Tаci Mathers, mother and next friend of J.S.J., sued Patricia Wright, J.S.J.’s fifth grade teacher. Mathers alleged that Wright had violated J.SJ.’s due process and equal protection rights, as well as rights protected under state law and the Individuals with Disabilities Education Act. Mathers also asserted a First Amendment claim on her own behalf, alleging that Wright continued to mistreat J.S.J. in retaliation for complaints Mathers lodged with school officials. The district court dismissed all but the equal protection claim. Mathers appeals. For the reasons outlined below, we dismiss her appeal for lack of jurisdiction. Wright cross appeals, contending that the district court erred in denying her qualified immunity. We affirm the denial оf that claim.
I. Background
On appeal from dismissal under Federal Rule of Civil Procedure 12(b)(6), we accept as true the factual allegations contained in the complaint and draw all reasonable inferences in favor of the nonmoving party.
Noble Sys. Corp. v. Alorica Central, LLC,
J.S.J. suffers from permanent or long-term impairments and is educationally disabled. In the fall of 2005, she was a student in Wright’s fifth grade class. Mathers contends that Wright singled out J.S.J. for mistreatment because of her dis *398 ability and that this mistreatment continued throughout the school year. Count one of the complaint alleges that Wright deprived J.S.J. of her constitutional rights in violation of 42 U.S.C. § 1983. Specifically, Mathers alleges that Wright (1) refused to teach J.S.J., allowing her to play instead; (2) held J.S.J. back from recess and mandatory fire drills and assigned a classmate to watch her while the rest of the class took recess; and (3) forced J.S.J. to crawl on the floor. The district court interpreted count one to encompass two potential foundations for a viable § 1983 claim: substantive due process and a class-of-one equal protection claim. The second count of the complaint alleges that Wright continued to mistreat J.S.J. after Mathers complained to school officials and thereby violated Mathers’s First Amendment right to free speech.
The district court dismissed the substantive due process claim, concluding that Mathеrs had failed to exhaust her administrative remedies as required under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400. In the alternative, it held that the claim failed as a matter of law because the facts alleged neither implicated a fundamental right nor shocked the conscience. The district court also dismissed the First Amendment claim, concluding thаt the facts alleged were insufficient to establish Mathers’s retaliation theory. The district court preserved the equal protection claim, however, after concluding that Mathers had made out a cognizable class-of-one claim that withstood Wright’s challenge under Rules 12(b)(6) and 8(a)(2). Finally, the district court rejected Wright’s contention that she was entitled to qualified immunity on all claims. Accordingly, following the district court’s order, all but the equal protection claim had been dismissed.
II.
Mathers seeks to appeal from the dismissal of her substantive due process and First Amendment claims. We conclude that the appeal is not properly taken because the order in question dismissed some, but not all, of the claims alleged in the complaint and therefore is not final under 28 U.S.C. § 1291.
An order dismissing some but not all claims is not final and not immediately appealable.
See, e.g., Reinholdson v. Minnesota,
When an aсtion presents more than one claim for relief — whether as a claim, counterclaim, crossclaim, or third-party claim — ... the court may direct entry of a final judgment as to one or more, but fewer than all, claims ... only if the court expressly determines that there is no just reason for delay.
Here, Mathers did not seek, much less obtain, а Rule 54(b) certificate that satisfies these conditions.
Nor did Mathers seek a certificate of appealability under 28 U.S.C. § 1292(b), another exception to the final judgment rule.
Reinholdson,
III.
Wright cross appeals, contending that the district court erred in finding that she was not entitled to qualified immunity. Because a district court’s denial of a motion to dismiss based on qualified immunity is immediately appealable, the cross appeal is properly before us.
Schatz Family ex rel. Schatz v. Gierer,
We review
de novo
the denial of a motiоn to dismiss, taking all allegations in the complaint as true.
Crumpley-Patterson v. Trinity Lutheran Hosp.,
A state official sued in her individual capacity is entitled to qualified immunity so long as her conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.
