Motion To Dismiss Petition For Judicial Review of Agency Action Declaratory Ruling and Injunctiv

E-FILED 2020 SEP 03 4:48 PM POLK - CLERK OF DISTRICT COURT
IN THE IOWA DISTRICT COURT FOR POLK COUNTY
DES MOINES INDEPENDENT Case No. CVCV060611

COMMUNITY SCHOOL
DISTRICT; KYRSTIN DELAGARDELL
E, in her official capacity
as Board Chair; DWANA BRADLEY, in
his official capacity as Board Vice Chair;
ROB X. BARRON, in his official
capacity as Board Member; TEREE
CALDWELL-JOHNSON, in her official MOTION TO DISMISS PETITION FOR
capacity as Board Member; KALYN JUDICIAL REVIEW OF AGENCY
CODY, in her official capacity ACTION, DECLARATORY RULING,
as Board Member; KIMBERLY AND INJUNCTIVE RELIEF
MARTORANO, in her official capacity
as Board Member; and KELLI SOYER, in
her official capacity as Board Member,
Petitioners,
v.
GOVERNOR KIMBERLY K.
REYNOLDS, in her official capacity as
Governor of the State of Iowa;
ANN LEBO, in her official capacity as
Director of the Iowa Department of
Education; the IOWA STATE BOARD
OF EDUCATION; the IOWA
DEPARTMENT OF EDUCATION; the
IOWA DEPARTMENT OF PUBLIC
HEALTH; and DR. CAITLIN PEDATI,
in her official capacity as State
Epidemiologist of the Iowa Department of
Public Health,
Respondents.
COME NOW Respondents, Governor Kim Reynolds, the Iowa Department of Education
(“IDOE”), the Iowa State Board of Education, IDOE Director, Ann Lebo, the Iowa Department of
Public Health (“IDPH”), and Dr. Caitlin Pedati, State Epidemiologist, and move to dismiss the
above-captioned petition pursuant to Iowa Rule of Civil Procedure 1.421(1)(a) and (f), and in
support thereof, respectfully state the following:
INTRODUCTION
The Petitioners, the Des Moines Independent Community School District (“District”) and
the members of the Des Moines School Board (“Board”) allege Governor Kim Reynolds’s,
IDOE’s, and IDPH’s response to the current COVID-19 pandemic with respect to in-person
instruction in schools is constitutionally infirm and contrary to the Iowa Code. The Petition names
Governor Reynolds, the Iowa State Board of Education, IDOE, IDOE Director Dr. Ann Lebo and
State Epidemiologist Dr. Caitlin Pedati, as Respondents.
Respondents understand that this matter involves the vital field of public education and an
important policy debate about public health. King v. State, 818 N.W.2d 1, 4 (Iowa 2012). But this
matter also concerns who should make the decisions about education, especially in a time of
emergency. The legislature may assign some specific authority to local school boards, but retains
plenary authority over education in Iowa. Id. at 29 (legislature can decide that local control is
preferable in some instances); Exira Cmty. Sch. Dist. v. State, 512 N.W.2d 787, 795-96 (Iowa
1994). The wisdom of the legislature’s policy choices is beyond the Court’s purview. Exira, 512
N.W.2d at 795-96. Petitioners request that the Court oversee the legislature’s and executive
branch’s decisions, but “court is without either the resources or the expertise necessary” to impose
public school standards. Id. (quoting Johnson v. Charles City Cmty. Schs., 368 N.W.2d 74, 79
(Iowa 1985)). And while the policy dialogue may certainly continue outside the courtroom, the
dispute inside the courtroom should not move forward. See King, 818 N.W.2d at 39 (Cady, C.J.,
concurring specially) (commenting that an education-related lawsuit against the state “may be a
call to action, but it is a call under our constitutional structure for the legislature, not the courts”).
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This Petition should be dismissed for the following reasons. Petitioners present this Court
with a nonjusticiable political question which should be resolved in the legislature and the
Executive Branch. Neither Petitioner has standing to bring suit. Petitioners have improperly
joined a petition for judicial review with original actions requesting declaratory and injunctive
relief. Petitioners bring original actions for declaratory and injunctive relief against state agencies,
but their exclusive remedy is judicial review under Chapter 17A. Petitioners have improperly
named individuals as Respondents in their petition for judicial review, in addition to the agencies.
Petitioners have brought a judicial review action against the Governor, who is not an agency under
Chapter 17A. Petitioners have not complied with the strict pleading standards set forth in Chapter
17A for judicial review actions. Petitioners have requested forms of injunctive relief that are not
yet ripe, and also forms of injunctive relief that are overly broad and vague. Finally, although the
Petition purports to raise significant issues of public policy, the Petition does not state a claim upon
which this Court could grant the relief Petitioners seek.
FACTS AND PROCEDURAL BACKGROUND
To order for the Court to understand the agency actions and the statute (SF 2310) that
Petitioners challenge here, Respondents must provide some background information concerning
preexisting school law, school closures in the spring of 2020 due to COVID-19, and the
abbreviated June legislative session that produced SF 2310. 1
1
These facts derive from Iowa Code, the Governor’s Proclamations, and other public documents
that the Court can judicially notice in a motion to dismiss. See Salsbury Labs. v. Iowa Dept. of
Env. Quality, 276 N.W.2d 830, 835-836 (Iowa 1979).
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I. INSTRUCTIONAL TIME REQUIREMENTS AND REMOTE LEARNING FOR

IOWA DISTRICTS PRIOR TO SF 2310.
The Iowa Code dictates to school boards how much instructional time must be provided in
a school year. Every year, Iowa school districts must provide either 180 days or 1080 hours of
instruction. Iowa Code §§ 279.10, 256.7(19). A district can choose whether to operate on an hours
or days model. Iowa Code § 279.10. A day or hour of attendance is defined in rule as a day or
hour when school is in session and open for all grades, and students are present and under the
guidance and instruction of the professional staff. 281 Iowa Admin. Code r. 12.1(7)-(10).
Everyone who attended school in Iowa or has a child who does is familiar with “snow
days” and the possibility of having to “make up” snow days if a winter is severe and the district
has to close for more days than it planned for. If a district closes for inclement weather, the district
still has to provide 180 days or 1080 hours of instruction. It may have to make up hours or days
later in the school year so that the hours/days requirement is met.
IDOE provided guidance, last updated in January, which stated that "e-learning" days do
not count toward the days/hours requirement. Ex. A. A day where instruction is provided through
remote learning is not a day where school is open and students are present and under the care of
professional staff. Prior to the Governor’s Proclamation pursuant to SF 2310, Iowa districts could
not offer remote instruction on a snow day to avoid having to close school.
Remote learning in general was highly restricted before the passage of SF 2310. Prior to
SF 2310, any Iowa district that wanted to offer an online program had to receive approval from
IDOE and follow strict requirements. Iowa Code § 256.41; 281 Iowa Admin. Code r. 15. A district
could get a waiver to offer specific courses online. 281 Iowa Admin Code r. 15.11. But districts
could not decide to move their entire curriculum online. In 2019, eight Iowa school districts (out
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of 330), including the Des Moines Public Schools, had an online program for some students. But
no Iowa district could provide all of its instruction remotely at any time prior to SF 2310.
II. IOWA SCHOOL CLOSURES IN THE SPRING OF 2020.
The Iowa Code provides the Iowa Governor with extensive powers to respond to a public
health disaster emergency that threatens the lives and livelihoods of Iowans. See Iowa Code ch.
29C, 135. When the COVID-19 pandemic reached Iowa in March 2020, Governor Reynolds
issued the first of many Proclamations of Disaster Emergency related to the COVID-19 pandemic.
Petition ¶¶ 8-9. On March 15, Governor Reynolds recommended that Iowa schools close for four
weeks to prevent the spread of COVID-19. But schools that were closed might still have to make
up instructional time at some point in the future or violate Iowa law.
Before it paused its 2020 session, the legislature solved this problem for the 2019-2020
school year. On March 17, Governor Reynolds signed SF 2408, which waived the instructional
time requirements under Iowa Code sections 279.10 and 256.7(19) for the 2019-2020 school year
for districts that were closed by April 12, 2020, and empowered the Governor to waive those
requirements for districts that closed after April 12. Ex. B. However, this statute created only a
temporary solution to the problem of school closures. By its terms the statute expired on July 1,
2020, and only applied to the 2019-2020 school year.
In a Proclamation on April 2, Governor Reynolds ordered schools to close until April 30.
Ex. C. Under the authority granted in SF 2408, she waived the instructional time requirements for
all Iowa districts as long as they submitted to IDOE a plan for offering continuous learning services
to their students. Ex. C, Sections 1 and 2. In a Proclamation on April 27, Governor Reynolds
closed Iowa schools for the rest of the 2019-2020 school year, and again waived the instructional
time requirements for all Iowa districts as long as they submitted to IDOE a continuous learning
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plan. Ex. D, Sections 13 and 14; Petition ¶ 9. The continuous services Iowa districts provided in
the spring of 2020 after schools closed could be either voluntary or compulsory. Ex. C and D.
Most Iowa districts provided only voluntary enrichment activities during the spring 2020 school
closures. Petition ¶ 9; Register Staff, Most Central Iowa Districts Opt For Voluntary Distance
Learning, Des Moines Register (Apr. 10, 2020).
III. THE LEGISLATURE’S JUNE SESSION AND SF 2310.
The legislature suspended its session in March to avoid the spread of COVID-19. The
legislature returned in June to finish its shortened session and unanimously passed Senate File (SF)
2310, to allow school districts flexibility as they planned the return to school while the pandemic
continued. Id. ¶ 56; Pet. Ex. 8. SF 2310 must be read against the backdrop of the unprecedented
school closures in the spring of 2020. The situation the legislature faced in June was this: the
COVID-19 pandemic is ongoing, but Iowa students still need to be educated. Schools had
provided only some voluntary enrichment while they were closed. Parents and communities rely
on their schools. Some students rely on schools for food, supervision, special education services,
or medical services. SF 2310 is the result of the legislature’s debate over what education would
look like in the 2020-2021 school year, in a pandemic.
SF 2310 grants new authority and flexibility to Iowa school districts, so they can respond
to pandemic conditions, keep students safe, and also provide necessary instruction and support to
Iowa students. SF 2310 permits remote instruction to count toward required instructional time.
However, because the legislature valued in-person instruction highly, it puts some guardrails
around districts’ decisions and only permits primarily remote instruction in certain circumstances.
The relevant sections of SF 2310 are as follows:
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Section 9: Section 9 amends Iowa Code sections 279.10 to allow al Iowa districts, for the
first time, to count remote instruction toward the instructional time requirements outside of a
specifically approved online course. They may do so only if they are providing this instruction
remotely because of the COVID-19 pandemic: “in response to a proclamation of public health
disaster emergency…related to COVID-19.” Section 9 cautions, however, that “in-person
instruction is the presumed method of instruction.” Section 9 does not state how much remote
instruction can count toward a district’s required instructional time.
Section 14: Section 14 provides that during the pandemic, if the Governor has proclaimed
a disaster emergency (as she has continually since March), local school boards may close a
building or an entire district due to an outbreak of COVID-19. Section 14 does not address the
issue of whether schools can offer remote learning during a closure or whether the hours or days
of remote instruction will count toward a district’s required instructional time.
Section 15(1): Section 15 tackles the thorny issue of how much remote instruction a district
can provide and whether to count remote instruction toward a district’s required instructional time.
The legislature could have decided that any amount of remote instruction would count. That is the
District’s preferred outcome. However, the legislature instead provided that districts can provide
remote instruction, but shall not “take action to provide instruction primarily through remote-
learning opportunities” unless “explicitly authorized in a proclamation of a public health disaster
emergency issued by the governor…related to COVID-19.” This sentence is the center of the
parties’ dispute in this case.
Section 15(2): Section 15(2) informs districts that if they choose to offer a period of remote
instruction, they must ensure that teachers and staff are available to students. This is likely in
response to the legislature’s concern that districts offer compulsory instruction, not voluntary, that
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is as close as possible to school before the pandemic. Read together with Section 15(2), the statute
permits districts to decide to offer some remote instruction on their own, as long as it is not the
primary method.
Section 18: Section 18 reiterates that a school district may provide remote instruction not
withstanding other provisions of Iowa code, and without having been approved through IDOE’s
preexisting process for approving online education.
IV. GOVERNOR REYNOLDS’ JULY 17 PROCLAMATION APPROVING

