Doe Ex Rel. Doe v. Kamehameha SchoolsDoe Ex Rel. Doe v. Kamehameha Schools
Lead Opinion
Opinion by Judge GRABER; Concurrence by Judge W. FLETCHER; Dissent by Judge BYBEE; Dissent By Judge RYMER; Dissent By Judge KLEINFELD; Dissent by Judge KOZINSKI.
Plaintiff John Doe, a student who has no Hawaiian ancestry, applied for admission to Defendant Kamehameha Schools, a private, non-profit K-12 educational institution in Hawaii that receives no federal funds. He was denied entry. The Kamehameha Schools were created through a charitable testamentary trust, established by the last direct descendant of the Hawaiian monarchy, for the education and upbringing of Native Hawaiians. As a result, the Kamehameha Schools’ admissions policy gives preference to students of Hawaiian ancestry. Plaintiff argues that he was denied admission because of his race in violation of
The majority of a three-judge panel held that the Kamehameha Schools’ admissions policy, with its preference for Native Hawaiians, constituted unlawful race discrimination under
A. Factual Background
1. Historical Context
The islands of Hawaii are geographically isolated in the South Pacific Ocean and were originally settled sometime between 1 and 750 A.D. The Native Hawaiians developed a well-organized, efficient, and thriving civilization “based on a communal land tenure system with a sophisticated language, culture, and religion.”
The first Western contact with the Hawaiian islands occurred in 1778 when Captain James Cook landed on the island of Kauai. The immediate result of that first encounter was that Native Hawaiians were introduced to Western goods and Western diseases. “By 1919, the Native Hawaiian population had declined from an estimated 1,000,000 in 1778 to an alarming 22,600.”
In 1810, Kamehameha I created a unified monarchy over all the Hawaiian Islands, becoming the first King of Hawaii and affording the islands a level of cohesion and security that they had not previously known. The United States officially recognized the sovereignty of the Kingdom of Hawaii in 1826 and, from 1843 until 1893, extended full diplomatic recognition to the islands. Other countries, too — in-eluding Great Britain, France, and Japan- — recognized the Hawaiian Kingdom.
The Kingdom of Hawaii, located along shipping and fishing routes, was commercially desirable. Initially, trade with the Kingdom of Hawaii revolved around the islands’ fur and sandalwood resources, as well as the whaling industry. Rights Handbook at 5. When over-harvesting destroyed the sandal-wood trade and depleted the whaling stocks, wealthy Westerners turned to large-scale plantations, primarily growing sugar, to make money. Id. As foreign investment became more and more tied to land ownership, demand for change in the traditional land tenure system, which did not provide for individual land titles, intensified. Id. at 6. Pressure from Westerners eventually led the Hawaiian government to reject the land tenure system in favor of privatized land ownership, which allowed Westerners “[w]ith a permanent population of fewer than two thousand” to take “over most of Hawaii’s land in the next half-century and manipulate[] the economy for their own profit.” Neil M. Levy, Native Hawaiian Land Rights, 63 Cal. L.Rev. 848, 857-58 (1975) (footnote omitted).
Hawaii finally attained statehood in 1959. Rights Handbook at 18. More than 30 years later, in recognition of the United States’ role in the overthrow of the independent Hawaiian monarchy, Congress officially apologized to the Hawaiian people and expressed its commitment to “provide a proper foundation for reconciliation between the United States and the Native Hawaiian people.” 1993 Apology Resolution, Pub.L. No. 103-150, 107 Stat. 1510, 1513 (1993).
2. The Kamehameha Schools
The Kamehameha Schools were created under a “charitable testamentary trust established by the last direct descendent of King Kamehameha I, Princess Bernice Pauahi Bishop, who left her property in trust for a school dedicated to the education and upbringing of Native Hawaiians.” Burgert v. Lokelani Bernice Pauahi Bishop Trust,
Under the direction of the original trustees, chaired by Pauahi Bishop’s widower, Charles Reed Bishop, the Kamehameha Schools opened in the late nineteenth century.
In 1910, not long after the death of Princess Bernice Pauahi Bishop and the
Today, the Kamehameha Schools operate three K-12 campuses: Kapalama on the island of Oahu, Pukalani on the island of Maui, and Keaau on the island of Hаwaii. There are about 70,000 school-aged children in Hawaii who meet the Schools’ definition of Native Hawaiian, but the Schools’ total enrollment is only about 4,856 students. The Kamehameha Schools subsidize much of the tuition cost for all students, requiring payment of only $1,784 per year, whereas the cost of educating a student amounts to about $20,000 annually. Sixty-five percent of those enrolled receive some form of financial aid to help them pay even that heavily subsidized, modest tuition.
Part of the Kamehameha Schools’ stated admissions policy is to give preference to students of Native Hawaiian ancestry, defined to include any person descended from the aboriginal people who exercised sovereignty in the Hawaiian Islands prior to 1778. Practically, the policy operates to admit students without any Hawaiian ancestry only after all qualified applicants with such ancestry have been admitted. Because there are many more qualified students of Hawaiian ancestry than there are available places at the Schools, it is very rare that a student with no Hawaiian ancestry is admitted to the campus programs. But the admissions policy is not an absolute bar to non-Native Hawaiians; instead, it is intended to last only for so long as Native Hawaiians suffer educational disadvantages.
We pause to note that the Schools’ policy contains no requirement for a minimum blood quantum of Hawaiian ancestry. The only requirement is that a student have at least one Native Hawaiian ancestor. Most students have mixed ancestry. More than 60 different racial and ethnic groups have been represented in the student body, and for the 2000-2001 academic year, students reported belonging to 39 different racial and ethnic groups. Accordingly, an observer visiting the Schools would see visible diversity notwithstanding the students’ commonality of having at least one Native Hawaiian ancestor.
The Kamehameha Schools follow a “Leadership Model” of education. This curriculum is meant to foster the self-esteem and self-identity of students as individuals of Native Hawaiian descent by teaching Native Hawaiian culture, heritage, language, and tradition, in addition to general college-preparatory courses.
Kamehameha Schools also operate a number of other educational programs, including pre-schools, enrichment programs, and summer school programs. In those programs, the admission of non-Native Hawaiians occurs more often. For example, for the 2001-2002 school year, 13 children with no Native Hawaiian ancestry were admitted to Kamehameha’s preschool program (two of the children declined admission); the following school year 12 non-Native Hawaiian children
3. Current Conditions in the Edti-cational Status of - Native Haivai-ians
Although the Kamehameha Schools are partly responsible for the Native Hawaiian community’s ability to maintain “its distinct character as an aboriginal, native people,” Native Hawaiians, nonetheless, continue to face “economic deprivation, low educational attainment, poor health status, substandard housing and social dislocation.” From Mauka to Makai at 2. In particular, Native Hawaiians have traditionally performed much below national averages in the educational arena.
In 1981, Congress instructed the Office of Education to submit to Congress a comprehensive report on Native Hawaiian education. The report, entitled the “Native Hawaiian Educational Assessment Project,” was released in 1983 and documented that Native Hawaiians scored below parity with regard to national norms on standardized achievement tests, were disproportionately represented in many negative social and physical statistics indicative of special educational needs, and had educational needs that were related to their unique cultural situation, such as different learning styles and low self-image.
That trend continues today. In 2002, Congress recognized that Native Hawaiians are severely disadvantaged in education. It found that:
(A) educational risk factors continue to start even before birth from many Native Hawaiian children[;]
(B) Native Hawaiian students continue to begin their school experience lagging behind other students in terms of readiness factors such as vocabulary test scores;
(C) Native Hawaiian students continue to score below national norms on standardized education achievement tests at all grade levels;
(D) both public and private schools continue to show a pattern of lower percentages of Native Hawaiian students in the uppermost achievement levels and in gifted and talented programs;
(E) Native Hawaiian students continue to be over-represented among students qualifying for special education programs provided to students with learning disabilities, mild mental retardation, emotional impairment, and other such disabilities;
(F) Native Hawaiians continue to be underrepresented in institutions of higher education and among adults who have completed four or more years of college;
(G) Native Hawaiians continue to be disproportionately represented in many negative social and physical statistics indicative of special educational needs[;]
... and
(H) Native Hawaiians now comprise over 23 percent of the students served by the State of Hawaii Department of Education, and there are and will continue to be geographically rural, isolated areas with a high Native Hawaiian population density.
In addition, the most recent Native Hawaiian Educational Assessment, published in September 2005, concluded that, “[o]n the whole, ... Native Hawaiian children in the public school system perform poorly in school compared with their non-Hawaiian peers.” Ka Huakai, 2005 Native Hawaiian Educational Assessment 229, available at http://ulukau.org/ elib/cgi-bin/li-brary?c=nhea & l=en (hereinafter “Ka Huakai”). That most recent report found that 75% of public schools with a predominantly Native Hawaiian student body did not meet the state’s adequate yearly progress standards, but that number dropped to less than 58% for schools without a majority of Native Hawaiians, a difference of more than 17%. Id. at 251. Also, Native Hawaiian students in elementary and secondary public schools ranked the lowest of all major ethnic groups throughout the state in reading and math, falling between 9 and 15 percentiles behind the state average. Id. at 261, 268. In addition, only 69.4% of Native Hawaiian students graduated from high school in 2002, compared to a state average of 76.6% overall. Id. at 285.
