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JEFFERY v. O'DONNELL

August 24, 1988

JOHN JEFFERY, et al., Plaintiffs
v.
THOMAS O'DONNELL, et al., Defendants


Edwin M. Kosik, United States District Judge.


The opinion of the court was delivered by: KOSIK

Edwin M. Kosik, United States District Judge.

 INTRODUCTION

 Plaintiffs are Bible-believing Christians who profess that they are motivated to educate their children at home *fn1" because of sincere religious beliefs. For the most part plaintiffs are all part of the mainstream of society. Except for their beliefs, they are not part of a commonly established religious sect. At various times some plaintiffs, as well as their children, attended public or private religious schools; some want their children to attend college. None of the varied established religious sects with which plaintiffs may be associated advocate a policy that children be educated at home. All plaintiffs claim the requirements of the state law are unconstitutional.

 Defendants are superintendents of the various school districts in which plaintiffs reside. Pursuant to the Pennsylvania Compulsory Attendance Law, supra, defendants are empowered with the discretionary authority to authorize private tutorial education.

 Defendants have counterclaimed asking for declaratory and injunctive relief against plaintiffs to compel compliance with the Pennsylvania statute.

 Plaintiffs filed a motion for summary judgment pursuant to Fed. R. Civ. P. 56. Defendants have filed a similar motion. The main thrust of the plaintiffs' attack is that the Pennsylvania law is unconstitutionally vague in violation of the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States. In addition, plaintiffs urge that the statute violates the Free Exercise and the Establishment Clause of the First Amendment, the Fourteenth Amendment in other particulars, the Fourth Amendment, and the Ninth Amendment of the United States Constitution.

 The defendants, joined in amicus curiae by the Pennsylvania School Boards Association, urge that we hold the Pennsylvania statute constitutional in every respect, or in the alternative, that we abstain under the doctrine of Railroad Commission v. Pullman, 312 U.S. 496, 85 L. Ed. 971, 61 S. Ct. 643 (1941). *fn2"

 I.

 We have given consideration to all of the plaintiffs' constitutional claims and conclude that, except for one, they are without merit for the reasons and authorities cited by the defense.

 With respect to the single constitutional claim in which we find merit, we conclude that the Pennsylvania law in question is unconstitutionally vague for the following reasons.

 Title 24 P. S. Section 13-1327 provides in pertinent part that:

 
". . . Every child of compulsory school age having a legal residence in this Commonwealth, as provided in this article, and every migratory child of compulsory school age, is required to attend a day school in which the subjects and activities prescribed by standards ...

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