The Supreme Court and the Continuing Deconstitutionalization of Public Personnel Management

• DOI: 10.1177/0734371X08327959
• Date: 01 March 2009
• Author: Robert Roberts
• Published date: 01 March 2009
• Subject Matter: Articles

3

Review of Public Personnel

Administration

Volume 29 Number 1

March 2009 3-19

© 2009 SAGE Publications

10.1177/0734371X08327959

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The Supreme Court

and the Continuing

Deconstitutionalization

of Public Personnel Management

Robert Roberts

James Madison University

In Engquist v. Oregon Department of Agriculture, the Supreme Court held that public

employees may not use the so-called equal protection clause of class-of-one doctrine

to challenge the constitutionality of arguably arbitrary adverse personnel actions. In the

2000 case of Village of Willowbrook v. Olech, the high court had authorized citizens to

bring class-of-one equal protection lawsuits to challenge arguably arbitrary discretion-

ary decisions by government officials. The decision provides further evidence of the

ongoing effort by a majority of the Roberts Court to limit the constitutional rights of

public employees. The article argues that the ongoing deconstitutionalization of public

personnel management has significant implications for the management of public

organizations. If the trend continues, public employees, much like their private sector

counterparts, will become much more dependent on statutory protections and collective

bargaining agreements to protect them from arbitrary personnel decisions.

Keywords: privilege doctrine; class of one; equal protection clause; Roberts Court;

constitutional tort; constitutional rights

In Engquist v. Oregon Department of Agriculture (2008b), by a six–three vote, the

Roberts Court held that public employees may not use the so-called class-of-one

equal protection clause doctrine to challenge the constitutionality of arguably arbi-

trary personnel actions.1 The case involved a lawsuit brought by an Oregon state

public employee who alleged that her agency laid her off as part of a reduction in

force “for arbitrary, vindictive, and malicious reasons” (Engquist v. Oregon Depart-

ment of Agriculture, 2008b, p. 2148). In other words, the employee alleged that her

agency treated her differently from similarly situated employees.

The 2000 Supreme Court decision, in Village of Willowbrook v. Olech, opened the

door for public employees to bring class-of-one equal protection claims against

public employers. In a per curiam opinion, the high court stated the following:

The Equal Protection Clause [gave] rise to a cause of action on behalf of a class of one

where the plaintiff does not allege membership in a class or group, but alleges that she

has been intentionally treated differently from others similarly situated and there is no

rational basis for such treatment. (Village of Willowbrook v. Olech, 2000, p. 562)

4 Review of Public Personnel Administration

By recognizing class-of-one equal protection claims, the Rehnquist Court clearly

sought to address the perceived problem of citizens having limited remedies against

local government officials who treated them differently from citizens with similar

situations. Not unexpectedly, the Village of Willowbrook decision led to an explosion

in class-of-one claims filed against local governments for arguably arbitrary deci-

sions (Gehan, 2002). Yet, when the Rehnquist Court sanctioned the use of class-of-

one equal protection claims against local governments, it probably did not anticipate

that public employees would make use of the doctrine to challenge arguably arbi-

trary personnel actions by public employers. Yet, shortly after the issuance of the

Village of Willowbrook decision, public employees began to make use of class-of-

one equal protection claims to challenge arguably arbitrary personnel decisions.

This article argues that the Engquist v. Oregon Department of Agriculture (2008b)

majority took the action to prevent public employees from using class-of-one equal

protection claims as part of an ongoing effort by the Roberts Court to deconstitution-

alize public personnel administration. To accomplish this goal, the Roberts Court has

relied on new per se rules that more narrowly define the constitutional rights of

public employees instead of relying on an ad hoc approach for the resolution of

disputes between public employees and public employers over the constitutional

rights of public employees. Even though it is highly unlikely that a majority of the

Roberts Court will strip public employees of a significant number of existing consti-

tutional rights, it is likely that the Roberts Court will undertake an effort to narrow

the constitutional rights of public employees and make much greater use of per se

rules to limit the access of public employees to the federal courts to challenge argu-

ably arbitrary personnel policies and practices. Finally, the article argues that, if this

trend continues, public employees, much like their private sector counterparts, will

become dependent on statutory law and collective bargaining agreements to protect

themselves from discriminatory personnel policies and practices.

The Equal Protection Clause and the Public Workplace

The period from the mid-1970s through the 2000 Village of Willowbrook decision

saw a sharp decline in the number of equal protection claims filed by public employees

against their employers alleging discriminatory or arbitrary personnel policies and

practices. This decline was the direct result of several significant trends in equal

employment opportunity (EEO) law, constitutional tort litigation, and equal protec-

tion clause jurisprudence. First, the second half of the 1970s saw the Burger Court

narrowly construe the scope of the equal protection clause with respect to judicial

review of public personnel policies and practices. Second, with the extension of a

number of major EEO laws to public employers, many public employees found it

easier to pursue EEO complaints by pursuing private causes of action pursuant to the

provisions of Title VII of the 1964 Civil Rights Act, the Age Discrimination in