B. Procedural History
Plaintiff applied for admission to the Kamehameha Schools. He has no Hawaiian ancestry. Although the school deemed him a “competitive applicant” and put him on the waiting list, he was repeatedly denied admission. The Kamehameha Schools concede that Plaintiff likely would have been admitted had he possessed Hawaiian ancestry.
Plaintiff filed an action under
The Court finds the plan has a legitimate justification and serves a legitimate remedial purpose by addressing the socioeconomic and educational disadvantages facing Native Hawaiians, producing Native Hawaiian leadership for community involvement, and revitalizing Native Hawaiian culture, thereby remedying current manifest imbalances resulting from the influx of western civilization.
The majority of a three-judge panel reversed the district court. Doe v. Kamehameha Sch./Bernice Pauahi Bishop Estate,
STANDARD OF REVIEW
The parties, and we, agree that we review de novo a grant of summary judgment. United States v. City of Tacoma,
Plaintiff argues that the Schools’ policy should be evaluated under the “strict scrutiny” standard that applies to governmental action involving race-based preferences. The Schools counter that we should employ the more deferential Title VII test for evaluating affirmative action plans, with variations appropriate to the educational context. For the reasons that we detail below, we agree with the Schools.
DISCUSSION
A. History of
Title
After the passage of the Fourteenth Amendment, Congress reenacted, with minor changes, the text of the 1866 Act in section 16 of the Enforcement Act of 1870, ch. 114, § 16, 16 Stat. 140 (hereinafter “1870 Act”).
On the same day as it issued Runyon, the Court decided that
In neither case did the Court have occasion to consider whether and under what terms (i.e., under what standard of scrutiny) a private remedial racial preference would be permissible in the educational context under
B. Application of Title VII Standards to
In General Building Contractors, the Court limited
In Patterson v. McLean Credit Union,
Several courts expressly have applied Title VII’s substantive standards when examining
The Eighth Circuit first concluded that
It would indeed be ... ironic if the Civil Rights Act of 1866 was used now to prohibit the only effective remedy for past discriminatory employment practices against blacks and other minorities, when the Act was virtually useless to prevent the occurrence of such discrimination for more than a century.... We conclude that the Supreme Court, by approving race-conscious affirmative action by employers in Weber, implicitly approved the use of race-conscious plans to remedy past discrimination undersection 1981 . To open the door for such plans under [T]itle VII and close it undersection 1981 would make little sense. The prohibition undersection 1981 of affirmative action plans permissible under [Tjitle VII would bar a remedy Congress left within the discretion of private employers when it passed [T]itle VII.
Setser,
Having determined that affirmative action plans were permissible, the Setser court expressly “equat[ed] the affirmative action standards of [Tjitle VII with those of
The Supreme Court’s recent University of Michigan cases — Grutter v. Bollinger,
To support both of its holdings, the Court cited General Building Contractors for the proposition that discrimination that violates the Equal Protection Clause also violates
In view of the precedents that we have just discussed, we conclude that Title VII principles apply here. Defendant is a purely private entity that receives no federal funds. The Supreme Court has never applied strict scrutiny to the actions of a purely private entity. The question remains how best to adapt the Title VII employment framework to an educational context and to the unique historical circumstances of this case.
C. Applying a Modified Title VII Standard in the Educational Context Under
Only step three of the traditional three-stage Title VII analysis, Patterson,
The Supreme Court has outlined the appropriate step-three Title VII inquiry in the context of private employment. In Weber, the Court held for the first time that Title VII does not prevent private employers from implementing voluntary, remedial affirmative action plans.
Eight years later, in Johnson, the Court concluded that a county-agency employer did not violate Title VII by taking into cpnsideration the sex of a female employee id deciding to promote her instead of a male employee. The promotional policy, which took into consideration the sex and race of an applicant, was valid because it attempted to eliminate a “manifest imbalance” in a “traditionally segregated job category].” Johnson,
We recently distilled the Court’s analysis this way: private employers’ affirmative action plans (1) must respond to a manifest imbalance in the work force; (2) must not “unnecessarily trammel[]” the rights of members of the non-preferred class or “create an absolute bar to their advancement”; and (3) must do no more than is necessary to attain a balance. Rudebusch v. Hughes,
We note that, when assessing the validity of affirmative action plans, the Supreme Court has consistently recognized the importance of deferring to the judgment and expertise of the relevant decisionmakers. See Grutter,
More importantly, schools perform a significantly broader function than do employers. The Supreme Court has long recognized that schools do more than simply teach our Nation’s children the three “R’s.” Schools play a special role in the development of young citizens. See Grutter,
Primary and secondary school education is the gateway to higher education and is of paramount importance for the training of our nation’s workforce. See Plyler v. Doe,
In sum, schools educate students for their future endeavors in society as a whole. While private employers strive primarily to make money, and public employers (such as police and fire departments) perform a specific public function, schools pursue a much broader mission: the development of all children to become citizens, leaders, and workers.
The Title VII cases, in the employment context, recognize the laudable goal of achieving diversity and proportional representation in the workplace; this goal necessarily focuses internally and is limited to the “employer’s work force.” Johnson, 480 U.S. at 632,
Adjusting the first Johnson factor to account for this external focus, we hold that, to justify a remedial racial preference, a private school must demonstrate that specific, significant imbalances in educational achievement presently affect the target population. The external focus of the educational mission renders unnecessary the requirement of proof of a “manifest imbalance” within a particular school; the relevant population is the community as a whole. At the same time, the strict focus on present, demonstrable disparities in educational achievement limits the types of permissible programs and distinguishes a more amorphous program that relies solely on general past societal discrimination. See City of Richmond v. J.A. Croson Co.,
Relatedly, the second Johnson factor must be modified to account for the relevant scope of inquiry. Just as imbalance should be viewed in the relevant community, rather than in a single school, so should the respective rights of members of the non-preferred group. Therefore, within the community as a whole, an admissions policy must not “unnecessarily trammel” the rights of students in the non-preferred class or “create an absolute bar” to their advancement. The third Johnson factor is similarly modified: an admissions policy must do no more than is necessary to remedy the imbalance in the community as a whole, that we identified at the first step. These three factors best harmonize the relevant statutes and Supreme Court cases.
Judge Bybee’s reliance on Runyon in attacking our conclusion is particularly misplaced. As his dissent quotes several times, diss. at 857, 858, 860, the Supreme
By contrast, the very nature of affirmative action plans is that historically disfavored and underachieving minorities may be given preferential treatment in certain narrowly defined, limited programs. It is the contours of such a program — a private school’s voluntary remedial admissions program — that we explore today. We turn now to applying the three modified Johnson factors to the Kamehameha Schools’ admissions policy.
1. Respond to a Manifest Imbalance
To meet the first modified Johnson factor, a private school must demonstrate that, in the relevant community, specific, significant imbalances in educational achievement presently affect the group favored by its admissions policy. The relevant community in this case is the state of Hawaii, because the Schools serve students from all of Hawaii’s islands. We therefore consider whether a manifest imbalance in current educational achievement exists between Native Hawaiians and other ethnic groups in Hawaii.
Native Hawaiian students are systemically disadvantaged in the classroom. As we described earlier, there is a substantial disparity in performance between Native Hawaiian students and other ethnic groups. Briefly, Native Hawaiian students score lower on standardized tests than all other ethnic groups in the state, Ka Huakai at 229, 261, are more likely to be in special education classes, id. at 278, are more likely to be absent from school, id. at 229, and are more likely to attend poor-quality schools, id. at 252. Native Hawaiians are the least likely of the state’s major ethnic groups to graduate from high school, id. at 229, 285, and they are less likely than their non-Hawaiian counterparts to attend college, id. at 118-19. Congress has expressly recognized the educational disadvantages suffered by Native Hawaiians and their marginalized status.
In view of those facts and congressional findings, it is clear that a manifest imbalance exists in the K-12 educational arena in the state of Hawaii, with Native Hawaiians falling at the bottom of the spectrum in almost all areas of educational progress and success.
Furthermore, it is precisely this manifest imbalance that the Kamehameha Schools’ admissions policy seeks to address. The goal is to bring Native Hawaiian students into educational parity with other ethnic groups in Hawaii. The stated purpose of Kamehameha Schools is to create educational opportunities to improve the capability and well-being of Native Hawaiians and to cultivate, nurture, and perpetuate Hawaiian culture, values, history, and language.
To that end, the Schools advance a curriculum specially tailored to students of Native Hawaiian descent. The Schools
In addition, the Kamehameha Schools recognized, early on, a critical need to help perpetuate Native Hawaiian culture. As a result, in the 1940s, the Schools instituted a formal Hawaiian Cultural Program that continues today. Courses on Hawaiian history and culture are required before a student may graduate.
