Flunking the class-of-one/failing equal protection.

Author:Araiza, William D.


This Article considers the equal protection "class-of-one" doctrine in light of recent developments, both at the Supreme Court and in the lower courts. After Part I explains the background and current state of the doctrine, Part H considers how that doctrine provides insights into such basic equal protection concepts as discriminatory intent and animus. It also critiques the Court's analysis of the class-of-one, arguing that the Court has mishandled these concepts and in so doing caused doctrinal anomalies and lower court confusion. Part H offers an alternative approach to the class-of-one that corrects those problems while still addressing the concerns that may have influenced the Court to embrace its mistaken analysis.

Part III considers how the Supreme Court's mishandling of the class-of-one risks infecting other areas of equal protection law and American constitutionalism more generally. It explains how the Court's approach threatens the core constitutional commitment that government action must seek to promote a public purpose. It also discusses a subsequent Court decision that cites its most recent class-of-one case in a way that aggravates that threat. The Article concludes by calling on the Court to reconsider both its aggressive reading of its class-of-one jurisprudence and the direction of that jurisprudence itself, in order to reverse the doctrinal and conceptual damage it has caused. The Article thus demonstrates that the class-of-one provides insight into larger equal protection issues. At the same time, it risks infecting those larger issues with the mistakes flowing from the Court's mishandling of this under-studied and poorly understood doctrine.


As anyone who has ever worked a crossword puzzle knows, a difficult problem can sometimes be solved by approaching it from a different angle. An impenetrable "across" clue can become comprehensible with the help of a "down" answer. So too with constitutional law. Fundamental questions about equal protection law--the appropriateness and role of the intent requirement, (1) the role of animus, (2) the puzzle of rational basis review, (3) the level of judicial under enforcement, (4) and the implications of the Court's insistence that equal protection rights are "personal" (5) have generated volumes of scholarship without definitively clarifying these issues. This Article considers how those debates can be enriched and their underlying issues clarified by improving our understanding of a rarely-studied corner of equal protection: the class-of-one.

The class-of-one theory holds that a plaintiff can bring an equal protection claim alleging discrimination against her in her capacity as an individual. This theory contrasts with equal protection's standard template, in which a plaintiff claims unconstitutional discrimination based on her group status--as a member of a particular racial group, or her sex, or some affinity or social group status. Class-of-one claims are hard to win. Unlike claims based, for example, on racial discrimination, class-of-one claims succeed only if the plaintiff proves that the government's singling-out lacked a rational basis. But as a conceptual matter, such claims obtained the Supreme Court's unanimous endorsement in the 2000 case of Village of Willowbrook v. Olech. (6) Indeed, the Court appeared to think the matter was uncontroversial; Olech was a short (7) per curiam (8) opinion with only one concurring justice embracing an alternative, more limited, version of the theory. (9)

Despite Olech's sanguine view about the theory's bona tides, the class-of-one concept remains a doctrinal anomaly. It is far removed from both the Equal Protection Clause's preeminent concern with race (10) and discrimination against other groups whose status can be analogized, with more or less precision, to that of freed slaves after the Civil War. (11) Indeed, as a branch of equal protection that, by definition, does not focus on discrimination against members of groups, it tits uneasily with both the anti-classification (12) and antisubordination (13) theories that comprise modern doctrinal and scholarly understandings of equal protection. (14) Moreover, the class-of-one's focus on individualized discrimination demands considerable intellectual dexterity to locate it within the debate about the role of discriminatory intent, which, along with a group focus, is the other major organizing principle of standard equal protection law. (15)

Thus, the class-of-one seems to be a doctrinal outlier. Yet it is also deeply resonant of fundamental equal protection principles. Most intuitively, it reflects the Supreme Court's insistence that equal protection rights are "personal" rights. (16) After all, what could be more personal than a right to be free from discrimination, not based on your status as an African-American, (17) a woman, (18) or a disabled person, (19) but simply for being you? Moreover, despite the seeming incongruence of the terminology, the class-of-one theory can claim at least some provenance as the modern manifestation of what is often thought to be the antebellum precursor to the equal protection principle: the right to be free from so-called "class legislation" (20) favoring (21) particular corporations (22) or individuals. (23)

For these reasons the class-of-one concept has a strong intuitive claim to doctrinal legitimacy, even if it does not follow equal protection's traditional path. If so, then perhaps like a crossword's "down" answer that solves an otherwise impenetrable "across" clue, the class-of-one may illuminate thus far elusive answers to fundamental questions about equal protection.

But the class-of-one doctrine can play that helpful role only if the Court gets it right. So far its record is disheartening. After a sloppy start in Olech, the Court over corrected in Engquist v. Oregon Department of Agriculture, its only other class-of-one opinion to date. (24) The result has been extensive confusion in the lower courts. Emblematic of such confusion, although by no means its only example, was the severe split in the Seventh Circuit's 2012 en banc decision in Del Marcelle v. Brown County Corporation. (25) In Del Marcelle, the court--in many ways the incubator of the class-of-one doctrine (26)--split badly on the best approach to the class-of-one in the wake of Supreme Court precedent. (27) As this Article explains, this confusion is due largely to the confusing, troubling, and counterintuitive signals the Court has sent.

Thus, the Supreme Court continues to flunk the class-of-one. As intrinsically unfortunate as that fact is, its inadequate performance also causes the Court, more seriously, to fail equal protection--not in the sense of flunking it, but in the deeper sense of disserving its core principles. This failure is especially troubling because, like rips in actual fabric, rips in doctrinal fabric have a way of expanding from obscure locations to more prominent ones. This Article reveals the tear the Court's class-of-one jurisprudence has created in the fabric of equal protection law. It also explains how a subsequent Court opinion citing Engquist expands that tear into more prominent locations, threatening core constitutional principles. (28)

Stated more positively, a more careful analysis of the issues raised by the class-of-one doctrine would help reinforce core equal protection principles. That help is needed now more than ever: the Court's seeming abandonment of Carolene-style political process review (29) has left it adrift, deciding equal protection cases in an unsatisfying, ad hoc manner. The Court could begin placing its equal protection doctrine on a firmer footing by engaging more seriously with the class-of-one doctrine. This Article calls for such an engagement.

This Article proceeds in three parts. Part I briefly summarizes the history and current state of the class-of-one doctrine. Part II explains how Olech and Engquist, the Supreme Court's two class-of-one decisions, mishandled basic concepts of equal protection law, most notably the intent requirement and equal protection's core prohibition against animus-based government action. This poor performance has created both doctrinal anomalies and lower court confusion. Part II offers a better methodology, which corrects these problems while still resolving the practical concerns that may have influenced the Court to embrace its mistaken approach.

Part III expands the Article's scope by arguing that the Court's sloppy work has begun to infect broader equal protection doctrine. By appearing to permit government action motivated by animus or other illegitimate purposes, the Court's most recent analysis of the class-of-one doctrine in Engquist threatens the core constitutional principle that, at a minimum, government action must seek to promote a public purpose. As such, the Court's approach to the class-of-one doctrine threatens basic assumptions of American constitutionalism. Indeed, in an ominous development the Court has cited Engquist in a way that expands that threat. Part III concludes the Article by considering the significance of that latest development. It calls on the Court to reconsider both its aggressive reading of Engquist and its analysis in that case itself, in order to reverse the doctrinal and conceptual damage it has caused and prevent further damage. If nothing else, this Article demonstrates that this seemingly small doctrine merits more careful scrutiny than it receives, both from scholars and the...

To continue reading