Further, though the highest court in the state system, the New York Court of Appeals, has not spoken on the proper construction to be given § 3204(2) nor addressed the issues plaintiffs raise here, it does not appear likely that the constitutional questions raised in this action would be avoided or modified by a construction given § 3204(2) that differs from that prevailing among New York's lower courts, with the possible exception of the vagueness challenge to the statute, discussed infra at 121-28. On this basis, the court concludes that the Pullman abstention doctrine does not provide justification for avoidance of the issues raised made by the Blackwelders and Lonnevilles.

[19] Though nThe recognized categories of abstention apply to the claims of the remaining families, [FN13] the Supreme Court has indicated that under "exceptional circumstances" a federal district court may, in deference to ongoing parallel state proceedings, decline to exercise jurisdiction over federal claims otherwise properly before it if necessary to further the interest of " '[w]ise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation.' " Colorado River Water Conserv. Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 1246, 47 L.Ed.2d 483 (1976) (quoting Kerotest Mfg. Co. v. C-O-Two Fire Equipment Co., 342 U.S. 180, 183, 72 S.Ct. 219, 221, 96 L.Ed.2d 200 (1952)). Colorado River establishes a discretionary power in the district courts which must be exercised with certain specified considerations in mind. Among those considerations, as recently summarized by the Second Circuit, are:

FN13. Resolution of the claims raised in this case would not interfere with a state's endeavors to maintain a consistent policy or approach in an area that is the subject of a comprehensive regulatory scheme. See Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943); Law Enforcement Ins. Co., Ltd. v. Corcoran, 807 F.2d 38, 43-44 (2d Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 1896, 95 L.Ed.2d 503 (1987).

the assumption by either the state or federal court of jurisdiction over any res *121 or property, the inconvenience of the federal forum, the avoidance of piecemeal litigation, the order in which jurisdiction was obtained, whether federal or state law provides the rule of decision, and whether the state court proceeding will adequately protect the rights of the party seeking to avail itself of federal court jurisdiction. American Disposal Services, Inc. v. O'Brien, 839 F.2d 84, 87 (2d Cir.1988) (citing Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U.S. 1, 15-16, 23-27, 103 S.Ct. 927, 937, 941-43, 74 L.Ed.2d 765 (1983)); see also Bethlehem Contracting Co. v. Lehrer/McGovern, Inc., 800 F.2d 325, 327 (2d Cir.1986). These factors are to be considered by this court "with the balance heavily weighted in favor of the exercise of jurisdiction." Moses H. Cone, 460 U.S. at 16, 103 S.Ct. at 937.

[20] The court concludes that dismissal under Colorado River is inappropriate in the case at bar. [FN14] There is no property or res involved in this litigation, and thus the exercise of this court's jurisdiction would not tend to impede or embarrass a state court in its handling of a case in which it has already asserted control over the tangible subject matter of a dispute. See Law Enforcement Ins. Co., Ltd. v. Corcoran, 807 F.2d 38, 41- 42 (2d Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 1896, 95 L.Ed.2d 503 (1987). There is no indication that the federal forum is any more or less convenient for the parties involved in this action than the Family Court. Since the Blackwelders and Lonnevilles are not parties to the state court proceedings, they are not bound by any determinations made there, and thus addressing the merits of their claims here will not create "piecemeal litigation" that could otherwise be avoided. Federal law provides the rule of decision in this case. Since they do not have standing to advance their position in the Family Court proceedings involving the Standishes, it cannot be said that those proceedings will adequately protect the rights of the non-party families. Therefore, the court must reach the merits of the issues raised in this lawsuit.

FN14. But see Deakins v. Monaghan, 484 U.S. ----, 108 S.Ct. 523, 533 n. 5, 98 L.Ed.2d 529 (1988) (White, J., concurring) (citing Colorado River in support of the proposition that it would be "prudent" for district court to stay the adjudication of claims brought by three plaintiffs who were not under indictment when those claims were "virtually indistinguishable" from those raised by three other plaintiffs who were indicted subsequent to the bringing of their federal action, after suggesting that the claims of the latter group of plaintiffs should be stayed under Younger ).

B. Vagueness

Plaintiffs maintain that New York's compulsory education law, at least as applied to those who desire to educate their children at home because of religious concerns, is impermissibly vague. They argue that New York's requirement that minors taught outside the public school system must receive instruction from a "competent" teacher that is at least "substantially equivalent" to that provided students in public schools fails to provide sufficiently concrete standards of conduct for those who wish to educate their children at home. Further, plaintiffs contend that the manner in which the state evaluates homeschooling programs gives the superintendents of the numerous local school districts throughout the state unbridled discretion in determining whether a particular program provides the statutorily required level of instruction.

Whether the language of § 3204 of the Education Law is sufficiently definite to pass scrutiny under the due process clause of the Constitution cannot be determined in a vacuum; the requirements of New York's compulsory education laws must be assessed as a whole, extending full consideration to regulatory refinements and any limiting construction given by an appropriate enforcement agency or state court. Village of Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 n. 5, 102 S.Ct. 1186, 1191 n. 5, 71 L.Ed.2d 362 (1982); Grayned v. City of Rockland, 408 U.S. 104, 110, 92 S.Ct. 2294, 2300, 33 L.Ed.2d 222 (1972). Consequently, the court must review the relevant statutory and regulatory framework affecting *122 the content of any homeschooling program plaintiffs may wish to institute or join, as well as New York case law construing those statutes and regulations.

