The Engquist Revolution

How the Supreme Court Affirmed Arbitrary Action in Public Employment

This article critiques the Supreme Court’s recent exclusion of class-of-one equal protection in the public employment context in Engquist v. Oregon Dept. of Agriculture. The argument proceeds in three parts.

Part I examines Olech v. Village of Willowbrook, the unanimous per curiam decision that first articulated class-of-one equal protection. For almost a decade, every circuit but the Ninth that considered the question of extending Olech to the public employment context did so while wrestling to create an appropriate test. In Engquist, the Supreme Court unconvincingly distinguished Olech and went against a near consensus in the circuits to hold that class-of-one equal protection has no place in the public employment context.

Part II examines the Court’s rationale for its holding, particularly the emphasis that the Court places on the at-will rule of employment. The section argues that the courts have consistently oversimplified the at-will rule in the private sector that creates more of an aspiration than a presumption. In the public sector, the at-will rule has never existed in a coherent form, and therefore should not have been used by the Court as a balance to a constitutional protection.

Part III examines the practical effects of Engquist and shows that the case would have had minimal practical effects no matter which way the Court went. But even without direct practical effects, Engquist is a major decision that will have a significant impact on the future of labor and employment law.

First published in the William & Mary Policy Review, Vol. 1, Issue 1, Spring 2010.