Flunking the Class-of-One/Failing Equal Protection

ABSTRACT 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. TABLE OF CONTENTS INTRODUCTION I. THE CURRENT STATE OF THE CLASS-OF-ONE A. Olech B. Olech in the Lower Courts C. Engquist D. Engquist's Impact II. FLUNKING THE CLASS-OF-ONE: INTENT AND ANIMUS IN THE CLASS-OF-ONE A. Intent and the Class-of-One B. Animus and the Class-of-One C. Intent and Animus Reconsidered III. FAILING EQUAL PROTECTION: THE CLASS-OF-ONE, THE RATIONAL BASIS STANDARD, AND THE CONSTITUTION CONCLUSION INTRODUCTION 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. …