New York's compulsory education law mandates that "[i]n each school district of the state, each minor from six to sixteen years of age shall attend upon full time instruction," N.Y. Educ. Law § 3205(1)(a) (McKinney 1981), and imposes upon the parents or guardians of such a child a statutory duty to assure that the child receives the instruction mandated by New York law. N.Y.Educ.Law § 3212(2)(b) (McKinney 1981 & Supp. 1988). Nothing in New York's compulsory education scheme prohibits parents from providing their children with a "systematic course of study" in their own home. In re Walker, 69 Misc.2d 400, 403, 330 N.Y.S.2d 8, 12 (Fam.Ct.1972); see also In re Franz, 55 A.D.2d 424, 427, 390 N.Y.S.2d 940, 942 (2d Dept.1977); People v. Turner, 277 A.D. at 319, 98 N.Y.S.2d at 888; N.Y. Educ.Law § 3204(1) (McKinney 1981). However, state law requires that "[i]nstruction given to a minor elsewhere than at a public school shall be at least substantially equivalent to the instruction given to minors of like age and attainments at the public schools of the city or district where the minor resides." N.Y. Educ.Law § 3204(2) (McKinney 1981 & Supp.1988). Concomitant with this requirement is that instruction outside the public schools must be given by a "competent" teacher. Id. A parent whose child does not attend a public or parochial school in the city or district in which the parent resides must furnish proof that the child "is attending upon required instruction elsewhere," and the failure to provide such proof raises a presumption that the child is not receiving the required instruction. N.Y.Educ.Law § 3212(2)(d). This presumption can be overcome by evidence that the child is receiving instruction "substantially equivalent" to that offered at the public schools of the city or district where the child resides, but the failure to come forward with such evidence can result in a finding of educational neglect. N.Y.Fam.Ct.Act § 1012 (f)(i)(A) (McKinney 1983); [FN15] In re Christa H., 127 A.D.2d 997, 997, 513 N.Y.S.2d 65, 65 (4th Dept.1987); In re Andrew "TT", 122 A.D.2d 362, 364, 504 N.Y.S.2d 327, 328 (3d Dept.1986).

FN15. See supra note 4.

The primary responsibility for ensuring compliance with the requirements of the compulsory education law rests with the local boards of education for the various school districts throughout New York, In re Adam D., 132 Misc.2d 797, 801, 505 N.Y.S.2d 809, 812 (Fam.Ct.1986), and the superintendent of schools in each district commonly acts as agent for the boards in carrying out this responsibility. The local boards of education have the initial responsibility of determining whether an alternative educational program, including a homeschooling program, provides instruction substantially equivalent to that provided in the public schools in their own districts. In re Adam D., 132 Misc.2d at 801, 505 N.Y.S.2d at 812 (citing New York State Education Dept., Guidelines on Home Instruction (Sept.1985)). Such determinations are subject to review by the Commissioner of Education of the State of New York. In re Adam D., 132 Misc.2d at 803, 505 N.Y.S.2d at 813.

Any determination of the "substantial equivalency" of at-home instruction necessarily must take into account the statutes and regulations that govern public education in the State of New York. New York's public schools must remain in session for a minimum of 190 days per school year, including legal holidays, and minors educated "elsewhere than at a public school" must attend for at least as many hours per school year as are required for public schoolchildren. N.Y. Educ.Law § § 3204(4)(a), 3210(2)(a). Attendance records must be maintained, N.Y. Educ. Law § 3211, and detailed guidelines for recordkeeping is provided in regulations promulgated by New York's Department of Education ("the Department"). 8A N.Y. Comp. Codes R. & Regs. ("NYCRR") Part 104 (1988).

State law establishes certain minimum instructional requirements that must be *123 satisfied by the local public school districts. For example, New York requires its public schools to instruct students in a wide variety of matters with an eye toward preparing those students "for participation as citizens" and "inculcating fundamental values necessary to the maintenance of a democratic political system." Ambach v. Norwick, 441 U.S. 68, 76-77, 99 S.Ct. 1589, 1594, 60 L.Ed.2d 49 (1979). Thus, the state requires instruction in "patriotism and citizenship," N.Y.Educ.Law § 801 (McKinney 1969), instruction in the history and significance of the state and federal constitutions as well as the Declaration of Independence, id., the teaching of civics and New York state history, N.Y.Educ.Law § 3204(3) (McKinney 1981), instruction relating to the flag, N.Y.Educ.Law § 802 (McKinney 1969), training in fire and arson prevention, highway safety, and the conservation of natural resources, N.Y.Educ.Law § § 801, 806-08 (McKinney 1969), and health education regarding drugs, alcohol and cigarettes, N.Y.Educ.Law § 804 (McKinney 1969). See generally 8A N.Y.C.R.R. § 100.2(c).

General guidelines for the substantive content of the studies of public schoolchildren are also outlined by the state. In grades one through six, students attending public schools in New York must "receive instruction in arithmetic, reading, spelling, writing, the English language, geography, United States history, science, health education, music, visual arts, physical education and, where student need is established, bilingual education and/or English as a second language." 8A N.Y.C.R.R. § 100.3; see also N.Y.Educ. Law § 3204(3). Though detailed regulations for health education and physical education are provided, see 8A N.Y.C.R.R. § § 135.3(b), 135.4(c)(2)(i), generally the local school boards are afforded wide leeway at the elementary school level in determining the scope and depth of instruction in a particular discipline. Instead of mandating adherence to a detailed and uniform curriculum, the state has opted to set out general educational goals for students in grades prekindergarten through six, see 8A N.Y.C.R.R. § 100.3(a)(1), leaving to the local boards of education the responsibility for establishing specific educational requirements. See N.Y.Educ.Law § 1709(33) (McKinney 1969). [FN16] This allows flexibility in addressing unique local problems, enhances responsiveness to the educational concerns of the communities within a particular school district, and respects this nation's tradition of vesting primary control over educational policy with local authorities. The state monitors the progress of elementary school age children through periodic testing, 8A N.Y.C.R.R. § 100.3(b)(2), and these examinations must conform to certain requirements designed in part to assure uniformity, so that the effectiveness of the various approaches of the local school districts can more meaningfully be assessed. Children being taught at home must take the same pupil evaluation tests in reading, writing and mathematics that are administered to public schoolchildren. 8A N.Y.C.R.R. § 100.3(b)(2)(ii).

FN16. Subdivision 33 provides in general terms that local school boards are "[t]o have in all respects the superintendence, management and control of the education affairs of the [school] district, and, therefore, shall have all the powers reasonably necessary to exercise powers granted expressly or by implication and to discharge duties imposed expressly or by implication by [the Education Law or other statutes]." N.Y. Educ. Law § 1709(33).

