                    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.
                                     62

       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
                                    63

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
                                     64

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
                                     65

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

       28Justice  Wiggins’ dissent asserts our majority decision “appears to overrule”
Racing Ass’n of Central Iowa v. Fitzgerald (RACI II), 675 N.W.2d 1 (Iowa 2004). RACI II
as a practical matter has been limited to its facts. I would expressly overrule RACI II as
plainly erroneous. The RACI II majority, purporting to apply the federal rational-basis
test, held that a tax differential for casino slot machine revenue violated the equal
protection clause of the Iowa Constitution on remand after the unanimous United
States Supreme Court had held the differential did not violate federal equal protection.
675 N.W.2d at 3. The RACI II majority thereby essentially took the position that the
nine justices of the United States Supreme Court were irrational in applying the same
rational-basis test in the same case, despite the well-settled and long-standing tradition
of judicial deference to legislative economic regulation and tax classifications. RACI II
was wrongly decided for the reasons set forth in the eloquent separate dissents by
Justices Cady and Carter. See id. at 16–17 (Carter, J., dissenting); id. at 17–28 (Iowa
                                          73

         Many generations of Iowans have been justifiably proud of the

quality of our state’s public school system.               The allegations in this

lawsuit shine a light on shortcomings, disturbing downward trends, and

outcomes that vary from district to district. But notably absent in the

voluminous filings in this appeal is any convincing argument judicial

intervention will make Iowa schools better. Plaintiffs filed no Brandeis

brief providing empirical data that their requested judicial intervention

would improve educational outcomes. The plaintiffs in this case are no

doubt optimistic and sincere in their beliefs that the educational reforms

they seek to impose statewide by judicial fiat will raise ACT scores in

many districts.      Our courts, however, are not competent to determine

whether a structural injunction imposing a new set of priorities and

standards will accomplish those worthy goals or instead lower composite

average ACT scores in districts that currently must be doing many things

right.

         Voters elect our governor, legislators, and school board members.

If these plaintiffs do not like how Iowa schools are run, they should turn

to the ballot box, not the courts.




_______________________________
2002) (Cady, J., dissenting); see also Racing Ass’n of Cent. Iowa v. Fitzgerald (RACI I),
648 N.W.2d 555, 563–64 (Neuman, J., dissenting, joined by Carter and Cady, JJ.);
Fitzgerald v. Racing Ass’n of Cent. Iowa, 539 U.S. 103, 123 S. Ct. 2156, 156 L. Ed. 2d
97 (2003) (reversing RACI I on federal equal protection grounds).
                                          74

                                                   10:43/08–2006, King v. State

WIGGINS, Justice (dissenting).

       I would find the plaintiffs’ constitutional claims justiciable and

remand the case for further proceedings on the merits of those claims.

Therefore, I dissent from Justice Mansfield’s opinion 29 and Chief Justice

Cady’s concurring opinion because they reach the merits of the plaintiffs’

claims under the education clause, the due process clause, and the

privileges and immunities clause of the Iowa Constitution even though

the State did not raise the merits of these issues on appeal.                   I also

dissent from these opinions because they reach the issue that plaintiffs’

petition failed to state a claim.              Further, I dissent from Justice

Waterman’s concurring opinion because he finds the constitutional

claims nonjusticiable.

       A supreme court is “a court of final review and not first view.”

Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. ___, ___, 132 S. Ct. 1421,

1430, 182 L. Ed. 2d 423, 433 (2012).                   Our cases stand for the

proposition that we may affirm the district court on any basis appearing

in the record and urged on appeal by the appellee. See, e.g., In re Estate

of Voss, 553 N.W.2d 878, 879 n.1 (Iowa 1996); Johnston Equip. Corp. v.

Indus. Indem., 489 N.W.2d 13, 17 (Iowa 1992); see also Chauffeurs,

Teamsters & Helpers, Local Union No. 238 v. Iowa Civil Rights Comm’n,

394 N.W.2d 375, 378 (Iowa 1986) (stating we may decide issues on

appeal not reached by the district court where they have been raised in

the district court and fully briefed and argued by the parties on appeal).



       29Justice  Mansfield’s opinion appears to be a plurality opinion because it
reaches the merits of the plaintiffs’ claims under the education clause, due process
clause, and privileges and immunities clause of the Iowa Constitution. Although
Justice Waterman concurs in the opinion, he does so by finding the plaintiffs’ claims to
be nonjusticiable political questions just as the district court did.
                                     75

This rule is rooted in the principle of fairness, and we have consistently

applied it in our cases.

      For example, in State v. Seering, 701 N.W.2d 655 (Iowa 2005), we

held the appellee waived certain arguments on appeal even though the

issues were raised in and decided by the district court because the

appellee failed to present the arguments in his appellate briefs.        701

N.W.2d at 661–62. In Parkhurst v. White, 254 Iowa 477, 118 N.W.2d 47

(1962), we held the appellee waived an issue presented to the district

court but not briefed on appeal. 254 Iowa at 480–81, 118 N.W.2d at 49.

Similarly, in American Mutual Liability Insurance Co. v. State Auto.

Insurance Association, 246 Iowa 1294, 72 N.W.2d 88 (1955), we

concluded an alternative constitutional claim was not before us because

the appellee failed to assert the claim on appeal. 246 Iowa at 1303, 72

N.W.2d at 93.

      This case provides further support for the reasons underlying our

rule of error preservation.     Here, the district court determined the

plaintiffs’ amended petition alleged facts sufficient to meet our notice

pleading standard.    See Hawkeye Foodservice Distribution, Inc. v. Iowa

Educators Corp., 812 N.W.2d 600, 608 (Iowa 2012) (declining to adopt a

heightened pleading standard).     The district court then dismissed the

plaintiffs’ claims as nonjusticiable political questions.   On appeal, the

plaintiffs’ argued in their appellate brief that its claims were not

nonjusticiable political questions. The plaintiffs did not argue the merits

of their constitutional claims or argue that their petition met our

pleading standard.    Indeed, because the district court did not address

the merits of the constitutional claims and ruled in the plaintiffs’ favor on

the pleading issue, it would have been unnecessary and strategically

unwise to do so unless the defendants raised these issues on appeal.
                                      76

However, the defendants, the prevailing parties below, only argued in

their appellate briefs that the plaintiffs’ constitutional claims presented

nonjusticiable political questions.    The defendants did not argue the

plaintiffs’ petition failed to meet our pleading standard. Therefore, under

our rule of error preservation, the only issue briefed by the parties on

appeal, and thus subject to consideration by this court, is the issue of

whether the plaintiffs’ constitutional claims present nonjusticiable

political questions.

      In order to reach the merits of the plaintiffs’ claims and to

determine the plaintiffs’ petition failed to state a claim, Justice

Mansfield’s opinion and Chief Justice Cady’s concurring opinion rely on

the proposition that we can uphold a district court decision on a ground

different from the one upon which the district court based its decision as

long as the ground was urged in the district court. See DeVoss v. State,

648 N.W.2d 56, 63 (2002). As already noted, this proposition stands for

only half of our rule regarding error preservation. These opinions ignore

the other half of the rule requiring the parties to brief the issues in this

court. In fact, the cases upon which Justice Mansfield’s opinion relies to

support its proposition support the two-part rule. Granted, we examined

issues in Martinek v. Belmond-Klemme Community School District, 772

N.W.2d 758 (Iowa 2009), Fennelly v. A-1 Machine & Tool Co., 728 N.W.2d

163 (Iowa 2006), and Emmert v. Neiman, 245 Iowa 931, 65 N.W.2d 606

(1954), that the district court did not address. However, a review of the

appellate briefs in these cases, which are on file at the state law library,

reveals that the parties on appeal briefed the alternate or additional

grounds upon which we relied.

      Justice Mansfield’s opinion also relies on Erickson v. Erickson’s

Estate, 191 Iowa 1393, 180 N.W. 664 (1920), for its proposition that we
                                          77

can affirm on a ground raised in the trial court but not argued in this

court. However, Erickson is but a relic of an earlier time. Although we

have never expressly overruled Erickson, it seems nearly a century of

case law has destroyed its precedential value.                       Surely Johnston

Equipment Corporation and Voss articulate rules of error preservation

that have at the very least impliedly overruled Erickson.                   In reaching

these issues, Justice Mansfield’s opinion has effectively overruled the

ninety years of case law since Erickson and returned us to its archaic

principle. After this decision, if an appellant wants to further inform the

court as to its argument, it seems the appellant must expand upon every

argument raised at the district court in its appellate brief, regardless of

whether the district court ruled in its favor on a particular issue and

unprompted by any action by the appellee.                   Otherwise, the appellant

risks this court deciding an issue no party expected this court to decide.

In other words, every issue presented to the district court, no matter how

irrelevant to its decision it may seem, becomes relevant on appeal.

       Further,      neither   the   merits     of    the   plaintiffs’   constitutional

arguments      nor    the   sufficiency    of   the    pleadings     are inextricably

intertwined with the issue of whether the plaintiffs’ claim sets forth a

political question. 30      The district court decided the political question

        30In special concurrences, members of this court urged the majority to abandon

the contact-sports exception when neither party so urged in their briefs. See Feld v.
Borkowski, 790 N.W.2d 72, 81 (Iowa 2010) (Wiggins, J., specially concurring); id. at 82
(Appel, J., concurring in part and dissenting in part). The specially concurring
members argued the issue of abandonment of the contact-sports exception was
inextricably intertwined with the case because, under the particular circumstances of
the case, resolution of the contact-sports-exception-issue was necessary for the proper
disposition of the case on retrial. Feld, 790 N.W.2d at 85 (Appel, J., concurring in part
and dissenting in part); see also Piper Aircraft Co. v. Reyno, 454 U.S. 235, 246–47 n.12,
102 S. Ct. 252, 261 n.12, 70 L. Ed. 2d 419, 430 n.12 (1981) (courts may consider
questions outside the scope of the issues of the order granting review when resolution of
those issues is necessary to properly dispose of the case). However, the majority
rejected the arguments made in the special concurrences in Feld, and thus, the law of
this State required a party to brief and argue an issue in this court before we would
                                          78

issue without reference to the other issues concerning the education, due

process, and privileges and immunities clauses of the Iowa Constitution.

We can and should do the same.

       Justice Mansfield’s opinion may argue the parties raised these

issues on appeal because they discussed them during oral argument.

However, the opinion’s rationale that the parties preserved these issues

for our consideration on appeal fails for two reasons.                      First, on

resubmission Justice Mansfield precipitated the references to these

unbriefed issues by asking questions on these issues not raised in this

appeal. 31 Justice Mansfield’s opinion cannot claim the parties preserved

these issues by raising them through questioning by the court. Second,

our case law is unwavering in the proposition that we will not decide or

consider issues raised for the first time during oral argument. See Dilley

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

this proposition dating back to 1959).

       There is a sound reason for this latter proposition. Chief Judge

Posner noted, “[I]t would not be quite cricket of us to place [our] decision

on the ground” that was not raised until the oral argument on appeal

because the other party may have been lulled into thinking its opponent
was fighting the case on another issue.             Principal Mut. Life Ins. Co. v.

Charter Barclay Hosp., Inc., 81 F.3d 53, 56 (7th Cir. 1996).

       Justice Mansfield’s opinion and Chief Justice Cady’s concurring

opinion are perfect examples of this principle. Their analysis regarding
_______________________________
consider it on appeal. Even if the special concurrences in Feld were applicable in this
case, the merits of the issues reached by Justice Mansfield’s opinion and the concurring
opinion of Chief Justice Cady were not inextricably intertwined with the political
question issues raised by this appeal. The majority and special concurrences seem to
signal a shift in our error preservation rules.
       31Within the first three minutes of the plaintiffs’ oral argument, Justice
Mansfield began asking questions about the equal protection clause.
                                      79

the education clause, due process clause, and privileges and immunities

clause of the Iowa Constitution are entirely their own.         For example,

when discussing the merits of the plaintiffs’ claim under the education

clause, Justice Mansfield’s opinion provides its own analysis of article IX,

division 2, section 3 of the Iowa Constitution. This section provides, in

relevant part, “The General Assembly shall encourage, by all suitable

means, the promotion of intellectual, scientific, moral, and agricultural

improvement.” Iowa Const. art. IX, div. 2, § 3 (1857 original version).

       Justice Mansfield’s opinion and the concurring opinion of Chief

Justice Cady fail to consider article IX, division 1, section 12, which

states:

       The Board of Education shall provide for the education of all
       the youths of the State, through a system of Common
       Schools and such school shall be organized and kept in each
       school district at least three months in each year. Any
       district failing, for two consecutive years, to organize and
       keep up a school as aforesaid may be deprived of their
       portion of the school fund.

Id. art. IX, div. 1, § 12.

       Although the legislature abolished the board of education referred

to in section 12 in 1864 and replaced it with the superintendent of

education, the predecessor to the present department of education, the

citizens of this state never repealed the substance of 1857 article IX,

division 1, section 12. See 1864 Iowa Acts ch. 52 §§ 1–15. In fact, this

court used the substantive provisions of article IX, division 1, section 12

to integrate Iowa schools four years after the legislature abolished the

board of education. See Clark v. Bd. of Dirs., 24 Iowa 266, 274 (1868)

(quoting article IX, division 1, section 12 by stating “that provision shall

be made ‘for the education of all the youths of the State through a system

of   common     schools,’    which   constitutional   declaration   has   been
                                           80

effectuated by enactments providing for the ‘instruction of youth between

the ages of five and twenty-one years’ ”). In Clark, the court recognized

the Iowa constitutional rights of all children to obtain an education and

that the education provided by the state must be provided equally to all

children. Id. at 272–77. The analyses in Justice Mansfield’s opinion and

the concurring opinion of Chief Justice Cady of this important issue

without allowing the parties to properly brief and argue it deprives the

plaintiffs of their day in court. 32         As Justice Stevens of the Supreme

Court noted, “[T]he adversary process functions most effectively when we

rely on the initiative of lawyers, rather than the activism of judges, to

fashion the questions for review.” New Jersey v. T.L.O., 468 U.S. 1214,

1216, 104 S. Ct. 3583, 3585, 82 L. Ed. 2d 881, 883 (1984) (Stevens, J.,

dissenting) (emphasis added).

       Justice Mansfield’s opinion and the concurring opinion of Chief

Justice Cady perfectly illustrate the reasons for Justice Stevens’ warning.

These opinions address the merits of the plaintiffs’ claims in order to

dismiss the case.       In doing so, these opinions fail to fully explore the

parameters of the right to an education guaranteed by the Iowa

Constitution. These opinions pick article IX, division 2, section 3 of the

Iowa Constitution to evaluate the merits of the case even though the

parties did not brief or raise this section on appeal. To compound their

mistake, these opinions fail to address the education clause found in


       32Justice  Mansfield’s opinion and the concurring opinion of Chief Justice Cady
ignore this constitutional argument because it was not raised in the district court. To
me, it is inconsistent to decide the case on appeal on issues and arguments that were
not raised below, but to deny the plaintiffs their day in court to develop all of their
arguments fully, including those arguments they could have made under article IX,
division 1, section 12 of the Iowa Constitution. After all, the State did not appeal the
merits of this case. If these opinions had not reached beyond the arguments presented
by the parties on appeal and we had decided this appeal in favor of the plaintiffs solely
on the issue of political question, it is logical to conclude the plaintiffs would have had
the opportunity to develop more fully their arguments in the district court on remand.
                                     81

article IX, division 1, section 12 of the Iowa Constitution on the grounds

the parties did not raise it in the district court. In other words, to reach

a desired result, these opinions pick and choose which arguments to

make and which arguments not to make under their own error

preservation rule. To me, it is inconsistent to decide the case on appeal

on issues and arguments the parties did not raise below, but to deny the

plaintiffs their day in court to develop all of their arguments fully,

including those arguments they could have made under article IX,

division 1, section 12 of the Iowa Constitution.

      These opinions also frame their own arguments regarding equal

protection and due process without the input of the attorneys on appeal

and subsequently knock those arguments down to reach a desired result

in this case. The fairest way to resolve these issues is not for the court to

pick and choose sua sponte which issues and arguments to decide and

which to ignore, but rather to remand the case to the district court for

the parties to frame and fully brief all arguments relevant to this

important issue.

      An additional reason we do not decide issues raised for the first

time during oral argument is that it would be unfair to second-guess the

strategy of the State. It may have made a conscious decision not to raise

the alternative ground on appeal. See Fencl v. City of Harpers Ferry, 620

N.W.2d 808, 811–12 (Iowa 2000) (stating that “we may still affirm if there

is an alternative ground, raised in the district court and urged on appeal,

that can support the court’s decision”). Maybe the State wanted to focus

the appeal on what it thought was its best chance for affirmance. By not

urging an alternative ground on appeal, the State may have conceded

that it would not win on its motion to dismiss for failure to state a cause

of action under our liberal notice pleading rules. It is possible the State
                                     82

decided it wanted to win on a summary judgment instead of procedural

grounds. It also may have decided it would have had a better chance of

prevailing on a motion for summary judgment after better developing a

record. See, e.g., Fitzgerald v. Racing Ass’n of Cent. Iowa, 539 U.S. 103,

110, 123 S. Ct. 2156, 2161, 156 L. Ed. 2d 97, 105 (2003) (deciding a

constitutional claim in favor of the State after a motion for summary

judgment); Varnum v. Brien, 763 N.W.2d 862, 907 (2009) (deciding a

statute was unconstitutional after developing the record in a summary

judgment proceeding); Ames Rental Prop. Ass’n v. City of Ames, 736

N.W.2d 255, 263 (Iowa 2007) (deciding an ordinance was constitutional

after developing the record in a summary judgment proceeding); City of

Waterloo v. Selden, 251 N.W.2d 506, 510 (Iowa 1977) (finding the

summary judgment record affirmatively established at least one rational

basis, and therefore, the statute was constitutional).

      Finally, an appeal is between the attorneys and the parties they

represent. Our law clerks and judges should not be doing the work of

counsel or making strategic decisions on which issues to appeal.         See

United States v. Wagner, 103 F.3d 551, 552 (7th Cir. 1996). We are not

advocates and should not usurp a party’s strategy.

      The public has criticized this court for reaching out and deciding

issues not raised or briefed on appeal. This is another case for the critics

to add to their list. We cannot have a rule of law that we reach out and

decide an issue not briefed or pressed by the parties on appeal in order

to achieve a desired result. Only time will tell if the court will apply this

rule in a principled fashion or if the court will use it to achieve results

favored by the shifting majorities of the court. In particular, it would be

a most unfortunate development to see a liberal approach to preservation

to deny individual rights, and a “gotcha” or cramped approach to
                                       83

preservation in order to avoid consideration of issues that would tend to

vindicate individual rights.      See, e.g., Mulhern v. Catholic Health

Initiatives, 799 N.W.2d 104, 123 (Iowa 2011) (Wiggins, J., dissenting)

(explaining the majority decided the case on an issue not tried in the

district court or argued on appeal).

      I do not see how we can continue to assert in criminal cases that

error not preserved on appeal is “waived,” or how we can say the failure

to cite authority in a criminal case leads to waiver when, in this case, we

have no briefing whatsoever on issues other than on the political

question issue.

      Further, because Justice Mansfield’s opinion and concurring

opinion of Chief Justice Cady reach the merits of the constitutional

issues, they appear to overrule our decision in Racing Association of

Central Iowa v. Fitzgerald (RACI), 675 N.W.2d 1 (Iowa 2004), without the

benefits of an appellate brief by the parties. In those cases, we said, in

deciding a state constitutional equal protection challenge, we first

determine whether the legislature had a valid reason to treat similarly

situated persons differently. RACI, 675 N.W.2d at 7. Next, we decide if

this reason has a basis in fact. Id. at 8.

