Rozanne E. King Alisha Jane King Dacie S. Houston, Individually and as Mother and Next Friend of Skylar Dwayne Ostrander, Chay Cortez Ostrander, and Adlia William Cortez Flood III Brandy R. Drake, Individually and as Mother and Next Friend of Logan Genner Luhmann, Susan Maule, Stephanie Maule, and Jacob Maule Michael Campbell, Individually and as Father and Next Friend of George Campbell and Soph

IN THE SUPREME COURT OF IOWA

No. 08–2006

Filed April 20, 2012

ROZANNE E. KING; ALISHA JANE KING;

DACIE S. HOUSTON, Individually and as

Mother and Next Friend of SKYLAR DWAYNE

OSTRANDER, CHAY CORTEZ OSTRANDER,

and ADLIA WILLIAM CORTEZ FLOOD III;

BRANDY R. DRAKE, Individually and as Mother

and Next Friend of LOGAN GENNER LUHMANN,

SUSAN MAULE, STEPHANIE MAULE, and JACOB MAULE;

MICHAEL CAMPBELL, Individually and as Father

and Next Friend of GEORGE CAMPBELL and

SOPHIA CAMPBELL; and LAURA CAMPBELL,

Individually and as Mother and Next Friend of

CHRISTOPHER RASSO, GEORGE CAMPBELL, and

SOPHIA CAMPBELL,

Appellants,

vs.

THE STATE OF IOWA; CHESTER J. CULVER,

in His Official Capacity as the Governor of the

State of Iowa; THE IOWA DEPARTMENT OF

EDUCATION; and JUDY JEFFREY, in Her Official

Capacity as the Director of the Iowa Department of

Education,

Appellees.

Appeal from the Iowa District Court for Polk County, Karen A.

Romano, Judge.

Plaintiffs appeal from a district court ruling granting the

defendants’ motion to dismiss. AFFIRMED.

Douglas E. Gross, Rebecca A. Brommel and Haley R. Van Loon of

Brown, Winick, Graves, Gross, Baskerville and Schoenebaum, P.L.C.,

Des Moines, for appellants.

1

2

Thomas J. Miller, Attorney General, and Jeanie Kunkle Vaudt,

Assistant Attorney General, for appellees.

3

MANSFIELD, Justice.

A generation ago, in Johnson v. Charles City Community Schools

Board of Education, 368 N.W.2d 74, 79 (Iowa 1985), we observed that the

“state has a clear right to set minimum educational standards for all its

children and a corresponding responsibility to see to it that those

standards are honored.” Yet we also concluded that a “court is without

either the resources or the expertise necessary” to draft minimum

educational standards for private religious schools. Id. at 80.

This case concerns Iowa’s standards for public schools. It asks us,

in effect, to require the state to impose additional public school

standards, urging that such action is both constitutionally and

statutorily required.

Adhering to the lessons of the Johnson case, we decline the

invitation. We hold that plaintiffs’ specific challenges to the educational

policies of this state are properly directed to the plaintiffs’ elected

representatives, rather than the courts. We find the plaintiffs have not

stated claims for relief under article IX, division 2, section 3, article I,

section 6, or article I, section 9 of the Iowa Constitution, or Iowa Code

section 256.37 (2007).

Our decision does not foreclose future constitutional challenges to

actions taken by state or local officials in the vital field of public

education. We decide only that this case, brought by these plaintiffs,

should not go forward because the factual allegations, even if proved, do

not set forth a potential constitutional or statutory violation under the

foregoing provisions.

Accordingly, we affirm the district court’s dismissal of the plaintiffs’

petition.

4

I. Facts and Procedural Background.

Because this case was decided on a motion to dismiss, our relevant

point of reference is the plaintiffs’ petition. The plaintiffs’ first amended

and substituted petition, which the district court ultimately dismissed, is

twenty-three pages long. It includes a two-page summary, entitled

“Nature of the Lawsuit,” as well as thirteen pages of “Factual

Allegations.”

The sixteen named plaintiffs are students or parents of students

who attended or currently attend public schools in the Davenport, Des

Moines, or West Harrison Community School Districts. As explained by

plaintiffs’ counsel at oral argument, plaintiffs’ position is that Iowa’s

educational system is not adequately serving students in either the

largest (e.g., Davenport and Des Moines) or the smallest (e.g., West

Harrison) school districts. The case is not brought as a class action.

According to the initial summary contained in the petition, “[t]he

quiet, ugly truth is that Iowa’s educational system is but a shadow of its

glorious past and our leaders are whistling by its graveyard.” Plaintiffs

allege that there exists a “disparity in educational outcomes [in Iowa]

based upon where one goes to school” and there has been a “failure[] to

provide similar educational opportunities for all of Iowa’s students.”

Plaintiffs have not named any local school officials as defendants.

They have sued, rather, the State of Iowa, the Governor of Iowa, the Iowa

Department of Education, and the Director of the Department. In their

initial summary, plaintiffs allege that these statewide entities and

officials “have failed to establish standards, failed to enforce any

standards, failed to adopt effective educator pay systems, and failed to

establish and maintain an adequate education delivery system.”

5

In the ensuing factual allegations, plaintiffs allege that Iowa’s

statewide laws and rules are “broad educational requirements and

accreditation standards for schools within the State of Iowa.” They do

not, in plaintiffs’ view, contain “specific, detailed information regarding

the courses that schools must provide or offer to [their] students nor do

they set forth any details regarding the skills that must be attained by

students at each grade level.” Repeatedly, plaintiffs criticize Iowa for the

lack of “state-mandated standards.” They maintain that Iowa is the only

state without any statewide academic standards. Plaintiffs also fault

Iowa for not “providing specific testing of students at various educational

levels and in a variety of subject matters like other states,” instead

relying on the Iowa Test of Basic Skills (ITBS) and the Iowa Test of

Educational Development (ITED).

This part of the petition refers to a number of reports and studies.1

For example, plaintiffs note that according to Education Week’s Quality

Counts 2008 report, Iowa received a “C” for educational performance. 2

Plaintiffs also cite Iowa Department of Education statistics that, in

their view, show how students attending the smallest school districts

(less than 250 students) are disadvantaged. According to the

Department’s 2007 Annual Condition of Education report, teachers in

1See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S. Ct.

2499, 2509, 168 L. Ed. 2d 179, 193 (2007) (in ruling on a motion to dismiss, courts

must ordinarily consider documents incorporated into the complaint by reference);

Hallett Constr. Co. v. Iowa State Highway Comm’n, 261 Iowa 290, 295, 154 N.W.2d 71,

74 (1967) (highway specifications that were incorporated in the petition by reference

were deemed part of the petition and could be considered in a default proceeding).

Because this action was brought in 2008, the materials cited by plaintiffs date from

2008 or earlier.

2This was a middling performance, according to this source. The national

average was a C. See Iowa—State Highlights 2008, Education Week’s Quality Counts

(Editorial Projects in Educ. Research Ctr., Bethesda, Md.), 2008, at 2, available at

http://www.edweek.org/ew/toc/2008/01/10/index.html.

6

those districts have, on average, less experience, fewer advanced degrees,

and more teaching assignments than their colleagues at the largest

school districts, such as Davenport and Des Moines. Iowa Dep’t of

Educ., The Annual Condition of Education at 47, 75, 76 (2007)

[hereinafter The Annual Condition of Education], available at

http://educateiowa.gov/index.php?option=com_docman&task=cat_view

&gid=646&itemid=1563. Unsurprisingly, according to the petition,

students in the smallest districts also have fewer curriculum units

available to them. 3 Id. at 112.

Additionally, students from Iowa’s smallest school districts receive,

on average, lower ACT scores. In 2007, according to the Department of

Education report, the average ACT composite score was 21.3 for students

at districts in the lowest enrollment category (less than 250 students).

Id. at 192. By contrast, the average ACT composite score was 22.5 for

students attending districts in the largest enrollment category. Id. The

petition notes, however, that the national average ACT composite score

was 21.2. Id. at 186. Thus, all categories of school districts in Iowa

scored above the national average. 4

Plaintiffs further allege that Iowa’s ranking in science and math is

“consistently declining”; that Iowa “has continued to decline in the

national rankings for math and reading proficiencies and other measures

of student achievement”; that “Iowa ranks well below the national

average for students taking gateway courses such as Algebra, Algebra 2

3On the other hand, the 2007 report indicates that students at the smallest

school districts benefit, on average, from much smaller class size. The Annual Condition

of Education, at 122. For example, the relevant comparisons are 11.9 versus 20.5

students per class for kindergarten, 11.8 versus 21.4 per class for first grade, 13.1

versus 21.6 for second grade, and 13.7 versus 22.7 for third grade. Id.

4The 2007 report further reveals that Iowa’s average ACT composite score of

22.3 was tied with Wisconsin for second place in the nation. Id. at 185.

7

or Geometry”; that “Iowa ranks thirty-eighth in the nation for AP

[Advanced Placement] test scores”; and that “[m]any Iowa students are

not prepared to enter the workforce or post-secondary education without

additional training or remediation when they graduate from high school.”

Some of the factual allegations concern “the circumstances of the

plaintiffs.” These allegations do not actually discuss the plaintiffs

individually, but rather their school districts. According to the petition,

one of the districts, West Harrison, has approximately 500 students.

(Thus, it does not fall into the smallest category of school district, i.e.,

less than 250 students, referenced earlier in the petition.) Among other

things, plaintiffs allege that West Harrison had an average ACT

composite score of 18.6 in 2006, nearly three and a half points below the

average ACT score for all Iowa students; that only ten to twelve percent of

West Harrison’s teachers have advanced degrees; that West Harrison

does not have anyone on staff to assist high school students with college

planning or other career counseling; and that classes at West Harrison

do not adequately prepare students for a college level curriculum.

With regard to the Davenport school district, plaintiffs do not find

fault with teacher experience, staffing, or class availability, but allege

that its average composite ACT score in 2007 was 20.5. No allegations

are made as to teacher experience, staffing, class availability, or ACT

scores in the Des Moines school district. However, with respect to all

three of the school districts, plaintiffs allege that the percentages of

students found proficient in math and reading according to ITBS and

ITED scores generally have ranged between fifty and seventy percent, a

level that plaintiffs appear to believe is unsatisfactory.

The petition has two counts seeking relief. In Count I, plaintiffs

request a declaratory judgment. They allege that education is a

8

fundamental right or alternatively that the current education laws (“or

lack thereof”) are “irrational, arbitrary, and capricious” and not

“rationally related to a legitimate governmental interest.” They also allege

that “some students are receiving a more effective education than other

students based solely upon where the student resides.” They allege the

defendants have “failed to establish and provide access to an effective

education” by (1) “failing to establish educational standards,” (2) failing

to enforce and utilize such standards, (3) “failing to implement a

professional pay system for educators consistent with such standards,”

(4) “failing to provide equal access,” and (5) “failing to develop an effective

organizational and delivery system and failing to address or abolish the

disparities among different school[] districts in Iowa.” They allege

violations of the due process, equal protection, and education clauses of

the Iowa Constitution and Iowa Code section 256.37.

Count II seeks an order of mandamus. It alleges similar failures

on the part of the defendants, but goes on to assert that these failures

amount to a breach of duty and requests an order directing the

defendants to provide an effective education.

Finally, plaintiffs’ prayer for relief seeks a declaration that the

defendants have failed to provide an effective education in accordance

with the due process, equal protection, and education clauses and Iowa

Code section 256.37. It also requests an order of mandamus or

permanent injunction directing the defendants to (1) undertake all

suitable means to provide an effective education; (2) develop educational

content and performance standards for all Iowa school districts which

detail required course offerings, instructor capabilities, and testing

requirements, among other things; (3) improve or develop state

assessments; (4) develop and enforce professional development

9

programs; (5) implement a career ladder to enhance recruitment and

retention of quality teachers; (6) enforce the standards by identifying and

enforcing consequences for failure to follow and implement such

standards; (7) “develop educational management and governance

arrangements to mitigate all procedural and structural impediments to

an effective education”; and (8) “[c]lose the achievement gaps among the

school[] districts in Iowa.”

Plaintiffs’ original petition was filed April 3; their first amended and

substituted petition on April 30. On June 21, 2008, the defendants filed

a motion to dismiss. In their nine-page motion, the defendants argued:

(1) all the constitutional claims raised a nonjusticiable political question;

(2) the equal protection and due process claims failed to state a claim;

(3) there is no private cause of action under section 256.37;

(4) mandamus did not lie; (5) the Governor could not be sued; and (6) the

Iowa Administrative Procedures Act was the exclusive means of obtaining

review of acts or omissions by the Department of Education.

This motion was resisted on all grounds by plaintiffs; a hearing

was held; and on November 21, 2008, the district court granted the

defendants’ motion.

In a thoughtful sixteen-page ruling, the district court found the

plaintiffs had stated claims for relief under the equal protection clause

and the due process clause, but all their constitutional claims presented

a nonjusticiable political question, and their statutory claim under

section 256.37 failed because that provision does not afford a private

right of action. The court also found the plaintiffs had not satisfied the

prerequisites for seeking mandamus. The court dismissed the action in

its entirety for these reasons, declining to reach the defendants’

remaining asserted grounds for dismissal. Plaintiffs appeal.

10

II. Standard of Review.

Our review of a district court ruling on a motion to dismiss is for

correction of errors at law. Kingsway Cathedral v. Iowa Dep’t of Transp.,

711 N.W.2d 6, 7 (Iowa 2006). “A motion to dismiss should only be

granted if the allegations in the petition, taken as true, could not entitle

the plaintiff to any relief.” Sanchez v. State, 692 N.W.2d 812, 816 (Iowa

2005). “A motion to dismiss admits the well-pleaded facts in the petition,

but not the conclusions.” Kingsway Cathedral, 711 N.W.2d at 8.

III. Analysis.

A. Introduction. We begin our analysis of this case by

discussing, briefly, what it is not. For one thing, this is not a school

funding case. Plaintiffs do not allege that Iowa has a funding system

that discriminates among school districts or even one that funds schools

inadequately. 5 Also, plaintiffs are not questioning any specific law, rule,

5Approximately forty-one other state supreme courts have considered broad

constitutional challenges to the state education system. The vast majority of these

cases have been primarily concerned with the state’s method of funding education—i.e.,

allegations that funding is either inequitable, inadequate, or both. See Opinion of the

Justices, 624 So.2d 107, 112 n.5 (Ala. 1993) (funding “a major focus of plaintiffs’ case”),

abrogated by Ex parte James, 836 So.2d 813, 819 (Ala. 2002) (ultimately finding

challenge nonjusticiable); Matanuska-Susitna Borough Sch. Dist. v. State, 931 P.2d 391,

394 (Ak. 1997) (challenge to Alaska’s public school funding laws; summary judgment

for the state upheld); Roosevelt Elementary Sch. Dist. No. 66 v. Bishop, 877 P.2d 806,

815–16 (Ariz. 1994) (finding Arizona’s system of funding public education

unconstitutional under the Arizona Constitution); Lake View Sch. Dist. No. 25 v.

Huckabee, 91 S.W.3d 472, 500 (2002) (finding Arkansas’s method of funding education

violated the Arkansas Constitution) (mandate recalled on other grounds by Lake View

Sch. Dist. No. 25 v. Huckabee, 142 S.W.3d 643 (2004) (per curiam) and Lake View Sch.

