Pustell v. Lynn Public

• Court: Court of Appeals for the First Circuit
• Decided: March 25, 1994
• Docket: 93-1794
• Status: Published

Opinion

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

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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).

                                         -12-