Doe Ex Rel. Doe v. Kamehameha Schools/Bernice Pauahi Bishop Estate

Plоtts, capacity Trustee of in her as Instead, merely assert they quirements. satis- the Kamehameha petition Schools/Bernice find that not we need Estate; Bishop K.U. Bauman Robert Pauahi The at once. five factors all fies Kihune, capacity as Trustee of granting weigh in favor his not do factors District Court’s the Kamehameha in this case. writ Schools/Bernice Douglas appeal Estate; Bishop on direct J. reviewed can be Pauahi order Defendants capacity Should of the judgment. Ing, as Trustee after final in his trial, claims privilege any specific Pauahi raise Kamehameha Schools/Bernice judge power Defendants-Appellees. has Estate, District Court Bishop fur- There is claims. validity of those No. 04-15044. an oft- is that the order ther no evidence new and or that raises error repeated Appeals, States Court United im- first issues of or problems important Circuit. Ninth District important, More pression. as clearly erroneous is not decision Court’s Nov. Argued and Submitted a writ issuing a matter law Aug. Filed therefore, mandamus, inappropriate. CONCLUSION III. reasons, dismiss we foregoing

For the appeal jurisdiction Defendants’ lack of doing, In so order. the District Court’s joint defense whether do not decide we inmate-to-inmate protects ever privilege -counsel. the absence conversations DISMISSED. minor, by DOE, mother his

John Doe, friend, Jane and next Plaintiff-Appellant, Josephine Helelani Pauahi Intervenor,

Rabago, KAMEHAMEHA SCHOOLS/BERNICE ESTATE; Con BISHOP

PAUAHI capacity Trustee Lau, as her stance Kamehameha of the Schools/Bernice Estate; Bishop Nainoa Pauahi capacity Trustee Thompson, his Kamehameha Schools/Bernice Estate; J. Bishop Diane Pauahi non-sectarian, the Kameham-

Private to students give preferenсe eha Schools ancestry. As who are of native Hawaiian attendance at the policy, a result of this effectively limited Kamehameha Schools from the Hawaiian descended those sig- considered here is a race. The issue statutory rights one in our civil nificant nonsectarian, May private, a commer- law: school, no cially operated which receives funds, a stu- purposefully exclude federal solely for admission because qualified dent aboriginal blood? pure part not of or he is of agree that this is a case first parties The in our circuit. impression Doe,' appeals the dis- plaintiff, The John summary judgment grant trict of court’s defendants, the Kamehameha favor of Bishop Bernice Pauahi and the Schools trustees. He ar- Estate and its individual entry to the gues that he was denied of his race Schools because Kamehameha of 42 which in violation U.S.C. making in the forbids racial discrimination Sacramento, CA, Grant, and John Eric For the and enforcement of contracts. Hawaii, Goemans, Kamuela, W. reasons, agree Doe and following we with plaintiff-appellant. policy, the Schools’ admissions find that Sullivan, Stanford, CA, and Kathleen M. an practice as absolute operates which Schutte, Sehulmeister, Cades David those of the non- to admission for bar L.L.P., Honolulu, HI, for the defendants- race, race constitutes unlawful preferred appellees. §of 1981. Ac- in violation discrimination district court’s reverse the cordingly, we McCracken, Richardson, M.K. Patrick summary judgment granting decision Mateo, CA, L.L.P., Haesloop, San Byers & Schools. the Kamehameha amici curiae. for the

I dispute. The are not

The facts system comprises Schools Kamehameha which are schools nonsectarian private, of Hawaiian Islands. among the dispersed GRABER, BEEZER, and Before Schs./Bishop Kamehameha See EEOC BYBEE, Judges. Circuit Cir.1993). (9th Estate, 458, 461 990 F.2d BYBEE, Judge. Circuit in 1887 system was founded school testamentary trust es a “charitable the Kamehameha Schools under Since descendent the last direct legacy tablished as the charitable operated have I, Princess Kamehameha King the last Bishop, [Hawaii’s] Pauahi Princess Bernice Burgert v. Lok Bishop.” Pauahi I. Bernice King Kamehameha direct descendant Trust, elani Bernice Pauahi Bishop Schools, 200 the Kamehameha none which (9th Cir.2000). F.3d At the establish race time as admissions criteria. her death Princess Pauahi Bish She directs that all students attending the op was largest Hawaii, Kamehameha provided landowner Schools should be “first owning chiefly good and approximately one-tenth education ag in the English branches, common gregate lands. Her and also in- provided will that.the struction in morals and in of her such useful bulk estate should be placed in a knowledge may good tend to make charitable trust “to erect maintain in and, industrious men and women” in addi- schools, Hawaiian Islands two each for tion, that “the teachers said schools scholars, boarding day boys one for shall forever be persons of the Protestant girls, as, and one for to be known religion.” Pauahi Bishop Will at 18-19. called the Kamehameha Schools.” Will of See also Kamehameha Schs./Bishop Es- Bernice Pauahi Bishop, reprinted in Wills tate, 990 F.2d at 461 (concluding that the (3d ed.1957) Deeds Of Teust 17-18 AND Schools do not fall within any of the three (hereinafter Will”). Bishop “Pauahi See religious exemptions provided in Title VII also Kamehameha Schs./Bishop Estate, and, therefore, the failure to consider F.2d at non-Protestant on account teacher of her Under the original of the direction trus- religion discriminatory). was She further tees, husband, chaired Pauahi’s Charles that portion instructs of the trust’s annu- Bishop, Reed opened. both schools shortly al income should be devoted sup- “to the death; boys’ after her the school in the port and orphans, education of and others Fall of girls’ 1887 and the in the Fall of in indigent circumstances, giving the pref- 1894. The two schools were consolidated erence to pure Hawaiians of part or ab- into one coeducational institution during original blood.” Pauahi Bishop Will at 18. the year. 1965-66 academic Currently, While this racial preference expressly the Kamehameha operate Schools K-12 listed as a criterion for the administration campuses on islands, three separate Kapa- of estate resources charitably directed (O’ahu), lama (Maui), Pukalani and Kea'au orphans and indigents, the is notably Will (Island Hawaii), of enrolling more than devoid any of mention of race as a criteri- 16,000 children annually. While the on for admission into the Kamehameha Schools subsidize much of the educational Schools. As the Schools’ 1885 Prospectus costs through trust, funds held in annual observed: “The noble minded Hawaiian tuition $1,784 remains at for grade K-12th chiefess who endowed the Kamehameha students, with approximately sixty-five Schools, put no limitations of race or condi- percent of those enrolled receiving some tion on general her bequest. Instruction form of financial aid.1 will given only be in English language, but Pauahi’s will contains several instruc- The Schools opened will be to all nationali- pertaining tions to the administration of ties.” 1. With the forced of Bishop sale the Similarly, February letter, trust in a lands under the Hawai'i Land Reform Act Bishop Charles nothing noted: "There is 1980s, the see Haw. Midkiff, Hous. Auth. v. the will Bishop of Mrs. excluding boys white girls L.Ed.2d 186 or from the February Schools...." aIn (1984), Schools, the which were previously 1901 letter "According he stated: further "land rich and poor,” suddenly cash reading had an Page Clause 13 on capital. abundance of working published, Bernice Will preference as to Hawai- Bishop Pauahi currently Estate is blood, one pure part ians of aboriginal or applies charities, world's wealthiest with only an estimat- orphans education others $6 ed worth of billion. indigent circumstances.” summary court gram, the district entered an admis- race as institute than Rather of the judgment Trus- Kamehameha left to her favor Pauahi prerequisite, sions Bishop the admis- Pauahi regulate Bernice “to Schools the discretion tees rules make all such and “to Doe v. Kamehameha pupils” Estate. Schs./Bern sion neces- may Estate, deem they F.Supp.2d regulations Bishop ice Pauahi Kame- (D.Haw.2003). government” sary appeal This fol Bishop Will Pauahi Schools. hameha lowed. determined, trustees original 18. The II intent

however, was Pauahi’s ances- native Hawaiian students prefer analyze ques- Before proceeding policy articulated try. Specifically, appeal, it is worth presented this tion girls of “boys and Bishop was Charles Specifical- not. which are clarifying those ... should aboriginal blood part or pure not con- Schools does ly, the Kamehameha is[,]. they should preference; have admits, test, candidly that its admis- Accordingly, right.” first have express upon based process is sions cur- at Kamehameha process Cayetano, Rice racial classification. Cf. first, the phases: in two rently proceeds pos- he must demonstrate applicant can be a (“Ancestry L.Ed.2d neces- qualifications minimum sesses race.”). does not The School proxy for aca- -rigorous the Schools’ sary to meet by justify policy its admissions attempt to and, second, he must standards demic to right to a First Amendment appealing Survey” Ancestry de- complete “Ethnic association, v. Runyon see freedom The aboriginal verify to his blood. signed 2586, 176, 160, 96 S.Ct. McCrary, 427 U.S. long as as admit that forthrightly Schools (1976) (“Invidious private 415 49 L.Ed.2d possess at students who qualified are there aas may be characterized discrimination ancestry, they Hawaiian native some least of association exercising freedom form the most even before be will admitted Amendment, but First protected aboriginal lack who of those qualified con- accorded affirmative been has never admis- first” It this “Hawaiians is blood. nor does it ex- protections.”); stitutional con- motivates instant policy that sions scrutiny level of a relaxed argue for plicitly troversy. of clas- political nature to the by appealing Doe, twice John plaintiff-appellant, The in a membership premised sifications the Kamehameha sought admission See recognized Indian tribe. federally re- and, academic having met the Schools 535, Mancari, 94 S.Ct. v. Morton admission, deter- was twice for quirements (1974) (upholding 2474, 290 41 L.Ed.2d applicant.” “competitive to be a mined hiring preference Affairs of Indian Bureau Ancestry Sur- the Ethnic completing After basis under rational Americans Native for he that acknowledged he vey, which relationship unique scrutiny due to blood, applica- his aboriginal no possеssed and mem- government the federal between time, denied. expected, each was tion tribes). recognized federally Indian bers the Kamehameha desiring attend Still 518, Rice, 120 S.Ct. U.S. also 528 See that Schools, alleging Doe filed suit up- to extend Mancari (declining policy violates admissions Schools’ for voting restriction a race-based hold the Civil as amended U.S.C. beginning “some Hawaiians absent native 1991, Pub.L. No. Act of Rights in [the yet established not premises ad- Concluding that the 105 Stat. law”; namely, that case Court’s] valid race- constituted policy missions Hawaiians native determined pro- “has action affirmative remedial conscious have a status like that orga of Indians in If scrutiny applies strict plaintiffs tribes”). are, likewise, nized pre We not challenge, the Schools must demon- sented with a challenge to the racially strate its program admissions is a discriminatory policy admissions a pub “narrowly tailored fur- measure[ ] lic school or a school accepts which federal compelling governmental ther[s] inter- See, funding. e.g., v. Bollinger, Gratz Constructors, ests.” Adarand Inc. v. U.S. 275-76 n. Pena, & 123 S.Ct. 200, 227, U.S. (2003)

