John DOE, a minor, by his mother and next friend, Jane Doe, Plaintiff-Appellant, and
Josephine Helelani Pauahi Rabago, Intervenor,
v.
KAMEHAMEHA SCHOOLS/BERNICE PAUAHI BISHOP ESTATE; Constance Lau, in her capacity as Trustee of the Kamehameha Schools/Bernice Pauahi Bishop Estate; Nainoa Thompson, in his capacity as Trustee of the Kamehameha Schools/Bernice Pauahi Bishop Estate; Diane J. Plotts, in her capacity as Trustee of the Kamehameha Schools/Bernice Pauahi Bishop Estate; Robert K.U. Kihune, in his capacity as Trustee of the Kamehameha Schools/Bernice Pauahi Bishop Estate; J. Douglas Ing, in his capacity as Trustee of the Kamehameha Schools/Bernice Pauahi Bishop Estate, Defendants-Appellees.
No. 04-15044.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted November 4, 2004.
Filed August 2, 2005.
COPYRIGHT MATERIAL OMITTED Eric Grant, Sacramento, CA, and John W. Goemans, Kamuela, Hawaii, for the plaintiff-appellant.
Kathleen M. Sullivan, Stanford, CA, and David Schulmeister, Cades Schutte, L.L.P., Honolulu, HI, for the defendants-appellees.
Patrick M.K. Richardson, McCracken, Byers & Haesloop, L.L.P., San Mateo, CA, for the amici curiae.
Appeal from the United States District Court, for the District of Hawaii, Alan C. Kay, District Judge, Presiding. D.C. No. CV-03-00316-ACK.
Before BEEZER, GRABER, and BYBEE, Circuit Judges.
BYBEE, Circuit Judge.
Since 1887, the Kamehameha Schools have operated as the charitable legacy of Princess Bernice Pauahi Bishop, the last direct descendant of King Kamehameha I. Private and non-sectarian, the Kamehameha Schools give preference to students who are of native Hawaiian ancestry. As a result of this policy, attendance at the Kamehameha Schools is effectively limited to those descended from the Hawaiian race. The issue considered here is a significant one in our statutory civil rights law: May a private, nonsectarian, commercially operated school, which receives no federal funds, purposefully exclude a student qualified for admission solely because he is not of pure or part aboriginal blood? The parties agree that this is a case of first impression in our circuit.
The plaintiff, John Doe, appeals the district court's grant of summary judgment in favor of defendants, the Kamehameha Schools and the Bernice Pauahi Bishop Estate and its individual trustees. He argues that he was denied entry to the Kamehameha Schools because of his race in violation of 42 U.S.C. § 1981, which forbids racial discrimination in the making and enforcement of contracts. For the following reasons, we agree with Doe and find that the Schools' admissions policy, which operates in practice as an absolute bar to admission for those of the non-preferred race, constitutes unlawful race discrimination in violation of § 1981. Accordingly, we reverse the district court's decision granting summary judgment to the Kamehameha Schools.