The state has established more detailed program requirements for students in the state's secondary schools. For example, all public school students attending grades seven and eight must complete two "units of study" in English, two units of study in the social sciences, two units of study in the physical sciences, two units of study in mathematics, and one-half unit of study each in art and music. 8A N.Y.C.R.R. § 100.4(b)(2). A "unit of study" is defined as 180 minutes of instruction per week throughout the school year. 8A N.Y.C.R.R. § 100.1(a). At the high school level, there are similarly detailed specifications of minimum "units of study" in basic subjects that must be completed successfully before a student can receive a high school diploma. See 8A N.Y.C.R.R. § 100.5. Nonetheless, though the state regulations concerning *124 secondary education are considerably more detailed than those governing the primary schools, the scope and depth of instruction are not specified. Again, the state has opted to entrust the details of public education with the local school boards.

Given the deference to local school districts that characterizes New York's approach to the establishment of specific substantive educational requirements for its public schoolchildren, it is not surprising that the New York State Department of Education has not issued binding regulations governing homeschooling. [FN17] In 1985, however, the Department did promulgate advisory guidelines concerning the establishment of a home instruction program. See New York State Education Dept., Guidelines on Home Instruction, Sept. 1985 (hereinafter "The Guidelines") (Copy attached as Exh. A of Affidavit of Deborah H. Karalunas). While stressing that the issue of home instruction is best "dealt with locally," the Department drew upon the past experiences of various districts in formulating "recommendations for effective practices." Id. at i. The Department recommends that parents wishing to educate their children at home should immediately arrange a meeting with the superintendent of the school district in which they reside or some other representative of the school district. Parents are advised to "acquire information on the subjects which must be taught at various ages and grade levels" from the superintendent or from the Department itself. Id. at 4. Parents are urged to "allow ample time for the approval process to take place prior to beginning home instruction," since removing their children from school and placing them in an unapproved homeschooling program could "be found to be a violation of Education Law." Id. [FN18]

FN17. Plaintiffs have advised the court that the Department of Education has proposed new regulations governing home instruction and the evaluation of homeschooling programs. As of this writing, the court has not been advised whether those proposed regulations have been adopted by New York's Board of Regents, and consequently the court will restrict its analysis to the regulations in effect at the time this lawsuit was filed.

FN18. Plaintiffs argue that the language contained in the Guidelines and quoted in the text appears to be a misstatement of New York law, since there is no statutory or regulatory requirement that a parent obtain the permission of the school board for the district in which they reside or the district's superintendent before removing a child from a public school. This point is more fully explained in a decision by New York's Commissioner of Education:
It is strongly recommended that a parent or guardian of a child who is to be educated at home or in a nonpublic school unknown to local school officials advise the superintendent of schools of his or her intention to have the child educated outside of the public school system, so that parent or guardian can be informed of the requirements of the compulsory attendance law. However, there is no statutory requirement that a parent or guardian obtain the consent of a superintendent of schools or board of education before removing a child from a public school. When a child between the ages of six and sixteen does not attend school, and school officials conclude that the child is not receiving a proper instructional program, the school district must then take steps to enforce the compulsory attendance law, which may include [bringing educational neglect charges to the attention of the Department of Social Services].
If upon review of the home instruction program [the parent or guardian] is providing her children, [the superintendent] concludes that the [child] is not receiving a sufficient educational program at home, and if [the parent or guardian] does not alter the program to provide the elements necessary for such program to be substantially equivalent to that offered in [public] schools, then [the superintendent] would be obliged to seek enforcement of the compulsory attendance law. However, the superintendent of schools should base a determination as to substantial equivalency of instruction upon an evaluation of the instruction actually furnished by [the parent or guardian] to her children.
Matter of Raeder-Tracy, --- Ed. Dept. Rep. ----, No. 11819, slip op. at 2 (May 14, 1987) (emphasis added). The court does not attach the same significance to this alleged discrepancy between the Guidelines and the Commissioner's opinion as do plaintiffs. First, it does not appear to this court that the Guidelines, when read as a whole, suggest that the act of removing a child from public school before obtaining approval for an alternative educational program would, in and of itself, constitute grounds for the institution of neglect proceedings. Second, even if such a suggestion were contained in the Guidelines, those Guidelines are represented to be merely precatory. In no way do they presume to require parents to obtain the permission of local school officials before taking their children out of the public school system.

*125 The Guidelines delineate the type of information that should be supplied to the local superintendent when approval for a homeschooling program is sought. This information includes a plan of instruction and a calendar for the year, syllabi and a list of materials or textbooks to be used, a description of the background, experience and credentials of the teacher, and a plan for evaluating the academic progress of the child being taught at home. Id. Parents are advised of the requirement of periodic testing necessary to evaluate the progress of the home-educated child. Id. at 5-6. If after completing his review of the proposed home instruction program the superintendent concludes that the program is unacceptable, the Guidelines recommend that the superintendent set out in writing the deficiencies of the proposed program, and it is recommended that parents be given an opportunity to redesign the program in order to correct the problems identified by the superintendent. Id. at 9. If the revised program still does not satisfy the superintendent, it is recommended that the parents be given an opportunity to challenge the superintendent's findings at a hearing before the local board of education. Id. The Guidelines advise parents of their right to appeal an adverse determination by the board to the Commissioner of Education. Id. If, on the other hand, a proposed homeschooling program meets with the superintendent's approval, the Guidelines recommend that on-site visits by school officials be conducted at least once or twice during the school year while instruction is taking place. Id. at 6, 9. The Guidelines recommend that a homeschooling program be reevaluated by the superintendent on an annual basis, and that the progress of the child taught at home should be monitored through both state-mandated pupil evaluation tests as well as optional standardized tests. Id. at 10, 12.

[21][22][23][24] The Supreme Court has recognized that when a state law is challenged as unconstitutionally vague, at least two distinct principles of due process are implicated.
First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Grayned v. City of Rockland, 408 U.S. at 108-09, 92 S.Ct. at 2299 (citations omitted). In evaluating whether a particular rule of conduct fails to establish sufficiently definite guidelines, the court must be mindful that "[t]he degree of vagueness that the Constitution tolerates--as well as the relative importance of fair notice and fair enforcement--depends in part on the nature of the enactment." Hoffman Estates, 455 U.S. at 498, 102 S.Ct. at 1193. For example, when the first amendment rights of expression or association are implicated by the enforcement of a statutory or regulatory rule of conduct, the state will be held to a higher standard of specificity than might be the case if purely economic regulation was at issue. See, e.g., Hoffman Estates, 455 U.S. at 498-99, 102 S.Ct. at 1193; Parker v. Levy, 417 U.S. 733, 756, 94 S.Ct. 2547, 2561-62, 41 L.Ed.2d 439 (1974); Smith v. Goguen, 415 U.S. 566, 573, 94 S.Ct. 1242, 1247, 39 L.Ed.2d 605 (1974). Further, greater precision is required when possible criminal or "quasi- criminal" penalties are contemplated, because in such cases "the consequences of imprecision" are qualitatively more severe. Hoffman Estates, 455 U.S. at 498-99, 102 S.Ct. at 1193; see Colautti v. Franklin, 439 U.S. 379, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979); Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939). Because plaintiffs failure to ensure that their children receive an education "substantially equivalent" to that offered in public schools within the meaning of § 3204 could *126 subject them to educational neglect charges, the court finds that a more stringent test for vagueness should be applied than would be necessary for strictly economic regulation.