156 L.Ed.2d 257 (applying (1995). strict 132 L.Ed.2d 158 On the other scrutiny to a preference racial challenged hand, if Title VII scrutiny applies to this Equal Clause); under the Protection suit, Grut the Schools must merely ter v. Bollinger, “present evidence that plaintiff was (2003) (same). 156 L.Ed.2d 304 rejected, or the applicant other was cho- sen, a legitimate nondiscriminatory Instead, we are confronted ques- with a reason.” Patterson McLean Credit Un- tion statutory origin: whether a ion, school, funds, receiving no federal may added). L.Ed.2d 132 (emphasis legitimately restrict admission to those of the native words, Hawaiian race. In other plaintiff-appellant argues that strict doеs the Kamehameha Schools’ scrutiny “Hawai- only is the method of review suffi ians first” policy in- ciently rigorous constitute to enforce the substantive vidious discrimination violation of commands of urges 1981. He that al § 1981? The district court concluded that though the McDonnell Douglas burden- it does not. Because the issue is one shifting framework and proof order of law, we review See, that decision de novo. frequently applied suits, Title Ilchert, e.g., (9th Desir v. 840 F.2d VIPs legal substantive standards inap are Cir.1988) (stating “questions concern- plicable in this context. See McDonnell ing the requirements of the applicable Green, Douglas Corp. 792, v. 93 statutes ... questions law, are of 1817, which (1973). we S.Ct. 36 L.Ed.2d 668 We ”) (internal review de novo quotation disagree. To explain our disagreement, a omitted). marks brief preliminary discussion of the compli history

cated of 1981 is useful. Ill A

Because the Kamehameha Schools admits Section 1981 was originally that its enacted process prem pur- is suant to upon ised section express two of racial the Thirteenth classification, Amendment part we must identify first of the Civil Rights the standard of scru Act of tiny 9, 1866. Act 1866, of applied Apr. 1, should ch. proffered be to 14 justifications Stat. 27. principal “The racially object for the of the discriminato legislation ry program. was to Two eradicate obvious the Black contenders ex Codes, ist: laws scrutiny, strict enacted such Southern legisla- as that used to analyze tures imposing a challenges range of civil brought disabilities under Fourteenth Bldg. Gen. Equal Amendment’s Contractors Protec freedmen.” Ass’n Clause; Pennsylvania, tion 375, 386, or more deferential form (1982). 102 of S.Ct. scrutiny employed L.Ed.2d to 73 835 challenges resolve brought pursuant Section of the Rights provided: Civil Act to Title ofVII the Civil Rights Act of U.S.C. 2000e That all persons et born in the United (2004). seq. States and subject not any to foreign taxed, according provisions to the of enforced not are excluding Indians power, to be citizens act. said hereby declared citizens, States; of ev- and such

United (1870). addition, In Stat. color, regard to and without ery race much of the substance of 16 enacted new in- slavery or of condition any previous 1866 Act: punish- servitude, except as voluntary enacted, per- That all And be it further shall party crime whereof ment jurisdiction of the Unit- within the sons convicted, shall have duly been have right shall the same ed States have Territory and every right, State same Territory in the United every and State States, and en- to make in the United contracts, make enforce States to and contracts, sue, and parties, be force evidence, sue, give and to the parties, be lease, inherit, evidence, purchase, give of all laws equal and benefit and full hold, personal and sell, convey and real security person for the proceedings equal benefit of to full and property, and enjoyed by and as is white property security for the proceedings laws and all citizens, subject pun- and shall to like be enjoyed by as is property, and person taxes, licenses, ishment, penalties, pains, citizens, subject to and shall be white kind, every penalties, none pains, and exactions punishment, like statute, law, other, statute, ordinance, ordi- any other, law, regu- any to none custom, the con- nance, or regulation, contrary notwith- lation or custom notwithstanding. trary charge or shall standing. No tax be by any upon to concerns over or State response imposed Stat. enforced au- Amendment Thirteenth from any immigrаting thereto person whether later legislation, was such broad country equally thorized is not im- foreign which reenacted, Fourteenth passage of the after every upon person posed and enforced Amendment, Act of Enforcement any oth- from immigrating to such State to as the Civil referred sometimes any country; any law foreign er May Rights Act of 1870. Act provision this in conflict with State also 114, §§ See Stat. ch. and void. hereby declared null Hodge, 334 U.S. Hurd v. (1870). 16 dif Section 16 Stat. (noting L.Ed. 1187 Act in least from 1 of fered Congress supported members some First, § 1 of the where respects. two “in to elimi- order Amendment Fourteenth “citizens, of guarantees to Act extended its validity as to the constitutional doubt nate color,” § Act 16 of the 1870 every and race applied as Act Rights ‍‌‌​​​​‌‌​‌​​‌‌​​‌​​‌‌‌​​‌‌‌​‌​​‌​​‌‌‌‌‌​​​‌‌​​‌​‍[of 1866] of the Civil States persons.” “all See United protected States”); Mayer H. v. to Jones the Alfred 675, Ark, 649, U.S. 18 Wong Kim 169 2186, Co., 88 S.Ct. (1898); Sagana v. 42 L.Ed. 890 S.Ct. (1968) (same). Enforce- L.Ed.2d 1189 (9th Cir.2004), Tenorio, F.3d which had two Act contained sections ment — denied, —, 125 S.Ct. cert. simply reen- effect. Section very similar (2005). Second, § 16 of 161 L.Ed.2d Act: acted, § 1 literally, language contained Act omitted the 1870 enacted, the act That And be further rights property guaranteeing 1866 Act the in the United persons all protect to by white citi enjoyed to those equivalent and furnish rights, civil their States sepa zens; reenacted language was vindication, .this passed means of their the § In 1982. now U.S.C. rately in what is sixty- nine, and eighteen hundred April statutory law was codified. federal reenacted;

five, and sections hereby is of 1874 Code of the Revised shall be Section hereof and seventeen sixteen 1981(a), 170, Jones, 2586; § is identical present with the 96 S.Ct. 392 U.S. at prefaced by caption “Equal which is the 88 S.Ct. 2186. law,” rights provides under the and the Jones, interpreted the Court a com- following: statute, panion § 42 U.S.C. to en- persons jurisdiction All within compass prohibit and racial discrimination United shall have right States the same in purely private transactions. 392 U.S. at in every Territory State and to make 423-24, 88 S.Ct. 2186. The Court held contracts, sue, parties, and enforce to be right by conferred 1982—the evidence, give equal and to the full and right “inherit, lease, purchase, same to of all proceedings benefit laws and sell, hold, convey and real and personal security of persons property and property” enjoyed by as is white citizens'— citizens, enjoyed by white and shall be against is secured interference from both subject punishment, pains, penal- to like governmental private actions. Id. ties, taxes, licenses, and'exactions of ev- (“[Wjhen Congress provided in 1 of the kind, ery and to no other. Rights right purchase Civil Act that the 1981(a). 42 U.S.C. and lease property enjoyed was to be Immediately following passage, its what equally throughout the United States is now 1981 nearly century underwent Negro alike, and white citizens it plainly during regard- desuetude which debate meant to right against secure that interfer- ing scope meaning its generally was whatever, any ence from source whether controversy subsumed surrounding governmental Thus, or private.”). relying newly ratified Fourteenth Amend- legislative history on the 1 of the Civil Equal