PRIMARILY REMOTE LEARNING UNDER CERTAIN CIRCUMSTANCES.
Under SF 2310 the Governor has the authority to issue a proclamation permitting districts
to provide instruction primarily through remote-learning opportunities. However, Governor
Reynolds did not grant districts carte blanche to provide all instruction remotely. She has a
constitutional duty to see that the laws are enforced, including the provisions of SF 2310 which
describe the legislature’s preference for in-person education as the “presumed” method of
instruction during the 2020-2021 school year. On July 17, 2020, in order to comply with SF 2310
and provide guidance to Iowa school districts, Governor Reynolds issued a Proclamation in which
she explained when school districts could provide instruction primarily through remote-learning
opportunities. Petition ¶¶ 70-71; Pet. Ex. 3. These include:
(1) when a child’s parent or guardian chooses remote instruction for that child, for
any reason;
(2) when IDOE, in consultation with the Department of Public Health, approves a
district to do so temporarily because of public health conditions in the district;
(3) when the district determines that a student or classroom must move online
temporarily because of public health conditions; and
(4) during inclement weather (potentially solving the “snow days” issue). Pet. Ex. 3.
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If Governor Reynolds had not issued a Proclamation granting permission to districts to
provide instruction primarily through remote learning in some circumstances, then under the terms
of SF 2310, districts would not have been permitted to provide primarily remote learning at any
time.
V. IDOE AND IDPH GUIDANCE ON SF 2310 AND WHEN LOCAL CONDITIONS

REQUIRE PRIMARILY REMOTE LEARNING.
The same day that Governor Reynolds issued the Proclamation, July 17, IDOE provided
guidance to Iowa school districts on SF 2310 and the Governor's Proclamation. Petition ¶¶ 72; Pet.
Ex. 4. That guidance explained that IDOE’s interpretation of SF 2310's prohibition on taking action
to provide instruction primarily remote learning. IDOE’s guidance stated that a school cannot
provide more than half of its instruction to students through remote learning opportunities over
any two-week period except in the situations authorized by the Governor in the July 17
Proclamation. Pet. Ex. 4; pp. 1, 4-5, 11.
IDOE issued additional guidance for districts on July 30. Pet. Ex. 6, p. 1. The July 30
guidance informed districts when IDOE, in consultation with IDPH, would approve requests to
temporarily provide instruction primarily through remote-learning opportunities, under the
authority granted in the Governor’s July 17 Proclamation. ¶ 73-79; Pet. Ex. 6. Where COVID-19
transmission in a county (or counties, as some districts are in more than one county) is substantial,
as reflected in a 15% or greater positivity rate in testing over the preceding 14 days and 10%
absenteeism among students expected for in-person learning, IDOE may approve a district to
temporarily provide instruction primarily through remote learning. Pet. Ex. 6, p. 2. Where
COVID-19 transmission is minimal to moderate, districts must continue to provide primarily on-
site learning. Id. at pp. 1-2.
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VI. THE DISTRICT’S REQUEST FOR PERMISSION TO PROVIDE ALL

INSTRUCTION REMOTELY.
On August 17, the District requested permission to provide instruction primarily online to
start the school year and to count that remote instruction toward the total instructional time required
of the District under Iowa Code. Petition ¶ 89; Pet. Ex. 1. The District proposes to continue
offering extracurricular activities in-person, however, even when it provides instruction primarily
through remote learning. Petition ¶ 109(e). The levels of community transmission in Polk County
at the time of the District’s request did not reach the substantial level that, according to the Iowa
Department of Public Health and IDOE guidelines, would make primarily remote instruction
necessary. Pet. Ex. 2. Therefore, on August 21, IDOE denied the District’s request to begin the
2020-2021 school year with primarily remote instruction and to count that remote instruction
toward the total instructional time required of the District under Iowa Code. Id.
STANDARD FOR GRANTING MOTION TO DISMISS
A motion to dismiss tests the legal sufficiency of a petition. Rieff v. Evans, 630 N.W.2d
278, 284 (Iowa 2001). In considering a motion to dismiss, a court should construe the petition in
the light most favorable to the plaintiff with doubts resolved in the plaintiff’s favor. Haupt v.
Miller, 514 N.W.2d 905, 911 (Iowa 1994); Weber v. Madison, 251 N.W.2d 523, 525 (Iowa 1997).
The grounds for a motion to dismiss must be based upon the pleadings themselves, unless judicial
notice can be taken of additional facts. Haupt, 514 N.W.2d at 911. When reviewing the question
of whether a court lacks jurisdiction because of a failure to exhaust administrative remedies, the
court may judicially notice a public document issued by a state agency. Salsbury Labs. v. Iowa
Dept. of Env. Quality, 276 N.W.2d 830, 835-836 (Iowa 1979); King, 818 N.W.2d at 6 & n.1 (in
ruling on a motion to dismiss, courts must ordinarily consider documents incorporated into the
complaint by reference).
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DISCUSSION
I. PETITIONERS’ CHALLENGE TO THE ALLOCATION OF EDUCATIONAL