Dist. No. 25 v. Huckabee, 210 S.W.3d 28 (2005)); Serrano v. Priest, 557 P.2d 929, 957–

58 (Cal. 1976) (holding California violated the California Constitution in its manner of

financing public schools); Lobato v. State, 218 P.3d 358, 364 (Colo. 2009) (allowing

challenge to Colorado’s school financing system to proceed); Horton v. Meskill, 376 A.2d

359, 374–75 (Conn. 1977) (holding that the state has a constitutional obligation to

provide “substantially equal” free public education in terms of state funding); Coal. for

Adequacy & Fairness in Sch. Funding, Inc. v. Chiles, 680 So.2d 400, 405–08 (Fla. 1996)

(upholding dismissal of lawsuit claiming that the state had failed to allocate adequate

resources to public schools); McDaniel v. Thomas, 285 S.E.2d 156, 168 (Ga. 1981)

(rejecting challenge to Georgia’s system of financing public education); Idaho Sch. for

Equal Educ. Opportunity v. State, 129 P.3d 1199, 1209 (Idaho 2005) (affirming trial

11

_______________________________

court’s conclusion that Idaho’s current method of funding as it related to school

facilities violated the Idaho Constitution); Comm. for Educ. Rights v. Edgar, 672 N.E.2d

1178, 1196–97 (Ill. 1996) (affirming dismissal of lawsuit challenging Illinois’s system of

financing public schools); Bonner ex rel. Bonner v. Daniels, 907 N.E.2d 516, 522–23

(Ind. 2009) (holding that state public education finance scheme did not violate Indiana

Constitution); Montoy v. State, 120 P.3d 306, 308 (Kan. 2005) (reversing finding of equal

protection violations but upholding district court finding that Kansas’s statutory

scheme for funding the public schools violated a separate provision of the Kansas

Constitution); Charlet v. Legislature, 713 So.2d 1199, 1207 (La. Ct. App. 1998) (granting

summary judgment upon finding the state followed constitutionally proscribed

mechanisms for providing school funding); Sch. Admin. Dist. No. 1 v. Comm’r, Dep’t of

Educ., 659 A.2d 854, 857 (Me. 1995) (rejecting challenge to reductions in state

education funding); Hornbeck v. Somerset Cnty. Bd. of Educ., 458 A.2d 758, 790 (Md.

1983) (holding that Maryland’s system of financing public education was not

unconstitutional); Milliken v. Green, 212 N.W.2d 711, 720–21 (Mich. 1973) (rejecting

challenge to discrepancies in school funding resulting from Michigan’s manner of

financing public school education); Skeen v. State, 505 N.W.2d 299, 320 (Minn. 1993)

(holding Minnesota’s current method for funding the education system did not violate

the Minnesota Constitution); Comm. for Educ. Equal. v. State, 294 S.W.3d 477, 495 (Mo.

2009) (finding no constitutional violation in Missouri’s school funding formula);

Columbia Falls Elementary Sch. Dist. No. 6 v. State, 109 P.3d 257, 263 (Mont. 2005)

(finding Montana’s method of funding schools violates Montana’s constitutional

mandate to provide “quality” schools); Helena Elementary Sch. Dist. No. 1 v. State, 769

P.2d 684, 690–91 (Mont. 1989) (finding Montana’s method of funding public schools

unconstitutional under the Montana Constitution); Neb. Coal. for Educ. Equal. &

Adequacy v. Heineman, 731 N.W.2d 164, 183 (Neb. 2007) (holding plaintiffs’ challenges

to inadequate funding to present nonjusticiable political questions); Clarement Sch. Dist.

v. Governor, 703 A.2d 1353, 1360 (N.H. 1997) (finding the state’s system crafted to fund

public education to be unconstitutional); Abbott ex rel. Abbott v. Burke, 693 A.2d 417,

432–33 (N.J. 1997) (holding funding provisions for regular education expenditures to be

unconstitutional); Robinson v. Cahill, 303 A.2d 273, 295–98 (N.J. 1973) (determining

that New Jersey’s method of funding education which relied on local taxation for

approximately sixty-seven percent of public school costs and led to great disparities in

dollar input per pupil violated the New Jersey Constitution); Bd. of Educ. v. Nyquist,

439 N.E.2d 359, 363–70 (N.Y. 1982) (holding New York’s school financing system does

not violate the State or Federal Constitution); Hoke Cnty. Bd. of Educ. v. State, 599

S.E.2d 365, 390–91 (N.C. 2004) (finding state’s method of funding and providing for

school districts violated the state constitution); Bismarck Pub. Sch. Dist. 1 v. State, 511

N.W.2d 247, 263 (N.D. 1994) (failing to declare that the overall impact of the statutory

method for distributing funding for education was unconstitutional under the state

constitution); Bd. of Educ. v. Walter, 390 N.E.2d 813, 825–26 (Ohio 1979) (finding “the

General Assembly has not so abused its broad discretion in enacting the present system

of financing education as to render the statutes in question unconstitutional”); Okla.

Educ. Ass’n v. State ex rel. Okla. Legislature, 158 P.3d 1058, 1066 (Okla. 2007) (holding

challenges to state funding system presented nonjusticiable political questions); Coal.

for Equitable Sch. Funding, Inc. v. State, 811 P.2d 116, 121–22 (Or. 1991) (holding the

method of funding public schools did not violate Oregon’s Constitution); Danson v.

Casey, 399 A.2d 360, 367 (Pa. 1979) (finding the state’s financing scheme did not

violate the Pennsylvania Constitution); City of Pawtucket v. Sundlun, 662 A.2d 40, 61–

62 (R.I. 1995) (upholding Rhode Island’s funding system); Richland Cnty. v. Campbell,

12

or policy enacted or promulgated by any of the defendants. This is a

case challenging government inaction, not government action. Further,

the defendants are not alleged to have engaged in disparate treatment of

anyone. Plaintiffs do not claim the defendants have a different policy or

standard for different types or categories of schools.

Rather, the entire focus of plaintiffs’ lawsuit is on the defendants’

alleged “failure” to act on a statewide basis. More specifically, plaintiffs

allege that the defendants have failed to establish statewide educational

standards, assessments, and teacher training, recruitment, and

retention programs. To be sure, plaintiffs claim they have been denied

“equal access” as a result of these “failures,” but that is an allegation of

_______________________________

364 S.E.2d 470, 472 (S.C. 1988) (holding system for financing and funding schools did

not violate the South Carolina Constitution); Davis v. State, 804 N.W.2d 618, 641 (S.D.

2011) (finding South Dakota’s system of funding education did not violate the education

clause of the South Dakota Constitution); Dean v. Coddington, 131 N.W.2d 700, 703

(S.D. 1964) (upholding educational funding statute as constitutional); Tenn. Small Sch.

Systems v. McWherter, 851 S.W.2d 139, 156 (Tenn. 1993) (finding the state’s statutory

funding scheme was unconstitutional); Neely v. W. Orange-Cove Consol. Indep. Sch.

Dist., 176 S.W.3d 746, 754 (Tex. 2005) (holding state public school finance system was

constitutional); Brigham v. State, 692 A.2d 384, 397 (Vt. 1997) (determining the state’s

system of financing public education violated the Vermont Constitution); Scott v.

Commonwealth, 443 S.E.2d 138, 141–42 (Va. 1994) (holding Virginia’s Constitution was

not violated by the school funding system); Seattle Sch. Dist. No. 1 v. State, 585 P.2d 71,

105 (Wash. 1978) (finding state’s current school financing system to be

unconstitutional); Vincent v. Voight, 614 N.W.2d 388, 415 (Wis. 2000) (holding

Wisconsin’s school finance system was constitutional); Campbell Cnty. Sch. Dist. v.

State, 181 P.3d 43, 84 (Wyo. 2008) (upholding state’s financing system as

constitutional).

However, a few state supreme courts have favorably considered (at least for

motion to dismiss purposes) claims that focus upon the quality of education, as

opposed to funding. See Conn. Coal. for Justice in Educ. Funding, Inc. v. Rell, 990 A.2d

206, 210–11, 271 (Conn. 2010) (holding the plaintiffs’ allegations that they had not

received suitable educational opportunities stated cognizable claims in light of

Connecticut’s constitutional mandate for “free public elementary and secondary

schools”); Rose v. Council for Better Educ., Inc., 790 S.W.2d 186, 189 (Ky. 1989) (holding

that the Kentucky General Assembly had not complied with its constitutional mandate

to “provide an efficient system of common schools”); Abbeville Cnty. Sch. Dist. v. State,

515 S.E.2d 535, 539–40 (S.C. 1999) (holding that plaintiffs had stated a claim under

the South Carolina Constitution’s education clause requiring that “the General Assembly

shall provide for the maintenance and support of a system of free public education”).

13

disparate impact, not disparate treatment. There is no allegation that the

defendants, for example, have treated the West Harrison school district

any differently from other, larger school districts. Simply stated,

plaintiffs charge the defendants with not having affirmatively adopted

policies that would eliminate existing discrepancies among districts, for

example, as to average student test scores.

B. The Legal Issues Before Us. As we have indicated many times

before, “we will uphold a district court ruling on a ground other than the

one upon which the district court relied provided the ground was urged

in that court.” Martinek v. Belmond-Klemme Cmty. Sch. Dist., 772

N.W.2d 758, 762 (Iowa 2009) (citations omitted); see also Fennelly v. A-1

Mach. & Tool Co., 728 N.W.2d 163, 177 (Iowa 2006); Emmert v. Neiman,

245 Iowa 931, 934, 65 N.W.2d 606, 608 (1954) (“We have held many

times that in reviewing a ruling sustaining a motion to strike or dismiss,

the same should be sustained if any of the grounds advanced are good,

even though the one upon which the trial court based its ruling, is not.”

(citations omitted)).

Here the defendants urged dismissal of the constitutional claims in

the district court on the alternative grounds that they were

nonjusticiable and that they failed to state a claim. Both parties had a

full opportunity to brief (and did brief) those matters below. Although

the defendants’ appellate brief does not specifically urge that we affirm

on the basis of failure to state a claim if we find one or more of the claims

justiciable, the defendants made that request at oral argument. The

parties have provided their district court briefing to us, and neither side

has suggested that further briefing is needed. In any event, because

both grounds were duly raised before the trial court, we could affirm on

either ground even if it were not argued to us. See Erickson v. Erickson’s

14

Estate, 191 Iowa 1393, 1397, 180 N.W. 664, 665 (1920). The

fundamental principle is one of fairness to the parties and the trial court.

See DeVoss v. State, 648 N.W.2d 56, 62–63 (Iowa 2002). That fairness is

assured so long as the grounds on which we are affirming were presented

to the trial court so the trial court had an opportunity to rule on them

and the opposing party had an opportunity to counter them if it felt it

needed to do so. Cf. Principal Mut. Life Ins. Co. v. Charter Barclay Hosp.,

Inc., 81 F.3d 53, 56 (7th Cir. 1996) (noting that it “would not be quite

cricket” to decide a case on a ground that had not been raised at all by

the appellee before oral argument of the appeal). Also, because the

district court has already indicated that it believes the equal protection

and due process claims would be sufficient if they were justiciable, a

remand for it to rule again on the viability of those claims (assuming

their justiciability) seems particularly unnecessary and would only

prolong the proceedings.

In State v. Seering, 701 N.W.2d 655, 660–61 (Iowa 2005), we

declined to reach several constitutional arguments that were presented

to and not ruled upon by the district court, and that were also not

presented to us. That was an appropriate exercise of our discretion, but

it is a far cry from the present case. Here the parties not only briefed

below whether the equal protection and due process claims should be

dismissed for failure to state a claim, the district court also decided these

questions. A remand for the district court to rule again on whether the

plaintiffs have stated a claim therefore would serve no purpose. At oral

argument, the plaintiffs did not object to this court’s considering whether

they stated a claim, nor would such an objection have made sense.

Appellants and appellees stand in different positions because the

appellant seeks to overturn the judgment rendered below. See Ritz v.

15

Wapello Cnty. Bd. of Supervisors, 595 N.W.2d 786, 789 (Iowa 1999)

(stating that “[w]e have recognized . . . a distinction between successful

and unsuccessful parties for purposes of error preservation” (citations

omitted)). Our rules provide that an appellee need not even file a brief in

our court. See Iowa R. App. P. 6.903(3) (indicating that the appellee may

waive filing a brief). The appellant, by contrast, must file a brief and is

limited to the issues raised in that brief. See id. r. 6.903(2); Dilley v. City

of Des Moines, 247 N.W.2d 187, 195 (Iowa 1976) (citing cases). Of

course, we may choose to consider only grounds for affirmance raised in

the appellee’s brief, but we are not required to do so, so long as the

ground was raised below. In recent years, we have even on occasion

affirmed on grounds not raised below. For example, in State v. Reyes,

744 N.W.2d 95, 99–100 (Iowa 2008), we affirmed on a statutory ground

that was not raised either below or in the appellate briefs, until we

invited supplemental briefing. In State v. Adams, we granted further

review and invited supplemental briefing on an issue that had not been

raised by either party either below or on appeal, and then rendered a

decision on that issue. See Order for Supplemental Briefing, State v.

Adams, 810 N.W.2d 365, 366 (Iowa 2012) (No. 08–0513).

This appeal has been brought to us. The elected branches of our

state government are currently engaged in an active debate about state

educational policy. They are entitled to know whether this lawsuit may

affect their policy choices. It would be an abnegation of our

responsibility not to reach a legal question about the sufficiency of the

plaintiffs’ pleadings that was fully developed and decided by the district

court.

Additionally, the political question grounds and the failure to state

a claim grounds are interrelated. In either case, we assume the truth of

16

the plaintiffs’ factual allegations and determine whether, under those

facts, the plaintiffs could be entitled to judicial relief. 6

C. The Education Clause. We first consider plaintiffs’ claims

under article IX, division 2, section 3 of the Iowa Constitution. 7 In its

entirety, this section reads as follows:

Perpetual support fund. Sec. 3. The General

Assembly shall encourage, by all suitable means, the

promotion of intellectual, scientific, moral, and agricultural

improvement. The proceeds of all lands that have been, or

hereafter may be, granted by the United States to this State,

for the support of schools, which may have been or shall

hereafter be sold, or disposed of, and the five hundred

thousand acres of land granted to the new States, under an

act of Congress, distributing the proceeds of the public lands

among the several States of the Union, approved in the year

of our Lord one thousand eight hundred and forty-one, and

all estates of deceased persons who may have died without

leaving a will or heir, and also such percent as has been or

may hereafter be granted by Congress, on the sale of lands

in this State, shall be, and remain a perpetual fund, the

interest of which, together with all rents of the unsold lands,

and such other means as the General Assembly may provide,

6This case was originally argued in March 2010, before three current members

joined this court. It was then reargued in June 2011. Even at the first oral argument,

some of the questioning related to the merits of plaintiffs’ claims, including the following

questions taken from the recording:

I take it this is a bit of an attack on local control, correct me if I’m wrong?

Aren’t you in essence saying that a local school board then would not have

the authority to say: well we want to set our tax rates at a certain level;

we are concerned about economic development in this rural setting, we

don’t want to get the taxes up high; we choose not to promote advanced

placement courses and instead we want to have a broad based athletic

program.

Supposing there were a uniform standard, number one wouldn’t that pose

a risk of a lower standard as the legislature considers what’s uniform

across the board that they want to bring the rural districts up and maybe

the urban districts down?

Secondly, supposing that standard were established could a wealthier

district then elect to apply a richer environment?

(Emphasis added.)

7Plaintiffs do not argue, either here or below, that they have claims under

division 1 of article IX of the Iowa Constitution.

17

shall be inviolably appropriated to the support of common

schools throughout the state.

Iowa Const. art. IX, div. 2, § 3 (1857 original version) (emphasis added).

The present controversy concerns the italicized first sentence above,

which both parties refer to as “the education clause.” 8

Plaintiffs contend the education clause imposes judicially

enforceable obligations on Iowa’s legislature to promote education by “all

suitable means.” Defendants counter that plaintiffs’ claims under the

clause present a nonjusticiable political question. Otherwise stated,

defendants maintain that the education clause reflects a grant of funding

authority to the legislature, not a limit upon legislative policy in the field

of education.

Constitutional provisions, like statutes, need to be read in context.

See Iowa Elec. Light & Power Co. v. Inc. Town of Grand Junction, 221 Iowa

441, 463, 264 N.W. 84, 95 (1935) (Parsons, J., specially concurring) (“A

Constitution should be construed as a whole, just like a statute.”).

Article IX of the 1857 Constitution of the State of Iowa, entitled,

“Education and School Lands,” was enacted in two divisions. The first

division of article IX, captioned “Education,” established a state board of

education and conferred on that board powers and duties relating to

education policy. In particular, section 1 of that division provided, “The

educational interest of the State, including Common Schools and other

educational institutions, shall be under the management of a Board of

Education . . . .” Iowa Const. art. IX, div. 1, § 1. Section 8 authorized

the board of education “to legislate and make all needful rules and

regulations in relation to Common Schools,” although it also permitted

8We have not used that term previously in any case.