ment’s Protection Partially Clause. Rights Act of the Court concluded owing lingering uncertainty regarding prohibit intended to “all ra- the scope of the statute and the extent of discrimination, cial public, Congress’s authority prohibit discrimi- ... property,” sale nation id. at action, § divorced from state 2186, and, further, would not gain independent significance prohibi- that this See, Hurd, until the e.g., late 1960s. 334 tion Congress’s was within power under U.S. at (declaring 68 S.Ct. 847 section two of the Thirteenth Amendment “governmental action” required was in a “rationally to determine what are the 1866); suit Rights based the Civil Act of badges and the slavery, incidents of Cases, Rights 3, 24-25, The Civil ... to translate that determination into (1883) (invalidat- 27 L.Ed. 835 legislation.” effective Id. at ing public provisions accommodation Eight later, years in Runyon, the Civil Rights beyond Act of 1875 as explicitly Court found the same result dic- Congress’s power to enforce either the tated under Amendments). or Thirteenth Fourteenth Runyon challenge involved a pri- two decisions, however, With two Supreme vate programs schools’ admissions which § Court did for 1981 what Monroe v. categorically excluded African-American 167, Pape, 365 U.S. 81 S.Ct. 5 L.Ed.2d students. 427 U.S. at 96 S.Ct. 2586. (1961), § did for 42 U.S.C. clari- 1983: Although the schools received no federal fy and the' prior resurrect statute from its kind, or state any aid of their services existence; merely as a augment device to “were advertised and offered to members the remedies for previously recognized discrimination, general of the public.” forms of Id. at litigation to a 96 S.Ct. tool right its own unparalleled Relying with 2586. theoreti- Jones and two other coverage. cal Runyon, See cases, 427 U.S. at recent see Ry. Express Johnson v. not 459-60, every race and color’was of ‘citizens of Inc., 421 U.S. Agency, (1975); ... Till or intended to be reduced- understood 44 L.Ed.2d S.Ct. Ass’n, nonwhites.”). solely Recreation of protection man v. Wheaton-Haven 1090, 35 431, 439-40, 93 S.Ct. a claim two white McDonald involved (1973), concluded the Court L.Ed.2d 403 Transpor- Fe Trail of the Santa employees “to make right individual's that an accused of mis- Company tation who were pri if a violated contracts” is and enforce property; company appropriаting him “the to extend offeror refuses vate African- also accused an company had into contracts” to enter opportunity same of the same offense. employee American offerees, solely on to white that he extends thereafter, employ- white Shortly the two at Runyon, race. basis of his fired, but the African-American ees were 170-71, According to the 96 S.Ct. Believing their termi- employed was not. Court, racially exclusive ad the schools' racially-based, the two white nation to be “a classic vio constituted policies missions under Title VII of the employees filed suit 96 S.Ct. Id. lation of 1981.” alleg- § 1981 Rights Act of 1964 and Civil it is that since found 2586. The Court employment unlawful discrimination. ing Acts of 1866 from both the derived had to dispute, the Court To resolve as validly private, reaches § 1981 encompassed dis- whether address based racial discrimination public, as well Rea- against persons. crimination white Amendment Congress’s Thirteenth upon Congress’s language broad soning that n. Id. at 168 powers. proscribe “to discrimina- an intent evinced (“Section 1981, conduct at applied to the or enforcement of con- making tion in the here, exercise a[] [valid] constitutes issue race,” of, any against, or favor tracts § 2 of under legislative power federal observed: the Court Amendment....”). Thirteenth appeared have Unlikely might as it Thus, than one hun- and more together, encounter that white citizens would passage, Jones years after 1981’s dred racial discrimination substantial dispensed with Runyon finally Act, the statu- under the proscribed sort and held that requirement state action history legislative tory structure purely Act of 1866 reached Rights Civil Congress was that the 39th persuade us virtue acts of discrimination in the federal estаblishing upon intent two of the under section Congress’s power have than would principle law broader How far Thirteenth Amendment. par- necessary simply to meet been pow- enforcement Thirteenth Amendment the new- plight immediate ticular and extended, Rimyon and the doctrine er Negro slaves. ly freed however, open. remained Id. Run- term that it decided In the same Con- source clarifying Without prohibits held that yon, the Court prohibit- a law that power to enact gress’s employ- in private racial discrimination against discrimination private race ed as non- persons as well against white ment declined to whites, in McDonald the Court Fe McDonald v. Santa persons. white only by African- to claims restrict Co., 273, 295, 96 Transp. Trail constitutional By avoiding the Americans. (1976) (“Th[e] 49 L.Ed.2d reading broad by its implicated questions in- congressional evidence of cumulative statute, unresolved the Court left think, clear, that the 1866 we tent makes dis- prohibit to Congress’s power whether statute, the ‘same designed protect to pri- in persons white against crimination contracts’ ... make and enforce right to 1034 employment slavery.”);

vate also emanated from abolition of City Memphis v. of § origins Greene, 1981’sThirteenth Amendment or 100, 125-26, 451 U.S. 101 S.Ct. might whether it based on some (1981) be other 67 L.Ed.2d 769 (leaving open source; particularly, Congress’s un power question § of whether 1 of Thir- der the Commerce Clause. Because the teenth anything Amendment did more Transportation Company Santa Fe Trail than slavery). abolish Whether it stems subject.to was also requirements from a reading broad of section two of the Title VII —a statute capacity reg whose to Amendment, Thirteenth or a similarly private ulate conduct has squarely been reading Clause, broad of the Commerce Clause, located in the Commerce see 42 Congress’s power prohibit private to race s 2000a; § U.S.C. United Steelworker of yet discrimination has not seriously been Weber, Am. v. U.S. n. 99 questioned.3 (1979) (“Title 2721, 61 L.Ed.2d 480 Jones, McDonald, After Runyon and ... pursuant VII was enacted to the com coverage theoretical ap- power regulate purely merce to private peared almost limitless. In the cases decisionmaking”) questionable —it followed, however, the Court endeavored whether we can read McDonald recog of, define the outer bounds as well as nizing the Thirteenth Amendment as the proof to, § the burdens of applicable Congress’s source power prohibit all race discrimination In claims. General private against whites. discrimination Contractors, Building empha- the Court Nonetheless, assumed, later cases have sized the statute’s Fourteenth Amendment discussion, without Congress does origins to hold “that like the Equal possess power prohibit private a Clause, Protection can be violated only school from discriminating against non-Af purposeful discrimination.” 458 U.S. See, on rican-Americans the basis of race. 391, 102 S.Ct. 3141. The Court’s decision e.g., Saint Francis Al-Khazraji, Coll. v. foreclosed premised claims disparate 604, 609-10, 107 S.Ct. impact, claims which are actionable under (1987) L.Ed.2d (permitting suit under Co., Title VII. Griggs See v. Duke Power professor ancestry Arabian 424, 431, 91 S.Ct. 28 L.Ed.2d against university); Gen. cf. (1971). Contractors, Bldg. 458 U.S. at 390 n. (“We 102 S.Ct. 3141 need years later, not decide Seven the Court revisited whether the Thirteenth Amendment itself the relationship between Title VII ... accomplished anything more than the Patterson McLean Credit parties (Brennan, J., have not contested the constitu L.Ed.2d 750 concurring tionality applied of 1981 as judgment discrimi in the part dissenting natory policy place ("To part) Congress the extent that acted un Although Kamehameha Schools. we note the der the power,” Commerce Clause when en questions VII, implicated, constitutional acting are Title "it was restricted in the use context, we decline to restrict McDonald to governmental its of race in decisionmaking by part, because of the alternative equal protection constitu component of the Due tional concerns that a only” Amendment”). "racial minorities Process Clause of the Fifth See, reading e.g., of 1981 would Accordingly, raise. Ada Congress and until either or the rand, ("[A]ll otherwise, U.S. at Supreme Court indicates we as classifications, racial imposed by whatever purposes sume remaining analysis of our federal, state, actor, governmental or local possesses the constitutional au analyzed by must be reviewing thority court prohibit under race discrimination both scrutiny.”); strict Regents Univ. against Cal. v. persons and in pri favor of white n Bakke, vate schools.

1035 the defendant inten mate issue whether former em Union, African-American an plain the tionally against discriminated Union McLean Credit ployee Dept. Community Texas tiff. See employ her against § suit a brought of Burdine, 248, 101 v. 450 U.S. harassment, to failure er, racial claiming Affairs (1981); 1089, 67 L.Ed.2d 207 S.Ct. of her account discharge on and promote, Green, v. Douglas Corp. McDonnell 2363, 164, 109 S.Ct. 491 U.S. race. 792, 1817, 36 L.Ed.2d 668 93 S.Ct. U.S. (1989), by statute superseded L.Ed.2d 132 (1973). of agree with the Court We in Estate as stated grounds other of proof, of struc Appeals that this scheme Martin, 475 n. F.2d Reynolds v. “sensible, orderly way to eval tured as a Cir.1993). (9th deter court The district light of common uate the evidence for racial harassmеnt that a claim mined on the critical bears experience the court under not actionable discrimination,” Furnco Con question of Supreme Court affirmed. appeals of Waters, Corp. struction v. certiorari, decide part, to granted 2943, 57 L.Ed.2d 957 98 S.Ct. harassment for racial a claim whether (1978), apply to claims of racial should rights of the enumerated “falls within one under 1981. discrimination 176, 109S.Ct. Id. at by 1981.” protected not; it does held The Court Having import- 2363.4 2363. Id. at 109 S.Ct. to rather, by its terms is limited Douglas order of ed Title VH’s McDonnell making in the discrimination prohibiting explain, the elaborated proof, Court contracts, does not enforcing fashion, evidentiary specific the detailed conduct,” or “postformation extend showings required: from the may arise later problems framework, our well-established Under continuing employ conditions of terms and the initial burden of plaintiff the has Ex Id. at ment. the by a evi- proving, preponderance failure-to-promote amining petitioner’s dence, of discrimina- prima a facie case claim, the district concluded that the Court establishes plaintiff tion. ... Once jury that instructing the erred court case, an inference of dis- a facie prima that she was prove had to petitioner In order to rebut crimination arises. employee the white qualified than better inference, pres- must ‍‌‌​​​​‌‌​‌​​‌‌​​‌​​‌‌‌​​‌‌‌​‌​​‌​​‌‌‌‌‌​​​‌‌​​‌​‍employer this Id. promotion. allegedly received who re- plaintiff that -the was ent evidence 186, 109 Drawing from Title S.Ct. was cho- jected, applicant or the other law, opportu this the Court took case VII sen, nondiscriminatory legitimate a for analyzing clarify the framework nity to point, prior At this as our ... reason. private employer: a against 1981 claim clear, retains the petitioner make cases jury persuading areas developed, analogous final burden have We Although pe- law, discrimination. carefully designed intentional rights of civil determine, the ultimate burden in the titioner retains proof framework of make clear that treatment, our cases persuasion, ulti- disparate context of Patterson, riam). however, 170- See also the Court argument, 4. After oral Concluding no argue S.Ct. 2363. requested parties to brief and departure warranting a justification special or not the in- question: "Whether additional been decisis had the doctrine of stare adopted from terpretation 42 U.S.C. shown, Run- to overrule Court declined Runyon McCrary, 427 U.S. Court in [the] ("We (1976), S.Ct. 2586 decline yon. Id. at 49 L.Ed.2d 415 acknowledge Runyon that its overrule v. Mc- Patterson should be reconsidered.” this Union, governing law in holding remains Credit Lean area.”). (1988) (per cu- L.Ed.2d 879 1036 must also have opportunity usually, signify