      There is no way we can do a proper analysis under our existing law

as to whether the reason for the disparity has a basis in fact without the

plaintiffs’ evidence and arguments on the issue. It appears members of

the court want to overrule RACI.            It is their prerogative to do so.

However, without the plaintiffs briefing the issue, members of the court

are promoting their own agenda. It would have been nice if the plaintiffs

had weighed in on these issues.

      There will be time enough to sort through the complicated issues

in this case.     We do a disservice to the ordinary judicial process by
                                      84

deciding this case without briefing in this court and without a fuller

development in the district court.      As noted by the Missouri Supreme

Court in the context of an education case, “It is unwise for courts to

shortcut procedural requirements necessary to fully and fairly address

the substantive issues in cases of great public significance, when those

same procedures would be required without pause in cases of lesser

magnitude.” Comm. for Educ. Equal. v. State, 878 S.W.2d 446, 454 (Mo.

1994).   In fact, I was unable to find any case dealing with a state’s

education clause that reached this important issue when the parties did

not brief it on appeal.

      Justice Mansfield’s opinion also cites the political activity of the

other branches of government as a reason to address the issues that

were not appealed.        I would answer the justification given by Justice

Mansfield’s opinion by noting the judicial branch is different from the

other branches of government.        The legislative and executive branches

set their own agenda and decide what issues they want to address. The

judicial branch is different. We do not decide issues unless a party in a

legal action has raised the issues in the district court, has fully briefed

the issues on appeal, and has asked us to reach the issues on appeal. In

short, we do not set our own agenda.

      We only decide issues raised and briefed by the parties.       To do

otherwise is nothing more than Justice Mansfield’s opinion and the

concurring opinion of Chief Justice Cady setting their own error

preservation rules to reach issues not urged on appeal. Here, the State

did not brief the issues reached by Justice Mansfield’s opinion and the

concurring opinion of Chief Justice Cady in this appeal. Moreover, the

State did not ask us to reach those issues. The mere fact the legislative
                                    85

and executive branches are dealing with education issues does not give

this court the license to weigh in on those issues.

      This important case calls for judicial restraint.   Members of the

court should not be espousing their own views on issues not raised or

briefed in this court. Accordingly, I would remand the case to the district

court for further proceedings on the constitutional claims.

      Hecht and Appel, JJ., join this dissent.
                                    86

                                                  #08–2006, King v. State

APPEL, Justice (dissenting).

      I respectfully dissent.

      I concur with Justice Wiggins’s opinion. In light of the virtually

unprecedented determination of Justice Mansfield’s opinion to reach out

to uphold the district court on grounds other than those decided by the

district court and that the parties chose not to present on appeal, I

proceed to state my views on why these alternative grounds do not

provide a basis for dismissal in this case at the very inception of the

lawsuit.

      In my view, education is a fundamental interest or right under the

Iowa Constitution. Deprivations of a basic or adequate education should

be subject to heightened judicial review, and other material differences in

education should be subject to judicial review under a meaningful

rational basis test. I further believe the pleading, though not very clear,

is sufficient to survive a motion to dismiss at this stage of the

proceedings under our well-established liberal pleading rules.     I would

therefore reverse the district court and remand the case for further

proceedings.

      I. Overview of Plaintiffs’ Petition.

      The plaintiffs in this case are from both rural and urban school

districts alleging shortcomings in the education provided by the State.

They allege, among other things, that the State has failed to provide them

with “equal access to an effective education” and that the State has failed

“to establish and maintain an adequate education delivery system.”

      The plaintiffs’ petition in this case alleges the State’s educational

requirements and accreditation standards do not ensure that students

“will be able to meet and exceed the technological, informational and
                                    87

communication demands of society so that they can be prepared for

responsible citizenship, further learning and productive employment in a

global economy.” They claim that many Iowa students “are not prepared

to enter the workforce or post-secondary education without additional

training or remediation.”

      The plaintiffs support their adequacy claim with various statistics.

They allege, for instance, that under the National Assessment of

Academic Progress standards, only thirty-three percent of Iowa fourth

grade students are proficient in math, and only thirty-seven percent of

students are proficient in reading. It is alleged that similar proficiency

levels are achieved for eighth graders.

      The plaintiffs also allege that the smallest school districts in Iowa

are disadvantaged in that they have teachers with less experience and

that the teachers have nearly double the teaching assignments compared

with teachers in larger school districts. They also claim rural students

have far fewer curriculum units available to students. They allege that

there is a disparity in educational outcomes based upon where one lives.

      The plaintiffs assert that the lack of adequate education violates

the education provisions of article IX of the Iowa Constitution; the

privileges and immunities clause of the Iowa Constitution; the due

process clause of the Iowa Constitution; and statutory standards

established in Iowa Code section 256.37, which declares that it is the

policy of the state “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 plaintiffs seek

declaratory relief as well as a writ of mandamus, and the district court

was urged to retain continuing jurisdiction for the purpose of enforcing

its orders and judgments.
                                        88

      II. Historical Roles of National and State Government in

Educating Children.

      A. Introduction.        In order to provide the necessary context for

consideration of the constitutional issues raised in Justice Mansfield’s

opinion (but not in the appellate briefs), I review the contrasting roles of

the state and national governments in the provision of education to

children.    As will be seen below, although the national government

traditionally has supported education of children through land grants

and financial assistance, the responsibility for providing education to

children has been the duty of state and local governments.

      B. The Limited Role of the National Government in the

Education of Children. The education of children had little to do with

the American Revolution. The grievances against King George III in the

Declaration of Independence had nothing to do with the education of

children. The education of children was not mentioned in the Articles of

Confederation or in the United States Constitution. The only mention of

education in the debates at the constitutional convention was a

suggestion by Madison and Pickney that Congress be expressly

authorized to establish a university, a proposal that was rejected. James

Madison, Notes of Debates in the Federal Convention of 1787, at 477–78,

639 (Bicentennial ed., W.W. Norton & Co., Inc. 1987); see Lawrence A.

Cremin, American Education: The National Experience 1783–1876, at 127

(1980) [hereinafter Cremin].

      The lack of discussion of education of children in revolutionary and

constitutional     contexts   does   not     mean   that    the   founders   were

unconcerned about education.           The contrary is true.      From the very

beginning,   the    founders    were    advocates    of    expanding   children’s

education.
                                    89

       For example, Thomas Jefferson, while serving in the Virginia

legislature, was a fierce advocate of a Bill for the More General Diffusion

of Knowledge, which would have established a system of free schools

supported by tuition and scholarships for poor boys. Ian C. Friedman,

Education Reform 8 (2004). In a letter to George Washington, Jefferson

explained it was axiomatic that liberty could never be safe but “in the

hands of the people themselves, and that too of the people with a certain

degree of instruction.”     Gordon C. Lee, Learning and Liberty: The

Jeffersonian Tradition in Education, in Crusade Against Ignorance:

Thomas Jefferson on Education 19 (1961). “This,” Jefferson wrote, “is the

business of the state to effect, and on a general plan.” Id.

       John Adams was the principal author of the Massachusetts

Constitution of 1780.     As adopted, the Massachusetts Constitution of

1780 provided, “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,” the legislature has a duty to

“cherish” the interests of science and literature. Mass. Const. of 1780,

pt. II, ch. 5, § 2.

       Benjamin Rush, a signer of the Declaration of Independence and

member of the Continental Congress, addressed the Pennsylvania

legislature with his essays, “A Plan for the Establishment of Public

Schools and the Diffusion of Knowledge in Pennsylvania” and “Thoughts

upon the Mode of Education Proper in a Republic.” Frederick M. Hess,

The Same Thing Over and Over: How School Reformers Get Stuck in

Yesterday’s Ideas 44 (2010).      Rush called for a free school in every

township and universal education at public expense, reasoning that all

citizens, rich and poor, would have a role in selecting the nation’s leaders
                                    90

and that, as a result, everyone was entitled to at least a minimal amount

of education in reading, writing, and arithmetic. Id. at 44–45.

       Jefferson, Adams, and Rush had at least three things in common.

First, they were advocates of education of children.    Second, they saw

education of children as linked to the successful operation of democratic

government. But for my purposes, the most important point is that they

viewed the states as the governmental structure to deliver education to

citizens.

       During the formative years of our country, the federal government

supported the education of children by providing resources to assist

state and local governments in providing education to citizens. First, the

federal government provided public land for school uses in the states

through the Land Ordinance of 1785, which required land to be set aside

for school uses. 28 Journals of the Continental Congress 378 (May 20,

1785). Second, in its organizations of the territories and admission of

states, Congress demanded educational progress.         In the Northwest

Ordinance of 1787, Congress required public education to be “forever

encouraged” in the covered territories.        Northwest Ordinance, 32

Journals of the Continental Congress 340 (July 13, 1787). The federal

government itself, however, had no direct role in the education of

children, but simply provided important financial support through land

grants to states and local governments who bore the responsibility of

providing education.

       The encouragement of public education took on added meaning

when a territory applied to become a state. Under Article IV, Section 4 of

the United States Constitution, Congress was empowered to admit states

only if they had a “Republican Form of Government.” U.S. Const. art. IV,

§ 4.   As states were admitted to the Union, it became “a working
                                    91

assumption that public education was an essential feature of a

republican government based upon the will of the people.” David Tyack,

Thomas James & Aaron Benavot, Law and the Shaping of Public

Education, 1785–1954, at 20 (1987).

      Prominent antebellum education leaders such as Horace Mann of

Massachusetts, Calvin Wiley of North Carolina, Caleb Mills of Indiana,

Samuel Lewis of Ohio, John D. Pierce of Michigan, Robert Breckinridge of

Kentucky, Ninian Edwards of Illinois, Henry Barnard of Connecticut and

Rhode Island, and John Swett of California all recognized the role of the

states in providing education to children and youth. See David B. Tyack,

Turning Points in American Educational History 125 (1967).           These

prominent advocates of universal education sought to advance their

cause not through pontifications in the halls of Congress, but in the local

lyceum and through mechanisms of state and local government.

      C. The Duty of State Government to Provide Education to

Children. In contrast to the limited role of the federal government, the

states had direct responsibility of providing education. The difference in

involvement between the federal government and the state governments

on educational matters was a night and day contrast until very recently.

Further, education traditionally has been one of the most important

functions of state government.           A brief survey of Iowa history

demonstrates these points.

      While revolutionary leaders tended to emphasize education of the

elite, the movement for universal education through common schools

emphasizing republican virtues began in the early nineteenth century

and was in full bloom during the 1830s as the movement for expanded

suffrage advanced. The focus of the common school movement was on

state and local governments. See generally Frederick M. Binder, The Age
                                    92

of the Common School, 1830–1865 (1974); Cremin; Carl F. Kaestle, Pillars

of the Republic: Common Schools and American Society, 1780–1860

(1983).

      Even in the territorial days, the importance of education as a

responsibility of territorial government was recognized in Iowa. Governor

Henry Dodge of the Wisconsin Territory (which included Iowa at the time)

recognized the relation between education and democratic government.

In his first inaugural address, Governor Dodge, in urging the territorial

assembly to provide for the establishment of local academies for the

education of youth, spoke in obligatory terms:

      It is a duty we owe to the rising generation to endeavor to
      devise means to improve the condition of those that are to
      succeed us; the permanence of our institutions, must
      depend upon the intelligence of the great mass of the people.

1 Benjamin F. Shambaugh, The Messages and Proclamations of the

Governors of Iowa 9 (1903) [hereinafter Shambaugh].

      Once Iowa became a territory of its own apart from Wisconsin,

Robert Lucas, the first Iowa territorial governor and a delegate of the
1844 constitutional convention, was a strong advocate of education. In

his first message to the legislature of the Territory of Iowa, Lucas

addressed education and particularly the need for a system of free

common schools. John C. Parish, Iowa Biographical Series: Robert Lucas

286 (1907) [hereinafter Parish].   Lucas stated: “There is no subject to

which I wish to call your attention more emphatically, than the subject of

establishing, at the commencement of our political existence, a well

digested system of common schools.” 1 Shambaugh at 78; John Purcell

Street,   Iowa   Department   of   Public   Instruction:   Its   Origins   and

Development, 30 Annals of Iowa 397, 398 (1950) [hereinafter Street].

Lucas called on the territorial assembly to “build up a good system as
                                    93

fast as the population and wealth of the territory would warrant.”         1

Clarence Ray Aurner, History of Education in Iowa 368 (1914)

[hereinafter Aurner]. The first territorial assembly responded to his call

by enacting legislation calling for the establishment of common schools

in school districts in the respective counties.     1 Edgar R. Harlan, A

Narrative History of the People of Iowa 133 (1931) [hereinafter Harlan].

      Yet, territorial government did not provide the ideal framework for

development of a system of local education.       Advocates of statehood

appealed to the parents of children, noting that lands reserved by the

federal government for education purposes could not be obtained without

statehood. James Alton James, Constitution and Admission of Iowa into

the Union 15 (1900). Once Iowa was admitted to statehood, Iowa received

a grant of five hundred thousand acres of land from the United States for

school purposes. George Chandler, Iowa and the Nation 17 (Chicago, A.

Flanagan 1895).

      It is thus not surprising that education was emphasized in the first

Iowa Constitutions. Article X of the constitutions of 1844 and 1846 dealt

with education.   The 1844 and 1846 constitutions provided that the

general assembly “shall encourage, by all suitable means, the promotion

of intellectual, scientific, moral, and agricultural improvement” through

“a system of common schools.” Iowa Const. art. X, §§ 2–3 (1846); Iowa

Const. art. X, §§ 2–3 (1844). According to a contemporaneous account of

the 1846 constitutional convention:

            Most ample provision is made for educating the rising
      generation. This is a feature which cannot be too highly
      prized.—It speaks volumes for the character of our
      population, and argues well for the prosperity of the people
      and the success of the great enterprise in which they are
      about to embark.        Let the moral and mental culture
      [unintelligible in original] and the free institutions of our
      country will be safe in their hands.
                                   94

Fragments of the Debates of the Iowa Constitutional Conventions of 1844

and 1846, at 339 (Benjamin F. Shambaugh ed., 1900) (internal quotation

marks omitted).

      The inclusion of provisions in the early Iowa Constitutions related

to education was not surplusage or cosmetic features.          One of the

advantages of statehood was the establishment of machinery to develop a

coherent educational system. Beginning with the admission of Ohio as a

state in 1803, Congress required that all subsequent states provide for

education in their state constitutions as a condition of admission to

statehood. Gerald Unks, The Illusion of Intrusion: A Chronicle of Federal

Aid to Public Education, 49 Educ. F. 133, 136 (1985). After 1815, only

New Mexico attempted to gain admission into the Union without an

education clause, and Congress refused to go along. New Mexico then

added an education clause and was subsequently admitted into the

Union. See Inst. for Educ. Equity & Opportunity, Education in the 50

States: A Deskbook of the History of State Constitutions and Laws about

Education 29 (2008).

      The very first act of the First General Assembly of Iowa was a

measure related to school funds, demonstrating the importance of

education to the fledgling state. 1 Aurner at 16–17. The importance of

the educational function of government is reflected by the fact that the

Chief Justice of the Iowa Supreme Court, Charles Mason, was a member

of the first Iowa Board of Education. 2 Aurner at 415 n.105.

      The state’s first Superintendent of Education, Thomas Hart

Benton, Jr., a nephew of the famous Senator from Missouri, was a

national leader in the education movement, serving on the executive

committee of the American Association for the Advancement of

Education.   Street, 30 Annals of Iowa at 400; Proceedings of the Fifth
                                      95

Session of the American Association for the Advancement of Education 3

(New York, Hartford Press 1856).       Benton served as president of the

Education Convention of Iowa, which met in 1848 in the old stone capitol

at Iowa City, “to promote by every laudable means the diffusion of

knowledge in regard to education and especially to aid in establishing

and perpetuating a system of common school instruction.”        Parish at

286–87.    Benton later remarked in an 1861 report to the board of

education that “[a] wagon can better dispense with one wheel than a

neighborhood with the school house.”       R.A. Harkness, Notes on Iowa

Educational Work from 1860 to 1888, 12 Iowa Normal Monthly No. 7, at

298 (1889).   One of Benton’s successors, Oran Fanville, remarked in

1865 that “universal education is the central idea of republicanism.” Id.

at 299.

      Iowa’s early state governors, like Robert Lucas, were advocates for

education. In 1848, Governor Ansel Briggs recognized the constitutional

significance of education, stating:
      The people of Iowa have ever manifested an earnest and
      commendable zeal in the spread of education, and,
      especially, in the establishment of an efficient and
      permanent system of Common Schools. Of such prominent
      importance is this subject in their estimation, that they have
      made the most ample provisions in the Constitution for the
      spread of education and the support of common
      schools . . . .

1 Shambaugh at 370.

      In 1852, Governor Hempstead, who was also a delegate of the 1844

constitutional convention, addressed education in his first biennial

message to the Iowa legislature. He noted that “no subject can claim a

more pressing interest than that of public instruction.” Id. at 430. He

further declared:
      The first great object should be to place within the reach of
      every child in the state, the opportunity of acquiring those
                                    96
       indispensable elements of education, which shall fit him for
       the enlightened discharge of civil and social duties to which
       he may be called.

Id. at 431. Governor Hempstead further emphasized the constitutional

obligations of the state, noting that the Iowa Constitution required that

the general assembly encourage, by all suitable means, the promotion of

intellectual, scientific, moral, and agricultural improvement. Id.

       In 1856, Governor James Grimes emphasized education in his

inaugural address. Governor Grimes stated that “[t]o accomplish these

high aims of government, the first requisite is ample provision for the

education of the youth of this State.” 2 Shambaugh at 7. He further

declared that “[t]he State should see to it that the elements of education,

like the elements of universal nature, are above, around, and beneath

all.” Id. Governor Grimes noted that “[i]t is agreed that the safety and

perpetuity of our republican institutions depends upon the diffusion of

intelligence among the masses of the people.” Id.

       In 1856, the general assembly authorized the governor to appoint a

commission of three persons to revise and improve the school laws of

Iowa and to report to the general assembly. Street, 30 Annals of Iowa at

402.   The commission was headed by Horace Mann, the President of

Antioch College in Ohio and one of the most noted educators in the

United States. Id. Mann strongly believed in the “[a]bsolute right to an

education of every human being that comes into the world, and which, of

course, proves the correlative duty of every government to see that the

means of that education are provided for all.” Serrano v. Priest, 487 P.2d

1241, 1266 (Cal. 1971) (citation and internal quotation marks omitted).

The commission investigated the state of education in other states and

ultimately issued a report containing its findings and recommendations.

1 Aurner at 31.
                                    97

      The report of the Mann Commission declared that every youth was

entitled to an education “in the elements of knowledge.”         Id. at 32.

Further, anyone desirous of further progress should be offered necessary

opportunities. Id.   The report called for provision of common schools,

high schools, and the university. Id. at 33. It called for supervision to be

provided by a state superintendent of public instruction, subject to the

advice of a state board of education.     Id. at 35.   Perhaps because of

Mann’s association with the state, a commentator two decades later

declared that “Iowa may be called the Massachusetts of the West. . . .

[T]he cause nearest the hearts of her people is ‘universal education.’ ”

Editorial Preface, 12 Iowa Normal Monthly No. 7, at 1 (1889).

      At the constitutional convention of 1857, considerable emphasis

was placed on education. Discussing education, James Wilson declared:
      We know that after all the intelligence of the people is the
      great bulwark to the stability and permanency of our
      institutions, and looking upon it in that light, it is our duty,
      our absolute and imperative duty, to provide the best
      method and the best means for carrying into effect the
      common school system of the state.