18

the general assembly to “alter[], amend[] or repeal[]” the board’s acts,

rules and regulations after they had been adopted. Id. art. IX, div. 1, § 8.

The second division of article IX, captioned “School Funds and

School Lands,” sets forth provisions relating to the funding of education,

especially through the sale of state-owned lands. Whereas the first

division entrusted the “educational interest” to the board of education,

the second division made clear that funding would be the legislature’s

domain. Hence, the first section of the second division states, “[t]he

educational and school funds and lands, shall be under the control and

management of the General Assembly of this state.” Id. art. IX, div. 2,

§ 1.

The third section of the second division, wherein the education

clause is found, is entitled “Perpetual support fund.” Id. art IX, div. 2,

§ 3. The clause itself then follows. The remaining language of this

section, after the education clause, speaks in terms of “a perpetual fund,

the interest of which, together with all rents of the unsold lands, and

such other means as the General Assembly may provide, shall be

inviolably appropriated to the support of Common schools throughout

the State.” Id. All this, we believe, supports a construction of the

education clause as a funding provision, which allocated to the general

assembly the authority to provide money for education, and thereby to

“encourage [various forms of improvement] by all suitable means.” Id.

We discussed this dichotomy between education policy (covered by

the first division of article IX) and education funding (the subject of the

second division) at some length in District Township of the City of

Dubuque v. City of Dubuque, 7 Clarke 262 (1858), decided just a year

after the adoption of 1857 constitution. There we found unconstitutional

a wide-ranging law enacted by the general assembly to provide for “the

19

public instruction of the state of Iowa” on the ground that “[p]ower to

legislate upon the subject of education, is conferred upon the board [of

education]” and the legislature can only act in the realm of education

policy to alter, amend, or repeal the board’s prior acts. Dist. Twp., 7

Clarke at 271–72, 285–86. 9 We emphasized that laws “which provide a

system of education, sometimes known by the name of ‘school laws’ . . .

are to originate with the board[,]” whereas laws “for the levying of taxes—

those making appropriations of money—and those for the control and

management of the educational and school funds and lands—are to be

passed by the general assembly.” Id. at 286.

A year later, in Clayton County High School v. Clayton County, 9

Iowa 175 (1859), reinforcing the lesson of the Dubuque case, we held the

general assembly lacked constitutional authority to establish high

schools. We specifically rejected the argument that such schools “may

rightfully be provided for by the General Assembly, to whom is committed

the duty of encouraging, by all suitable means, the promotion of

intellectual, scientific, moral and agricultural improvement.” Clayton

Cnty., 9 Iowa at 176. Instead we concluded that these schools were “a

component part of the educational system of the State; the original

9Among the provisions which this court declared unconstitutional was a

provision for schools segregated on the basis of race. See 1858 Iowa Acts ch. 52,

§ 30(4). Later, in Clark v. Board of Directors, 24 Iowa 266 (1868), we struck down the

segregated schools of a particular school district. Our decision there was based on

interpretation of language originally passed by the board of education in 1860 in the

wake of the Dubuque decision and subsequently reaffirmed on several occasions by the

legislature. Clark, 24 Iowa at 271–73. The language in question required “the

instruction of youth between the ages of five and twenty-one years.” Id. at 271. We

reasoned that this language prohibited the exclusion of persons of color from the

common schools. Id. at 276. Our opinion cited section 12 of the first division of article

IX—one of the original constitutional provisions relating to the board—as providing

authority for the board’s 1860 enactment. Id. at 271. In this case, plaintiffs have not

cited or relied upon section 12 or any of the other original constitutional provisions in

the first division relating to the board of education.

20

establishment of which, as well as its subsequent management and

control, has been committed by the constitution to the Board of

Education.” Id. at 177. In short, at a time when the 1857 constitution

was quite fresh in people’s minds, we reached the conclusion that no

aspect of the Iowa Constitution, including the education clause,

authorized the legislature to provide for public schools (as opposed to

merely funding them). Since the contemporary view of our court was

that the education clause did not even allow the legislature to establish

public schools, it seems difficult for us to conceive that the clause could

have been seen as a source of enforceable minimum standards for such

schools.

This interpretation of the education clause as a grant of funding

authority is further confirmed by section 15 of the first division of article

IX:

At any time after the year One thousand eight hundred

and sixty three, the General Assembly shall have power to

abolish or re-organize said Board of Education, and provide

for the educational interest of the State in any other manner

that to them shall seem best and proper.

Iowa Const. art. IX, div. 1, § 15. In short, section 15 of the first division

authorized the general assembly to eliminate the board of education at

any time after 1863 and thereafter provide for “the educational interest of

the State in any other manner that to them shall seem best and proper.”

Id. As it turned out, the legislature abolished the board of education at

the earliest possible opportunity in 1864. See 1864 Iowa Acts ch. 52,

§ 1. 10

10We are not called upon to decide in this case whether the abolition of the

board of education gave the legislature plenary authority to address education policy or

whether that authority is subject to any limits that previously applied to the board of

education.

21

Placed in context, section 15 reaffirms the dividing line between

the first division of article IX, which addressed education policy, and the

second division, which identified funding sources. Section 15 made clear

that the board of education would control education policy (subject to a

possible legislative override) until at least 1863, but thereafter the

legislature could take over that responsibility “in any other manner that

to them shall seem best and proper.” Iowa Const. art. IX, div. 1, § 15.

One episode from the 1857 constitutional convention debates also

suggests that our founders did not intend for section 3 of the second

division to constrain the general assembly’s authority with respect to

education policy. On March 3, 1857, George Ells of Davenport proposed

amending that section to include a guarantee of a free public education.

Specifically, he sought to add a clause at the end of the section so it

would read, “shall be inviolably appropriated to the support of common

schools throughout the state, in which tuition shall be without charge.”

See 2 The Debates of the Constitutional Convention; of the State of Iowa

968 (W. Blair Lord reporter, Davenport, Luse, Lane & Co. 1857)

[hereinafter Debates] (emphasis added), available at http://www.state

libraryofiowa.org/services/law-library/iaconst.

Ells’s proposal came under immediate criticism. J.C. Hall of

Burlington objected that the issue of free public schools should be left “to

be determined in the future, as the public exigencies may require.” Id.

A.H. Marvin of Monticello observed:

We should not, in my opinion, be bound by a

constitutional provision to make our common schools free to

all, but should let the several districts regulate this matter

for themselves. If we do that, I will warrant you that poor

children will never be turned out of our common schools.

22

Id. at 969. Harvey Skiff of Newton commented, “If we should incorporate

the provision of the gentleman from Scott [Mr. Ells] into our constitution,

it would become established as organic law, which could not be

repealed.” Id. Although another delegate (Rufus Clarke of Mt. Pleasant)

spoke in favor of the amendment, it was quickly defeated by a vote of

twenty-five to eight. Id. at 970–72.

This exchange indicates the delegates to the 1857 convention did

not believe that section 3, as it was ultimately approved, contained a

right to a free public education. And if section 3 did not assure a right to

a free public education, it seems untenable to argue that section 3

contained a judicially enforceable right to a free public education with

certain minimum standards of quality. Iowa’s constitutional delegates

had an opportunity to make a guarantee of free public education part of

“organic law,” id. at 969, and declined to do so. 11

Our decision in Kleen v. Porter lends further support to the view

that the education clause does not constrain legislative policies in the

field of education. 237 Iowa 1160, 23 N.W.2d 904 (1946). Kleen was a

declaratory judgment action seeking to have declared unconstitutional

two laws that appropriated money from the general fund to school

districts on a targeted basis to reimburse certain transportation expenses

and bring all districts up to a certain minimum level of per-pupil

funding. 237 Iowa at 1161, 23 N.W.2d at 905. The petition asserted

11Earlier in the convention, Marvin had proposed an amendment that would

have provided, “And the legislature shall provide for raising funds sufficient so that

schools shall be kept in each district at least six months in each year, which schools

shall be free of charge and equally open to all.” 2 Debates, at 825. That amendment

also was rejected, following a debate that had unfortunate racial overtones. Id. at 825–

30.

Unlike the earlier Marvin amendment, the later Ells amendment was directed to

section 3 of the second division. There is no indication in the debates that the Ells

amendment was rejected for racial reasons. Id. at 968–72.

23

that under sections 3 and 7 of the second division of article IX, such

appropriations could only be made on a uniform statewide basis in

proportion to the numbers of youths between five and twenty-one years

old in each district. Id.; see also Iowa Const. art. IX, div. 2, § 7 (“The

money subject to the support and maintenance of common schools shall

be distributed to the districts in proportion to the number of youths,

between the ages of five and twenty-one years, in such manner as may

be provided by the General Assembly.”). 12 We disagreed. We held that

the enumeration requirement applied only to appropriations from the

“permanent school fund” established by article IX, division 2, not other

funding sources. Kleen, 237 Iowa at 1165–66, 23 N.W.2d at 907. We

construed the first sentence of section 3—“The General Assembly shall

encourage, by all suitable means, the promotion of intellectual, scientific,

moral, and agricultural improvement”—as designed to give the legislature

“broad authority” to augment the income from the permanent school

fund without being subject to the enumeration requirement in section 7.

Id. at 1166, 23 N.W.2d at 907. Thus, Kleen saw the education clause as

a grant of broad funding authority to the general assembly.

In sum, given the wording and location of the education clause in

our constitution, and our prior interpretations of that clause, we do not

believe plaintiffs have stated a claim thereunder. Plaintiffs’ criticisms of

state education policy do not amount to a violation of article IX, division

2, section 3.

It is a well-established principle that the courts will not intervene

or attempt to adjudicate a challenge to a legislative action involving a

“political question.” Des Moines Register & Tribune Co. v. Dwyer, 542

12This section was repealed by constitutional amendment in 1984.

24

N.W.2d 491, 495 (Iowa 1996); see also Powell v. McCormack, 395 U.S.

486, 518, 89 S. Ct. 1944, 1962, 23 L. Ed. 2d 491, 515 (1969). The

nonjusticability of “political questions” is primarily rooted in the

separation of powers doctrine, “which requires we leave intact the

respective roles and regions of independence of the coordinate branches

of government.” Dwyer, 542 N.W.2d at 495 (citations omitted).

The political question doctrine excludes from judicial review

those controversies which revolve around policy choices and

value determinations constitutionally committed for

resolution to the halls of [the General Assembly] or the

confines of the Executive Branch. The Judiciary is

particularly ill suited to make such decisions, as courts are

fundamentally underequipped to formulate [state] policies or

develop standards for matters not legal in nature.

Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230, 106 S.

Ct. 2860, 2866, 92 L. Ed. 2d 166, 178 (1986) (citations and internal

quotations omitted). Nonetheless, the exercise of the judiciary’s power to

interpret the constitution and to review the constitutionality of the laws

and acts of the legislature does not offend these principles. Luse v.

Wray, 254 N.W.2d 324, 327–28 (Iowa 1977); see also Marbury v.

Madison, 5 U.S. (1 Cranch) 137, 177–78, 2 L. Ed. 60, 73 (1803).

A political question may be found when one or more of the

following considerations is present:

(1) a textually demonstrable constitutional commitment of

the issue to a coordinate political department; (2) a lack of

judicially discoverable and manageable standards for

resolving the issue; (3) the impossibility of deciding without

an initial policy determination of a kind clearly for

nonjudicial discretion; (4) the impossibility of a court’s

undertaking independent resolution without expressing a

lack of the respect due coordinate branches of government;

(5) an unusual need for unquestioning adherence to a

political decision already made; or (6) the potentiality of

embarrassment from multifarious pronouncements by

various departments on one question.

25

Dwyer, 542 N.W.2d at 495 (citing Baker v. Carr, 369 U.S. 186, 217, 82 S.

Ct. 691, 710, 7 L. Ed. 2d 663, 686 (1962)). Whether a matter involves a

“political question” is determined on a case-by-case basis and requires

an examination of the nature of the underlying claim. Id. at 495–96.

A number of these factors might support the conclusion that

plaintiffs’ claim under the education clause presents a political question.

To begin with, the text and history of the clause indicate a commitment

of authority to the general assembly, rather than a constraint upon it.

The clause says the “General Assembly shall encourage . . . .” Unlike

most of the clauses in our bill of rights, it is not worded in the negative

as a prohibition (e.g., “the General Assembly shall not . . .”). See, e.g.,

Iowa Const. art. I, §§ 3–4, 6–9, 11–19, 21, 23–24. Moreover, as noted

above, the education clause must be read in conjunction with the broad

policy-making authority conferred by article IX, division 1, section 15,

which states that the general assembly shall have power after 1863 to

“provide for the educational interest of the state in any other manner

that to them shall seem best and proper.” Kinzer v. Dirs. of Indep. Sch.

Dist., 129 Iowa 441, 444, 105 N.W. 686, 687 (1906) (citing this

constitutional provision and stating that “the Legislature is expressly

authorized to provide for the educational interests of the state, in such

manner as shall seem best and proper”); see also Bunger v. Iowa High

Sch. Athletic Ass’n, 197 N.W.2d 555, 563 (Iowa 1972) (same).

Second, it is an open question whether the education clause

contains “judicially discoverable and manageable standards.” Dwyer,

542 N.W.2d at 495. The clause says that the legislature shall

“encourage, by all suitable means, the promotion of intellectual,

scientific, moral, and agricultural improvement.” Iowa Const. art. IX.,

div. 2, § 3. Are courts to become arbiters of “moral improvement?” How

26

are judges to decide that children are deficient in their moral upbringing

and what to do about it? Of course, the clause does not even contain the

words “schools” or “education.” Does this mean that we as judges can

order the state to foster moral improvement in adults? 13

As we note above, most of the prior challenges to state education

systems have been, in whole or in part, about funding. Courts are

accustomed to dealing with questions of financial discrimination. See,

e.g., State v. Dudley, 766 N.W.2d 606, 621–22 (Iowa 2009) (finding a

denial of equal protection when indigent defendants represented by

contract attorneys were required to pay more than indigent defendants

represented by the public defender’s office). But this lawsuit asks the

courts to enter into a longstanding debate over the merits of state

mandates versus local control in public education. That may require an

initial policy determination of a kind clearly for nonjudicial discretion.

Dwyer, 542 N.W.2d at 495.

Lastly, we consider how other state courts have treated provisions

in their state constitutions similar to Iowa’s education clause.

Comparable language appears in the constitutions of California, Indiana,

and Nevada. Cal. Const. art. IX, § 1 (“[T]he Legislature shall encourage

by all suitable means, the promotion of intellectual, scientific, moral, and

agricultural improvement.”); Ind. Const. art. 8, § 1 (“[I]t shall be the duty

of the General Assembly to encourage, by all suitable means, moral,

intellectual, scientific, and agricultural improvement[.]”); Nev. Const. art.

11, § 1 (“The legislature shall encourage by all suitable means the

13In Dickinson v. Porter, we rejected an equal protection challenge to a state law

that funded a tax credit for certain agricultural lands. 240 Iowa 393, 35 N.W.2d 66

(1949). In finding that the law’s classification rested on a reasonable basis, i.e., to

“benefit and encourage agriculture,” we cited the education clause as an example of a

state public policy to promote agriculture. Id. at 408–09, 35 N.W.2d at 76. The

Dickinson case had nothing to do with education.

27

promotion of intellectual, literary, scientific, mining, mechanical,

agricultural, and moral improvements[.]”). 14 Only in Indiana has the

state supreme court directly addressed justiciability.

In Bonner ex rel. Bonner v. Daniels, 907 N.E.2d 516, 518 (Ind.

2009), a group of Indiana public school students sought a declaratory

judgment to establish that the Indiana Constitution imposes an

enforceable duty on state government to provide a standard of quality

education and that the duty was not being satisfied. Indiana’s

Constitution provides:

Knowledge and learning, generally diffused throughout a

community, being essential to the preservation of a free

government; it shall be the duty of the General Assembly to

encourage, by all suitable means, moral, intellectual,

scientific, and agricultural improvement; and to provide, by

law, for a general and uniform system of Common Schools,

14The education clauses of the constitutions of Connecticut, Massachusetts, and

New Hampshire are not similar to Iowa’s. They employ language that is both more

forceful and more specific. Connecticut’s clause provides, “There shall always be free

public elementary and secondary schools in the state. The general assembly shall

implement this principle by appropriate legislation.” Conn. Const. art. 8, § 1.