she Title VII’s substantive respondent’s proffered scrutiny particular, demonstrate that standard of the re- —in quirement that the defendant “present reasons for its decision were not its true evi- plaintiff rejected dence that the was ... reasons. a legitimate nondiscriminatory rea- (internal Id. at 109 quo- S.Ct. 2363 Patterson, governs. son"— also 491 U.S. marks, tation citations and footnote omit- 187, added). at (emphasis S.Ct. 2363 ted) added). (emphasis appellant points The out that at least one particularly We find this treatment in court has made Douglas the McDonnell structive because Court’s discussion burden-shifting framework available to of, appears approve the use in the arena plaintiffs prove who must intentional dis- employment discrimination crimination in order to make out a viola- claims, only not Douglas McDonnell tion of Equal Protection Clause. See proof, order of but also the nature of the Corr., English Dep’t v. Colo. 248 F.3d proof that a private defendant in a Title (10th 1002, Cir.2001) (employing the action required VII to adduce. See also Douglas McDonnell analyze framework to Olmstead v. L.C. ex rel. Zimring, 527 U.S. § alleging 1983 claim a violation of the 581, 1, 2176, 617 n. 119 S.Ct. 144 L.Ed.2d Equal Protection Clause the Colorado (“This (Thomas, J., dissenting) Department Corrections); St. cf. applied Court has the ‘framework’ devel Mary’s Hicks, 502, Honor Ctr. v. oped Title VII brought cases to claims 2742, 506 n. 125 L.Ed.2d 407 1981].”) Patterson, under (citing [§ 491 (1993) (assuming, objection absent from 2363); at U.S. Whidbee v. parties, permissible that it was for the Inc., Garzarelli Specialties, Food 223 F.3d lower apply court to Doug- McDonnell (2d Cir.2000) (analogizing a 1981 las framework to plaintiffs equal pro- claim); claim to a Title VII Brown v. Am. tection claim as well as his Title VII Co., (11th Honda Motor 939 F.2d claim); Deposit Fed. Ins. Corp. Cir.1991) (“[T]he test for intentional dis Henderson, (9th 940 F.2d 472 & n. 14 crimination in suits under 1981 is the Cir.1991) (declining to decide whether same as the formulation used in Title VII Douglas McDonnell appropriate is the discriminatory treatment causés.... [T]he framework for analyzing equal protec- defendant must come forward with evi claim). Nonetheless, tion the Patterson dence demonstrating legitimate, nondis specifically Court found that the district - -conduct.”). criminatory reasons ’for its court, while correctly recognizing that the suggested While the Court could have that Title VII “scheme proof apply should §a 1981 defendant must demonstrate that cases,” erred “describing the narrowly race-based action is tailored to petitioner’s Patterson, burden.” further a compelling governmental inter 109 S.Ct. 2363. We find the est, see, Adarand, e.g., 515 U.S. at complete Court’s description of the bur- it stated instead that the em setting fоrth both proof the order of den— ployer merely must show plain “that the and the nature of proof required —to rejected, tiff was or the other applicant be the best indication from Supreme chosen, was legitimate for a nondiscrimi Court as to how lower courts should shape reason,” natory Patterson, contours of a challenge to a added). (emphasis S.Ct. 2363 entity’s racially discriminatory practice. appellant aptly notes that use of the McDonnell Douglas burden-shifting Rights the Civil Act of Con- necessarily, does not gress or even amended the specifically statute framework “the record no where discloses inapplicable § 1981 holding that Patterson’s overrule but instead racially discriminatory motive” conduct. postformation not extend does 1981(b) that the interests did “demonstrates (defining the 42 U.S.C. See legitimate”). are motivate the [defendant] to contracts” and enforce phrase “make modifi- making, performance, include “the argument, Contrary appellant’s the to contracts, and cation, of termination and recent decisions we do not find the Court’s benefits, privileges, all of enjoyment the Affirmative “Michigan in the Action the contractual of and conditions terms analysis. to our See Grut relevant Cases” also amended statute relationship”). The (con ter, 2325 at 123 S.Ct. as to Con- any residual doubt clarified University Michigan of cluding that pri- § to apply that 1981 intention gress’s program satisfied Law School’s admissions protect- rights “[t]he vate discrimination: scrutiny Equal under the Protection strict against protected are by this section ed and, therefore, that it also satisfied Clause discrimi- nongovernmental impairment Gratz, 1981); § 539 U.S. at Title VI 1981(c). Important- § 42 nation.” U.S.C. (conсluding 2411 n. 275-76 calls in the amended statute ly, nothing University Michigan’s under that discussion question Patterson’s into program failed strict graduate admissions or the proof structure Douglas McDonnell Equal scrutiny under Protection § in a suit required 1981 proof nature of therefore, and, that it also violated Clause entity. against private a 1981). from the § Aside fact Title VI and a challenge involved a to been that both cases has never question Although preferences university’s use of racial public read the Court’s we presented,5 squarely admissions, presented case in neither in and General in Patterson both decisions address, any occasion to with an willing- Court to indicate a Building Contractors of scruti appropriate'Standard length, the Amendment Fourteenth to look to the ness challenge. § Because a liability ny for 1981 restricting for as a means in satisfied strict scru Grutter preference practices motivated racially types satisfy a lower necessarily would tiny, in- namely, § Congress to enact led 1981-— standard; preference Gratz failed as the the basis of on discrimination tentional invalidity of the scrutiny, the univer strict jurispru- look to Title VII to race —but it un rendered program sity’s and nature clarify the order dence wheth to consider necessary for the Court City Memphis, also proof. See The satisfy a lower standard.6 § er it could 1584 (finding U.S. 201, 843 F.2d Local Rodmen of our court the decisions Patterson 5. Before Reinforced curiam) ("The discussion, (D.C.Cir.) assumed, (per stan- 1412 n. without frequently proof in section appli- proof dards and order and the order nature both the applied to to be identical those also held VII claims have been Title cases cable to disparate governing VII treatment brought § See Juradо Title under claims (9th cases.”), reh’g, F.2d 619 Eleven-Fifty Corp., 813 F.2d clarified explicitly ("The (D.C.Cir.1988). con- Cir.1987) apply We have never [to same standards requirement VII’s VII those Title brought under Title sidered whether claims "legiti- 1981], with a come forward facts sufficient the defendant brought under nondiscriminatoiy applies also reason” also sufficient give VII claim are mate to a Title rise claim.”); v. Inland context. EEOC in the section (9th Indus., 1233 n. 729 F.2d Marine Sagana inap- decision in We find recent Cir.1984) ("A our meet the same plaintiff must we find same reason plicable for the that he proving a claim standards irrele- in Grutter Supreme decision Court's establishing ... under claim must meet appeal. Sagana, See of this VII[.]”). vant to facts Berger v. Workers Iron See also Title relies, however, discrimination, appellant on the Court’s tional 1981 is not other- Grutter, citation, in Building General Equal wise co-extensive with the Protec- Contractors, par which is followed tion Clause. note, prohibition against enthetical “the From the historical context discrimination in 1981 is co-extensive passed which it was as well as the cases Equal with the Protection Clause.” Grut command, interpreting persuad its we are ter, (citing 539 U.S. at 123 S.Ct. 2325 VII, ed that like Title “was not Contractors, Bldg. at 389- Gen. incorporate intended to 3141). particularize 91, 102 Court Gratz similarly dropped citing a footnote General the commands of the Fifth and Fourteenth Building proposition Weber, Contractors the Amendments,” 6,n. 443 U.S. at 206 that “purposeful discrimination that vio apply nor was it intended to Equal lates the Protection Clause of the private those commands sector discrimi Fourteenth Amendment will also violate reason, nation. For this we conclude that Gratz, § 1981.” at 276 n. 539 U.S. 123 § pari 1981 should not be in read materia Contractors, 2411 (citing Bldg. S.Ct. Gen. with the Fourteenth Amendment to re 389-90, 3141). at 102 458 U.S. S.Ct. See quire the application scrutiny of strict Sagana, also at 384 F.3d all private preferences. race-based See id. dangers the inherent Mindful (declining to read Title VII and Title inVI according weight undue to isolated state materia); Johnson, pari 480 at U.S. from directly point, ments decisions not n. (noting 107 S.Ct. 1442 Congress’s we read parenthetical simply 507, 113 S.Ct. 2742. proof the structure and ac Under turn, next, applying We to the task of that we companying substantive standards plaintiff-appellant’s these standards to the import, complainant the in a now challenge racially exclusion- purely private a must against suit school ary policy place in the carry establishing the initial burden of a Kamehameha Schools. prima facie case of racial discrimination. 802, Douglas, See McDonnell U.S. at IV explicit 93 S.Ct. 1817.7 Where an race- exists, policy proof based admissions It is undisputed the Kamehameha this fact alone is sufficient to establish a employs express Schools an racial classifi- prima facie case. designed deny cation to admission to all blood, possessing aboriginal students no so proves

