Pustell v. Lynn Public Schools

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 93-1794

                STEPHEN PUSTELL AND LOIS PUSTELL,

                     Plaintiffs, Appellants,

                                v.

                       LYNN PUBLIC SCHOOLS,

                       Defendant, Appellee.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

      [Hon. Walter Jay Skinner, Senior U.S. District Judge]
                                                                    

                                           

                              Before

                       Selya, Circuit Judge,
                                                     
                  Coffin, Senior Circuit Judge,
                                                        
                     and Cyr, Circuit Judge.
                                                     

                                           

  Michael  P. Farris with  whom Jordan W.  Lorence was  on brief for
                                                            
appellants.
  John C. Mihos for appellee.
                         

                                           

                          March 24, 1994
                                           

     COFFIN,  Senior Circuit  Judge.   Stephen  and Lois  Pustell
                                             

brought this  action challenging the constitutionality  of a Lynn

School Committee  requirement that  conditions the approval  of a

homeschooling   plan   on  consent   to   home   visits  by   the

superintendent or his representative.   The district court upheld

the constitutionality  of the  requirement, and the  Pustells now

appeal.   Our review of the  record and the  caselaw persuades us

that the  district court  should have abstained  until issues  of

state law were resolved.   We therefore vacate its  judgment, and

remand for proceedings in accordance with this opinion.

                      I.  Factual Background
                                                      

     Plaintiffs  Stephen  and Lois  Pustell  are  the parents  of

Geneva  Marie  Pustell, whom  they  are  educating  at  home,  in

accordance  with their religious  beliefs.  The  Pustells live in

the Lynn, Massachusetts school district.  Massachusetts state law

grants  discretion to  local  school districts  to determine  the

standards  for home schooling.  See Care & Protection of Charles,
                                                                          

504 N.E.2d  592, 399 Mass. 324  (Mass. 1987).  As  a condition of

approval of  a home  instruction  plan, the  Lynn Public  Schools

require,  among  other things,  that  parents  give their  signed

consent to a  home visit by the superintendent or his designee to

"observe and evaluate the instructional process."

     In November, 1991, the Pustells met with  Dr. Louis Perullo,

the  assistant  superintendent of  the  Lynn  Public Schools,  to

discuss their homeschooling plans.  At that meeting, the Pustells

objected  to the  school district's  home visit  requirement, and

                               -2-

offered an alternative consent form eliminating this requirement.

Dr. Perullo rejected the substitution, and told the Pustells that

the school district would not approve their home instruction plan

absent their written  consent to periodic  home visits by  school

officials.   The Pustells refused  to offer this  consent, and on

November  21, 1991 the Lynn  school committee voted  not to allow

the Pustells to educate their daughter at home.

     The Pustells then brought suit, claiming that the home visit

policy violated their First Amendment  right to the free exercise

of their religion, their  Fourth Amendment right to be  free from

unreasonable searches, their substantive due process  right under

the  Fourteenth  Amendment  to  oversee the  education  of  their

children,   and   various   provisions   of   the   Massachusetts

constitution.   They  sought declaratory  and  injunctive relief.

The  district court  granted summary  judgment for  the defendant

school district, and this appeal followed.

     At oral argument, the panel questioned whether this case was

justiciable and, if  it were,  whether it was  appropriate for  a

federal court to decide the case  at this juncture.1  Pointing to

the district court's  statement that it was  "unclear whether the

Pustells'  child  is currently  being educated  at  home or  in a

traditional  school  setting"  and  that "no  criminal  or  civil

proceedings are  currently pending against the  Pustells based on

                    
                              

     1The court  may raise issues of  jurisdiction and abstention
sua  sponte.    Texas  v.  Florida,  306  U.S.  398,  405  (1939)
                                            
(jurisdiction);  Bellotti v. Baird, 428 U.S. 132, 143 n.10 (1976)
                                            
(abstention).

                               -3-

their  refusal to  submit  to  periodic  home visits,"  we  first

expressed concern that  this case  was unripe, and  that we  were

being asked for an advisory opinion.  We  then noted that several

factors made abstention a compelling option.  

     After argument, we allowed  the parties to file supplemental

briefs addressing the questions of justiciability and abstention.

We  now  conclude   that  there   is  a   justiciable  "case   or

controversy," but  that the  circumstances of this  case make  it

appropriate for application of the abstention doctrine enunciated

in Railroad Commission v. Pullman Co., 312 U.S. 496 (1941).
                                               

                       II.  Justiciability
                                                    

     The Pustells claim that the case is reviewable because their

complaint alleged, and  defendants admitted, that  their daughter

is  being taught at  home.   Nothing in  the record  suggests the

contrary.2   We  therefore  proceed on  the  assumption that  the

Pustells currently are homeschooling.