The Kamehameha Schools have shown that specific, significant imbalances in educational achievement currently affect Native Hawaiians in Hawaii and that the Schools aim to remedy that imbalance. Accordingly, they have satisfied the “manifest imbalance” criterion.
2. Do Not Unnecessarily Trammel the Rights of Members of the Norr-Pre-ferred Class or Create an Absolute Bar to Their Advancement
Under the second prong of the modified Title VII analysis, we ask whether, within the relevant community of Hawaii, the Kamehameha Schools’ admissions policy unnecessarily trammels the rights of members of the non-preferred class, that is, students with no Hawaiian ancestry, or creates an absolute bar to their advancement.
The Kamehameha Schools allow all students to apply for admission. But once the applications are received, the Schools consider the ethnic background of the students and admit qualified children with Native Hawaiian ancestry before admitting children with no such ancestry. Because the pool of qualified potential students with Native Hawaiian blood greatly outnumbers the available slots at the Schools, non-Native Hawaiians generally are not admitted.
We begin by noting that nothing in the record suggests that educational opportunities in Hawaii are deficient for students, like Plaintiff, who lack any Native Hawaiian ancestry. To the contrary, the same statistical data that portray the difficulties of Native Hawaiian children generally portray much greater educational achievement, in both public and private primary and secondary schools, for children of all other racial and ethnic groups in Hawaii. Those students denied admission by Kamehameha Schools have ample and adequate alternative educational options. The well-documented ability of non-Native Hawaiians to attain educational achievement in Hawaii notwithstanding the Kamehameha Schools’ longstanding admissions policy demonstrates that the policy neither unnecessarily trammels the rights of non
Our inquiry does not stop there, however. The history of Native Hawaiians and of the Kamehameha Schools has certain unique features that Congress has acknowledged. In 1993, Congress admitted that the United States was responsible, in part, for the overthrow of the Hawaiian monarchy. 1993 Apology Resolution, 107 Stat. 1510. Later, when it enacted education-related legislation in 1994, and then reenacted that legislation in 2002, Congress made findings regarding the disadvantages faced by Native Hawaiian students in the public school system in Hawaii.
Congressional recognition of the challenges faced by Native Hawaiians in the educational arena supports our conclusion that the Schools’ policy does not unnecessarily trammel the rights of non-Native Hawaiians. To the contrary, as Congress has recognized, in the unique context of Native Hawaiian history, affirmative measures are needed to address present, severe inequalities in educational achievement.
Finally, we examine the expectations of those who lack Native Hawaiian ancestry. The Supreme Court observed in Johnson that “the denial of the promotion[at issue] unsettled no legitimate, firmly rooted expectation on the part of petitioner.”
No applicant to the Kamehameha Schools is guaranteed admission. Just as the applicant in Johnson “had no absolute entitlement” to the promotion from his employer, Plaintiff here likewise “had no absolute entitlement” to admission to the Schools. Id.
Furthermore, the Kamehameha Schools were established when Hawaii was a sovereign nation, and they were built on the Hawaiian monarchy’s land. When the Schools began, a non-Native Hawaiian had no expectation of admission to the Schools, except when Native Hawaiians failed to fill all the available slots, or until Native Hawaiians achieved educational parity with others. See supra p. 832. In the intervening 118 years, the Schools’ admissions policy, and therefore the expectations of the non-Native Hawaiians, has remained constant. Thus, denial of Plaintiffs application for admission “unsettled no legitimate, firmly rooted expectation.” Johnson,
For the foregoing reasons, the Kamehameha Schools’ admissions policy does not unnecessarily trammel the rights of non-Native Hawaiians or create an absolute bar to their advancement.
3. Do No More than Is Necessary
Finally, the Schools’ admissions policy must do no more than is necessary to correct the manifest imbalance suffered by students of Native Hawaiian ancestry. This factor requires that an affirmative action plan be “temporary.” Johnson,
The Kamehameha Schools’ decision to give preference to students with Native Hawaiian ancestry is limited in duration in two distinct ways. First, if qualified students with Native Hawaiian ancestry do not apply to the Schools in sufficient numbers to fill the spots available, as happened
Because the admissions policy is not fixed, but changes as the capacity of the Schools’ programs increases and as the well-being of the Native Hawaiian community rises, the policy does no more than is necessary in light of the significant educational imbalances that Native Hawaiians continue to face.
Accordingly, the Kamehameha Schools’ admissions policy satisfies the three Johnson, criteria — offset a manifest imbalance, do not unnecessarily trammel others’ rights or create an absolute bar, and do no more than is necessary — as modified for the private primary and secondary school context. The Schools have shown that the admissions policy, favoring students of Native Hawaiian descent, is legitimate and valid.
Judge Bybee’s dissent contends that we should hew more closely to a traditional Title VII analysis and that, under such an analysis, the Schools’ preferential admissions policy is not valid. (Bybee, J., diss. at 857-85.) For the reasons that we have detailed, we believe that the dissent’s focus is too narrow for the private school context and that Kamehameha Schools’ remedial admissions policy is legitimate in the face of the serious and systemic disadvantages faced by Native Hawaiian students in Hawaii today. See Johnson,
Even if we were to try to shove a square peg into a round hole by strictly applying the test developed in employment cases to the Kamehameha Schools’ admissions policy, that policy would still be valid. As the Supreme Court has cautioned, “[i]t is a familiar rule that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit nor within the intention of its makers.” Weber,
Plaintiff brought suit under
Congress originally enacted what later became
Therefore, we must determine what Congress intended, with regard to Native Hawaiians, when it reenacted
Accordingly, we look to legislation that Congress has passed specifically affecting Native Hawaiians both before and after 1991. As we have explained, we consider the pre-1991 statutory landscape because it informs us about what Congress had in mind when it reenacted
Beginning as early as 1920, Congress recognized that a special relationship exist
Congress has relied on the special relationship that the United States has with Native Hawaiians to provide specifically for their welfare in a number of different contexts. For example, in 1987, Congress amended the Native American Programs Act of 1974, Pub.L. No. 100-175, § 506, 101 Stat. 926 (1987), to provide federal funds for a state agency or “community-based Native Hawaiian organization” to “make loans to Native Hawaiian organizations and to individual Native Hawaiians for the purpose of promoting economic development in the state of Hawaii.” A year later, Congress enacted the Native Hawaiian Health Care Act of 1988, Pub.L. No. 100-579, § 11703(a), 102 Stat. 2916 (1988), “for the purpose of providing comprehensive health promotion and disease prevention services as well as primary health services to Native Hawaiians.”
Most importantly for our purposes today, Congress also has focused its attention on the educational disparities faced by Native Hawaiian students. In 1988, just three years before reenacting
The Hawkins-Stafford Amendments were repealed in 1994.
After reenacting
These steadfast congressional policies favoring remedial measures for Native Hawaiians — and specifically remedial educational measures, some of them even mentioning the Schools and the Bishop Trust approvingly by name — inform our analysis of the validity of the Kamehameha Schools’ admissions policy under
Accordingly, the most plausible reading of
CONCLUSION
King Kamehameha I, on his death bed, is reported to have said, “Tell my people I have planted in the soil of our land the roots of a plan for their happiness.” Princess Pauahi Bishop and Her Legacy at 122. His great granddaughter, Princess Bernice Pauahi Bishop, echoed that sentiment when she established, through her will, the Kamehameha Schools. Because the Schools are a wholly private K-12 educational establishment, whose preferential admissions policy is designed to counteract the significant, current educational deficits of Native Hawaiian children in Hawaii, and because in 1991 Congress clearly intended
AFFIRMED.
Notes
. Doe v. Kamehameha Sch./Bernice Pauahi Bishop Estate,
. This general information simply sets the stage for our more particular considerаtion of the educational status of Native Hawaiian children.
. The Pauahi Bishop Will established two separate schools, one for boys and one for girls. The boys' school opened in 1887 and the girls' school in 1894. During the 1965-1966 school year, the two schools were consolidated.
. Disparities abound outside of the educational context as well. Today among the major ethnic groups in Hawaii, Native Hawaiians have the highest rates of unemployment, Ka Huakai at 84, and poverty, id. at 86-87, and the lowest mean family income, id. at 85-86. They live in the poorest geographic areas and are underrepresented in managerial and professional occupations. Id. at 8. Native Hawaiians suffer from greater health risks than other ethnic groups on the islands, with the lowest life expectancy and highest mortality rates from cancer, heart disease, and diabetes. Id. at 93. Although Native Hawaiians account for approximately 20% of the state’s population, they account for more than half of all teenage pregnancies, id. at 203, and more than 44% of child abuse and neglect cases in the state, id. at 206. Native Hawaiians are more likely to be arrested for violent crimes than any other ethnic group in the state. Id. at 76-77.
. Plaintiff now seeks only damages because he is no longer a high school student. This case is not moot, however, because if the Kamehameha Schools’ admissions policy were unlawful, Plaintiff has a possible claim for money damages.