If plaintiff prima the his facie long qualified appli- native Hawaiian case, presumption a rebuttable of inten cants in seek admission sufficient number arises, Dep’t tional see discrimination Tex. fill the Burdine, positions.8 Accordingly, to the issue 248, of Comty. Affairs 1089, (1981), becomes whether the Schools can articu- 67 L.Ed.2d 207 S.Ct. legitimate nondiscriminatory to late a production and the burden shifts the reason respect spaces application 7. As to Hawaiians because exceed the num- is true with if Douglas proof structure the McDonnell qualified applicants, ber of native Hawaiian employment VII context of Title discrimina- non-Hawaiian stu- Kamehameha will admit claims, prima tion the elements of facie case that, They point dents. out a non- vary depending particular will on facts Hawaiian student was to the Kame- admitted McDonald, involved. See 427 U.S. at 279 n. Schools; which, a fact the record hameha (" 'specification 96 S.Ct. 2574 ... of the suggests, design owed more to accident than prima proof required facie ... is not neces- prompted as it an immediate full-scale investi- sarily every applicable respect differing part gation promise, of School ”) (quoting factual situations' McDonnell administrators, ensure that admission re- Douglas, 411 U.S. at 802 n. only. for native Hawaiians Whether mained 1817). abstract, is, policy not the an abso- or those of the non- lute bar to admission for Appellees argue preference that the racial race, certainly preferred operates as one. not an absolute bar to the admission of non- Ross, invalid.”); justifying preference. racial Toward Hill v. this 183 F.3d cf. h (7t Cir.1999) end, urge policy this that its (noting Schools that Johnson’s plan constitutes a valid affirmative action discussion of burdens was undermined rationally redressing decisions, im- present related subsequent' declining but to de balances the socioeconomic and edu- decisions); cide whether it survived those Hawaiians, Comm’rs, cational achievement of native County Bass v. Bd. 256 F.3d producing leadership (11th Cir.2001) native Hawaiian (same). We see involvement, community revitalizing no for a regarding basis different rule Hawaiian culture. native alleged plan’s violation of 1981 in the context of private education. Our remain Supreme The Court has held therefore, ing anаlysis, will focus on deter against prohibition Title VII’s racial dis mining whether plaintiff-appellant has private, crimination “does not all condemn met this burden. voluntary, race-conscious affirmative ac Weber, plans.” tion 443 U.S. at A Consequently, S.Ct. 2721. in the Title VII starting point analysis for our is the context, if challenged employment de Court’s seminal decision in United Steel- pursuant cision made plan, was such a Weber, workers America v. of an plan existence affirmative action (1979). 61 L.Ed.2d 480 itself can form legitimate the basis of a At issue in Weber was an affirmative action Johnson, nondiscriminatory rationale. See plan collectively bargained by a union and We as employer that reserved for African- sume, objection from parties, absent employees fifty American percent of the principle applies that the same to a openings in-plant an training pro- craft See, against purely private suit school. gram. In ruling challenged that the plan e.g., Edmonson v. United States Steel (5th fell Cir.1981) permissible on the 582, side of the line Corp., 659 F.2d (per 584 curiam) demarcating plans valid affirmative action (applying Title VII standards from the those which employment context of ‍‌‌​​​​‌‌​‌​​‌‌​​‌​​‌‌‌​​‌‌‌​‌​​‌​​‌‌‌‌‌​​​‌‌​​‌​‍1981 discrim violate the commands of VII, challenge ination Title race-conscious affirma the Court observed that the plan); tive action accord purpose plan Setser Novack of the mirrored that of Title (8th Co., 962, Inv. 657 F.2d 966-68 Cir VII: patterns to “break down old of racial “ .1981) (en denied, banc), cert. segregation hierarchy” ‘open and to 1064, (1981); 70 L.Ed.2d 601 employment opportunities for [minorities] McDonald, at 280 U.S. n. 96 in occupations which have been traditional- cf. ” (declining S.Ct. 2574 per to consider the ly closed to them.’ Id. at missibility, undеr of an affirmative 2721 (citing quoting 110 CONG. REC. program). action (1964) (remarks Humphrey)). of Sen. emphasized It plan the did so without matter, As a preliminary we note that “unnecessarily trammeling] the interests plaintiff generally bears the burden of of the employees”; specifically, white establishing invalidity of an affirmative plan “require did not plan discharge action challenged under Title VII. See Johnson, white replacement workers and their 480 U.S. at with S.Ct. (“If hirees,” new black plan [an affirmative is articu- and did not an action] “create lated as the [challenged basis for the em- absolute bar advancement of white ployment] decision, the burden employees.” Finally, shifts to Id. the Court noted plaintiff prove that the employer’s plan measure; that “the a temporary is justification pretextual is plan balance, and the is not intended to maintain racial a manifest racial fails under the first of simply but eliminate these criteria: rath- Id.9 addressing imbalance.” er than a manifest internal im- balance, it seeks to address an imbalance did not estab “[t]he While Weber Court external to its student population. testing validity rigid lish a formula for plan,” an affirmative action Johnson v. do not appellant’s We address the claims (9th Transp. Agency, 770 F.2d because we find second of Weber’s Setser, Cir.1984); 657 F.2d at 969- see also guiding principles fatal to the program in gen later cases have used Weber as a place at the Kamehameha Schools. The assessing legality guide eral operates school’s admission policy plans challenged pursu affirmative action bar to absolute admission for non-Hawai- See, Johnson, ant Title e.g., VII. ians. Kamehameha’s unconditional refusal (“The 107 S.Ct. 1442 assess U.S. to admit long non-Hаwaiians so as there legality ment of the of the [affirmative applicants categorical- are native Hawaiian plan question] guided by action must be ly rights “trammels” the of non-Hawaiians. Weber.”); our decision Local 28 Sheet in Runyon Court made clear that an EEOC, Metal Workers Int'l Ass’n v. policy consciously and con- U.S. L.Ed.2d denies spicuously admission to all mem- (applying finding Weber and non-preferred bers race on account court-imposed that a membership union of their goal and fund established to increase mi race is “a classic violation of enrollment, nority “require which did not 1981.” 427 S.Ct. 2586. off,” any member of the union to be laid nonetheless, Appellees argue, against existing “discriminate union mem great need is so that the Schools should be bers,” appli nor bar admission white permitted to only admit native Hawaiians union, “unnecessarily cants to did not until affecting the educational deficits employ the interests of white trammel[ ] community disappear. They present ees”). persuaded gen We are that these demonstrating abundant evidence that na- principles may rationally applied in eral be over-represented tive Hawaiians are education, the context of with cer negative socioeconomic statistics such as tain modifications to account for the differ homelessness, poverty, child abuse and ne- of ences context. glect, activity; they and criminal are more recently analy- We distilled the Court’s likely economically disadvantaged to live in require- sis in into Weber three distinct neighborhoods low-quality and attend (1) plans ments: affirmative action must schools; and, of because low levels of edu- respond to a in manifest imbalance its “ attainment, they severely cational are un- (2) force; work not an absolute ‘create[ ] ” in der-represented professional and mana- bar to the[ ] advancement’ non- “ gerial positions, over-represented and in preferred ‘unnecessarily race or tram- ” and low-paying occupations. service labor (3) no rights; their do more ]’melt sum, they urge, though even the admis- necessary than is to achieve balance. bar,” policy sions creates an “absolute it is Hughes, v. Rudebusch 313 F.3d 520- (9th Cir.2002) Johnson, necessary for the Schools “trammel” (quoting 1442). 637-38, non-aboriginal in applicants interests of or- ap- U.S. at 107 S.Ct. pellant program goal. claims that der to reach its Schools’ plan, preference centage 9. Under the was slated to of minorities in the local labor force. percentage minority Weber, end as soon as the 443 U.S. at 99 S.Ct. 2721. approximated per skilled craftworkers however, B accept argument, To this perceive we completely is to abolish what Appellees urge Congress’s intent is an important to be limitation embodied guiding interpretation essential to our ap principle: Weber’s second fairness to how applies particular to a set of non-preferred plicants of the race. Even They argue Congress facts. that because some, if we assumed that limited racial given general, has native Hawaiians in might appropriate be preferences order particular, the Kamehameha Schools mission, for the Schools to advance its education, preferences in the context see absolute bar on the basis of race alone 20 U.S.C. 7901 et seq.; U.S.C. any applicаtion exceeds reasonable seq., analysis et our must harmonize these Weber, Rüdebusch, and the cases that fol by according enactments the Schools lowed their wake. “Classifications of greater Appel- deference under solely ..'. [persons] on the basis of race argue lees that it is inconceivable that the stigmatize threaten'to individuals rea membership Congress preferences of their in a racial same that enacted son group hostility.” and to incite racial Shaw for native Hawaiians would think that the Reno, 630, 643, 1981; 113 S.Ct. preferences Schools violate addi- (1993). Indeed, 125 L.Ed.2d 511 the sub tionally, they argue give can we policy text Schools’ of all § generous 1981 this more reading be- —-that are found in poverty, those who homeless §‘ cause 1981 was amended in the Civil ness, socially crime and other or economi Rights Act of 1991. circumstances, cally disadvantaged only authority We have located no for the native Hawaiians “perpetuate[s] count— proposition intent, congressional the notion that race matters most” and “ adopted manifested scattered statutes ‘may very [conditions exacerbate specially for the benefit of native Hawai- policy that Kamehameha’s is intended] ” ians, modify is sufficient to the standards — California, counteract.’ Johnson v. general applicabil- embodied a statute of U.S. —, —, ity. imagine We cannot the task of trying Shaw, (quoting L.Ed.2d 949 to harmonize all of the various acts of 2816). As we em Congress prodigious output that is ever —a

phasized inCoroi Construction v. King Co. expanding contracting statutes County, “race —with programs conscious must general applicability such as 1981.10 designed be to minimize—if not avoid— quite capable creating ex- upon nonculpable parties.” burdens third laws, ceptions for such in- we would (9th Cir.1991). 941 F.2d We trude on ability willingness its or to do so cannot agree with the district court’s con if we scoured the U.S.Code for hints of challenged clusion that the program con contrary intent. sepa- For reasons both of stitutes a valid affirmative plan action powers ration of and our sanity, own we supplying a legitimate nondiscriminatory Rather, will not undertake such a reason for task. racially the Schools’ exclusion role, 1981, our in ary § the context of limit- policy. Under the “is princi ples ed to controlling, interpreting Congress may we find what Schools’ ab do Patterson, solute 188, bar to admission on the and has basis of done.” 491 U.S. at race is invalid. 109 S.Ct. 2363. particularly

