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.