Irrationality and Animus in Class-of-One Equal Protection Cases

Abstract

Village of Willowbrook v. Olech, 528 U.S. 562 (2000), is a small case that potentially says much about basic issues in the law of the Equal Protection clause. In a remarkably short per curiam opinion, the Court in Olech decided that a landowner engaged in a spat with a municipality could bring an equal protection claim without asserting either the deprivation of a fundamental right or discrimination based on membership in a large class, such as one defined by race. Instead, Olech held that a person could bring an equal protection claim simply by asserting that she herself, as a "class of one," was intentionally treated differently from relevantly similar individuals and that that treatment was irrational. Importantly, the Court explicitly did not require the plaintiff to allege animus or ill-will on the part of the government defendant. All it required was intentionally different treatment lacking a rational basis. Initially, Olech caused a great deal of concern among government officials, as it held the potential to expand their federal-law liability for disputes growing out of everyday local regulation. This fear has turned out to be unfounded, largely because of the deferential nature of rational basis review. Olech's most noticeable practical effect may well turn out to be the increased litigation leverage enjoyed by plaintiffs, as Olech allows a plaintiff to survive a motion to dismiss without having to plead anything more than irrational government action. As a more theoretical matter, though, Olech raises fundamental issues about equal protection law: does equal protection protect only against class-based discrimination or does it also guard against government singling-out of individuals without reference to their possession of a class characteristic such as race or gender? Olech clearly and unanimously extended the equal protection guarantee to situations of such individual singling out, or "classes of one." But the Court, and especially post-Olech lower courts, have split on a second issue: whether such class-of-one claims can be based purely on claims of irrational government action, or whether government animus is an essential part of the claim. This Essay, written for a symposium on developments in constitutional restrictions on land-use law, focuses on this latter question of animus. After Part I sets forth Olech and its reception in the lower courts, Part II considers the relationship between animus and irrationality in equal protection law and what Olech reveals about that relationship. Considering examples drawn mainly, but not exclusively, from land-use law, Part II concludes that the fact-specific nature of many government decisions singling out an individual make it difficult for courts to employ standard equal protection "fit" analysis in a meaningful way. This analysis leads to the conclusion, contrary to that of the Supreme Court, that class-of-one claims should be required to include allegations of animus or ill-will in order to proceed. It also suggests that class-of-one claims lacking such allegations, such as claims simply alleging irrational, if "innocent," government action, should be relegated to the Due Process clause for review under standards developed to ensure that government action satisfy some minimal level of substantive reasonableness.