There is an interesting decision out of the Iowa Supreme Court in a case brought by former Drake University law student, Nicole Shumate, who sued over the refusal to allow her to bring a service dog in training into the school. The court ruled that, while state law requires such access, the law does not afford a private right of action to enforce the provisions of the law.
Shumate founded Iowa’s first service-dog-training nonprofit, Paws & Effect after she enrolled in law school – an impressive feat. She graduated in December 2009.
The Iowa statute allowed for disability dog trainers like Shumate to have access to all public buildings. She therefore sued under the state disability law, even though she is not disabled. While the law school insisted that it had not denied her such access, her factual allegations were accepted as true for the purposes of the motion to dismiss. The Court ruled that, even if she was denied, she had no right to sue.
The Court followed prior case law to determine if the legislature intended “to create not just a private right but also a private remedy.” Alexander v. Sandoval, 532 U.S. 275, 286, 121 S. Ct. 1511, 1519, 149 L. Ed. 2d 517, 528 (2001). Iowa considers “(1) whether ‘the plaintiff [is] a member of the class for whose special benefit the statute was enacted’; (2) ‘[l]egislative intent, either explicit or implicit, to create or deny a remedy’; (3) whether ‘a private cause of action [is] consistent with the underlying purpose’ of the statute; and (4) whether ‘the implication of a private cause of action [will] intrude into an area over which the federal government has exclusive jurisdiction or which has been delegated exclusively to a state administrative agency.'” While finding Shumate was part of the protected class under the first factor and satisfied the third factor in showing consistency with the underlying purpose, the court found that she failed to satisfy the second factor: “These closely related chapters demonstrate that when the legislature ‘wished to provide a private damage remedy, it knew how to do so and did so expressly.'”
It is a curious conflict of a right without a private remedy but it is not unique. In Uhr v. East Greenbush Central School District, a parent sued over the failure of a school to diagnosis the Plaintiff’s scoliosis at its early stage in violating a statute requiring school authorities to examine students for scoliosis. The court followed the same type of analysis in deciding that the state knew how to create a private right of action but did not do so. This cases are controversial in how to deal with “gaps.” Some like Jonathan Macey have argued that courts should gap fill generally to fulfill the “public regarding purpose” of laws. Otherwise, rights are left without remedies.
That is a troubling lesson for many that was taught by Drake Law School in this court victory.
Private buildings not generally open to the public are exempt from most of the laws.
Thanks for the clarification. I got lost in the legal jargon. Still sounds like a really big deal over nothing. Yes! Two legs baaaaaaaaad!
If Drake U is a private university and no cops were involved then there are no “state actors” to open the pearly gates to Section 1983 litigation in federal court. But I think another avenue so to speak is open to the support dog people. March on Des Moine with your support dogs and demand action in the legislature to provide a remedy. Petition your government for the redress of grievances. Four legs good, two legs baaaaaad. (Animal Farm)
The situation did not involve someone requiring a service dog, which could be an issue under the ADA and other federal provisions. Rather, she asserts she was not disabled, but was accompanied by the dog for the purpose of training the dog. There isn’t an action under section 1983, or other federal law, for the exclusion of a service dog being trained by someone who is not disabled.
I hate to sound like a knuckle dragger (????) but we non-lawyer types can grow weary of this legal knit-picking. Couldn’t someone with her just give the guy at the door who refused her access the first time the John Wayne jab for not letting her use her much-needed service dog? Maybe it wouldn’t have gotten this far if every time that person saw the lady and his jaw hurt, he might have thought the whole exercise was more trouble than it’s worth. Law by classical conditioning?? Pardon my Appalachian social analysis…
slohrss99 – I really cannot believe that a law school is the one being sued. You have to wonder what they are teaching,
Well, I don’t know if she neglected to plead a 42 USC 1983 count in her complaint but one can do so in state court.
Besides that, for a Drake, this is really quite foul! They have the bill.
Time for a federal section 1983 action, now that the foundation is laid.
Iowa is where the tall corn grows.
Al – I thought Oklahoma was where corn was as high as an elephants eye?
I remember a song about such phenomena as rights without remedies.
Simon & Garfunkel, The Sounds of Silence
It was always drummed in to me by my lawyer dad and later by multiple law school profs that “there is no right without a remedy.” Did she file the wrong action? Damages as opposed to injunction? Is this supposed to be ‘enforced’ by the local county or state’s attorney? What the hell is the matter with the law school? Surprised that one of Drake’s profs [or one from Univ. of Iowa] did not represent the plaintiff!!
At ASU a girl had a service dog and was so well thought of that when she graduated the dog got a diploma, too.
Is there any indication the case is going Federal?
This will end up on ATL today. 🙂 Wonder if it will affect the school’s ranking? I am not sure what the school’s real issue was though. I went to a symphony concert the other night, one of the violinists was in a mobility chair with a service dog. Big deal.
I never understood the resistance of building owners to service dogs. I know a real good attorney who is pretty close to being Atticus Finch. He takes on cases like this, almost always pro bono.