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Thursday, June 12, 2008

The Court Limits the "Class of One"

Monday's Supreme Court decision in Enquist v. Oregon Dept of Agriculture appears to be on its way to being overshadowed, at least in terms of blogosphere commentary, by today's decision in Boumediene.   (One notable exception is Deborah Hellman's post on Balkinization.)  But the case deserves at least a little commentary, as it raises a couple of important issues about equal protection and constitutional rights more generally.

In 2002 Ms. Enquist brought an equal protection claim after being fired from her state job.  In addition to alleging gender, race and national origin discrimination, she also alleged that she was fired for vindictive and malicious reasons, and thus suffered a violation of her equal protection rights under the "class of one" theory the Court embraced in the 2000 case of Olech v. Village of Willowbrook.  As it turned out, the jury rejected her more conventional equal protection claims, but ruled for her on the class of one claim.  The Ninth Circuit, going againt every other circuit to have decided the issue, reversed the jury's verdict, holding that class of one claims could not be brought in context of government employment. 

The Supreme Court, splitting 6-3 with Roberts writing for the conservatives plus Breyer, affirmed the dismissal.  In doing so he had to deal with Olech, a very short, cryptic opinion that appeared to open the door to equal protection claims anytime government imposed a burden on one person that it did not impose on other allegedly similarly-situated persons, even if the burden was not based on a particular basis such as race or gender.  (Here is my own brief read on Olech from last year.) How the Court did so raises some interesting questions about equal protection and the future of the class of one theory.

First, Roberts read Olech as resting on the existence of "a clear standard against which departures, even for a single plaintiff, could be readily assessed."  He explained that in Olech the government's insistence on extracing a 33-foot easement from the homeowner as a condition of putting in a utility hookup deviated from its usual insistence on only a 15-foot easement.  Thus, in Olech there was a clear standard -- a hookup requires a 15 foot easement -- from which the government deviated.  That clear standard gave the courts a hook upon which it could hang its investigation into whether government had a rational basis for the bigger demand on the Olechs.  According to Roberts, such a hook was missing in Enquist -- and indeed, is missing in all employment cases, where decisions were based on what he called "individualized" and "subjective" assessments.  Such assessments, he said, included matters such as the employee's personality and her the quality of her working relationships with her colleagues.  Employment decisions, by turning on factors unique to the burdened party, simply did not fit conventional equal protection review.

So far so reasonable.  But then Roberts throws in an example that seems not quite apposite.  He hypothesizes a traffic cop posted on a highway where a lot of drivers speed.  Clearly, he says, if the cop chose who to ticket based on, say, race, then the ticketed motorist would have an equal protection claim.  But he also notes -- again quite reasonably -- that a decision to ticket based on no discernible or articulable reason would not give rise to an equal protection claim.

This example doesn't seem relevant to Ms. Enquist's claim.  She's claiming that she was terminated, not because someone had to be terminated and she just happened to be the unlucky person (facts that would in fact parallel the traffic cop hypo), but because her supervisor had long had it in for her.  And the jury agreed that she had been the victim of a malicious, vindictive termination.

The Court's reasoning matters, it seems to me, because the path it took does more than shut the door not just on equal protection claims based on irrational government decisionmaking (such as where, given the individualized or subjective nature of the decision, the cop or the employer can't explain why it chose A for the burden rather than B, or can't give a rational explanation).  It also cuts off claims, like Ms. Enquist's, grounded on allegations that government acted because of animus, which I'll shorthand as simple dislike of the person untethered to any justifications that government should be allowed to offer for harming people.  It seems to me, at least intuitively, that the guarantee of equal protection should extend to cases where government brings down its hammer on someone because a bureaucrat or law enforcement officer simply wants to hurt him.  I've touched on this before in a general discusion of equal protection and discussed it in more detail in the context of Olech.  In addition to prohibiting certain classifications, it seems that equal protection ought also to prohibit the ultimate singling out, the placing of an individual in a class of one, at least when there is simply no other remotely plausible explanation for the decision.  (I would suggest this level of deference to the government because of the obvious fact that government singles people out all the time, and a would-be plaintiff should therefore be held to a high burden in order to succeed on an equal protection claim.)

This post is already way too long, so I'll close.  There's more to the opinion -- in particular the importance of the fact that it was a workplace case -- that I will discuss in future posts.  I will also speculate about the practical impact of Enquist.  But for now I would be curious if my reading of the equal protection analysis strikes other people as plausible or simply too foreign to the clause's traditional concern with characteristic-based classification as to be plausible under modern doctrine. 

Posted by Bill Araiza on June 12, 2008 at 08:47 PM | Permalink

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