DECISION-MAKING AUTHORITY PRESENTS A NONJUSTICIABLE
QUESTION.
Petitioners are asking the Court to choose a side in an ongoing public policy debate over
local control of education and the risks and benefits involved in providing in-person instruction in
Iowa schools during the COVID-19 pandemic. In the very first paragraph of their Petition, the
District and Board Members confirm that this is a dispute about who gets to make policy decisions,
stating that “this is a case about local control.” Petition ¶ 1. They want this Court to enjoin the
State from “forcing DMPS to reopen schools when it is unsafe to do so.” Petition ¶ 109(a). The
Court should dismiss Petitioners’ claims because they present only a nonjusticiable political
question. See King, 818 N.W.2d at 16; Des Moines Register & Tribune Co. v. Dwyer, 542 N.W.2d
491, 495 (Iowa 1996) (extensively analyzing, without deciding, whether claim about educational
policy is a political question).
The political question doctrine, of course, does not mean “political” in a partisan sense.
Rather, it excludes from judicial review those controversies which revolve around policy choices
and value determinations constitutionally committed for resolution to the legislature or the
executive branch. King, 818 N.W.2d at 16-17. The Iowa legislature debated whether schools
should provide in-person instruction during the pandemic, and created a plan for that to take place
in SF 2310. The executive branch, including the Governor, the Department of Public Health, and
the Department of Education, carried out the plan in SF 2310 and gave guidance to school districts.
The Court should not intervene in an educational policymaking process that is properly being
carried out by the other two branches of Iowa government. Id. at 4 (“[S]pecific challenges to the
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educational policies of this state are properly directed to . . . elected representatives, rather than
the court.”).
A political question may be found when one or more of the following considerations is
present: (1) a textually demonstrable constitutional commitment of the issue to a coordinate
political department; (2) a lack of judicially discoverable and manageable standards for resolving
the issue; (3) the impossibility of deciding without an initial policy determination of a kind clearly
for nonjudicial discretion; (4) the impossibility of a court's undertaking independent resolution
without expressing a lack of the respect due coordinate branches of government; (5) an unusual
need for unquestioning adherence to a political decision already made; or (6) the potentiality of
embarrassment from multifarious pronouncements by various departments on one question. King,
818 N.W.2d at 17 (majority opinion); Des Moines Register & Tribune Co. v. Dwyer, 542 N.W.2d
491, 495 (Iowa 1996) (citing Baker v. Carr, 369 U.S. 186 (1962)). Whether a matter involves a
“political question” is determined on a case-by-case basis and requires an examination of the nature
of the underlying claim. Dwyer, 542 N.W.2d at 495–96.
Several of the above considerations are present here, demonstrating that this case presents
a nonjusticiable political question. First, the Iowa Constitution commits the responsibility for
emergency response to the Governor and the executive branch, and the responsibility for education
policy and funding to the legislature. The Iowa Constitution grants to the Governor the “supreme
executive power,” a very broad grant of authority. Art. IV, sec. 1. The Governor has the authority
to “transact all executive business with the officers of government, civil and military.” Art. IV,
sec. 8. The Iowa legislature has granted the Governor broad powers to respond to disasters through
the Emergency Management and Security statute, Iowa Code chapter 29C. By issuing an
emergency proclamation, the Governor may prohibit public gatherings, suspend any regulatory
12
statute, and use all available state government resources. Iowa Code §§ 29C.3(4)(1); 29C.6(6),
(10). These provisions reflect the legislature’s determination that a statewide disaster emergency
should have a coordinated, state-led response with sufficient reach and command to address the
magnitude of the harms posed by the disaster emergency. See also Iowa Const. article IV, §§ 1, 9
(providing the Governor has “supreme executive authority” and “shall take care that the laws are
faithfully executed”).
An emergency proclamation is an appropriate exercise of executive power and is grounded
in the state’s traditional police power. See Gravert v. Nebergall, 539 N.W.2d 184, 186 (Iowa
1995) (stating the police power is the authority “to pass laws that promote the public health, safety,
and welfare”); Friends of Danny DeVito v. Wolf, 227 A.3d 872, 886 (Pa. 2020) (Governor’s
COVID-19 emergency order is appropriate exercise of executive power). The state’s police
powers in an emergency were first outlined by the U.S. Supreme Court over a century ago in the
foundational case of Jacobson v. Massachusetts, in which the Court recognized the authority of
states to enact “quarantine laws and health laws of every description” and recognized that “the
liberty secured by the Constitution of the United States to every person within its jurisdiction does
not import an absolute right to be, at all times and in all circumstances, wholly freed from restraint.
There are manifold restraints to which every person is necessarily subject for the common good.”
197 U.S. 11, 25, 26 (1905) (emphasis supplied). States are authorized during a pandemic to
implement emergency measures provided that they have at least some “real or substantial relation”
to the protection of the public health and are not “beyond all question, a plain, palpable invasion
of rights secured by the fundamental law.” Id. at 31. The Iowa Supreme Court has cited Jacobson
in seven of its decisions, affirming that public health is a proper subject of a state’s police powers.
See, e.g., Wilson v. City of Council Bluffs, 110 N.W.2d 569, 166–67 (Iowa 1961) (affirming
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ordinance providing for fluoridation of water to prevent cavities in children); State v. Strayer, 299
N.W. 912 (Iowa 1941) (affirming public nuisance statute); Loftus v. Dep’t of Agriculture, 232
N.W.412 (Iowa 1930) (affirming authority of department of agriculture to enforce bovine
tuberculosis law). The Iowa Supreme Court has also long upheld the state and county’s ability to
establish and enforce quarantine and other public health measures restrictive of individual liberties.
See State v. Kirby, 94 N.W. 254 (Iowa 1903); Beeks v. Dickinson County, 108 N.W. 311 (Iowa
1906).
The field of education has also been committed to the responsibility of a particular branch
of government. The Iowa Constitution specifically confers on the legislature broad policymaking
authority over education. Article IX, division 1, section 15 states that the General Assembly shall
have power after 1863 to “provide for the educational interest of the state in any other manner that
to them shall seem best and proper.” Kinzer v. Dirs. of Indep. Sch. Dist., 129 Iowa 441, 444, 105
N.W. 686, 687 (1906) (citing this constitutional provision and stating that “the Legislature is
expressly authorized to provide for the educational interests of the state, in such manner as shall
seem best and proper”); see also King, 818 N.W.2d at 17; Bunger v. Iowa High Sch. Athletic Ass'n,
197 N.W.2d 555, 563 (Iowa 1972). As the Iowa Supreme Court has held, the legislature has the
power to create or even eliminate a school district entirely, “without constitutional impediment.”
Exira, 512 N.W.2d at 795. Educational policy decisions, right or wrong, are within the
legislature’s authority, and not subject to judicial review. Id.
Second, Petitioners are requesting the Court to allocate policymaking authority between
different agencies of government outside the judicial branch. The Court lacks judicially
discoverable and manageable standards for undertaking such a task. See King, 818 N.W.2d at 40
(Waterman, J., concurring specially) (“Our courts are not institutionally competent to make
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educational policy judgments.”). The legislature has created both IDOE and local school boards to
govern aspects of public education. Through SF 2310, and many other sections of Code, it has
delineated the balance of authority between them. See, e.g., Petition ¶¶ 56-66; Iowa Code § 274.3
(authorizing school boards to exercise any power not inconsistent with the laws of the general
assembly”). The court lacks “either the resources or expertise necessary” to set educational
standards or policy. King, 818 N.W. 2d at 5 (majority opinion) (citing Johnson v. Charles City
Community Schools Board of Education, 368 N.W.2d 74, 79 (Iowa 1985)). Petitioners request,
inter alia, that the Court enjoin the State from “usurping the authority of local school boards to
made decisions regarding building and district operations.” Petition ¶ 109(b). The Court has no
judicially manageable standards to approach such a task. It cannot be a permanent referee between
the State and a subsidiary political entity like a school board. It is not the role of the Court to
determine which education policy decisions belong at the local level, and which belong to the state.
Nor does the Court have the expertise or judicially manageable standards to determine
when it is safe or unsafe for the District to provide instruction in person or remotely. See Petition
¶ 109(a)(requesting injunction against “forcing DMPS to reopen schools when it is unsafe to do
so”). In the context of public health measures taken in response to the COVID-19 pandemic, the
court’s role is circumscribed. In re Abbott, 954 F.3d at 772, 784–85 (quoting Jacobson, 197 U.S.
at 28–38) (internal citations omitted). The Court is not in the best position to make public health
decisions.”); Alsop v. DeSantis, Case No. 8:20-cv-1052-T-23SPF, 2020 WL 4927592, at *5M.D.
Fla. Aug. 21, 2020) (applying Jacobson and denying preliminary injunction sought by owners of
vacation rental residences). The Constitution principally entrusts “[t]he safety and the health of
the people” to the politically accountable officials of the States “to guard and protect.” Jacobson,
197 U.S. 11, 38 (1905). When those officials “undertake[] to act in areas fraught with medical and
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scientific uncertainties,” their latitude “must be especially broad.” Marshall v. United States, 414
U.S. 417, 427, 94 S. Ct. 700, 38 L.Ed.2d 618 (1974). They should not be subject to second-
guessing by an unelected judiciary which lacks the background, competence, and expertise to
assess public health and is not accountable to the people. See Garcia v. San Antonio Metropolitan
Transit Authority, 469 U.S. 528, 545 (1985). Petitioners’ request that the Court opine on a public
health disaster should be dismissed because it invites an inappropriate intervention into matters
properly entrusted to the legislature and the executive branch.
Third, it would be impossible for the Court to rule in Petitioners’ favor without intruding
upon the other branches of government. Petitioners are asking the Court to judge the wisdom of
returning to the classroom in person. See ¶¶ 10-28 (information about risks of COVID-19
infection, testing for COVID-19); ¶ 98 (Respondents’ actions are reasonably expected to lead to
drastic increases in community transmission of COVID-19, illness, and death). Whether and when
to allow remote instruction is a policy decision. This policy decision has been made by the
executive and legislative branches working together, using the structure the legislature created in
SF 2310, and the proclamation and IDOE guidance SF 2310 authorized. The proper place for
addressing the public health and education-related questions that have arisen during this pandemic
is in the executive branch and the legislature. In order to rule on this case, the Court would have
to supplant the decision of both of the other branches of government. See Iowa State Educ. Ass’n
v. State, 928 N.W.2d 11, 13 (Iowa 2019) (“Our role is . . . not to sit as a superlegislature rethinking
policy choices of the elected branches.”); King, 818 N.W.2d at 40 (Waterman, J., concurring
specially) (“We do not sit as the supreme school board of the State of Iowa . . . .”).
In King v. State, the Court conducted a political question analysis of a claim that Iowa’s
education standards were unconstitutionally deficient, although the Court ultimately decided the
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case on other grounds. 818 N.W.2d at 16-22. Indeed, the Court indicated in King that “the merits
of state mandates versus local control in public education” was likely a nonjusticiable political
question because it required “an initial policy determination of a kind clearly for nonjudicial
discretion.” King, 818 N.W.2d at 18. This case is a mirror-image of King. The plaintiffs in King
wanted the State to establish and enforce statewide educational standards, assessments, and teacher
training, recruitment, and retention. Id. at 10-11. The Court decided that these policy decisions
belonged to the legislature, and if the legislature chose to assign these decisions to the local school
districts, they could do so. Here, the State has imposed statewide standards and policy decisions
on local districts concerning remote instruction. Under the analysis in King, that choice also
properly belongs to the legislature. Either way, the court should not “enter into a longstanding
debate over the merits of state mandates versus local control in public education.” Id. at 18.
II. PETITIONERS LACK STANDING TO BRING THIS SUIT ON BEHALF OF

STAFF, STUDENTS, OR THE DES MOINES COMMUNITY.
Courts have traditionally been cautious in exercising their authority to decide disputes, and
will only do so when the party asserting an issue has standing. Godfrey v. State, 752 N.W.2d 413,
417 (Iowa 2008). Standing to sue means a party has “sufficient stake in an otherwise justiciable
controversy to obtain judicial resolution of that controversy.” Alons v. Iowa Dist. Court for
Woodbury Cty., 698 N.W.2d 858, 863–64 (Iowa 2005). When evaluating standing, the Court
should focus on whether the plaintiffs are the proper parties to bring the action, not on the merits
of their claims. Citizens for Responsible Choices v. City of Shenandoah, 686 N.W.2d 470, 475
(Iowa 2004).
17
A. The District lacks standing to sue on behalf of faculty, staff, students, or

community members.
Petitioners state that they are bringing suit to protect the health and safety of students, staff,
and the Des Moines community. Petition ¶¶ 1, 110 (case involves “school districts, their
employees, and the children in their care”). However, a party may only assert his own rights, not
those of third parties. Krull v. Thermogas Co., 522 N.W.2d 607, 614 (Iowa 1994). The District
represents only itself, as a school corporation. See Iowa Code § 274.1. It does not represent its
staff, teachers, students, or the families of students. To the extent Petitioners claim to represent
these individuals, these claims must be dismissed.
Although they do not explicitly state it, Petitioners may be claiming to represent the
children in their care through parens patriae standing. Petition ¶ 1 (District is responsible for the
children in its care). Parens patriae standing represents the interests that a state has in the well-
being of its populace. Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 602 (1982).
However, only states and the federal government may sue as parens patriae. Id. Political
subdivisions lack the element of sovereignty that is a prerequisite to maintaining a suit under the
doctrine of parens patriae. See Board of County Commissioners v. Denver Board of Water
Commissioners, 718 P.2d 235 (Colo.1986); United States v. City of Pittsburg, California, 661 F.2d
783 (9th Cir.1981); Capital View Fire Dist. v. Cty. of Richland, 377 S.E.2d 122, 124 (Ct. App.
1989). The District is not a sovereign, but a political subdivision whose powers are derivative of
the State of Iowa.
Since the District cannot sue on behalf of its teachers or staff, it also cannot ask for an
injunction to prohibit future enforcement against any individual teacher or staff member’s
professional license, even if such a request was ripe for review. See Petition ¶ 109(d).
18
Petitioners likely do have standing to bring an action for judicial review of the denial of
their request for a waiver and of the IDOE guidance, on behalf only of the District and the Board.
See Iowa Code § 17A.19(1)(a person aggrieved by final agency action may bring a judicial
review). However, even if the Court found the claims for injunctive and declaratory relief to be
otherwise justiciable, Petitioners do not have standing to bring those claims.
B. The District Does Not Allege A Cognizable Injury To Support Its Claims for
Injunctive or Declaratory Relief.
The District does not allege any injury which would support standing to bring the injunctive
or declaratory relief claims. The major injury it claims to suffer is the loss of control to make
decisions at a local level. See, e.g., Petition ¶ 1 (“this is a case about local control”); 109. The
District’s request to continue to provide in-person extracurricular activities, including contact
sports, while arguing that providing in-person instruction is too dangerous to even be considered,
demonstrates that its real concern here is its perceived loss of local control. See Petition ¶¶ 6-28
(describing pandemic and health risks of COVID-19); ¶ 109(e)(requesting injunction allowing
District to continue to provide in-person extracurriculars); Statement of Superintendent Tom
Ahart, available at https://www.dmschools.org/news_release/dmps-files-petition-with-polk-
county-district-court/ (high school sports will continue even if instruction primarily online).
However, a school district is created by the legislature, and its activities are directed daily
by Iowa law and overseen by IDOE. See Iowa Code § 256.1 (IDOE supervises public elementary
and secondary education); Exira, 512 N.W.2d at 795-96 (legislature’s authority over school
districts is broad). The District cannot claim that being regulated by the legislature and IDOE is a
recognizable injury that would support standing.
19
C. A Favorable Decision Would Not Redress the District’s Alleged Injury.
Even if the District’s loss of control were a cognizable injury, a judicial determination that
Governor Reynolds’s Proclamation or IDOE’s guidance are somehow unlawful would not redress
the injury. SF 2310 states that unless the Governor issues a Proclamation permitting it, the District
may never offer instruction primarily through remote learning. SF 2301, § 15; Petition ¶ 64. The
District has not alleged that SF 2310 is invalid or unconstitutional. They allege only that the
Governor’s and IDOE’s actions are infirm. SF 2310 would continue to exist, and continue to
require primarily in-person instruction, if the Governor and IDOE took no action at all. The
District’s “loss of control” cannot be remedied by the relief they request from this Court.
III. THE PETITION IMPROPERLY COMBINES A PETITION FOR JUDICIAL

