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

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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).

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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.

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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).

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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.

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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).

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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: . . .

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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.

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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

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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

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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).

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