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State & Local News Vol. 23, No. 4, Summer 2000 SUPREME COURT WATCH
L. Anthony Sutin Fighting City Hall, with Help from the Equal Protection ClauseWhen Grace Olech, a citizen of Willowbrook, Illinois, and her late husband asked to be connected to the village's municipal water system, they were told that they would need to grant a thirty-three-foot easement as a condition to the connection. The Olechs objected, asserting that the village only required a fifteen-foot easement from other property owners seeking access to the water supply. After a three-month delay, the village relented and agreed to provide water service with only the fifteen-foot easement. In a federal lawsuit for damages against the village, Grace Olech alleged that singling her out for this special disfavored treatment was "irrational and wholly arbitrary" and was inspired by malice toward her inspired by an earlier unsuccessful lawsuit filed by the Olechs against the village. The claim was grounded in the Equal Protection Clause of the Fourteenth Amendment, but did not allege that the differential treatment was attributable to her gender or any other reason that has justified heightened scrutiny in past Equal Protection Clause decisions. Rather, she sought to state a constitutional violation as a "class of one," alleging that a state or local government intentionally treated her differently without a rational basis. The Seventh Circuit upheld the claim because of the allegation of subjective ill will or vindictiveness against the homeowner. But the Supreme Court's brief, five paragraph opinion handed down on February 23, 2000, declined to reach that "alternative theory." Village of Willowbrook v. Olech, 68 U.S.L.W. 4157. Rather, the opinion allows an equal protection claim asserted by a "class of one" where the plaintiff alleges that a state actor "intentionally treated [her] differently from others similarly situated and that there is no rational basis for the difference in treatment." To defeat the constitutional claim, a state or local government will need to articulate a legitimate and rational reason for the difference in treatment. The Court's decision did not purport to break new ground. Rather, it relied on a dusty 1923 decision that largely had escaped the attention of constitutional law scholars and practitioners. But the Olech case has not. Already, lawyers are exploring its application in the arena of government employment as an additional protection for untenured teachers and others. Concurring in the Olech opinion, Justice Breyer expressed a concern that the Court not interpret the Equal Protection Clause in a way that would transform many ordinary violations of city or state law into violations of the Constitution. He specifically identified zoning decisions as an example that "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)." Curiously, Justice Breyer felt that the Court's opinion did not raise that specter because of the presence in the Olech case of the "extra factor" of vindictiveness. But since the opinion specifically excluded the factor of vindictiveness from its holding, Justice Breyer's comfort may not rest on firm grounds. Time will tell, but probably potential defendants should not lose too much sleep. In many instances, a similar cause of action already existed under the Due Process Clause to attack arbitrary and irrational government actions. The rational basis standard of review in equal protection or due process cases is a very deferential one to state and local governments. A plaintiff always can try to prove that there is no legitimate governmental interest underlying the alleged difference in treatment, but that is a difficult evidentiary chore. Although vindictiveness and ill will presumably would not be found to justify a difference in treatment, presumably there is a discernible legitimate reason for differential treatment in most cases. The borderline difficult cases will be those where the only real reason is just a bureaucratic "snafu"-a lost file, an unfamiliarity of a new employee with established policy, and other unavoidable yet understandable reasons for a different decision or action. We will need to see whether those situations pass rational basis scrutiny. Other Recent Decisions of InterestPreemption: In United States v. Locke, 68 U.S.L.W. 4184, the Supreme Court ruled on March 6 that the Oil Pollution Act of 1990 preempted the State of Washington's regulations of general navigation watch procedures, crew English language skills and training, and maritime casualty reporting. The unanimous Court concluded that Congress' comprehensive regulatory scheme governing oil tankers left no room for state regulation of these matters. The federal interest in this area has been manifest since the beginning of the republic, and the maintenance of uniformity is a very important factor in light of the size of the industry and the number of states and nations involved. As to other aspects of the Washington regulatory scheme, the Court remanded the case for the assessment of their validity in light of the federal interest at stake. Free Speech and Student Activity Fees: On March 22, 2000, in Board of Regents of the University of Wisconsin System v. Southworth, 68 U.S.L.W. 4220, the Court concluded that the First