jurisdiction to resolve the open enrollment claims and its decision in this case will determine whether the iowa open enrollment last survives is written to maximize printed choice in education  judicially abolished for all intents and purposes fortunately we don't believe the court ever gets to that point it doesn't get to that point because the district court did not have subject matter jurisdiction the events alleged in the petition were not ripe for judicial review they were not ripe for judicial review because they did not involve a final agency action i use that term in quotes by agency i mean i nal action by the government energy involved instead they involve preliminary agency action or the conduct of the superintendent of schools on march th two thousand and eighteen what the other side what pleasant valley has called merely a recommendation by the school superintendent to a school board before we get too far down the facts here and what the school board did when they did it you know there's a line of cases that we've had really across a broad spectrum of ripeness jurisprudence in which we've said that we measure ripeness at the time that the decisions made by the court rather the time that the pleading is filed or the you know the complaint filed or the hansard how do we get around that the way we get better around matters that caterpillar case in the homes and they say that you can i go outside the petition to determine the presence of jurisdiction we don't ever allege final agency action in our petition we liked what the superintendent of schools did the other significant part of those cases is that there has to be significant harm and what i'm talking about is i'm talking about nebraska public power which we're talking about losses between one hundred and fifty million dollars and five hundred million dollars we're talking about blanchett the railroad cases where they are compelled the routes work and held under the railroad reorganization act it operate at losses in the millions of dollars here we don't significant harm all we're talking about is lawyers repackaging the same bringing suit they've written in federal court in state court that does have jurisdiction and making the same argument thank you for that question the district court eroni it's late concluded that it did have jurisdiction because it came to the conclusion that under iowa law the superintendent of schools have the power to did not i and open enrollment request in order to get to that place however it had to eliminate words from one board policy in place in order for the school superintendent have any powers as a relates to open enrollment and the two that the district court read into that statute opinion by quoting perhaps the most colorful jurist in the history of the iowa supreme court the late justice king thompson the cases hobbling versus state of andersen and holland like this case involved critical issues of statutory construction and the quote is ours is not to reason why ours is but to read and apply it is our duty to accept the law as the legislative body and acts it in this case the legislative body chose to an act the statute to include the words approve but not include the words or did not i cases that hold for the spirit or stamp of the specific proposition that when a language is not included in an iowa statute that the omission is considered deliberate are versus state and martin versus iowa employment securities commission both of which are side in our brief and there's a great quote in most that i missed and it says we can neither add policy in place for the school superintendent to have any authority to act at all counsel i think i do understand that argue that for the sake of time let's assume that this case is ripe and there is subject matter jurisdiction i would be analysis the basic mistake the district court made isn't like in the arkansas in robin statute involved in the stevenson case to the iowa open enrollment statute hurdle then the arkansas the receiving school district had complete discretion as to whether to admit a student to open enrollment or deny them if there is complete discretion there is no  process it doesn't matter what the evidence says at the end of the day the government entity still has complete discretion that is not i was sketchy tory scheme the place to start is directed at a government body it's a mandate it's an obligation it's an order the government entity has no choice counsel i'm not sure that's relevant i think progress one thousand of your appeal clearly states that you were appealing under subsection eight not to be in under subsection eight you look to see whether the admission of the student would cause the size of the special ed class program to exceed the maximum set by the state board of education the district court there are different there's different terminology and we now agreed that the district court was correct and rating to obtain an eight together so we're saying that if there is a spot open in the special education program under subsection eight according to the state board standards the school could still deny open enrollment to the student based on their determination that there one hundred times and they will not be able to tell themselves their colleagues or anybody else what the maximum classroom sizes for special education students in pleasant vall rules to establish maximum klyde classroom size to a group of individuals that have no affiliation whatsoever with the iowa state board of education to parents to at least one representative of the local anyway but mostly to teachers and administrators of whom the receiving school districts themselves in this case the regula answer some of your questions and address some of the the high points of our brief plaintiff in this case focused on this rightness issue that the district court frankly never addressed and never talked about whether dr spock had any power to deny open enrollment he now is claiming before this court that a case that he filed that was his choice to file was improper in that it was not right he wants a nd bite at the apple he's not happy with the district court's dismissal of his claims claims because his final claim he voluntarily dismissed and he wants now you know to reverse that district court so he can proceed