     This does not fully  resolve our concerns, however.   For us

to  assume  jurisdiction,  there   must  be  an  actual,  ongoing

controversy between the parties.  See  U.S. Const. art. III,   2,
                                               

cl.  1;  Federal  Declaratory  Judgment Act,  28  U.S.C.     2201

(jurisdiction to award declaratory relief exists only in  "a case

of actual  controversy").   Some indication that  the controversy

has a concrete  impact on the parties is  also necessary before a

case is ripe for  adjudication.  Abbott Laboratories v.  Gardner,
                                                                          
                    
                              

     2We  note, in addition, that sworn  affidavits from Lois and
Stephen  Pustell, dated March  11, 1992, declaring  that they are
homeschooling their daughter, are part of the appendix.  

                               -4-

387  U.S. 136,  148-49  (1967).3   If,  for example,  the  record

indicated  that the  town of  Lynn never  planned to  take action

against  the Pustells,  and  had never  taken enforcement  action

against  other parents in a  similar situation, we arguably would

be put in the position  of issuing an advisory opinion.   Cf. Poe
                                                                           

v. Ullman, 367 U.S. 497, 501-09 (1961) (finding a case unripe for
                   

adjudication  of constitutionality  of state  statutes  where the

lack of any  evidence that, with the exception of  one test case,

the statutes had ever been enforced, even in the face  of actions

violating  the  statutes,  demonstrated  the  state's  policy  of

nullification of these laws).   

     Although  the issue  is  close, we  are  satisfied that  the

controversy between  the parties here is  sufficiently actual and

concrete that jurisdiction is proper.   The Pustells continue  to

teach their child at home, despite the school committee's refusal

to  approve their home instruction  plan.  By  refusing to comply

with the  policy, while continuing to  homeschool their daughter,

the Pustells face possible  sanctions.  See Mass. Gen.  Laws Ann.
                                                     

ch.  76,    2  (West Supp.  1993)  (empowering state  to initiate

                    
                              

     3In  deciding whether a case  is ripe for  review, the court
evaluates  the "fitness of  the issues for  judicial decision and
the hardship to the  parties of withholding court consideration."
Abbott Lab., 387 U.S. at 149.  The "fitness" inquiry asks whether
                     
the challenged action is final,  and whether the issue  presented
is purely legal,  rather than  in need of  more concrete  factual
development.   Id.  Under "hardship," the court considers whether
                            
the  impact  of the  challenged  action  "creates a  `direct  and
immediate'  dilemma for  the  parties, requiring  them to  choose
between  costly  compliance and  noncompliance,  at  the risk  of
punishment."   W.R. Grace & Co. v. E.P.A., 959 F.2d 360, 364 (1st
                                                   
Cir. 1992) (quoting Abbott Lab., 387 U.S. at 152). 
                                         

                               -5-

truancy  proceedings  against  parents of  children  absent  from

school for seven full days);  Mass. Gen. Laws Ann. ch. 119,    24

(West Supp.  1993) (empowering any  person (including a  town) to

initiate   civil  proceedings  on   behalf  of  children  without

"necessary and proper physical or education care and discipline,"

in  order   to  compel  education  for  such  children,  and,  if

appropriate, to remove  the children  from the  custody of  their

parents); see also Care  & Protection of Charles, 504  N.E.2d 592
                                                          

(Mass.  1987).   The  dispute between  the  parties is  therefore

concrete, and not hypothetical or abstract.

     No  further  factual  development  is necessary  for  us  to

resolve  the  question  at  issue,  namely,  whether  the  policy

requiring home visits  is constitutional.  The issue is therefore

"fit" for judicial resolution.  See Abbott Lab., 387 U.S. at 149.
                                                         

Finally,  the town  has,  in  fact,  already  acted  against  the

Pustells by rejecting their  home instruction plan and officially

barring them from teaching their daughter at home.  Regardless of

the  imminence  of  an  enforcement  action,  the  Pustells  will

continue  to suffer the harm of substantial uncertainty if we put

off resolving their  constitutional claims.  We  believe they are

entitled  to know whether they may continue to school their child

at   home   without   risking   sanctions.     See   Societe   de
                                                                           

Conditionnement  v. Hunter  Engineering, 655  F.2d 938,  944 (9th
                                                 

Cir.  1981)  (actual  threat  of  litigation  not  necessary  for

declaratory  judgment action to  be justiciable); Wellesley Hills
                                                                           

Realty Trust v. Mobil Oil  Corp., 747 F. Supp. 93, 102  (D. Mass.
                                          

                               -6-

1990) (absence of enforcement  action does not render controversy

between parties remote and hypothetical).4

                        III.  Abstention  
                                                  

     We   recognize  that  federal   courts  have   a  "virtually

unflagging  obligation . .  . to exercise  the jurisdiction given

them."   Colorado River Water  Cons. Dist. v.  United States, 424
                                                                      

U.S.  800,  817  (1976); Villa  Marina  Yacht  Sales v.  Hatteras
                                                                           

Yachts,  915 F.2d 7, 12  (1st Cir. 1990).   Nevertheless, certain
                

exceptional circumstances  warrant abstention by a  federal court

from  the  exercise of  its  proper jurisdiction.    See Colorado
                                                                           

River, 424 U.S. at 813-17, 818-19 (detailing such circumstances).
               