10. This § is true when we deal long pre-dates Congress's with one that provenance statute of such venerable preferences. as more recent native Hawaiian GRABER, dissent, in Judge urges overreaching would be to interpret these 4905(a) (1991) § approval us to consider 20 U.S.C. statutes as blanket private for 1994) Congress’s race (repealed evidence discrimination that is otherwise viola- § abrogate plain aware, intent to the otherwise lan tive of far So as we are applies § it to the Kame guage Congress of 1981 as has never even considered the racially exclusionary hameha Schools’ ad racial bar to in place admission at the Schools, policy. missions We are told because Kamehameha and we cannot infer 4905(a) § repealed implicit approval now authorized from a statute that mere- grants ly to the Kamehameha Schools to de support authorized financial college- velop program Thus, a demonstration to support bound native Hawaiians. while we native who choose to agree Hawaiians attend with the dissent that we should read college, it “inescapable follows as an con capable statutes of co-existence give “to Congress each,” clusion” that intends the Schools effect to find no we conflict between admit, program, 4905(a), § to refuse to into its K-12 which authorizes federal finan- Dissent, anyone without aboriginal blood. cial promote assistance to native Hawaiian education, assuming, arguendo, 8966. Even higher § which for- premise may parties affect bids a institution from erecting an directs, differently Congress when so we absolute bar to admission or advancement agree adopted solely Alaska, cannot that a statute in on the basis of race. Watt v. 259, 267, in repealed 1988 and 1994 created a native (1981). Hawaiian carve-out for 1981.11 L.Ed.2d 80 years, Congress Over the has directed Importantly, we find little suggest research, support and assistance at numer- Congress, enacting Rights the Ciwl minority groups, catego- ous as well as the Act of anything intended to do more See, ry Patterson, in general. e.g., “minorities” than holding overrule the Minority 177-80, Access Research Careers Pro- codify 241, 285k, 288, §§ gram, 42 holding Runyon, 170-71, U.S.C. 288a 427 U.S. at Rep. (1988); See, Patricia Roberts Harris Fellowship 96 S.Ct. 2586. H.R. e.g., No. 99-498, IX, Program, 102-40, Cong., Pub.L. Title pt.II, 102d at 37 Sess., 1st (re- (1991) (“[Subsection 901(a), 17, 1986, (b)] Oct. 100 Stat. 1550 overrules Patter- 105-244, VII, pealed Pub.L. Title adding son a new subsection to Section 1803); (c)] Oct. Excellence in Stat. 1981.... [Subsection intended to Mathematics, divine, codify Runyon McCrary.”). Science and Act Engineering To 101-589, Pub.L. No. 104 Stat. from years scattered statutes enacted (1990); History African-American apart, Land- has manifested аn mark Study, Theme Pub.L. Aug. obvious intent to alter the application of (1991). exclusionary Stat. 485 But 1981 to racial preferences 4905(a) Reading tribes”). Congress's to authorize exclusive If classifications based preferences are, racial for native indeed, Hawaiians on native Hawaiian status aof may problems education raise constitutional nature, they may subject racial fall to strict light Supreme Court's decision in scrutiny equal protection compo- under the Rice, Rice. See 528 U.S. at 120 S.Ct. 1044 Adarand, nent the Fifth Amendment. See (declining uphold voting a race-based re- ("[A]U at 115 S.Ct. 2097 racial striction for native Hawaiians absent “some classifications, federal, imposed by whatever beginning premises yet not in [the established state, actor, governmental local or must be law[;]” namely, Congress Court's] case that analyzed by reviewing a court under strict "has determined that native Hawaiians have a scrutiny.”). organized status like of Indians (“The or, preference, at 94 S.Ct. of native granted on behalf Hawaiians — to Indians not as a indeed, applied, granted is Congress considered has but, rather, group, at all— racial as mem- interrelationship of these statutes discrete con- considerably weight quasi-sovereign more tribal entities grants bers appropriate governed than we find and activities are gressional silence whose lives fashion.”). In this unique in this context. the BIA a sense, determined, prefer- “the the Court validly proof Congress has Absent than racial na- political ence is rather the class of na- exempted the Schools—or and, accordingly, should be reviewed ture” a the sub- tive Hawaiians as whole—from reason- merely to determine whether is can as- commands of we stantive to further ably rationally designed and. subjecting a certain no basis at n. self-government. Indian Id. on preference premised racial ab- school’s added). (emphasis Conclud- 94 S.Ct. wholly stan- blood to a different original was, upheld valid- ing that it the Court preferences racial chal- dard than all other ity hiring preference against of the a Title thus turn to lenged under the statute. We challenge. Id. at 94 S.Ct. VII im- question of whether has (“Here, reasonably is preference exempted the Schools from 1981. plicitly

directly nonracially legitimate, related to a C principal This is the charac- goal. based pro- absent from argument-that prefer generally teristic that is Appellees’ discrimination.”). be ana forms of racial ence for native Hawaiians should scribed scrutiny analy- lyzed applied under a relaxed level Later cases have Mancari’s relationship be light unique modifying trust sis without the distinction be- and the na government tween the federal on af- political tween classifications based essentially, See, people is, tive Hawaiian e.g., filiation and on race. those based — generalized appeal “special relation Washington v. Bands & Confederated ship typically sup Nation, doctrine” advanced to Tribes Yakima Indian port preferences accorded members fed 463, 500-01, L.Ed.2d 740 erally Using recognized (1979) (“It Indian tribes. unique legal is settled that the has, doctrine, Supreme this Court status of Indian tribes law under federal occasions, specifically upheld numerous permits the Federal Government enact legislation granting preferential treatment Indians, legislation singling leg- out tribal See, Mancari, e.g., to Native Americans. might islation that otherwise be constitu- (collecting U.S. S.Ct. (internal tionally quotation offensive.” cases). omitted)); marks Ante- United States v. lope, 430 U.S. recognizing The seminal case the doc (“The L.Ed.2d 701 decisions of this trine, upon subsequent which all cases legisla- no Court leave doubt federal rely, Supreme is the 1974 decision Court’s tribes, respect although tion with to Indian Mancari, in Morton v. such, relating to not based Mancari, Indians as ob the Court upon- impermissible racial classifications. preference question served that the —-a Quite contrary, express- classifications hiring preference Bureau of Indian Affairs subjects ly singling out Indian tribes as for Native Americans —was “not directed provided for in legislation expressly are group consisting towards a ‘racial’ of ‘Indi ans’,” supported the Constitution and the en- applied “only but instead to mem ‘federally suing history of the Federal Government’s recognized’ bers of tribes.” Id. (footnote at 553 & n. 94 S.Ct. 2474. See also id. relations with Indians.” omit- Court, ted)); authority includes the legislate v. Dist. States to Fisher (1976) 47 L.Ed.2d in affecting peoples matters the native curiam) (“[W]e reject argument (per Hawaii”); of Alaska Hawaiian plaintiffs] Indian access denying [the Homeownership Homelands Act of imper- Montana courts constitutes 106-569, 511-514, §§ Pub.L. No. The exclu- racial discrimination. missible 2944, 2966-67, (providing gov- Stat. jurisdiction of the Tribal Court does sive guarantees ernmental loan “to Native plaintiff from the race of the but not derive Hawaiian families who otherwise could quasi-sovereign from the status rather acquire housing financing”); not National Cheyenne under feder- the Northern Tribe Act, Historic Preservation 16 U.S.C. law.”). al 470-1(2) (to § “provide leadership Americans, for As it has Native Con- preservation prehistoric of the and his- gress has enacted numerous statutes tоric resources of the United States and for separate programs benefit providing community of the international of na- including native Hawaiians or them tions and in the administration of the programs that assist other native benefit preservation program part- national See, e.g., Hawaiian Homes Com- people. States, tribes, nership with Indian Na- § seq., Act 1 et 42 Stat. 108 mission Hawaiians, governments”); tive and local 200,000 aside acres and (setting National Museum of the American Indi- program a of loans and establishing Act, 80q(8) (providing U.S.C. for long-term leases for the benefit Na- the return of human Native Hawaiian Hawaiians); Department of Defense tive funerary objects remains and as well Act, No. Appropriations Pub.L. exclusively the creation of a museum (1994) (“In entering 108 Stat. preservation study the histo- into contracts with entities to Americans); ry and artifacts of Native carry out restoration and environmental Prevention, Drug Abuse Treatment and Island ... remediation of Kaho'olawe 1177(d) Act, Rehabilitation U.S.C. ... Secretary Navy give of the shall grant (involving applications aimed owned especial preference businesses combating drug providing: abuse and Hawaiians”); Native Hawaiian by Native Secretary encourage “The shall the sub- 7512(13) Act, et Education U.S.C. give special of and consideration mission seq. (establishing programs to facilitate applications pro- under this section to the education of Native Hawaiians and grams projects aimed at under- asserting “political relationship be- populations served such as racial and and the Native tween the United States (in- minorities, Americans ethnic Native people”); Hawaiian Native American cluding Nativе Hawaiians and Native Act, Repatriation Graves Protection and Islanders), youth, American Pacific seq. (extending pro- 3001 et 25 U.S.C. individuals, women, elderly, handicapped tection to American Indian and Native abusers.”); Native drug and families of sites); Hawaiian burial Native Hawaiian Act, 25 Languages American U.S.C. Improvement Health Care Act of (including §§ 2901-06 Native Hawaiian 11701(17) seq. (creating et U.S.C. Ameri- languages the ambit of Native programs improving number of aimed statutory languages protec- can accorded Hawaiians and health care for Native tion); Act of Investment Workforce stating, authority “The 2911(a) (“The purpose 29 U.S.C. under the United States Constitution support employment of this section is affecting aborigi- legislate matters Indian, training activities for Alaska indigenous peoples nal or of the United 1046 pursuant to a programs are enacted

