Rozanne E. King Alisha Jane King Dacie S. Houston, Individually and as Mother and Next Friend of Skylar Dwayne Ostrander, Chay Cortez Ostrander, and Adlia William Cortez Flood III Brandy R. Drake, Individually and as Mother and Next Friend of Logan Genner Luhmann, Susan Maule, Stephanie Maule, and Jacob Maule Michael Campbell, Individually and as Father and Next Friend of George Campbell and Soph , 2012 Iowa Sup. LEXIS 40 ( 2012 )

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 Cl. Ch. 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.
401994, 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.
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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.
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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
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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,
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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
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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
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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
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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.
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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
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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
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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).
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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.
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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).
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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
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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
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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
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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.