Massachusetts’ clause states:

Wisdom, and knowledge, as well as virtue, diffused generally among the

body of the people, being necessary for the preservation of their rights

and liberties; and as these depend on spreading the opportunities and

advantages of education in the various parts of the country, and among

the different orders of the people, it shall be the duty of legislatures and

magistrates, in all future periods of this commonwealth, to cherish the

interests of literature and the sciences, and all seminaries of them;

especially the university at Cambridge, public schools and grammar

schools in the towns . . . .

Mass. Const. pt. 2 ch. V, § 2 (emphasis added). New Hampshire’s provides:

Knowledge and learning, generally diffused through a community, being

essential to the preservation of a free government; and spreading the

opportunities and advantages of education through the various parts of

the country, being highly conducive to promote this end; it shall be the

duty of the legislators and magistrates, in all future periods of this

government, to cherish the interest of literature and the sciences, and all

seminaries and public schools. . .

N.H. Const. pt. 2, art. 83 (emphasis added).

28

wherein tuition shall be without charge, and equally open to

all.

Ind. Const. art. 8, § 1 (emphasis added). The court noted that the clause

“expresses two duties”—the first being “general and aspirational,” i.e., to

encourage moral, intellectual, scientific, and agricultural improvement;

the second being “more concrete,” i.e., to provide for free public schools

open to all. Bonner, 907 N.E.2d at 520. In the court’s view “[j]udicial

enforceability is more plausible as to the second duty than the first.” Id.

Thus, the court found that this section required the legislature to

establish free public schools, but “does not impose upon government an

affirmative duty to achieve any particular standard of resulting

educational quality. This determination is delegated to the sound

legislative discretion of the General Assembly.” Id. at 522. Quoting an

earlier case, the Indiana Supreme Court concluded that “ ‘determining

the components of a public education is left within the authority of the

legislative branch of government.’ ” Id. at 521–22 (quoting Nagy ex rel.

Nagy v. Evansville-Vanderburgh Sch. Corp., 844 N.E.2d 481, 491 (Ind.

2006)).

Asked at oral argument to furnish an example where an education

clause similar to Iowa’s had been found justiciable, plaintiffs’ counsel

cited Texas. See Edgewood Indep. Sch. Dist. v. Meno, 917 S.W.2d 717,

735–37 (Tex. 1995) (holding that the Texas Constitution contains a

justiciable standard with respect to education). But the Texas provision

is worded quite differently: “[I]t shall be the duty of the Legislature of the

State to establish and make suitable provision for the support and

maintenance of an efficient system of public free schools.” Tex. Const.

art. VII, § 1. Other than the word “suitable,” the two clauses bear little

similarity. The Texas Constitution expressly requires the support and

29

maintenance of “an efficient system of public free schools.” Iowa’s

requires only the “encourage[ment]” of “the promotion of intellectual,

scientific, moral, and agricultural improvement.” Compare Iowa Const.

art. IX, div. 2, § 3, with Tex. Const. art. VII, § 1. Adding the word

“suitable” to either clause, or both, does not alter the basic contrast

between an amorphous goal (“intellectual, scientific, moral, and

agricultural improvement”) and a more specific one (“the support and

maintenance of an efficient system of public free schools”). Id.

It bears emphasis that Iowa’s education clause, unlike the

constitutions of most other states, does not mandate free public

schools. 15 Nor does the education clause require that the state’s public

15See Alaska Const. art. VII, § 1 (“The legislature shall by general law establish

and maintain a system of public schools open to all children of the State . . . .”); Ariz.

Const. art. XI, § 1 (“The legislature shall enact such laws as shall provide for the

establishment and maintenance of a general and uniform public school system . . . .”);

Ark. Const. art. 14, § 1 (“[T]he State shall ever maintain a general, suitable and efficient

system of free public schools . . . .”); Colo. Const. art. IX, § 2 (“The general assembly

shall, as soon as practicable, provide for the establishment and maintenance of a

thorough and uniform system of free public schools throughout the state . . . .”); Conn.

Const. art. 8, § 1 (“There shall always be free public elementary and secondary schools

in the state. The general assembly shall implement this principle by appropriate

legislation.”); Del. Const. art. X, § 1 (“The General Assembly shall provide for the

establishment and maintenance of a general and efficient system of free public schools

. . . .”); Fla. Const. art. IX, § 1(a) (“It is . . . a paramount duty of the state to make

adequate provision for the education of all children residing within its borders.

Adequate provision shall be made by law for a uniform, efficient, safe, secure, and high

quality system of free public schools that allows students to obtain a high quality

education . . . .”); Ga. Const. art. VIII, § I, para. I (“The provision of an adequate public

education for the citizens shall be a primary obligation of the State of Georgia. Public

education for the citizens prior to the college or postsecondary level shall be free and

shall be provided for by taxation.”); Haw. Const. art. X, § 1 (“The State shall provide for

the establishment, support and control of a statewide system of public schools free from

sectarian control . . . .”); Idaho Const. art. IX, § 1 (“[I]t shall be the duty of the

legislature of Idaho, to establish and maintain a general, uniform and thorough system

of public, free common schools.”); Ill. Const. art. X, § 1 (“The State shall provide for an

efficient system of high quality public educational institutions and services. Education

in public schools through the secondary level shall be free.”); Ind. Const. art. 8, § 1 (“[I]t

shall be the duty of the General Assembly to encourage, by all suitable means, moral,

intellectual, scientific, and agricultural improvement; and to provide, by law, for a

general and uniform system of Common Schools, wherein tuition shall be without

charge, and equally open to all.”); Kan. Const. art. 6, § 1 (“The legislature shall provide

30

_______________________________

for intellectual, educational, vocational and scientific improvement by establishing and

maintaining public schools, educational institutions and related activities which may be

organized and changed in such manner as may be provided by law.”); Ky. Const. § 183

(“The General Assembly shall, by appropriate legislation, provide for an efficient system

of common schools throughout the State.”); La. Const. art. VIII, § 1 (“The legislature

shall provide for the education of the people of the state and shall establish and

maintain a public educational system.”); Me. Const. art. VIII, pt. 1, § 1 (“[T]he

Legislature are authorized, and it shall be their duty to require, the several towns to

make suitable provision, at their own expense, for the support and maintenance of

public schools . . . .”); Md. Const. art. VIII, § 1 (“The General Assembly, at its First

Session after the adoption of this Constitution, shall by Law establish throughout the

State a thorough and efficient System of Free Public Schools; and shall provide by

taxation, or otherwise, for their maintenance.”); Mich. Const. art. VIII, § 2 (“The

legislature shall maintain and support a system of free public elementary and

secondary schools as defined by law.”); Minn. Const. art. XIII, § 1 (“The stability of a

republican form of government depending mainly upon the intelligence of the people, it

is the duty of the legislature to establish a general and uniform system of public

schools. The legislature shall make such provisions by taxation or otherwise as will

secure a thorough and efficient system of public schools throughout the state.”); Mo.

Const. art. IX, § 1(a) (“[T]he general assembly shall establish and maintain free public

schools for the gratuitous instruction of all persons in this state within ages not in

excess of twenty-one years as prescribed by law.”); Mont. Const. art. X, § 1 (“The

legislature shall provide a basic system of free quality public elementary and secondary

schools.”); Neb. Const. art. VII, § 1 (“The Legislature shall provide for the free

instruction in the common schools of this state of all persons between the ages of five

and twenty-one years.”); Nev. Const. art. 11, § 2 (“The legislature shall provide for a

uniform system of common schools, by which a school shall be established and

maintained in each school district at least six months in every year . . . .”); N.J. Const.

art. VIII, § 4, ¶ 1 (“The Legislature shall provide for the maintenance and support of a

thorough and efficient system of free public schools for the instruction of all the

children in the State between the ages of five and eighteen years.”); N.M. Const. art. XII,

§ 1 (“A uniform system of free public schools sufficient for the education of, and open

to, all the children of school age in the state shall be established and maintained.”); N.Y.

Const. art. XI, § 1 (“The legislature shall provide for the maintenance and support of a

system of free common schools, wherein all the children of this state may be

educated.”); N.C. Const. art. I, § 15 (“The people have a right to the privilege of

education, and it is the duty of the State to guard and maintain that right.”); id. art. IX,

§ 2(1) (“The General Assembly shall provide . . . for a general and uniform system of free

public schools, which shall be maintained at least nine months in every year, and

wherein equal opportunities shall be provided for all students.”); N.D. Const. art. 8, § 1

(“[T]he legislative assembly shall make provision for the establishment and maintenance

of a system of public schools which shall be open to all children of the state of North

Dakota and free from sectarian control.”); Ohio Const. art. VI, § 3 (“Provision shall be

made by law for the organization, administration and control of the public school

system of the state supported by public funds . . . .”); Or. Const. art. VIII, § 3 (“The

Legislative Assembly shall provide by law for the establishment of a uniform, and

general system of Common schools.”); Pa. Const. art. III, § 14 (“The General Assembly

shall provide for the maintenance and support of a thorough and efficient system of

public education to serve the needs of the Commonwealth.”); S.C. Const. art. XI, § 3

(“The General Assembly shall provide for the maintenance and support of a system of

31

education system be “adequate,” “efficient,” “quality,” “thorough,” or

“uniform.” 16 Our founders did not make these choices.

In the end, though, we need not decide today whether plaintiffs’

claims under the education clause present a nonjusticiable political

question. 17 It is sufficient for present purposes to hold that Iowa’s

_______________________________

free public schools open to all children in the State . . . .”); S.D. Const. art. VIII, § 1 (“[I]t

shall be the duty of the Legislature to establish and maintain a general and uniform

system of public schools wherein tuition shall be without charge, and equally open to

all; and to adopt all suitable means to secure to the people the advantages and

opportunities of education.”); Tenn. Const. art. XI, § 12 (“The General Assembly shall

provide for the maintenance, support and eligibility standards of a system of free public

schools.”); Tex. Const. art. VII, § 1 (“A general diffusion of knowledge being essential to

the preservation of the liberties and rights of the people, it shall be the duty of the

Legislature of the State to establish and make suitable provision for the support and

maintenance of an efficient system of public free schools.”); Utah Const. art. X, § 1 (“The

Legislature shall provide for the establishment and maintenance of the state’s education

systems including: (a) a public education system, which shall be open to all children of

the state . . . .”); Vt. Const. ch. II, § 68 (“[A] competent number of schools ought to be

maintained in each town unless the general assembly permits other provisions for the

convenient instruction of youth.”); Va. Const. art. VIII, § 1 (“The General Assembly shall

provide for a system of free public elementary and secondary schools for all children of

school age throughout the Commonwealth, and shall seek to ensure that an

educational program of high quality is established and continually maintained.”); Wash.

Const. art. 9, § 1 (“It is the paramount duty of the state to make ample provision for the

education of all children residing within its borders . . . .”), § 2 (“The legislature shall

provide for a general and uniform system of public schools.”); W.Va. Const. art. XII, § 1

(“The Legislature shall provide, by general law, for a thorough and efficient system of

free schools.”); Wyo. Const. art. 7, § 1 (“The legislature shall provide for the

establishment and maintenance of a complete and uniform system of public

instruction, embracing free elementary schools of every needed kind and grade . . . .”).

16See Ariz. Const. art. XI, § 1; Ark. Const. art. 14, § 1; Colo. Const. art. IX, § 2;

Del. Const. art. X, § 1; Fla. Const. art. IX, § 1(a); Ga. Const. art. VIII, § I; Idaho Const.

art. IX, § 1; Ill. Const. art. X, § 1; Ky. Const. § 183; Md. Const. art. VIII, § 1; Minn.

Const. art. XIII, § 1; Mont. Const. art. X, § 1(3); Nev. Const. art. 11, § 2; N.J. Const. art.

VIII, § 4, ¶ 1; N.M. Const. art. XII, § 1; N.C. Const. art. IX, § 2(1); Or. Const. art. VIII,

§ 3; Pa. Const. art. III, § 14; Tex. Const. art. VII, § 1; Va. Const. art. VIII, § 1; Wash.

Const. art. 9, § 2; W.Va. Const. art. XII, § 1; Wyo. Const. art. 7, § 1.

17Although we interpreted the meaning of the education clause in Kleen, that

does not foreclose the possibility that the claims now before us raise a political

question. Kleen involved a question of legislative spending authority. 237 Iowa at 1161,

23 N.W.2d at 905. We interpreted the education clause as a grant of “broad authority”

to the legislature. Id. at 1166, 23 N.W.2d at 907. This case involves the question

whether the education clause provides justiciable rights and thus limits the legislature.

There is a political question doctrine in Iowa as elsewhere. See, e.g., Dwyer, 542

N.W.2d at 495–96; State ex rel. Turner v. Scott, 269 N.W.2d 828, 831–32 (Iowa 1978).

32

education clause does not afford a basis for relief under the allegations in

this case.

D. The Equal Protection Clause. We now turn to plaintiffs’ claim

that the defendants have violated the equal protection clause of the Iowa

Constitution. 18 Article I, section 6 provides:

All laws of a general nature shall have a uniform operation;

the General Assembly shall not grant to any citizen, or class

of citizens, privileges or immunities, which, upon the same

terms shall not equally belong to all citizens.

Iowa Const. art. I, § 6.

_______________________________

Sometimes, “doing our job” involves recognizing that the clause in question delegates

authority to another branch of government. But we defer to another day whether

claims by public school students and parents under the education clause relating to the

quality of their education present a nonjusticiable political question.

18We have regularly referred to article I, section 6 as the “equal protection

clause” of the Iowa Constititution. See, e.g., Rojas v. Pine Ridge Farms, L.L.C., 779

N.W.2d 223, 229 (Iowa 2010); War Eagle Vill. Apartments v. Plummer, 775 N.W.2d 714,

723 (Iowa 2009); Varnum v. Brien, 763 N.W.2d 862, 872 (Iowa 2009); State v. Wade, 757

N.W.2d 618, 621 (Iowa 2008); State v. Mitchell, 757 N.W.2d 431, 435 (Iowa 2008);

Timberland Partners XXI, LLP v. Iowa Dep’t of Revenue, 757 N.W.2d 172, 173–74 (Iowa

2008); Houck v. Iowa Bd. of Pharmacy Exam’rs, 752 N.W.2d 14, 21 (Iowa 2008); In re

Det. of Hennings, 744 N.W.2d 333, 338–39 (Iowa 2008); Ames Rental Prop. Ass’n v. City

of Ames, 736 N.W.2d 255, 261 (Iowa 2007); In re S.A.J.B., 679 N.W.2d 645, 648 (Iowa

2004). On a few occasions, none more recent than 2001, we have referred to it as the

“privileges and immunities clause.” See Perkins v. Bd. of Supervisors, 636 N.W.2d 58,

71 (Iowa 2001); Utilicorp United Inc. v. Iowa Utils. Bd., 570 N.W.2d 451, 455 (Iowa 1997);

Bennett v. City of Redfield, 446 N.W.2d 467, 474 (Iowa 1989); Koch v. Kostichek, 409

N.W.2d 680, 683 (Iowa 1987).

While labels should not affect the underlying analysis, it is important to

recognize that article I, section 6, like the Federal Equal Protection Clause, deals with

equality and uniformity—i.e., laws “of a general nature” having “a uniform operation”

and the legislature not granting privileges to a citizen or class of citizens that “upon the

same terms [do] not equally belong to all citizens.” In this respect, it resembles the

Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. By the

same token, it differs dramatically from the Privileges and Immunities Clause of the

Fourteenth Amendment to the U.S. Constitution which by its terms protects certain

privileges and immunities of “citizens of the United States” from being abridged by the

states. U.S. Const. amend. XIV, § 1. The Fourteenth Amendment Privileges and

Immunities Clause shields certain rights of national citizenship from state interference.

Saenz v. Roe, 526 U.S. 489, 501–504, 119 S. Ct. 1518, 1525–27, 143 L. Ed. 2d 689,

704–05 (1999).