2 The Debates of the Constitutional Convention of the State of Iowa 750

(W. Blair Lord reporter, Davenport, Luse, Lane & Co. 1857) [hereinafter
Debates],   available   at   http://www.statelibraryofiowa.org/services/

collections/law-library/iaconst/. Similarly, J.C. Hall asserted that “[t]he

educational department of our State is a very important one. It embraces

one-half of the inhabitants of the State, and for good or for evil it is

productive of the most important effects upon our population.”           Id. at

725. Further, George W. Ells urged:
      [I]n laying the foundation for an educational system, we
      must discard all narrow views and prejudices, and not only
      provide for the wants of the present generation, but for all
      future generations. I desire to see the common schools of
                                    98
      this State so constituted that a thorough knowledge of all the
      natural sciences will be taught in the most practical manner.
      Should this point be attained they will contrast most
      favorably with the superficial education that characterizes a
      vast number of graduates of chartered colleges of these
      United States.

1 Debates at 602.

      In light of the emphasis the Iowa framers placed on education, two

divisions were adopted that dealt with the subject.      The first division

dealt primarily with the responsibilities of a state board of education,

which was vested with authority to oversee the development of public

education in the state. Iowa Const. art. IX, div. 1 (1857 original version).

The second division related to financing of public education. Id. art. IX,

div. 2.   With respect to the constitutional provision that “the General

Assembly shall encourage, by all suitable means, the promotion of

intellectual, scientific, moral, and agricultural improvement,” id. art. IX,

div. 2, § 3, one scholar has noted that “[a]s a positive provision no clause

has had a wider application in popular benefits,” Harlan at 185. It is

observed that “[a]n educational system, based upon common schools . . .

was one of the cornerstones of the new commonwealth” and that Iowa

was taking a stand that at the time was distinctively “progressive.”
Harlan at 185.

      From 1857 to 1864, the state board of education performed its

constitutional duties.   In 1864, however, the newly elected governor,

William Stone, recommended abolition of the state board of education.

Governor Stone stated the purpose of creating the board of education

was to establish a permanent and satisfactory system of public education

in Iowa. 3 Shambaugh at 7. Governor Stone urged the discontinuation

of the board because the purpose had been accomplished. Id. In 1864,
                                     99

the general assembly abolished the board of education and established a

superintendent of public instruction. See 1864 Iowa Acts ch. 52, § 1.

      Nothing in the historical record suggests that the abolition of the

board of education reflected a lessened constitutional commitment to

education. Experience under the 1857 constitution demonstrated that

vesting legislative power over educational matters with the board, but the

power of the purse with the general assembly, proved awkward at best.

But the commitment to education remained. According to a leading Iowa

historian:

      There was a belief so widespread as to be almost universal
      that, narrow as were the powers of the State, instruction so
      differed from all things else that every child in the
      community was entitled to a chance at the public cost to
      obtain the essentials of the thing called education.

I George F. Parker, Iowa Pioneer Foundations 455 (1940).

      Governors subsequently continued to be strong advocates for

education after the state board was abolished.         Governor Cyrus Clay

Carpenter in his first inaugural address on January 11, 1872, stated in

connection with education that “[n]ext to political freedom, the most

important element of a good government is an intelligent people.”         4

Shambaugh at 8. While recognizing the progress that had been made, he

called for the establishment of a Normal School, or teachers college, to

train teachers for their important task. Id. at 8–9.

      The relationship between education and freedom was repeated by

Governor Buren Robinson Sherman in his January 12, 1882 inaugural

address. Governor Sherman declared:

      The education of the masses is the surest reliance of the
      State, and everywhere free schools exist. Through their
      powerful enlightening influences and strong progression the
      integrity of our political fabric, the security to the enterprise
      of the citizen, and the equality and happiness of the people
                                     100
      are solidly assured. Popular education has become firmly
      entrenched in the confidence of the nation, and there is no
      feature of our whole system so near to the general heart, nor
      regarded with such affectionate anxiety as the free public
      schools of the country.

5 Shambaugh at 241.

      Further, Governor Sherman observed “our educational system”

through all time “will prove the very sheet-anchor to our liberties, as the

free-ballot is the corner-stone to our political structure.” Id. at 242.

      Governor William Larrabee took up education in his first inaugural
address on January 14, 1886. He declared, “If it is true, as I hold it to

be, that ignorance, poverty and crime are intimately related, it is the duty

of every state to educate.”     6 Shambaugh at 14.       He noted that “[a]

republic can survive war, famine and pestilence, but it cannot survive

the intelligence of its people.” Id. at 15.

      In the Progressive Era, many educational reformers emphasized

the need to eliminate politics from education, develop a regime of experts,

and offer highly differentiated education to youth based upon their ability

and future role in society. It was an era of the “Education Commission.”

Iowa had three of them. A school commission in 1907 recommended,

among other things, approval of curriculum by the superintendent of

public instruction.    Street, 30 Annals of Iowa at 445.         In 1911, the

“Better Iowa Schools Commission” met and recommended increased

power and efficiency in the department of public instruction, the

employment of a “rural school inspector” under the department of public

instruction, and that the office of superintendent of public instruction be

converted into a nonpartisan electoral post.       Id. at 446.    In 1939, a

school code commission reviewed the laws of Iowa and produced a

report; a second school code commission was convened in 1941 and

produced another report. Id. at 447–48. The latter code commissions
                                       101

called for strengthening the county administration of schools, that the

cost of transporting pupils be paid in whole or in part by the state, that

one quarter of the cost of public school education should be paid from

state    funds   to   relieve   property   taxes   and   “equalize   educational

opportunity,” and “[t]hat teachers be given greater security of tenure.”

Id. at 448–49.

        While the philosophy of the progressive movement emphasized

different themes than the common school movement, the emphasis on

education as being critical to democratic values was a constant.             As

noted by Iowa Superintendent of Public Instruction P. E. McClenahan,

“[e]ducation is a function of the state, and popular education is the only

means of attaining social, political, and individual freedom.”             P. E.

McClenahan, Report of the Department of Public Instruction 9 (June 30,

1922).

        The emphasis on the need for quality education surfaced again in

the post WWII years. In September of 1954, President Eisenhower sent a

letter to all state governors calling for statewide conferences on the

status of education, and Iowa responded with a statewide conference in

Des Moines in December 1954.           Letter from Dwight D. Eisenhower to

Governors (September 20, 1954) in Program from the Iowa State

Conference on Education (Dec. 9–10, 1954).               In the 1960s, Iowa’s

Department of Public Instruction called for an “educational revolution,”

noting that education is no longer “a purely local concern” but “a state

responsibility.” Iowa Dep’t of Public Instruction, 63d Biennial Report 16

(1966) (emphasis added). Governor Robert Ray in 1981–1982 served as

chair of the Education Commission of the States, an organization

dedicated to help states develop effective policies and practices in public
                                         102

education.     See Education Commission of the States (Mar. 21, 2012),

http://www.ecs.org.

       In recent years, there has been what has been labeled a standards

and accountability movement in education. In 1983, President Reagan’s

Department of Education issued a report entitled, “A Nation at Risk: The

Imperative for Educational Reform,” which called for higher standards

and more accountability in education generally.                In 1989, President

George    Bush     convened     a   meeting of      the    nation’s   governors     in

Charlottesville, Virginia to address the perceived shortcomings in

education.     Recently, a summit on education was held attended by

national educational leaders and Iowa educators and administrators.

Governor Branstad, who has found inspiration in Robert Lucas’s

traditional commitment to education, 33 has proposed important changes

to the Iowa education system, which will be the subject of public

discussion and potential legislative action in the coming years.

       This brief and nonexhaustive overview demonstrates that, in

contrast to the federal government, education has played a central role in

Iowa state government. While the federal government from time to time

has shown an interest in education and has been indirectly involved in
fostering it, the states have performed the fundamentally different role of

primary provider of education.

       From a historical perspective, the provision of education by Iowa

state government has been seen as one of its primary and most

celebrated functions. Recognition of the centrality and importance of the

role of state government in providing education has transcended our

        33In his inaugural address in 1987, Governor Branstad, in calling for

educational reform, stated that “our commitment to education is not new” and cited
“our first territorial Governor, Robert Lucas.” 1987 S.J. 94. Governor Branstad further
made reference to the state’s “historic commitment to education.” Id. at 95.
                                    103

political parties and has been passed on from one generation of Iowa

political leaders to another up to and including our present political

leadership.


      III. Relationship of Education to Democratic Government,

Personal Liberty, and Human Dignity.

      The historical centrality of education to our state cannot be

underestimated.     In order to fully understand the importance of

education, however, a review of the three important functions of

education provides additional perspective.      First, education is vital to

democratic government.        Second, education is a prerequisite for

meaningful enjoyment of fundamental constitutional rights, including

enjoyment of “life, liberty, and property.” Third, it is an essential part of

the development of an autonomous personality that is a prerequisite for

human dignity.

      At the dawn of our nation, de Tocqueville recognized that “the

instruction of the people powerfully contributes to the support of a

democratic process.” 1 Alexis de Tocqueville, Democracy in America 342

(D. Appleton & Co. 1904). Thomas Mann emphasized that education can

never be less than such

      “as is indispensable for the civil functions of a witness or a
      juror; as is necessary for the voter in municipal and national
      affairs; and finally, as is requisite for the faithful and
      conscientious discharge of all those duties which devolve
      upon the inheritor of a portion of the sovereignty of this great
      republic.”

McDuffy v. Sec’y of Exec. Office of Educ., 615 N.E.2d 516, 555 (Mass.

1993) (quoting The Massachusetts System of Common Schools: Tenth

Annual Report of the Massachusetts Board of Education 17 (1849)).

President Grant drove the point home when speaking in Des Moines on
                                    104

September 25, 1875, when he declared that “the free school is the

promoter of that intelligence which is to preserve us as a free nation.”

Jacob Armstrong Swisher, Iowa Biographical Series: Leonard Fletcher

Parker 69 (1927). Grant further noted that if another contest of national

existence were to arrive in the future, it would be “between patriotism

and intelligence on the one side, and superstition, ambition and

ignorance on the other.” Id. at 69–70.

      The relationship of education to democratic government was

recognized by John W. Studebaker, a distinguished Iowan who served as

Des Moines School Superintendent before being appointed United States

Commissioner     of   Education.     Studebaker     observed   that   “good

government through democratic processes can be preserved . . . only by

definitely planned development of the means of public enlightenment.”

John W. Studebaker, The American Way: Democracy at Work in the

Des Moines Forums 15–16 (1935).

      The United States Supreme Court recognized the linkage between

education and democracy in San Antonio Independent School District v.

Rodriguez, 411 U.S. 1, 36, 93 S. Ct. 1278, 1298, 36 L. Ed. 2d 16, 44

(1973), when it noted that democracy depends upon “an informed

electorate: a voter cannot cast his ballot intelligently unless his reading

skills and thought processes have been adequately developed.”             A

corollary of the right to vote is the right to be educated so as to exercise

that right in an effective manner.    See Susan H. Bitensky, Theoretical

Foundations for a Right to Education Under the U.S. Constitution: A

Beginning to the End of the National Education Crisis, 86 Nw. U. L. Rev.

550, 606 (1992) [hereinafter Bitensky].

      Certainly the parade of Iowa’s governors cited earlier would

wholeheartedly endorse the concept that education is critically important
                                       105

to the functioning of democratic government.               Today, without an

educated people, spectacle, celebrity culture, escalating emotional

outburst, and demand for instant gratification will replace rationality,

tolerance, and mutual respect in the voting booths and in the public

square.

      In addition, education is now critical to meaningful enjoyment of

life in Iowa and the United States.      The prospects of a person who is

uneducated are now marginal at best.                Farming is increasingly

industrialized and requires knowledge of markets, fertilizers, hybrids,

and planning techniques. Manufacturing jobs are no longer unskilled,

but require sophisticated knowledge, training, and skills. Ditches are no

longer dug by hand. If a citizen is to have a meaningful right to enjoy the

constitutionally protected interests in life, liberty, and property, the

citizen must have an adequate education. Justice Cardozo captured the

idea in his typically lyrical prose:

      “We are free only if we know, and so in proportion to our
      knowledge. There is no freedom without choice, and there is
      no choice without knowledge—or none that is not illusory.
      Implicit, therefore, in the very notion of liberty is the liberty
      of the mind to absorb and to beget.”

Bitensky, 86 Nw. U. L. Rev. at 550 (quoting Benjamin N. Cardozo, The

Paradoxes of Legal Science 104 (photo reprint 1982) (1928)).

      The importance of education in empowering individuals to

participate meaningfully in life did not escape school officials in Iowa

small towns. For instance, the bold statement “Knowledge is Power” was

emblazoned on the third story of a school house in Persia, Iowa in 1885.

See Camilla Dieber and Peggy Beedle, Country Schools for Iowa 9 (2002).

      Finally,   education    is   essential   to   the   development   of   an

autonomous individual that is the essence of human dignity.                  The
                                          106

Universal Declaration of Human Rights, which has been ratified by the

United States, declares that the right to education is a human right and

that the purpose of the human right is to provide for the “full

development of the human personality.” Universal Declaration of Human

Rights, G.A. Res. 217 (III) A, art. 26, § 2, U.N. Doc. A/RES/217(III) (Dec.

10, 1948). 34    As one commentator has noted, education “takes on the

status of a human right because it is integral to and enhances human

dignity through its fruits of knowledge, wisdom, and understanding” and

“a prerequisite for individuals to function as fully human beings in

modern society.”       Richard Pierre Claude, The Right to Education and

Human Rights Education, in Human Rights in the World Community:

Issues and Actions 211 (Richard Pierre Claude & Burns H. Veston eds.,

3d ed. 2006). A lack of education severely undermines the capacity of

the individual to make meaningful life choices with respect to marriage

and family, self-expression, political voice, religious observance, and

economic role and ambition. 35


        34My citation to the education provisions of the Universal Declaration of Human

Rights has drawn criticism today. The criticism might more appropriately be aimed at
Eleanor Roosevelt, who chaired the drafting committee that produced the Declaration,
or to the members of the United States Senate, which ratified it. I recognize that the
Declaration was designed to be nonbinding—indeed, the decision to use the term
“Declaration” was modeled on the United States Declaration of Independence. Of
course, I do not suggest that the participants in the Iowa constitutional conventions
relied on the Declaration, which was approved a hundred years later. I do suggest,
however, that the Declaration reinforces the widely accepted view that education is
broadly regarded as a basic human right and that it is integrally related to the
development of the individual. That point, it seems, has not been assailed.
       35In  looking at legal questions from a broad perspective for nonbinding but
instructive lessons, I am in good company. The leaders of the American Revolution and
the founding fathers certainly did. See, e.g., Bernard Bailyn, The Ideological Origins of
the American Revolution 23–44 (Enlarged ed. 1992) (citing extensive use of foreign
authorities in publications associated with the American Revolution); James Madison,
Notes of the Debates in the Federal Convention of 1787, at 54, 59, 63, 76, 83, 100, 126,
132, 136–37, 141, 143, 145, 161, 205, 207, 214–15, 223, 241, 255–56, 307, 334, 359,
364, 418, 463 (Bicentennial ed., W.W. Norton & Co. 1987) (discussing French judiciary;
pluralistic military command in Holland; Roman tribunals; the union of England and
                                          107


_______________________________
Scotland; Dutch seduction into the views of France; lessons of Dutch, Swiss, Helvetic,
Germanic, Lycian, and Belgic confederacies; dangers of corruption, as illustrated by
leadership in Sweden, France, and England; Polish and German elections; analogy to
the law of nations in fashioning relationship between the state and federal governments;
experience in Persia, Austria, France, Switzerland, and Russia; commerce involving
France, England, and Spain; means of defense against a foreign danger in Rome and
Europe as examples of instruments of tyranny; importance of an efficient government,
as illustrated by German and Grecian experiences; Polish elections; military cooperation
between France and Holland; Athenians and foreign affairs; the Kingdom of France as
governing by force; separation of powers and the Ephori at Sparta; structures in
preexisting state constitutions; England and Great Britain); see also The Federalist No.
18 (Alexander Hamilton & James Madison) (stating the “Achaean league . . . was
another society of Grecian republics, which supplies us with valuable instruction”),
No. 19 (Alexander Hamilton & James Madison) (referencing the governments of Greece,
Sweden, Germany, and the United Netherlands), No. 39 (James Madison) (discussing
the characteristics of a republican form of government and comparing the governments
of Holland, Venice, Poland, and England), No. 43 (James Madison) (discussing Sparta,
Greece, and Crete), No. 52 (James Madison) (referencing Irish elections), No. 75
(Alexander Hamilton) (citing examples of the Roman Tribuneship, the Polish Diet, and
the States-General of the Netherlands). In addition, the founders were all familiar with
international authorities such as Vattel, Grotius, Montesquieu, Burlamaqui, and
Pufendorf. See generally Donald S. Lutz, The Relative Influence of European Writers on
Late Eighteenth-Century American Political Thought, 78 Am. Pol. Sci. Rev. 189, 193–94
(1984).
        References to international law and experience have been made by distinguished
Justices of the United States Supreme Court, including, but not limited to, Justices
Marshall, Story, Holmes, Frankfurter, Jackson, Rehnquist, Breyer, Ginsberg, and
Kennedy. See, e.g., Roper v. Simmons, 543 U.S. 551, 577–78, 125 S. Ct. 1183, 1199–
1200, 161 L. Ed. 2d 1, 26–27 (2005) (Kennedy, J.); Grutter v. Bollinger, 539 U.S. 306,
344, 123 S. Ct. 2325, 2347, 156 L. Ed. 2d 304, 342 (2003) (Ginsburg, J., concurring);
Printz v. United States, 521 U.S. 898, 976–77, 117 S. Ct. 2365, 2405, 138 L. Ed. 2d
914, 970–71 (1997) (Breyer, J., dissenting); Washington v. Glucksberg, 521 U.S. 702,
718 n.16, 117 S. Ct. 2258, 2266 n.16, 138 L. Ed. 2d 772, 786 n.16 (1997) (Rehnquist,
C.J.); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 651–52, 72 S. Ct. 863,
878, 96 L. Ed. 1153, 1207–08 (1952) (Jackson, J., concurring); Rochin v. California, 342
U.S. 165, 170–71 & n.4, 72 S. Ct. 205, 208–09 & n.4, 96 L. Ed. 183, 189 & n.4 (1952)
(Frankfurter, J.); Block v. Hirsh, 256 U.S. 135, 155, 158, 41 S. Ct. 458, 459–60, 65 L.
Ed. 865, 870, 872 (1921) (Holmes, J.); Brown v. United States, 12 U.S. (8 Cranch) 110,
128–36, 3 L. Ed. 504, 510 (1814) (Marshall, C.J.); Brown, 12 U.S. at 131–38, 3 L. Ed. at
511–14 (Story, J., dissenting).
        Similarly, state court cases have often cited international norms in a wide
variety of cases. See, e.g., Sterling v. Cupp, 625 P.2d 123, 131 & n.21 (Or. 1981) (citing
the Universal Declaration of Human Rights in reviewing constitutionality of state law
allowing female officers to perform body searches of male inmates); Eggert v. City of
Seattle, 505 P.2d 801, 802 (Wash. 1973) (citing the Universal Declaration of Human
Rights in vindicating the right to freedom of movement); Pauley v. Kelley, 255 S.E.2d
859, 864 n.5 (W. Va. 1979) (citing the Universal Declaration of Human Rights in
support for state constitutional right to education).
                                           108

       I am firmly convinced that education is not just an important

interest.    It is a one-of-a-kind interest.          It goes to the very heart of

democratic government, to the essence of enjoyment of life itself, and to

the core of human dignity.                 Without education, our democratic

government will be undermined, the quality of life will deteriorate beyond

recognition, and the realization of autonomous personality required for

human dignity will become virtually impossible.

