The Equal Protection Class-of-One Claim: Olech, Engquist, and the Supreme Court's Misadventure

Abstract

In two recent cases, the Supreme Court devised a class-of-one equal protection claim. In the first, Village of Willowbrook v. Olech, the Court purported to find support in its equal protection precedents for a claim by a class-of-one where the plaintiff did not allege membership in a class or group. In upholding the claim of a homeowner who alleged that the village had imposed an unequal burden on her when extending the public water supply, the Court ignored a series of equal protection precedents to the contrary and strained to find even two obscure precedents in support of its holding. In addition to this problematic handling of precedent, the Olech decision also generated a practical concern: its potential to turn every squabble over municipal services into a federal constitutional case. In response, the lower federal courts attempted to limit the reach of Olech by requiring a showing of bad faith motivation on the part of class-of-one defendants. These attempts led to confusion and uncertainty.

Eight years after Olech, the Supreme Court in Engquist v. Oregon Department of Agriculture revisited the class-of-one claim in a case brought by a government employee who had been terminated. The Engquist Court conceded that there was a problem with an unrestrained interpretation of the Olech holding, but declined the opportunity to reconsider the conceptual underpinnings of the class-of-one claim or to follow the lead of the lower courts by requiring bad faith motivation. Instead, the Court limited Olech by creating an exception for government employment and, more generally, by excepting those forms of government action that involve discretionary decisionmaking. This purported solution to the problem simply added to the class-of-one muddle.