Native, Native Hawaiian individu- and federal relationship Free- between the als”); Religious special Indian American (“it akin Act, § be native Hawaiians government 42 1996 shall and dom U.S.C. See, pro- States to that with Native Americans. policy of United 7512(13) (containing § for American Indians preserve e.g., tect 20 U.S.C. and 11701(17) (same); be- right § of freedom to 42 findings); their inherent U.S.C. 1994) lieve, tradition- (repealed § and exercise the express, 20 4901 U.S.C. Indian, (same). religions al the American Hawaiians, Eskimo, Aleut, and Native addition, expressly, has Congress limited to access to including but not the United repeatedly, determined sites, of sacred possession use and ob- de- wrongfully participated States worship

jects, and the freedom to- see, Monarchy, e.g., mise of-the Hawaiian traditional through ceremonials Act, Native Hawaiian Education 20 U.S.C. rites.”); Programs Act Native American (findings); Native Hawaiian Health (in- 2991-92, §§ 2991a U.S.C. Act, Imprоvement Care U.S.C. variety in a cluding Native Hawaiians Resolution, (findings); Apology S. Joint American financial and cultural Native Res. No. 107 Stat. No. Pub.L. this programs: purpose “The benefit (1993), consequences the harmful promote goal is to subchapter which, in Of the decimation and suf- terms self-sufficiency for economic and social fering wrought on the native Hawaiian Hawaiians, Indians, Native American culture, people and are well documented. Pacific other Native American Islanders See, Schs., e.g., Kamehameha Natives), (including American Samoan F.Supp.2d at 1150-55. See also Fuohs, Natives.”); Comprehensive and Alaska An And Hawaii Pono: Ethnic Politioal Alcohol and Alcoholism Preven- Abuse History (1961); R. Kuykendall, The Ha- tion, Treatment, Act, and Rehabilitation Kingdom (1967). Accordingly, Con- waiian 4577(c)(4) (giving preference 42 U.S.C. gress has that the United asserted States grant applications combating aimed at with, political relationship has a and a drug Secretary “The en- abuse: shall to, special obligation trust native Hawai- courage give spe- the submission of and indigenous people ians as the of Hawaii. applications cial consideration to under See, 7512; e.g., 20 U.S.C. U.S.C. programs projects this section for § 11701. populations aimed at such underserved however, significance, We find it of some minorities, as racial and ethnic Native that, Hawaiians, legislating for native (including Americans Native Hawaiians Congress consistently has not treated Islanders), and Native American Pacific in the Amer- same manner Native them women, youth, elderly, handicapped , Rather, has, occasion, icans. individuals, inebriates, fami- public from opted to exclude native Hawaiians alcoholiсs.”); § 4441 lies of 20 U.S.C. programs beneficial created for Native (providing funding for Native Hawaiian Norton, See Kahawaiolaa Americans. development); arts and cultural Older (9th Cir.2004) (observ- 386 F.3d Americans Act of U.S.C. (2004) (estab- ing “Congress specifically has includ- seq., et C.F.R. 1328.1 ... ed ... native Hawaiians certain ... lishing “program to meet privilege-granting specifical- statutes while of Older unique needs and circumstances Natives”). ... ly excluding from number of [them] Insofar as these Hawaiian statutes). Nonetheless, others”; collecting statutes have articulated a constitutional basis, they usually Appellees appeal to those statutes enacted have asserted to) benefit of native Hawaiians sup- tical that between the federal govern- port argument their that the Kamehameha Dissent, ment and Native Americans.” at preference racial Schools’ should be ana- Only years 8967. ago, five in the context lyzed under a deferential form of scrutiny of a challenge brought under the Fifteenth recognizes Congress’s special that Amendment, trust Supreme Court declined relationship consistency and ‍‌‌​​​​‌‌​‌​​‌‌​​‌​​‌‌‌​​‌‌‌​‌​​‌​​‌‌‌‌‌​​​‌‌​​‌​‍maintains much, an invitation to hold as concluding among legislative its enactments. We find that to do so “would require! ac- [ ] ] argument by Appellees’ this foreclosed ex- cepting] beginning premises some yet not plicit preference concession that the at is- established in [the Court’s] case law.” Rice, sue constitutes discrimination on the basis 528 U.S. at 120 S.Ct. 1044. Im- of race. portantly, the Court unwilling was to hold that Congress “has determined that native assuming Congress may Even that val- Hawaiians have a status like that of Indi- idly exempt native Hawaiians from the organized ans in tribes.” Id. We are un- 1981,12 substantive commands of pri- any single awаre of case or statute that preference vate school’s admissions cannot has intervened establish “begin- these exclusively racial, yet be simultaneously ning premises;” indeed, only statute subject special relationship doctrine. the dissent relies on any length Mancari, The Court’s decision in —20 4905(a) U.S.C. been enacted and at 553 n. —had pains took repealed long before the Court’s decision emphasize the nonracial nature of the chal- sum, in Rice. In it remains unclear wheth- lenged hiring preference, expressly ruling er government the United States enjoys a issue, precise classification at relationship trust with native Hawaiians which was based on Indian tribal affilia- similar to that enjoyed with organized tion, racial, but, rather, not political was tribes. But under the statutes and case nature; reason, subject only this it was they now, we, law as exist like the Court in to rational basis prin- review.13 The same Rice, find it to “stay advisable far off that ciple apply does not to the classification Rice, difficult terrain.” Schools, employed the Kamehameha 120 S.Ct. 1044. Appellees which concede to be exclusively nature, racial design and purpose. acknowledge We that the status of na- Thus, Appellees because we conclude that tive relationship, Hawaiians and their as a issue, have waived we find unneces- class, to government presents the federal sary to address whether has val- questions difficult import, serious com- idly exempted native Hawaiians from plicated by history both politics, § 1981’ssubstantive mandate. carrying tremendously far-reaching Rice, Judge consequences. GRABER find would See 528 U.S. at (“The government enjoys United States trust status of Hawaiian (but relationship parallels “that presented not iden- lands has of complexity issues Rice, 528 U.S. at subject 120 S.Ct. 1044. out Native Hawaiians would be Cf. Benjamin, Equal See also Stuart review”). Minor Pro- rational basis Special Relationship: tection and the The Case Hawaiians, Native 106 Yale L.J. 539- Moreover, Court, Mancari, was care- (1996) (arguing “without a Native ful to note that its decision was confined to political entity Hawaiian that can constitute Affairs, authority of the Bureau of Indian pur- an 'Indian Tribe[]' for constitutional emphasized 417 U.S. at a limitation later poses, 'special relationship’ there is no be- Rice, by the Court in 528 U.S. at gov- tween Native Hawaiians and the federal S.Ct. 1044. pursuant programs singling ernment to which PART; IN REVERSED AFFIRMED rule of at least the controversy from IN PART. day.”)- See present I to the Kamehameha Political Sta- Dyke, The Jon M. Van also GRABER, concurring Judge, Circuit People, Native Hawaiian tus dissenting part: part (1998); REV. Stuart Yale L. & POL’Y majori- and the Benjamin, Equal Protection from the dissent respectfully Minor I Native Relationship: The Case 1981 bars U.S.C. Special ty’s conclusion (1996). Hawaiians, Yale L.J. 537 of the Kamehameha policy Nonetheless, from Man- it does not follow to discern only task is Our Schools. authority can, any ap- of which respect or from other to the intent with Congress’ aware, may author- Congress wholly private, § are to a we plication exclusively to restrict private school that educates Native ize institution Hawaiian express racial Although basis of an I on the in Hawaii. admission Hawaiian children Rather, deci- the Court’s many general of the quarrel classification. no with have the emphasized have in the gracefully in this arena sions set forth so principles held to indeed, of classifications nonracial nature I concur majority opinion and,— civil scrutiny under modern Title applies it opinion withstand in the insofar as do not Appellees scrutiny, Because rights laws. than strict principles, rather VII question the classification argue private preferences to admissions anything express- but viewed as agree opinion’s should be with the cannot school—I the racial, addressing from ly we refrain in- congressional perspective narrow 519, Rice, further. See U.S. matter tent. S.Ct. enacted Congress first When still a Hawaiian Islands were V But in when sovereign kingdom. ruling to that our emphasize We and reenacted Congress revisited only conclude a narrow one. We day is No. Rights Act of Pub.L. in the Civil has met his plaintiff-appellant Congress’ 105 Stat. invalidity of the establishing burden pre- proper scope view of the statute’s action exclusionary affirmative racially body of was informed sumptively Schools, at the Kamehameha plan place in the interim. See developed that had law currently operates as an abso plan as that Corp., Marine Apex Miles v. for those of the non- lute to admission bar (1990) 112 L.Ed.2d S.Ct. decision, in our Nothing race. preferred (“We Congress is aware assume however, validity of the Pau implicates the passes legislation.”); it existing law when Will, not read that Bishop ahi as we do Singer, Sutherland Statuto- 1A Norman J. require to the use of race as document (6th 23.10, at 487 ry Construction Consequently, prerequisite. ed.2002) doctrine that “the (describing the summary judgment entry affirm the

we to envision the legislature presumed Bishop Pauahi Estate for the Bernice it enacts new body of the law when whole its individual trustees. duty to harmonize It is our legislation”). reasons, possible, the extent with foregoing the decision For Congress acted. summary statutory context which granting court of the district 259, 267, Alaska, Kamehameha Schools is See Watt judgment (1981) (“We 1673, 68 L.Ed.2d 80 judg- S.Ct. respects, In all other reversed. conflicting] statutes [apparently must read The case is remanded ment is affirmed. if can do so while effect to each we opin- give this for consistent with proceedings and purpose.”); their sense preserving ion. Mancari, (1) Morton v. the Federal Government retains the (1974) (“[W]hen 2474, 41 L.Ed.2d 290 legal responsibility to enforce the admin- co-existence, capable two statutes are istration of the State of public Hawaii’s courts, duty clearly is the absent a responsibility trust for the betterment of expressed congressional intention to the Hawaiians; conditions of Native effective.”). contrary, regard each as (2) in furtherance of responsibility 1988, just years three before its re- for the betterment of the conditions of enactment of recognized Hawaiians, Native Congress has the government’s unique United States re- power specially legislate for the bene- lationship Hawaiians, with Native ac- Hawaiians; fit of Native knowledged the severe socioeconomic and (3) .the attainment of educational suc- disadvantages experienced by educational cess is critical to the betterment of the Hawaiians, Native and authorized federal Hawaiians; conditions of Native money including the entities' — policy it is the of the Federal Gov- provide Kamehameha Schools—to loans ernment to encourage the maximum and scholarships exclusively to Native Ha- participation of Native found, Hawaiians in the example, Congress waiians. For рlanning management and the Hawaiian Health Native Ha- Native Care Act of 2(2) 100-579, Programs; § Pub.L. No. Education 102 Stat. waiian 2916, that the government’s federal contri-