33

At the outset, we do not agree with the district court’s conclusion

that plaintiffs’ equal protection claim presents a nonjusticiable political

question. Typically, we decide claims brought by individuals who allege

denial of their constitutional right to equal protection, even when the

claim pertains to an area where the legislative branch has been vested

with considerable authority. See, e.g., Luse, 254 N.W.2d at 328 (holding

that an equal protection challenge to a general assembly election contest

was justiciable notwithstanding the authority conferred by article III,

section 7 to each house to determine such matters). Equal protection

jurisprudence has a set of standards that we have applied in the past.

Cf. Dwyer, 542 N.W.2d at 495 (discussing the elements of a

nonjusticiable political question and treating a “lack of judicially

discoverable and manageable standards” as one such element). 19 We

therefore turn to the merits of plaintiffs’ equal protection claim.

We begin our discussion with Exira Community School District v.

State, 512 N.W.2d 787 (Iowa 1994), a case where we previously

confronted both an equal protection and a substantive due process

challenge relating to education (and reached the merits of the challenge).

In that case, the Exira Community School District and Exira parent-

taxpayers and students sued to invalidate a provision of the state’s open

enrollment statute 20 that required the school district of residence to pay

tuition to the district into which the student had open enrolled. Exira,

512 N.W.2d at 789–90. About ten percent of students living in the Exira

19We are not holding that a claim under the equal protection clause can never

present a nonjusticiable political question. See, e.g., Vieth v. Jubelirer, 541 U.S. 267,

281–306, 125 S. Ct. 1769, 1778–92, 158 L. Ed. 2d 546, 560–76 (2004) (stating the view

of four Justices that partisan gerrymandering claims under the Federal Equal

Protection Clause and other U.S. constitutional provisions constitute a nonjusticiable

political question).

20The provision is now found at Iowa Code section 282.18(7).

34

district had open enrolled into another, larger school district (Audubon).

Id. at 789. Because the financing mechanism required Exira to transfer

funds, this had resulted in a substantial shortfall in available spending

for the remaining Exira students and “financial trouble for the district.”

Id. at 793–94. Although we found the Exira district itself lacked

standing, id. at 790, we reached the merits of the equal protection and

substantive due process challenges brought by the parent-taxpayers and

students under both the U.S. and the Iowa Constitutions. We

summarized their complaints as follows:

They believe the financing mechanism in section 282.18(8) is

unreasonable because it requires a transfer of locally

generated tax revenues without a showing of need. What the

appellants want is a financing scheme that would require a

showing that the receiving district “needs” the tax dollars

more than the sending district. Otherwise—the appellants

argue—a significant loss of students could ultimately destroy

a sending district.

....

Appellants’ complaint boils down to this. Before open

enrollment, the state had achieved through the financing

formula educational equality for every student in Iowa.

During the first year of open enrollment, Exira experienced a

$70,000 loss in tax revenues necessary to educate the

students remaining in the Exira school district. This

resulted in a substantial disparity in funds available for

education between Exira and Audubon. This disparity has

disturbed the educational equality previously existing.

Id. at 793–94.

Significantly, the plaintiffs in Exira did not allege that the statute

in question infringed upon a fundamental right. Id. at 793. Thus, for

both equal protection and substantive due process purposes, we applied

the rational basis test. Id. Quoting an earlier case, we held that when a

statute bears “ ‘a definite, rational relationship to a legitimate purpose,’ ”

it must be allowed to stand. Id. (quoting Kent v. Polk Cnty. Bd. of

35

Supervisors, 391 N.W.2d 220, 225 (Iowa 1986)). This is true even if the

reasonableness of the nexus to the purported end is only “ ‘fairly

debatable.’ ” Id. Further, the challenging party must negate every

reasonable basis upon which the statute may be sustained. Id.

Applying the rational basis test, we found that the financing

mechanism “easily passes constitutional muster” because open

enrollment results in greater access to educational opportunities and the

legislature’s chosen method of financing open enrollment “maintains per

pupil equity.” Id. at 795. Regarding the parent-taxpayers’ “relative need”

argument, i.e., that the Exira district needed the money it was

transferring to Audubon in order to survive, we commented, “In the final

analysis, the appellants’ relative need argument is really all about a

school district’s alleged due process right to exist.” Id. We then

responded to this argument as follows:

If it chooses to do so, the legislature can—without

constitutional impediment—terminate a school district’s

existence. And when the legislature enacted open

enrollment legislation, it knew full well that its ultimate

effect might mean the demise of some smaller schools.

Despite this knowledge, the legislature made a policy

decision—right or wrong—to go with open enrollment. It is

not for us to judge the wisdom of such a policy. That was a

legislative call.

In yielding the call to the legislative branch of

government, we are not insensitive to the feelings and

strongly-held views of patrons of smaller schools, such as

the Exira school. We recognize that individuals and families

sense a way of life is in the balance and vehemently

challenge any assumption that centralization of schools

improves the quality of education. The proper forum for this

debate is however not in the courts, but in the other

branches of state government. Our clear duty is to interpret

and apply the law given to us, and not to develop or choose

among schemes for public education.

Id. at 795–96.

36

At the end of our opinion, we turned specifically to the due process

and equal protection claims of the Exira students. We rejected their

substantive due process claim, observing, “We know of no authority that

says a student’s desire to be educated in a certain school district [i.e.,

Exira] rises to the level of a right protected by due process.” Id. at 796.

We added that a student has “a due process right to an adequate

education,” but noted, “That right—as we have demonstrated [in our

previous rational basis analysis]—is furthered, not diminished, by the

funding mechanism in section 282.18(8).” Id. We also overruled the

students’ equal protection challenge, stating: “Nor do we think such

students are treated differently for equal protection purposes. We say

this because section 282.18(8) assures every student roughly the same

amount of funds for his or her education wherever that student is

educated.” Id. In short, we concluded that the statute “does indeed have

a rational basis,” which “disposes of” both the equal protection and the

substantive due process challenges. Id.

We believe several lessons can be drawn from Exira. First, we

recognized that students have a due process right to an adequate

education, although we did not characterize it as a fundamental right.

Id. at 796. (The plaintiffs did not allege that a fundamental right was at

issue in their case, id. at 793, and we accepted that position for purposes

of our decision.) Second, we held there is no due process right to be

educated in a particular school district. Id. at 796. Third, we found a

funding mechanism that assured roughly the same amount of per-pupil

funding regardless of the district did not treat students differently or

violate equal protection. Id. Finally, we expressed the view that debates

over whether “centralization of schools improves the quality of education”

belonged in the legislature and not the courts. Id. at 795–96.

37

As an initial matter, we note that any equal protection claim,

whether in the education context or elsewhere, requires an allegation of

disparate treatment, not merely disparate impact. Indeed, plaintiffs’

counsel conceded as much at oral argument. To allege a viable equal

protection claim, plaintiffs must allege that the defendants are treating

similarly situated persons differently. Thus, in State v. Wade, we

rejected an argument that a special sentence for both felony and

misdemeanor sex offenders violated equal protection. 757 N.W.2d 618,

625 (Iowa 2008). We explained, “Even though Wade has identified two

classes that are similarly situated, Wade’s equal protection argument

fails because . . . offenders who commit serious misdemeanor sex crimes

and offenders who commit felony sex crimes are not treated differently.”

Id.; see also Ames Rental Prop. Ass’n v. City of Ames, 736 N.W.2d 255,

259 (Iowa 2007) (plaintiffs met this threshold by alleging that tenants

who were related and tenants who were unrelated received differential

treatment); Montoy v. State, 120 P.3d 306, 308 (Kan. 2005) (holding that

“disparate impact” of Kansas’s school financing scheme on minorities

and other classes could not establish an equal protection violation).

A related way of saying the same thing is to point out that equal

protection claims require “state action.” Disparate treatment by someone

other than the state (which the state, because of its inaction, failed to

prevent) generally does not amount to an equal protection violation. See

Principal Cas. Ins. Co. v. Blair, 500 N.W.2d 67, 69–70 (Iowa 1993)

(holding that the presence of an allegedly discriminatory family insurance

clause in a private insurance policy did not violate either the Federal or

38

the State Equal Protection Clause because this was “not an action of the

state”). 21

But as we have noted above, the petition contains no allegations of

disparate treatment. Plaintiffs do not allege that the defendants have

allocated fewer funds to students attending school districts like West

Harrison, Davenport, and Des Moines, or that they have imposed

different rules or requirements with respect to those districts. Plaintiffs’

theory, rather, is that the defendants have not taken sufficient

affirmative steps to eliminate perceived differences in outcomes, e.g.,

gaps in average student achievement, teacher experience level, and the

like. One can describe that theory in various ways, but it is not an

allegation of disparate treatment by these defendants. See, e.g., City of

Coralville v. Iowa Utils. Bd., 750 N.W.2d 523, 530–31 (Iowa 2008)

(rejecting an equal protection challenge to a utility law that applied

equally to all communities but with different results in different locales

on the ground that it was “in substance a misplaced argument for

uniformity of consequences rather than uniformity of operation”). 22 For

this reason, plaintiffs’ equal protection claim was properly dismissed.

21This is not imposing an “intent” requirement. We are not saying the State

needs to have intentionally discriminated against students from West Harrison, or

Davenport, or Des Moines, for example. But the State must have done something that

treats these students differently from other students, as opposed to merely having failed

to enact statewide standards and requirements favored by the plaintiffs. In a disparate

funding case, the unequal funding can itself constitute the denial of equal protection,

but plaintiffs do not allege there are any discrepancies of funding in Iowa.

22Plaintiffs allege that they are being denied “equal access” to education, but

these catchwords obscure a critical point. Nothing in the petition alleges that the

defendants (i.e., the state government and state officials of Iowa) have passed any law,

adopted any regulation, or undertaken any measure that treats students differently

from one district to another. To the contrary, plaintiffs fault the defendants for not

implementing statewide standards that would affirmatively eradicate district-to-district

differences—e.g., in average student performance or average teacher qualification.

“Failure to equalize differences” is not the same as treating people differently.

39

Even if we could discern some allegation of disparate treatment in

plaintiffs’ allegations, we would still not be persuaded that they have

stated a claim. Unless a suspect class or a fundamental right is at issue,

equal protection claims are reviewed under the rational basis test.

Sanchez, 692 N.W.2d at 817. Plaintiffs do not allege that a suspect class

is involved, but they claim that education is a fundamental right. For

purposes of federal constitutional analysis, education is not a

fundamental right. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S.

1, 35, 93 S. Ct. 1273, 1297, 36 L. Ed. 2d 16, 44 (1973); see also Plyler v.

Doe, 457 U.S. 202, 223, 102 S. Ct. 2382, 2398, 72 L. Ed. 2d 786, 803

(1982) (“Nor is education a fundamental right; a State need not justify by

compelling necessity every variation in the manner in which education is

provided to its population.”).

This does not control the analysis under the Iowa Constitution.

True, in Exira, we quoted from Rodriguez and relied on its reasoning.

Exira, 512 N.W.2d at 794–95. In discussing that decision, we said,

“Although important, education is not a fundamental right.” Id. at 794.

But as we have noted, the Exira plaintiffs were not maintaining that the

challenged law intruded upon a fundamental right. Id. at 793. Thus, we

believe it remains an open question whether education is a fundamental

right under the Iowa Constitution.

We have recently said,

[N]either this court nor the Supreme Court has created a

clear test for determining whether the claimed right is a

fundamental right. . . . [O]nly rights and liberties that are

objectively “ ‘deeply rooted in this Nation’s history and

tradition’ ” and “ ‘implicit in the concept of ordered liberty’ ”

qualify as fundamental.

Hensler v. City of Davenport, 790 N.W.2d 569, 581 (Iowa 2010) (citation

omitted) (quoting Chavez v. Martinez, 538 U.S. 760, 775, 123 S. Ct.

40

1994, 2005, 155 L. Ed. 2d 984, 999 (2003)); accord Seering, 701 N.W.2d

at 664 (declining to hold freedom of choice in residence to be a

fundamental right even though it is “of keen interest to any individual”).

Fundamental rights are generally those explicitly or implicitly contained

in the Constitution. Plyler, 457 U.S. at 218 n.15, 102 S. Ct. at 2395

n.15, 72 L. Ed. 2d at 799 n.15; Sanchez, 692 N.W.2d at 817. We have

traditionally followed the U.S. Supreme Court’s guidance in determining

which rights are deemed fundamental. Seering, 701 N.W.2d at 664; In re

Det. of Cubbage, 671 N.W.2d 442, 447 (Iowa 2003). “Fundamental right”

for purposes of constitutional review is not a synonym for “important.”

Many important interests, such as the right to choose one’s residence or

the right to drive a vehicle, do not qualify as fundamental rights. See

Seering, 701 N.W.2d at 664; Sanchez, 692 N.W.2d at 817.

In Serrano v. Priest, 5 Cal. 3d 584, 608–09 (1971), the California

Supreme Court relied on California’s similarly worded education clause

as one—but by no means the only—supporting consideration for its

conclusion that education was a fundamental right under the California

Constitution. Article IX, section 1 of the California Constitution is

entitled “Encouragement of education” and reads in its entirety as

follows:

A general diffusion of knowledge and intelligence being

essential to the preservation of the rights and liberties of the

people, the Legislature shall encourage by all suitable means

the promotion of intellectual, scientific, moral, and

agricultural improvement.

Cal. Const. art. IX, § 1.

While California apparently borrowed some of this wording from

the Iowa Constitution, see Crosby v. Lyon, 37 Cal. 242, 245 (1869), its

education clause is essentially a stand-alone provision. In Iowa, by

41

contrast, the education clause is the first sentence of a funding section

entitled “Perpetual support fund” that, in turn, falls within a series of

funding provisions. Iowa Const. art. IX, div. 2, § 3.

Contrasting with the reasoning of the California Supreme Court is

that of the Indiana Supreme Court. In Bonner, the court affirmed the

dismissal of the plaintiffs’ state equal protection and due process claims,

determining that there was no fundamental constitutional right to an

adequate public education in Indiana. 907 N.E.2d at 522. The court

reached this result despite the presence of an education clause similar to

Iowa’s in the Indiana Constitution. The court noted that the clause “does

not speak in terms of a right or entitlement to education” and that the

Indiana Bill of Rights contains no reference to education. Id. The same

is true in Iowa. The “Bill of Rights” and “Right of Suffrage” in the Iowa

Constitution make no mention of education. See Iowa Const. arts. I, II.

We defer to another day the question whether education can

amount to a fundamental right under the Iowa Constitution, thereby

triggering heightened scrutiny. For present purposes, we conclude

simply that the matters alleged in plaintiffs’ petition, even if true, do not

amount to a deprivation of such a right. In Hensler, we recently

acknowledged there is a fundamental parental right to exercise care,

custody, and control over children. 790 N.W.2d at 581–82. Yet not all

alleged infringements upon this right trigger strict scrutiny. Id. at 582.

Rather, we required in Hensler that the challenged governmental action

“directly and substantially intrude into [the parent’s] decision-making

authority over her child.” Id. at 583. Similarly here, even if we assume

there is a fundamental right to a basic education at some level, the

plaintiffs’ allegations do not show a denial of that right. No plaintiff

alleges anything specific to his or her (or his or her child’s) own actual

42

education. Rather, their allegations are largely a hodgepodge of

statistics. Some of these numbers relate to Iowa’s performance as a state

and show a deterioration or decline in Iowa’s ranking or a below-average

score. Others relate to ACT scores, reading proficiency, and math

proficiency ratings in the Davenport, Des Moines, or West Harrison

school districts. These data, in the plaintiffs’ view, demonstrate the need

for more statewide standards and requirements. But even if all true,

they do not amount to a deprivation of a fundamental right as to these

plaintiffs.

In Exira, we commented that the proper forum for debate over

school centralization is “not in the courts, but in the other branches of

state government.” 512 N.W.2d at 796. In a way, this case involves

another phase of the same debate. These plaintiffs want greater

centralization–—“state-mandated standards,” state-mandated “specific

testing of students at various educational levels in a variety of subject

matters,” and a state-mandated “professional pay system for educators.”