[25][26][27][28][29][30] The nature of the court's inquiry is also influenced by whether the allegedly vague law is being attacked facially or as applied. Ordinarily, a state law is unconstitutionally vague on its face when its requirements are "expressed in terms of such generality that 'no standard of conduct is specified at all.' " Brache v. County of Westchester, 658 F.2d 47, 51 (2d Cir.1981), cert. denied, 455 U.S. 1005, 102 S.Ct. 1643, 71 L.Ed.2d 874 (1982) (quoting Coates v. City of Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 1688, 29 L.Ed.2d 214 (1971)). If a law "has a core meaning that can reasonably be understood, then it may validly be applied to conduct within the core meaning, and the possibility of such a valid application necessarily means that the statute is not vague on its face." Brache, 658 F.2d at 51; see also Smith v. Goguen, 415 U.S. 566, 577-78, 94 S.Ct. 1242, 1249, 39 L.Ed.2d 605 (1974). Absent a showing that a law is "impermissibly vague in all of its applications," Hoffman Estates, 455 U.S. at 497, 102 S.Ct. at 1193, a vagueness challenge can succeed only if plaintiffs demonstrate that the law is impermissibly vague as applied to activities in which they are actually engaged. Id. at 495, 102 S.Ct. at 1191-92; Parker v. Levy, 417 U.S. at 757, 94 S.Ct. at 2562; Welch v. United States, 750 F.2d 1101, 1111 (1st Cir.1985). In the case at bar, a successful facial challenge cannot be made under this standard of review, because however uncertain the terms "competent" and "substantially equivalent" may be, it is beyond dispute that a parent who withdrew his or her child from public school and afforded that child no education whatsoever would be in violation of the compulsory education law. [FN19] Consequently, the court's inquiry will focus on the manner in which § 3204 is applied in the school districts within which plaintiffs reside. [FN20]

FN19. An exception to the limited scope of review of the facial validity of a statute under the vagueness doctrine described in the preceding paragraph exists where the statute "abut[s] upon sensitive areas of basic First Amendment freedoms." Baggett v. Bullitt, 377 U.S. 360, 372, 84 S.Ct. 1316, 1866, 12 L.Ed.2d 377 (1964). In such cases, the considerations underlying vagueness analysis may merge with those that support the first amendment overbreadth doctrine. See Kolender v. Lawson, 461 U.S. 352, 359, 103 S.Ct. 1855, 1859, 75 L.Ed.2d 903 (1983); Keyishian v. Board of Regents, 385 U.S. 589, 609, 87 S.Ct. 675, 687, 17 L.Ed.2d 629 (1967). The Supreme Court has consistently adhered to the view that ambiguous laws may cause individuals to " 'steer far wider of the unlawful zone' ... than if the boundaries of the forbidden areas were clearly marked." Baggett v. Bullitt, 377 U.S. at 372, 84 S.Ct. at 1323 (quoting Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460 (1958)). A law whose broad sweep deters the exercise of protected rights of expression or association is deemed overbroad; if the law's overbreadth is "not only ... real, but substantial as well, judged in relation to the statute's plainly legitimate sweep," the law will be struck down in its entirety, even if the conduct of the particular party challenging the statute would be prohibited by an appropriately narrowed law. Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2917-18, 37 L.Ed.2d 830 (1973). The overbreadth doctrine permits a facial challenge to a law that "reaches a substantial amount of constitutionally protected conduct," Boos v. Barry, 485 U.S. ----, 108 S.Ct. 1157, 1168, 99 L.Ed.2d 333 (1988); Hoffman Estates, 455 U.S. at 494, and the Court has employed the same type of analysis under the vagueness doctrine in such cases. See Kolender v. Lawson, 461 U.S. at 358 n. 8, 103 S.Ct. at 1859 n. 8. Elsewhere in this opinion, the court rejects plaintiffs' claims under the free exercise and establishment clauses of the first amendment. See text, infra at 128-35 and 142-45. In any event it is unclear whether the expanded scrutiny of a statute suggested by the majority in Kolender applies when facial challenges under the religion clauses are at issue, or is limited to laws which might "chill" rights to expression protected by the first amendment. In light of these considerations, deviation from the standard set out in the text seems inappropriate in the case at bar. This issue is largely academic, however, since under the specific circumstances of this case plaintiffs' "as applied" challenge subsumes all first amendment concerns raised by the alleged vagueness of § 3204.

FN20. Accordingly, the court will not consider the evidence presented by plaintiffs regarding the manner in which the compulsory education law is applied outside of the Cato-Meridian and Waterloo Districts.

[31] The terms "competent" and "substantially equivalent" are not in and of themselves "so lacking in meaning as to be *127 invalid." Textile Workers Pension Fund v. Standard Dye & Finishing Co., 725 F.2d 843, 856 (2d Cir.), cert. denied, 467 U.S. 1259, 104 S.Ct. 3554, 82 L.Ed.2d 856 (1984). [FN21] However, they doestablish a comparative standard that makes direct reference to the minimum educational standards that must be maintained in the state's public schools. Consequently, plaintiffs' vagueness challenge turns on whether the standards governing public schools in New York are sufficiently comprehensible. As can be gathered from the extensive recitation set out above, the statutory requirements of the compulsory education law have been supplemented by extensive regulations promulgated by the Department of Education, and are further amplified by the detailed curricula requirements of the local school districts. In this important respect, New York's compulsory education scheme is distinguishable from the statutes that were at issue in the cases cited by plaintiffs in support of their vagueness argument. [FN22] When read in conjunction with the various regulations that compliment § 3204, the court believes that that statute "communicates its reach in words of common understanding." Boos v. Barry, 108 S.Ct. at 1169.