REVIEW WITH A PETITION FOR DECLARATORY AND INJUNCTIVE
RELIEF.
The Petition seeks (1) judicial review of IDOE’s denial of the District’s request for a
waiver to provide instruction primarily through remote learning (Petition ¶ 93); (2) a declaratory
order pursuant to Iowa Rule of Civil Procedure 1.1101 that IDOE did not have statutory authority
to issue the guidance documents (Petition ¶¶ 100- 106); (3) a declaratory order pursuant to Iowa
Rule of Civil Procedure 1.1101 that Governor Reynolds did not have statutory authority to issue
the July 17 Proclamation (Petition ¶ 98-99); (4) a declaratory order pursuant to Iowa Rule of Civil
Procedure 1.1101 that Respondents’ actions violate Article I, section 2 of the Iowa Constitution
(Petition ¶ 107); and (5) injunctive relief prohibiting Respondents from taking a variety of actions
(Petition ¶ 109). In addition, Petitioners join claims against state agencies (IDOE, IDPH) with
claims against Governor Reynolds, whose office is not an agency under Chapter 17A. Iowa Code
s 17A.2(1). These claims are not compatible in a single action because they invoke the district
court’s original jurisdiction and appellate jurisdiction simultaneously.
20
The judicial review provisions in Iowa Code section 17A.19 are the exclusive means
by which a party aggrieved by agency action may seek judicial review of that action. Iowa
Code § 17A.19; IES Utilities, Inc. v. Iowa Dep’t of Revenue & Fin., 545 N.W.2d 536, 538-39
(Iowa 1996). District courts exercise appellate jurisdiction over agency actions on petitions for
judicial review. Id. at 539. When exercising its appellate jurisdiction during judicial review, a
district court has no original jurisdiction over other matters. Black v. Univ. of Iowa, 362
N.W.2d 459, 462 (Iowa 1985); Iowans for Tax Relief v. Campaign Fin. Disclosure Comm’n,
331 N.W.2d 862, 864 (Iowa 1983) (citing Public Employment Relations Board v. Stohr, 279
N.W.2d 286, 290-91 (Iowa 1979)).
The rationale for not permitting judicial review proceedings to be combined with
original actions is grounded in the significant differences between judicial review cases and
original proceedings. Judicial review proceedings are appellate in nature, ordinarily proceed
only through appellate briefing, and provide only those types of relief to the successful
petitioner which chapter 17A specifically prescribes. Black, 362 N.W.2d at 462. Thus, a
petitioner may not “piggyback” a separate action invoking a district court’s original
jurisdiction with an action for judicial review invoking the district court’s appellate
jurisdiction. Id. at 463; see also Iowans for Tax Relief, 331 N.W.2d at 862-63.
This Petition joins original actions against state agencies for declaratory and injunctive
relief against IDOE and IDPH; judicial review claims against the Governor, who is not an
agency; and a petition for judicial review of agency action. Because the Petition impermissibly
seeks to invoke this Court’s original and appellate jurisdiction in the same action, the case
must be dismissed.
21
IV. ANY ORIGINAL ACTIONS AGAINST IDOE AND IDPH MUST BE DISMISSED
BECAUSE THE EXCLUSIVE MEANS FOR REVIEW OF AGENCY ACTION IS
JUDICIAL REVIEW UNDER CHAPTER 17A.
Even if Petitioners sought to separately bring claims for declaratory and injunctive relief
against IDOE and IDPH, the Court would have no jurisdiction over them because the exclusive
avenue for review of agency action is Chapter 17A. Salsbury Labs. v. Iowa Dep't of Envtl. Quality,
276 N.W.2d 830, 833 (Iowa 1979).
The Board Members and the District challenge (1) IDOE’s denial of the District’s request
for permission to provide primarily remote instruction, and (2) IDOE’s guidance, developed with
IDPH, on schools offering more than half of instruction remotely. Iowa Code chapter 17A is “the
exclusive means by which a person . . . who is aggrieved or adversely affected by agency action
may seek judicial review of such agency action.” Iowa Code § 17A.19 (emphasis added). If the
IDOE is an agency, and if its decisions to (1) require the District to serve its students through
primarily in-person learning, and (2) interpret SF 2310 as requiring primarily in-person learning
are agency actions, then the only method for challenging those decisions is under chapter 17A.
See Genetzky v. Iowa State Univ., 480 N.W.2d 858, 860 (Iowa 1992). Petitioners may not maintain
any common law claims to seek review agency action, including declaratory and injunctive relief.
See e.g., Walsh v. Wahlert, 913 Iowa N.W.2d 517, 525 (Iowa 2018) (remedies provided by chapter
17A are exclusive of common law remedies); Salsbury Labs. v. Iowa Dep’t of Envtl. Quality, 276
N.W.2d 830, 835 (Iowa 1979) (provisions of chapter 17A cannot be avoided in favor of certiorari,
declaratory judgment, or injunction); Grains of Iowa, L.C. v. Iowa Dep’t of Agric. & Land
Stewardship, 562 N.W.2d 441, 443-44 (Iowa Ct. App. 1997) (dismissing a petition for declaratory
judgment that was in effect an appeal of agency action).
22
The Court must resolve three questions to confirm that Petitioners must proceed with their
claims against IDOE solely under chapter 17A: whether IDOE is an agency; whether the denial
of the District’s request and the IDOE’s issuance of guidance are agency action; and whether the
denial and guidance are discernably related to IDOE’s statutory mandate as an agency. The answer
to all three questions is yes.
The first question is easy: the legislature has expressly provided that IDOE is an agency
within the meaning of Iowa Code chapter 17A. Iowa Code § 256.1(5). So is IDPH. Iowa Code
§ 135.11.
The second question requires slightly more analysis, but still has a clear answer. “Agency
action” is defined broadly to include “the whole or part of an agency rule or other statement of
law, policy, order, decision, license, proceeding, investigation, sanction, relief, or the equivalent
or a denial thereof, or a failure to act, or any other exercise of agency discretion or a failure to do
so, or the performance of any agency duty or the failure to do so.” Id. § 17A.2(2); Allegre v. Iowa
State Bd. of Regents, 319 N.W.2d 206, 208 (Iowa 1982) (tenure decisions only reviewable under
chapter 17A due to broad definition of agency action); modified by Papadakis v. Iowa State Univ.
of Sci. & Tech., 574 N.W.2d 258, 260 (Iowa 1997) (faculty member’s employment dispute is only
reviewable under chapter 17A).
Despite Petitioners’ labeling of their claims against IDOE and IDPH as seeking declaratory
and injunctive relief, the definition of “agency action” encompasses them in substance. See, e.g.,
Konrardy v. Vincent Angerer Trust, 925 N.W.2d 620, 623 n.1 (Iowa 2019) (“We look to the
substance of [litigants’] claim, not the label they attach, to determine its legal significance.”);
Berent v. City of Iowa City, 738 N.W.2d 193, 199 (Iowa 2007) (“As is generally true in law, it is
the substance and not the label that is important.”); Bob McKiness Excavating & Grading, Inc. v.
23
Morton Bldgs., Inc., 507 N.W.2d 405, 411 (Iowa 1993) (“We must look beyond the labels to the
actual nature of the action.”). Petitioners challenge IDOE’s guidance that districts must request
permission to offer more than half of instruction over a two-week period through remote learning.
They challenge denial of the District’s request to provide instruction primarily online and assert
no District should not be required to request that permission in the first place. Petition ¶¶ 42-44.
They also challenge the guidance documents that IDOE provided to school districts based on
Senate File 2310 and the Governor’s emergency proclamations. Petition ¶¶ 37-38. Issuing
guidance documents for regulated entities and ruling on a specific legal request are agency action
under Iowa Code section 17A.2(2). The guidance is an “other statement of law or policy;” the
ruling on the District’s request is a decision, order, or relief, or the denial thereof. See Iowa Code
§ 17A.2(2). 2 Petitioners’ suit demonstrably attacks agency action within the meaning of Iowa
Code chapter 17A.
Finally, Petitioners’ exclusive remedy is under Chapter 17A if the agency action they
challenge “bears a discernable relationship to the statutory mandate” of IDOE. Ghost Player,
L.L.C. v. State, 860 N.W.2d 323, 328 (Iowa 2015); accord Papadakis, 574 N.W.2d at 260. Here,
the actions Petitioners challenge are very clearly related to IDOE’s and IDPH’s statutory mandates.
The legislature created IDOE to “act in a policymaking and advisory capacity and to exercise
general supervision over the state system of education,” including public elementary and
secondary schools. Iowa Code § 256.1(1)(a). The position of IDOE director is likewise created
by statute, and the director is empowered to “interpret the school laws and rules relating to the
2
IDOE’s guidance is an “other” statement of law or policy because while it is a “statement
of general applicability that implements, interprets, or prescribes law or policy,” Iowa Code
§ 17A.2(11), it did not go through the formal rulemaking process to become a “rule.” See id.
§ 17A.4 (setting forth formal rulemaking procedures).
24
school laws.” Iowa Code § 256.9(16). The statute clearly vests IDOE and Dr. Lebo with the
discretion to interpret school laws. Iowa Ass’n of Sch. Bds. v. Iowa Dep’t of Educ., 739 N.W.2d
303, 307 (Iowa 2007). For its part, IDPH exercises general supervision over the public health and
promote public hygiene and sanitation in the state, and is authorized to respond to a disease
emergency, like the COVID-19 pandemic. Iowa Code § 135.11, 135.141. The agency actions
Petitioners challenge here fall within IDOE’s and IDPH’s statutory mandates.
Parties cannot avoid the exclusive remedy of 17A by renaming or attempting to disguise
their claims. See Salsbury Labs., 276 N.W.2d at 835; Grains of Iowa, 562 N.W.2d at 443-44.
Grains of Iowa provides a similar example of a regulated entity who sought relief outside of
chapter 17A, but was limited by the court to the exclusive remedy of judicial review. Grains of
Iowa, a grain dealer subject to inspection by the Department of Agriculture, was dissatisfied with
the Department’s interpretation of a statute, and sought relief outside of chapter 17A by bringing
a petition for declaratory judgment. Grains of Iowa, 562 N.W.2d at 443. Grains of Iowa asserted
that because it did not request the court to review any particular agency action, it could avoid
chapter 17A. See id. at 443. The Court of Appeals, however, affirmed the dismissal of Grains of
Iowa’s petition, holding that because Grains of Iowa was asking the court to determine both Grains
of Iowa’s and the Department’s legal rights and duties, it was requesting review of agency action
and Grains of Iowa’s exclusive remedy was under chapter 17A. Id. at 445. The Court emphasized
“that only in certain narrow circumstances, none of which are applicable here, may a petitioner
bypass judicial review and file an action invoking the district court’s original jurisdiction to issue
a declaratory judgment.” Id. at 444.
Here, a substantive reading of the petition indicates that Petitioners are challenging IDOE’s
and IDPH’s agency actions, which are related to those agencies’ statutory mandates. Therefore,
25
Petitioners cannot bring this direct action for declaratory or injunctive relief and may only proceed
under chapter 17A. See Salsbury Labs., 276 N.W.2d at 835. All claims against IDOE, IDPH,
Dr. Lebo, and Dr. Pedati which are not brought under Chapter 17A must be dismissed.
V. IDOE DIRECTOR ANN LEBO AND STATE EPIDEMIOLOGIST CAITLIN

