
USCA1 Opinion

	




                            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-