       IV. Overview of Iowa Constitutional Provisions.

       A. Positive Educational Provisions of the Iowa Constitution.

As indicated above, the United States Constitution says nothing about

education.     This is not surprising since it was universally assumed by




_______________________________
        The framers of the Iowa Constitution applied a broad perspective to their task as
well, specifically in the field of education. George W. Ells, in debating the importance of
education during the 1857 constitutional convention, observed:
       [I]n those countries of Europe where education has taken the deepest
       root, and been the most generally diffused among the masses, that the
       people are correspondingly steady, firm and abiding in their attachment
       to free and liberal institutions of all kinds. The Germans are a striking
       illustration of the truth of this assertion. With them, education is the
       rule, and ignorance the exception; while with the volatile Frenchman, the
       reverse is true.
1 Debates at 602. It is not surprising that our caselaw has on occasion cited maxims or
norms of international law. See Langlas v. Iowa Life Ins. Co., 245 Iowa 717, 718, 63
N.W.2d 885, 888 (1954) (citing international law treatise in case involving insurance
claim arising out of Korean war); Case v. Olson, 234 Iowa 869, 874, 14 N.W.2d 717, 720
(1944) (citing international law of war in case involving application of soldiers’
preference clause in civil service statute); Hill v. Baker, 32 Iowa 302, 310 (1871)
(execution of deed held invalid as contrary to international law); Morrison v. Springer, 15
Iowa 304, 316 (1863) (citing maxims of international law in jurisdictional matter).
        Consistent with the legal traditions exemplified by the framers of both the Iowa
and Federal Constitutions, the University of Iowa College of Law has a program in
international and comparative law.         Its website states that international and
comparative law “provides an essential theoretical foundation for all lawyers by
affording unique insight into the nature of law and legal process.” See The University of
Iowa College of Law, International and Comparative Law Program (last visited April 5,
2012), http://www.law.uiowa.edu/international/.
                                       109

the founders that the education of children and youth was the obligation

of the state and local government.

      Article IX of the Iowa Constitution of 1857 dealing with education

contains two divisions. The first division provides, among other things,

that “[t]he educational interest of the State, including Common Schools

. . . shall be under the management of a Board of Education.”          Iowa

Const. art. IX, div. l, § 1.   The board was required to “provide for the

education of all the youths of the State, through a system of Common

Schools.” Id. art. IX, div. 1, § 12.

      Article IX of the 1857 Iowa Constitution also contains a second

division.   The first sentence of section three of the second division

parallels the substantive provisions of the 1846 constitution by providing

that “[t]he General Assembly shall encourage, by all suitable means, the

promotion     of   intellectual,   scientific,   moral,   and   agricultural

improvement.” Id. art. IX, div. 2, § 3.

      The second sentence of section three is more complicated than the

first sentence. It provides, in relevant part, that the federal funds, funds

from estates with no heirs, and funds that the general assembly may

provide, “shall be inviolably appropriated to the support of Common

schools throughout the State.” Id.

      During the debates surrounding the education articles in the 1857

constitution, the convention rejected a proposal that schools should be

“free of charge and equally open to all.” 2 Debates at 825. The reason

for this rejection, however, was not based on a view that education was

not fundamentally important, but instead to ensure that schools in Iowa

could be racially segregated. Mr. Gillaspy, an opponent to the provision,

declared that “[i]f the people of this state are disposed to appropriate

money for the education of the blacks, let them do it in separate and
                                   110

distinct schools . . . .” Id. In response, William Penn Clark declared that

“our duty goes for providing every child in the State with an education.”

Id. at 826.    Eventually, a substitute amendment was offered that

provided “for the education of all the youths of the state, through a

system of common schools.” Id. at 935. Thus, while the rejection of the

proposed provision that schools be “free of charge and equally open to

all” demonstrates the racial prejudices held by some members of the

constitutional convention, it does not in any way undercut the

importance the Iowa framers placed on accessible public education

generally.

      Article IX, division one, section fifteen provided the general

assembly with an escape from vesting responsibility for education in the

hands of an independent board of education. Under section fifteen, the

general assembly was vested with the power after 1863 “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 1864, the general

assembly did just that.    As a result, the constitutional provisions of

article IX, division one, section one, vesting the power to provide

education in the board of education have no current effect.

      The question arises what we should make of the action of the

general assembly abolishing the board of education. It is clear that the

action renders inoperative the constitutional provisions vesting power

over education with the board of education, including the provision that

“[t]he Board of Education shall provide for the education of all the youths

. . . through a system of Common Schools.” See id. art IX., div. 1, § 12

(emphasis added).    While the board’s constitutional duty to maintain

common schools was clearly repealed, the duty of the state to “provide for
                                     111

the educational interest,” which by definition included “Common

Schools,” was not affected. See id. art. IX, div. 1, §§ 1, 15.

      That the only effect of the legislative abolition of the board of

education was to shift responsibilities for the provision of education as

required by article IX is demonstrated by the case of Clark v. Board of

Directors, 24 Iowa 266 (1868). Clark, which was decided four years after

the abolition of the board, addressed the validity of racial segregation in

Iowa public schools. Clark, 24 Iowa at 269–70. In concluding that racial

segregation in public schools was unlawful, we cited and relied upon

article IX, division 1, section 12, which provides that the board of

education shall provide “ ‘for the education of all the youths of the State,

through a system of common schools.’ ” Id. at 274 (quoting Iowa Const.

art. IX, div. 1, § 12). Clearly, the 1864 abolition of the board of education

did not affect the substantive requirements contained in article IX, but

merely shifted authority by abolishing the board and creating a

Superintendent of Public Instruction.      See id.; 1864 Iowa Acts ch. 52,

§§ 1–2, 5 (declaring that “the Board of Education of the State of Iowa is

hereby abolished,” providing for a Superintendent of Public Instruction,

and charging the Superintendent with the general supervision of “all the

Common Schools of the State”); see also Hume v. Indep. Sch. Dist., 180

Iowa 1233, 1241, 164 N.W. 188, 191 (1917) (citing but not relying on

article IX, division 1, section 12); Burdick v. Babcock, 31 Iowa 562, 571

(1871) (Cole, J., concurring) (stating “[o]ur constitution has clothed the

legislature with the power, and has expressly devolved upon it the duty

of ‘providing for the education of all the youths of the State through a

system of common schools’ ” (quoting Iowa Const. art. IX, div. 1, § 12)).

      The ongoing obligation of the state is also reflected in the language

of article IX, sections one and fifteen, but also demonstrated by the
                                    112

provisions of article IX, division two, section three, which provides for a

“perpetual fund” that is “inviolably appropriated to the support of

Common schools throughout the State.” Iowa Const. art. IX, div. 2, § 3.

It would make no sense to have a “perpetual fund” that is “inviolably

appropriated to the support of Common schools throughout the State” if

the state, in its discretion, could abolish common schools.         See id.

(emphasis added).

      Thus, the Iowa Constitution requires a system of common schools

to educate all youths throughout the state, but in terms of the

management of such common schools, it allows the general assembly to

“provide for the educational interest of the State” in a manner other than

through the board of education. See id. art. IX, div. 1, § 15. After 1863,

the legislature was free to choose to manage its common schools through

a superintendent of public instruction, a department of education, a

committee of scholars, or in “any other manner that to them shall seem

best and proper.” See id.

      The explicit Iowa constitutional provisions related to “provid[ing]

for the education of all the youths of the State, through a system of

Common Schools” and advancing “the educational interest of the State,

including Common Schools,” stand in stark contrast to the complete lack

of explicit provisions in the United States Constitution related to

education and reflect the fundamentally different traditional roles of state

and federal governments when it comes to the education of children and

youth. The Federal Constitution is generally a limited constitution with

the federal government only granted powers specifically authorized. In

contrast, the states have plenary legislative authority and have positive

commitments in the constitutional frameworks.         In Iowa, one of the

positive commitments in the Iowa Constitution is to the educational
                                           113

mission.    Scholars have suggested that the positive rights tradition of

state constitutions differs markedly from the negative rights tradition of

federal constitutional analysis. See Helen Hershkoff, Positive Rights and

State Constitutions: The Limits of Federal Rationality Review, 112 Harv. L.

Rev.   1131,    1134–37      (1999)    [hereinafter     Hershkoff].       While    the

enforcement      of   negative    rights    contained    in   the     United   States

Constitution generally has not required affirmative action by government,

DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 199,

109 S. Ct. 998, 1006, 103 L. Ed. 2d 249, 261 (1989), quite the opposite

is true with respect to positive obligations of state governments that, by

definition, require the state to take affirmative action to meet its

constitutional responsibilities.

       B. Privileges and Immunities Clause of the Iowa Constitution.

The Iowa Constitution has a privileges and immunities clause.                     The

provision is found in article I, section 6. This section 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.         The Iowa privileges and immunities clause

predates the Federal Privileges and Immunities and Equal Protection

Clauses of the Fourteenth Amendment.

       There has been much written about the relationship between state

privileges and immunities clauses and the Federal Equal Protection

Clause. 36 While the privileges and immunities clauses have generally not


        36See, e.g., David Schuman, The Right to “Equal Privileges and Immunities”: A

State’s Version of “Equal Protection,” 13 Vt. L. Rev. 221 (1988) [hereinafter Schuman];
Jeffrey M. Shaman, The Evolution of Equality in State Constitutional Law, 34 Rutgers
L.J. 1013 (2003) [hereinafter Shaman]; Jonathan Thompson, The Washington
Constitution’s Prohibition on Special Privileges and Immunities: Real Bite for “Equal
Protection” Review of Regulatory Legislation?, 69 Temp. L. Rev. 1247 (1996); Robert F.
                                      114

been construed narrowly, there is the notion that privileges and

immunities clauses were designed, in part, to prevent narrow classes of

people from getting special advantages from government, what might be

in today’s popular parlance be called crony capitalism.

      To Iowa’s first Territorial Governor Robert Lucas, however, the

privileges and immunities clause of the Northwest Ordinance was linked

to the right of citizens to obtain an education.         In his first inaugural

speech, Lucas juxtaposed the privileges and immunities clause with his

comments upon the need to develop education in the territory. 1

Shambaugh at 78.        Lucas saw the right to education as among the

“privileges” of citizens of the Iowa territory.

      In the nineteenth century, the United States Supreme Court was

inhospitable to claims brought under the Privileges and Immunities

Clause and the related Equal Protection Clause in the Federal

Constitution. In The Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 21

L. Ed. 394 (1872), the Court gave the Federal Privileges and Immunities

Clause of the Fourteenth Amendment an extraordinarily narrow

interpretation. In Plessy v. Ferguson, 163 U.S. 537, 16 S. Ct. 1138, 41

L. Ed. 256 (1896), the United States Supreme Court announced the

separate but equal doctrine, which stood as law for over fifty years until

it was finally overturned in Brown v. Board of Education, 347 U.S. 483,

74 S. Ct. 686, 98 L. Ed. 873 (1954). While the United States Supreme

Court was minimizing the Federal Privileges and Immunities Clause and

narrowly interpreting equal protection, however, the Iowa Supreme Court

was breathing life and meaning into state constitutional provisions

related to equality.
_______________________________
Williams, Foreword: The Importance of an Independent State Constitutional Equality
Doctrine in School Finance Cases and Beyond, 24 Conn. L. Rev. 675 (1992).
                                       115

         The dramatic story begins prior to statehood. In its first reported

case, In re Ralph, 1 Morris 1 (Iowa 1839), the Supreme Court of the

Territory of Iowa held that a slave who was voluntarily permitted to leave

Missouri and travel to Iowa was a free man as the law should “extend

equal protection to men of all colors and conditions.”            In re Ralph, 1

Morris at 6.     This holding, of course, was the precise opposite of the

approach taken by the United States Supreme Court in Dred Scott v.

Sandford, 60 U.S. (19 How.) 393, 15 L. Ed. 691 (1856), twenty years

later.

         After statehood, the tradition of In re Ralph was extended in Clark.

As discussed above, Clark held that a person cannot be denied

admission to a public school on account of race. Clark, 24 Iowa at 274.

Although Clark was based on statutory grounds, the decision included

sweeping language with constitutional overtones. Id. at 277. In Coger v.

Northwestern Union Packet Co., 37 Iowa 145, 153–55 (1873), this court,

relying upon article I, section 1 of the Iowa Constitution, refused to

endorse the separate but equal doctrine and instead held that persons of

color were entitled to be admitted as a steamboat passenger on equal

terms to white patrons. See Iowa Const. art. I, § 1 (1857) (“All men are,

by nature, free and equal”).

         Since the very beginning, we have interpreted Iowa’s privileges and

immunities      clause   in   a   fashion    dramatically   different   than   the

interpretation offered by the United States Supreme Court in The

Slaughter-House Cases. In more recent years, we have often looked to

federal equal protection precedent for its persuasive power in interpreting

our privileges and immunities provision. Callender v. Skiles, 591 N.W.2d

182, 187 (Iowa 1999). We have, however, jealously guarded our right to

engage in analysis under the Iowa Constitution that is independent from
                                    116

the interpretations of the United States Supreme Court under the

Federal Equal Protection Clause. Chi. Title Ins. Co. v. Huff, 256 N.W.2d

17, 23 (Iowa 1977); Davenport Water Co. v. Iowa State Commerce

Comm’n, 190 N.W.2d 583, 593 (Iowa 1971), superseded by statute, Iowa

Code § 17A.19(7) (1975), as recognized in Interstate Power Co. v. Iowa

State Commerce Comm’n, 463 N.W.2d 699, 702 (Iowa 1990).                On a

number of occasions, we have departed from directly applicable federal

precedent and engaged in independent analysis. See, e.g., Racing Ass’n

of Cent. Iowa v. Fitzgerald (RACI), 675 N.W.2d 1, 7 (Iowa 2004); Bierkamp

v. Rogers, 293 N.W.2d 577, 581–82 (Iowa 1980). When federal precedent

was lacking, we have relied on state constitutional grounds to decide

important issues.    See Varnum v. Brien, 763 N.W.2d 862, 906 (Iowa

2009).

      Our independent role in our application of equal protection

concepts pursuant to the privileges and immunities clause of the Iowa

Constitution is a firmly established feature of our legal tradition from the

very first days of statehood, is consistent with the evolving law in other

states, and is part of a celebrated tradition in Iowa.

      C. Substantive Due Process of the Iowa Constitution.               The

plaintiffs make a substantive due process claim under article I, section 9

of the Iowa Constitution. Article I, section 9 states, in relevant part, that

“no person shall be deprived of life, liberty, or property, without due

process of law.” Iowa Const. art. I, § 9.

      The Iowa constitutional provision is parallel to a similar provision

of the Fifth and Fourteenth Amendments of the United States

Constitution. As with other state constitutional provisions, we zealously

guard our ability to interpret the Iowa Constitution differently than the

interpretations of the United States Supreme Court under the federal due
                                   117

process provision.   State v. Feregrino, 756 N.W.2d 700, 704 n.1 (Iowa

2008).

      In Meyer v. Nebraska, 262 U.S. 390, 403, 43 S. Ct. 625, 628, 67

L. Ed. 1042, 1046–47 (1923), the United States Supreme Court

overturned a conviction of a school teacher who taught foreign languages

in public schools. In passing, the Court identified the right to acquire

useful knowledge as a liberty interest protected by the Fourteenth

Amendment. Meyer, 262 U.S. at 399–400, 43 S. Ct. at 626–27, 67 L. Ed.

at 1045. While not overruled, the outcome in Meyer was based on due

process methodology of the Lochner era and may not be reliable

precedent.

      The United States Supreme Court, however, has employed

substantive due process in a number of contexts in more recent years

that may be instructive in the present case. For instance, in Youngberg

v. Romeo, 457 U.S. 307, 324, 102 S. Ct. 2452, 2462, 73 L. Ed. 2d 28, 42–

43 (1982), the Supreme Court declared that persons subject to civil

commitment “enjoy[] constitutionally protected interests in conditions of

reasonable care and safety, reasonably nonrestrictive confinement

conditions, and such training as may be required by those interests.”

Justice Blackmun’s opinion in Jackson v. Indiana, 406 U.S. 715, 738, 92

S. Ct. 1845, 1858, 32 L. Ed. 2d 435, 450–51 (1972), suggested that due

process requires that the nature and duration of commitment must have

a reasonable relationship to the reasons for commitment.

      A case of potential significance is Wyatt v. Aderholt, 503 F.2d 1305

(5th Cir. 1974).   Aderholt involved a class action alleging that a state

school designed to habilitate the mentally handicapped was not providing

meaningful care.      Aderholt, 503 F.2d at 1306.          Judge Wisdom

characterized the issue as whether “federal district courts have the power
                                   118

to order state mental institutions to provide minimum levels of

psychiatric care and treatment to persons civilly committed to the

institutions.” Id. The Aderholt court unanimously decided the question

in the affirmative. Id. at 1319. It rejected the claims of Governor George

Wallace that providing adequate treatment for persons civilly confined

was a question of available funds. Id. at 1317–19.

      In light of these analogies, it can be asserted that, because

education is compulsory, it involves liberty and its deprivation triggers a

due process right that the infringement of liberty be reasonably related to

the intended purpose, namely, education.      See Bitensky, 86 Nw. U. L.

Rev. at 596 n.277; Gershon M. Ratner, A New Legal Duty For Urban

Public Schools: Effective Education in Basic Skills, 63 Tex. L. Rev. 777,

823–28 (1985) [hereinafter Ratner]; Note, A Right to Learn?      Improving

Educational Outcomes Through Substantive Due Process, 120 Harv. L.

Rev. 1323, 1328–32 (2007).

      Our prior precedents recognize a due process interest in adequate

education. In Exira Community School District v. State, 512 N.W.2d 787,

796 (Iowa 1994), we noted that a student has a due process right to an

“adequate education.” Thus, a finding in this case that there is a due

process right under the Iowa Constitution would not be breaking new

theoretical ground, but simply applying the tools present in existing

precedent.

      V. Overview of Education Cases.

      A. Introduction.    In this section, I provide an overview of two

important cases related to education, Serrano v. Priest, 487 P.2d 1241

(Cal. 1971) (Serrano I), and San Antonio Independent School District v.

Rodriguez, 411 U.S. 1, 93 S. Ct. 1278, 36 L. Ed. 2d 16 (1973). These
                                      119

cases set the stage for a more detailed analysis of the rich sources of

state constitutional law regarding educational issues.

       The survey will show that, even if this court were to apply the

San Antonio     framework    for    determining     whether   an   interest    is

“fundamental” for equal protection purposes, such a fundamental

interest would be present in light of the explicit Iowa constitutional

provisions related to education. Further, the survey will show that, while

the cases are divided, many state supreme courts have found a

fundamental interest in education because of the strong historical role of

state government in providing education to children and because of the

critical functional role of education in a democratic government.

       B. The California State Supreme Court Decision in Serrano I.

       1. Introduction. The first major case to consider a challenge to a

state system of education on equal protection grounds was Serrano I. In

Serrano    I,   school   children    and    their   parents   challenged      the

constitutionality of public school financing in the State of California.

Serrano I, 487 P.2d at 1244.        The plaintiffs claimed that reliance on

property taxes to fund public schools caused substantial disparities in

the quality and nature of educational opportunities available to them. Id.

The district court granted the defendants’ demurrer (motion to dismiss)

and the plaintiffs appealed. Id. at 1245.

       2. California’s education clause. The Serrano I court rejected the

claim that California’s funding of public schools violated the education

clause of the California Constitution. Id. at 1249; see Cal. Const. art. IX,

§ 5.   The court held that while California was required to maintain a

“system” of common schools, a “system” of common schools meant only a

prescribed course of study and educational progression from grade to

grade. Serrano I, 487 P.2d at 1248–49. The Serrano I court reasoned
                                    120

that the education clause, standing alone, did not require equality of

spending. Id.

      3. Equal protection under the Fourteenth Amendment.                 The

Serrano I court next turned to the claim that California’s education

system   violated   the   Equal   Protection   Clause   of   the    Fourteenth

Amendment of the United States Constitution. Citing the poll tax case of

Harper v. Virginia State Board of Elections, 383 U.S. 663, 86 S. Ct. 1079,

16 L. Ed. 2d 169 (1966), the court concluded that the reliance on

property taxes that produced financial disparities available to school

districts amounted to a classification based upon wealth of the district.

