Equal protection “class of one” claims
NSBA has filed an amicus brief in Engquist v. Oregon Dept. of Agriculture, No. 07-474, a case before the U.S. Supreme Court presenting the question of whether a public employee can bring a “class of one” equal protection claim against the employer. Background on the case, with an explanation of a “class of one” claim, is at the second link below. The U.S. Circuit Court of Appeals for the Ninth Circuit (AK, AZ, CA, HI, ID, MT, NV, OR, WA, GU, MP) rejected the employee’s theory, although that court had applied the class of one theory to regulatory land use cases, and some other U.S. appeals courts had applied it in public employment cases. NSBA’s brief, written pro bono by Elizabeth Eynon-Kokrda and Kenneth W. Hartman of Baird Holm, LLP, in Omaha, Nebraska, presents three main arguments in support of the employer. First, the policy decision before the U.S. Supreme Court is whether “constitutionalizing” employment disputes that involve no suspect classification like race or gender will make federal courts into super personnel departments, responsible for addressing every grievance made by school district employees across the country. Second, the Court hitherto has refused to create a new judicial equal protection remedy in the realm of federal public employment law. Third, the Court always has treated the government as employer differently than the government as sovereign and should do so in this case as well. Oral arguments in the case will be heard this Monday, April 21, 2008.
NSBA brief
NSBA School law pages on Engquist v. Oregon Dept. of Agriculture