FN21. See, e.g., Mazanec v. North Judson-San Pierre School Corp., 763 F.2d 845, 848 (7th Cir.1985) ("The term 'equivalent instruction' may be brief, but brief is not vague"); Braintree Baptist Temple v. Holbrook Public Schools, 616 F.Supp. 81, 91 (D.Mass.1984) (Requirement that private schools provide "instruction in all the studies required by law equals in thoroughness and efficiency, and in the progress made therein, that in the public schools in the same town" not deemed impermissibly vague); Bangor Baptist Church v. Maine, 549 F.Supp. 1208, 1227 ("equivalent instruction" not overly vague); State v. Moorhead, 308 N.W.2d 60 (Iowa 1981) (terms "equivalent instruction" and "certified teacher" not impermissibly vague; court stresses importance of existence of detailed curriculum requirements for public and private schools). But see State v. Trucke, 410 N.W.2d 242, 244 (Iowa 1987) (indicating in dicta that term "equivalent instruction" might be unconstitutionally vague absent state's detailed regulations); State v. Newstrom, 371 N.W.2d 525 (Minn.1985) (requirement that private instructor's qualifications be "essentially equivalent" to those of public school teachers deemed too vague in absence of minimal guidelines); Fellowship Baptist Church v. Benton, 620 F.Supp. 308, 317-18 (S.D.Iowa 1985), remanded, 815 F.2d 485 (8th Cir.1987) ("equivalent instruction" deemed unconstitutionally vague).

FN22. See State v. Trucke, 410 N.W.2d 242, 244 (Iowa 1987) (dicta); State v. Newstrom, 371 N.W.2d 525 (Minn.1985); Fellowship Baptist Church v. Benton, 620 F.Supp. 308, 317-18 (S.D.Iowa 1985), remanded, 815 F.2d 485 (8th Cir.1987). See supra note 21.

[32] Plaintiffs argue that New York's compulsory education scheme gives local school officials too much discretion in establishing what the minimum requirements of public education will be, and in measuring homeschooling programs against those minimum standards. Indeed, it would appear that expansive local control over the assessment of home instruction programs was intended. By not requiring "equivalency" to a singular statewide standard but instead allowing variations from district to district, § 3204 implicitly entrusts the establishment of educational standards with local school authorities. This policy of allowing local variations in educational standards, however, should not be equated with vagueness; "[t]he difficulty or impossibility of drawing a statutory line [applicable in all districts of the state] is The reasons for supplying merely a statutory guideline." Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 399-400, 60 S.Ct. 907, 915, 84 L.Ed. 1263 (1940). In the instant action, the guidelines supplied by the state legislature provide a basic framework within which local authorities can fashion educational standards designed to address peculiar local concerns. The scope, depth, and emphasis of the instruction that is required varies from district to district. However, the policies followed by the three school districts involved in this action in assessing home instruction programs stress cooperation and interaction between homeschooling parents and local school officials. A party's ability to clarify the meaning of a regulation and modify his behavior accordingly, either through the party's own inquiry or through an administrative process, can ameliorate any vagueness problems that might otherwise be created by the terms of that regulation. *128Hoffman Estates, 455 U.S. at 498, 102 S.Ct. at 1193. Plaintiffs are given ample opportunity to discover the specific requisites of the compulsory education law in the districts in which they reside, and thus the court finds that the requirements of § 3204 are not unconstitutionally vague, at least as they are applied to plaintiffs.

C. The Free Exercise Clause

Randy and Alice Blackwelder and George and Hilda Lonneville assert that their religious beliefs compel them to give their children a "Christian education," which they understand to be an education in which their religious values are interwoven into every area of study in which their children engage. They contend that allowing their children to attend public schools, where "religiously integrated" studies are prohibited, would violate fundamental religious tenets. Particularly offensive to them is the study of evolution and what they term an "amoral" approach to sex education in public schools. These plaintiffs maintain that New York's compulsory education laws burden their faith because the state retains the power to approve or disapprove the manner in which they accomplish what they view as a religious command, that is, the manner in which they educate their children. [FN23]

FN23. Plaintiffs also argue that the state requires their children to attend public school until their homeschooling program attains approval from the superintendent of schools for the district in which they reside, and that this policy violates the free exercise clause of the first amendment. Though some of the papers submitted to the court in this action have indicated that the state in fact requires such approval before a child can be removed from an "approved" educational setting to an unapproved program, this simply does not appear to be the law in New York. The State Commissioner of Education has found that "there is no statutory requirement that a parent or guardian obtain the consent of a superintendent of schools or board of education before removing a child from a public school." Matter of Raeder-Tracy, --- Ed. Dept. Rep. ----, No. 11819, slip op. at 2 (May 14, 1987).

[33][34] The first amendment commands that "Congress shall make no law ... prohibiting the free exercise [of religion]," and the fourteenth amendment extends that limitation to the states. Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). The free exercise clause erects an absolute barrier to governmental encroachment on the freedom of individual belief, see Bob Jones University v. United States, 461 U.S. 574, 603, 103 S.Ct. 2017, 2034-35, 76 L.Ed.2d 157 (1983), and extends qualified protection to religiously grounded conduct. Wisconsin v. Yoder, 406 U.S. 205, 220, 92 S.Ct. 1526, 1535-36, 32 L.Ed.2d 15 (1972). [FN24] The more difficult cases, of course, involve claims that some governmental action impedes conduct tied to an individual's religious beliefs, or compels conduct the individual finds inimical to his religious beliefs. In cases like this one, in which a governmental regulatory system requires some modification of an individual's behavior in contravention of sincerely held religious beliefs, that individual can find refuge in the first amendment if he demonstrates that the governmental action constitutes a "sufficient burden on the free exercise of [his] religious beliefs to require the protections of the free exercise clause." Smith v. Board of Education, 844 F.2d 90, 93 (2d Cir.1988). If such a burden is shown, the action will not sustain judicial scrutiny unless the government establishes that "a compelling governmental interest warrants the burden, and that less restrictive means to achieve the government's ends are not available." *129St. German of Alaska Eastern Orthodox Catholic Church v. United States, 840 F.2d 1087, 1093, (2d Cir.1988); see also Bob Jones University v. United States, 461 U.S. at 603, 103 S.Ct. at 2034-35; United States v. Lee, 455 U.S. 252, 257-58, 102 S.Ct. 1051, 1055, 71 L.Ed.2d 127 (1982); Thomas v. Review Board of Indiana Employment Security Division, 450 U.S. 707, 718, 101 S.Ct. 1425, 1432, 67 L.Ed.2d 624 (1981); Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). [FN25]