PEDATI ARE NOT PROPER RESPONDENTS IN A JUDICIAL REVIEW.
Petitioners name as Respondents Dr. Ann Lebo, Director of IDOE, and Dr. Caitlin Pedati,
state epidemiologist. However, only agencies, and not individuals, are proper respondents in a
judicial review. Iowa Code § 17A.19(4). Dr. Lebo and Dr. Pedati should be dismissed from the
petition for judicial review.
VI. GOVERNOR REYNOLDS IS NOT AN AGENCY UNDER CHAPTER 17A.
Petitioners attempt to bring a judicial review action under Chapter 17A against Governor
Reynolds. Petition Count I. However, the Governor is not an agency as it is defined in Chapter
17A and a petition for judicial review is not the proper avenue for reviewing the Governor’s
actions. See Iowa Code § 17A.2(1)(“agency does not mean…the governor”). The petition for
judicial review against Governor Reynolds must be dismissed.
VII. THE PETITION DOES NOT COMPLY WITH THE STRICT PLEADING
STANDARDS SET FORTH IN IOWA CODE CHAPTER 17A.
Iowa Code section 17A.19(4) sets out a strict pleading standard for the preservation of
issues in review of agency decisions. Each claimed error must be separately and distinctly stated.
Second Injury Fund of Iowa v. Klebs, 539 N.W.2d 178, 180 (Iowa 1995); Bonnesen v. Dep’t of
Transp., No. 99-0928, 2000 WL 1826655, at *2 (Iowa Ct. App. Dec. 13, 2000) (court cannot
consider claims not properly pled). Notice pleading applicable to ordinary civil actions in Iowa
does not apply to judicial review. Kohorst v. Iowa State Commerce Comm’n, 348 N.W.2d 619,
621 (Iowa 1989). Merely parroting all the options in Section 17A.19(10), without more, is
26
insufficient. Id. Specificity is required because the court’s review of the agency’s action varies
depending on the type of error allegedly committed by the agency. Meyer v. IBP, Inc., 710 N.W.2d
213, 219 (Iowa 2006). Because of the widely varying standards of review, it is “essential for
counsel to search for and pinpoint the precise claim of error on appeal.” Id.; Jacobson Transp. Co.
v. Harris, 778 N.W.2d 192, 196 (Iowa 2010).
This Petition should be dismissed because it does not separately and clearly state the errors
it alleges IDOE has committed in its denial of the District’s waiver request or in its guidance.
Rather, it simply lists all but two of the grounds for judicial review in Section 17A.19(10), without
specifying which apply and why. For example, the Petition claims that IDOE took action
inconsistent with its rules, but does not say what rule. Petition ¶ 96(e). The Petition claims that
IDOE took action inconsistent with prior practice or precedent, but does not say what prior practice
or precedent. Petition ¶ 96(f). The Petition claims that IDOE took action without considering a
relevant and important matter, without saying what relevant and important matter IDOE did not
consider. Petition ¶ 96(h). No section under paragraph 96 is specific enough to satisfy Section
17A.19(4).
The standard in Section 17A.19(4) is met when an opponent is sufficiently apprised of the
alleged error to allow for adequate preparation and response. Second Injury Fund, 539 N.W.2d at
180. Neither the Court nor the Respondents will be able tell what kind of error Petitioners are
alleging here or what standard of review should apply. The Respondents cannot prepare a response
since it cannot tell what errors are alleged. See Second Injury Fund, 539 N.W.2d at 180. The
Petition is the opposite of the “precise” and “strict” pleading that Chapter 17A requires and should
be dismissed.
27
VIII. PETITIONERS’ INJUNCTION REQUEST IS PREMATURE AND UNRIPE.
Petitioners’ requests to enjoin Respondents (Petition ¶ 109) must be dismissed as
nonjusticiable because they are premature and unripe. The Iowa Supreme Court has long
recognized that courts sitting in equity should act to enjoin injuries that are imminent, not merely
possible. Donovan Const. Co. v. City of Waterloo, 231 N.W. 499, 501 (Iowa 1930). In addition, a
district court sitting in equity should not interfere with future enforcement of the state’s
administrative laws, especially where respondents in a future enforcement action would have an
adequate remedy at law. Lewis Investments, Inc. v. City of Iowa City, 703 N.W.2d 180, 186 (Iowa
2005)(affirming denial of preliminary injunction where petitioner could have sought review of the
city’s declaration of a public nuisance through certiorari review, and therefore had an adequate
remedy at law); Gospel Assembly Church v. Iowa Dep’t of Revenue, 368 N.W.2d 158 (Iowa 1985);
Kent Products, Inc. v. Hoegh, 61 N.W.2d 711, 716 (Iowa 1953) (reversing issuance of injunction
prohibiting enforcement of a state food labeling law and observing “no Iowa law is cited which
upholds a temporary injunction against enforcement of a statute of this state.”).
Gospel Assembly Church is controlling authority and is materially analogous. 368 N.W.2d
158 (Iowa 1985). In Gospel Assembly, a church “sought declaratory and injunctive relief” against
the Iowa Department of Revenue, attempting to prevent the department from conducting a future
tax audit. Id. at 159-60. The district court granted the department’s motion to dismiss, in part
because “the agency action [the church] complained about was not ‘ripe for review.’” Id. at 160.
The Iowa Supreme Court agreed “that the ripeness doctrine justifie[d] dismissal of plaintiff’s
petition” and affirmed. Id. The issue of whether the department’s intended audit would violate
the church’s constitutional rights was “not suitable for judicial resolution” because the department
had not yet taken any “formalized, legally enforceable action” against the church. Id. at 160-61.
28
If the department eventually took formal action, the court continued, the department’s formal
action “would be subject to judicial contest before compliance could be exacted,” and the issues
the plaintiff was attempting to raise pre-enforcement could “be fully litigated in the context of
formalized agency action.” Id. at 161.
The same is true here. Like the church in Gospel Assembly, Petitioners seek declaratory
and injunctive relief against the government. See id. at 159. One component of the requested
injunctive relief is an order preventing hypothetical future administrative proceedings before they
are ever initiated. (Petition ¶ 109(c), (d), (e), (f)). Petitioners request that the Court stop
hypothetical future actions to require the District to make up school days spent in remote
instruction; pursuing licensure discipline against employees; and issuing any “future
proclamations or orders” that Petitioners may disagree with. Those requests amounts to seeking
an advisory opinion, because there is no guarantee those proceedings ever will be initiated. See
Kucera v. Baldazo, 745 N.W.2d 481, 487 (Iowa 2008) (finding “no justiciable controversy . . . to
decide” and declining to “issue an advisory opinion” when a litigant asked the Court to rule on
issues that might arise in a proceeding that had not yet occurred). And, of course, courts have
“neither . . . a duty nor the authority to render advisory opinions.” Hartford-Carlisle Sav. Bank v.
Shivers, 566 N.W.2d 877, 884 (Iowa 1997).
The possibility of “enforcement” proceedings in the future is simply not ripe; there is not
yet any “formalized, legally enforceable action.” Gospel Assembly, 368 N.W.2d at 161. Indeed,
Petitioners’ request to enjoin hypothetical future proceedings here is even less ripe than in Gospel
Assembly, where the department had at least “notified plaintiff by letter of its intent” to conduct an
audit. Id. at 159. Even with that “intent letter,” the Court found the church’s injunction request to
29
be unripe. See id. at 161. Lacking even that modicum of official action here, the Court should
reach a similar ripeness conclusion.
More importantly, however, even if administrative proceedings do occur in the future, all
the arguments Petitioners raise here—for example, the contention that IDOE’s interpretation of SF
2310 is incorrect—could be raised by an individual respondent (a school district or an educator)
in the administrative proceedings, and fully litigated there. See id. at 161 (recognizing that unripe
issues should “be fully litigated in the context of formalized agency action . . . without the risk that
they may subsequently become moot”). The later opportunity to litigate means that for this case,
an injunction preventing a purely hypothetical proceeding “would be premature adjudication of
the type that the ripeness doctrine is designed to prevent.” Id. The issue of future “enforcement”
proceedings “is not suitable for judicial resolution at this time.” Id. at 160. The Court must
therefore dismiss Petitioners’ claim for injunctive relief against hypothetical future enforcement
activities (Petition ¶ 109(c), (d),(e), (f)) as unripe.
IX. PETITIONERS SEEK AN OVERBROAD AND VAGUE INJUNCTION.
Petitioners request forms of injunctive relief which are so broad and vague that they are
essentially a request that the State be enjoined from taking any action with which they may disagree
in the future. In paragraph 109 of the Petition, Petitioners request that Respondents be enjoined
from: forcing DMPS to reopen schools when it is unsafe; usurping the authority of the Board; and
finally, and most broadly, issuing any “future proclamations, orders, or other guidance that are
outside of their legal authority; or are arbitrary, capricious, or inherently unreasonable; or that are
inconsistent with legitimate public health and safety objectives.” Petition ¶ 109. If granted, these
requested injunctions would be an astonishing and utterly unenforceable grant of supervisory
authority to the District over the Governor and executive branch agencies.
30
An injunction should be limited to the requirements of the case. See 205 Corp. v.
Brandow, 517 N.W.2d 548, 552 (Iowa 1994). It should also be drawn in a clear, understandable
manner. The acts or things enjoined should be definitely specified, and they should be “set forth
with certainty and clearness so that persons bound by the decree may readily know what they must
refrain from doing without speculation or conjecture.” Id. (quoting 42 Am.Jur.2d Injunction §
296, at 1095); Matlock v. Weets, 531 N.W.2d 118, 123 (Iowa 1995).
Petitioners are not requesting a clear, understandable, specific injunction, as required by
Iowa law. Attempting to comply with these requested injunctions would require nothing but
speculation and conjecture. Asking Respondents to determine when the District thinks opening is
“safe,” or to abstain from taking any action the District considers “unreasonable,” would require
state government to engage in guesswork or attempt to read the mind of the Board members. In
addition, an injunction prohibiting Respondents from taking action the District thinks is
unreasonable would lead to absurd results. See Brakke v. Iowa Dep't of Nat. Res., 897 N.W.2d
522, 540 (Iowa 2017)(courts may seek to avoid absurd results). In practice, it would require the
state to transfer to the District its authority to oversee education and make education policy, which
is contrary to Iowa law. The requested relief in Paragraph 109 (a), (b), and (f) is both overly broad
and too vague to be enforceable. The requests for injunction should be dismissed.
X. PETITIONERS DO NOT STATE A CLAIM ON WHICH RELIEF CAN BE