Serrano I, 487 P.2d at 1250. The court rejected the state’s argument that

because the discrimination was based on district wealth, no equal

protection claim could be brought. Id. at 1251–52. The court further

concluded that when a classification was based on wealth, no allegation

of purposeful or intentional discrimination was required. Id. at 1253–55.

The court noted that in Harper, the poll tax was neutral on its face but

was clearly discriminatory in effect. Id. at 1254. The court further noted

that while the United States Supreme Court had not yet weighed in on

the issue, the California Supreme Court had previously held that de facto

racial segregation violated the Fourteenth Amendment.              Id. at 1255

(citing S.F. Unified Sch. Dist. v. Johnson, 479 P.2d 669 (Cal. 1971), and

Jackson v. Pasadena City Sch. Dist., 382 P.2d 878 (Cal. 1963)).

      The Serrano I court also addressed the question of whether the

asserted educational interest of the plaintiffs amounted to a fundamental

interest for purposes of equal protection analysis. Serrano I, 487 P.2d at

1255–59. The court noted that education plays an indispensible role in

modern industrial society in two respects. Education, according to the

court, “is a major determinant of an individual’s chances for economic
                                     121

and social success.” Id. at 1255–56. Second, education has “a unique

influence on a child’s development as a citizen and his participation in

political and community life.”       Id. at 1256.     The court compared

education with other fundamental rights such as the right to have a free

transcript or a court appointed lawyer.       Id. at 1257–58.     The court

concluded that education compared favorably in importance.                Id.

According to the court, education, aside from reducing the crime rate,

supports “each and every other value of a democratic society—

participation, communication, and social mobility, to name but a few.”

Id. at 1258 (citing the seminal work of John E. Coons, William H. Clune

III & Stephen D. Sugarman, Educational Opportunity: A Workable

Constitutional Test for State Financial Structures, 57 Cal. L. Rev. 305

(1969)).

        Having determined that the financing scheme in California

discriminated against school districts on the basis of wealth and affected

fundamental interests, the Serrano I court proceeded to apply a

compelling state interest standard to determine its validity.     Serrano I,

487 P.2d at 1259–63.       Not surprisingly, the court found the scheme

invalid under the demanding test. Id. at 1263. The court rejected the

asserted state interest of local control, noting that local control could be

preserved regardless of the method of financing public education. Id. at

1260.      With respect to the claim that the system encouraged

decentralized decision making at the local level, the court found that

“such fiscal freewill is a cruel illusion for the poor school districts.” Id.

According to the court,
        so long as the assessed valuation within a district’s
        boundaries is a major determinant of how much it can spend
        for its schools, only a district with a large tax base will be
        truly able to decide how much it really cares about
        education.
                                     122

Id.   A poor district, according to the court, cannot tax itself into an

excellence that its tax rolls cannot provide. Id.

       4. Privileges   and   immunities    and    uniformity   clauses   of   the

California Constitution. While the Serrano I court focused primarily on

the Equal Protection Clause of the Fourteenth Amendment, footnote

eleven of the opinion indicated that a violation of the California

Constitution article I, sections 11 and 21 were also present. Id. at 1249

n.11. Section 11 provided that “ ‘[a]ll laws of a general nature shall have

a uniform operation,’ ” while section 21 provided that “ ‘[n]o special

privileges or immunities shall ever be granted . . . nor shall any citizen,

or class of citizens, be granted privileges or immunities which, upon the

same terms, shall not be granted to all citizens.’ ” Id. (quoting article I,

sections 11 and 21 of the California Constitution). The Serrano I court

observed in the footnote that ordinarily the court construed these state

provisions as “ ‘substantially the equivalent’ of the equal protection

clause of the Fourteenth Amendment.”             Id. (quoting Dep’t of Mental

Hygiene v. Kirchner, 400 P.2d 321, 322 (Cal. 1965)).

       5. Summary.        As a result, the Serrano I court reversed the

dismissal of the action by the trial court primarily on federal

constitutional grounds.      On remand, the court stated that the district

court should engage in further proceedings, and if it entered judgment

against the defendants, it could do so “in such a way as to permit an

orderly transition from an unconstitutional to a constitutional system of

school financing.” Id. at 1266.

       C. Federal Developments: San Antonio.

       1. Introduction.    The United States Supreme Court took up the

issue of disparities of education in San Antonio.        In this case, school

children and their parents brought a class action on behalf of all children
                                     123

who live in school districts with low property valuations attacking the

Texas method of financing public education.      Rodriguez v. San Antonio

Indep. Sch. Dist., 337 F. Supp. 280, 281 (W.D. Tex. 1971).

      After a trial in which testimony and documentary evidence was

presented, a three judge panel of district court judges, relying in part on

Serrano I, concluded that the plaintiffs had demonstrated that the Texas

scheme of financing public education violated the Equal Protection

Clause of the Fourteenth Amendment. Id. Noting that wealthy school

districts had more educational options than poorer ones, the district

court concluded that “the quality of public education may not be a

function of wealth, other than the wealth of the state as a whole.” Id. at

284. By a narrow 5–4 margin, the United States Supreme Court reversed

the district court.   San Antonio, 411 U.S. at 6, 93 S. Ct. at 1282, 36

L. Ed. 2d at 27.

      2. Focus of San Antonio: Does strict scrutiny apply to parity claims

under the Equal Protection Clause? In an opinion by Justice Powell, the

San Antonio majority first concluded that the plaintiffs failed to make a

showing of wealth discrimination sufficient to trigger strict scrutiny. Id.

at 22–23, 93 S. Ct. at 1291, 36 L. Ed. 2d at 36–37. The San Antonio

majority concluded that the class of persons in the school districts

attended by plaintiffs was ill defined. Id. Although the school districts

generally had less wealth, students within the school districts were not

uniformly poor. Id. According to the San Antonio majority, there was no

basis in the record to conclude that the poorest people were concentrated

in the poorest districts. Id. at 23, 93 S. Ct. at 1291, 36 L. Ed. 2d at 37

(emphasis added). As a result, the class of plaintiffs was not sufficiently

related to wealth to trigger strict scrutiny.
                                          124

       In reaching its conclusion, the San Antonio majority noted that no

claim had been made that the plaintiffs suffered “an absolute deprivation

of the desired benefit.” Id. The San Antonio majority emphasized that

“the Equal Protection Clause does not require absolute equality or

precisely equal advantages.” Id. at 24, 93 S. Ct. at 1291, 36 L. Ed. 2d at

37.   The San Antonio majority further observed that Texas authorities

asserted the plaintiffs were receiving an “adequate” education and that

“[n]o proof was offered at trial persuasively discrediting or refuting the

State’s assertion.” 37 Id. at 24, 93 S. Ct. at 1292, 36 L. Ed. 2d at 38.

       In contrast to the California Supreme Court in Serrano I, the San

Antonio majority also determined that while education was an important

interest, it did not amount to a fundamental interest under the Federal

Constitution.     Citing Brown, the San Antonio majority recognized “the

vital role of education in a free society.” Id. at 30, 93 S. Ct. at 1295, 36

L. Ed. 2d at 41. Yet, the Court noted the power of the dissent in Shapiro

v. Thompson, 394 U.S. 618, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969), in

which Justice Harlan cautioned that fundamental rights doctrine should

not extend to “ ‘[v]irtually every state statute’ ” that affects important

rights. Id. at 31, 93 S. Ct. at 1295, 36 L. Ed. 2d at 41 (quoting Shapiro,

394 U.S. at 661, 89 S. Ct. at 1345, 22 L. Ed. 2d at 631 (Harlan, J.,

dissenting), overruled in part on other grounds by Edelman v. Jordan, 415

U.S. 651, 671, 94 S. Ct. 1347, 1359–60, 39 L. Ed. 2d 662, 677 (1974)).




       37In Papasan v. Allain, 478 U.S. 265, 285, 106 S. Ct. 2932, 2944, 92 L. Ed. 2d
209, 232 (1986), Justice White noted that the issue of whether there was a fundamental
right to a minimally adequate education was not definitively resolved in San Antonio.
See also Preston C. Green & Bruce D. Baker, Circumventing Rodriguez: Can Plaintiffs
Use the Equal Protection Clause to Challenge School Finance Disparities Caused by
Inequitable State Distribution Policies?, 7 Tex. F. on C.L. & C.R. 141, 150 (2002) (noting
unresolved question of federal law).
                                    125

      In order to cabin the fundamental rights doctrine, the San Antonio

majority held that a fundamental right under the Federal Equal

Protection Clause is one that is explicitly or implicitly afforded protection

in the United States Constitution.        Id. at 33, 93 S. Ct. at 1297, 36

L. Ed. 2d at 43. Fundamental rights under the Federal Constitution thus

do not arise from an “ad hoc determination as to the social or economic

importance of that right.” Id. at 32, 93 S. Ct. at 1296, 36 L. Ed. 2d at 42.

      The San Antonio majority’s test of what amounts to a fundamental

interest is noteworthy because it highlights the difference between

Federal and State Constitutions.      Under the test of the San Antonio

majority, it is clear that education is not a fundamental interest under

the Federal Constitution because nowhere is education explicitly or

implicitly mentioned in the text. The opposite, of course, is true of state

constitutions, which routinely contain explicit constitutional provisions

relating to education that invariably include a duty to provide education

to its citizens.    A state court desiring to follow the San Antonio

formulation for determining whether an interest is fundamental would be

compelled to find such an interest in light of the prominent and explicit

role of education in the state constitution.

      As in its discussion regarding the question of whether the plaintiffs

demonstrated discrimination on the basis of wealth, the San Antonio

majority emphasized in its discussion of fundamental interests that

“[e]ven if it were conceded that some identifiable quantum of education is

a constitutionally protected prerequisite to the meaningful exercise of

either right” there was no indication in the record that the present level

of expenditures in the schools which the plaintiffs attended fell short. Id.

at 36–37, 93 S. Ct. at 1298–99, 36 L. Ed. 2d at 45. The San Antonio

majority noted that “no charge fairly could be made that the system fails
                                     126

to provide each child with an opportunity to acquire the basic minimum

skills necessary for the enjoyment of the rights of speech and of full

participation in the political process.” Id. at 37, 93 S. Ct. at 1299, 36

L. Ed. 2d at 45.

      3. Impact of federalism and deference to states. The San Antonio

majority noted that “a century of Supreme Court adjudication under the

Equal Protection Clause affirmatively supports” the application of a

rational basis test to the Texas educational finance structure. Id. at 40,

93 S. Ct. at 1300, 36 L. Ed. 2d at 47. The San Antonio majority stressed

that the field of taxation had been a traditional area of deference. Id.

Further, the San Antonio majority recognized that the field of education

involved a number of complex issues that ordinarily should be left to the

legislative process. Id. at 42–43, 93 S. Ct. at 1301–02, 36 L. Ed. 2d at

48–49.

      Any Supreme Court review of legislation involves deference issues,

and many constitutional questions before the Court can be quite

complex.   What made the case especially troubling to the San Antonio

majority was the strong federalism concerns underlying its conclusion

that strict scrutiny of state school finance laws was inappropriate. The

San Antonio majority noted the implications of the case for the

relationship between national and state power under the federal system.

Id. at 44, 93 S. Ct. at 1302, 36 L. Ed. 2d at 49. The San Antonio majority

declared “it would be difficult to imagine” a case with greater impact on

the federal system than the case before the Court in which the Court is

urged to “abrogate systems of financing public education presently in

existence in virtually every State.” Id.

      4. Application of rational basis test.   After determining that the

proper standard of review was the traditional rational basis standard, the
                                     127

San Antonio majority proceeded to consider the merits of the plaintiffs’

claim.      The three judge district court had concluded based on a

substantial record that the Texas system failed even “to establish a

reasonable basis” for a system that results in different levels of per pupil

expenditure. Rodriguez, 337 F. Supp. at 284.

         The San Antonio majority disagreed with the district court,

concluding that local control provided a sufficient rational basis for the

funding scheme. The San Antonio majority emphasized that the Texas

system of school finance assured “a basic education” for every child in

the state. San Antonio, 411 U.S. at 49, 93 S. Ct. at 1305, 36 L. Ed. 2d at

52.   Local control, according to the San Antonio majority, is vital to

continued public support for education, and it means the freedom to

devote more funds to education through local taxes.       Id. at 49–50, 93

S. Ct. at 1305, 36 L. Ed. 2d at 52. The San Antonio majority noted that

while poor school districts had reduced ability to make free decisions

regarding how much they spend on education, they still “retain under

the present system a large measure of authority as to how available

funds will be allocated.” Id. at 51, 93 S. Ct. at 1306, 36 L. Ed. 2d at 53.

The state’s interest in maintenance of local control in education thus

satisfied the rational basis test under the Federal Equal Protection

Clause.

         5. Dissents.   The majority opinion in San Antonio drew dissents

from Justices Brennan, White, and Marshall.              Justice Brennan

challenged the holding of the majority that education did not amount to

a fundamental interest. He noted that education was inextricably linked

to constitutional rights of voting and free speech and that, as a result,

education amounted to a fundamental interest for purposes of equal
                                        128

protection. Id. at 62–63, 93 S. Ct. at 1312, 36 L. Ed. 2d at 60 (Brennan,

J., dissenting).

      Justice White attacked the majority’s conclusion that local control

justified the Texas finance scheme. Id. at 64–65, 93 S. Ct. at 1312–13,

36 L. Ed. 2d at 61–62 (White, J., dissenting).             He asserted that while

local control might be a valid state interest, the means chosen by Texas

did not advance it. Specifically, Justice White noted that districts with a

low tax base did not have an effective local option choice of increasing

funds available for education. Id. He further concluded that a class was

obviously present for equal protection purposes, namely, the persons

who find themselves in a low property value school district. Id. at 69, 93

S. Ct. at 1315, 36 L. Ed. 2d at 64.

      Justice      Marshall,   joined   by     Justice   Douglas,   provided     the

lengthiest dissent.     He found it an inescapable fact that if one school

district has more funds available per pupil than another, the former will

have a greater choice in educational planning than the latter. Id. at 83–

84, 93 S. Ct. at 1322, 36 L. Ed. 2d at 72 (Marshall, J., dissenting). He

attacked the majority’s notion that Texas provided an “adequate”

education, noting that the Court had never before suggested that

because    some      “adequate”   level   of    benefits    is   provided   to   all,

discrimination in the provision of services is acceptable. Id. at 88–89, 93

S. Ct. at 1325, 36 L. Ed. 2d at 74–75. He rejected the rigidified tiered

approach to equal protection, calling instead for the adoption of a more

flexible test that balanced the interests of the party challenging the

classification against the state’s purported interest in sustaining the

statute. Id. at 98–110, 93 S. Ct. at 1330–36, 36 L. Ed. 2d at 81–88. In

any event, Justice Marshall concluded that education certainly was a

“fundamental” interest in light of its unique status in society and its
                                   129

nexus with other protected constitutional rights. Id. at 111, 93 S. Ct. at

1336–37, 36 L. Ed. 2d at 88.

      6. Summary.     The San Antonio majority rejected a federal equal

protection claim when the plaintiff sought parity in educational

expenditures. The San Antonio majority was particularly concerned that

if strict scrutiny would apply to such sweeping claims, thousands of

state statutes would be invalidated.     The Court expressly reserved the

question, however, of whether strict scrutiny would apply where a state

deprived children of an adequate education.

      Further, the San Antonio Court adopted a standard for determining

whether an asserted interest or right is fundamental. While not binding

on a state court, the methodology, if followed, would lead to the

conclusion that education, which is the subject of explicit state

constitutional provisions, is a fundamental interest for equal protection

purposes.

      D. The California State Court Response: Serrano II.             After

San Antonio, the California Supreme Court in Serrano v. Priest, 557 P.2d

929 (Cal. 1976) (Serrano II), was asked to reconsider its decision that the

California system of financing education was constitutionally infirm.

During the trial proceedings resulting from Serrano I, San Antonio was

decided. The trial court, however, concluded that the financing scheme

violated the privileges and immunities and uniform laws clauses of the

California Constitution.   Serrano II, 557 P.2d at 931.   The defendants

appealed. Id.

      In Serrano II, the California Supreme Court declined to follow

San Antonio in its interpretation of the state constitution.   Id. at 951.

The Serrano II court emphasized that while the state equal protection

provisions were “substantially the equivalent” of the guarantees of the
                                          130

Fourteenth Amendment, they possessed “an independent vitality which,

in a given case, may demand an analysis different from that which would

obtain if only the federal standard were applicable.”               Id. at 950.     The

Serrano II court noted that considerations of federalism, which played an

important part in San Antonio, had no application to the judgment of a

state supreme court. Id. at 948–49. Further, while the Serrano II court

did not claim expertise on school financing, it noted it had the benefit of

4000 pages of testimonial transcript, replete with the opinions of experts,

and exhaustive findings of the district court. Id. at 952. In determining

whether a right is “fundamental” for purposes of the California equal

protection clause, the Serrano II court rejected the San Antonio test. Id.

Instead, the Serrano II court declared that it would determine which

legislative classifications were subject to strict scrutiny based upon the

impact on those rights and liberties which “lie at the core of our free and

representative form of government.” Id.