* The facts are not in dispute. The Kamehameha Schools comprises a system of private, nonsectarian schools which are dispersed among the Hawaiian Islands. See EEOC v. Kamehameha Schs./Bishop Estate,
The school system was founded in 1887 under a "charitable testamentary trust established by the last direct descendent of [Hawaii's] King Kamehameha I, Princess Bernice Pauahi Bishop." Burgert v. Lokelani Bernice Pauahi Bishop Trust,
Under the direction of the original trustees, chaired by Pauahi's husband, Charles Reed Bishop, both schools opened shortly after her death; the boys' school in the Fall of 1887 and the girls' in the Fall of 1894. The two schools were consolidated into one coeducational institution during the 1965-66 academic year. Currently, the Kamehameha Schools operate K-12 campuses on three separate islands, Kapalama (O'ahu), Pukalani (Maui), and Kea`au (Island of Hawai`i), enrolling more than 16,000 children annually. While the Schools subsidize much of the educational costs through funds held in trust, annual tuition remains at $1,784 for K-12th grade students, with approximately sixty-five percent of those enrolled receiving some form of financial aid.1
Pauahi's will contains several instructions pertaining to the administration of the Kamehameha Schools, none of which establish race as an admissions criteria. She directs that all students attending the Kamehameha Schools should be provided "first and chiefly a good education in the common English branches, and also instruction in morals and in such useful knowledge as may tend to make good and industrious men and women" and, in addition, that "the teachers of said schools shall forever be persons of the Protestant religion." Pauahi Bishop Will at 18-19. See also Kamehameha Schs./Bishop Estate,
Rather than institute race as an admissions prerequisite, Pauahi left to her Trustees the discretion "to regulate the admission of pupils" and "to make all such rules and regulations as they may deem necessary for the government" of the Kamehameha Schools. Pauahi Bishop Will at 18. The original trustees determined, however, that it was Pauahi's intent to prefer students of native Hawaiian ancestry. Specifically, the policy articulated by Charles Bishop was that "boys and girls of pure or part aboriginal blood . . . should have preference; that is[,] they should have the first right." Accordingly, the admissions process at Kamehameha currently proceeds in two phases: first, the applicant must demonstrate that he possesses the minimum qualifications necessary to meet the Schools' rigorous academic standards and, second, he must complete an "Ethnic Ancestry Survey" designed to verify his aboriginal blood. The Schools forthrightly admit that as long as there are qualified students who possess at least some native Hawaiian ancestry, they will be admitted before even the most qualified of those who lack aboriginal blood. It is this "Hawaiians first" admissions policy that motivates the instant controversy.
The plaintiff-appellant, John Doe, twice sought admission to the Kamehameha Schools and, having met the academic requirements for admission, was twice determined to be a "competitive applicant." After completing the Ethnic Ancestry Survey, in which he acknowledged that he possessed no aboriginal blood, his application was each time, as expected, denied. Still desiring to attend the Kamehameha Schools, Doe filed suit alleging that the Schools' admissions policy violates 42 U.S.C. § 1981, as amended by the Civil Rights Act of 1991, Pub.L. No. 102-166, 105 Stat. 1071. Concluding that the admissions policy constituted a valid race-conscious remedial affirmative action program, the district court entered summary judgment in favor of the Kamehameha Schools and the Bernice Pauahi Bishop Estate. Doe v. Kamehameha Schs./Bernice Pauahi Bishop Estate,
II
Before proceeding to analyze the question presented in this appeal, it is worth clarifying those which are not. Specifically, the Kamehameha Schools does not contest, and candidly admits, that its admissions process is based upon an express racial classification. Cf. Rice v. Cayetano,
Instead, we are confronted with a question of statutory origin: whether a private school, receiving no federal funds, may legitimately restrict admission to those of the native Hawaiian race. In other words, does the Kamehameha Schools' "Hawaiians first" admissions policy constitute invidious discrimination in violation of § 1981? The district court concluded that it does not. Because the issue is one of law, we review that decision de novo. See, e.g., Desir v. Ilchert,
III
Because the Kamehameha Schools admits that its admissions process is premised upon an express racial classification, we must first identify the standard of scrutiny that should be applied to proffered justifications for the racially discriminatory program. Two obvious contenders exist: strict scrutiny, such as that used to analyze challenges brought under the Fourteenth Amendment's Equal Protection Clause; or the more deferential form of scrutiny employed to resolve challenges brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (2004).
If strict scrutiny applies to the plaintiff's § 1981 challenge, the Schools must demonstrate that its admissions program is a "narrowly tailored measure[ ] that further[s] compelling governmental interests." Adarand Constructors, Inc. v. Pena,
The plaintiff-appellant argues that strict scrutiny is the only method of review sufficiently rigorous to enforce the substantive commands of § 1981. He urges that although the McDonnell Douglas burden-shifting framework and order of proof is frequently applied to § 1981 suits, Title VII's substantive legal standards are inapplicable in this context. See McDonnell Douglas Corp. v. Green,
* Section 1981 was originally enacted pursuant to section two of the Thirteenth Amendment as part of the Civil Rights Act of 1866. Act of Apr. 9, 1866, ch. 31, § 1, 14 Stat. 27. "The principal object of the legislation was to eradicate the Black Codes, laws enacted by Southern legislatures imposing a range of civil disabilities on freedmen." Gen. Bldg. Contractors Ass'n v. Pennsylvania,
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 involuntary 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 subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.
