Tuesday, November 20, 2012
The Class of One at the Supreme Court III: The Court and the Public Purpose Requirement
In my two prior posts on the class of one (here and here) I explained that in Engquist v. Oregon Dept of Agriculture the Supreme Court adopted a blunt approach to cabining the class of one theory, which it had interpreted expansively eight years earlier in Village of Willowbrook v. Olech. In Engquist the Court held that government employment claims could not be brought on a class of one theory, explaining that such claims were a poor fit with the class of one idea. In my last post, I explained why I thought the Court’s analysis was flawed.
I want to finish my analysis of Engquist (on the day the Court is considering a cert. petition in the Del Marcelle case I mentioned in my first post) by explaining briefly my thoughts about the larger implications of Engquist’s approach. The class of one is a “small” doctrine. As a practical matter it rarely yields wins for the plaintiff (although it might provide the grist for favorable settlements by allowing a larger variety of claims to pass the pleading stage). And as a conceptual matter it seems at first blush far removed from the concerns about race, sex and other class-based discrimination that occupy most people who think about equal protection. But Engquist’s analysis does create a problem for larger equal protection principles.
Recall that under one reading of Engquist, employment claims simply do not violate the class of one principle. This is the case (under this reading) even though a plaintiff alleges that she was the victim of discrimination based on animus – that is, discrimination explicitly based on some improper motive (as opposed to “innocent” discrimination that lacks a rational basis). Indeed, the plaintiff in Engquist itself pled (and apparently proved) such animus. Yet the Court rejected her claim.
In rejecting her claim, the Court vindicated a government action that was expressly infected with an improper government purpose. This seems to me to be pretty significant. One can agree that it’s impossible for courts to police all government discrimination that lacks a good justification; one can even agree that in many situations it’s impossible or inappropriate for courts to police discrimination that lacks any clear justification at all. Such results flow from appropriate judicial deference, and recognition of either the burdened group’s political access and/or the court’s own inability to test discrimination with a sufficiently finely-tuned scale. It’s the rational basis standard. But shielding government from liability for action that a jury has concluded was explicitly motivated by improper motives, as Engquist did, goes a step beyond all this. In particular, it allows government officials to act for purely private reasons, or what is sometimes short-handed as “animus.”
Of course, “animus” (I put the word in quotes because it may not be the most accurate descriptor of all private-regarding purposes) is often the implied conclusion of courts doing equal protection analysis. In Richmond v. J.A. Croson Justice O’Connor talked about strict scrutiny’s role in “smoking out” illegitimate government uses of race. In Romer v. Evans the Court concluded that Amendment 2 reflected animus against gays and lesbians, in part because there was no legitimate justification to which Amendment 2 had a reasonable connection. But it may be difficult, or inappropriate, for courts to perform such analysis in class of one cases, given how frequently such cases could arise – essentially, anytime government treated a person differently from another person. But that just makes Ms. Engquist’s lawsuit all the more unusual, in that she alleged and proved actual bad motive. So why not allow the case to go forward?
Indeed, if courts don’t allow such a lawsuit to go forward, then perhaps we have witnessed a bigger change in constitutional law than first meets the eye. A basic requirement of American constitutionalism is that government act in pursuit of a public purpose. Engquist seems to allow private regarding action. Of course the rational basis standard presumably allows much such action to survive judicial review. What’s interesting is that, in Heller v. Doe Justice Scalia wrote (in footnote 27) that the rational basis standard, rather than being simply a judicially-crafted rule that enforced as much of the equal protection guarantee as courts could manage, instead constituted the true constitutional rule. And the case he cited for that proposition? Engquist.Jeff Powell at Duke has argued that this footnote in Heller is significant for widening the scope of government discretion, and lessening the scope for legal limits on that discretion. I think he’s right. He also suggests – as I do in this working paper – that the footnote’s expansion of constitutional room for private-regarding government action marks a significant change in American constitutionalism. All this makes Engquist a very unfortunate decision. But given Justice Scalia’s more explicit statement on precisely this point in Heller, maybe Engquist, and its distortion of the class of one, is just an illustration of a broader troubing development in American constitutional law.
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