FN24. Chief Justice Warren argued in Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563 (1961), that "legislative power over mere opinion is forbidden but it may reach people's actions when they are found to be in violation of important social duties or subversive of good order...." Id. at 603. The Court has applied an absolutist reading of the free exercise clause in cases challenging laws which compel individuals to "declare a belief," "communicate by word and sign [their] acceptance" of some idea antithetical to their religious beliefs, or make an "affirmation of a belief and an attitude of mind." West Virginia State Board of Education v. Barnette, 319 U.S. 624, 631, 633, 63 S.Ct. 1178, 1183, 87 L.Ed. 1628 (1943) (school board rule mandating compulsory flag salute and pledge of allegiance struck down). This case does not involve this type of governmental compulsion.

FN25. This standard has been consistently recounted in recent cases assessing challenges to governmental actions that impact upon religious practices. One prominent exception to this is found in Chief Justice Burger's plurality opinion in Bowen v. Roy, 476 U.S. 693, 106 S.Ct. 2147, 90 L.Ed.2d 735 (1986). There, the Chief Justice suggested that in cases in which a governmental entitlement program conditions the receipt of benefits on some facially neutral and uniformly applicable requirement, that requirement should survive scrutiny under the free exercise clause if the government demonstrates that it is "a reasonable means of promoting a legitimate public interest." 476 U.S. at 707-08, 106 S.Ct. at 21560. This suggestion was sharply criticized by Justice O'Connor in dissent, see 476 U.S. at 726-33, 106 S.Ct. at 2165-69, and was expressly rejected by a majority of the Justices in Hobbie v. Unemployment Appeals Comm'n of Florida, 480 U.S. 136, 107 S.Ct. 1046, 1049-50, 94 L.Ed.2d 190 (1987).

[35] Turning to the first part of this test, it must be noted that not all governmental actions that burden religious practices must be justified by a compelling state interest. As Chief Justice Burger has observed, "virtually every action that the Government takes, no matter how innocuous it might appear, is potentially susceptible to a Free Exercise objection." Bowen v. Roy, 476 U.S. 693, 707 n. 17, 106 S.Ct. 2147, 2156 n. 17, 90 L.Ed.2d 735 (1986) (plurality opinion) (emphasis in original); see also Lyng v. Northwest Indian Cemetery Protective Ass'n, --- U.S. ----, 108 S.Ct. 1319, 1327, 99 L.Ed.2d 534 (1988). [FN26] As the Supreme Court's definition of "religion" within the meaning of the first amendment has expanded from the narrow theistic perception found in cases like Davis v. Beason, 133 U.S. 333, 342, 10 S.Ct. 299, 300, 33 L.Ed. 637 (1890), [FN27] to a broader interpretation incorporating the views of unorthodox and nontheistic faiths, [FN28] a wider range of facially neutral regulations on the conduct of individuals have been subject to challenge under the free exercise clause. See generally Mozert v. Hawkins County Bd. of Education, 827 F.2d 1058, 1078-81 (6th Cir.1987) (Boggs, J., concurring), cert. denied, --- U.S. ----, 108 S.Ct. 1029, 98 L.Ed.2d 993 (1988). As a consequence, the courts have been forced to distinguish between incidental governmental burdens on religious conduct and those governmental actions that constitute "the type of burden on core religious freedom rising to the level of a violation of the free exercise clause." Smith v. Board of Education, 844 F.2d at 94. The Supreme *130 Court has stressed that "the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests." Yoder, 406 U.S. at 216, 92 S.Ct. at 1533.

FN26. The Supreme Court has noted that at least 1,347 religious organizations that are active in the United States have been identified. See Edwards v. Aguillard, 482 U.S. ----, ----, 107 S.Ct. 2573, 2589, 96 L.Ed.2d 510 (1987) (Powell, J., concurring) (citing The Encyclopedia of American Religions (2d ed. 1987)).

FN27. In that case, Justice Field, writing for the majority, concluded that "[t]he term 'religion' has reference to one's views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will." 133 U.S. at 342, 10 S.Ct. at 300.

FN28. See, e.g., Torcaso v. Watkins, 367 U.S. 488, 495, 81 S.Ct. 1680, 1683-84, 6 L.Ed.2d 982 (1961) ("Neither [a state nor the federal government] can constitutionally pass laws or impose requirements which aid all religions as against non-believers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs"); West Virginia State Board of Education v. Barnette, 319 U.S. 624, 658, 63 S.Ct. 1178, 1194, 87 L.Ed. 1628 (1943) (Frankfurter, J., dissenting) ("When dealing with religious scruples we are dealing with an almost numberless variety of doctrines and beliefs entertained with equal sincerity by the particular groups for which they satisfy man's needs in his relation to the mysteries of the universe"); United States v. Allen, 760 F.2d 447, 450 (2d Cir.1985) ("[A] touchstone of religion is the believer's categorical 'disregard [of] elementary self- interest ... in preference to transgressing [the religion's] tenets.' " (citations omitted)); see also Wisconsin v. Yoder, 406 U.S. 205, 247- 49, 92 S.Ct. 1526, 1549-50, 32 L.Ed.2d 15 (Douglas, J., dissenting in part); United States v. Seeger, 380 U.S. 163, 176, 85 S.Ct. 850, 859, 13 L.Ed.2d 733 (1965) (interpreting meaning of "religious training and belief" as used in the Selective Service Act, 50 App. U.S.C. § 456(j)).