14 Stat. 27. In response to concerns over whether the Thirteenth Amendment authorized such broad legislation, it was later reenacted, after passage of the Fourteenth Amendment, in the Enforcement Act of 1870, sometimes referred to as the Civil Rights Act of 1870. Act of May 31, 1870, ch. 114, §§ 16, 18, 16 Stat. 144. See also Hurd v. Hodge,
And be it further enacted, That the act to protect all persons in the United States in their civil rights, and furnish the means of their vindication, passed April nine, eighteen hundred and sixty-five, is hereby reenacted; and sections sixteen and seventeen hereof shall be enforced according to the provisions of said act.
16 Stat. 141, 144 (1870). In addition, the new § 16 enacted much of the substance of the 1866 Act:
And be it 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. No tax or charge shall be imposed or enforced by any State upon any person immigrating thereto from a foreign country which is not equally imposed and enforced upon every person immigrating to such State from any other foreign country; and any law of any State in conflict with this provision is hereby declared null and void.
16 Stat. 141, 144 (1870). Section 16 differed from § 1 of the 1866 Act in at least two respects. First, where § 1 of the 1866 Act extended its guarantees to "citizens, of every race and color," § 16 of the 1870 Act protected "all persons." See United States v. Wong Kim Ark,
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.
42 U.S.C. § 1981(a).
Immediately following its passage, what is now § 1981 underwent nearly a century of desuetude during which debate regarding its scope and meaning was generally subsumed by the controversy surrounding the newly ratified Fourteenth Amendment's Equal Protection Clause. Partially owing to lingering uncertainty regarding the scope of the statute and the extent of Congress's authority to prohibit discrimination divorced from state action, § 1981 would not gain independent significance until the late 1960s. See, e.g., Hurd,
In Jones, the Court interpreted a companion statute, 42 U.S.C. § 1982, to encompass and prohibit racial discrimination in purely private transactions.
Runyon involved a challenge to two private schools' admissions programs which categorically excluded African-American students.
Thus, together, and more than one hundred years after § 1981's passage, Jones and Runyon finally dispensed with the state action requirement and held that the Civil Rights Act of 1866 reached purely private acts of discrimination by virtue of Congress's power under section two of the Thirteenth Amendment. How far the Thirteenth Amendment enforcement power and the doctrine of Runyon extended, however, remained open.
In the same term that it decided Runyon, the Court held that § 1981 prohibits racial discrimination in private employment against white persons as well as nonwhite persons. McDonald v. Santa Fe Trail Transp. Co.,
Unlikely as it might have appeared in 1866 that white citizens would encounter substantial racial discrimination of the sort proscribed under the Act, the statutory structure and legislative history persuade us that the 39th Congress was intent upon establishing in the federal law a broader principle than would have been necessary simply to meet the particular and immediate plight of the newly freed Negro slaves.
Id. at 295-96,
Without clarifying the source of Congress's power to enact a law that prohibited private race discrimination against whites, the Court in McDonald declined to restrict § 1981 to claims only by African-Americans. By avoiding the constitutional questions implicated by its broad reading of the statute, the Court left unresolved whether Congress's power to prohibit discrimination against white persons in private employment also emanated from § 1981's Thirteenth Amendment origins or whether it might be based on some other source; particularly, Congress's power under the Commerce Clause. Because the Santa Fe Trail Transportation Company was also subject to the requirements of Title VII — a statute whose capacity to regulate private conduct has been squarely located in the Commerce Clause, see 42 U.S.C. § 2000a; United Steelworkers of Am. v. Weber,
After Jones, Runyon and McDonald, the theoretical coverage of § 1981 appeared almost limitless. In the cases that followed, however, the Court endeavored to define the outer bounds of, as well as the burdens of proof applicable to, § 1981 race discrimination claims. In General Building Contractors, the Court emphasized the statute's Fourteenth Amendment origins to hold "that § 1981, like the Equal Protection Clause, can be violated only by purposeful discrimination."