       E. Subsequent Education Cases Based on State Constitutions.

       1. Overview of state court cases subsequent to San Antonio. After

Serrano I, San Antonio, and Serrano II, a significant number of states

considered challenges to state schemes of providing education. Plaintiffs

challenging state educational frameworks in state courts generally

launched double-barreled attacks. 38            First, plaintiffs claimed that the

       38See, e.g., Op. of the Justices, 624 So. 2d 107, 112 (Ala. 1993); Roosevelt
Elementary Sch. Dist. No. 66 v. Bishop, 877 P.2d 806, 811–12 (Ariz. 1994); DuPree v.
Alma Sch. Dist. No. 30, 651 S.W.2d 90, 91 (Ark. 1983); Lujan v. Colo. State Bd. of Educ.,
649 P.2d 1005, 1010–11 (Colo. 1982); Horton v. Meskill, 376 A.2d 359, 361 (Conn.
1977); McDaniel v. Thomas, 285 S.E.2d 156, 157 (Ga. 1981); Thompson v. Engelking,
537 P.2d 635, 636 (Idaho 1975); Comm. for Educ. Rights v. Edgar, 672 N.E.2d 1178,
1182 (Ill. 1996); Unified Sch. Dist. No. 229 v. State, 885 P.2d 1170, 1173 (Kan. 1994);
Rose v. Council for Better Educ., Inc., 790 S.W.2d 186, 190 (Ky. 1989); Hornbeck v.
Somerset Cnty. Bd. of Educ., 458 A.2d 758, 764 (Md. 1983); McDuffy, 615 N.E.2d at
522; Helena Elementary Sch. Dist. No. 1 v. State, 769 P.2d 684, 685 (Mont. 1989);
Campaign for Fiscal Equity, Inc. v. State, 655 N.E.2d 661, 663 (N.Y. 1995); Leandro v.
State, 488 S.E.2d 249, 252 (N.C. 1997); City of Pawtucket v. Sundlun, 662 A.2d 40, 42
                                         131

educational structures violated the state education clauses in the state

constitutions.     Second, the plaintiffs asserted that the state education

schemes violated equal protection under the state constitutions. These

theories, while pled separately, often operated in tandem with one

another.       In a few states, plaintiffs have also included challenges to

educational structures based on substantive due process. 39

       While the cases often turn upon the specific language of statutes

and the nature of the factual records that are developed, the post-San

Antonio state supreme court cases in which plaintiffs challenging state

educational frameworks prevail are in the majority, 40 while those denying

relief constitute a substantial minority. 41 Interestingly, the jurisdictions

where state supreme courts have departed from San Antonio include

Texas, where the state supreme court invalidated the same school
_______________________________
(R.I. 1995); Abbeville Cnty. Sch. Dist. v. State, 515 S.E.2d 535, 538 (S.C. 1999); Tenn.
Small Sch. Sys. v. McWherter, 851 S.W.2d 139, 140 (Tenn. 1993); Edgewood Indep. Sch.
Dist. v. Kirby, 777 S.W.2d 391, 392 (Tex. 1989); Brigham v. State, 692 A.2d 384, 385
(Vt. 1997); Scott v. Commonwealth, 443 S.E.2d 138, 140 (Va. 1994); Pauley, 255 S.E.2d
at 861; Kukor v. Grover, 436 N.W.2d 568, 570 (Wis. 1989).
        39Ala. Coal. for Equity, Inc. v. Hunt, CV-90-883-R, CV-91-0117, 1993 WL 204083

(Ala. Cir. Ct. April 1, 1993).
        40See Bishop, 877 P.2d at 816; DuPree, 651 S.W.2d at 93; Horton, 376 A.2d at

374–75; Rose, 790 S.W.2d at 189; McDuffy, 615 N.E.2d at 555–56; Helena Elementary
Sch. Dist. No. 1, 769 P.2d at 685; Claremont Sch. Dist. v. Governor, 635 A.2d 1375, 1376
(N.H. 1993); Campaign for Fiscal Equity, Inc., 655 N.E.2d at 663; Leandro, 488 S.E.2d at
255; Abbeville Cnty. Sch. Dist., 515 S.E.2d at 538; Tenn. Small Sch. Sys., 851 S.W.2d at
141; Kirby, 777 S.W.2d at 392; Brigham, 692 A.2d at 385; Seattle Sch. Dist. No. 1 v.
State, 585 P.2d 71, 92 (Wash. 1978); Pauley, 255 S.E.2d at 878; Washakie Cnty. Sch.
Dist. No. One v. Herschler, 606 P.2d 310, 337 (Wyo. 1980).
       41See   Matanuska-Susitna Borough Sch. Dist. v. State, 931 P.2d 391, 394 (Alaska
1997); Lujan, 649 P.2d at 1010–11; Coal. for Adequacy & Fairness in Sch. Funding, Inc.
v. Chiles, 680 So. 2d 400, 402 (Fla. 1996), superseded by amendment, Florida Const.
art. IX, § 1 (1998 amend.), as recognized in Bush v. Holmes, 919 So. 2d 392 (Fla. 2006);
McDaniel, 285 S.E.2d at 168; Comm. for Educ. Rights, 672 N.E.2d at 1180–81; Montoy v.
State, 120 P.3d 306, 308 (Kan. 2005); Sch. Admin. Dist. No. 1 v. Comm’r, 659 A.2d 854,
855 (Me. 1995); Hornbeck, 458 A.2d at 790; Skeen v. State, 505 N.W.2d 299, 320 (Minn.
1993); Neb. Coal. for Educ. Equity & Adequacy v. Heineman, 731 N.W.2d 164, 169 (Neb.
2007); Okla. Educ. Ass’n v. State ex rel. Okla. Legislature, 158 P.3d 1058, 1061 (Okla.
2007); Sundlun, 662 A.2d at 42.
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financing arrangements that the United States Supreme Court approved

in San Antonio.      See Edgewood Indep. Sch. Dist. v. Kirby, 777 S.W.2d

391, 392 (Tex. 1989). In the minority of cases lost by plaintiffs, some

may be characterized as providing mixed results, such as where the

courts recognized or at least reserved the possibility of a successful claim

but found the facts insufficient to support them. 42 Many of the cases

also triggered strong dissents. 43

       Many of the decisions are also based upon extensive records

developed by trial courts. 44          In some cases where the trial courts

dismissed education claims without developing an evidentiary record,

reversal has occurred. See, e.g., Idaho Sch. for Equal Educ. Opportunity v.

Evans, 850 P.2d 734−35 (Idaho 1993).

       2. Obstacles to judicial review: Political question and justiciability

doctrines.      The post-San Antonio state court cases have considered a



       42Matanuska-Susitna    Borough Sch. Dist., 931 P.2d at 399–401 (holding equal
protection claim challenging school finance was subject to sliding scale scrutiny under
state equal protection clause, but no evidence presented to show that plaintiffs were
disparately affected by finance system); Sch. Admin. Dist. No. 1, 659 A.2d at 857 n.5
(stating allegations did not claim education fell beneath the basic minimum skills
necessary for the enjoyment of rights of speech and full participation in the political
process); Skeen, 505 N.W.2d at 302–03 (noting the plaintiffs conceded that they
received an adequate education, therefore satisfying the fundamental right to a general
and adequate education); Scott, 443 S.E.2d at 142 (holding education is a fundamental
right, but finding no violation on the facts); Kukor, 436 N.W.2d at 579 (finding equal
opportunity in education is a fundamental right, but no violation on facts).
       43See,  e.g., Coal. for Adequacy & Fairness, 680 So. 2d at 410–11 (Anstead, J.,
dissenting in part); Montoy, 120 P.3d at 311–18 (Beier, J., concurring); Lujan, 649 P.2d
at 1028–32 (Dubofsky, J., dissenting); Lujan, 649 P.2d at 1032–48 (Lohr, J., dissenting);
Rose, 790 S.W.2d at 220–29 (Vance, J., dissenting); Hornbeck, 458 A.2d at 791–805
(Cole, J., dissenting); McDuffy, 615 N.E.2d at 556–57 (O’Connor, J., concurring in part
& dissenting in part); Kukor, 436 N.W.2d at 587–94 (Bablitch, J., dissenting).
       44See, e.g., Lake View Sch. Dist. No. 25 v. Huckabee, 91 S.W.3d 472, 479 (Ark.
2002) (noting the trial involved nineteen days, thirty-six witnesses, and 187 exhibits);
DuPree, 651 S.W.2d at 95 (noting trial with thirty-nine witnesses, 287 exhibits, and
7400 pages of testimony); Horton, 376 A.2d at 361 (citing “thorough and exhaustive
record submitted by the trial court”).
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number of obstacles to judicial review.        The main obstacles are the

political question doctrine and the related doctrine of justiciability.

      With respect to the political question doctrine, state courts

receptive to education claims have generally found that courts have a

duty to decide cases brought before them by the parties.         The duty of

courts to declare what the law is has sometimes been expressed in

forceful terms.    For example, the Kentucky Supreme Court in Rose

declared that “[t]o avoid deciding the case because of ‘legislative

discretion’ . . . would be a denigration of our own constitutional duty. To

allow the General Assembly . . . to decide whether its actions are

constitutional is literally unthinkable.” Rose v. Council for Better Educ.,

Inc., 790 S.W.2d 186, 209 (Ky. 1989). Similarly, in DeRolph v. State, the

Ohio Supreme Court declared:

      We will not dodge our responsibility by asserting that this
      case involves a nonjusticiable political question. To do so is
      unthinkable. We refuse to undermine our role as judicial
      arbiters and to pass our responsibilities onto the lap of the
      General Assembly.

677 N.E.2d 733, 737 (Ohio 1997); see also Conn. Coal. for Justice in

Educ. Funding, Inc. v. Rell, 990 A.2d 206, 223 (Conn. 2010) (noting “ ‘it is
well within the province of the judiciary to determine whether a

coordinate branch of government has conducted itself’ in accordance

with ‘the authority conferred upon it by the constitution’ ” (quoting Office

of the Governor v. Select Comm. of Inquiry, 858 A.2d 709, 730 (Conn.

2004))); Evans, 850 P.2d at 734 (“[W]e decline to accept the respondents’

argument that the other branches of government be allowed to interpret

the constitution for us. That would be an abject abdication of our role in

the American system of government.”); McDaniel v. Thomas, 285 S.E.2d

156, 157 (Ga. 1981) (noting court was not called to decide which policy
                                          134

was “better,” but only if existing method of financing public education

met state constitutional requirements); Columbia Falls Elementary Sch.

Dist. No. 6 v. State, 109 P.3d 257, 261 (Mont. 2005) (“As the final

guardian and protector of the right to education, it is incumbent upon

the court to assure that the system enacted by the Legislature enforces,

protects and fulfills the right.”); Leandro v. State, 488 S.E.2d 249, 253

(N.C.     1997)    (“When      a    government        action     is   challenged       as

unconstitutional, the courts have a duty to determine whether that

action exceeds constitutional limits.”).             A minority of state courts,

however, view education clause and equal protection clause challenges

as raising political questions. 45

        3. Analysis of education clauses in state constitutions.                       As

indicated above, nearly all of the state constitutions contain provisions

related to education. The clauses come in a number of shapes and sizes

that have been categorized by commentators. Some of the clauses are

characterized as “weak,” while others are thought to be more robust. 46

        A significant number of constitutions that require the legislature to

provide for a “thorough and efficient,” “liberal,” “general and uniform,”

“general, suitable, and efficient,” “a system of free common schools,” or
an “efficient” system of schools, have been held to provide the basis for a

judicially enforceable mandatory obligation to provide children with a

certain level or quality of education. 47 One court, however, has found


        45See,e.g., Ex parte James, 836 So. 2d 813, 819 (Ala. 2002); Comm. for Educ.
Rights, 672 N.E.2d at 1193; Neb. Coal. for Educ. Equity & Adequacy, 731 N.W.2d at 183;
Okla. Educ. Ass’n, 158 P.3d at 1066; Sundlun, 662 A.2d at 62.
        46See  Ratner, 63 Tex. L. Rev. at 814–16 (placing Iowa’s constitutional provisions
in a third category containing “a stronger and more specific education mandate” than in
the first two groups, but less strong than a fourth group).
        47See
            Op. of the Justices, 624 So. 2d at 110–11 (“liberal”); Lake View, 91 S.W.3d
at 495 (“general, suitable, and efficient”); Bishop, 877 P.2d at 808 (“general and
uniform”); Rose, 790 S.W.2d at 212–13 (“efficient”); Hornbeck, 458 A.2d at 780
                                             135

that a requirement that “there shall always be free public elementary and

secondary schools” is sufficient to establish a minimum qualitative

requirement. See Rell, 990 A.2d at 227, 281–82.

       On the other hand, there are cases declining to find an enforceable

mandatory        duty     to    provide   an       adequate   education      based   on

constitutional provisions that provide for “a system of common

schools,” 48 a requirement that schools be “thorough and uniform,” 49 a

requirement to make “adequate provision . . . for a uniform system of free

public schools,” 50 a provision establishing a “a primary obligation” for

“the provision of an adequate education,” 51               a provision requiring the

state to “establish and maintain a . . . thorough system of public, free

common schools,” 52 and a provision requiring a “general and uniform

system of Common Schools.” 53

       4. Overview of state education cases considering challenges based

on substantive due process. At least one court has considered challenges

to state educational frameworks based on substantive due process under

state constitutions.           In Alabama, for instance, the Alabama Supreme

Court has adopted a more rigorous standard of substantive due process

than employed by the United States Supreme Court. See Mount Royal
Towers, Inc. v. Ala. State Bd. of Health, 388 So. 2d 1209, 1213–15 (Ala.

1980). In the lower court opinion attached as an appendix in Opinion of

_______________________________
(“thorough and efficient”); Campaign for Fiscal Equity, 655 N.E.2d at 665 (“a system of
free common schools”); DeRolph, 728 N.E.2d at 1001 (“thorough and efficient”); Tenn.
Small Sch. Sys., 851 S.W.2d at 150–51 (“a system of free common schools”).
       48See Serrano I, 487 P.2d at 1248–49.

       49See   Lujan, 649 P.2d at 1010–11.
       50See   Coal. for Adequacy & Fairness, 680 So. 2d at 406.
       51See   McDaniel, 285 S.E.2d at 165.
       52See   Evans, 850 P.2d at 734.
       53See   Bonner ex rel. Bonner v. Daniels, 907 N.E.2d 516, 520 (Ind. 2009).
                                            136

the Justices, 624 So. 2d 107 (Ala. 1993), the Alabama circuit court

declared that “it is well-settled in this state that when the state deprives

citizens of liberty for the purposes of benefiting them with a service, due

process requires that the service be provided to them in an adequate

form.” Op. of the Justices, 624 So. 2d at 161. This approach, however,

was later overruled by the Alabama Supreme Court in Ex parte James,

836 So. 2d 813, 819 (Ala. 2002).

         5. Issues arising in state education cases based on state equal

protection clauses. In state education cases arising under state privileges

and immunities or state equal protection challenges, several issues

repetitively appear in the cases.           They include the standard of review,

whether a party attacking an education scheme must show intentional

discrimination, and whether the plaintiffs have identified a class

sufficient to support an equal protection claim.

         A critical issue is the standard of review. A significant number of

state supreme court cases have found that education gives rise to a

fundamental interest under state constitutions. These cases reach this

result in a number of ways.                  Some of them explicitly adopt the

fundamental interest framework advanced in San Antonio and find that

because education is expressly or impliedly rooted in their state

constitutions, it arises to a fundamental interest for equal protection

purposes. See Washakie Cnty. Sch. Dist. No. One v. Herschler, 606 P.2d

310, 333 (Wyo. 1980). Others depart from the San Antonio framework

and either apply a more generous test, finding a fundamental interest

based on the underlying importance of education generally, 54 or a



         54See   Serrano II, 557 P.2d at 951; Robinson v. Cahill, 351 A.2d 713, 720 (N.J.
1975).
                                           137

narrower test than in San Antonio in order to avoid a finding of

fundamental interest. 55

       In contrast to these cases, some state supreme courts have

followed San Antonio and applied a rational basis standard to education

challenges.       In most of these cases, the state frameworks have been

upheld. 56 But not in every case. In several cases, state supreme courts

have applied a rational basis “with teeth” test and have invalidated state

education structures on that basis. 57

       A second issue is whether the plaintiff has the burden of showing

disparate treatment.          With respect to disparate treatment, the state

courts that address the issue generally build on the dissent in

San Antonio, which notes that the class consists of persons residing in

low property tax jurisdictions who are treated differently than those in

tax rich geographic locations. See San Antonio, 411 U.S. at 69–70, 93

S. Ct. at 1315, 36 L. Ed. 2d at 64 (White, J., dissenting); Serrano I, 487

P.2d at 1261 (state’s general freedom to discriminate based on

geographical basis will be significantly curtailed by the Equal Protection

Clause); Tenn. Small Sch. Sys. v. McWherter, 851 S.W.2d 139, 154 (Tenn.

1993) (citing substantial disparity based on school districts).

       A final issue frequently arising in equal protection analysis is the

power of the state’s asserted interest in local control in the education

arena. As noted in Serrano I and subsequent cases, local control is a

“cruel illusion” if disparities are imposed on poor districts due to the

       55See    Thompson, 537 P.2d at 644–45; Comm. for Educ. Rights, 672 N.E.2d at
1194–95.
       56See, e.g., Lujan, 649 P.2d at 1022–23. It should be noted, however, that in
Lujan the plaintiffs failed to plead or prove a denial of educational opportunity. This
amounts to the failure to plead and prove an adequacy claim. Id. at 1018; see also
McDaniel, 285 S.E.2d at 156.
       57See,   e.g., DuPree, 651 S.W.2d at 93; Tenn. Small Sch. Sys., 851 S.W.2d at 154.
                                        138

limitations placed on them by the system itself. Serrano I, 487 P.2d at

1260; see also DuPree v. Alma Sch. Dist. No. 30, 651 S.W.2d 90, 93 (Ark.

1983).    If there are disparities in educational opportunity, a factual

question arises: Are the disparities due to local decisions, or are they

caused by the state system of financing and providing of education? See

Roosevelt Elementary Sch. Dist. No. 66 v. Bishop, 877 P.2d 806, 815 (Ariz.

1994) (holding question of whether disparities caused by local decision

making or by public school system raises factual question for trial court).

      6. Issues related to the type and scope of relief. A critical issue in

education cases is the type of relief sought by the plaintiffs.                 Some

plaintiffs seek what some commentators have identified as parity in

educational opportunity. 58 Others seek only an “adequate” or a “sound,

basic” education. The choice of relief can have dramatic implications for

the litigation.

      Plaintiffs who seek parity do not require precisely the same

educational opportunities, but substantially the same opportunities, as

others.        The   strength   of   parity   theory   is   that   it   is   perfectly

understandable and judicially manageable, namely, that the educational

program in school districts needs to be substantially the same.                   The
problems, however, are multiple.         Parity theory often requires that the

state abandon traditional reliance on local property taxes to fund

education. Plaintiffs seeking parity thus raise a specter of “Robin Hood”

remedies whereby wealthier school districts are required to transfer

educational funds to poorer districts, with the result that the quality of

education in more fortunate school districts suffers.



      58See,e.g., William E. Thro, Judicial Paradigms of Educational Equality, 174
Educ. Law Rep. 1, 7 (2003).
                                    139

      In part because of the difficulties of parity theory, plaintiffs have

developed an alternate theory that does not seek parity but instead

adequacy.   The advantage of adequacy theory is obvious: it does not

require that any wealthy school district transfer funds or sacrifice its

program, but merely requires the state to ensure that it provides an

adequate education to all students.       The adequacy approach does not

require the complete abandonment of local property taxes.

      The major challenge with adequacy theory is the development of a

proper standard.      For example, in Abbeville County School District v.

State, 515 S.E.2d 535, 540 (S.C. 1999), the South Carolina Supreme

Court found a right to a “minimally adequate education.” According to

the South Carolina Supreme Court, a minimally adequate education

included:

            1) the ability to read, write, and speak the English
      language, and knowledge of mathematics and physical
      science;
             2) a fundamental knowledge of economic, social, and
      political systems, and of history and governmental
      processes; and
             3) academic and vocational skills.

Abbeville Cnty. Sch. Dist., 515 S.E.2d at 540.

      The Kentucky Supreme Court in Rose developed a more detailed

seven-factor test. The Kentucky Supreme Court has stated that in order

to provide an adequate education, the state must establish a system of

education with the ultimate goal of providing to each and every child

seven capabilities:

      (i) sufficient oral and written communication skills to enable
      students to function in a complex and rapidly changing
      civilization; (ii) sufficient knowledge of economic, social, and
      political systems to enable the student to make informed
      choices; (iii) sufficient understanding of governmental
      processes to enable the student to understand the issues
      that affect his or her community, state, and nation; (iv)
                                    140
      sufficient self-knowledge and knowledge of his or her mental
      and physical wellness; (v) sufficient grounding in the arts to
      enable each student to appreciate his or her cultural and
      historical heritage; (vi) sufficient training or preparation for
      advanced training in either academic or vocational fields so
      as to enable each child to choose and pursue life work
      intelligently; and (vii) sufficient levels of academic or
      vocational skills to enable public school students to compete
      favorably with their counterparts in surrounding states, in
      academics or in the job market.

Rose, 790 S.W.2d at 212; Leandro, 488 S.E.2d at 255 (adopting an

adaptation of the Rose standards); see also Campaign for Fiscal Equity,

Inc. v. State, 801 N.E.2d 326, 330 (N.Y. 2003) (adopting standard of

adequacy).

      A third approach to adequacy was taken by the Arkansas Supreme

Court in Lake View School District No. 25 v. Huckabee, 91 S.W.3d 472

(Ark. 2002).   In Lake View, the Arkansas Supreme Court declared in

order to provide an “adequate” education, the state must provide

standards, develop a system to determine whether the goals are being

met, and establish a system of accountability to determine whether

funds that are being spent are providing educational opportunity. Lake

View, 91 S.W.3d at 500.

      In addition to type of relief, a second issue arises regarding the

scope of relief.    Many courts in the first instance after finding

constitutional violations merely provide declaratory relief and exercise

continuing jurisdiction to review legislative responses to court rulings.