[36] In the case at bar, it is not disputed that plaintiffs' beliefs concerning the proper manner in which their children are to be educated are founded upon religious concerns, and thus their attempt to instruct their children at home through a course of study integrating fundamentalist Christian views into all aspects of their children's education is conduct that is at least motivated by their religious beliefs. [FN29] It is not as clear to the court, however, how the requirements of § 3204 of the Education Law conflicts with those beliefs, or how the manner in which that requirement is enforced by the state's local school districts impinges upon plaintiffs' religious practices. It seems that a certain distrust of public school officials among homeschoolers, including plaintiffs, underlies the objection to this statutory requirement, for apparently there is some fear that those charged with enforcing New York's compulsory education laws will require the teaching of secular matters that are inconsistent with their fundamentalist Christian beliefs. If such a fear crystallized into reality, a serious burden on rights protected by the free exercise clause might be found; but there is nothing in the language of New York's Education Law that mandates such friction, and this case involves, after all, a facial challenge to the compulsory education law. Nonetheless, even assuming that the requirements of New York's compulsory education law do burden practices that are at the core of plaintiffs' religion, the court finds that that burden is justified by compelling state interests, and that § 3204 of the Education Law is as narrowly tailored as is feasible to accommodate the religious conduct at issue in this case without sacrificing those important state interests.

FN29. The Second Circuit has considered two factors of particular importance in determining whether a particular act is a "religious practice" that must be afforded protection under the free exercise clause: the sincerity of the devotees to the activity at issue, and the centrality of the activity to the devotees' religion. International Society for Krishna Consciousness, Inc. v. Barber, 650 F.2d 430, 441-43 (2d Cir.1981). There is no reason to doubt the sincerity of plaintiffs in the instant case when they maintain that their desire to educate their children at home is motivated by religious concerns. Though the record before the court does not establish conclusively that homeschooling is central to plaintiffs' religion, plaintiffs have made a sufficient showing to give rise to a serious question of fact on this issue. For the purposes of the motions presently before the court, the centrality of homeschooling to plaintiffs beliefs will be assumed.

The Supreme Court has consistently held that "only those interests of the highest order" can justify the burdening of an individual's religious practices. Yoder, 406 U.S. at 215, 92 S.Ct. at 1533. Such compelling state interests are at stake here. The Supreme Court has long recognized that "education is perhaps the most important function of state and local governments." Brown v. Board of Education, 347 U.S. 483, 493, 74 S.Ct. 686, 691, 98 L.Ed. 873 (1954). It is distinguishable from other governmental entitlement programs because of "[b]oth the importance of education in maintaining our basic institutions, and the lasting impact of its deprivation on the life of the child." Plyler v. Doe, 457 U.S. 202, 221, 102 S.Ct. 2382, 2396, 72 L.Ed.2d 786 (1982). It is important to stress that the two state interests identified in this passage from Plyler involve separate and distinguishable considerations. First, there is the significant societal interest in the perpetuation of its political and economic structure. Education has long been deemed vital to the "preservation of a democratic system of government," Abington School District v. Schempp, 374 U.S. 203, 230, 83 S.Ct. 1560, 1576, 10 L.Ed.2d 844 (1963) (Brennan, J., concurring), and it is recognized that "some degree of education is necessary to prepare citizens to participate effectively and intelligently in our open political system if we are to preserve freedom and independence." Yoder, 406 U.S. at 221, 92 S.Ct. at 1536.
*131 Indeed, the Constitution presupposes the existence of an informed citizenry prepared to participate in governmental affairs, and these democratic principles obviously are constitutionally incorporated into the structure of our government. It therefore seems entirely appropriate that the State use "public schools [to] ... inculcat[e] fundamental values necessary to the maintenance of a democratic political system." Board of Education v. Pico, 457 U.S. 853, 876, 102 S.Ct. 2799, 2813, 73 L.Ed.2d 435 (1982) (Blackmun, J., concurring) (quoting Ambach v. Norwick, 441 U.S. 68, 77, 99 S.Ct. 1589, 1595, 60 L.Ed.2d 49 (1979)). Moreover, "education provides the basic tools by which individuals might lead economically productive lives to the benefit of us all." Plyler v. Doe, 457 U.S. at 221, 102 S.Ct. at 2397. Thus, education plays "a fundamental role" in providing the skills necessary for the maintenance of our economic and social order as well as our democratic institutions. Id.

These societal goals, however, are not the only matters of concern affected by the educational opportunities provided school-age children. The failure to assure that all children are afforded an education meeting certain minimum standards of adequacy would be attended by serious consequences for the children that are denied such an education. Such a deprivation takes an "inestimatable toll ... on the social, economic, intellectual, and psychological well-being of the individual...." Id. at 222, 102 S.Ct. at 2397. Education "is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment." Brown v. Board of Education, 347 U.S. at 493, 74 S.Ct. at 691. When a child lacking the maturity and experience to make an independent judgment concerning the course of his educational future is denied the paramount privilege of an education which meets basic minimum standards, a compelling state interest is implicated. The state, as well as the affected individual, has an interest in assuring that that individual's education provides him a fair opportunity to become a "self-reliant and self- sufficient participant[ ] in society." Yoder, 406 U.S. at 221, 92 S.Ct. at 1536.

When courts attempt to give force to the mandates of the free exercise clause in contexts in which regulations controlling the content and duration of the basic education of children are directly at issue, therefore, two distinct conflicts arise. The state's fundamental interest in assuring that its citizenry is prepared to participate in this nation's political and economic systems may collide with "the values of parental direction of the religious upbringing and education of their children in their early and formative years...." Yoder, 406 U.S. at 213-14, 92 S.Ct. at 1532; see also Pierce v. Society of Sisters, 268 U.S. 510, 534-35, 45 S.Ct. 571, 573, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). Moreover, there often exists an inherent tension between the desire of parents to prevent the exposure of their minor children to "attitudes, goals, and values contrary to [the parents' religious] beliefs," Yoder, 406 U.S. at 218, 92 S.Ct. at 1534, and the interest of those children in having access to ideas that might conflict with their parents' notions of religious propriety so that those children are better able to make informed choices later in life. See id. at 241-46, 92 S.Ct. at 1546-48 (Douglas, J., dissenting in part). Within the framework of accepted free exercise analysis, the interest of minors in being exposed to a sufficiently wide range of ideas has been translated into a state interest in preparing individuals to be "self- reliant and self-sufficient participants" in American society. Id. at 221, 92 S.Ct. at 1536. As expressed by Justice White, "[a] State has a legitimate interest not only in seeking to develop the latent talents of its children but also in seeking to prepare them for the life style that they may later choose, or at least to provide them with an option other than the life they have led in the past." Id. at 240, 92 S.Ct. at 1545 (White, J. concurring); see also Plyler v. Doe, 457 U.S. 202, 222, 102 S.Ct. 2382, 2397, 72 L.Ed.2d 786 (1982); *132Brown v. Board of Education, 347 U.S. 483, 493 (1954) ("In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education.").