GRANTED.
Even if the Court determines that the Petition presents a justiciable dispute, this case must
still be dismissed because the factual allegations, even if proved, do not set forth a potential
constitutional or statutory violation under the provisions Petitioners cite. King, 818 N.W.2d at 4.
31
A. Article I, Section 2 of the Iowa Constitution Does Not Provide A Basis On

Which To Invalidate Specific Government Action.
Petitioners claim that Respondents’ actions violate Article I, Section 2 of the Iowa
Constitution. Petition ¶ 107. Article I, section 2 of the Iowa Constitution declares that government
is instituted for the protection, security and benefit of the people. Iowa Const. art. I, § 2. Although
the clause contains more, that phrase is where Petitioners’ argument ends—if the people or any
subset of them feel unsafe or insecure, so the argument goes, then article I, section 2 is a ground
on which to invalidate whatever government action or inaction makes them feel that way.
Article I, section 2 is not nearly so powerful, however. It must be read as a whole—and
immediately after recognizing that government is instituted for the protection, security, and benefit
of the people, the clause goes on to explain that the people “have the right at all times to alter or
reform the same whenever the public good shall require it.” Iowa Const. art. I, § 2. This language
contains “no immediate reference to restraints imposed upon the . . . government, but is, rather, a
declaration of the reserved or natural right of the people to alter or amend their form or scheme of
government whenever in their judgment such alteration or amendment will promote the general
good.” Campbell v. Jackman Bros., 118 N.W. 755, 758 (Iowa 1908) (emphasis added). It is not
a judicially actionable clause, but merely a declaratory reminder—another way of expressing the
laudatory notion that the nature of government is of the people, by the people, and for the people.
Of course, “[t]he constitutional declaration that government is instituted for the protection,
security, and benefit of the people is a fundamental principle or maxim accepted by all believers
in government.” Id. “Abstractly considered, there can be no doubt of the correctness of the
propositions embraced in” article I, section 2. Koehler v. Hill, 15 N.W. 609, 615 (Iowa 1883)
(emphasis added). “These principles are older than constitutions and older than governments.” Id.
“[B]ut it by no means follows” that article I, section 2 establishes an independent ground, beyond
32
its abstract principles, on which to invalidate specific government actions. Campbell, 118 N.W.
at 758. Instead, it provides a ground on which to reform the entire government if circumstances
require. It simply doesn’t stand for what Petitioners assert here.
Campbell provides an apt illustration. There, a litigant contended that because liquor and
other intoxicants were dangerous and demoralizing, alcohol was a per se public nuisance, and so
“the Legislature [wa]s without constitutional power to give it a legalized existence.” Campbell,
118 N.W. at 757-58. The litigant conceded there was no express prohibition on government action
that might mean some members of the public could be drunk or unsafe but asked the courts “to
imply it from” article I, section 2 and other broadly declaratory provisions. Id. at 758. The court
found it “very clear” that article I, section 2 did not prevent the legislature from passing a law that
might permit immorality or injuriously affect public safety and welfare in some circumstances. Id.
The same rationale holds true here. Even taking as true Petitioners’ contention that SF 2310,
Governor Reynolds’s proclamation, or IDOE’s guidance (or all three of them) impact Petitioners’
security and do not benefit them to the extent Petitioners desire, article I, section 2 is simply not a
cognizable ground on which to invalidate them. See id. at 757-58.
Moreover, article I, section 2 invites and encourages more deference to the legislative and
executive branches, not less. See Honomichl v. Valley View Swine, LLC, 914 N.W.2d 223, 240
(Iowa 2018) (Waterman, J., concurring specially) (“We need to be cognizant of the right of Iowans
to govern themselves through laws passed by their chosen representatives, a right recognized
explicitly in article I, section 2.”). Article I, section 2 “should be read together with” article I,
section 1. Id. These sections effectuate the people’s delegation of political power and set forth
“the proper deference to the policy choices of the elected branches.” Id. at 239. This pandemic
33
and the questions it raises about equity and education is a perfect example of a dispute which calls
for proper deference to the policy choices of the elected branches of Iowa government.
Any claim that Respondents “violated” article I, section 2 is not judicially enforceable and
must be dismissed.
B. No Constitutional or Statutory Right to Local Control Exists.
Petitioners ask this Court to rule in their favor because the State has “usurped” local control
over education, which they present as both a constitutional claim and a statutory claim. The first
paragraph of their Petition states that “at its core, this is a case about local control.” Petition ¶ 1.
The Petition claims that Iowa law grants school districts exclusive control over their districts,
including the right to determine whether and when to deliver instruction remotely. Petition ¶¶ 2,
56-66. Count I claims that neither IDPH nor IDOE has the authority to decide whether to close
the District. Count II seeks a declaratory order that IDPH and IDOE’s actions are unreasonable
because they “seize” authority that belongs to the District. Count III seeks an injunction preventing
the State from “usurping” local control. However, there is no basis in Iowa law for Petitioner’s
claim that school districts have local control. The Iowa Constitution does not contain any right to
local control for schools. And Iowa’s school laws do not create one, either.
First, to the extent that Petitioners are claiming a constitutional right to local control of
schools, no such right exists. Nothing in the text of the Iowa Constitution or in our caselaw
supports the existence of such a right. See Exira, 512 N.W.2d at 793 (school districts have no
constitutional rights). The Iowa Constitution grants authority over public education to the
legislature. Article IX, division 1, section 15; Kinzer v. Dirs. of Indep. Sch. Dist., 129 Iowa 441,
444, 105 N.W. 686, 687 (1906) (citing this constitutional provision and stating that “the
Legislature is expressly authorized to provide for the educational interests of the state, in such
34
manner as shall seem best and proper”). Districts are creatures of statute and the legislature’s
control over them is plenary. Waddell, 175 N.W. at 67. The legislature can go so far as to eliminate
a school district without constitutional impediment. Id.
There is no statutory basis for a right to local control of schools that is offended by state
governance of education. First, any such provision would conflict with the Constitution’s grant of
authority over education to the legislature. Petitioners rely on six Code sections to claim a right
to local control: Iowa Code sections 274.1, 274.7, and 279.8, in paragraph 2 of the Petition; and
sections 279.11, 280.3, and 297.1 in paragraph 3 of the Petition. Petitioners omit, either
negligently or strategically, to include for the Court’s reference section 274.3, which advises on
how to construe the Code sections on local school board authority. Section 274.3 states: The
board of directors of a school district shall operate, control, and supervise all public schools located
within its district boundaries and may exercise any broad and implied power, not inconsistent with
the laws of the general assembly and administrative rules adopted by state agencies pursuant
thereto, related to the operation, control, and supervision of those public schools. (emphasis
added).
Although section 274.1, titled “powers and jurisdiction,” states school districts have
exclusive jurisdiction in school matters in their territory, the chapter must be read in its entirety
and not in isolation. See Sinclair Refining Co. v. Burch, 235 Iowa 594, 596, 16 N.W.2d 359, 361
(1944) (“In determining the meaning of [a statute] it should be considered in the light of the whole
chapter . . . and every other section therein. All provisions of the chapter should be considered as
parts of a connected whole and harmonized if possible.” (citations omitted)). Section 274.3
follows, and explains how the powers of school boards should be interpreted. Section 274.3 states
specifically that districts can only exercise power that is not inconsistent with the acts of the general
35
assembly and administrative rule. Even administrative rules have precedence over decisions at the
local level. The section goes on to limit school board power in other ways; for example, a board
may not levy a tax, charge students fees, or take action that conflicts with a municipality or county.
Iowa Code § 274.3(2).
Sections 274.7 and 279.8 are no help to Petitioners, either. Section 274.7 states merely that
school board members shall serve a term of four years. This section serves to limit the authority
of boards, rather than expand it—a local board might choose longer or shorter terms, if permitted,
but the legislature has not granted boards that authority. Section 279.8 states that the local school
board can make rules about care of the buildings and grounds, about loading and unloading
children from school buses during times of reduced visibility caused by weather, and can allow
school employees to use a school credit card. This section grants the districts very specific areas
of authority for rulemaking. It does not grant school districts any kind of general “local control.”
And this section too must be read in light of Section 274.3, which specifically states that school
districts only have authority granted to them by the legislature.
The remaining sections that Petitioners cite do not describe or create a right to local control.
Section 279.11 states that the school district has the authority to determine the number of school
buildings to maintain in a district, and to determine which building each child shall attend. Section
280.3 provides a very similar authority, to maintain buildings, or “attendance centers, based on the
particular school age population of each district. The state will not dictate, for example, that there
must be a school for grades K-5 in every district. A district can decide whether to start middle
school in 5th, 6th, or 7th grade. The district may also decide where to locate its buildings (“fix the
site of each school house.”) Iowa Code § 297.1. These provisions, like the ones above, grant
specific authority to districts. But when read in light of the rest of the education statutes and in
36
particular, section 274.3, they do not create a general right to local control for districts. And the
authority granted, such as locating the site of a school building is not the same as being granted
the authority to decide whether to offer instruction in person or remotely; instruction may be
offered through the same site, the school building, but in a different manner, through remote
learning. This is especially true since the legislature, through SF 2310, has explicitly denied
districts the authority to provide instruction primarily through remote means.
The Iowa Code further directs local boards’ activities and policies of local school boards
in myriad other ways. For example, Iowa law dictates the instructional time school districts must
provide to students. Iowa Code s 279.10(1). The Code also dictates, inter alia, how school districts
shall be named (Section 274.6); how long school board members serve (Section 274.7); when the
school year can begin (Section 297.10); how to contract with teachers (Section 297.13); how many
units of various subjects must be provided in which grades (Sections 256.7(26), (27)); and the
priority of qualifications for a coaching position (Section 279.19B.(1)(a)). Where local schools
have authority to take action, authority is specifically granted in Code, including authority to make
rules about traffic and parking (Section 279.8A(1)); to allow school employees to use a school
credit card (Section 279.8(1)); and to determine the number of school buildings in a district and
what building a child should attend (Section 279.11(1)). Finally, the legislature created IDOE to
act in a policymaking and advisory capacity and to exercise general supervision over the state
system of education including all public elementary and secondary schools. See Iowa Code §§
256.1, et seq.
Petitioners cite several cases for their contention that Iowa school boards have local
control, but none of these cases support their cause. See Petitioners’ Brief in Support of Motion
for Temporary Injunction, p. 6. In fact, they demonstrate the ways in which the legislature has
37
determined the balance of authority between state and local control. Olds v. Bd. of Educ. of Nashua
Community School District, for example, concerns a teacher’s appeal of his termination from
employment as a high school science teacher. 334 N.W.2d 765 (Iowa Ct. App. 1983). The
statutory mechanism for appeal of a teacher’s termination is clearly laid out in Code, and not within
the local board’s discretion. Iowa Code § 279.15. In addition, this case demonstrates that the
legislature may change the authority it delegates to school boards. The teacher, Olds, was fired
because the local district determined it would not teach enough science courses to need him. In
1983 the district had been granted the authority to make that decision. But since 1989, the
legislature has mandated how many science courses a high school must offer. Iowa Code
§ 156.7(26); 281 Iowa Admin. Code r. 12.5. Nowhere in this case or discussion will the Court
find support for the idea of local control.
Likewise, in In Re Lone Tree Community School District, the Court interpreted the breadth
of the authority the legislature granted to districts, but did not state or assume that school districts
have any plenary local control or power. 159 N.W.2d 522 (Iowa 1968). This case concerned the
process for redrawing district boundary lines. The process for changing boundaries of districts is
set forth specifically in Code, in Chapter 274. Also, the State Board of Education can dissolve a
district. Iowa Code § 256.11(10)-(12). The applicable Area Education Agency (see Chapter 273)
usually assists with drawing new district boundaries, and the state Board can place an insolvent or
deaccredited school in "receivership" under the AEA (as happened with Farragut Community School
District in 2015); and the final status of the district is in the hands of the Board.
The Court must read statutes in their entirety and read them so that they make sense and
achieve the legislature’s purpose. Mall Real Estate, L.L.C. v. City of Hamburg, 818 N.W.2d 190,
198 (Iowa 2012) (“[W]e do not place undue importance on any single or isolated portion, but
38
instead consider all parts of an enactment together.”); State v. McCullah, 787 N.W.2d 90, 94 (Iowa
2010) (“We strive for a reasonable interpretation that best achieves the statute's purpose and avoids
absurd results”). Reading all the school statutes together, the legislature’s purpose becomes clear.
The legislature has plenary power over public education. IDOE supervises public education. The
State has delegated some authority to local school districts by statute. But no general statutory
“right to local control” exists to support Petitioners’ claims.
C. The Governor Has Not Exceeded Her Broad Emergency Authority.
Petitioners claim that the Governor’s July 17 Proclamation exceeds her constitutional and
statutory authority. Petition ¶¶ 71, 83. The Iowa Constitution grants to the Governor the “supreme
executive power,” a very broad grant of authority. Art. IV, sec. 1. She has the authority to “transact
all executive business with the officers of government, civil and military.” Art. IV, sec. 8. The
Governor also “shall take care that the laws are faithfully executed.” Iowa Const. art. IV, § 9.
The Governor also has clear authority to issue a Proclamation during a public health
disaster emergency. Iowa Code chapters 29C and 135 vest broad powers in the Governor during
a public health disaster: the General Assembly has directed that during times of disaster, including
this unprecedented public health disaster, the Governor’s legal authorities to respond to and
mitigate the disaster are expansive and comprehensive. See Iowa Code §§ 29C.6, 135.140,
135.144. These provisions reflect the legislature’s determination that a statewide disaster
emergency should have a coordinated, state-led response.
In response to the COVID-19 outbreak in Iowa, since March 9, 2020, the Governor has
issued more than twenty Proclamations of Disaster Emergency, providing hundreds of directives
to Iowans that have touched every aspect of our lives—from the manner in which we worship to
the way we recreate, from suspending elective surgeries to suspending evictions, from closing
39
fitness centers to expanding telehealth—and including dozens of provisions related to the manner
in which education is provided in this state. 3 In addition, the Iowa Code grants authority and
responsibility to IDPH, in coordination with the Governor, to respond to outbreaks of
communicable disease. Iowa Code § 135.140; 135.144. IDPH and the Governor may “take
reasonable measures as necessary to prevent the transmission of infectious disease and to ensure
that all cases of communicable disease are properly identified, controlled, and treated.” Iowa Code
§ 135.144(3). The statute entrusts IDPH and the Governor with the responsibility to develop
reasonable measures.
D. IDOE Has Correctly Interpreted SF 2310.
Petitioners assert that IDOE’s interpretation of SF 2310 is incorrect, because certain clauses
in sections 9, 14, and 15 vest decision-making authority regarding whether to offer in-person or
remote instruction entirely with the local school board. Petition ¶ 57, 66, 83-84. As a matter of
statutory construction, the court should read the statute as a whole, not just isolated words and
phrases, and presume that the entire statute is intended to be effective. Iowa Code § 4.4(2); see
also City of Hamburg, 818 N.W.2d at 198. In this case the Court should also read the existing
statutes which SF 2310 amended, to understand the changes the legislature made to the existing
statutory and administrative structure. The purpose of statutory interpretation is to determine
the legislature's intent. In re Estate of Bockwoldt, 814 N.W.2d 215, 223 (Iowa 2012). When read
as a whole and in the context of existing law, it is clear that SF 2310 provided new authority for
Iowa school districts to provide instruction through remote learning and to count some or all of
that time, depending on the local circumstances, toward the total days or hours of instructional
time the Iowa Code requires. It is also clear that the legislature viewed periods of primarily remote
3
https://coronavirus.iowa.gov/pages/proclamations
40
learning to be the exception, not the rule, and placed limits on when districts could provide
instruction primarily through remote learning and count that time toward the required total
instructional time.
SF 2310 creates an express preference for in-person instruction and prevents school districts
from offering remote learning as the primary method of instruction absent a Governor’s
Proclamation explicitly authorizing such action:
“Any return-to-learn plan submitted by a school district or accredited nonpublic