Because in this particular case the allegations do not show a

deprivation of a fundamental right, even if we assume there is a

fundamental right to education at some level, we apply the rational basis

test. In previous discussions of both the Federal and the Iowa Equal

Protection Clause, we have found a rational basis review applies when

“ ‘social or economic legislation is at issue.’ ” Sanchez, 692 N.W.2d at

817 (quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440,

105 S. Ct. 3249, 3254, 87 L. Ed. 2d 313, 320 (1985)). This is when “ ‘the

Equal Protection Clause allows the States wide latitude, and the

Constitution presumes that even improvident decisions will eventually be

rectified by the democratic processes.’ ” Id.; accord Midwest Check

43

Cashing, Inc. v. Richey, 728 N.W.2d 396, 404–05 (Iowa 2007); Asmus v.

Waterloo Cmty. Sch. Dist., 722 N.W.2d 653, 658 (Iowa 2006).

The rational basis test is a “deferential standard.” Ames Rental

Prop. Ass’n, 736 N.W.2d at 259. Under this test, we must determine

whether the classification is “rationally related to a legitimate

governmental interest.” Id. The classification is valid “unless the

relationship between the classification and the purpose behind it is so

weak the classification must be viewed as arbitrary or capricious.” Id.

The government is not required or expected to produce evidence to justify

its action. Id. To the contrary, the plaintiff “must negate every

reasonable basis upon which the classification may be sustained.”

Bierkamp v. Rogers, 293 N.W.2d 577, 579–80 (Iowa 1980); see also State

v. Willard, 756 N.W.2d 207, 213 (Iowa 2008); Ames Rental Prop. Ass’n,

736 N.W.2d at 259.

Depending on the circumstances, a rational basis challenge can be

resolved on a motion to dismiss. See, e.g., Sanchez, 692 N.W.2d at 817–

20 (affirming the dismissal of equal protection and due process claims

brought by undocumented aliens challenging the state’s refusal to issue

driver’s licenses); Johnston v. Veterans’ Plaza Auth., 535 N.W.2d 131,

131–32 (Iowa 1995) (affirming dismissal of plaintiff’s claim and rejecting

plaintiff’s contention that the thirty-day appeal timeframe contained in

the statutory right to appeal a condemnation appraisement violated

equal protection and due process because plaintiff “does not rebut” the

possible basis for the distinction suggested by the defendant, “nor does

he attempt to negate any other rational basis for the distinction”); Gard v.

Little Sioux Intercounty Drainage Dist., 521 N.W.2d 696, 698–99 (Iowa

1994) (affirming the dismissal of a negligence action against drainage

district including claim that immunity for district amounted to a denial

44

of equal protection); Seivert v. Resnick, 342 N.W.2d 484, 485 (Iowa 1984)

(affirming the grant of motion to dismiss by applying the rational basis

test to reject a claim that an Iowa statute impermissibly distinguished

among tortfeasors). Since the State does not have to produce evidence,

and only a “plausible” justification is required, see Ames Rental Prop.

Ass’n, 736 N.W.2d at 259, there are certainly occasions where a rational

basis test can be applied on the pleadings without taking evidence. In

this case, unless the well-pleaded facts (if true) would show that Iowa’s

educational system is not rationally related to a legitimate state goal,

there is no reason for the case to proceed further.

Disregarding plaintiffs’ legal conclusions (for example, that Iowa’s

education system is “irrational, arbitrary and capricious” or that the

defendants have failed to provide an “effective education”), 23 we are left

with the following allegations: (1) Iowa has fewer state standards and

requirements than other states (although it has some); (2) Iowa’s schools

have a mediocre national ranking on some measures according to some

sources; (3) the smaller school districts in Iowa on average have less

experienced and credentialed teachers and offer fewer classes; (4) three

districts (Davenport, Des Moines, and West Harrison) have substantial

percentages of students who are not demonstrating proficiency in

reading and math according to certain standardized tests; and (5) one

district (West Harrison) does not do a good job of preparing students for

college. Plaintiffs attribute the last four points to the first—that is, they

blame the lack of state-mandated standards in various areas for the

undistinguished rankings on certain national score charts and the

23Ifthere is a constitutional right to an “effective education,” then alleging that

the defendants have failed to provide such an education amounts to a mere legal

conclusion.

45

concerns noted with respect to smaller and larger school districts. But

for purposes of the rational basis test, we need only find a reasonable

relationship to a legitimate state purpose. See, e.g., Comm. for Educ.

Rights, 672 N.E.2d at 1196 (affirming dismissal of complaint on this

ground after applying rational basis test and finding Illinois’s system for

funding public education rationally related to the legitimate state

purpose of local control).

We can conceive of a rational basis for the set of circumstances

described by plaintiffs. The Iowa legislature may have decided that local

school board autonomy is preferable in certain instances to state

mandates. The legislature may also have concluded that it is more

equitable to provide an equal or roughly equal amount of resources to

each state school district, on a per capita basis, and then give those

school districts the primary responsibility for determining how that

money will be spent. See Iowa Code § 257.1(2) (providing that “each

school district in the state is entitled to receive foundation aid in an

amount per pupil equal to the difference between the per pupil

foundation tax . . . and the combined foundation base per pupil or the

combined district cost per pupil, whichever is less”). The legislature may

also have decided that it is important to preserve school districts in rural

areas, even though the smaller size of those districts may not allow them

to offer the same kinds of programs as larger districts. The legislature

may have determined that time spent on standardized testing of

students—and preparation for such tests—detracts from time spent in

other areas of learning. Additionally, the legislature may have decided

that school districts in Iowa are aware of their students’ math and

reading proficiency rates, but have many other pressing concerns, and

46

that it would be best to defer to the judgment of local administrators

regarding the areas that require the most attention.

Local control, equity in per-pupil funding, maintenance of existing

rural school districts, and conservation of scarce classroom time and

resources are all legitimate governmental interests. As claimed interests,

they are “realistically conceivable.” Miller v. Boone Cnty. Hosp., 394

N.W.2d 776, 779 (Iowa 1986). Furthermore, the policies decried by the

plaintiffs are at least rationally connected to these goals. While

acknowledging the undeniable importance of education, our court has

previously characterized it as an area where there is no true consensus

and where needs change over time. Thus, we have said that “education

is defined as a broad and comprehensive term with a variable and

indefinite meaning.” In re Petty, 241 Iowa 506, 511, 41 N.W.2d 672, 675

(1950). We have also observed:

The establishment and the maintenance of an educational

system through public schools is an indispensable obligation

and function of the State of Iowa. It should be so

maintained as to keep abreast with progress generally, and

to meet the needs of the times. This applies not only to the

courses of study but also to the teaching force. The policy

with respect to either should not be an inflexible one.

Talbott v. Indep. Sch. Dist. of Des Moines, 230 Iowa 949, 967, 299 N.W.

556, 565 (1941). We cannot say that any state classification scheme

identified by the petition is so arbitrary as to be unconstitutional. 24

24In Midwest Check Cashing, Inc., the plaintiff brought an equal protection

challenge to a state law that limited payday loans but allegedly did not limit them

enough. 728 N.W.2d at 403 (“these limitations are not as protective as Richey would

like”). We expressed “serious[] doubt” that the plaintiff had shown sufficient state

action for equal protection or substantive due process purposes or that she had been

sufficiently classified for equal protection purposes. Id. at 404 n.6. In any event, we

found the law met the rational basis test. Id. at 404–05. This case is somewhat

similar, in that plaintiffs are complaining about the state’s failure to act, not state action

itself. As we have already discussed, we do not believe the petition alleges actual

disparate treatment by the state government as is necessary for an equal protection

47

In Racing Association of Central Iowa v. Fitzgerald (RACI), 675

N.W.2d 1, 15–16 (2004), we held that a statute taxing gross gambling

receipts from racetracks at a rate nearly twice the rate imposed on gross

gambling receipts from riverboats violated the Iowa equal protection

clause. We find RACI readily distinguishable here. As noted, the

plaintiffs do not point to anything the defendants have allegedly done to

treat one group of Iowans different from another. Even if disparate

treatment were alleged, RACI still only requires that the purported

rational basis be “realistically conceivable” and have a “basis in fact”; it

explicitly “does not require ‘proof’ in the traditional sense.” RACI, 675

N.W.2d at 7–8 & n.4 (quoting Miller, 394 N.W.2d at 779). Providing equal

resources to school districts while allowing those districts the

independence to determine many aspects of educational policy is not

merely “realistically conceivable” as a legislative purpose, it is the same

legislative purpose we upheld in Exira.

RACI has not been the death knell for traditional rational basis

review. Since RACI was decided, we have continued to uphold legislative

classifications based on judgments the legislature could have made,

without requiring evidence or “proof” in either a traditional or a

nontraditional sense. See Judicial Branch v. Iowa Dist. Ct., 800 N.W.2d

569, 578–79 (Iowa 2011) (holding it was constitutional to remove

deferred judgments but not dismissals and acquittals from the public

docket and stating that “[t]he legislature could rationally determine that

deferred judgments should not be accessible to the public but dismissals

and acquittals should be”); State v. Mitchell, 757 N.W.2d 431, 438–39

(Iowa 2008) (upholding a law that distinguished between married and

_______________________________

claim, but even if it did, the facts alleged do not demonstrate the absence of a rational

basis.

48

unmarried sex offenders and finding that “[t]he legislature could have

reasonably determined its chosen classification scheme, which

differentiates between cohabitants who are married and those who are

unmarried, would rationally advance the government objective of

protecting children from sex offenders”); Ames Rental Prop. Ass’n, 736

N.W.2d at 259 (upholding an ordinance limiting the number of unrelated

persons who could live in a house because “[t]he City is not required or

expected to produce evidence to justify its legislative action”).

While some members of this court have dissented from some of

those decisions, claiming they are inconsistent with RACI, see Mitchell,

757 N.W.2d at 442 (Wiggins, J., dissenting), Ames Rental Property Ass’n,

736 N.W.2d at 264 (Wiggins, J., dissenting), they are precedents of this

court. In fact, since RACI was decided, we have considered rational basis

equal protection challenges under the Iowa Constitution many times and

upheld such a challenge only once. See Dudley, 766 N.W.2d at 620–24

(upholding a rational basis challenge to the state’s reimbursement laws

for indigent defense without affording either side an opportunity to

present evidence). But see Timberland Partners XXI, LLP v. Iowa Dep’t of

Revenue, 757 N.W.2d 172, 175–77 (Iowa 2008) (rejecting an equal

protection challenge to an administrative rule providing that apartments

would be taxed at a higher commercial rate and condominiums at a

lower residential rate even if both were used for the same commercial

purposes); State v. Willard, 756 N.W.2d 207, 213–14 (Iowa 2008) (finding

residency restrictions for convicted sex offenders do not violate equal

protection); City of Coralville, 750 N.W.2d at 530–31 (Iowa 2008)

(rejecting equal protection challenge to a tariff system); In re Det. of

Hennings, 744 N.W.2d 333, 339–40 (Iowa 2008) (finding no equal

protection violation in denying a right to a bench trial in a sexually

49

violent predator proceeding but not a criminal case); Midwest Check

Cashing, Inc., 728 N.W.2d at 404–05 (finding a rational basis for different

treatment of payday loans); Asmus, 722 N.W.2d at 658 (rejecting an

equal protection challenge to a higher standard for legal causation in

workers’ compensation mental injury cases); State v. Simmons, 714

N.W.2d 264, 276–78 (Iowa 2006) (holding that making only defendants

who plead guilty eligible for a certain reduction in sentence does not

violate equal protection); Sanchez, 692 N.W.2d at 817–19 (holding that

denying driver’s licenses to illegal aliens does not violate equal

protection); Claude v. Guar. Nat’l Ins. Co., 679 N.W.2d 659, 664–66 (Iowa

2004) (holding the statutory distinction between hit-and-run and miss-

and-run vehicles for purposes of mandatory uninsured motorist coverage

did not violate equal protection).

E. Substantive Due Process. Plaintiffs also allege the defendants

have violated the due process clause of the Iowa Constitution, which

provides that “no person shall be deprived of life, liberty, or property,

without due process of law.” Iowa Const. art. I, § 9. For the reasons

already discussed with respect to equal protection, we believe plaintiffs’

substantive due process claim is justiciable. We have a familiar

analytical framework under which to analyze such claims, and we have

reached the merits of such a claim in the field of education before. See

Exira, 512 N.W.2d at 793–96.

Substantive due process prevents the government “ ‘from engaging

in conduct that shocks the conscience or interferes with rights implicit in

the concept of ordered liberty.’ ” Zaber v. City of Dubuque, 789 N.W.2d

634, 640 (Iowa 2010) (quoting Atwood v. Vilsack, 725 N.W.2d 641, 647

(Iowa 2006)); State v. Hernandez-Lopez, 639 N.W.2d 226, 237 (Iowa

2002). With a substantive due process claim, we follow a two-stage

50

analysis. Hensler, 790 N.W.2d at 580. First, we determine the nature of

the individual right involved, then the appropriate level of scrutiny. Id. If

the right at issue is fundamental, strict scrutiny applies; otherwise, the

state only has to satisfy the rational basis test. Sanchez, 692 N.W.2d at

819–20. When the rational basis test applies, there need only be a

“reasonable fit” between the legislature’s purpose and the means chosen

to advance that purpose. Zaber, 789 N.W.2d at 640. We have said that

“ ‘[t]he doctrine of judicial self-restraint requires us to exercise the

utmost care whenever we are asked to break new ground in th[e] field [of

substantive due process].’ ” Sanchez, 692 N.W.2d at 819 (quoting Reno

v. Flores, 507 U.S. 292, 302, 113 S. Ct. 1439, 1447, 123 L. Ed. 2d 1, 16

(1993)).

As we have already noted, the petition does not allege wrongful

acts by the defendants. Instead, it asserts the defendants’ inaction has

infringed upon plaintiffs’ rights. Generally, plaintiffs allege the State and

its officials have failed to establish sufficient state-wide standards or

failed to enforce and utilize such standards. Yet this court has indicated

the purpose of substantive due process is to protect citizens when the

government engages in actual conduct (i.e., governmental action) that

infringes or interferes with rights. In re Det. of Hennings, 744 N.W.2d at

337 (“Governmental action violates principles of substantive due process

when . . . .”); Atwood, 725 N.W.2d at 647 (“Substantive due process

principles preclude the government ‘from engaging in conduct . . . .’ ”

(citation omitted)); Sanchez, 692 N.W.2d at 819 (“Substantive due

process ‘ “provides heightened protection against government

interference with certain fundamental rights and liberty interests.” ’ ”

(quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060, 147

L. Ed. 2d 49, 56 (2000))); Hernandez-Lopez, 639 N.W.2d at 238 (“We

51

must then determine whether the government action infringing . . . .”).

We have previously expressed “serious doubt” about the viability of a

substantive due process theory based on the notion that the government

failed to act. Midwest Check Cashing, Inc., 728 N.W.2d at 404 n.6.

Regardless, there is an additional reason why we conclude

plaintiffs have not alleged facts that, if true, would amount to a denial of

substantive due process. As we have already pointed out, we are not

deciding today whether there is a fundamental right to a basic education

embraced within the Iowa Constitution. If there is such a right, the

plaintiffs have not alleged that they have been deprived of it. Therefore,

the rational basis test applies.

Typically, when the rational basis test is involved, we evaluate that

basis similarly for equal protection and due process purposes. Midwest

Check Cashing, Inc., 728 N.W.2d at 405; Sanchez, 692 N.W.2d at 820

(concluding that “[f]or the reasons discussed in the equal protection

analysis,” a statute meets the rational basis test and does not violate

substantive due process). For the rational basis test to be met, there

need only be a reasonable fit between the governmental interest and the

means utilized to advance that interest. The legislature need not employ

the best means of achieving that interest. Hensler, 790 N.W.2d at 584.

The plaintiff by contrast must negate every reasonable basis upon which

the government’s act may be sustained. Zaber, 789 N.W.2d at 640.

Our decision in Exira illustrates how the rational basis test works

in practice. Applying that test, we found the financing provision of the

open enrollment statute to be constitutional because it gave “access to

educational opportunities” even though “its ultimate effect might mean

the demise of some smaller schools.” Exira, 512 N.W.2d at 795–96. “It is

not for us to judge the wisdom of such a policy. That was a legislative

52

call.” Id. at 795. “Our clear duty is to interpret and apply the law given

to us, and not to develop or choose among schemes for public

education.” Id. at 796. In other words, the possibility that the financing

provision could be counterproductive and lead to fewer educational

opportunities (due to “the demise of some smaller schools”) was not

relevant to a rational basis analysis.