These dual tensions were present in Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526 the case relied upon by plaintiffs in support of their free exercise claims in the present action. In Yoder, members of the Old Order Amish religion and the Conservative Amish Mennonite Church (together referred to as the Amish) challenged a Wisconsin compulsory education statute which imposed criminal sanctions upon parents who did not cause their children to attend public or private school until age sixteen. The plaintiffs in that case withdrew their children, ages fourteen and fifteen, from the state's public schools after they had completed the eighth grade, wishing to informally train them in the manual skills necessary for rural community life. Amish resistance to formal education beyond grade eight was rooted in concepts central to their religious beliefs.
[The Amish] object to the high school, and higher education generally, because the values they teach are in marked variance with Amish values and the Amish way of life; they view secondary school education as an impermissible exposure of their children to a "worldly" influence in conflict with their beliefs. The high school tends to emphasize intellectual and scientific accomplishments, self-distinction, competitiveness, worldly success, and social life with other students. Amish society emphasizes informal learning-through- doing; a life of "goodness," rather than a life of intellect; wisdom, rather than technical knowledge; community welfare, rather than competition; and separation from, rather than integration with, contemporary worldly society. Id. at 210-11, 92 S.Ct. at 1531. The traditional Amish way of life, stressing a church-oriented community closely tied to "nature and the soil" and rejecting "the outside world and 'worldly influences,' " was found to be mandated by deep religious conviction. Id. at 216-17, 92 S.Ct. at 1534. The Court concluded that the values promoted in Wisconsin's secondary school system were "in sharp conflict" with the mode of life mandated by the Amish religion, id. at 217, 92 S.Ct. at 1534, and held that Wisconsin's compulsory school attendance statute placed an impermissible burden on the free exercise rights of the Amish. Id. at 228-29, 92 S.Ct. at 1540.

Much in Chief Justice Burger's majority opinion in Yoder supports plaintiffs' position in the instant action. For example, Yoder, especially when read in conjunction with Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), offers strong support for plaintiffs' contention that they have a right protected by the Constitution to teach their children at home, however qualified that right may be. [FN30] Further, it seems clear that Amish *133 children learning manual skills through trial and error methods are not receiving an education that is "substantially equivalent" to that being offered ninth and tenth grade pupils in Wisconsin's public schools, no matter how loosely the term "substantially equivalent" is defined. Therefore, it is possible that the requirements of § 3204 may not be compatible with the free exercise clause in at least some circumstances, however unique those circumstances may be.

FN30. This proposition, however, is not completely without doubt, since there is some authority to the contrary in Board of Education v. Allen, 392 U.S. 236, 246-47, 88 S.Ct. 1923, 1928, 20 L.Ed.2d 1060 (1968). In Pierce, the Supreme Court resorted to the due process clause in striking down a statute requiring children between ages eight and sixteen to attend public school, finding that the statute unreasonably interfered with the interest of parents to "direct the upbringing and education of children under their control." 268 U.S. at 534-35, 45 S.Ct. at 573. In doing so, the Court specifically recognized that a state retained the power to promulgate reasonable regulations for all schools, whether public or private. Id. at 534, 45 S.Ct. at 573. In Allen, the Court observed in dictum that certain cited state court decisions that had refused to permit parents to satisfy compulsory education statutes through home instruction "were a sensible corollary of Pierce v. Society of Sisters, " since the state's interest in assuring that private schools fulfill basic educational functions could justify such a limitation. 392 U.S. at 246-47, 88 S.Ct. at 1928. Just four years later, however, the Court found that Amish parents had a right protected by the free exercise clause to instruct their children at home rather than being compelled to cause their children to attend a recognized public or private school. Yoder, 406 U.S. at 228-29, 92 S.Ct. at 1539-40. This holding seems to undermine the Allen dictum, though it is possible to restrict the Yoder holding to the unique circumstances that case presented. See text, infra at 134-35. The Fourth Circuit, for example, did not find that Yoder supported an inference that a "right" to teach your children at home was protected by the free exercise clause. Duro v. District Attorney, 712 F.2d 96, 99 (4th Cir.1983), cert. denied, 465 U.S. 1006, 104 S.Ct. 998, 79 L.Ed.2d 230 (1984). In any event, even Yoder recognized the state's power to promulgate reasonable minimum standards for the instruction provided by the Amish, id. 406 U.S. at 236, 92 S.Ct. at 1543, though the Court did not attempt to define the extent of this power. Since New York allows homeschooling, at issue in the instant case is the extent that the state can regulate the instruction given in such a program.

Finally, the majority opinion in Yoder seems to strengthen the position of the parents in the case at bar by minimizing the interest of minors in being exposed to ideas contrary to the religious dogmas of their parents. [FN31] The Court was unwilling to allow the Amish children to assert such an interest on their own behalf in a challenge to a statute that subjected their parents to possible criminal sanctions. 406 U.S. at 230-31, 92 S.Ct. at 1541. Further, the Court was reluctant to construe the power of the state as parens patriae so broadly as to allow it, in the interest of the child, to mandate that the child receive the benefits of secondary education regardless of the wishes of the child's parents. Id. at 229, 92 S.Ct. at 1540. The Court was concerned about the pressures of "contemporary society [that] exert[ed] a hydraulic insistence on conformity to majoritarian standards," id. at 217, 92 S.Ct. at 1534, fearing any suggestion that the state had the power " 'to standardize its children.' " Id. at 233, 92 S.Ct. at 1542 (quoting Pierce, 268 U.S. at 535, 45 S.Ct. at 573).

FN31. In Yoder, the children who were taken out of the public school system by their parents were not parties to the lawsuit that ensued. The majority stressed this, and also noted that it was the parents and not the children who were threatened with prosecution under Wisconsin's compulsory attendance law,