. The panel's decision generated strong public opposition. Eleven amicus briefs were filed by diverse political and social interests in Hawaii supporting rehearing en banc. These amicus briefs were filed by: (1) the State of Hawaii; (2) the entire Hawaiian congressional delegation; (3) the Mayor of the City and County of Honolulu, and the City and County of Honolulu; (4) the Hawaii Business Roundtable, the Hawaii Korean Chamber of Commerce, the Public Schools of Hawaii Foundation, and the Hawaii Association of Independent Schools; (5) the National Association of Independent Schools; (6) the Parent-Teacher Association of Kamehameha Schools, and the Alumni Association of Kamehameha Schools; (7) the Native Hawaiian Legal Corporation, the Native Hawaiian Bar Association, and Na'A'ahuhiwa; (8) various Hawaiian service organizations; (9) 'Ilio'ulaokalani Coalition, an organization of Hawaiian master teachers and cultural experts; (10) the Japanese American Citizens League of Hawaii-Honolulu Chapter and other civic groups; and (11) the National Indian Education Association and the Alaskan Federation of Natives. Additionally, the current governor of Hawaii and a prominent former governor both submitted declarations to the district court on the importance of maintaining the Kamehameha Schools' admissions policy. Doe,
. Section 1 of the Civil Rights Act of 1866 provided:
That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntaxy servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subjeсt to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.
. In pertinent part, section 16 of the Enforcement Act of 1870 provides:
Arxd it be further enacted, That all persons within the jurisdiction of the United States shall have the same right in every State and Territory in the United States to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding.
. The Kamchameha Schools are non-profit, rather than commercial. But, because the schools charge tuition (albeit at a rate that represents only a fraction of the cost to educate students), the bargained-for exchange of payments for instruction exists here, as it did in Runyon. We need not and do not decide whether
. One student without Native Hawaiian ancestry has been admitted to the Schools in recent years because, for one class, the available seats out-numbered the applicants with Native Hawaiian ancestry. See Timothy Hurley & Walker Wright, Kamehameha Schools admits non-Hawaiian, Honolulu Advertiser, July 12, 2002.
. According to the record, as we have noted, the Kamehameha Schools currently receive no money from Congress.
Concurrence Opinion
join, concurring:
I fully concur with Judge Graber’s majority opinion. However, I write separately because there is an easier and narrower ground for upholding Kamehameha Schools’ admissions policy.
A narrower ground for sustaining Kamehameha Schools’ admissions policy is that “Native Hawaiian” is not merely a racial classification. It is also a political classification. I would divide the question in this case into two sub-questions. First, can Congress constitutionally provide special benefits, including educational benefits, to descendants of Native Hawaiians because “Native Hawaiian” is a political classification? Second, if the answer to this question is yes, has Congress done so in
I. Constitutionality of Preference for Native Hawaiians
Because of their history, ably recounted in the majority opinion, Native Hawaiians constitute a unique population that has a “special trust relationship” with the United States. Congress has repeatedly “affirmed,” “acknowledged,” “reaffirmed,” and “recognized” that relationship. See
Congress has stated in support of such statutes that “the political status of Native Hawaiians is comparable to that of American Indians and Alaska Natives,”
In Morton v. Mancari,
The special relationship doctrine is based on an acknowledgment that the United States “ ‘overcame the Indians and took possession of their lands, sometimes by force, leaving them an uneducated, helpless and dependent people.’” Id. at 552,
In other contexts, the Supreme Court has not insisted on continuous tribal membership, or tribal membership at all, as a justification for special treatment of Indians. In United States v. John,
For its part, Congress has repeatedly provided special treatment, including distribution of funds, based on broad definitions of the terms “Indian,” “native,” “Native American,” and “tribal organization” that encompass Indians who are not members of federally recognized tribes. See, e.g.,
We observe “the time-honored presumption” that the passage of the many federal statutes benefitting Native Hawaiians, Alaska Natives, and American Indians “is a ‘constitutional exercise of legislative power.’” Reno v. Condon,
I recognize that the Court has struck down a statute granting preferential voting rights to Native Hawaiians, but voting rights are sui generis. In Rice v. Cayetano,
The Court in Rice was careful to confine its analysis to voting rights under the Fifteenth Amendment. It cautioned that 19094 “[t]he validity of the voting restriction is the only question before us.” Id. at 521,
Unlike Rice, the case before us does not involve preferential voting rights subject to challenge under the Fifteenth Amendment. Rather, it involves the preferential provision of educational benefits. To the extent that the federal Constitution is implicated at all, the relevant text is the Equal Protection Clause of the Fourteenth Amendment. The Court in Rice never questioned the validity of the special relationship doctrine under the Fourteenth Amendment, and never even hinted that its Fifteenth Amendment analysis would apply to the many benefit programs enacted by Congress for Native Hawaiians, Alaska Natives, and American Indians.
I therefore conclude that Congress may, if it wishes, permit Kamehameha Schools to give preferential admissions treatment to Native Hawaiians. The remaining question is whether Congress has in fact done so under
II.
When Congress enacted
For many years after the Hawaiian Kingdom was over-thrown in 1893, and even after the State of Hawaii was admitted to the Union in 1959,
In 1991, Congress revised and reenacted
When Congress reenacted
It was not until the 1991 amendments to
The Mancari plaintiffs argued that
since the [Equal Employment Opportunity Act of 1972] proscribed racial discrimination in Government employment, the Act necessarily, albeit sub silentio, repealed the provision of the [Indian Reorganization Act of 1934] that called for the preference in the [Bureau of Indian Affairs] of one racial group, Indians, over non-Indians.
Mancari,
Nevertheless, the Supreme Court unanimously and emphatically rejected the argument for sub silentio repeal by the 1972 Amendment:
It toould be anomalous to conclude that Congress intended to eliminate the longstanding statutory preferences in BIA employment, as being racially discriminatory, at the very same time it was reaffirming the right of tribal and reservation-related private employers to provide Indian preference. Appellees’ assertion that Congress implicitly repealed the preference as racially discriminatory, while retaining the 1964 preferences, attributes to Congress irrationality and arbitrariness, an attribution we do not share.
... Three months after Congress passed the 1972 amendments, it enacted two neiv Indian preference latos.... It is improbable, to say the least, that the same Congress which affirmatively approved and enacted these additional and similar Indian preferences was, at the same time, condemning the BIA preference as racially discriminatory. In the total absence of any manifestation of supportive intent, we are loathe to imply this improbable result.
This is a prototypical case where an adjudication of repeal by implication is not appropriate. The preference is a longstanding, important component of the Government’s Indian program. The anti-discrimination provision, aimed at alleviating minority discrimination in employment, obviously is designed to deal with an entirely different and, indeed, opposite problem. Any perceived conflict is thus more apparent than real. ... A provision aimed at furthering Indian self-government by according an employment preference within the BIA for qualified members of the governed group can readily co-exist with a general rule prohibiting employment discrimination on the basis of race. Any other conclusion can be reached only by formalistic reasoning that ignores both the history and purposes of the preference and the unique legal relationship be-tiveen the Federal Government and tribal Indians.
Furthermore, the Indian preference statute is a specific provision applying to a very specific situation. The 1972 Act, on the other hand, is of general application. Where there is no clear intention otherwise, a specific statute will not becontrolled or nullified by a general one, regardless of the priority of enactment.
The courts are not at liberty to pick and choose among congressional enactments, and when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.
Id. at 548-51,
The principal dissent insists that the failure of
Congress’ provision of educational benefits to Native Hawaiians continues to this day. Congress repealed the Native Hawaiian provisions of the Hawkins-Stafford Amendments only to replace them with the more comprehensive Native Hawaiian Education Act (“NHEA”), Pub.L. No. 103— 382, §§ 9201 et seq., 108 Stat. 3794 (1994) (formerly codified at
The NHEA continues to allocate money to private non-profit organizations to provide programs for the exclusive benefit of Native Hawaiians. See
Through the NHEA and the myriad other federal statutes that confer benefits on Native Hawaiians, Congress has made manifest its intent to apply some form of the special relationship doctrine to Native Hawaiians. The well established general rule is that less — not more — demanding scrutiny applies to private discrimination than to government-sponsored discrimination. It would be deeply ironic for us to hold that
Conclusion
Congress has invariably treated “Native Hawaiian” as a political classification for
. The 1866 statute used slightly different language, but to the same effect: the statute applied to "all persons born in the United States and not subject to any foreign power, excluding Indians not taxed.” 14 Stat. 27.
. See, e.g., Native American Programs Act Amendments of 1987, Pub.L. No. 100-175, § 506, 101 Stat. 973, 976-78 (establishing "Revolving Loan Fund for Native Hawaiians” to promote economic and social self-sufficiency of Native Hawaiians); Jacob K. Javits Gifted and Talented Students Education Act of 1988, Pub.L. No. 100-297, tit. I, § 4104, 102 Stat. 237, 238 (authorizing grants or con
Dissenting Opinion
join in Parts II and III, dissenting:
This case involves the application of one of the Republic’s oldest and most enduring civil rights statutes,
Despite that well-established principle, the majority today stands Runyon on its head and holds that a private school may deny admission to a prospective student solely because he or she is not a member of a particular race. Though I agree with the majority that Native Hawaiians suffer from severe socio-economic disadvantages and believe that Kamehameha Schools (“Kamehameha”) should be commended for attempting to remedy those hardships, I cannot concur with the majority’s dramatic departure from Runyon.