butions to improving the health of Native (9) special efforts in recogniz- education Hawaiians “are consistent with the histori- ing unique the cultural and historical unique cal and legal relationship of the circumstances of Native Hawaiians are government United States with the that required. represented indigenous people native (1991) 1994).1 (repealed of Hawaii.” U.S.C. Congress spoke particularly, and Having made findings, Congress those length, the educational needs of Native specifically Secretary directed the of Edu- Hawaiians in the F. Augustus Hawkins- cation to grants “make to the Kameham- T. Elementary Robert Stafford and Sec- eha Pauahi Bishop Es- Schools/Bernice ondary Improvement School Amendments is, in this tate”'—-that Defendants (“Hawkins-Stafford Amend- case—“for a program demonstration ments”), IV, Pub.L. No. tit. provide Higher Education fellowship assis- (“Education § 4001 for Native Hawai- tance to Native Hawaiian stvidents.” ians”), 102 Stat. 130: 4905(a) (1991) 1994) (repealed U.S.C. added).2 Congress finds and (emphasis declares that— The sole beneficiaries though quoted See, 1. serving Even e.g., sections were re- Native Hawaiian children. pealed they signal Congress' sus- §id. 7515. First, tained intent. the statutes were ef- Congress fect in 1991 when re-enacted 1987, year 2. a before the of the enactment Second, Congress 1981. has continued Amendments, Congress Hawkins-Stafford throughout years findings to make similar provided h'ad funds for a "Native Hawaiian unique about the educational needs of Native organization” to "make loans to Native Ha- unique Hawaiian children and the relation- organizatiоns waiian individual Native ship government between the United States purpose promoting Ha-waiians for the eco- See, people. e.g., and the Native Hawaiian development nomic State of Hawaii.” Congress U.S.C. also has continued Programs Native American Act Amendments programs to authorize funds for educational Thus, concession the Schools’ were fellowship assistance federal of this Hawaiian,” was category, a term that is a racial to be “Native “Native Hawaiian” in the in the statute —as defined case, policy its of this dooms purposes policy— admission Kamehameha Schools’ maj. op. at majority’s See view. under aboriginal of the “a descendant to mean such a dichoto- perceive 1045-47. I do not occupied people, prior who political racial and the my between that now in the area sovereignty exercised for Na- preference aspects of Schools’ 20 U.S.C. of Hawaii.” comprises the State is, That if “Na- applicants. tive Hawaiian 1994). 4909(1)(C) Com (repealed category, a racial is indeed tive Hawaiian” Doe v. Kamehameha id. with pare by actions has shown its then Estate, Bishop Pauahi Schs./Bernice remedial, exclusive, prefer- racial that an (D.Haw.2003) 1141, 1156-57 F.Supp.2d it is at least when permissible, ence can be policy). (describing Schools’ and ex- remedy demonstrable employed to preference educational That exclusive defi- and socioeconomic treme educational Hawaiians, motivated which was for Native group racial by faced ciencies are remedy abysmal socioeco- by the need to (a) whose people from is descended and educational conditions nomic upended and and culture were sovereignty unique re- government’s the United States responsibility for Na- lationship with and actions of nearly destroyed, part Hawaiians, statutory part was (b) tive States, consequently the United into 1981 was reenacted. context which relationship enjoys special trust with remedial, just adopted private, this Having government parallels United States Hawaiians, preference for Native exclusive to) (but not identical that between is for not have intended Congress could Americans. and Native government federal bar, every private categorically, distinguish Native Hawai- These factors prefer- provides that an exclusive program groups racial men- ians from the other And, for that Native Hawaiians. ence to majority, maj. op. at by the see tioned reason, I that the mere fact disagree 1043-44, fund- special who have received an exclusive grants Schools Kamehameha words, need not decide ing. In other we applicants to Native Hawaiian preference any particular have that Native Hawaiians Indeed, this case. the ines- dispositive is of recognize, political status order statutory from the con- capable conclusion has, Congress the Kamehameha intended text is that in objectives unique remedial pursue Schools Hawaiians, Native Ha- preference congressional in- may, consistent with waii, and organization, a Native Hawaiian monarchy’s tent, ances- on the Hawaiian remedial tools. employ special located lands, it furthers upheld tral be because not established Supreme The Court has of for better education urgent need testing validity rigid “a formula for Hawaiians, Congress had Native which applied by a plan” an affirmative action explicitly identified 1988. Transp. private employer, Johnson majority holds that 1981 forbids (9th Cir.1985), 752, 757 Agency, 770 F.2d (whether preferences all exclusive racial operation spoken nor has it at all to not) suggests political and remedial or respect prefer- to remedial 1981 with only justification alternative status is the private at a school. the absence ences preference for for the exclusive Schools’ specific Supreme guidance, Court maj. op. at 1041- of more Hawaiians. See Native added). V, 506(a), (emphasis tit. 101 Stat. Pub.L. No. directly congressional Department look Developmental we should fornia Congress clearly Services; intent. meant to allow Bonta, Diane M. in her offi for the education Native Hawai- capacity cial as Director of the Cali ian children at the Kamehameha Schools. Department Services; fornia of Health statutory Because the context demon- Timothy Gage, B. capac in his official that Congress strates did not intend for ity as Director of the California De § 1981 to all exclusive preferences bar partment Finance, Defendants-Ap remedy the severe educational deficits suf- pellees. Hawaiians, population

fered Native No. 04-15228. unique country, within this and because amply Kamehameha Schools has demon- United States Court of Appeals, strated that preference its admission Ninth Circuit. regularly currently and required reviewed deficits, respectfully to combat those I dis- Argued and Submitted Dec. majority’s contrary from the sеnt conclu- Aug. Filed sion. SANCHEZ, by

Stephen through his friend, Joyce mother next Hoe bel; Kory Nigian, by through his friend,

mother and next Irene Ybar ra; Kathy Tobiason, by through friend,

her mother and next Sandra Nash; Santo; Ewalt, De Scott Grace minor, by through mother, her Ewalt; Crose,

Suzanne Scott through conservator, his mother and Crose; Comp

Janice Edward Eddie ton, by through parents his friends,

next Edward and Elaine Compton; Society Autism of Los An geles; California Rehabilitation As

sociation; California Coalition Palsy Associations; United Cerebral California; ‍‌‌​​​​‌‌​‌​​‌‌​​‌​​‌‌‌​​‌‌‌​‌​​‌​​‌‌‌‌‌​​​‌‌​​‌​‍Systems Easter Seals Re form, Inc.; Sol, Inc., Tierra Del

Plaintiffs-Appellants, JOHNSON, Grantland in his official ca pacity Secretary of the California

Department of Health and Human

Services; Allenby, Clifford in his offi capacity

cial as Director of the Cali these notes preserve relatively “desire to a large do recognizing Equal that both the Protec action”). voluntary main for employer tion Clause and a require showing sum, abandoned, having generally after discrimination; of intentional they are co Jones, Runyon the Fourteenth point. extensive on this The Court’s deci Amendment as the interpreting, model for incorporated sion Patterson this hold of, limiting §§ the reach 1981 and ing, years seven after Building General 1982, we conclude that the substantive Contractors, when instructed lower standards rights embodied modern civil apply courts to the McDonnell Douglas capture laws better jurisprudence framework to claims of racial discrimina § 1981. tion in employment brought under noting “petitioner while retains Although the instant case involves the final burden of persuading jury § a against school, 1981 claim a we Patterson, intentional discrimination.” find no reason to depart from the stan at U.S. (emphasis dards outlined Patterson and well-estab added). Simply put, the Supreme Court’s lished interpreting cases Title VII. parenthetical notations in Grutter and analysis While the necessarily must be Gratz should in light be read of the specific modified in order to account for differ import case, of the cited and General context, ences guarantee substantive Building Contractors nothing does more should remain the same: right to make specify than that intentional discrimination and enforce illegiti contracts free from must be established order to sustain mate and unlawful discrimination on both an equal protection §a challenge. Although, Accordingly, basis of race. like the Fourteenth we hold that a Amendment, § only 1981 reaches inten- suit against purely private school (concluding 384 F.3d at challenged that a fied scrutiny Fourteenth Amendment neces- governmental employment policy sarily 1981). that satis- scrutiny also satisfied under legitimate the substantive standards school to articulate a governed is nondis challenges race-based applicable criminatory poli reason for its admissions brought pursuant to Title VII of the Civil cy. Douglas, See McDonnell 411 U.S. at of 1964. This means that once Rights Act Burdine, 93 S.Ct. 1817. See also plaintiff prima establishes a 255-56, at If S.Ct. 1089. facie case of intentional race discrimina- burden, school satisfies this the burden of tion, the must come forward defendant production again plaintiff shifts to the nondiscriminatory legitimate with a reason prove that the school’s articulated reason justifying challenged practice; if such a pretext for unlawful race discrimina plaintiff may a reason is offered the still Hicks, tion. See attempt pre- to show the reason is 2742; Douglas, McDonnell text for unlawful race discrimination. Despite 93 S.Ct. 1817. the shifting clarify It remains to how these stan- burdens, persuasion the ultimate burden of in the operate dards should context that the intentionally school discriminated private education. on the basis of race remains with the Hicks, plaintiff at all times. 509 U.S. at B

Case Details

Case Name: Doe Ex Rel. Doe v. Kamehameha Schools/Bernice Pauahi Bishop Estate

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Aug 2, 2005

Citation: 416 F.3d 1025

Docket Number: 04-15044

Court Abbreviation: 9th Cir.