For example, in Lake View, the court stressed that it had no intention “to

monitor or superintend the public schools of this state.” Id. at 511. The

court instead affirmed a lower court order granting declaratory relief and

indicated that it would not hesitate to review the state’s school funding

system once again in an appropriate case. Id.; see also Horton v. Meskill,

376 A.2d 359, 375 (Conn. 1977) (noting that while it is emphatically the
                                          141

duty of the court to declare what the law is, remedies could be limited to

declaratory relief out of respect for other branches of government); Rose,

790 S.W.2d at 214 (declining to direct specific action); Campaign for

Fiscal Equity, Inc., 801 N.E.2d at 344–45 (discussing dialogue with

legislature).    Initially, at least, the remedies of these courts do not

intrude deeply on the legislative process other than to declare legal

requirement. Over time, however, courts have become more involved in

crafting specific legislative remedies in the face of legislative inaction or

intransigence.     See, e.g., Abbott ex rel. Abbott v. Burke, 971 A.2d 989,

994–96 (N.J. 2009).

       VI. Application of State Constitutional Principles in Iowa.

       A. Threshold Question.            The district court determined that the

issues raised in this case were nonjusticiable political questions.                      I

disagree.    We are called upon, in this case, to decide what the law

means. This is the heart of judicial review. We are not called upon to

exercise the authority expressly delegated to another branch of

government. See, e.g., Rell, 990 A.2d at 217–25. We are called upon to

do our job.      See Martin H. Redish, Judicial Review and the “Political

Question,” 79 Nw. U. L. Rev. 1031, 1059–60 (1984); see generally Louis

Henkin, Is There a “Political Question” Doctrine?, 85 Yale L.J. 597 (1976).

Notwithstanding some contrary dicta dusted about in Justice Mansfield’s

opinion, there is clearly no “political question” posed in this case.

       B. State Education Clause.                The Iowa education clause is

categorized by some scholars as a fairly strong education clause.59

        59William E. Thro, Note, To Render Them Safe: The Analysis of State

Constitutional Provisions in Public School Finance Reform Litigation, 75 Va. L. Rev. 1639,
1666 & n.118 (1989) (characterizing Iowa’s education provisions as a Category III
provision that provides a “stronger and more specific” mandate than Categories I and II,
but less specific than Category IV). On the other hand, another commentator has noted
that other states, such as Virginia, Montana, Louisiana, and Washington, have
                                          142

Regardless of this characterization, it seems clear that education in Iowa

is a highly valued constitutional interest. Iowa would not have gained

admission to the Union as a state without an education clause.                       An

article of the 1857 constitution was devoted exclusively to education.

Although the Iowa Constitution authorized the general assembly to

repeal provisions vesting authority over school matters in a board of

education, this constitutional option related solely to the manner in

which     the   state’s   constitutional     interest    in   education     would     be

implemented. The Iowa Constitution, read in context, requires a system

of “Common schools throughout the State.” See Iowa Const. art. IX, div.

2, § 3. We said as much in Clark, where we emphasized that the State

had an obligation under article IX, division 1, section 12 to provide “for

the education of all the youths of the State, through a system of common

schools.”    Clark, 24 Iowa at 274 (quoting Iowa Const. art. IX, div. 1,

§ 12).

         Our constitutional provisions without question are as strong as

others in which a constitutional right to an adequate education has been

found. See, e.g., Rell, 990 A.2d at 210–12 (simply stating there shall be

“free public elementary and secondary schools” in the state); McDuffy,

615 N.E.2d at 517, 526 (stating that it shall be the duty of legislators “to

cherish” public schools and grammar schools); Campaign for Fiscal

Equity, Inc., 801 N.E.2d at 328 (“a system of free common schools”). The

strong emphasis on education in the text (establishing “Common schools

throughout the State”) and in our state government tradition cannot be

doubted. For these reasons, the State at oral argument conceded that it
_______________________________
education clauses that seem to demand a higher quality of education than the Iowa
provisions and suggests that the Iowa provision is among state constitutional provisions
“[s]etting [l]ower [s]tandards.” See Molly McUsic, The Use of Education Clauses in School
Finance Reform Litigation, 28 Harv. J. on Legis. 307, 334–37 (1991).
                                   143

could not constitutionally refuse to provide public education to children

and youth.

       The State’s concession was not a blunder but the product of

inescapable logic and a desire to avoid looking foolish.         The Iowa

constitutional provisions in article IX cannot be read to suggest that the

legislature has the discretion to withdraw from public education and

close the public schools. But, if there is a requirement that the State

provide a public education for children and youth through “Common

schools throughout the State,” it certainly must be implied that the

education provided in the common schools must be a meaningful

education and not just some empty formalism.        There must be some

substance to the mandatory duty, some concrete reality, some meat on

the bones. Just as the “right to counsel” under the Federal and State

Constitutions means the right to “effective” assistance of counsel,

McMann v. Richardson, 397 U.S. 759, 771 & n.14, 90 S. Ct. 1441, 1449

& n.14, 25 L. Ed. 2d 763, 773 & n.14 (1970), the duty of the state to

provide common schools throughout the state requires that the

education in the schools meet minimum standards of adequacy.

       Nothing in Kleen v. Porter, 237 Iowa 1160, 23 N.W.2d 904 (1946),

is to the contrary.   Kleen involved a question of providing additional

funds for public schools, but did not address in any way the duty of the

state to maintain common schools throughout the state. Kleen, 237 Iowa

at 1167–69, 23 N.W.2d at 908–09. In fact, by citing article IX, division 1,

section 12, Kleen supports the view of an ongoing obligation to provide a

system of common schools to all youth. See id. at 1162, 23 N.W.2d at

905.

       Further, while Justice Mansfield’s opinion makes much of the fact

that the framers did not include the word “free” in the education clause,
                                      144

this is hardly dispositive of whether there is a mandatory duty to make

meaningful public education available in the common schools to

everyone who desires an education.          Charges that prevented a person

from obtaining a public education in common schools would surely go

the way of the poll tax. See Harper, 383 U.S. at 666–68, 86 S. Ct. at

1081–82, 16 L. Ed. 2d at 172–73.

      Justice Mansfield’s opinion states that because the plaintiffs did

not cite article IX, division 1, section 12 of the Iowa Constitution in their

trial brief, it can ignore the provision by regarding the argument as

waived. Article IX, division 2, section 3, however, cannot be torn away

from the previous constitutional provision. To begin with, the language

of article IX, division 2, section 3 requiring the legislature to “encourage,

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

agricultural improvement” in my view incorporates within its scope the

obligation to establish “a system of Common Schools” as required by

article IX, division 1, section 12.    My incorporation theory is strongly

supported by reference in article IX, division 2, section 3 to a perpetual

fund for “Common schools throughout the State,” namely, the “system of

Common Schools” referred to in article IX, division 1, section 12. In my

view, Justice Mansfield’s opinion seeks to separate the twins that were

joined at birth in a way that elevates form over substance. See Office of

Consumer Advocate v. Iowa State Commerce Comm’n, 465 N.W.2d 280,

283–84 (Iowa 1991) (holding error is preserved under Due Process Clause

even though the party merely cited to the Fourteenth Amendment,

stating to rule otherwise would “elevate[] form over substance”).         In

addition, it is difficult to understand how Justice Mansfield’s opinion

finds that the education, due process, and privileges and immunities

issues, though not briefed on appeal, are properly before the court as
                                    145

“interrelated” with the issue of justiciability, while the substantive

obligations of article IX, division 1, section 12 and article IX, division 2,

section 3 are not.

      In any event, there is no question that the issue of whether

education is a fundamental interest under the privileges and immunities

clause of the Iowa Constitution was preserved in the trial court, and

according to Justice Mansfield’s opinion, may be considered on appeal

even though the matter has not been briefed before this court.

Therefore, even assuming the claim under article IX, division 1, section

12 is “waived,” the issue of applicability of the privileges and immunities

clause remains very much alive under the issue preservation reasoning

of Justice Mansfield’s opinion. Any right to an education under article IX

is coextensive to the fundamental right to an education under the

privileges and immunities clause, the only difference being the right to an

education under article IX does not require a classification.

      C. Privileges and Immunities Clause.             The first issue for

consideration under Iowa’s privileges and immunities clause is whether

education may be characterized as a fundamental interest under the

traditional framework. If one utilizes the test enunciated in San Antonio,

the answer is plainly yes.     According to San Antonio, a fundamental

interest is present when an interest is explicitly or implicitly protected by

constitutional provisions. See San Antonio, 411 U.S. at 33, 93 S. Ct. at

1297, 36 L. Ed. 2d at 43. Plainly, the Iowa education articles meet the

test. Further, under San Antonio, the question of whether there is a

fundamental interest in a minimally adequate education was expressly

reserved.   Id. at 36–37, 93 S. Ct. at 1298–99, 36 L. Ed. 2d at 44–45.

Thus, even applying the federal constitutional test, a student’s interest in
                                          146

an adequate education would be a fundamental interest under the Iowa

Constitution in light of the explicit provisions for education.

       Further, aside from the San Antonio test, I conclude education is a

fundamental interest under other tests fashioned by state supreme

courts.       The express Iowa constitutional provisions; the centrality of

education to our state’s history; the strong and unqualified traditional

support for education of Iowa’s political leaders; the inextricable

relationship between education and other key constitutional rights,

namely, the right to vote, the right to serve on juries, the right to petition

government, and the undeniable proposition that an individual has little

prospect of enjoying life, liberty, and property without an education in

the postmodern world; and the centrality of education to human dignity;

all convince me that education must be considered a fundamental

interest under Iowa’s privileges and immunities clause. See Serrano I,

487 P.2d at 1255–59; Robinson v. Cahill, 351 A.2d 713, 720 (N.J. 1975).

To characterize the interest in education as something other than

fundamental seems like a play on words. 60                  I would thus join the

supreme        courts   of   Arkansas,     California,    Connecticut,      Kentucky,

Minnesota, New Jersey, Tennessee, Washington, West Virginia, Virginia,
and Wisconsin in finding that education is an interest that may trigger

heightened scrutiny under state privileges and immunities or equal

protection clauses. 61


       60As  noted above, the Universal Declaration of Human Rights, article 26,
describes the right to a public education as a human right. The Universal Declaration
has been ratified by the United States. The case of The Paquete Habana, 175 U.S. 677,
20 S. Ct. 290, 44 L. Ed. 320 (1900), stands for the proposition that international treaty
obligations are binding upon United States courts. The West Virginia Supreme Court
relied on the Universal Declaration in declaring that education is a fundamental right
under its state constitution. Pauley, 255 S.E.2d at 863 n.5, 878.
       61See, e.g., DuPree, 651 S.W.2d at 93; Serrano II, 557 P.2d at 952; Horton, 376

A.2d at 373; Rose, 790 S.W.2d at 206; Skeen, 505 N.W.2d at 313–14; Robinson, 351
                                        147

       In    fact,   the   motivating   reasons     for   not   finding   education

“fundamental” has nothing to do with its importance or essential

character.      Instead, courts are sometimes reluctant to characterize

education as “fundamental” because they fear the consequences of strict

scrutiny, which has been described as strict in theory but fatal in fact.

See, e.g., McDaniel, 285 S.E.2d at 167 (citing need to avoid inflexible

constitutional restraints that result from strict scrutiny); Norman

Dorsen, Equal Protection of the Laws, 74 Colum. L. Rev. 357, 362 (1974)

(noting that the “sharp dichotomy between the rational basis and strict

scrutiny tests produces back-door evasions of the two-tiered formula”);

Gerald Gunther, Foreword: In Search of Evolving Doctrine on a Changing

Court: A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1, 8 (1972)

[hereinafter Gunther] (first suggesting strict in theory, fatal in fact

formulation); Martha M. McCarthy, Is The Equal Protection Clause Still A

Viable Tool for Effecting Educational Reform?, 6 J.L. & Educ. 159, 178

(1977) (noting rigor of strict scrutiny test has caused courts to limit

rights identified as suspect or fundamental so as not to unduly invade

legislative power). The fatal-in-fact feature of strict scrutiny is thought to

be inappropriate in situations involving complex matters such as

education.

       I find merit in the argument that strict scrutiny as traditionally

applied by the United States Supreme Court and by this court should not

be used to evaluate all educational differences between school districts.

For instance, a marginal or insubstantial difference between school

districts—such as the failure to offer a handful of noncore courses, or the

_______________________________
A.2d at 720; Tenn. Small Sch. Sys., 851 S.W.2d at 154–56; Scott, 443 S.E.2d at 142;
Seattle Sch. Dist. No. 1, 585 P.2d at 92; Pauley, 255 S.E.2d at 878; Kukor, 436 N.W.2d
at 579.
                                     148

lack of certain helpful but hardly essential extracurricular activities—

should not trigger a strict scrutiny analysis.     This concern over the

consequences of strict scrutiny, however, can be addressed by limiting

heightened review only to asserted violations of a right to an adequate or

basic education.

      The concept of heightened protection for an adequate or basic

education but not for all educational differences has support in the

caselaw of other states. For example, both the Minnesota and Wisconsin

Supreme Courts have adopted such an approach in their efforts to sort

through the constitutional issues related to education.      See Skeen v.

State, 505 N.W.2d 299, 315 (Minn. 1993); Kukor v. Grover, 436 N.W.2d

568, 579 (Wis. 1989).

      By limiting heightened scrutiny to the deprivation of an adequate

or basic education and by employing a lesser degree of scrutiny to

legislative classifications that do not impinge on an adequate education,

state officials would have ample breathing room for their important

policy-making role, yet still require that the state provide all students

with a meaningful educational opportunity.

      The next question which arises is the content of a basic or

adequate education that triggers heightened scrutiny.       Based on the

reasoning of the adequacy cases cited above, I conclude that a basic or

adequate education must be sufficient to allow a person to participate

meaningfully in democracy through the right to vote, the right to petition

government, and jury duty, and to have meaningful prospects of enjoying

“life, liberty, and property.”   In order to achieve these ends, education

must be sufficient to allow an individual a meaningful opportunity to

participate in economic life in the postmodern world. See Campaign for

Fiscal Equity, Inc., 801 N.E.2d at 330–32; Hoke Cnty. Bd. of Educ. v.
                                    149

State, 599 S.E.2d 365, 379–81 (N.C. 2004); Abbeville Cnty. Sch. Dist.,

515 S.E.2d at 540; Rose, 790 S.W.2d at 211–13.          In order to satisfy

these demands, I would adopt a variant of the factors in Rose and other

adequacy cases: An educational program must, among other things,

include effectively teaching the ability to read and write, to communicate

effectively, to perform in mathematical computations, to have exposure to

scientific principles, to have a basic understanding of economics and

government, and to learn how to use computer-based technology that is

so indispensible in the postmodern world. An education program need

not guarantee results to meet the constitutional test, but it must provide

a meaningful educational opportunity to participate in the political,

social, and economic life.

      I would not, however, adopt the approach of the Arkansas

Supreme Court in Lake View. While the adoption of standards, systems

of monitoring, and systems of accountability might help ensure

compliance with the substantive constitutional requirements outlined in

this opinion, I would not mandate the precise manner in which the State

performs its constitutional obligation. I would decline to enter the fray of

educational philosophy other than as required to ensure that children

have a reasonable opportunity to a basic education and that all other

material differences in educational opportunity be justified by a rational

basis as described below.

      The defense to privileges-and-immunities-type claims is, of course,

invariably “local control.” But local control is not an automatic trump

card that applies as a matter of law in all cases involving educational

interests as Justice Mansfield’s opinion seems to believe.         Instead,

whether “local control” will be sufficient to carry the day will depend

upon a number of determinations. First, the court must determine, as a
                                          150

matter of fact, whether the alleged shortcomings in education are

present. Second, the court must determine if the plaintiff can prove that

state action has caused the deprivations.                   Third, assuming that

deprivations are present and they are caused by the state, the question

arises whether the deprivation is sufficient to undermine the right to an

adequate or basic education. If the shortcomings deprive the plaintiffs of

a   basic   education,      then    heightened     scrutiny     will   apply    to   the

classification. To the extent “local control” is asserted as the legitimate

basis for a classification, the decision to provide different services must

be a discretionary choice of local administrators and not the result of

state law or legal structure that forces local decision makers into

Hobson’s choices. See Tenn. Small School Sys., 851 S.W.2d at 154–55

(the issue is not whether local control is a good thing, but whether the

statutory framework actually promotes it or undercuts it). Local control,

however, must not be a “euphemism masking gross inequalities in the

abilities of school districts to meet their needs.” Lujan v. Colo. State Bd.

of Educ., 649 P.2d 1005, 1040 (Colo. 1982) (Lohr, J., dissenting). 62

       My approach to Iowa’s privileges and immunities clause is not

necessarily a departure from federal precedent. As noted in San Antonio
and Papasan, the question of whether there is a fundamental right to a

minimally adequate education is still open under the Federal Equal



       62There  is a suggestion that to find any meaningful judicial role in the field of
education under a state constitution would set a “dangerous” precedent. Such an
extreme characterization is belied by court decisions in rulings in many states,
including Texas, New York, California, South Carolina, New Jersey, Arkansas, West
Virginia, Kentucky, and Washington. The suggestion of dangerousness would likely be
surprising to the four sober dissenting Justices of the United States Supreme Court in
San Antonio. While the decisions of the various state supreme courts and the opinions
of the four dissenting Justices in San Antonio are not, of course, “dangerous,” they may
be controversial. Of course, judicial decisions are driven by applicable legal principles
and underlying facts, not by public approval or disapproval.
                                          151

Protection Clause. See Papasan v. Allain, 478 U.S. 265, 285, 106 S. Ct.

2932, 2944, 92 L. Ed. 2d 209, 232 (1986); San Antonio, 411 U.S. at 36–

37, 93 S. Ct. at 1298–99, 36 L. Ed. 2d at 44–45. Moreover, applying the

San Antonio test of what amounts to a fundamental interest (explicit or

implicit protection in the constitution itself), my conclusion seems

inescapable. In any event, even if my approach affords greater protection

to education under our privileges and immunities clause than is

available under the Federal Equal Protection Clause, this is not unusual.

State courts in at least twenty-one states have interpreted their equality

clauses more expansively than the United States Supreme Court’s

interpretation of equal protection. See Jeffrey M. Shaman, The Evolution

of Equality in State Constitutional Law, 34 Rutgers L.J. 1013, 1031

(2003).

       To the extent plaintiffs show a classification affecting education

that does not impinge upon their fundamental right to an adequate

education, I conclude that a type of rational basis test should apply. A

simple declaration that such nonfundamental classifications are subject

to rational basis review is not the end of the matter.                   As has been

repeatedly and widely recognized, there are many variations and

permutations of the rational basis test. 63

        63See, e.g., Robert C. Farrell, Successful Rational Basis Claims in the Supreme

Court from the 1971 Term Through Romer v. Evans, 32 Ind. L. Rev. 357, 382 (1999)
(noting different rational basis tests); Jennifer L. Greenblatt, Putting the Government to
the (Heightened, Intermediate, or Strict) Scrutiny Test: Disparate Application Shows Not
All Rights and Powers Are Created Equal, 10 Fla. Coastal L. Rev. 421, 477 (2009)
(United States Supreme Court has plainly strayed from three-tiered approach);
Gunther, 86 Harv. L. Rev. at 17–24 (noting dissatisfaction with tiers and tendency to
intervene without strict scrutiny); R. Randall Kelso, Standards of Review Under the
Equal Protection Clause and Related Constitutional Doctrines Protecting Individual Rights:
The “Base Plus Six” Model and Modern Supreme Court Practice, 4 U. Pa. J. Const. L. 225,
230–33 (2002) (identifying three different types of rational basis review in United States
Supreme Court cases); Raffi S. Baroutjian, Note, The Advent of the Multifactor, Sliding-
Scale Standard of Equal Protection Review: Out with the Traditional Three-Tier Method of
Analysis, in with Romer v. Evans, 30 Loy. L.A. L. Rev. 1277, 1301–05 (1997) (citing
                                         152

       For example, the United States Supreme Court has clearly applied

a number of materially different rational basis tests.                A first type of

rational basis test employed by the Supreme Court is the one utilized by

Justice Mansfield’s opinion, where a statute is examined to determine if

there is “any conceivable basis” to support it. The Supreme Court also

sometimes engages in what has been called “a second order” rational

basis review where there is inquiry into whether, as a matter of fact, the

claimed purposes of the statute have adequate factual support. See

Romer v. Evans, 517 U.S. 620, 626–35, 116 S. Ct. 1620, 1624–28, 134 L.