In my view, the majority has made a number of crucial mistakes. Thus, as set out below in Part I, even though I agree with the majority that Title VII and not strict scrutiny provides the standard of review in this case, I disagree with the majority’s sweeping modification of the Title VII standard. Moreover, even if I agreed with the majority’s departure from that standard, I could not subscribe to the majority’s decision to sanction an absolute racial bar. Likewise, as set out in Part II, I cannot accept as a matter of faithful statutory construction the majority’s view that Congress implicitly exempted racial preferences for Native Hawaiians from
As much as I may believe that Kamehameha should be applauded for providing its students an exceptional education and for attempting to remedy the socioeconomic disadvantages facing Native Hawaiians, I cannot turn a blind eye to a classic violation of
I. REVIEW OF
The John Doe plaintiff contends that Kamehameha’s admissions policy — which bars the admission of any non-Native Hawaiian student, see Maj. Op. at 844 & n. 10 — violates
To create that new standard, the majority dismisses Runyon as irrelevant because “[t]he program at issue in Runyon would certainly fail” the majority’s analysis. Id. In so holding, however, the majority ignores the critical fact that the admissions programs involved in Runyon — like Kamehameha’s — violated
Putting those concerns aside for the moment, and turning to the next step in the majority’s analysis, the majority holds that Title VII scrutiny, and not strict scrutiny, applies to alleged
Applying the Title VII approach, the majority also correctly holds that the burden shifting analysis of McDonnell Douglas Corp. v. Green,
As Kamehameha concedes that it employs a preference that favors Native Hawaiian applicants, plaintiff has met his burden to show a prima facie case of racial discrimination. Maj. Op. at 839-40. Kamehameha argues, however, that its conduct is permissible because its admissions policy was executed pursuant to an affirmative action plan, thereby rebutting the presumption of illegality. Thus, as the majority concludes, this case hinges entirely on the third step of the McDonnell Douglas analysis — i.e., whether Kamehameha’s plan is invalid. See Maj. Op. at 839-40.
It is at this point, when the majority entirely reworks the standards for determining whether an affirmative action plan is valid, that the majority’s analysis goes astray. Under United Steelworkers of America v. Weber,
Reasoning that primary and secondary educational contracts are different, however, the majority alters all three factors and holds that a private school may discriminate on the basis of race whenever: (1) “significant imbalances in educational achievement [in the community as a whole] presently affect the target population”; (2) the discriminatory policy does not “unnecessarily trammel[] the rights of students in the non-preferred” racial group as a whole “or create an absolute bar to their advancement”; and (3) “the [discriminatory] policy [does] no more than is necessary to correct the imbalance ... identified at the first step.” Maj. Op. at 842.
Though I recognize that the Title VII standard was forged in the employment discrimination context and that some modification may be necessary to adapt it to other settings, I disagree, as explained below, with the majority’s general justification for departing from precedent and with each specific alteration it makes to
A. The Majority’s Modification of the Title VII Standard
The majority creates a standard that, by its own terms, applies only to primary and secondary schools. It grounds that decision entirely on its finding that the ordinary Title VII standard, which was developed in the employment setting, cannot apply to primary and secondary educational contracts. But, there is absolutely nothing in
In fact, the Supreme Court has rejected that very argument. For instance, far from finding that a school’s “much broader mission” or external focus made a difference,, Runyon — which involved a racially exclusive primary and secondary private school admissions policy — reasoned:
It is apparent that the racial exclusion practiced by the Fairfax-Brewster School and Bobbe’s Private School amounts to a classic violation of§ 1981 . The parents ... sought to enter into contractual relationships with [the schools] for educational services.... Under those contractual relationships, the schools would have received payments for services rendered, and the prospective students would have received instruction in return for those payments.... [Njeither school offered services on equal basis to white and nonwhite students.... [Plaintiffs] were denied admission to the schools because of their race. The ... conclusion that§ 1981 was thereby violated follows inexorably from the language of that statute, as construed in [prior Supreme Court case law],
Similarly, the majority’s rationale does not find any support in Title VII jurisprudence. Indeed, under Title VII the Supreme Court has uniformly measured affirmative action programs against the standard established in Weber as explained above. For example, Johnson employed Weber to determine the validity of a county transportation agency’s affirmative action program under Title VII.
The majority fails to explain why we must create a special standard for primary and secondary educational contract cases.
1. Manifest Imbalance Reflecting Traditional Segregation
The majority has substantially modified the Court’s first factor. Under the first Weber and Johnson factor, the Supreme Court has required that a Title VII affirmative action program be “justified by the existence of a manifest imbalance that reflected underrepresentation of [the favored group] in traditionally segregated job categories.” Johnson,
Likewise, we have consistently applied the Supreme Court’s holding that “[i]n determining whether an imbalance exists that would justify taking ... race into account, a comparison of the percentage of minorities ... in the employer’s workforce with the percentage in the area labor market ... is appropriate.... ” Johnson,
In other words, until today, two findings were required to satisfy this first factor: (1) the present existence of a manifest imbalance in a particular job category in the employer’s workforce; and (2) that this imbalance stems from historical segregation in that job category. Those separate requirements guaranteed two critical things: First, with respect to the scope of the program, they guaranteed that there was a particular goal in sight — namely, representation of the historically disadvantaged group in the employer’s workforce in proportion to its representation in the relevant labor pool. Johnson,
In contrast to Weber and Johnson, the majority’s test merely requires a private school to “demonstrate that specific, significant imbalances in educational achievement presently affect the target population” in the relevant community.
2. Unnecessary Trammeling the Rights of the Non-Preferred Group
The majority’s alteration of Weber and Johnson’s second factor is similarly pro
First, under the majority’s test, whether a discriminatory policy creates an absolute bar or unnecessarily trammels the rights of the disfavored race is determined by reference to “the respective rights of members of the non-preferred group” “viewed in the relevant community, rather than in a single school.” Maj. Op. at 842. Thus, under the majority’s new standard, we must not consider the rights of a non-preferred individual at the institution in question but in the larger context of his ability to access quality education. See id. at 842. Again, as indicated above, that standard conflicts with the established principle that we lоok at the particular institution adopting the affirmative action program to determine whether the rights of a member of the disfavored group have been trammeled. See, e.g., Johnson,
Indeed, it is contrary to the spirit — and, I had always assumed, based on the cases cited above, the letter — of the civil rights laws to explain to a worker who has been discriminated against that the situation is not so bad because there are lots of other jobs available. Yet that is the essence of the majority’s new standard: If the majority thinks there are adequate educational alternatives for the disfavored race, then the fact that the institution in question has discriminated against that race is of no concern. “Context” alone cannot explain why, under the majority’s view, racial discrimination in some communities would be wrong and actionable, but in other communities, it would be acceptable and praiseworthy. I cannot join the majority’s analysis.
The majority makes a second important modification and announces that in determining whether an affirmative action plan trammels rights or creates an absolute bar, we do not look at whether an individual has been denied an opportunity, but whether the individual’s racial group “within the community as a whole” has been denied an opportunity. See Maj. Op. at 844-45 (holding that because “nothing in the record suggests that educational opportunities in Hawaii are deficient for students, like Plaintiff, who lack any native Hawaiian ancestry,” Kamehameha’s admissions “policy neither unnecessarily trammels the rights of non-Native Hawaiians nor absolutely bars their advancement in the relevant community.” (emphasis added)); id. at 844-45 (holding that because “[non-Native Hawaiian] students denied admission by Kamehameha Schools[,
This bedrock principle has its origins in the history of the Fourteenth Amendment, from which
This principle is manifest in one of the cornerstones of our modern civil rights laws, Shelley v. Kraemer,
As there is no reason to depart from the plain meaning of
3. Attaining a Balance
Finally, the majority reworks the third Weber and Johnson factor, which requires that an affirmative action plan be “intended to attain a balanced work force, not to maintain one.” Johnson,
Under the third factor, the majority properly recognizes that an affirmative action “admissions policy must do no more than is necessary to correct” a racial imbalance and must be “temporary.” Maj. Op. at 842; accord id. at 845. Proclaiming that “[a]n explicit or immediately foreseeable end date has never been required for an affirmative action plan to be valid,” Maj. Op. at 846, however, the majority completely ignores Johnson’s suggestion that even a partial preference should be checked by an explicit sunset provision, by holding that Kamehameha’s absolute preference need not contain a sunset provision at all, see Maj. Op. at 845 (holding that Kamehameha may use race as an exclusive admissions factor “so long as is necessary to remedy the current educational effects of past, private, and government-sponsored discrimination and of social and economic deprivation”); id. at 843 (“The goal [of Kamehameha’s admissions policy] is to bring Native Hawaiian students into educational parity with other ethnic groups in Hawaii.”); see also id. at 845 (noting that in the last “118 years, the Schools’ admissions policy ... has remained constant”). The majority thus not only rejects Johnson but also the Court’s admonishment that “race-conscious admissions policies ... however compelling their goals, are potentially so dangerous that they ... must have reasonable durational limits.” Grutter,
Far from placing a durational limit on Kamehameha’s use of race as a dispositive admissions factor, the majority actually sanctions the use of race in perpetuity. For example, since few, if any, private parties will be able to correct “significant imbalances in educational achievement” in the entire “target population” through their own individual action, the majority’s standard effectively issues private schools a license to engage in perpetual racial discrimination. Because such a limitless use of race in determining admissions contravenes precedent, the majority’s retooling of Johnson and Weber’s third factor is also unsound.