Seven years later, the Court revisited the relationship between Title VII and § 1981. In Patterson v. McLean Credit Union, an African-American former employee of the McLean Credit Union brought a § 1981 suit against her employer, claiming racial harassment, failure to promote, and discharge on account of her race.
We have developed, in analogous areas of civil rights law, a carefully designed framework of proof to determine, in the context of disparate treatment, the ultimate issue whether the defendant intentionally discriminated against the plaintiff. See Texas Dept. of Community Affairs v. Burdine,
Id. at 186,
Under our well-established framework, the plaintiff has the initial burden of proving, by a preponderance of the evidence, a prima facie case of discrimination. . . . Once the plaintiff establishes a prima facie case, an inference of discrimination arises. In order to rebut this inference, the employer must present evidence that the plaintiff was rejected, or the other applicant was chosen, for a legitimate nondiscriminatory reason. . . . At this point, as our prior cases make clear, petitioner retains the final burden of persuading the jury of intentional discrimination. Although petitioner retains the ultimate burden of persuasion, our cases make clear that she must also have the opportunity to demonstrate that respondent's proffered reasons for its decision were not its true reasons.
Id. at 186-87,
We find this treatment particularly instructive because the Court's discussion appears to approve the use of, in the arena of § 1981 employment discrimination claims, not only the McDonnell Douglas order of proof, but also the nature of the proof that a private defendant in a Title VII action is required to adduce. See also Olmstead v. L.C. ex rel. Zimring,
The appellant aptly notes that use of the McDonnell Douglas burden-shifting framework does not necessarily, or even usually, signify that Title VII's substantive standard of scrutiny — in particular, the requirement that the defendant "present evidence that the plaintiff was rejected . . . for a legitimate nondiscriminatory reason" — also governs. Patterson,
In the Civil Rights Act of 1991, Congress amended the statute specifically to overrule Patterson's holding that § 1981 does not extend to postformation conduct. See 42 U.S.C. § 1981(b) (defining the phrase "make and enforce contracts" to include "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms and conditions of the contractual relationship"). The amended statute also clarified any residual doubt as to Congress's intention that § 1981 apply to private discrimination: "[t]he rights protected by this section are protected against impairment by nongovernmental discrimination." 42 U.S.C. § 1981(c). Importantly, nothing in the amended statute calls into question Patterson's discussion of the McDonnell Douglas proof structure or the nature of proof required in a § 1981 suit against a private entity.
Although the question has never been squarely presented,5 we read the Court's decisions both in Patterson and in General Building Contractors to indicate a willingness to look to the Fourteenth Amendment as a means for restricting liability to the types of racially motivated practices that led Congress to enact § 1981 — namely, intentional discrimination on the basis of race — but to look to Title VII jurisprudence to clarify the order and nature of the proof. See also City of Memphis,
Contrary to the appellant's argument, we do not find the Court's recent decisions in the "Michigan Affirmative Action Cases" relevant to our analysis. See Grutter,
Mindful of the inherent dangers of according undue weight to isolated statements from decisions not directly on point, we read these parenthetical notes simply as recognizing that both the Equal Protection Clause and § 1981 require a showing of intentional discrimination; they are co-extensive on this point. The Court's decision in Patterson incorporated this holding, seven years after General Building Contractors, when it instructed lower courts to apply the McDonnell Douglas framework to claims of racial discrimination in employment brought under § 1981, while noting that the "petitioner retains the final burden of persuading the jury of intentional discrimination." Patterson,
From the historical context in which it was passed as well as the cases interpreting its command, we are persuaded that § 1981, like Title VII, "was not intended to incorporate and particularize the commands of the Fifth and Fourteenth Amendments," Weber,
Although the instant case involves a § 1981 claim against a private school, we find no reason to depart from the standards outlined in Patterson and well-established in the cases interpreting Title VII. While the analysis necessarily must be modified in order to account for differences of context, the substantive guarantee should remain the same: the right to make and enforce contracts free from illegitimate and unlawful discrimination on the basis of race. Accordingly, we hold that a § 1981 suit against a purely private school is governed by the substantive standards applicable to race-based challenges brought pursuant to Title VII of the Civil Rights Act of 1964. This means that once the § 1981 plaintiff establishes a prima facie case of intentional race discrimination, the defendant must come forward with a legitimate nondiscriminatory reason justifying the challenged practice; if such a reason is offered the plaintiff may still attempt to show that the reason is a pretext for unlawful race discrimination.