For the reasons already discussed under equal protection, we

believe the plaintiffs have not alleged facts that if true would establish a

substantive due process violation. They have alleged certain aspects of

Iowa’s K–12 educational performance, by some criteria, are mediocre or

even below national averages. They have alleged Iowa has fewer

statewide standards than other states. They have alleged some urban

(Davenport and Des Moines) and rural (West Harrison) districts offer

fewer services or, on average, have less favorable educational outcomes

than other districts. These allegations undoubtedly raise important and

legitimate concerns for education policymakers to consider. But they do

not “shock the conscience” as representing abusive governmental

conduct. See State ex rel. Miller v. Smokers Warehouse Corp., 737

N.W.2d 107, 111 (Iowa 2007) (stating that substantive due process “ ‘is

reserved for the most egregious governmental abuses against liberty or

property rights’ ” (quoting Blumenthal Inv. Trusts v. City of W. Des

Moines, 636 N.W.2d 255, 265 (Iowa 2001))). According to the 2007

Department of Education report cited by plaintiffs in their petition, for

2005–06, Iowa ranked 37th nationally in per-pupil spending, rated

substantially above the national average in NAEP fourth and eighth

grade reading and mathematics achievement, and rated substantially

above the national average in SAT and AP test scores. The Annual

Condition of Education at 196, 201, 205, 245. Again, these statistics

53

warrant consideration by education policymakers, but they do not rise to

the level of a constitutional violation. We conclude that plaintiffs have

not stated a claim for deprivation of substantive due process based on

the defendants’ alleged failure to do more to advance the cause of public

education in this state. 25

In rejecting the plaintiffs’ constitutional claims, we emphasize

again that this is not a case involving alleged disparities in education

funding. Rather, the plaintiffs allege the defendants have a

constitutional duty—enforceable by Iowa’s judiciary—to improve the

quality of the education they are receiving. In the relatively few instances

where such quality-based claims have been asserted and have advanced

past a motion to dismiss in other states, that has occurred because the

state’s founders enshrined a particular educational mandate in the state

constitution. Thus, in Connecticut Coalition for Justice in Education

Funding v. Rell, the Connecticut Supreme Court relied on a state

constitutional provision guaranteeing a right to “free public elementary

and secondary schools in the state.” 990 A.2d 206, 212 n.1 (Conn. 2010)

(quoting Conn. Const. art. 8, § 1). As we have discussed, Iowa’s

delegates voted down an analogous provision in 1857. Similarly, in Rose

v. Council for Better Education, Inc., the Kentucky Supreme Court noted

25We believe the only relevant due process concept here is one of substantive

due process, not procedural due process. Procedural due process requires that certain

procedures be afforded (e.g., notice and an opportunity to be heard) before the

government deprives a citizen of a liberty or property interest. Smokers Warehouse

Corp., 737 N.W.2d at 111. The plaintiffs are not complaining about the procedures by

which educational laws and requirements have been enacted in Iowa or applied to

themselves. They do not dispute that those policy choices have been made

democratically by the people’s elected representatives in the legislative and executive

branches. Their quarrel is with the substance of Iowa’s educational policies. Id.

(holding that where the plaintiffs do not clearly identify the nature of their due process

claim, “we assume it is a substantive due process argument because they do not

discuss any notice or hearing deficiencies”).

54

that Kentucky’s constitution included a constitutional mandate to

“provide an efficient system of common schools throughout the state.”

790 S.W.2d 186, 189 (Ky. 1989); see also Ky. Const. § 183. And in

Abbeville County School District v. State, the South Carolina Supreme

Court invoked a constitutional provision that, like Connecticut’s,

requires the state’s general assembly to “provide for the maintenance and

support of a system of free public schools open to all children in the

State.” 515 S.E.2d 535, 539 (S.C. 1999); see also S.C. Const. art. XI, § 3.

Whatever the merits of these other judicial interventions in

education, Iowa’s constitution is different. As we have already discussed,

it does not mandate that the legislature provide either “free public

schools” or an “efficient system of common schools.” We are confronted

with equal protection and due process challenges that should be resolved

under a rational basis test. In Abbeville County School District, the South

Carolina Supreme Court affirmed the dismissal of the plaintiffs’ equal

protection cause of action under the South Carolina Constitution for

failure to state a claim. 515 S.E.2d at 538–39; see also Comm. for Educ.

Rights v. Edgar, 672 N.E.2d 1178, 1196 (Ill. 1996) (affirming dismissal of

equal protection claim brought under the Illinois Constitution and

observing that “[w]hile the present school funding scheme might be

thought unwise, undesirable or unenlightened from the standpoint of

contemporary notions of social justice, these objections must be

presented to the General Assembly”); Bonner, 907 N.E.2d at 522

(upholding dismissal of equal protection and due process claims based

on the Indiana Constitution); Fair Sch. Fin. Council of Okla., Inc. v. State,

746 P.2d 1135, 1150–51 (Okla. 1987) (affirming grant of motion for

judgment on the pleadings on the plaintiffs’ equal protection and due

55

process claims under the Oklahoma Constitution after concluding “there

is a rational basis to support the present school finance system”).

F. Iowa Code § 256.37. The plaintiffs also assert a statutory

claim under Iowa Code section 256.37, which provides:

It is the policy of the state of Iowa to provide an

education system that prepares the children of this state to

meet and exceed the technological, informational, and

communications demands of our society. The general

assembly finds that the current education system must be

transformed to deliver the enriched educational program that

the adults of the future will need to have to compete in

tomorrow’s world. The general assembly further finds that

the education system must strive to reach the following

goals:

1. All children in Iowa must start school ready to

learn.

2. Iowa’s high school graduation rate must increase to

at least ninety percent.

3. Students graduating from Iowa’s education system

must demonstrate competency in challenging subject matter,

and must have learned to use their minds well, so they may

be prepared for responsible citizenship, further learning, and

productive employment in a global economy.

4. Iowa students must be first in the world in science

and mathematics achievement.

5. Every adult Iowan must be literate and possess the

knowledge and skills necessary to compete in a global

economy and exercise the rights and responsibilities of

citizenship.

6. Every school in Iowa must be free of drugs and

violence and offer a disciplined environment conducive to

learning.

This law does not contain an express private right of action, so any

cause of action must be implied. Typically, in determining whether a

private right of action may be inferred from a statute, we consider four

factors:

56

1. Is the plaintiff a member of the class for whose benefit the

statute was enacted?

2. Is there any indication of legislative intent, explicit or

implicit, to either create or deny such a remedy?

3. Would allowing such a cause of action be consistent with

the underlying purpose of the legislation?

4. Would the private cause of action intrude into an area

over which the federal government or a state

administrative agency holds exclusive jurisdiction?

Marcus v. Young, 538 N.W.2d 285, 288 (Iowa 1995) (citing Cort v. Ash,

422 U.S. 66, 78, 95 S. Ct. 2080, 2088, 45 L. Ed. 2d 26, 36–37 (1975)).

All four factors generally must weigh in favor of a private right of action

for us to find such a right exists. Stotts v. Eveleth, 688 N.W.2d 803, 808

(Iowa 2004).

Here we agree section 256.37 was enacted for the plaintiffs’ benefit,

in that many of them are Iowa public school students. But we conclude

the second, third, and fourth factors listed above do not support a

private right of action, and therefore hold plaintiffs’ claim under section

256.37 was properly dismissed.

Regarding the second Marcus/Cort factor, the language of section

256.37 does not indicate legislative intent to create a remedy. Rather,

the section merely sets forth a general statement of policy with six “goals”

the “education system must strive to reach.” Iowa Code § 256.37

(emphasis added). The legislature specifically used the terms “goals”

instead of more concrete language such as “standards” or

“requirements.” Also, the legislature used the aspirational phrase “must

strive to reach” instead of a more demanding phrase such as “must

reach.” Id.

Furthermore, the wording of the goals themselves reflects a

legislative purpose to make only a policy pronouncement. Throughout

57

the statute, broad and sweeping language such as “all” and “every” is

used. Id. The goals are thus utopian in nature. For example, the final

goal states, “Every school in Iowa must be free of drugs and violence

. . . .” Id. Did the legislature intend to allow a student to bring suit

whenever his or her school is not entirely “free of drugs and violence”?

We think not.

The placement of section 37 within Chapter 256 of the Iowa Code

also supports the proposition that it is simply a policy statement.

Section 256.37 is located within subchapter I, entitled “General

Provisions.” This subchapter generally describes education policy in

Iowa and establishes the Department of Education. Many other sections

within the same “General Provisions” subchapter also begin with the

language, “It is the policy . . . .” See, e.g., id. §§ 256.18, .38.

The third Marcus/Cort factor is also unmet here because allowing a

private cause of action would be inconsistent with section 256.37’s

purpose of delineating general goals for Iowa’s educational system.

Permitting a private right of action under section 256.37 would likely

unleash a multiplicity of future lawsuits that would transform

aspirational goals into a series of specific mandates. Notably, section

256.37 was enacted as part of legislation that allowed the Department of

Education to waive compliance with the minimum education standards

for accredited schools under certain circumstances. See 1992 Iowa Acts

ch. 1159, § 1.

In addition, the fourth factor is not satisfied because the

Department of Education has jurisdiction under Iowa Code section 256.1

to act in a policymaking capacity and provide statewide supervision of

education in the State of Iowa. Iowa Code § 256.1(1) (“The department of

education is established to act in a policymaking and advisory capacity

58

and to exercise general supervision over the state system of education

. . . .”). A private cause of action under section 256.37 would intrude

into an area in which a state administrative agency, the Department of

Education, already has exclusive jurisdiction.

Because neither the second, third, nor fourth elements of a private

right of action is present here, we affirm the district court’s ruling that

section 256.37 does not provide a private remedy.

Given our disposition of plaintiffs’ substantive claims, we need not

reach defendants’ additional arguments that mandamus is not an

appropriate remedy or that the Governor of Iowa is not a proper

defendant.

IV. Conclusion.

We affirm the dismissal of plaintiffs’ first amended and substituted

petition. We do not minimize the importance of the issues raised by the

plaintiffs. But a respect for precedent and for our constitution requires

that we stay out of this dispute. This court in its past decisions, from

Kleen to Johnson to Exira, has historically deferred to the policy decisions

made by the political branches of government in this area. 26

The sixteen parents and students who brought this suit clearly

believe that Iowa’s schools would benefit if we had more student testing,

26We do not think a resolution of this case requires us to review the history of

education generally or what past Iowa governors have said on the subject. We are

judges, not historians. For judges, some history, such as our own precedent, is highly

relevant. But there are risks when we draw on political history as source material for

judicial decisionmaking. One risk is that we may unwittingly diminish the importance

of more relevant historical events, such as the ratification debates on the Iowa

Constitution, by submerging them in other political history that has only background

importance. Another risk is that political trends might then be used to justify the

outcome in a particular case. It is not surprising to us that Iowa’s governors have

believed education to be a critical responsibility of government. But demonstrating that

education has been a vital concern of the political branches of government does not

answer the present question whether this particular case ought to proceed through the

judicial branch.

59

more statewide standards, more statewide uniformity, and a

performance-based pay system for teachers. These issues are currently

being debated throughout our state. The debate participants include

legislators, the governor, executive branch officials, school boards,

teachers, parents, students, and taxpayers. We believe the democratic

process is best suited for resolution of those debates and can best

accommodate the competing concerns of the many interested parties.

As we said at the beginning of this opinion, we do not close the

door to other actions alleging constitutional violations in the field of

education. We uphold only the dismissal of this case.

AFFIRMED.

Cady, C.J., and Waterman and Zager, JJ., join this opinion. Cady,

C.J., and Waterman, J., file separate concurring opinions. Wiggins, J.,

files a dissenting opinion in which Hecht and Appel, JJ., join. Appel, J.,

files a separate dissenting opinion in which Hecht, J., joins.

60

#08–2006, King v. State

CADY, Chief Justice (concurring specially).

I concur in the opinion of the majority. I write separately to

explain my unwillingness at this time to more fully explore the

constitutional claim of a public education in Iowa and to further explain

my position on the issues in this case.

At the outset, I feel compelled to acknowledge that education is a

tradition that exists today as strongly as ever. A system of public

education is clearly needed to allow the youth of this state to learn the

essential aspects of judgment, analysis, communication, and creativity.

It is needed to empower each generation to meet the economic, social,

scientific, political, governmental, personal, and other challenges of an

evolving global world. Education is the core of who we are and who we

will become. The dissenting opinion of Justice Appel has captured the

rich history of this tradition in Iowa and has provided insight into its

constitutional stature.

Yet, in response to the specific claim of a constitutional right under

the education clause raised in this case, I am restrained at this time from

deciding anything more than that section 3 of the second division of

article IX of the Iowa Constitution does not alone create a right to a

public education. This conclusion is not to say no such right exists

under the Iowa Constitution, but I am content to wait for a different case

in which the petition both frames the full constitutional underpinnings

and is accompanied by pleadings that would allow the underlying facts of

the case to become a helpful aid in shaping the parameters to any such

right recognized to exist. Of course, in this case, as pointed out by

Justice Wiggins, the more fundamental obstacle presented is whether

this extremely important issue should even be addressed by us when the

61

parties chose, at least initially, not to raise it as an issue for appellate

review after it was presented and decided by a district court.

The doctrine of judicial restraint expressed by Justice Wiggins is a

view I would normally follow. Yet, our rules of judicial restraint are full

of nuance and exceptions and ultimately rest on the particular

circumstances of each case. As observed in the majority opinion, the

principles of judicial restraint also embrace judicial economy, a doctrine

particularly applicable to this case. If the allegations of a case would not

be sufficient to establish a claim, assuming they were all true, judicial

economy would not be served by sending the case back for the parties to

go through the time and expense of further proceedings only for the

courts to later declare the plaintiff never had a viable claim in the first

place.

Judicial restraint is a doctrine composed of many elements, and it

strives for outcomes that are both fair and practical. In this case, it is

both fair and practical for us to examine the pleadings to determine if the

plaintiffs could ever win their lawsuit if we declared the educational

experience mandated by the legislature in this state was a constitutional

right. It is fair because the parties fully explored this issue before the

district court, and it was ultimately raised and urged at rehearing on

appeal. It is practical because the case is before us, and it is in the best

interests of all concerned for us to decide the merits of the underlying

claim now. Thus, under the particular procedural background of this

case, I conclude the doctrine of judicial restraint does not instruct us to

refrain from deciding the basic question whether or not the plaintiffs

have failed to state a claim for relief. Accordingly, it is appropriate to

decide if the allegations are sufficient to support a violation of a

fundamental right to an adequate education.

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Normally, cases are not resolved on the pleadings. U.S. Bank v.

Barbour, 770 N.W.2d 350, 353 (Iowa 2009). Moreover, we do not set a

high bar for litigants to clear to meet the requirement for a pleading to

state a claim for relief. Id. at 354 (noting the “fair notice” requirement is

met if a petition informs the defendant of the incident giving rise to the

claim and the claim’s general nature). Instead, we follow the liberal rule

of notice pleading. This rule, however, does not mean all claims clear the

bar. See O’Brien v. DiGrazia, 544 F.2d 543, 546 n.3 (1st Cir. 1976)

(noting that, when plaintiff in civil rights action provides facts to support

claim, court does not have duty to “conjure up unpleaded facts that

might turn a frivolous claim of unconstitutional official action into a

substantial one”); see also 5B Charles Alan Wright & Arthur R. Miller,

Federal Practice and Procedure § 1357, at 548–53 (3d ed. 2004) (noting

courts “will accept the pleader’s description of what happened to him or

her along with any conclusion that can reasonably be drawn therefrom,”

but will not accept “conclusory allegations concerning the legal effect of

the events the plaintiff has set out if these allegations do not reasonably

follow from the pleader’s description of what happened”).

When the viability of a claim for relief is challenged, our pleading

rule requires consideration of any conceivable set of facts, but only those

facts that relate to and could prove the allegations made in the petition.

The allegations of the petition, if proven by the facts, must show

entitlement to relief. Reviewing courts do not, however, consider any

conceivable allegations, only any conceivable facts that support the

allegations made.