B. Applying the Majority’s Standard to Kamehameha
Even if I were to agree with the majority’s modifications to the Supreme Court’s Title VII standard, I could not agree with its application of that standard in this case.
1. A Manifest Imbalance Presently Affecting the Target Population
Under the majority’s modified first factor, “to justify a remedial racial preference, a private school must demonstrate that specific, significant imbalances in educational achievement presently affect the
2. Unnecessarily Trammel the Rights of the Non-Preferred Racial Group
Under the majority’s second prong, “we ask whether, within the relevant community of Hawaii, the Kamehameha Schools’ admissions policy unnecessarily trammels the rights of the non-preferred class, that is, students with no Hawaiian ancestry or creates an absolute bar to their advancement.” Maj. Op. at 844. The majority holds that Kamehameha does not run afoul of this prong because: (1) “[t]he history of Native Hawaiians and of Kamehameha Schools has certain unique features that Congress has acknowledged”; (2) “nothing in the record suggests that educational opportunities in Hawaii are deficient for [non-Native Hawaiian] students”; (3) nonNative Hawaiians have no “legitimate, firmly rooted expectation of admission to the Schools”; and (4) “Kamehameha allows all students to apply for admission,” though “once the applications are received, the Schools consider the ethnic background of the students and admit qualified children with Native Hawaiian ancestry before admitting children with no such ancestry.” Maj. Op. at 844-45. None of these explanations is sufficient to justify Kamehameha’s admissions policy even under the revised standard.
For example, the majority’s first finding is irrelevant. The mere fact that “Congress admitted that the United States was responsible, in part, for the overthrow of the Hawaiian monаrchy” and that Congress has recognized “the challenge faced by Native Hawaiians in the educational arena” and has urged Kamehameha to “redouble its efforts to educate Native Hawaiian children,” Maj. Op. at 845 (quoting H.R. Rep. No. 107-63(1), at 333 (2001)), says absolutely nothing about whether Kamehameha’s policy unnecessarily trammels rights or creates an absolute bar. Moreover, the statements the majority relies on also say nothing about whether Congress has ever been aware of Kamehameha’s no non-Native Hawaiians policy, let alone endorsed it. Indeed, it is unreasonable to conclude, as the majority does, that by briefly endorsing the schools’ larger educational goals in a committee report that does not even accompany a piece of legislation, Congress intended to sanction the requirements of an otherwise infirm affirmative action plan.
I find the majority’s next finding — that because for the last “118 years, the Schools’ admissions policy ... has remained constant,” non-Native Hawaiians have no “legitimate, firmly rooted expectation of admission to the Schools,” Maj. Op. at 845 (citation omitted) — to be unavailing.
Lastly, the majority’s final justification for holding that Kamehameha’s admissions policy does not unnecessarily trammel rights or create an absolute bar is absolutely wrong. The majority begins by noting that “[t]he Kamehameha Schools allow all students to apply for admission. But once the applications are received, the
Proceeding as if its statement that Kamehameha generally does not admit non-Native Hawaiians proves that Kamehameha’s policy is not an absolute bar, the majority entirely neglects to mention the circumstances surrounding the admission of that lone non-Native Hawaiian student. Because those circumstances speak volumes about Kamehameha’s policy, however, they deserve an extended discussion.
In 1962, Kamehameha reversed its previous policy of allowing the children of faculty members to attend. Thereafter, the school did not admit a single nonNative Hawaiian student until 2002, when it admitted one non-Native Hawaiian student to its Maui campus. In response to a firestorm of protests following that decision, Kamehameha’s trustees repeatedly apologized to the Native Hawaiian community, stated that the “situation” had “brought the problems with the admissions process into sharp focus,” Members of Trs. of Kamehameha Sch., Kamehameha’s Policy Will Remain, Honolulu Advertiser, July 27, 2002, and acknowledged that they had “screwed up major,” Rick Daysog, Angry Ohana Grills Trustees, Honolulu Star-Bulletin, July 16, 2002. “As a result,” the trustees “pledged to ... carefully review [Kamehameha’s] admissions process,” Members of Bd. of Trs. of Kamehameha Sch., supra, presumably to prevent such a “situation” from happening again.
Far from an empty promise, Kamehameha promptly made several significant changes to its admission practices. First, it created the Ho’oulu Hawaiian Data Center to develop a Native Hawaiian registry and certify the Hawaiian ancestry of the schools’ applicants; to be considered under the school’s preference policy, an applicant’s ancestry must now be verified by the data center.
And fifth, Kamehameha ceased using a minimum scoring threshold to evaluate applicants. Since 1989, Kamehameha had required applicants to achieve a minimum composite score on an admissions test in order to be deemed “qualified applicants.” Vicki Viotti, Kamehameha Standards Debated, Honolulu Advertiser, Nov. 17, 2003, at IB. Though that test was hardly an impediment to the school’s preference policy — as 2002 marked the first time in four decades that the school had space to admit a non-Native Hawaiian student — it did at least provide an objective way to measure the number of qualified Native Hawaiian applicants. By eliminating that test, however, Kamehameha did away with that objective measure, while leaving in place “Kamehameha Schools’ admissions policy ... to give preference to applicants of Hawaiian ancestry to the extent permitted by law.” Kamehameha Schools Admissions Office, Main Page, http:/Avww. ksbe.edu/ admissions/mainpage.html (last visited Sep. 7, 2006). Thus, because that policy provides no objective guidance whatsoever, Kamehameha’s decision leaves it free to restrict admission solely to Native Hawaiian children, and as the trustees promised, Kamehameha need never admit a non-Native Hawaiian applicant again. This description is not meant to criticize Kamehameha’s noble mission to help Native Hawaiians receive a quality education, but only to demonstrate that its current policy — contrary to the majority’s creative characterization — does pose an absolute bar to the admittance of any non-Native Hawaiian students. And, such bar violates
3. Do No More Than Is Necessary to Correct a Manifest Imbalance
Similarly, I must dissent from the majority’s analysis under its third prong. Under that prong, as modified by the majority, Kamehameha’s “admissions policy must do no more than is necessary to correct the manifest imbalance suffered by students of Native Hawaiian ancestry.” Maj. Op. at 845. To hold that Kamehameha’s admissions policy survives this factor, the majority asserts that Kamehameha’s policy is both flexible and limited. Id. at 845-46. As for the former, the majority finds that Kamehameha’s admissions policy “does not do more than is necessary” because that “policy is not fixed but changes as the capacity of the Schools’ programs increases and as the well-being of the Native Hawaiian community rises.” Maj. Op. at 845. The majority fails to provide any support for that conclusion, and that lack of support is far from surprising given that, as demonstrated above, Kamehameha has only made its race based admissions program more rigid, see supra at pp. 870-71.
The majority also finds that Kamehameha’s admissions policy is “limited in duration” by the fact that “if qualified students with Native Hawaiian ancestry do not apply to the School in sufficient numbers to fill the spots available, as happened in one recent year, the Schools’ policy is to open admissions to any qualified candidate” and
As Kamehameha’s own trustees put it, “[Our policy] must remain [in place] until Hawaiians are leading in scholastic achievement, until they are underrepresented in prisons and homeless shelters, until their well-being is restored.” Trs. of Kamehameha Sch., Kamehameha Schools’ Policy Advocates Social Justice, Honolulu Advertiser, Aug. 24, 2003. And, according to its website, “Kamehameha Schools’ mission is to fulfill Pauahi’s desire to create educational opportunities in perpetuity to improve the capability and well-being of people of Hawaiian ancestry.” See Kamehameha Schools Admissions Office, Main Page, http://www.ksbe.edu/admissions/ mainpage.html (last visited Sep. 7, 2006). Because such a perpetual use of race in admissions has no limit, I cannot join the majority in holding that Kamehameha’s admissions policy does no more than is necessary and therefore survives the modified third factor.
