Miller, J. (dissenting). I wholeheartedly concur with Justice Eiber’s dissent but do so separately merely to emphasize one additional point. The intrusion into the relationship between parent and child due to the fact that the respondents’ condom distribution plan contains no parental consent or opt-out provision is indeed supported by overriding necessity. That the New York City adolescent population is significantly overrepresented in reported HIV cases nationwide is persuasive evidence of an unusually high-risk population, and therefore of a particularly strong and compelling State interest justifying this program. Justice Eiber has noted the unfortunate reality that a significant number of New York City high school students do not have parents interested in providing them with appropriate guidance and discipline, or who are available to consent to their child’s participation in the program. Moreover, some students who have interested parents are beyond their practical control in matters of sexuality. The undeniable fact is that many children are at risk. Because AIDS is deadly, minimal intrusion into the parent/child relationship is justified in this case by the overriding necessity to protect all adolescents from infection with HIV by the most effective means possible.
Consequently, I too, vote to affirm the order and judgment appealed from.
Balletta, J. P., and Copertino, J., concur with Pizzuto, J.; Eiber and Miller, JJ., dissent, each in a separate opinion.
Ordered that the order and judgment (one paper) is reversed insofar as appealed from, without costs or disbursements, and the respondents are prohibited from dispensing condoms to unemancipated minor students without the prior consent of their parents or guardians, or without an opt-out provision, and it is further,
Ordered that the petition is granted to the extent that (1) it is declared that the condom availability component of the respondents’ plan is a health service rather than health education and thus, in the absence of a provision requiring the prior consent of unemancipated minor students’ parents or guardians, or in the absence of an opt-out provision, lacks common-law or statutory authority; and (2) it is declared that the respondents’ plan to dispense condoms to unemancipated minor children without the consent of their parents or guardians, or an opt-out provision, violates the civil rights of the parent petitioners and similarly situated parents or guardians *73under the substantive Due Process Clauses of the Fourteenth Amendment of the United States Constitution and New York Constitution, article I, § 6; and it is further,
Ordered that the petition is denied in all other respects; and it is further,
Ordered that the matter is remitted to the Supreme Court, Richmond County, for the entry of an amended order and judgment accordingly.