By William Araiza, Brooklyn Law School
(Brooklyn Law School Professor William Araiza’s teaching and scholarly interests focus on the areas of administrative and constitutional law. He is widely published in these areas and currently serves on the Rulemaking Committee of the American Bar Association's Section on Administrative Law.)
A lawyer may think of many things when she hears the term equal protection. She may think about the struggle for racial equality, or for women’s rights, or one of the many equality movements that are occurring today, on topics as varied as sexual orientation, disability and even genetic predisposition to disease.
But a homeowner engaged in a spat with his municipality about a water line hook-up?
In 2000 the Supreme Court, in a unanimous decision whose brevity and per curiam authorship suggests it did not view the issue as difficult, approved the so-called “class of one” theory of equal protection.
The case — Village of Willowbrook v. Olech1— involved a homeowner angry because his town insisted on a larger-than-normal easement as a condition of hooking up his home to the municipal water supply. He had been involved in disputes with the village before, and believed that its unusual demand may have represented a new round in their contentious relationship. He sued. Interestingly, however, he claimed that village’s unequal treatment of him violated his equal protection rights, by discriminating against him as a “class of one.”
While the class-of-one claim was novel as presented to the Court, lower courts over the prior 20 years had been experimenting with that theory. The 7th Circuit — where Olech originated — had been particularly aggressive in exploring the boundaries of the class-of-one idea.
As it developed, the theory held that discrimination against an individual in his capacity as an individual could violate equal protection, just as much as discrimination against an individual as, say, a member of a racial group, a woman, or a disabled person. In other words, status as a member of a group was not necessary in order to make out an equal protection claim. One could, literally, claim equal protection rights as a class of one.
This might seem straightforward. Equal protection is, after all, a guarantee of equal treatment for individuals, not (simply) a guarantee of equal treatment in one’s capacity as a member of a group. Indeed, throughout the middle of the 20th century the Court had sprinkled its equal protection opinions with the resonant, if vague, statement that equal protection rights are “personal” rights.2 Moreover, our intuition at least suggests that equal protection should, at the end of the day, mean that one is not treated unequally on any ground: as an African-American, a woman, a lesbian — or, simply as yourself.
Yet this intuition immediately creates a host of theoretical and practical questions. As a conceptual matter, what does it mean to be treated unequally as a member of a class of one? We’re all unique: if equal protection is a guarantee that likes be treated alike, then don’t the inherent differences between individuals doom any class-of-one-based equal protection claim?
This problem can be illustrated by comparing a class-of-one claim to a classic equal protection claim, such as one based on race. The Court’s equal protection jurisprudence proceeds on the assumption that there are essentially no differences between races that justify differential treatment. (That’s an overstatement: for example, different worldviews based on different social experiences may justify a diversity rationale for race consciousness in education programs. But the statement is roughly correct.)
By contrast, physical disability creates differences that may, in some cases, justify differential treatment of disabled and able-bodied persons — for example, it’s surely relevant for purposes of getting a driver’s license whether a person is blind.
The strength of the baseline assumption that groups are either relevantly alike or dissimilar helps guide the degree of scrutiny the Court accords race, disability, and other groups-based classifications. (Other factors matter, too, of course: most notably, the extent to which a group is able to participate effectively in the political process.) But, by contrast, how is a court to decide whether a decision, say, to grant a zoning variance to one applicant but not another, is rational?
One answer is to argue that, for purposes of the decision — here, the variance — two individuals may in fact be relevantly similar. Perhaps their parcels are exactly alike, such that a variance for one would impose precisely the same costs on the community as a variance for the other.3 That already sounds a little improbable, but let’s assume it’s true. The court would presumably review the government’s decision for rationality – was the government’s discrimination either irrational or based on animus (i.e., a dislike of the person that led the decision-maker to burden him for no legitimate reason).
This was the Supreme Court’s approach in Olech. Eight justices held that a class-of-one plaintiff could make out an equal protection claim simply by alleging that he was relevantly alike to another person who enjoyed better treatment from the government — someone who received the variance, didn’t get fired from her government job, or didn’t get a speeding ticket. As noted earlier, the Court treated this as a simple question, even though there was essentially no Supreme Court precedent on point.
It’s an interesting question whether the Court felt itself bound to act as if the issue was easy due to its previous statements about the personal nature of equal protection rights. (Indeed, those statements had played progressively more important roles in recent years, supporting the Court’s decisions to both impose an intent requirement in equal protection claims and subject race-based affirmative action to strict scrutiny.) For whatever reason, the Court not only adopted the theory as an uncontroversial application of equal protection, but adopted its widest possible reading.
Justice Breyer agreed with the result endorsing the concept of a class-of-one claim. But he worried about the breadth of the Court’s analysis. He wrote separately to express his concern that the Court’s reasoning threatened to convert any unusual or non-conforming application of local law into a federal equal protection case. To guard against that possibility, he urged the Court to impose an additional requirement on class-of-one plaintiffs: that the government have treated the plaintiff differently for some bad motive, such as ill-will.
In urging that this additional element be imposed on class-of-one claims, Justice Breyer was largely following in the footsteps of the lower courts, and in particular, the 7th Circuit, which, as noted earlier, had taken the lead in developing the class-of-one theory before Olech. Indeed, in Olech itself the 7th Circuit, in an opinion by Judge Posner, imposed an animus requirement on class-of-one plaintiffs, precisely in order to limit the possibility of converting every mistaken or inconsistent application of state law into an equal protection violation.