In this case, the allegations of the petition, even if true, could not

establish that students in Iowa today are being denied a basic or

minimally adequate education, wherever that elusive standard might

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land. The plaintiffs have not made a single allegation that could

establish they have been deprived of the basic ability to read, write, or

communicate, and they have not alleged they have been deprived of their

ability to gain an understanding of mathematics, science, economics,

government, computer-based technology, or other vital components of a

basic education. While the allegations in the petition are detailed and

thoughtful, they simply do not show Iowa students are being deprived of

an opportunity for an adequate education. For example, the disparities

alleged to exist between school districts across Iowa may show slightly

different education experiences and outcomes, but those different

outcomes do not establish a deprivation of basic education.

Likewise, Iowa’s recent decline of college admissions test scores

and other proficiency scores do not establish a deprivation of basic

education. They merely show the state may have begun to slip, but the

level of decline alleged is not so much that a reasonable person could say

the slip means students have been altogether deprived of a basic

education. Similarly, the absence of certain assessment mechanisms in

Iowa, as alleged by the plaintiffs, does not establish the deprivation of

basic education. Even Iowa’s decline in the national rankings in various

subjects does not mean students are being deprived of basic education.

Again, it merely shows we are beginning to slip or perhaps other states

are beginning to improve. Finally, the broad allegations that Iowa has

failed to establish standards, enforce standards, adopt effective teacher

pay systems, and establish a delivery system are insufficient. Accepting

all the allegations of the petition to be true, the deprivation of basic

education cannot be established. There are simply no allegations that

students in Iowa cannot read, write, communicate, or perform the other

essential aspects of education. There are no allegations that capable

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students lack an understanding of mathematics, science, economics,

government, or computer-based technology.

The petition does contain some statements generally indicting the

public education system. For example, the petition states that “[m]any

Iowa students are not prepared to enter the workforce or postsecondary

education without additional training or remediation when they graduate

from high school.” The petition also alleges the educational and

accreditation standards of this state “do not ensure that all students” will

be able to meet or exceed the future demands of society, be prepared for

responsible citizenship, and be prepared for further learning and

productive employment in the global economy. The petition also

generally declares, “[A]n ineffective education will persist for school

children throughout their lifetimes, affecting the rate and extent of their

ability to be a responsible citizen, their ability to learn further, and their

ability to achieve productive employment in a global economy.”

To the extent such claims are actually allegations of a petition, as

opposed to hortatory calls to action, they relate to the level of a basic or

adequate education. Wherever a basic or adequate education might land

within the framework of our constitution, assuming the existence of a

right to education, that landing point certainly would not guarantee that

“all students” would be able to meet the broad demands of the world in

the future. Nor would the right guarantee students would never need to

take a remedial course to enter the workforce or postsecondary

education.

Of course, my rejection of the pleadings in the case as a basis to

support a constitutional right necessarily leads to the question of what

allegations would need to be pled to properly support the constitutional

claim of a minimally sufficient public education. Assuming Justice Appel

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has articulated the source of a constitutional claim to a public education,

the fighting issue turns to the meaning of a minimally sufficient

education. This is an issue that is indeed difficult and one that I am

admittedly without a specific answer at this time. We landed on a

minimally sufficient standard in the context of the constitutional right to

counsel, and this standard has worked well enough in applying the

constitutional right. But, public education is a totally different kettle of

fish. The point when a state’s educational system becomes minimally

insufficient would be difficult to ascertain in the context of a

constitutional analysis. Nevertheless, the analysis would need to

generally center on the performance of the school system and its

collective outcomes and be ultimately judged in relationship to other

performance models over a period of years. But, for now, I am simply

content that the allegations of the petition in this case fall short and that

a trial to obtain the supporting evidence would not help.

Additionally, the allegations of the petition, even if true, do not

establish a violation of the equal protection clause. Even assuming the

different educational outcomes alleged in the petition are supported by

facts, a rational basis certainly could be articulated to justify the

different outcomes. This rational basis is found in the local control given

to school districts. Moreover, a rational basis to justify different

outcomes does not need to be derived by courts from the record in a

case. Importantly, similar to the way facts are assumed to support

allegations in a petition to determine if a claim for relief has been stated,

courts formulate a rational basis from any information that is

“realistically conceivable.” Miller v. Boone Cnty. Hosp., 394 N.W.2d 776,

779 (Iowa 1986). Thus, when considering constitutional challenges

subject to a rational-basis analysis, courts may consider the existence of

66

any conceivable rational basis. The analysis does not require a factual

basis drawn from the record in the case. Racing Ass’n of Cent. Iowa v.

Fitzgerald, 675 N.W.2d 1, 7–8 & n.4 (Iowa 2004). Accordingly, this

analysis means courts are not required to needlessly wait for a trial

before declaring that a particular different outcome in society does not

violate the equal protection guarantee. Different outcomes from

governmental actions can be observed throughout society, and they

violate the equal protection clause only when government does not have

an adequate justification for the different treatment. See Varnum v.

Brien, 763 N.W.2d 862, 879 (Iowa 2009).

In the end, the allegations of the petition, while alarming, simply

cannot support the constitutional claim that is urged. Consequently, the

courts have no role in the resolution of this important social issue at this

time. The petition, if true, may be a call to action, but it is a call under

our constitutional structure for the legislature, not the courts. The

pleadings simply do not convince me that school children today in Iowa,

let alone the school children at the center of this lawsuit, are being

deprived or have been deprived of any level of education our constitution

would be able to mandate.

67

#08–2006, King v. State

WATERMAN, J. (concurring specially).

I concur in the majority’s well-reasoned decision on all issues. I

write separately to emphasize the importance of judicial restraint when

litigants ask courts to overstep their bounds.

This case was resubmitted for a second oral argument because

three new members were added to this court. Plaintiffs’ counsel in his

eloquent oral argument urged our court to “do its job.” We do exactly

that today by affirming the dismissal of a well-intentioned, but legally

flawed lawsuit. If these individual plaintiffs were allowed to proceed with

this case in the courts, and they somehow won the relief they seek, the

end result would be judges running our public schools through

structural injunctions that second-guess the educational policy decisions

made by the elected branches of government. That is not our role. We

do not sit as the supreme school board of the State of Iowa, and we are

unwilling in the guise of adjudication to usurp powers the Iowa

Constitution cedes to the elected branches to run our public schools.

The separation-of-powers doctrine precludes the relief these plaintiffs

seek from the courts.

To reinstate this lawsuit would set a dangerous precedent. These

plaintiffs ask too much of our court jurisprudentially. It is not for courts

to impose particular statewide educational standards by judicial decree.

Our limited role as a coequal branch of government requires us to

adjudicate cases and in doing so construe the meaning of our

constitution; the constitutional power to run our public schools lies with

the legislative and executive branches. Courts can and must step in if

that power is exercised in a way that infringes on individual rights. See,

e.g., Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 514, 89

68

S. Ct. 733, 740, 21 L. Ed. 2d 731, 742 (1969) (holding First Amendment

protection for symbolic speech required school officials to allow students

to wear black armbands protesting the Vietnam War). Such cases

involving individual rights are well within the institutional competence of

courts to decide. No such claim is stated in this case. Nor is this case

another Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98

L. Ed. 873 (1954), challenging racial segregation or discrimination. No

claim of disparate treatment or any illegal classification such as race is

made here. Rather, these plaintiffs seek broad educational reform. Our

courts are not institutionally competent to make educational policy

judgments. The Department of Education is in the executive branch.

It is worth repeating here Justice Scalia’s recent warning against

the use of structural injunctions in institutional reform litigation:

Structural injunctions . . . turn[] judges into long-term

administrators of complex social institutions such as

schools, prisons, and police departments. Indeed, they

require judges to play a role essentially indistinguishable

from the role ordinarily played by executive officials. . . .

The drawbacks of structural injunctions have been

described at great length elsewhere. This case illustrates

one of their most pernicious aspects: that they force judges

to engage in a form of factfinding-as-policymaking that is

outside the traditional judicial role. The factfinding judges

traditionally engage in involves the determination of past or

present facts based (except for a limited set of materials of

which courts may take “judicial notice”) exclusively upon a

closed trial record. That is one reason why a district judge’s

factual findings are entitled to plain-error review: because

having viewed the trial first hand he is in a better position to

evaluate the evidence than a judge reviewing a cold record.

In a very limited category of cases, judges have also

traditionally been called upon to make some predictive

judgments: which custody will best serve the interests of the

child, for example, or whether a particular one-shot

injunction will remedy the plaintiff’s grievance. When a

judge manages a structural injunction, however, he will

inevitably be required to make very broad empirical

predictions necessarily based in large part upon policy

views—the sort of predictions regularly made by legislators

69

and executive officials, but inappropriate for the Third

Branch.

....

It is important to recognize that the dressing-up of

policy judgments as factual findings is not an error peculiar

to this case. It is an unavoidable concomitant of

institutional-reform litigation. When a district court issues

an injunction, it must make a factual assessment of the

anticipated consequences of the injunction. And when the

injunction undertakes to restructure a social institution,

assessing the factual consequences of the injunction is

necessarily the sort of predictive judgment that our system of

government allocates to other government officials.

But structural injunctions do not simply invite judges

to indulge policy preferences. They invite judges to indulge

incompetent policy preferences. Three years of law school

and familiarity with pertinent Supreme Court precedents

give no insight whatsoever into the management of social

institutions.

Brown v. Plata, ___ U.S. ___, ___, 131 S. Ct. 1910, 1953–55, 179

L. Ed. 2d 969, 1015–16 (2011) (Scalia, J., dissenting) (citations omitted).

These admonitions apply with equal force here. A law degree and

some court room experience do not qualify judges to restructure Iowa

schools or impose new statewide educational standards. If we reinstate

this case, one can easily imagine more lawsuits will be filed by other

families with different ideas on how to run the schools. Whatever

evidence the King plaintiffs might offer at a trial in this case presumably

would make a record very different from the evidentiary trial record to be

made by other plaintiffs with conflicting educational policy goals such as

vouchers or greater local control. All such trials would be a waste of time

and scarce resources in the absence of a cognizable claim upon which

judicial relief may be granted.

We are affirming the dismissal of this case based on the plain

meaning of our constitution and our own precedent. Sixteen years ago

our court unanimously recognized that it is not our role to “develop or

70

choose among schemes for public education” and that the proper forum

for such debates is “in the other branches of state government.” Exira

Cmty. Sch. Dist. v. State, 512 N.W.2d 787, 796 (Iowa 1994). This view is

echoed by many other voices of restraint on the supreme courts of our

sister states. 27

By contrast, instead of focusing on our own precedent, the dissent

embarks on a wide-ranging survey of authorities. For example, the

dissent cites several times to the United Nations’ 1948 Universal

Declaration of Human Rights, a document that includes a right to leisure

time and health care as well as a right to education. The dissent

27See, e.g., Comm. for Educ. Rights v. Edgar, 672 N.E.2d 1178, 1189 (Ill. 1996)

(“[Q]uestions relating to the quality of education are solely for the legislative branch to

answer.”); Hornbeck v. Somerset Cnty. Bd. of Educ., 458 A.2d 758, 790 (Md. 1983) (“The

quantity and quality of educational opportunities to be made available to the State’s

public school children is a determination committed to the legislature or to the people

. . . .”); Neb. Coal. for Educ. Equity & Adequacy v. Heineman, 731 N.W.2d 164, 181 (Neb.

2007) (“[I]t is beyond our ken to determine what is adequate funding for public schools.

This court is simply not the proper forum for resolving broad and complicated policy

decisions or balancing competing political interests.”); Londonderry Sch. Dist. SAU No.

12 v. State, 907 A.2d 988, 996 (N.H. 2006) (noting “concern that this court or any court

not take over the legislature’s role in shaping educational and fiscal policy”); Okla. Educ.

Ass’n v. State ex rel. Okla. Legislature, 158 P.3d 1058, 1066 (Okla. 2007) (“[T]he

important role of education in our society does not allow us to override the

constitutional restrictions placed on our judicial authority.”); Marrero ex rel. Tabalas v.

Commonwealth, 739 A.2d 110, 113–14 (Pa. 1999) (“[T]his court is . . . unable to

judicially define what constitutes an ‘adequate’ education or what funds are ‘adequate’

to support such a program.”); City of Pawtucket v. Sundlun, 662 A.2d 40, 62 (R.I. 1995)

(“[T]he level of state educational funding is largely a matter for the Legislature, which

possesses the ‘expertise and familiarity with local problems implicated in the raising

and disposition of public revenues associated with public education.’ ” (quoting

Hornbeck, 458 A.2d at 786)); Abbeville Cnty. Sch. Dist. v. State, 515 S.E.2d 535, 541

(S.C. 1999) (“We do not intend the courts of this State to become super-legislatures or

super-school boards.”); Kukor v. Grover, 436 N.W.2d 568, 583 (Wis. 1989) (“Because

issues such as equality in education are peppered with political perceptions and

emotionally laden views, we have carefully restrained our consideration of the

constitutional issues before us . . . .”); see also San Antonio Indep. Sch. Dist. v.

Rodriguez, 411 U.S. 1, 42, 93 S. Ct. 1278, 1301, 36 L. Ed. 2d 16, 48 (1973) (“In

addition to matters of fiscal policy, this case also involves the most persistent and

difficult questions of educational policy, another area in which this Court’s lack of

specialized knowledge and experience counsels against premature interference with the

informed judgments made at the state and local levels.”).

71

acknowledges this UN Declaration is not binding in United States courts.

See Sosa v. Alvarez-Machain, 542 U.S. 692, 734–35, 124 S. Ct. 2739,

2767, 159 L. Ed. 2d 718, 754–55 (2004). The only education case citing

the UN Declaration was accompanied by a vigorous and well-reasoned

dissent. Pauley v. Kelly, 255 S.E.2d 859, 897–900 (W. Va. 1979) (Neely,

J., dissenting). No party to this litigation cited the UN Declaration at any

point in the proceedings or argued it had any relevance. I fail to see how

a 1948 UN Declaration helps our court ascertain the intent of the

framers of the Iowa Constitution ratified ninety years earlier. Our court

has not previously relied on UN declarations or international law to

interpret our 1857 constitution, and I would not start now.

The dissent also discusses numerous historical figures and famous

educators. Yet none of them is quoted for the proposition that courts

should be running schools. I imagine all of them would be surprised by

that notion. The divergence of views of education surveyed by the

dissent is another reason why policymaking should be left to the elected

branches. How should an Iowa judge or jury in a contested case select

from among the disparate academic viewpoints and standards? We all

agree public education is vitally important. But that does not warrant

courts interfering in how our public schools are run. The lengthy dissent

cites no case from any jurisdiction where court-ordered imposition of

statewide educational standards improved student outcomes.

The dissent argues we should not decide whether the amended

petition states a claim upon which relief may be granted because the

appellee who won dismissal below did not brief that alternative ground

for dismissal on appeal. That issue was fully briefed by both sides in the

district court and decided by the district court and is appropriately

decided by our court today for the reasons set forth in the majority

72

opinion and Chief Justice Cady’s special concurrence. The dissenters’

position today is at odds with their zeal a mere eighteen months ago to

decide an issue the parties in another case failed to brief in district court

or on appeal and that the district court never decided. See Feld v.

Borkowski, 790 N.W.2d 72, 81–82 (Iowa 2010) (Wiggins, J., concurring

specially); id. at 82–85 (Appel, J., concurring in part and dissenting in

part). The dissenters argue it was appropriate to reach the issue omitted

from the briefs in Feld because it was inextricably intertwined with the

issue briefed on appeal. The same is true in this case—whether these

plaintiffs allege claims upon which judicial relief may be granted or

rather nonjusticiable political questions is simply two sides of the same

coin. Notably, in Feld, Justice Wiggins posed several questions that are

better asked in this case:

Why should we leave the question unanswered when the

district court will be confronted with it on remand? Why are

we creating a potential appeal on this issue . . . when we can

answer the question now? It seems to me, for us not to

address the issue creates extra expense for the parties and

the court. Accordingly, I would address the issue head on

and give the contact sports exception a proper burial.

Id. at 82. So too should we give plaintiffs’ case “a proper burial” now,

instead of remanding for a costly trial to prove allegations that, if true,

provide no grounds for judicial relief. 28

28Justic

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