presumably in state court to get a different answer that's not what this court is meant to do it's clear in this case that what the court did was based solely on the pleadings i don't have both complaints i haven't both but it's easier to review based on the cases that are cited with regard to rightness and referenced by by the judges here with regard to some of the other issues that was talked about with regard to twenty eight thousand two hundred and eighteen and what are the how how would that work it seems to me that that would allow the school district to ignore its obligations under subsection eight which are pretty limited and instead decide every case under subsection to which what they did is subsection talks about classroom space in general throughout the school district because in special ed case it certainly there are special education classrooms but many times those special education students are in general education classrooms and then they went to subsection eight and went more specifically with regard to special education students as well with regard to establishing that classroom space where i am talking about the programming wouldn't you agree  general you look to the more specifically which is sort of the more general linguist who decided case generally yes that's the statutory construction but you when you read the two together and you're talking about classroom space which based on plaintiff's own allegations he was whether it's special education classroom space or general education classroom space there's no right to appeal think the just of course dismissal was based under the part of section two this says there are no appeals from section two right and i think she reads the two fact finding made on subsection eight did isn't that inappropriate at this stage in the proceedings we this is the summary judgment motion and so when you look at it on the pleadings and say well you know we don't have you know to get back to to and say that's where we decided not you have to make a finding that under subsection eight it's a student who will be qualified or admitted in a special education program who actually be then involved in a general education classroom where there is no space right so we still have opportunities under subsection eight there's still space in our special ed program there is no space for a kid who spends two hours a day in a general ed class and the rest of their time in special ed right and doesn't that is not all in the fact world not in the in the in the look at the pleadings make it go away world i would agree but i think  statues together along with a couple of other regulations i agree that you have to look at the classroom space but i don't think that subsection two is limiting it to only general education classrooms i think it's all classrooms subsection to be there are no appeals and i wouldn't i would agree with that because that the legislature has determined that the plaintiffs or the students in this case don't get to determine classroom space and certainly and eighty one dash seventeen six it talks very specifically about how they establish classroom space that receiving districts shall adopt a policy and a list oh five dollars or six different things that they have to consider including whether there's programming what type type of programming whether it's general ed special ed that type of thing so who gets to appeal under the i would mean a sort of code section twenty eight excuse me so what purpose is the i would ministered of code section that talks about appeals to the district court i'm not exactly well because there's lots of other reasons that somebody could be denied open enrollment it could be for the good cause which is reference earlier that goes directly to the state board of education but there's other reasons for denial of open  with regard i'd also like to point out the other rules and talk very briefly about whether there's any due process rights and mr butler didn't talk much about it but i think the law is very clear that there is no property desegregation plan issues about classroom space whether there's any discretion in that when you look at seventeen dollars in the regulations for a parent that requests open enrollment for special education students the determination shall be made by the receiving district in consultation with the resident district and the appropriate area education in agencies before approval of the application and that's including to determine whether or not there's room in possible in that school district every school district gets to make those decisions on their own following the department regulation i don't believe that the discretion that's in the stevenson case at cited by plaintive does anything to change that that analysis as to whether or not there's are protected property interest the stevens case said very clearly that there is no property interest in educational choice for students or for parents to send their students to a select public school there is however a property interest in other things like you can't be suspended from a public school or expelled from a public school without due process you can't have property interests in employment contract taken away without proper due process you can't remove welfare benefits without due process in this case however although mr bittner son has a right to a public education under the i scheme in the way residential districts are set up he has a right to a public education in his residential district and that's where he has a right to be doesn't have a right to choose where ever he wants to go subject of course if he meets the requirements of the open enrollment statute he does have the right to to apply and have that educational choice if there is room in those  to upheld uphold the decision of the district court unless there's any other questions i will sit down thank you thank you no mistake about it their argument is that we are not entitled to due process at any time that they have the right to have a person who is legally prohibited from making the open enrollment decision make the open enrollment decision a due process faheem without notice without a hearing and without the right to appeal ever that is not iowa statutory scheme because we use the word shell we're dealing with an entitlement