No. 93-1794.United States Court of Appeals, First Circuit.Heard December 9, 1993.
Decided March 24, 1994.
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Michael P. Farris, Washington, DC, with whom Jordan W. Lorence, was on brief, for plaintiffs, appellants.
John C. Mihos, Lynn, MA, for defendant, appellee.
Appeal from the United States District Court for the District of Massachusetts.
Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and CYR, Circuit Judge.
COFFIN, Senior Circuit Judge.
[1] 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.[2] I. Factual Background
[3] 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, 399 Mass. 324, 504 N.E.2d 592 (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.”
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of this case make it appropriate for application of the abstention doctrine enunciated in Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941).
[8] II. Justiciability
[9] 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.
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, 81 S.Ct. 1752, 1754-59, 6 L.Ed.2d 989 (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). [11] 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 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, 399 Mass. 324, 504 N.E.2d 592 (1987). The dispute between the parties is therefore concrete, and not hypothetical or abstract. [12] 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, 87 S.Ct. at 1515. 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,
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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. 1992) (absence of enforcement action does not render controversy between parties remote and hypothetical).[4]
[13] III. Abstention
[14] 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, 96 S.Ct. 1236, 1246, 47 L.Ed.2d 483 (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, 96 S.Ct. at 1244-46, 1246-47 (detailing such circumstances). Under Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (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, 61 S.Ct. at 645. 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 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]
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by the Committee. . . .” The school committee has interpreted the observation and evaluation component to require a prearranged home visit once or twice a year for 40-45 minutes.
[18] 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. [19] 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 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. 121 Misc.2d 98, 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. [20] 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. [21] 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 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, 61 S.Ct. at 644-645; see also Catlin v. Ambach, 820 F.2d 588, 591 (2d Cir. 1987). [22] 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 court 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, 61 S.Ct. at 644-645. [23] We decline to create “needless friction” with state and local policies, id. at 500, 61 S.Ct. at 645, by preempting the state court’s 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.
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New Jersey Supreme Court, 409 U.S. 467, 469, 93 S.Ct. 627, 629, 34 L.Ed.2d 651 (1973).[7]
[24] 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.(1976) (abstention).
(1st Cir. 1992) (quoting Abbott Lab., 387 U.S. at 152, 87 S.Ct. at 1517).
The [homeschooling] Plan must include a detailed description of the following: . . .
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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