By Jacob Hogg
Associate Editor, Vol. 20
The Equal Protection Clause of the Fourteenth Amendment is one of the most celebrated and discussed topics in Constitutional Law. This clause states “No State shall [. . .] deny to any person within its jurisdiction the equal protection of the laws.” Law students generally learn about this clause in relation to certain classes or groups of individuals in society who have encountered discrimination in some way based on an affiliation with a “group,” such as race or gender. Because the Equal Protection Clause “protect[s] persons, not groups,” there are situations where individuals can bring claims alleging a violation of the Equal Protection Clause in which they were discriminated against without reference to a particular “group” to which they belong. A “class-of-one” equal protection claim may be alleged where the plaintiff can establish that he “has been intentionally treated differently from others similarly situated and there is no rational basis for the difference in treatment.” The Fourteenth Amendment allows for this when individuals are affected by “purely arbitrary government classifications, even when a classification consists of singling out just one person for different treatment for arbitrary and irrational purposes.” It should be noted that although the term “class-of-one” implies that only one individual can make this claim, it “refers not to the number of plaintiffs but to the fact that the plaintiff or plaintiffs is not suing as a member of an identifiable group, such as a race or a gender, or for that matter an industry.”
Because class-of-one claims “might well be thought . . . to require a different level of consideration from other forms of discrimination challenged under the equal protection clause,” the Seventh Circuit has recently split over what exactly must be proven in a class-of-one claim under the rational basis test. Although the Supreme Court has dealt with class-of-one cases on a few occasions, it has yet to establish whether these claims require improper motive in order to prevail. In Del Marcelle v. Brown Cnty. Corp. the Seventh Circuit in an en banc proceeding split three ways. The Seventh Circuit summarized the Del Marcelle decision in D.B. ex. rel. Curtis B. Kopp, stating that “[s]ome members of the court thought the plaintiff should be required to plead and prove that the disparate treatment was motivated by personal ill will or other illegitimate purpose; that is, a purpose unrelated to public duty.” Others expressed the view that personal animus or other improper motive is not an element of the claim but just one way to prove that the defendant’s action lacked a rational basis. One member of the court concluded that motive or intent “has no role at all” in class-of-one litigation. This comment will describe the differences between the justices in their split over this issue. I will also propose a solution to this problem in which I adopt Judge Wood’s approach by examining other cases as well as the judges’ rationales for class-of-one claims to fit the overall purpose of the equal protection clause.
The Seventh Circuit Split
In Del Marcelle, the plaintiff filed a complaint against public employees of his city and county government under a class-of-one equal protection claim after a motorcycle gang continuously harassed him and his wife. Although he filed several complaints with the Sheriff’s Department, “[n]ot only were his pleas ignored, but based on competing complaints from others, the Department issued citations to [the plaintiff] himself for actions he had taken in response to his mistreatment.” The motorcycle gang further harassed the plaintiff even after he moved to another city. When he and a motorcycle gang member, Taggart, each filed a complaint against the other, the plaintiff “received a citation based on Taggart’s complaints, but the police would not accept [the plaintiff’s] complaint; they told him that they would not help him because he was crazy.” The Seventh Circuit heard this case en banc, and the Court split over what role, if any, improper motive should play in class-of-one cases.
Judge Posner, joined by four other judges, believed that
[T]he plaintiff [should] be required to show that he was the victim of discrimination intentionally visited on him by state actors who knew or should have known that they had no justification, based on their public duties, for singling him out for unfavorable treatment—who acted in other words for personal reasons, with discriminatory intent and effect.
Judge Posner elaborated on this point by stating that public officials hold a special role in our system and thus class-of-one claims should not be brought against these individuals simply for exercising their discretion in deciding which complaints to pursue over others. Furthermore, deciding which cases to pursue may be a matter of administrative burden or allocation of resources rather than intent to improperly harm a certain individual. Judge Posner therefore argued that “class-of-one suits should not be permitted against police officers or police departments, complaining about failure to investigate a complaint or otherwise provide police protection to a particular individual, unless the police, acting from personal motives, with no justification based on their public duties, intend to disfavor the plaintiff.” Allowing class-of-one cases without a claim of improper motive would go against the actual purpose of the equal protection clause because they “are neither necessary to prevent serious injustices nor manageable; they are not compelled by the equal protection clause or the case law interpreting it; they fill no yawning gap in the legal protection of Americans.” Furthermore, Judge Posner rejected the view that improper motive should not be an element in class-of-one claims but used to show that the defendant fails under a rational basis test. He argued that “so loose a standard could invite a flood of cases, because the opinion imposes a high burden of proof on plaintiffs (though not on this plaintiff) and requires that the complaint itself ‘show . . . some plausible reason to think that intentional, irrational discrimination has occurred.’”