Under Railroad  Commission v. Pullman  Co., 312 U.S.  496 (1941),
                                                    

federal  courts may  abstain from  deciding a  case when  a state

court's  resolution of unclear  state law would  obviate the need

for a federal constitutional ruling.  Because the federal court's

decision in  these circumstances "cannot escape  being a forecast

rather than  a determination," abstention is  justified to "avoid

the waste  of a tentative decision  as well as the  friction of a

premature constitutional adjudication."  Id. at 499-500.  In this
                                                      

way,  the Pullman  abstention doctrine  serves the  dual aims  of
                           

avoiding  advisory  constitutional  decisionmaking,  as  well  as

promoting  the principles  of comity  and federalism  by avoiding
                    
                              

     4Our  conclusion  that  the  case  is  ripe  does  not mean,
necessarily,  that  the  timing  is  appropriate  for  injunctive
relief.  The decision to grant an injunction involves a number of
additional  factors.   See,  e.g., Planned  Parenthood League  of
                                                                           
Massachusetts v.  Bellotti, 641 F.2d  1006, 1009 (1st  Cir. 1981)
                                    
(listing criteria  necessary  to warrant  preliminary  injunctive
relief).

                               -7-

needless  federal  intervention  into  local affairs.    See  17A
                                                                      

Charles A. Wright, Arthur R. Miller and Edward H. Cooper, Federal
                                                                           

Practice and Procedure   4242 (1988).5
                                

     In  our view, the  Massachusetts compulsory  attendance law,

Mass. Gen.  Laws Ann. ch. 76,   1 (West 1982), affords a possible

state law basis  to vindicate  the Pustells' claims.   This  law,

which  requires  children to  attend  public  or private  school,

exempts  a child "who is  being otherwise instructed  in a manner

approved  in   advance  by  the  superintendent   or  the  school

committee."   Id.    A  homeschooling  program is  an  acceptable
                           

alternative  to public  or  private school  attendance.   Care  &
                                                                           

Protection of Charles, 504 N.E.2d at 598.
                               

     Pursuant  to  this  statutory  authority,  the  Lynn  School

Committee has adopted regulations  governing the approval of home

school instruction  within its district.   As interpreted  by the

committee, these regulations include,  inter alia, the home visit
                                                           

requirement at issue here.6
                    
                              

     5The fact that the Pustells challenge the  home visit policy
on  constitutional,  not statutory,  grounds  does  not, as  they
suggest, allow us to skirt consideration of the home visit policy
on  state law  grounds.   Plaintiffs cannot  avoid abstention  by
excluding crucial state  law issues from  their pleadings.   This
practice  would  cede control  of  litigation  to litigants,  and
interfere with our duty to avoid unnecessary friction with states
in the regulation of  their own affairs, see Pullman, 312  U.S at
                                                              
500,  as well  as our  duty to  avoid unnecessary  constitutional
adjudication, see  Ashwander v.  Tennessee Valley  Authority, 297
                                                                      
U.S. 288, 345-48 (1936) (Brandeis, J., concurring). 

     6Thus, the  regulations themselves do not explicitly require
home  visits.    The regulation  that  the  school committee  has
interpreted to require home visits reads as follows:  
     The [homeschooling] Plan must include a detailed description
     of the following: . . . 

                               -8-

     Under  the regulations,  the parents must  sign a  Letter of

Agreement giving permission to the superintendent or his designee

to "periodically observe  and evaluate the instructional  process

and to verify that the Home Instruction provided is in accordance

with the Home Instruction Plan as authorized by the Committee . .

.  ."  The school  committee has interpreted  the observation and

evaluation component to require a pre-arranged home visit once or

twice a year for 40-45 minutes. 

     The Massachusetts Supreme Judicial  Court has held that "the

approval of a  home school  proposal must not  be conditioned  on

requirements  that are  not essential  to the  State interest  in

ensuring  that `all  the children  shall be  educated.'"   Care &
                                                                           

Protection of Charles,  504 N.E.2d  at 600.   The court  observed
                               

that   requiring  periodic  standardized   testing,  or  periodic

progress  reports or  dated  work  samples,  in  lieu  of  formal

testing,  would be  acceptable ways  to evaluate  the educational

progress of children being schooled at home.  Id. at 601.  
                                                           

     Whether  home  visits  may  be  required  as  part  of  this

evaluation process  is unsettled, however.  In  Care & Protection
                                                                           

of  Charles, the  court stated  that "[w]ith  appropriate testing
                     

                    
                              

     A  Statement of  Agreement that  the parent  will  allow the
     Superintendent  (or   designee,  i.e.,  the   Principal)  to
     periodically:

          1.   assess the child's  mastery of subject  matter and
          skills in the same manner used by the school system.

