In a Class Of Your Own

June 16, 2008 • Commentary
This article appeared in the Legal Times on June 16, 2008.

When the Supreme Court affirms a decision of the U.S. Court of Appeals for the 9th Circuit, that’s news, especially when nearly every other circuit has gone the other way. That’s what happened last week in Engquist v. Oregon Department of Agriculture. Unfortunately, the news would be better had the 9th Circuit gotten it right.

Anup Engquist, a laboratory employee for 10 years with the state of Oregon, brought suit in federal district court on several grounds after she was denied a promotion and then lost her job following a reorganization orchestrated by a fellow employee who had allegedly wanted to get rid of her. A jury rejected her group‐​based discrimination claims but accepted her “class‐​of‐​one” theory of discrimination under the 14th Amendment’s equal protection clause.

A curious outgrowth from our history of group-based equal protection law, the class-of-one theory holds that discrimination may arise not only from actions that treat members of different groups differently but from actions that treat similarly situated individuals differently without sufficient reason. Anomalous as it may be, it takes us to the core of equal protection.

Of the three broad guarantees of section one of the 14th Amendment, equal protection is clearly the most enigmatic and the most difficult to apply. Its origins are in antiquity, in the universality of the Stoics and the "right reason" of Cicero's De Legibus; its modern rationale in John Locke's Second Treatise on Civil Government. From there equality became the nation's bedrock principle, through the Declaration of Independence, even if it would be another 92 years before it could be incorporated explicitly in the Constitution.


But what does "the equal protection of the laws" mean, especially in a case like Engquist?

Here, history helps a bit—and helps explain the dominance of the group-based theory of equal protection. In equal protection's simplest iteration, black defendants have the same legal rights as white defendants. Thus, Recon­struc­tion's Black Codes, which precipitated the 14th Amendment, denied equal protection by prescribing government discrimination on the basis of race.

But why may not government discriminate? We're now at first principles. Despite its historical ties in America to group identity, equality is about individuals. As the Declaration makes clear, each of us is born free, with equal rights, including the right to freely associate with others. Grounded in the idea of individual sovereignty, freedom means that we start with the individual; it is association that must be explained or justified.

Put differently, each of us is free, or at least should be, to discriminate in his associations, for any reason, good or bad, or no reason at all. Thus "at-will" employment, and much else besides. With Voltaire (it's apocryphal, but never mind), we may disagree with your reasons, but we will defend to the death your right to invoke them—or at least we would have before the advent of modern anti-discrimination law—for there is all the difference in the world between defending freedom and defending what flows from it.

But that is freedom of association, for better or worse, in our private capacities, including our private institutional capacities. It's altogether different in the public sector. Yet the reason we may discriminate, "rationally" or not, as private parties—because we are sovereign over ourselves—is the same reason, mutatis mutandis, that government may not discriminate, except on "rational" grounds—because we are all sovereign over government, because government belongs to all of us.

In essence, then, equal protection is less about groups—groups are simply shorthands for discerning discrimination—than about the government treating us all equally and discriminating among us only for "good reasons."


The Engquist majority, with Chief Justice John Roberts Jr. writing for the Court, grants that point when government is acting in its regulatory capacity, bringing its power to bear on citizens at large. Thus, in Village of Willowbrook v. Olech (2000), a case on which most circuits and Engquist herself had relied, the Court found that the village had engaged in "class-of-one" discrimination against Olech when, for no rational reason, it required a 33-foot easement before connecting her property with the municipal water supply when other owners were required to grant only a 15-foot easement.

But that application should not be extended to the government employment context, Roberts says, where government as employer has "far greater powers" than government as sovereign, due to "the nature of the government's mission as employer." Indeed, "government offices could not function if every employment decision became a constitutional matter."

Two main principles apply in the public-employee context, Roberts continues. First, employees' constitutional rights "must be balanced against the realities of the employment context." Second, in striking that balance, courts must consider "whether the asserted employee right implicates the basic concerns of the relevant constitutional provision, or whether the claimed right can more readily give way to the requirements of the government as employer."

It appears (the argument here is unclear) that the "asserted employee right" is to be treated equally with others similarly situated, unless there is a "rational reason" for unequal treatment. But in Olech, Roberts adds, there was "a clear standard against which departures, even for a single plaintiff, could be readily assessed." Here, by contrast, the employer's actions "involve discretionary decision-making based on a vast array of subjective, individualized assessments." Allowing a challenge here "would undermine the very discretion that such state officials are entrusted to exercise." Thus, the employee's right can "more readily give way" to such practical considerations.

Concluding, therefore, that "the class-of-one theory of equal protection has no application in the public employment context," the Court affirms the "at-will" character of government employment, save where statutory or contractual arrangements have provided otherwise.


Those arguments—from the nature of the matter, and the place of discretion—are not to be lightly dismissed. Those who counsel judicial deference in this context have a point: Government employers require discretion, and courts cannot micromanage every decision.

But for those inclined to hold government officials accountable for at least some of their actions, this decision is troubling. Government employers need discretion, to be sure; but discretion is not license. Yet, except for class-based cases, where Roberts says the equal protection clause still applies (although every decision he cites went against the plaintiffs), the Court has carved out an exception that effectively gives public employers license. That, after all, is what at-will amounts to. Ironically, as that doctrine is being legislated and litigated away in the private sector, where it is perfectly appropriate for dealings between arms-length strangers, the Court reaffirms it here, where employees are not strangers to government but, indeed, are part of the government that belongs to all of us.

Practical considerations, it seems, have trumped the theory of the matter. A better reading would have the equal protection clause trumping at-will employment in the government context.


Nor is Engquist asking for all that much. In the end, she wants simply rational review, the lowest level of review, which would check only arbitrary government actions, not those for which there is a "reasonably conceivable" ground. (I pass on whether that standard of review is appropriate for assessing alleged constitutional wrongs.) That hardly undercuts employer discretion.

In dissent, Justice John Paul Stevens, writing for himself and for Justices David Souter and Ruth Bader Ginsburg, draws a clear distinction between discretion and an arbitrary decision. "A discretionary decision represents a choice of one among two or more rational alternatives," each thought to be permissible—and "the choice may be mistaken or unwise without being irrational." What the equal protection clause proscribes, Stevens concludes, is not unwise but "arbitrary decisions—decisions unsupported by any rational basis."

Here, however, "the State explicitly disclaimed the existence of any workplace or performance-based rationale," but for which the lower court could have dismissed the claim had it discerned any "reasonably conceivable" ground supporting it. This should have been an easy case, therefore, as indeed the jury found.

And those distinctions should have put to rest what seems to be the majority's main concern—that courts would be flooded with class-of-one cases were they to be allowed. In fact, since Olech was decided in 2000 there have been only about 150 such cases in the federal courts, Stevens notes, and most were dismissed well before trial.

The door is now open, however, for arbitrary decisions by government employers so long as no group-based rationale for a decision can be alleged. Slavery kept equal protection out of the Constitution until after the Civil War. Since then, our group-based approach to equal protection has kept us from enjoying it fully, and that looks to continue until we grasp the principle of the matter.

This article is reprinted with permission from Legal Times.

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