Judge Wood disagreed with Judge Posner that class-of-one claims require improper motive or animus by the defendant, but believed that they could be used as evidence that the defendant’s discrimination could not meet the rational basis test. Judge Wood argued that the complaint must allege two elements in order to prevail past the pleading stage for class-of-one claims. The first is that it “must set forth a plausible account of intentional discrimination, which is required for any violation of the Equal Protection Clause.” Second, “[t]he complaint must also indicate how the plaintiff proposes to shoulder the burden of demonstrating the lack of a rational basis.” She contended that this could be done in a number of ways, including through a showing of improper motive or personal animus by the public official. However, this factor is not a “primary rule” to successfully make a class-of-one claim. The plaintiff must be able to
do more than show that state actors who have legitimately been delegated discretion to act simply exercised that discretion. It is entirely rational, in other words, to permit state actors to make individualized decisions when the very nature of their job is to take a wide variety of considerations into account.
Therefore, if a plaintiff can show that the defendant had a certain ill will against the plaintiff in making a discriminatory decision, the plaintiff would be successful in proving that the defendant was not just exercising discretion in making a decision about which complaints to pursue. This view, Judge Wood wrote, “‘addresses the main concern with the class-of-one theory—that it will create a flood of claims in that area of government action where discretion is high and variation is common,’” because a plaintiff must allege in detail and with particularity in his complaint to show that the claim of discrimination was not due simply to discretion by a public official, especially a police officer. Finally, Judge Wood stated that the Posner view would be difficult for courts to follow because “[i]t is all too easy for a plaintiff to accuse someone of a malicious motive and thus to impose on the entire system the burden of going forward.”
Chief Judge Easterbrook disagreed with both Judge Posner and Judge Wood in stating that improper motive should not be a factor in class-of-one claims. He contended that the proper way of determining whether a discriminatory action has violated the equal protection clause through the rational basis test is “whether a rational basis can be conceived, not whether one is established on the record or occurred to a defendant.” The defendant need not prove his or her reason to the Court for discriminating against this particular person under a rational basis test. The Chief Judge argued that in this particular case there were two rational bases for the way the police officers treated the plaintiff: “First, they had limited enforcement resources and could not fully investigate all complaints. Second, defendants may have concluded that [the plaintiff] was imagining or exaggerating the problems he reported. Under the rational-basis test, either possibility requires judgment in defendants’ favor.” The defendant’s reasoning or personal view of the plaintiff therefore does not matter under the rational basis test. Thus, the intent of the defendant is not important. As Judge Easterbrook stated, “[i]f [the plaintiff] were arguing that defendants held his race, sex, or religion against him, and were seeking heightened scrutiny, intent would matter. He does not contend, however, that defendants engaged in class-based discrimination; that’s why this is a class-of-one case.”
Resolving The Split
In order to come to a conclusion about which view should prevail, the purpose of the equal protection clause must first be understood. The Supreme Court has articulated that this purpose “‘is to secure every person within the State’s jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.’” In Village of Willowbrook v. Olech, the Court decided a class-of-one case but left out the question of whether improper motive is necessary to establish the claim. However, the Court, in coming to a conclusion, stated that the allegations raised in the complaint in which the plaintiff claimed that public officials discriminated against him were sufficient to show an equal protection violation. Even though the plaintiff alleged ill will by the defendant, the Court stated that the “allegations, quite apart from the Village’s subjective motivation, are sufficient to state a claim for relief under traditional equal protection analysis.” Under the Supreme Court’s analysis, Judge Posner would be incorrect, because the Court decided a case without looking at whether there was improper motive by the defendant. Thus, personal animus is not a necessary element in class-of-one claims. Judge Wood, in her dissent in Del Marcelle, also had reservations about adopting Judge Posner’s view because it “might be read as endorsing a new type of rational-basis test that the Supreme Court has never created—some kind of ‘rational-basis minus’ level of review,” given that “he is concerned that too many class-of-one cases will slip by the normal rational-basis screen.”
