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
__________________
__________________
appellants.
John C. Mihos for appellee.
_____________

on brief

____________________
March 24, 1994
____________________

COFFIN,
brought this

Senior Circuit Judge.

_____________________

and Lois

action challenging the constitutionality

School Committee
homeschooling

Stephen

requirement that
plan

on

consent

of the

appeal.

Our review of the

that the

district court

state law were resolved.

to

home

visits

by

of a

the

The district court upheld

requirement, and the

record and the

Pustells now

caselaw persuades us

should have abstained

until issues

We therefore vacate its

Factual Background
__________________

of

judgment, and

remand for proceedings in accordance with this opinion.

I.

of a Lynn

conditions the approval

superintendent or his representative.

the constitutionality

Pustell

Plaintiffs
Geneva

Marie

accordance

Stephen

and Lois

Pustell, whom

Pustell

they

with their religious

are

discretion to

local

standards

for home schooling.

504 N.E.2d

592, 399 Mass. 324

approval of
require,

a home

among

beliefs.

consent to a

The

at

home,

of

in

Pustells live in

Massachusetts state law

school districts

to determine

the

See Care & Protection of Charles,

___ ____________________________
(Mass. 1987).

instruction

other things,

the parents

educating

the Lynn, Massachusetts school district.

grants

are

plan, the
that

As

a condition of

Lynn Public

parents

give their

Schools

signed

home visit by the superintendent or his designee to

"observe and evaluate the instructional process."

In November, 1991, the Pustells met with
the

assistant

superintendent of

discuss their homeschooling plans.

objected

to the

school district's

the

Lynn

Dr. Louis Perullo,

Public Schools,

to

At that meeting, the Pustells

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.
November

The Pustells refused

21, 1991 the Lynn

to offer this

consent, and on

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
of their religion, their

right to the free exercise

Fourth Amendment right to be

unreasonable searches, their substantive due process

the

Fourteenth

children,

and

constitution.
The

Amendment
various
They

district court

to

oversee the

provisions

sought declaratory
granted summary

right under

education

of

the

and

free from

of

their

Massachusetts

injunctive relief.

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

federal court to decide the case

the district court's
Pustells'
traditional

child

school

proceedings are

at this juncture.1

statement that it was

is currently
setting"

appropriate for

Pointing to

"unclear whether the

being educated
and

that "no

currently pending against the

at

home or

criminal

or

in a

civil

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

expressed concern that

to

periodic

this case

home visits,"

was unripe, and

being asked for an advisory opinion.

We

we

first

that we

were

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

controversy," but

there

that the

is

justiciable

circumstances of this

"case

case make

or

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
is

being taught at

contrary.2

We

defendants admitted, that

home.

therefore

Nothing in
proceed on

their daughter

the record
the

suggests the

assumption that

the

Pustells currently are homeschooling.

This does not fully
to

assume

jurisdiction,

resolve our concerns, however.

there

controversy between the parties.

cl.

1;

Federal

Declaratory

must
See
___

be

an

actual,

For us

ongoing

U.S. Const. art. III,

Judgment Act,

28

2,

U.S.C.

2201

(jurisdiction to award declaratory relief exists only in

"a case

of actual

controversy").

has a concrete

Some indication that

impact on the parties is

case is ripe for

adjudication.

the controversy

also necessary before a

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,

indicated

148-49

that the

(1967).3

town of

against

the Pustells,

against

other parents in a

be put in the position

and

If,

Lynn never
had never

for example,
planned to

the

record

take action

taken enforcement

action

similar situation, we arguably would

of issuing an advisory opinion.

Cf. Poe
___ ___

v. Ullman, 367 U.S. 497, 501-09 (1961) (finding a case unripe for
______
adjudication
lack of any

of constitutionality

of state

statutes

evidence that, with the exception of

where the

one test case,

the statutes had ever been enforced, even in the face

of actions

violating

policy

the

statutes,

demonstrated

the

state's

are

satisfied that

of

nullification of these laws).

Although

the issue

is

close, we

the

controversy between

the parties here is

concrete that jurisdiction is proper.

sufficiently actual and

The Pustells continue

to

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

to

approve their home instruction

with the

plan.

policy, while continuing to

the Pustells face possible

sanctions.

ch.

1993)

76,

(West Supp.

By

refusing to comply

homeschool their daughter,

See Mass. Gen.
___

(empowering state

Laws Ann.

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

school for seven full days);

parents of

children

absent

from

Mass. Gen. Laws Ann. ch. 119,

24

(West Supp.
initiate

1993) (empowering any

civil

proceedings

person (including a

on

behalf

of

town) to

children

without

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

in

order

to

compel

education

appropriate, to remove

for

the children

such

children,

from the

custody of

parents); see also Care & Protection of Charles, 504

___ ____ _____________________________
(Mass.

1987).

The

dispute between

the

and,

if

their

N.E.2d 592

parties is

therefore

concrete, and not hypothetical or abstract.

No
resolve

further
the

factual

question

requiring home visits

development

at

issue,

the town

namely,

is constitutional.

"fit" for judicial resolution.

Finally,

is necessary

has,

in

Pustells by rejecting their

whether

imminence

continue

of

at

the

policy

See Abbott Lab., 387 U.S. at 149.

___ ___________
fact,

already

acted

against

the

home instruction plan and officially

enforcement

action,

the

Regardless of
Pustells

will

constitutional claims.

