Equal Protection "In Flux": The Seventh Circuit's Inability to Clarify a Standard for Class-of-One Equal Protection Claims in Del Marcelle v. Brown County Corp

Abstract

On May 17, 2012, in Del Marcelle v. Brown County Corp., the U.S. Court of Appeals for the Seventh Circuit sitting en banc split three ways on what standard to apply in class-of-one equal protection cases. The judges were concerned about how to account for a state actor’s motive while also ensuring that low-level government officials’ discretionary authority is adequately protected. The Seventh Circuit could have balanced these concerns appropriately had they adopted Judge Wood’s proposed framework, which evaluates a state actor’s behavior using a rational basis standard and allows the defendant’s motive to be considered, but relieves the plaintiff of the burden of specifically alleging the state actor’s motivation. This standard would have been easy for the courts to apply, would provide much needed clarity on this issue, and would have most effectively balanced the rights of victims of discrimination with the need to afford low-level state officials’ latitude to make discretionary decisions.