* * * % $
The Supreme Court has long warned that “[classifications of [persons] solely on the basis of race ... threaten to stigmatize individuals by reason of their membership in a racial group and to incite racial hostility.” Shaw v. Reno,
II. CONGRESSIONAL EXEMPTION OF KAMEHAMEHA FROM
As an additional justification for its decision, the majority asserts that Kamehameha’s policy does not violate
Each of the majority’s premises is either demonstrably wrong or utterly irrelevant. First, the majority’s claim that “Congress could not have had any conscious intention as to how [
Hawaii and its citizens have been subject to
Second, building from its first faulty premise, the majority insists that
In 1991, Congress amended
Third, the majority points to a variety of other statutes that Congress passed be
The scope of those enactments further underscores the fact that they could not have created a Native Hawaiian exemption from
Judge Fletcher goes a step farther than the majority, arguing that the Hawkins-Stafford Amendments and the Public Health Service Act “specifically directed Kamehameha Schools to do precisely what plaintiffs in this case say is forbidden by
Additionally, the majority points to a House committee report that “favorably mentioned the Bishоp Trust and exhorted the Schools to ‘redouble [their] efforts to provide for Native Hawaiians.’ ” Maj. Op. at 849 (quoting H.R. Rep. No. 107-63(1), at 333). A committee report, however, says nothing about how Congress as a whole views Kamehameha’s admission policy. This particular report is of no legislative value whatsoever because it does not even accompany an act; in other words, the committee’s resolution does not even aspire to be legislative history. Furthermore, a committee’s mere exhortation that Kamehameha should “redouble [its] efforts to provide for Native Hawaiians,” id., does not, as the majority’s reasoning would have it, equal legislation, duly enacted, that “Kamehameha may continue to provide for Native Hawaiians, in violation of existing civil rights laws, if necessary.” In fact, there is absolutely no evidence that either house of Congress, or even any subset of its membership, knew about — let alone approved of — Kamehameha’s absolute ban on non-Native Hawaiian students. Thus, the Hawkins-Stafford Amendments and the House committee report do not operate as some kind of estoppel against applying generally applicable civil rights laws to Native Hawaiians generally or to Kamehameha in particular.
Finally, from this thin record, the majority concludes that “the most plausible” way to harmonize these acts with the “reenactment” of
Unfortunately, the majority’s reasoning reaches far beyond Kamehameha, and in finding that Native Hawaiian preferences are exempt from
To my mind, the disparate statutes favoring Native Hawaiians that the majority relies on demonstrate a different point altogether: That when Congress wishes to give Native Hawaiians special treatment, it knows how to do so — and it is not shy about it. Cf. Malabed v. N. Slope Borough,
If Congress wishes to exempt preferences for Native Hawaiians from
III. NATIVE HAWAIIANS, MAN-CARI, AND THE SPECIAL RELATIONSHIP DOCTRINE
Judge Fletcher raises an interesting variation on the last argument. Like the majority, the concurrence concludes that racial preferences on behalf of Native Hawaiians are exempt from
To establish his beginning premises, Judge Fletcher must rely on Morton v. Mancari,
Before discussing the merits of the concurrence’s reasoning, I note that Kamehameha did not make this argument on appeal, and it was not briefed by either party. Kamehameha did argue, as the majority concludes, that preferences in favor of Native Hawaiians are exempt from
Nonetheless, turning to the merits, Judge Fletcher’s argument puts more weight on Mancari than it can bear. As I explain in greater detail below, the exception in Mancari is an exceedingly narrow one, limited to preferences that are political not racial. Second, Mancari’s special relationship works only in those cases where Congress has formally recognized the sovereignty of Native American tribes. Despite opportunity to do so, Congress has never formally recognized the sovereignty of Native Hawaiians. Third, even if Congress had recognized Native Hawaiians as a sovereign body, the special relationship doctrine applies only to preferences by the federal government or by the tribes themselves. It does not apply to private parties discriminating on the basis of tribal status; indeed, we have been quite clear that such private racial discrimination remains illegal.
First, Judge Fletcher agrees with the majority that “ ‘Native Hawaiians’ ... is a racial classification.” Conc. Op. at 850; see Maj. Op. at 837 n. 9. But Judge Fletcher goes one step further, suggesting that “ ‘Native Hawaiians’ is not merely a racial classification,” but “also a political classification.” Id. at 850-51. If Judge Fletcher is correct, this case, from the outset, does not come within the special relationship doctrine of Morton v. Man-cari because Mancari denied the very premise from which the concurring opinion proceeds. For instance, Mancari held that the BIA’s Native American hiring preference “does not constitute ‘racial discrimination.’ ”
The preference, as applied, is granted to Indians not as a discrete racial group, but, rather, as members of quasi-sovereign tribal entities whose lives and activities are governed by the BIA in a unique fashion. In the sense that there is no other group of people favored in this manner, the legal status of the BIA is truly sui generis.
The preference is not directed towards a ‘racial’ group consisting of ‘Indians’; instead, it applies only to members of ‘federally recognized tribes.’ This operates to exclude many individuals who are racially to be classified as ‘Indians.’ Inthis sense, the preference is political rather than racial in nature.
Id. at 553 n. 24,
Here, Judge Fletcher agrees that, whatever else Kamehameha’s admissions policy may be, it is a racial classification. This fact places Kamehameha’s policy outside the scope of Mancari’s holding. The distinction is critical, because if a preference for Native Hawaiians were only political and not racial, then
Further, Mancari was premised on actual federal recognition of Native American tribes. See, e.g.,
Native Hawaiians have never been accorded formal recognition as a Native American tribe,
We cannot usurp Congress’s power to grant or not grant formal recognition to Native Hawaiians by simply declaring that the “comparable” status of Native Hawaiians,
Finally, even if Congress had formally recognized Native Hawaiians, Mancan’s special status doctrine would still not benefit Kamehameha because that doctrine does not apply to private parties. Man-cari approved a Native American hiring
Judge Fletcher’s concurrence misses this point entirely when it asserts that “Congress may, if it wishes, permit Kamehameha Schools to give preferential admission treatment to Native Hawaiians.” Cone. Op. at 853.
We have even rejected attempts to extend Mancari’s exception to other governmental entities. In Malabed v. North Slope Borough,
Mancari may not even extend to Native American preferences in hiring by other federal agencies. The Court’s holding in Mancari relied on the fact that “the preference applies only to employment in the Indian service,” an agency that the Court described as “sui generis.”
In sum, Mancari does not support Judge Fletcher’s claim that Kamehameha’s admissions policy is justified because it is both a racial and political classification. Judge Fletcher’s rationale would render Mancari unrecognizable. Indeed, as with the exclusive Native Hawaiian voting scheme rejected by the Supreme Court in Rice, if Kamehameha’s racially exclusive admissions policy “were to be sustained under Mancari we would be required to accept some beginning premises not yet established in our case law.... These propositions would raise questions of con
IV. CONCLUSION
As noble as Kamehameha’s goals may be, I cannot reconcile its admissions preference — a racially exclusive policy that operates as a complete bar to all applicants who are not of the preferred race — with the Supreme Court’s requirements for a valid affirmative action plan. I cannot reconcile Kamehameha’s admissions policy with the plain commands of
I respectfully dissent.
. Rudebusch did not include the requirement that the "manifest imbalance” be present in a job category that was traditionally segregated in its statement of the Title VII test. See
. We have considered the validity of affirmative action plans in a wide variety of contexts, and we have always applied the same Title VII standard. See, e.g., Officers for Justice v. Civil Serv. Comm’n,
. The majority's reference to the First Amendment roots of "educational autonomy,” see Maj. Op. at 841, is misleading since the Supreme Court has consistently rejected First Amendment interests as a justification for racial discrimination. See, e.g., Runyon,
. It is not entirely clear what constitutes the relevant community under the majority's new test, but it appears the majority means the state where the affirmative action program has been adopted. See Maj. Op. at 842. For instance, in announcing its new test, the majority maintains that "the relevant population is the community as a whole,” id., but when the majority applies that test, it appears that, "[t]he relevant community in this case is the state of Hawaii,” id. at 843.
. Whereas the majority justifies neither purge, the second modification is particularly puzzling given the majority's repeated suggestion that history is of particular significance in this case. See, e.g., id. at 830-31 & n. 2 (providing detailed information on Hawaiian history to "set[] the stage for our more particular consideration of the educational status of Native Hawaiian children”); id. at 839 ("The question remains how best to adapt the Title VII employment framework to an educational context аnd to the unique historical circumstances of this case.” (emphasis added)).
. Recognizing that the majority's new standard conflicts with
. The majority's reasoning cannot be limited to the
. Indeed, considered in total, the paragraph that the majority relies on provides remarkably little support for its position:
The Committee has also eliminated [certain of] the Native Hawaiian specific programs formerly authorized.... The Committee's rationale for repealing these programs is the fact that similar assistance is available to all students, including Native Hawaiians, under [other federal] programs.... Unlike other indigenous populations, Native Hawaiians have a trust, established by the last Hawaiian princess, which exists solely to educate Native Hawaiian children. The Bishop Trust is currently one of the largest charitable trusts in the world, valued inexcess of $ 10 billion, and holds approximately 8 percent of all land in the State of Hawaii as well as a 10 percent share of Goldman Sachs. The Committee urges the Trust to redouble its efforts to educate Native Hawaiian children. The Committee also believes that these children should be given the same opportunities afforded to all of our children under the programs authorized in this and other acts.
H.R. Rep. No. 107-63(1), at 333 (2001).