school must contain provisions for in-person instruction and provide that in-person
instruction is the presumed method of instruction.” SF 2310, section 9.
Unless explicitly authorized in a proclamation of a public health disaster emergency

issued by the governor pursuant to section 29C.6 and related to COVID-19, a brick-
and-mortar school district or accredited nonpublic school shall not take action to
provide instruction primarily through remote-learning opportunities.” SF 2310,
section 15.
The provisions of SF 2310 and how it fits into existing Code and rules are explained more
fully below.
1. The Iowa Code dictates to boards how much instructional time must be
provided in a school year.
Every year, Iowa school districts must provide either 180 days or 1080 hours of instruction.
Iowa Code §§ 279.10, 256.7(19). A district can choose whether to operate on an hours or days
model. Iowa Code § 279.10. A day or hour of attendance is defined in rule as a day or hour when
school is in session and open for all grades, and students are present and under the guidance and
instruction of the professional staff. 281 Iowa Admin. Code r. 12.1(7)-(10).
2. Online or remote learning was very limited prior to SF 2310.
Prior to SF 2310, any Iowa district that wanted to offer an online program had to receive
approval from IDOE and follow strict requirements. Iowa Code § 256.41; 281 Iowa Admin. Code
r. 15. Two districts, CAM and Clayton Ridge, had online programs into which students from other
41
districts could open enroll. A district could get a waiver to offer a specific course online. 281
Iowa Admin Code r. 15.11. But districts could not decide to move their entire curriculum online.
In addition, Iowa districts could not count “e-learning” toward required instructional time
when they were closed for inclement weather. If a district closes for inclement weather, the district
may have to make up hours or days later in the school year so that the hours/days requirement is
met. IDOE provided guidance, last updated in January, which stated that "e-learning" days do not
count toward the days/hours requirement. Ex. A.
3. SF 2310 authorizes school districts to close because of local COVID-19

conditions.
Section 14 of SF 2310 allows a district to authorize closures due to COVID-19 if there is
a public health disaster proclamation in place. Closures authorized by this section are like
traditional snow day closures, in that schools are not required to have any instruction and the day
does not count towards the 180 days/1080 hours. A district does not need explicit authorization in
a proclamation or permission from IDOE to close under this provision due to COVID-19. IDOE
has advised in the past that if a school district or accredited nonpublic school closes due to health
reasons (e.g., influenza contagion), it must follow the "snow days" rules, and make up the time.
Ex. A.
4. SF 2310 permits, for the first time, every Iowa school district to provide
remote instruction to any student and count remote instruction toward
required instructional time.
SF 2310, Section 9 provides, for the first time, that Iowa districts may provide online
learning throughout the curriculum, and may count some remote or online instructional hours
toward the required 180 days or 1080 hours. Section 9 amends Iowa Code section 279.10, and
provides that a return to learn plan for the 2020-2021 school year shall be deemed to meet the days
42
and hours requirements regardless of “nature, location, or medium of instruction.” SF 2310, section
9. But the section cautions that in-person instruction is the “presumed method” of instruction.
Later on in SF 2310, in Section 18, paragraph 5, the statute again makes clear that a district
does not need to have a special approved online school as they would during normal times to
conduct remote learning: notwithstanding the preexisting provisions of Iowa code dealing with
online learning a school district may provide services through continuous remote-learning
opportunities, even though that district has not been approved by IDOE to provide online
education.
5. SF 2310 places restrictions on the number of days or hours of remote

