It may be time to relearn the fundamentals of the Equal Protection Clause of the Fourteenth Amendment. According to the Supreme Court, in a brief and unassuming per curiam opinion in Village of Willowbrook v. Olech, violations of equal protection do not of necessity rely on class-based discriminations. Federal, state, and local governments can violate the equal protection rights of an individual qua individual; a so-called “class of one.” The ramifications of this decision are just now becoming clear, and it has already led to some surprising results in areas of statutory law thought to be well settled. The only question the Supreme Court undertook to answer was “whether the Equal Protection Clause gives rise to a cause of action on behalf of a ‘class of one’ where the plaintiff did not allege membership in a class or group.” The answer was affirmative: “Our cases have recognized successful equal protection claims brought by a ‘class of one,’ where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” This proposition is at once both entirely unobjectionable and striking. The Equal Protection Clause, of course, rests on the notion that those who are alike are entitled to be treated alike by the state, unless there is a rational, permissible public reason for treating persons or groups of people differently. On the other hand, the notion was certainly prevalent that the Equal Protection Clause, drafted to insure that the class of former slaves obtained equal enjoyment of the law, required some allegation of class-based discrimination. This Comment addresses the way courts in various circuits have dealt with the pleading requirements and dispositive motions in both their pre- and post-Olech decisions, both at the 12(b)(6) and summary judgment stages. Given the prevalence of § 1983 cases generally and the fact that a myriad of courts will ultimately shape the substantive law governing “class of one” equal protection claims, uniformity in this area of law will help guide judges deciding motions to dismiss, motions for summary judgment, governmental claims for qualified immunity, and when such cases should actually go to trial. The Supreme Court has elucidated somewhat contradictory mandates with respect to these questions, particularly in the balance between the rights of individuals actually harmed by abuses of official power and the need for a diligent and committed force of public officials who may be deterred either from service or from assiduous prosecution of the public's interest by the threat of invasive and costly suits and the potential of large damage awards. In essence, the question is: How can courts weed out the “insubstantial” claims from meritorious ones in a relatively consistent way, without erring too far in one direction or another? But to answer this question it must first be determined what the substantive law actually is (because whether or not a claim is “substantial” depends on the whether it pleads or proves the elements of the cause of action), so it must also be asked: Does, or should, an Olech claim include the element of malice or ill will or some other type of illegitimate animus on the part of the public official?
Shaun M. Gehan,
With Malice Toward One: Malice and the Substantive Law in "Class of One" Equal Protection Claims in the Wake of Village of Willowbrook v. Olech,
Me. L. Rev.
Available at: https://digitalcommons.mainelaw.maine.edu/mlr/vol54/iss2/7