. Moreover, the majority ignores what Johnson actually said. The plaintiff in that case was eligible for promotion but he had to compete with seven other applicants who could have been promoted over him.
. I note that in 2003, Kamehameha admitted a student to its seventh grade class whose application identified his maternal grandfather as Native Hawaiian. One week before school was set to begin, Kamehameha learned that the student’s mother was adopted and probably lacked biological Hawaiian ancestry. Kamehameha immediately rescinded the student’s acceptance. Ultimately, Kamehameha settled the case and agreed to allow the student to complete his education at Kamehameha. See David Waite, Boy Sues Kamehameha, Honolulu Advertiser, Aug. 19, 2003, at IB; David Waite & Vicki Viotti, Kamehameha Settles Kaua'i Boy's Lawsuit, Honolulu Advertiser, Nov. 29, 2003, at 1A; see also Vicki Viotti & Mike Gordon, Kamehameha Settlement OK’d, Honolulu Advertiser, Dec. 5, 2003, at IB (stating that the district court indicated it believed that, legally, the boy was Native Hawaiian).
. Kamehameha’s flagship campus on O'ahu receives approximately ten applications for еvery available opening, so reducing its applicant pool did not present the danger that the school would not receive enough qualified Native Hawaiian applicants.
. Moreover, Kamehameha's own admissions policy may help perpetuate that policy indefinitely. Because Kamehameha bases its admissions decisions heavily on an applicant's prior academic performance it selects the highest-performing Native Hawaiian students from the public school population, and that necessarily depresses that population's average performance in public schools. See Vicki Viotti, Kamehameha Standards Debated, Honolulu Advertiser, Nov. 17, 2003, at IB. By continually passing over the lower performers, the Native Hawaiian population will likely continue to underperform in public schools relative to its peers. If “preference [may] be given ... for so long as is necessary to remedy the current educational effects," Maj Op. at 845, Kamehameha’s policy has no reasonable end in sight.
.
(a) Statement of equal rights
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
(b) “Make and enforce contracts” defined
For purposes of this section, the term "make and enforce contracts” includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.
(c) Protection against impairment
The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.
. Judge Fletcher argues that the 1991 amendments were critical because "[i]t was not until the 1991 amendments to
. Whether Congress appropriated money to Kamehameha has no bearing on whether it thought that Kamehameha was in compliance with a wholly unrelated statute. It is easy to generate examples which clearly illustrate this: Before 2003, professors at the University of Michigan received numerous federal grants from the National Institutes of Health and the National Science Foundation, but this did not indicate that either Congress or the President believed Michigan's admissions policy was constitutional; indeed, the Department of Justice filed amicus briefs in Gratz and Grutter arguing just the opposite. Similarly, no one would argue that Congress, by granting federal aid or favorable tax treatment to certain corporations (such as Texaco), intended to grant those corporations exemptions from federal antidiscrimination laws, cf. Smith v. Texaco, Inc., 281 F.3d 477 (5th Cir.2002). Nor would anyone argue that Congress, by allocating funds to state or local police departments, somehow evinces an intent to exempt such departments from the purview of
. It is also worth noting, once again, that the Hawkins-Stafford Amendments have been repealed.
. Judge Fletcher also argues that, ''[i]n order to hold for plaintiff in this case, we would have to conclude that, Congress intendеd [the 1991 amendments to
. The majority’s reliance on Runyon in this instance is misplaced. See Maj. Op. at 847 (“In Runyon, for instance, the Court relied on Congress’ enactment of the Civil Rights Act of 1964 and other civil rights legislation in concluding that Congress must have intended
. The majority's new statutory metaphysics raises far more questions than it answers: How many provisions favoring Native Hawaiians must Congress pass before we will imply an exemption to
There is no end to this game.
. In light of the narrowness of the Mancari exception, which I discuss below, it is easy to see why Kamehameha decided that it was better off using its scarce brief space and oral argument time to pursue other arguments.
. There is currently legislation in Congress— part of an ongoing effort — to extend formal recognition to Native Hawaiians. See S. 147, 109th Cong. (2005); H.R. 309, 109th Cong. (2005). Neither house has taken any action to date. Even if it were passed, however, there is cause to question whether such an act would be within Congress's constitutional power. See Rice,
. Judge Fletcher's concurrence cites two cases decided after Mancari which, he argues, eliminated the requirement for federal recognition: United States v. John,
. Judge Fletcher has it backwards. He cites the same body of laws — -the collection of different preferences for Native Hawaiians — as evidence that Congress both implicitly created a special relationship with Native Hawaiians and implicitly exempted them from
This makes a difference. The Tenth and Eleventh Circuits have held that Native American tribal entities are implicitly exempt from some suits under
Dissenting Opinion
join, dissenting:
This is altogether infelicitous.
On the one hand, the Kamehameha Schools is a well-recognized, widely-acclaimed private school, established before Hawaii became a state, whose primary mission has been to educate Native Hawaiian students in a culturally sensitive, challenging way. It receives no federal funds and does not operate for profit. Its purpose of providing meaningful access to educational opportunity is intuitively salutary. On the other hand, the admissions policy of the Kamehameha Schools prefers students of Native Hawaiian ancestry in such a way that, as a practical matter, nonNative Hawaiian students are precluded.
The question is whether Kamehameha’s admissions policy violates
We do not write on a clean slate, otherwise I would question how a statute that accords to all persons the same right to contract as is enjoyed by white citizens can mean the same right to contract as is enjoyed by Native Hawaiians. Yet it was held long ago that
This said, I am not persuaded that precedent allows the Kamehameha Schools to justify its preferential admissions policy on the footing that the policy redresses past societal discrimination against Native Hawaiians. The majority and dissenting opinions agree that we are guided by Title VII standards.
Obviously, the Kamehameha Schools itself has never discriminated against Native Hawaiians; it is dedicated to serving them. Thus, the articulated justification for its race-based admissions policy is to remedy external discrimination, not internal imbalance. Even if a private educational enterprise has more wiggle room in defining its core mission in a race-conscious way than a private employer, to legitimate a race-based policy solely on account of discrimination by others is to put no bounds on it at all. To do so would render meaningless the factors that influenced the Supreme Court in Weber to approve a voluntary, private, affirmative action plan.
As no other basis appears for affirming, I would reverse.
. See also Saint Francis College v. Al-Khazraji,
. Neither party discusses whether the right to "contract” is implicated by the kind of subsidized educational opportunity offered by the Kamehameha Schools. Cf. Runyon,
. The Court noted both points — that
. See Patterson v. McLean Credit Union,
Dissenting Opinion
join, dissenting:
I agree in large part with Judge Bybee’s dissent and join in Parts II and III. His analysis of the majority and concurring opinions is in my view correct.
I write separately because I do not agree with Judge Bybee’s view that Title VII provides the standard of review in this case. Title VII prohibits discrimination in employment.
The recent U.S. Supreme Court decisions about affirmative action, Grutter
We are not free to treat Hawaiian ancestry as a political rather than racial designation under Morton v. Mancari
This case is considerably simpler. In practice, Kamehameha Schools excludes students who do not have Native Hawaiian ancestry. The Kamehameha Schools are admirable in many ways, and there are good historical and social reasons why reasonable people might want to follow just such a policy. But we are not free to make a social judgment about what is best for Hawaiians. We are stuck with a case that is before us in our capacity as judges and we have to follow the law.
The law we have to follow was laid down by the Supreme Court in Runyon v. McCrary.
In my view, that is the end of the analysis. I might have preferred to avoid deciding this case, if some jurisdictional defect existed. But we do have jurisdiction. Employment law, Indian law, our admiration for Kamehameha Schools, and our sentiments about public policy are irrelevant.
I respectfully dissent.
. See
. Patterson v. McLean Credit Union,
. Grutter v. Bollinger,
. Gratz v. Bollinger,
.
. Rice v. Cayetano,
. See Rice v. Cayetano,
.
. Runyon v. McCrary,
. McDonald v. Santa Fe Trail Transp. Co.,
Dissenting Opinion
dissenting:
I join all three of my dissenting colleagues. Judges Rymer, Kleinfeld and Bybee have catalogued eloquently the many reasons why neither the majority nor the concurrence reflects what the law is, or should be, and there’s nothing I can add on that score.
I write only to point out that the issue we are called on to decide may be a problem of the schools’ own making. Runyon v. McCrary,
Being able to charge tuition is, of course, not inconsequential. For most private schools it is a make-or-break proposition. But it may not be so for the Kamehameha Schools, which were set up primarily as eleemosynary institutions. The tuition they charge reflects only a small fraction of their operating costs and, even then, most students pay a reduced tuition, or no tuition at all. See maj. op. at 831-32. The schools’ substantial endowment may enable them to continue operating without charging any tuition for a very long time— perhaps indefinitely.
Given the scores of pages we have written on both sides of this issue, it should be clear that the question is close and ours may not be the last word. Given the passions this case has aroused, see maj. op. at 835 n. 6, it’s worth noting that what’s really at stake may not be the operation of the Kamehameha Schools along their traditional (preferential) model, but merely a few million dollars a year the schools now get from their own students.