Indiana State Teachers Ass'n v. Board of School Com'rs of the City of Indianapolis

• Decision Date: 02 December 1996
• Docket Number: No. 96-1792,96-1792
• Citation: 101 F.3d 1179
• Parties: 153 L.R.R.M. (BNA) 3047, 114 Ed. Law Rep. 766 INDIANA STATE TEACHERS ASSOCIATION, Plaintiff-Appellant, v. BOARD OF SCHOOL COMMISSIONERS OF THE CITY OF INDIANAPOLIS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1179

101 F.3d 1179

153 L.R.R.M. (BNA) 3047, 114 Ed. Law Rep. 766

INDIANA STATE TEACHERS ASSOCIATION, Plaintiff-Appellant, v. BOARD OF SCHOOL COMMISSIONERS OF THE CITY OF INDIANAPOLIS Defendant-Appellee.

No. 96-1792.

United States Court of Appeals Seventh Circuit.

Argued Sept. 20, 1996.

Decided Dec. 2, 1996.

Richard J. Darko (argued), Lanae Harden, Lowe, Gray, Steele & Darko, Indianapolis, IN, for Plaintiff-Appellant.

David K. Herzog, Michael R. Maine (argued), Baker & Daniels, Indianapolis, IN, for Defendant-Appellee.

Before POSNER, Chief Judge, and CUDAHY and DIANE P. WOOD, Circuit Judges.

POSNER, Chief Judge.

The Indiana State Teachers Association, a labor union, brought this suit against the Indianapolis school board claiming that the school board had denied the Association the equal protection of the laws by refusing to allow the nonteaching staff of the Indianapolis public schools to elect a collective bargaining representative. This claim, which the district judge dismissed on the pleadings, 918 F.Supp. 266, 270-71 (S.D.Ind.1996), sounds remote indeed from any concern of the equal protection clause. Here is how the complaint tries to bring the case within the orbit of the clause: The nonteacher employees of Indiana's public schools are not covered by the National Labor Relations Act (see 29 U.S.C. § 152(2)) or any counterpart labor relations statute of Indiana. Nevertheless the Indianapolis school board has signed a succession of contracts with a local of the American Federation of State, County and Municipal Employees (AFSCME) appointing the local the exclusive bargaining representative of the school system's nonteacher employees. There has never been an election for the representative. The plaintiff Association, which represents public school teachers in collective bargaining--to which Indiana law entitles them, unlike the nonteacher employees of the public schools--would like to represent these nonteacher employees and it has obtained indications of support from a number of them. The school board refuses to consider abandoning its long-term relationship with the AFSCME local, and so will not permit an election for collective bargaining representative, which the plaintiff Association might win. The refusal to hold the election, the Association charges, discriminates between two similarly situated entities and therefore--since the school board is the "state" within the meaning of the Fourteenth Amendment--violates the equal protection clause unless a justification for the discrimination is shown, which is to say unless the two unions are not really similarly situated. The Association does not argue in this court that the board's motivation in preventing it from representing nonteaching employees has a political or ideological tinge, and so there is no issue of free speech--just one of equal protection.

The school board argues that the Association cannot get to first base because it has not alleged discrimination against a class--blacks, aliens, children, railroads, whatever. Both the favored and the disfavored the Association and the AFSCME local, belong to the same class, that of labor unions interested in representing public-school employees. This argument is superficial. The equal protection clause does not speak of classes. A class, moreover, can consist of a single member, Nixon v. Administrator of General Services, 433 U.S. 425, 472, 97 S.Ct. 2777, 2805, 53 L.Ed.2d 867 (1977); Esmail v. Macrane, 53 F.3d 176, 180 (7th Cir.1995); Falls v. Town of Dyer, 875 F.2d 146, 148 (7th Cir.1989), or of one member at present; and it can be defined by reference to the discrimination itself. To make "classification" an element of a denial of equal protection would therefore be vacuous. There is always a class. The class discriminated against here consists of unions (of which in fact there is more than one) with which the Indianapolis school board refuses to deal because they do not already represent its nonteaching employees, or less grandly because they are not AFSCME, with which the board is content.

It would be especially odd to refuse the protection of the clause in a case in which two identical entities were treated differently, on the ground that since they are identical they must belong to the same class, so there is no discrimination against a class. If the two are truly identical the different treatment of them must be discriminatory; treating likes as unlike is the paradigmatic case of the unequal protection of the laws.

This court has upheld an equal-protection claim in two "class of one" cases, in which a governmental body treated individuals differently who were identically situated in all respects rationally related to the government's mission. In Esmail v. Macrane, supra, a liquor dealer was denied the renewal of his license solely because of the mayor's spite. In Ciechon v. City of Chicago, 686 F.2d 511, 522-24 (7th Cir.1982), two paramedics were identically responsible for the death of a patient, yet only one was disciplined and the city was mysteriously unable to give a reason (such as a desire to economize on enforcement resources or even to randomize enforcement, as in the ancient military practice of decimation) for the difference in treatment. There are similar cases in other circuits. Rubinovitz v. Rogato, 60 F.3d 906, 911-12 (1st Cir.1995); Yerardi's Moody St. Restaurant & Lounge, Inc. v. Board of Selectmen, 878 F.2d 16, 21 (1st Cir.1989); Zeigler v. Jackson, 638 F.2d 776, 779 (5th Cir.1981); LeClair v. Saunders, 627 F.2d 606, 609-10 (2d Cir.1980); Burt v. City of New York, 156 F.2d 791 (2d Cir.1946) (L.Hand, J.); Jackson Court Condominiums, Inc. v. City of New Orleans, 874 F.2d 1070, 1083 (5th Cir.1989) (dissenting opinion). While the principal target of the equal protection clause is discrimination against members of vulnerable groups, the clause protects class-of-one plaintiffs victimized by "the wholly arbitrary act." City of New Orleans v. Dukes, 427 U.S. 297, 304, 96 S.Ct. 2513, 2517, 49 L.Ed.2d 511 (1976) (per curiam).

We think these cases are inapplicable, however, and that this case is indeed a nonstarter. The concept of equal protection is trivialized when it is used to subject every decision made by state or local government to constitutional review by federal courts. To decide is to choose, and ordinarily to choose between--to choose one suppliant, applicant, petitioner, protester, contractor, or employee over another. Can the loser in the contest automatically appeal to the federal courts on the ground that the decision was arbitrary and an arbitrary decision treats likes as unlike and therefore denies the equal...