instruction that can count toward instructional time requirements.
Iowa school districts, like the District here, may want to count remote instruction time
toward their required instructional time. Again, Section 9 amended Code Section 279.10 to permit
this. But in SF 2310 Section 15 the legislature placed limitations on how much remote learning
time can count. Section 15 states clearly that “unless explicitly authorized in a proclamation,”
schools “shall not take action to provide instruction primarily through remote-learning
opportunities.” The statute describes a process in which the Governor’s proclamation will set the
terms of when primarily online instruction will be permitted and will count toward the days/ hours
requirements. In the July 17 Proclamation, the Governor set out four situations where primarily
remote learning is acceptable and will count as instructional time: when a parent or guardian
chooses that option; when IDOE and IDPH approves it temporarily; when the district determines,
in coordination with IDPH and IDOE, that a student or classroom must move online temporarily;
and for snow days. Ex. 3.
A district has a choice under SF 2310: provide instruction primarily in-person, with or
without some remote instruction, or seek permission to provide instruction primarily through
43
remote instruction if the district wants to count all those hours toward the instructional time
requirements.
E. Petitioners’ Interpretation of SF 2310 Is Incomplete and Erroneous.
Petitioners misunderstand the intent and effect of SF 2310 because they are reading
segments of its text in isolation, divorced from the intent of the statute as a whole, from the context
of the June 2020 legislative session, and from preexisting Iowa law about required instructional
time and online learning. Petitioners claim SF 2310 grants the District with authority to provide
all instruction online and to judge local conditions independently. Petition ¶ 59. Petitioners do
not read the statute as a whole to try to understand the legislature’s intent for providing instruction
during the pandemic. Rather, they cherry pick sentences and clauses that they believe support
their idea that the District has local control.
When the statute is read as a whole, it is clear that Petitioners are incorrect. Stearns v.
Kean, 303 N.W.2d 408, 413 (Iowa 1981) statute must be read as a whole). SF 2310 does permit
the District to close due to local conditions, just like it could for a snow day. SF 2310, section 14.
It does permit the District to provide online learning for every student, which it had never been
permitted to do before. SF 2310, sections 9, 18. It does permit the District to count remote
instruction towards the hours/days requirements as long as the remote instruction is not the primary
method of instruction. SF 2310, sections 9, 15. But in order to provide instruction primarily
through remote learning and count all those hours towards the hours/days requirement, the District
must be permitted explicitly by the Governor in a proclamation. SF 2310, sections 9, 14, and 15.
Petitioners continually disregard the last sentence of Section 15, which clearly states that
only the governor can authorize a period of primarily remote learning by proclamation. Because
the legislature has made in-person instruction a critical priority, only days or hours where
44
instruction is offered primarily in-person will count toward the days and hours requirement in
279.10(1), unless IDOE approves a period of primarily remote learning.
Petitioners argue that IDOE has erred in interpreting “primarily” to mean “at least fifty
percent.” Petition ¶ 71. But the interpretation is a reasonable interpretation of the language passed
by the legislature, and it is consistent with how administrative agencies have interpreted the word
“primarily” in other contexts. Iowa Ag. Const. Co., Inc. v. Iowa State Bd. of Tax Review, 723
N.W.2d 167, 176-77 & 181 (Iowa 2006) (upholding tax review board’s use of an administrative
rule interpreting “primarily” to mean more than fifty percent); see also Banilla Games, Inc. v. Iowa
Dep’t of Insp. and Appeals, 919 N.W.2d 6, 15 (Iowa 2018) (approving DIA’s interpretation of
“primarily” and observing that the interpretation was consistent with the fifty percent rule in Iowa
Ag. Cont. Co.); Donovan v. Bereuter’s, Inc., 704 F.2d 1034, 1037 (8th Cir. 1983) (agreeing with
interpretation of “primarily” in the Fair Labor Standards Act as meaning “over one-half.”). IDOE’s
interpretation of the word “primarily” as meaning fifty percent or more is also consistent with
dictionary definitions. For instance, Merriam-Webster defines “primarily” as “chiefly,” and the
Cambridge Dictionary defines “primarily” as “mainly.” Merriam-Webster, online edition (2020);4
Cambridge Dictionary, online edition (2020). 5
Furthermore, without Governor Reynolds’ Proclamation, no schools could provide
instruction primarily through remote learning or count hours in excess of half of instruction toward
required instructional time. They would be limited to either providing remote instruction less than
half the time, no matter what conditions existed locally, or to closing, and having to make up
instructional time at the end of the year. The Governor did not accept these options, but through
4
https://www.merriam-webster.com/dictionary/primarily (last visited 8/29/2020).
5
https://dictionary.cambridge.org/dictionary/english/primarily (last visited 8/29/2020).
45
her Proclamation, provided alternatives. Instead of determining entirely on her own when schools
could provide instruction primarily through remote learning, the Governor decided to delegate
some of that authority to IDOE and the Department of Public Health to determine when public
health conditions would require it. She acted reasonably and balanced the risks of having schools
offer in-person instruction with having them provide instruction remotely.
Finally, Petitioners complain that SF 2310 does not support the two-week measurement
that IDOE has established for an authorized period of primarily remote instruction. Petition ¶ 64-
66. Petitioners are correct that SF 2310 does not further define what is meant by stating that a
district “shall not take action to provide instruction primarily through remote-learning
opportunities.” Administrative agencies like IDOE fill in "gaps" in statutes all the time. Lowe's
Home Centers, LLC v. Iowa Dep't of Revenue, 921 N.W.2d 38, 47 (Iowa 2018)(The legislature did
not codify definitions of the services at issue, but the Department promulgated regulations that
define them). IDOE has been granted authority by the legislature to interpret the school laws, and
has done so reasonably here. See Iowa Ass’n of Sch. Bds., 739 N.W.2d at 307.
In setting the two-week measurement window for periods of primarily remote instruction,
the Department balanced SF 2310’s express language with practical realities. IDOE understood
that some school districts utilize block schedules or provide instruction on six-day cycles.
Therefore, a period less than two weeks would not be practical for measuring whether a district or
school is providing instruction primarily through remote learning because it would not allow for a
full scheduling cycle to be considered. At the same time, however, SF 2310 states schools “shall
not take action” to provide instruction primarily remotely. Longer time frames—for example, a
hypothetical plan to provide full-time remote instruction during the 2020 calendar year with in-
person instruction resuming full time in January 2021—were not workable because by the time a
46
school or district would meet the “primarily” benchmark over a lengthier time, the action would
have already been taken. A lengthier measurement period would also remove the very flexibility
the District seeks through this lawsuit, by locking the District to in-person instruction down the
road notwithstanding any changes—for better or worse—in the state of the pandemic before then.
F. Respondents Are Not “Forcing” The District To Open Schools.
Petitioners claim that Respondents are “forcing DMPS to reopen schools when it is unsafe
to do so.” Petition ¶ 109(a). Petitioners’ real dispute with IDOE is that they want to provide all
instruction remotely and count every remote learning hour or day toward their required total
instructional time, not that they are forced to be “open”. Respondents have not ordered DMPS to
remain open. As described above, the District has choices about how to provide instruction in the
2020-2021 school year. The District has the option to close due to COVID-19 if it wishes to do
so. See SF 2310 § 14. Section 14 of SF 2310 addresses school closures and allows districts to
authorize closures due to a COVID-19 outbreak if the governor proclaims a public health disaster
emergency pursuant to Iowa Code §29C.6. The District could offer up to 50% of its instruction
through remote learning, and count those days and hours. However, the District may only provide
instruction primarily through remote learning only if “explicitly authorized in a proclamation of
public health disaster emergency,” as stated in SF §§15 and 18.
In this case, Petitioners are dissatisfied with the legislature’s choices, and with IDOE’s
disapproval of their request to offer instruction primarily through remote learning. But the
legislature has the authority to make those choices. And because IDOE’s actions have not forced
the District to reopen schools, Petitioners’ requested injunction, if granted, would be fruitless.
47
CONCLUSION
No one—Petitioners, the Court, the public—should view this motion to dismiss as
minimizing the importance of the issues raised in this Petition. See King, 818 N.W.2d at 35. But
a respect for precedent and for the Iowa Constitution requires that the Court stay out of the dispute.
Id. The judicial branch has historically deferred to the policy decisions made by the political
branches of government in the areas of education and emergency response. Id. It should do so
again here and dismiss the case.
Respectfully submitted,
THOMAS J. MILLER
ATTORNEY GENERAL OF IOWA
JEFFREY S. THOMPSON
SOLICITOR GENERAL
/s/ Jordan Esbrook

JORDAN ESBROOK
Assistant Attorney General
Iowa Department of Justice
Hoover State Office Building, 2nd Floor
1305 East Walnut Street
Des Moines, Iowa 50319
Telephone: 515-281-8159
Email: jordan.esbrook@ag.iowa.gov
ATTORNEYS FOR RESPONDENTS
All Parties served via EDMS on this

3rd day of September, 2020.
48

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E-FILED 2020 SEP 03 4:48 PM POLK - CLERK OF DISTRICT COURT

IN THE IOWA DISTRICT COURT FOR POLK COUNTY

DES MOINES INDEPENDENT Case No. CVCV060611

support thereof, respectfully state the following:

State Epidemiologist Dr. Caitlin Pedati, as Respondents.

which this Court could grant the relief Petitioners seek.

FACTS AND PROCEDURAL BACKGROUND

abbreviated June legislative session that produced SF 2310. 1

I. INSTRUCTIONAL TIME REQUIREMENTS AND REMOTE LEARNING FOR

later in the school year so that the hours/days requirement is met.

II. IOWA SCHOOL CLOSURES IN THE SPRING OF 2020.

up instructional time at some point in the future or violate Iowa law.

2020, and only applied to the 2019-2020 school year.

Learning, Des Moines Register (Apr. 10, 2020).

III. THE LEGISLATURE’S JUNE SESSION AND SF 2310.

look like in the 2020-2021 school year, in a pandemic.

The relevant sections of SF 2310 are as follows:

disaster emergency…related to COVID-19.” Section 9 cautions, however, that “in-person

instruction can count toward a district’s required instructional time.

of remote instruction will count toward a district’s required instructional time.

learning opportunities” unless “explicitly authorized in a proclamation of a public health disaster

parties’ dispute in this case.

preexisting process for approving online education.

IV. GOVERNOR REYNOLDS’ JULY 17 PROCLAMATION APPROVING

to provide instruction primarily through remote-learning opportunities. However, Governor

opportunities. Petition ¶¶ 70-71; Pet. Ex. 3. These include:

If Governor Reynolds had not issued a Proclamation granting permission to districts to

V. IDOE AND IDPH GUIDANCE ON SF 2310 AND WHEN LOCAL CONDITIONS

Proclamation. Pet. Ex. 4; pp. 1, 4-5, 11.

temporarily provide instruction primarily through remote-learning opportunities, under the

site learning. Id. at pp. 1-2.

VI. THE DISTRICT’S REQUEST FOR PERMISSION TO PROVIDE ALL

STANDARD FOR GRANTING MOTION TO DISMISS

I. PETITIONERS’ CHALLENGE TO THE ALLOCATION OF EDUCATIONAL

policy is a political question).

present: (1) a textually demonstrable constitutional commitment of the issue to a coordinate

embarrassment from multifarious pronouncements by various departments on one question. King,

of the underlying claim. Dwyer, 542 N.W.2d at 495–96.

An emergency proclamation is an appropriate exercise of executive power and is grounded

N.W.412 (Iowa 1930) (affirming authority of department of agriculture to enforce bovine

legislature’s authority, and not subject to judicial review. Id.

¶ 109(a)(requesting injunction against “forcing DMPS to reopen schools when it is unsafe to do

decisions.”); Alsop v. DeSantis, Case No. 8:20-cv-1052-T-23SPF, 2020 WL 4927592, at *5M.D.

properly entrusted to the legislature and the executive branch.

II. PETITIONERS LACK STANDING TO BRING THIS SUIT ON BEHALF OF

A. The District lacks standing to sue on behalf of faculty, staff, students, or

these individuals, these claims must be dismissed.

the State of Iowa.

otherwise justiciable, Petitioners do not have standing to bring those claims.

District’s request to continue to provide in-person extracurricular activities, including contact

(describing pandemic and health risks of COVID-19); ¶ 109(e)(requesting injunction allowing

District to continue to provide in-person extracurriculars); Statement of Superintendent Tom

Ahart, available at https://www.dmschools.org/news_release/dmps-files-petition-with-polk-

recognizable injury that would support standing.

C. A Favorable Decision Would Not Redress the District’s Alleged Injury.

III. THE PETITION IMPROPERLY COMBINES A PETITION FOR JUDICIAL

court’s original jurisdiction and appellate jurisdiction simultaneously.

N.W.2d 286, 290-91 (Iowa 1979)).