Amendment permits a public university to charge its students an activity fee used to fund a program to facilitate extracurricular student speech, provided that the program is viewpoint neutral. The use of such an activity fee furthers the goal of facilitating the free and open exchange of ideas by, and among, its students. While a university is free to offer an optional or refund system to honor the concerns of students who object that their fees may be used to support speech or expression to which they may object, the Constitution does not require such an accommodation. Rather, the principle of viewpoint neutrality in the allocation of funds to student organizations sufficiently protects the objectors' First Amendment interests. Justice Kennedy, writing for a unanimous court, recognized, It is inevitable that government will adopt and pursue programs within its constitutional powers but which nevertheless are contrary to the profound beliefs and sincere convictions of some of its citizens. . . . Viewpoint neutrality is the justification for requiring the student to pay the fee in the first instance and for ensuring the integrity of the program's operation once the funds have been collected. The Court specifically noted that an allocation scheme that distributes funds on the basis of a majority vote of the student body would undermine the constitutional protection of the program. Free Speech and Nude Dancing: In Village of Willowbrook , 68 U.S.L.W. 4239, decided on March 29, a plurality of the Court upheld an Erie, Pennsylvania ordinance making it an offense to knowingly or intentionally appear in public in a "state of nudity." To comply with this ordinance, the formerly nude dancers employed by Pap's A.M. d/b/a Kandyland had to wear, at a minimum, "pasties" and a "G-string." Pap's challenged the ordinance as a violation of First Amendment rights of free expression. The opinion noted that "being in a state of nudity" is not an inherently expressive condition and that nude dancing of this ilk "falls within the outer ambit of the First Amendment's protection." The Erie ordinance is not aimed at the suppression of the erotic message conveyed by the nude dancing, but rather at combating crime and other adverse secondary effects caused by the presence of establishments like Kandyland. The regulation furthered the government interest in combating such effects, with only an incidental and de minimis impact on the expressive element of nude dancing. Writing for the Court, Justice Ginsburg noted: Here, Erie's efforts to protect public health and safety are clearly within the city's police powers. . . . The asserted interests of regulating conduct through a public nudity ban and of combating the harmful secondary effects associated with nude dancing are undeniably important. And in terms of demonstrating that such secondary effects pose a threat, the city need not "conduct new studies or produce evidence independent of that already generated by other cities" to demonstrate the problem of secondary effects[.] . . . [T]he government interest is unrelated to the suppression of free expression[.] . . . The ordinance regulates conduct, and any incidental impact on the expressive element of nude dancing is de minimis. The requirement that dancers wear pasties and G-strings is a minimal restriction in furtherance of the asserted government interests, and the restriction leaves ample capacity to convey the dancer's erotic message. New Cases Added to the DocketIn recent weeks, the Supreme Court has added some other cases to this Term's calendar of likely interest to the readers of this column. Term Limits: In Cook v. Gralike, No. 99-929, the Court will consider whether a Missouri constitutional amendment, the product of an initiative process, violates the First Amendment by ordering senators or representatives to use their authority to amend the U.S. Constitution to impose term limits or incur a notation of "Disregarded Voter's Instruction on Term Limits" on the next election ballot. The Eighth Circuit found that the amendment represented an unconstitutional attempt to compel speech by elected officials and violated the Speech and Debate Clause to affixing punitive consequences to core legislative activity. State Sovereign Immunity: In University of Alabama at Birmingham Board of Trustees v. Garrett, No. 99-1240, the Court regranted certiorari to settle the question whether the Americans with Disabilities Act (ADA) and section 504 of the Rehabilitation Act properly abrogate states' Eleventh Amendment immunity. The Court held earlier this Term in the Kimel case that the Age Discrimination in Employment Act was not a valid abrogation. The Eleventh Circuit ruled that both statutes represented valid abrogations. State Action: The case of Brentwood Academy v. Tennessee Secondary School Athletic Ass'n, No. 99-901, the Court will consider whether a voluntary statewide athletic association qualifies as a state actor for purposes of the Fourteenth Amendment. Although the Association has many members that are unquestionably state actors, it receives no state funding and pays rent for any public facilities that it uses. The Sixth Circuit said no. L. Anthony Sutin is an assistant professor of law, Appalachian School of Law, Grundy, Virginia.
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