Harlow v. Fitzgerald,
In
Heidemann v. Rother,
we held that school officials who used a blanket as a binding restraint of a disabled student on the advice of a licensed school therapist did not violate the student’s equal protection rights because the restraint technique was not “beyond the scoрe of professionally acceptable choices.”
Mathers contends that she has alleged a violation of the Equal Protеction Clause by stating a valid class-of-one claim. A class-of-one claim is stated when a plaintiff alleges that a defendant intentionally treated her differently from others who are similarly situated and that no rational basis existed for the difference in treatment.
See Vill. of Willowbrook v. Olech,
There are some forms of state action, however, which by their nature involve discrеtionary decisionmaking based on a vast array of subjective, individualized assessments. In such cases the rule that people should be “treated alike, under like circumstances and conditions” is not violated when one person is treated differently from others, because treating like individuals differently is an accepted consеquence of the discretion granted. In such situations, allowing a challenge based on the arbitrary singling out of a particular person would undermine the very discretion that such state officials are entrusted to exercise.
Id.
at 603,
Wright’s theory would have some force had Mathers’s allegations been somehow sрecific to disabled students and exclusive of the general student population.
See, e.g., Scruggs v. Meriden Bd. of Educ.,
By refusing to teach J.S.J., isolating her during recess and fire drills, and making her crawl on the floor, Wright treated J.S.J. differently from other students in her classroom. On the face of the complaint, we discern no rational basis for this disparate treatment, nor can we infer that Wright suffered a lapse of professional judgment.
See Bridgewater,
Wright complains that the district court erred in emphasizing her subjective intent in its qualified immunity analysis, particularly with respect to its finding of malice. The subjective intent of the actor is generally irrelevant to the objective reasonableness test at the heart of the qualified immunity analysis.
Harlow,
Moreover, the district court’s repeated references to malice are understandable when considered in the context in which they were made. The Supreme Court first recognized the class-of-one claim in
Olech
in 2000. Other circuits have interpreted
Olech
to require malice or animus as an element of a viable class-of-one equal protection claim.
2
Although we have not heretofore held that malice is an element of a class-of-one claim,
see Costello,
We next consider whether the equal protection right at issue was clearly established. For a right to be clearly established, “[tjhere is no requirement that the very action in question has previously been held unlawful,”
Vaughn v. Ruoff,
As pointed out in
Engquist,
the Equal Protection Clause has long prohibited arbitrary classifications.
Thus, we conclude that it was clearly established that a school official may not treat a student differently from her similarly situated peers when such conduct exceeds the scope of professionally acceptable choices and stems from an improper personal motivation. This holding is consistent with decisions from other courts that have denied qualified immunity to a school official accused of discriminating against a student in the absence of a rational basis to do so.
See, e.g., Nabozny v. Podlesny,
Our holding is narrow. Looking no further than the face of the complaint and accepting as true all allegations therein, we conclude that the allegations regarding Wright’s treatment of J.S.J. state an equal protection violation, and we are satisfied that a reasonable teacher in Wright’s position would recognize as much. Accordingly, Wright is not entitled to qualified immunity at this stage of the proceeding.
IV.
Mathers’s appeal is dismissed for want of jurisdiction. Thе order denying qualified immunity is affirmed.
Notes
. After both parties had submitted briefs pursuant to this appeal but before we heard oral argument, Mathers filed a motion to dismiss Wright’s appeal or to strike her brief on the grounds that Wright had failed to comply with Rule 28 of the Federal Rules of Appellate Procedure. In essence, Mathers asked that we sanсtion Wright for her alleged failure to cite to the record in support of her arguments on appeal. We find no merit to this motion, and thus we deny it.
. In
Olech,
Justice Breyer’s concurrence took the position that the class-of-one claim was valid because it alleged an "extra factor”— that the official took "vindictive actiоn” or acted with "illegitimate animus” against the claimant.
Id.
at 566,