We

believe they are

to know whether they may continue to school their child

home

without

Conditionnement
_______________
Cir.

to

to suffer the harm of substantial uncertainty if we put

off resolving their

entitled

an

us

The issue is therefore

barring them from teaching their daughter at home.

the

for

1981)

declaratory

risking

sanctions.

v. Hunter Engineering, 655

___________________

(actual

threat

of

judgment action to

litigation

See
___

Societe
de
____________

F.2d 938,
not

944 (9th

necessary

for

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.
We

recognize

unflagging
them."
U.S.

that

federal

obligation . .

courts

. to exercise

have

800,

817

"virtually

United States, 424

_____________

(1976); Villa Marina Yacht Sales v.

___________________________

915 F.2d 7, 12

(1st Cir. 1990).

exceptional circumstances
the

the jurisdiction given

Colorado River Water Cons. Dist. v.

_________________________________

Yachts,
______

from

Abstention
__________

exercise of

its

Hatteras
________

Nevertheless, certain

warrant abstention by a

federal court

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.
____________________
____________
federal

courts may

abstain from

court's

resolution of unclear

deciding a

state law would

for a federal constitutional ruling.

496 (1941),

case when

a state

obviate the need

Because the federal court's

decision in

these circumstances "cannot escape

rather than

a determination," abstention is

the waste

of a tentative decision

the Pullman
_______

avoiding
promoting

abstention doctrine

advisory

constitutional

the principles

justified to "avoid

as well as the

premature constitutional adjudication."

way,

being a forecast

friction of a

Id. at 499-500.
___
serves the

dual aims

decisionmaking,

of comity

In this

and federalism

as

well

of

as

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
______________________
In

our view, the

4242 (1988).5
Massachusetts compulsory

attendance law,

Mass. Gen.

Laws Ann. ch. 76,

state law basis

to vindicate

which

children to

requires

exempts
approved

a child "who is
in

committee."
alternative

advance
Id.
___

to public

1 (West 1982), affords a possible

the Pustells' claims.
attend

public

or private

being otherwise instructed

by

the

superintendent

homeschooling
or

or

program is

private school

This

law,

school,

in a manner
the

an

school

acceptable

attendance.

Care &
_______

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

_____________________
Pursuant

to

this

statutory

Committee has adopted regulations

school instruction

authority,

the

Lynn

School

governing the approval of home

within its district.

committee, these regulations include,

As interpreted

by the

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
approval of a
requirements
ensuring

home school
that are

that `all

that

requiring

not essential

504 N.E.2d

periodic

progress

reports or

testing,

would be

proposal must not

the children

Protection of Charles,
_____________________

dated

Court has held that "the

to the

home

evaluation process

visits

may

be

in

at 600.

The court
testing,
in

periodic
of

formal

the educational

Id. at 601.
___

required

is unsettled, however.

Care &
______

observed

or

lieu

to evaluate

progress of children being schooled at home.

Whether

State interest
educated.'"

samples,

acceptable ways

on

shall be

standardized
work

be conditioned

In

as

part

of

this

Care & Protection

_________________

of Charles, the
___________

court stated

that "[w]ith

appropriate testing

____________________
A Statement of Agreement that
Superintendent (or
designee,
periodically:

the parent
i.e., the

will allow the

Principal) to

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

school authority personnel," id.

___
added

"But see

family court

upheld

a home

deliberately

In that

visit requirement

unresolved

case, a

whether

New York

as necessary

school age children.

These conflicting references

left

environment by

The court, however, immediately

Matter of Kilroy."
_________________

evaluate home instruction to

318 (1983).

the learning

467

to

N.Y.S.2d

suggest that the court

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
argue,

home visits "are not

ensuring
school

that `all
committee

Pustells'
even

authorized by

state law.

essential to the

the children
could

not

condition

the

Pustells

State interest in

shall be educated,'"
approval

then the
of

the

home school proposal on an agreement to home visits --

to infrequent and pre-arranged

School

If, as the

Committee's interpretation

Massachusetts
particularly

compulsory

home visits.
of

education

given the reference to

Yet the Lynn

the requirements
act

is

of

the

equally plausible,

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.

an advisory opinion

This would spare us

on the constitutional issues.

from rendering

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.
resolving state law
particularly
504

Although federal courts are capable of

issues, educational

local concern.

a matter

of

See Care & Protection of Charles,

___ _____________________________

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

adopted by the Massachusetts state

been left to
The

policy is

the control

legislature historically have

of the people

question of what information local

order

to

evaluate

adequately is best
federal

whether

municipality).

school officials need in

homeschoolers

resolved by

court judges.

in each

are

being

those closer to

educated

the issue

than

We therefore think it preferable to allow

the Massachusetts courts to complete the analysis begun in Care &

______
Protection of Charles rather than to intervene.
_____________________
for the development

of an informative record

of various assessment practices.

court about

whether Lynn's

This would allow

about the efficacy

Moreover, any decision by

home visit

policy is

this

authorized by

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

of Lynn's policy under

Massachusetts Supreme

Judicial

Massachusetts law lies with the

Court, and

not

with us.

See
___

with state

and

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

_______
We

decline to

create

"needless friction"

local policies,

id.
___

at 500,

by

preempting the

state

court's

-11-

adjudication of the Pustells'

court should abstain, but

claims.

Accordingly, the district

retain jurisdiction pending a decision

by the Massachusetts state court on the proper

the

compulsory

Association
___________

v.

education

law.

See
___

interpretation of

American Trial Lawyers

________________________

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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