Justice Breyer, who concurred in Olech, formulated a similar argument to that made by Judge Wood in Del Marcelle. Olech dealt with potential discrimination in a zoning decision. Justice Breyer noted that,
Zoning decisions, for example, will often, perhaps almost always, treat one landowner differently from another, and one might claim that, when a city’s zoning authority takes an action that fails to conform to a city zoning regulation, it lacks a “rational basis” for its action (at least if the regulation in question is reasonably clear).
Justice Breyer argued that this zoning case was different than other non-discriminatory cases because “the Court of Appeals found that in this case respondent had alleged an extra factor as well – a factor that the Court of Appeals called ‘vindictive action,’ ‘illegitimate animus,’ or ‘ill will.’”
Although Judge Easterbrook is correct that personal animus is not a required element in class-of-one claims, showing animus in order to prove lack of a rational basis is akin to proving severe under-inclusiveness in ordinary equal protection claims under the rational basis test. As the Court stated in Nordlinger v. Hahn,
A classification rationally furthers a state interest when there is some fit between the disparate treatment and the legislative purpose . . . Nonetheless, in some cases the under-inclusiveness or the over-inclusiveness of a classification will be so severe that it cannot be said that the legislative distinction ‘rationally furthers’ the posited state interest.
If, as Judge Easterbrook states, one of the reasons for the police decision in Del Marcelle was a lack of resources, enforcing a rule against only the plaintiff in order to preserve those resources while not enforcing that rule against all others similarly situated can be used rebut the rational basis presumption. This would be the case if the plaintiff can show improper motive or animus in the decision by the police officer. Thus, the police officers would be enforcing the legitimate state interest in an under-inclusive way that does not meet the rational basis standard.
The standard articulated by Judge Wood seems to be in line with how other equal protection cases are decided under the rational basis test. As she argued, this would not put too much of a burden on the plaintiff in order to state a claim of discrimination during the pleading stage because it is difficult to truly get into the state of mind of the actor. When a plaintiff cannot claim a lack of rational basis alone based off of the defendant’s action, “more will be required to cross the line between possibility and plausibility of intentional, irrational behavior. Often something like animus, or the lack of justification based on public duties for singling out the plaintiff (as Judge Posner proposes), or an impermissible personal motivation, will serve that purpose.” This would help the plaintiff pass the pleading stage, especially in cases where a system of randomness is seen as a rational enforcement mechanism, like when a police officer decides to pull over one speeding car as opposed to another. However, when the plaintiff can show that the police officer pulled him over due to personal animus, this can be analogized to a government action of enforcing a rational yet random discretionary policy in an under-inclusive way that would ultimately fail the
 U.S. Const. amend. XIV.
 Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995).
 Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
 Del Marcelle v. Brown Cnty. Corp., 680 F.3d 887, 895 (7th Cir. 2012) (citing Engquist v. Oregon Dep’t of Agriculture, 553 U.S. 591, 601 (2008)).
 Del Marcelle v. Brown Cnty. Corp., 680 F.3d at 890-91.
 680 F.3d 887 (7th Cir. 2012).
 725 F.3d 681, 685 (7th Cir. 2013).
 See Del Marcelle, 680 F.3d at 889 (Posner, J.) (plurality opinion) (writing for four members of the court).
 See id. at 913–14 (Wood, J., dissenting) (writing for five members of the court).
 See id. at 900 (Easterbrook, C.J., concurring in the judgment).
 Id. at 906.
 Id. at 907.
 Id. at 889.
 Id. at 893.
 Id. at 913.
 Id. at 915. (quoting Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1218 (10th Cir. 2011)).
 Id. at 918.
 Id. at 900.
 Village of Willowbrook v. Olech, 528 U.S. 562, 564 (quoting Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 445 (1923)).
 Id. at 565.
 Del Marcelle, 680 F.3d at 918.
 Olech, 528 U.S. at 565.
 Id. (Breyer, J. concurring)
 Id. at 565-66. (quoting Olech v. Vill. of Willowbrook, 160 F.3d 386, 387 (7th Cir. 1998)).
 Nordlinger v. Hahn, 505 U.S. 1, 34-35 (1992).
 Del Marcelle, 680 F.3d at 918.
 Id. at 914.