Ed. 2d 855, 862–68 (1996) (applying more substantial rational basis test

in   invalidating     Colorado      constitutional     amendment         to   prohibit

government from enacting antidiscrimination ordinances by calling

asserted purposes “implausible”); City of Cleburne v. Cleburne Living Ctr.,

473 U.S. 432, 448, 105 S. Ct. 3249, 3258, 87 L. Ed. 2d 313, 325 (1985)

(citing lack of evidence in “the record” to justify denying occupants use of

site); U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 535–36, 93 S. Ct. 2821,

2826, 37 L. Ed. 2d 782, 788–89 (1973) (invalidating antifraud regulation

excluding households with unrelated individuals from receiving food

stamps based on “unsubstantiated” assumptions); Robert C. Farrell,

Successful Rational Basis Claims in the Supreme Court from the 1971

Term Through Romer v. Evans, 32 Ind. L. Rev. 357, 358 (1999)

(identifying two sets of rationality cases decided by United States

_______________________________
Romer v. Evans, 517 U.S. 620, 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1996), as example of
stricter rational basis review under Federal Equal Protection Clause); Peter S. Smith,
Note, The Demise of Three-Tier Review: Has the United States Supreme Court Adopted A
“Sliding Scale” Approach Toward Equal Protection Jurisprudence?, 23 J. Contemp. L.
475, 480–88 (1997) (citing Justice Marshall dissents advocating sliding scale approach);
Neelum J. Wadhwani, Note, Rational Reviews, Irrational Results, 84 Tex. L. Rev. 801,
803 (2006) (noting waffling between rational basis test—where any conceivable
government interests is sufficient—and more stringent test, which includes inquiry
regarding whether the actual government action taken is justifiable).
                                    153

Supreme Court with no connection between them); Robert C. Farrell, The

Two Versions of Rational-Basis Review and Same-Sex Relationships, 86

Wash. L. Rev. 281, 282 (2011) (characterizing Supreme Court rational

basis review cases as Jekyll and Hyde- or Janus-like); R. Randall Kelso,

Standards of Review Under the Equal Protection Clause and Related

Constitutional Doctrines Protecting Individual Rights: The “Base Plus Six”

Model and Modern Supreme Court Practice, 4 U. Pa. J. Const. L. 225,

227–37 (2002) (describing three types of rational basis tests).

      There have long been calls for the United States Supreme Court to

abandon its approach to “any conceivable basis” rational basis scrutiny.

In a seminal law review article published in 1972, Gerald Gunther urged

the Court to develop a more meaningful approach to equal protection

that included more stringent rational basis review.      See Gunther, 86

Harv. L. Rev. at 20–24.    In a series of opinions, Justice Marshall and

Justice Stevens have pointed out the inconsistencies in the Court’s cases

and advocated an honest reevaluation of the doctrine.             See City of

Cleburne, 473 U.S. at 451–55, 105 S. Ct. at 3260–63, 87 L. Ed. 2d at

327–30 (1985) (Stevens, J., concurring); Mass. Bd. of Ret. v. Murgia, 427

U.S. 307, 321–22, 96 S. Ct. 2562, 2571–72, 49 L. Ed. 2d 520, 529–30

(1976) (Marshall, J., dissenting). So far, the United States Supreme Court

has not explicitly resolved the tensions in its cases.

      Aside from inconsistency, there is another reason for state

supreme courts to depart from federal precedent when analyzing equal

protection-type claims. A major factor in the highly deferential rational

basis standard developed by the United States Supreme Court is the

desire to honor federalism and to avoid imposing national solutions onto

the states. Justice Harlan warned long ago that national application of

federal standards to the states in order to give the states elbow room in
                                         154

their criminal processes would lead to a dilution of substantive

constitutional protections. Baldwin v. New York, 399 U.S. 117, 118, 90

S. Ct. 1914, 1915, 26 L. Ed. 2d 446, 447 (1970) (Harlan, J., concurring

in part and dissenting in part).         Indeed, federalism constraints were a

motivating factor in the Supreme Court’s refusal to impose strict scrutiny

in San Antonio. Because of the federalism concerns, the Federal Equal

Protection Clause tends to be among the most underenforced of

constitutional provisions. See Hershkoff, 112 Harv. L. Rev. at 1134–38;

Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced

Constitutional Norms, 91 Harv. L. Rev. 1212, 1218 (1978).                         The

federalism concern, of course, is wholly absent when state courts

consider claims under the state constitutions.

       As a result, it is not surprising that a number of state supreme

courts have declined to follow the federal model and have developed their

own approach to equal protection or privileges and immunities review.64

Many of the more than a dozen states that have privileges and

immunities type language rely to some extent on the tiered federal model,

but there are many variations. Several states have rejected the “any

conceivable basis” rationality standard for more exacting judicial review
of some legislative classifications.            See, e.g., Trujillo v. City of

Albuquerque, 965 P.2d 305, 314 (N.M. 1998); MacCallum v. Seymour, 686

A.2d 935, 938–39 (Vt. 1996). Other states, for instance, have adopted a

unitary test that balances the nature of the right, the extent to which the

government intrudes upon the right, and the need for the restriction.


       64For  a rich description of state constitutional provisions related to equal
treatment under the law and the power of state courts to interpret them independently
of federal law, see 1 Jennifer Friesen, State Constitutional Law: Litigating Individual
Rights, Claims, and Defenses § 3:01, at 3–2 through 3–15 (4th ed. 2006). See also
Schuman, 13 Vt. L. Rev. at 221–22; Shaman, 34 Rutgers L.J. at 1029–56.
                                    155

See, e.g., Dep’t of Revenue v. Cosio, 858 P.2d 621, 629 (Alaska 1993);

Planned Parenthood of Cent. N.J. v. Farmer, 762 A.2d 620, 632–43 (N.J.

2000). Other states have adopted a system of means-focused scrutiny

that appears more intensive than the most lenient standard sometimes

applied by the United States Supreme Court. See, e.g., State v. Mowrey,

9 P.3d 1217, 1221 (Idaho 2000).

      The variability in “rational basis” tests is demonstrated in the state

education cases. Some courts, like Indiana, have declared over a strong

dissent that, as a matter of law, local control is an adequate rational

basis to justify a state framework for providing education. Other states,

however, like Arkansas, have found after the development of substantial

factual records that their system of state funding fails to meet even the

rational basis test. See, e.g., DuPree, 651 S.W.2d at 95.

      There is much to be said for a more searching rational basis

review. The “any conceivable basis” test tends to be no review at all. The

cases show some striking examples, like Louisiana legislation where only

licensed florists may arrange flowers, defended as a health measure, and

an Oklahoma statute preventing anyone other than a person with a

license in mortuary science from selling caskets.     See Clark Neily, No

Such Thing: Litigating Under the Rational Basis Test, 1 N.Y.U. J. L. &

Liberty 898, 906 (2005).

      The suggestion that the incantation of the phrase “local control” is

sufficient to decide this case at this stage as a matter of law cannot stand

scrutiny.   When an allegation of a violation of our privileges and

immunities clause in the field of education is alleged, we should turn a

cocked ear, not a blind eye.       When local control is asserted as a

justification for differences in educational quality, we should consider

whether local educational leaders are, in fact, making local choices
                                    156

entitled to deference, or whether they are forced into Hobson’s choices

because of an educational structure that prevents them from delivering a

quality education. The concept was well expressed by one observer, who

noted that “[e]verywhere, local autonomy is compromised by centralized

authority. . . . Practically, the rhetoric of local autonomy is difficult to

take seriously given overwhelming evidence of the fiscal, political, and

judicial domination of local governments by higher tiers of the state.”

Gordon L. Clark, Judges and the Cities: Interpreting Local Autonomy 113–

14 (1985) (citation omitted). In other words, the question we should ask

is this: Is local control really at work, or is it a euphemism masking

inequalities in the ability of school districts to provide educational

opportunities to its students?   See Lujan, 649 P.2d at 1040 (Lohr, J.,

dissenting).

      Justice Mansfield’s opinion employs the label “local control”

without analysis of exactly what that means.         In San Antonio, local

control was favored because it encouraged citizen participation in

decision making, permitted the structuring of school programs to fit local

needs, and encouraged “experimentation, innovation, and a healthy

competition for educational excellence.” San Antonio, 411 U.S. at 50, 93

S. Ct. at 1305, 36 L. Ed. 2d at 52–53. Should we declare, as a matter of

law, that the distinctions between the various school districts in this case

were the result of these factors? Is it not possible that, in this case, the

state regulatory framework in actuality deprives local school boards of

local control in the sense that they do not have the practical ability to

make considered policy choices? Would the responsible school officials

in the districts where the plaintiffs reside claim that the alleged dramatic

differences in teacher experience, course loads per teacher, and

curriculum offerings were the result of a local, discretionary choice or
                                           157

would they cite systemic limitations?                 Does the way education is

structured in Iowa promote local control or restrict it? We will, of course,

never know the answer to these questions in light of the summary

dismissal of the case without the development of a factual record.

       In RACI, we conducted a meaningful rational basis review.

Fitzgerald, 675 N.W.2d at 7–8. We were not content to rest solely on the

pleadings, but conducted a factual inquiry to see whether the purported

justifications, while conceivable, were in fact sufficient to support a

statutory distinction.       Specifically, we noted that the conceivable state

interest must have “a basis in fact.” Id.

       In my view, we should apply a meaningful rational basis test in

this case with respect to classifications which adversely affect the

plaintiffs but do not arise to deprivations of an adequate education. It

allows    substantial     deference      to   decisions     of   other    branches      of

government, but imposes a reality check to prevent arbitrary and

irrational distinctions from creeping into educational structures in the

name of “local control.” 65

       D. Due Process Clause. I have no doubt that there is a potential

due process claim in light of the compulsory nature of school attending.
We said as much in Exira. The notion is uncontroversial that where a

       65The   claim that this court should not function as an elected school board
creates a straw person. No one advocated interference with the daily administration of
school boards in this case or in the dozens of other state court cases that have found a
fundamental right to a basic education. While we must maintain a healthy respect for
the other branches of government, we must fearlessly perform our role as judges to
ensure that the other branches of government perform their duties in a manner
consistent with the Iowa Constitution. Indeed, the very purpose of the privileges and
immunities clause in the Iowa Constitution is to restrain elected officials from treating
citizens differently in ways that do not make sense. Bromides about elections and
ballot boxes do not assist the court in its performance of the difficult but essential role
of judicial review established by Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2
L. Ed. 60, 73 (1803). To suggest that elected bodies always have the last word in
educational matters is, of course, the argument raised in opposition to Brown.
                                   158

liberty interest is impaired—and surely it is impaired by mandatory

school attendance—the deprivation of liberty must be rationally related

to a legitimate state objective. Youngberg, 457 U.S. at 324, 102 S. Ct. at

2462, 73 L. Ed. 2d at 42–43. There is also no doubt that education is a

legitimate state objective. The question under due process is whether the

education received by the person whose liberty is impaired is rationally

related to the state’s legitimate interest in educating citizens.      Any

application of the due process clause, however, would give the state a

wide range of permissible action in providing education to its charges.

There is no due process right to a specific kind of education, but only a

sufficiently reasonable educational effort to justify the intrusion on the

liberty interest.

      E. Application of Law to Facts Alleged in the Petition. Having

established the necessary legal framework, the question remains whether

the petition alleges sufficient facts to survive a motion to dismiss. Our

pleading caselaw requires a general notice of the nature of the claim, but

does not require pleading of detailed facts. Davis v. Ottumwa YMCA, 438

N.W.2d 10, 13 (Iowa 1989). We have stated that pleading is sufficient if

it apprises the opposing party of the nature of the incident out of which

the claim arose and the general nature of the action.         Haugland v.

Schmidt, 349 N.W.2d 121, 123 (Iowa 1984).       We have stated that “[i]n

Iowa, very little is required by way of pleading to provide notice.” Wilker

v. Wilker, 630 N.W.2d 590, 595 (Iowa 2001).       Notice pleading in Iowa

does not require pleading of ultimate facts that support the elements of

the cause of action but only facts sufficient to apprise the defendant of

fair notice of the claim. Schmidt v. Wilkinson, 340 N.W.2d 282, 283–84

(Iowa 1983).
                                      159

         Our principles of pleading were well stated in U.S. Bank v. Barbour,

770 N.W.2d 350, 353–54 (Iowa 2009), in which we stated that “[n]early

every case will survive a motion to dismiss” and that the “fair notice”

requirement is met if the petition “informs the defendant of the incident

giving rise to the claim and of the claim’s general nature.” We recently

affirmed our approach in Hawkeye Foodservice Distribution, Inc. v. Iowa

Educators Corp., 812 N.W.2d 600, 609 (Iowa 2012), in which we rejected

an effort to institute a heightened pleading requirement sometimes used

by the United States Supreme Court, see, e.g., Ashcroft v. Iqbal, 556 U.S.

662, 678–79, 129 S. Ct. 1937, 1949–50, 173 L. Ed. 2d 868, 883–84

(2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct.

1955, 1973–74, 167 L. Ed. 2d 929, 949 (2007), and reaffirmed our

traditional generous pleading approach.

         I conclude that the plaintiffs’ claim should not be dismissed at this

stage.     The plaintiffs claim they are being deprived of an “effective

education” and an “adequate education.” They claim their education is

so deficient that students “are not prepared to enter the workforce or

post-secondary education” and are not “prepared for responsible

citizenship, further learning and productive employment in a global

economy.” They have also pled differences in the quality of education in

their school districts in terms of teacher experience, course loads, and

course offerings. In light of our pleading rules, which have been held to

provide that “very little is required by way of pleading to provide notice,”

these allegations are sufficient to raise a claim of adequacy that cannot

be precluded as a matter of law at this stage of the proceedings. See

Wilker, 630 N.W.2d at 595; Herschler, 606 P.2d at 316 (attack on

“system” is sufficient to survive motion to dismiss); see also Lujan, 649

P.2d at 1010 (appellees did not plead or prove denial of educational
                                        160

opportunity); Hornbeck v. Somerset Cnty. Bd. of Educ., 458 A.2d 758, 780

(Md. 1983) (no allegation of deprivation of a right to adequate education).

       In any event, there is no question that the plaintiffs state a claim

reviewable under a rational basis test, which in my view requires factual

development of the relationship between the purported purposes of the

policies that cause the differences between school districts and whether

the means chosen rationally advance them. Preexisting commitment to

the ideology of “Our Localism” does not form a legally sufficient basis for

rejecting a more nuanced inquiry when an interest as important as

education is involved. 66

       It may well be, of course, that the plaintiffs may fail, in whole or in

part, to prove their case. But they are entitled to attempt to prove it. A

motion to dismiss is not a vehicle to dismiss claims that some on an

appellate court may perceive as weak. The only issue when considering

a motion to dismiss is the “petitioner’s right of access to the district

court, not the merits of his allegations.” Rieff v. Evans, 630 N.W.2d 278,

284 (Iowa 2001) (citation and internal quotation marks omitted).                The

approach taken in Justice Mansfield’s opinion to the pleading in this

case is a marked departure from our pleading requirements generally
and has no precedential value except to dispose of this case.

       F. Remedies. It is sometimes suggested that remedial difficulties

require the judiciary to abandon the field of enforcing state constitutional

commands related to education. Ordinarily, respect for the coordinate

branches of government requires a court not to unduly intrude onto the

workings of the other branches. As a result, in a case such as this one,


       66The term “Our Localism” was coined by Richard Briffault in two important
scholarly articles, Richard Briffault, Our Localism: Part I—The Structure of Local
Government Law, 90 Colum. L. Rev. 1 (1990), and Richard Briffault, Our Localism: Part
II—Localism and Legal Theory, 90 Colum. L. Rev. 346 (1990).
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there is little to be gained, and much to be lost, by premature entry of

detailed mandatory orders. If a constitutional violation is found, there

will be a number of different possibilities that the legislature may wish to

consider to solve the problem. As long as the ultimate action complies

with the constitutional commands, this court has no interest in invading

the discretion of the legislature. As Justice Jackson stated years ago, a

holding of invalidity under the Equal Protection Clause “does not disable

any governmental body from dealing with the subject at hand.”           Ry.

Express Agency v. New York, 336 U.S. 106, 112, 69 S. Ct. 463, 466, 93

L. Ed. 533, 540 (1949) (Jackson, J., concurring).

      The case against “The Structural Injunction” in the education

context was made by Chief Justice Roy Moore, formerly of the Alabama

Supreme Court, in Ex parte James. In that case, Chief Justice Moore

went to great lengths to undermine the power of judicial review and to

suggest that the courts must generally defer to political branches of

government. Ex parte James, 836 So. 2d at 856 (Moore, C.J., concurring

in the result in part and dissenting in part).

      I do not find, however, that problems related to remedies should

oust this court’s ability to consider the substantive merits of this case.

Such an approach would establish an unwise precedent.            Broadside

statements regarding “The Structural Injunction,” for instance, threaten

to undermine not only the result in this case, but bedrock cases such as

Brown, Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d

799 (1963), the courageous holding in Aderholt, and countless less

celebrated cases dealing with the nitty gritty of obtaining constitutional

compliance with respect to overcrowded prison systems and grossly

inadequate mental health facilities.      Sweeping declarations regarding

remedies also ignore the highly nuanced approaches of many state
                                     162

courts to remedial issues related to the provision of adequate education

that emphasize collaboration over confrontation. See, e.g., Rell, 990 A.2d

at 221–23 (discussing need for flexible, graduate remedies); Campaign for

Fiscal Equity, Inc., 801 N.E.2d at 344–49 (N.Y. 2003) (discussing flexible

remedies in education context).

      While a prudent and respectful approach to potential remedies

makes sense, this case should not be a springboard for this court to

adopt a radical doctrine that threatens many decades of jurisprudence.

A disabling doctrine of sharply curtailed remedies would reduce the

guarantees of the State and Federal Constitutions that protect individual

liberties and establish affirmative duties to hollow platitudes.           This

indirect substantive evisceration of our State and Federal Constitutions

is a project that may appeal to others, but not to me.

      VII. Conclusion.

      In my view, regardless of whether the plaintiffs have pled and/or

preserved a claim under article IX of the Iowa Constitution or stated a

claim under the Due Process Clauses of the Iowa and Federal

Constitutions, I believe it is inescapable that education is a fundamental

interest under the state constitutional guarantee of equal protection.

Because of the sensitive nature of educational decision making, however,

I would differentiate between a basic or adequate education and other

elements of education that fall outside that category.        I would apply

heightened scrutiny with respect to claims of deprivation of adequate

education and only a rational basis type scrutiny to other claims.

      Having   determined    these   legal   issues,   I   would   apply   our

traditionally liberal pleading standards to the plaintiffs’ petition.      The

petition is not very precise and does not clearly outline what government
                                       163

action is causing what deprivation. Nevertheless, I am not prepared to

say at this stage that there is no possibility that the plaintiffs will be able

to show an entitlement to relief. Rather than rush to judgment in this

case without the development of an adequate factual record, I would

deny the motion to dismiss and remand the case to the district court for

further proceedings.

      Hecht, J., joins this dissent.