Nevertheless, after Olech the law was that “innocently irrational” discrimination – that is, irrational discrimination free of any subjective malice – violated the Equal Protection Clause. Whether this holding triggered additional litigation, or whether such litigation rose in prominence due to the Court’s explicit endorsement of the class of one theory, after Olech plaintiffs in any federal circuit could now allege equal protection violations on this theory, and could do so without having to allege bad intent on the part of the government.
Cases began to bubble up addressing a wide variety of alleged irrational discrimination: among other topics, those cases addressed alleged class-of-one violations in government decisions relating to land-use, licensing, law enforcement, and government employment.
The last of these topics, government employment, gave rise to the second, and so far the only other, Supreme Court decision addressing the class of one. In 2008 the Court decided Engquist v. Oregon Department of Agriculture.4 Ms. Engquist was an employee of that department. When she was fired, she sued, alleging a variety of state and federal claims, including violation of her equal protection rights as a class of one. The district court allowed that claim to go forward, but the 9th Circuit reversed, concluding that the class-of-one theory did not apply to the government employment context.
The Supreme Court agreed with the 9th Circuit, and dismissed that part of Engquist’s claim. The Court did not question Olech, or the class-of-one theory generally. However, it reasoned that class-of-one claims had no place in the government employment context. According to the Court, employment decisions featured subjective, highly discretionary decisions based on individualized determinations.
By contrast, it described Olech a situation involving a clear standard: every other homeowner in Willowbrook had to convey only a fifteen-foot easement, but the village deviated from that standard when it dealt with the Olechs. The Court described employment decisions as lacking such baseline standards — that is, it described them as involving evaluations and comparisons of candidates possessing unique combinations of attributes. Given the lack of such standards, it concluded that class-of-one claims had no place in the government employment context.
Fair enough. But what about Mark Geinosky? Geinosky was a motorist in Chicago who was allegedly the victim of a campaign, orchestrated by his personal enemies in conjunction with the police, to burden him with an endless series of parking tickets.5 Of course, a police officer’s decision to ticket one car rather than another is likely quite subjective — indeed, in Engquist the Court used the example of a patrol officer deciding to ticket one speeder rather than another as the paradigmatic example of subjective, individualized decisions that do not appropriately give rise to a class-of-one claim.
On the other hand, surely there is a standard here: most motorists — even thoughtless ones who park where they please — do not receive a blizzard of parking tickets.
Or consider Lewis Del Marcelle. Del Marcelle had become involved in a feud with a motorcycle gang in his Wisconsin town, with the local police allegedly sympathetic to the gang. In his class-of-one complaint, Del Marcelle argued that the police violated his class-of-one equal protection rights by consistently refusing to respond to his complaints about the gang’s harassment of him.
Again, law enforcement is an area rife with government discretion — recall the patrol officer example in Engquist. Does the lack of what Engquist described as a baseline standard doom his discrimination claim?
The 7th Circuit, considering his claim en banc, split down the middle on this question.6 Judge Richard Posner, writing for four judges, returned to his insistence in Olech that something more than irrationality be alleged, at least when the context lacks a baseline against which government conduct can be tested. That “something more” did not have to be animus, but it did have to constitute an improper personal motive for the discrimination — for example, corruption.
Judge Frank Easterbrook, writing for himself, argued that personal motivation played no role in class-of-one claims, at least after Olech rejected animus as a limiting principle for such claims.
Judge Diane Wood, writing for five judges, argued for a complex standard that suggested animus and other personal motives as helpful but not necessary components of a class-of-one claim. For example, she discussed the Geinosky case cited above as an example where the bare facts themselves painted “a plausible picture of intentional discrimination without a rational basis.”
These dueling opinions reflect the difficulty inherent in the class-of-one theory. Every day government doles out unequal treatment to apparently similarly-situated people: think about speeding tickets, hiring decisions and zoning variance decisions. Such unequal treatment grates against our intuition that equal protection somehow forbids that. But that intuition quickly gives way to a recognition of the conceptual and practical difficulties involved in determining which examples of such inequality merit constitutional condemnation.
The various approaches suggested in Del Marcelle, which themselves reflect answers offered by other federal courts before and since Olech and Engquist, testify to the difficulty of harmonizing seemingly clear violations of the spirit of equal protection with those complexities.
The 7th Circuit failed badly in its attempt to bring clarity to class-of-one claims — the apparent reason the court granted en banc review to begin with. If the Supreme Court does not hear the appeal, then matters will stand essentially where they stood over a decade ago: with the lower courts feeling their way through a confused area of the law, groping around the concepts of irrationality and animus in order to find limiting principles to a doctrine that, while deeply resonant, threatens broad vistas of largely meritless litigation challenging discretionary government action.
The fact that the road has circled back to the 7th Circuit only heightens the irony. Judge Posner and his 7th Circuit colleagues can be forgiven for thinking that they’ve been to this party before. It’s just another class (of one) reunion.
1 528 U.S. 562 (2000).
2 E.g., Shelley v. Kraemer, 334 U.S. 1, 22 (1948).
3 But see Little v. City of Oakland, No. C 99-00795 WHA, 2000 WL 1336608, *5 (N.D. Cal. Sept. 12, 2000) (holding that because land parcels are inherently unique, disparate government treatment of particular parcels cannot violate an owner’s equal protection rights).
4 553 U.S. 591 (2008).
5 See Geinosky v. Chicago, 675 F.3d 743 (7th Cir. 2012).
6 Del Marcelle v. Brown County Corp., 680 F.3d 887 (7th Cir. 2012) (en banc). The entire court agreed that Del Marcelle’s complaint was inadequate. However, five of the ten judges would have allowed him to leave to re-plead his complaint and allege more specific facts related to his class-of-one claim.