          2.  observe and  evaluate the instructional process and
          to  verify  that the  Home  Instruction  Plan is  being
          implemented as authorized by the Committee.

                               -9-

procedures or progress reports, there may be no need for periodic

on-site  visits or  observations of  the learning  environment by

school authority personnel," id.  The court, however, immediately
                                          

added  "But see  Matter of  Kilroy."   In that  case, a  New York
                                            

family court  upheld  a home  visit requirement  as necessary  to

evaluate home instruction to  school age children.  467  N.Y.S.2d

318 (1983).  These conflicting references  suggest that the court

deliberately  left  unresolved  whether   home  visits  could  be

required under Massachusetts law. 

     It  has yet  to be determined,  therefore, whether  the Lynn

School Committee's interpretation of the evaluation  component of

its regulations, which conditions approval of home instruction on

home visits, is  authorized by  state law.   If, as the  Pustells

argue,  home visits "are not  essential to the  State interest in

ensuring  that `all  the children  shall be educated,'"  then the

school  committee  could  not   condition  the  approval  of  the

Pustells'  home school proposal on an agreement to home visits --

even  to infrequent and pre-arranged  home visits.   Yet the Lynn

School  Committee's interpretation  of  the requirements  of  the

Massachusetts  compulsory  education  act  is  equally plausible,

particularly  given the reference to  Matter of Kilroy  in Care &
                                                                           

Protection of Charles.
                               

     A dispositive state court interpretation of this issue could

eliminate entirely the need to address the constitutional issues.

If the Pustells' interpretation of state law were accepted by the

state   court,  the  school  district  would  have  to  allow  an

                               -10-

alternative to home visits.   This would spare us  from rendering

an advisory opinion  on the constitutional issues.   See Pullman,
                                                                          

312 U.S. at 499-501; see also Catlin v. Ambach, 820 F.2d 588, 591
                                                        

(2d Cir. 1987).  

     Our decision that abstention is appropriate here is affected

by another consideration.  Although federal courts are capable of

resolving state law  issues, educational  policy is  a matter  of

particularly  local concern.   See Care &  Protection of Charles,
                                                                          

504  N.E.2d at 598 (noting that the details of educational policy

adopted by the Massachusetts state  legislature historically have

been left to  the control  of the people  in each  municipality).

The  question of what information local  school officials need in

order  to  evaluate  whether  homeschoolers  are  being  educated

adequately is best  resolved by  those closer to  the issue  than

federal  court judges.  We therefore think it preferable to allow

the Massachusetts courts to complete the analysis begun in Care &
                                                                           

Protection of Charles rather than to intervene.  This would allow
                               

for the development  of an informative record  about the efficacy

of various assessment practices.  Moreover, any decision by  this

court about  whether Lynn's  home visit  policy is  authorized by

state law would be, at best, provisional, as the last word on the

legality  of Lynn's policy under  Massachusetts law lies with the

Massachusetts Supreme  Judicial  Court, and  not  with us.    See
                                                                           

Pullman, 312 U.S. at 499-500.
                 

     We  decline to  create  "needless friction"  with state  and

local policies,  id.  at 500,  by  preempting the  state  court's
                              

                               -11-

adjudication of the Pustells'  claims.  Accordingly, the district

court should abstain, but  retain jurisdiction pending a decision

by the Massachusetts state court on the proper  interpretation of

the  compulsory  education  law.    See  American  Trial  Lawyers
                                                                           

Association  v.  New  Jersey  Supreme Court,  409  U.S.  467, 469
                                                     

(1973).7  

We therefore  vacate  the decision  of  the district  court,  and
                                                                           

remand for  proceedings in  accordance with  this opinion.   Each
                                                                           

party shall bear its own costs.
                                         

                    
                              

     7Despite  our  abstention,  the   Pustells  are  assured  an
adequate and fair opportunity to have their federal claims heard.
See Gibson v. Berryhill, 411 U.S. 564 (1973).  They may choose to
                                 
present  all  claims  in  state court;  alternatively,  they  may
reserve federal constitutional claims for adjudication in federal
court.    See  England  v.  Louisiana  State  Board   of  Medical
                                                                           
Examiners, 375 U.S. 411,  421-22 (1964) (describing procedure for
                   
reserving right to litigate federal claim in federal court).

                               -12-