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

. Plaintiffs do not allege that a suspect class

is involved, but they claim that education is a fundamental right. For

purposes   of   federal   constitutional   analysis,   education   is   not   a

fundamental right. San Antonio Indep. Sch. Dist. v. Rodriguez,

411 U.S. 1, 35

93 S. Ct. 1273

, 1297,

36 L. Ed. 2d 16, 44

 (1973); see also Plyler v.

Doe,

457 U.S. 202, 223

102 S. Ct. 2382, 2398

72 L. Ed. 2d 786, 803

(1982) (“Nor is education a fundamental right; a State need not justify by

compelling necessity every variation in the manner in which education is

provided to its population.”).

      This does not control the analysis under the Iowa Constitution.

True, in Exira, we quoted from Rodriguez and relied on its reasoning.

Exira, 512 N.W.2d at 794–95.         In discussing that decision, we said,

“Although important, education is not a fundamental right.” Id. at 794.

But as we have noted, the Exira plaintiffs were not maintaining that the

challenged law intruded upon a fundamental right. Id. at 793. Thus, we

believe it remains an open question whether education is a fundamental

right under the Iowa Constitution.

      We have recently said,

      [N]either this court nor the Supreme Court has created a
      clear test for determining whether the claimed right is a
      fundamental right. . . . [O]nly rights and liberties that are
      objectively “ ‘deeply rooted in this Nation’s history and
      tradition’ ” and “ ‘implicit in the concept of ordered liberty’ ”
      qualify as fundamental.

Hensler v. City of Davenport,

790 N.W.2d 569, 581

 (Iowa 2010) (citation

omitted) (quoting Chavez v. Martinez,

538 U.S. 760, 775

123 S. Ct. 40

1994, 2005,

155 L. Ed. 2d 984, 999

 (2003)); accord Seering,

701 N.W.2d at 664

 (declining to hold freedom of choice in residence to be a

fundamental right even though it is “of keen interest to any individual”).

Fundamental rights are generally those explicitly or implicitly contained

in the Constitution.    Plyler,

457 U.S. at 218

 n.15,

102 S. Ct. at 2395

n.15,

72 L. Ed. 2d at 799

 n.15; Sanchez,

. 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,

.

      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,

 (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,

.           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,

.

      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,

, 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),

, 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,

 (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,

, 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),

 (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),