It remains to clarify how these standards should operate in the context of private education.
B
Under the proof structure and accompanying substantive standards that we now import, the complainant in a § 1981 suit against a purely private school must carry the initial burden of establishing a prima facie case of racial discrimination. See McDonnell Douglas,
If the plaintiff proves his prima facie case, a rebuttable presumption of intentional discrimination arises, see Tex. Dep't of Comty. Affairs v. Burdine,
We turn, next, to the task of applying these standards to the plaintiff-appellant's § 1981 challenge to the racially exclusionary admissions policy in place at the Kamehameha Schools.
IV
It is undisputed that the Kamehameha Schools employs an express racial classification designed to deny admission to all students possessing no aboriginal blood, so long as qualified native Hawaiian applicants seek admission in sufficient number to fill the positions.8 Accordingly, the issue becomes whether the Schools can articulate a legitimate nondiscriminatory reason justifying this racial preference. Toward this end, the Schools urge that its policy constitutes a valid affirmative action plan rationally related to redressing present imbalances in the socioeconomic and educational achievement of native Hawaiians, producing native Hawaiian leadership for community involvement, and revitalizing native Hawaiian culture.
The Supreme Court has held that Title VII's prohibition against racial discrimination "does not condemn all private, voluntary, race-conscious affirmative action plans." Weber,
As a preliminary matter, we note that the plaintiff generally bears the burden of establishing the invalidity of an affirmative action plan challenged under Title VII. See Johnson,
* The starting point for our analysis is the Court's seminal decision in United Steelworkers of America v. Weber,
While "[t]he Weber Court did not establish a rigid formula for testing the validity of an affirmative action plan," Johnson v. Transp. Agency,
We recently distilled the Court's analysis in Weber into three distinct requirements: affirmative action plans must (1) respond to a manifest imbalance in its work force; (2) not "`create[ ] an absolute bar to the[ ] advancement'" of the non-preferred race or "`unnecessarily trammel[]'" their rights; and (3) do no more than is necessary to achieve a balance. Rudebusch v. Hughes,
We do not address the appellant's claims because we find the second of Weber's guiding principles fatal to the program in place at the Kamehameha Schools. The school's admission policy operates as an absolute bar to admission for non-Hawaiians. Kamehameha's unconditional refusal to admit non-Hawaiians so long as there are native Hawaiian applicants categorically "trammels" the rights of non-Hawaiians. The Court in Runyon made clear that an admissions policy that consciously and conspicuously denies admission to all members of the non-preferred race on account of their race is "a classic violation of § 1981."
Appellees argue, nonetheless, that the need is so great that the Schools should be permitted to admit only native Hawaiians until the educational deficits affecting that community disappear. They present abundant evidence demonstrating that native Hawaiians are over-represented in negative socioeconomic statistics such as poverty, homelessness, child abuse and neglect, and criminal activity; they are more likely to live in economically disadvantaged neighborhoods and attend low-quality schools; and, because of low levels of educational attainment, they are severely under-represented in professional and managerial positions, and over-represented in low-paying service and labor occupations. In sum, they urge, even though the admissions policy creates an "absolute bar," it is necessary for the Schools to "trammel" the interests of non-aboriginal applicants in order to reach its goal.
To accept this argument, however, is to completely abolish what we perceive to be an important limitation embodied in Weber's second principle: fairness to applicants of the non-preferred race. Even if we assumed that some, limited racial preferences might be appropriate in order for the Schools to advance its mission, an absolute bar on the basis of race alone exceeds any reasonable application of Weber, Rudebusch, and the cases that followed in their wake. "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,
B
Appellees urge that Congress's intent is essential to guiding our interpretation of how § 1981 applies to a particular set of facts. They argue that because Congress has given native Hawaiians in general, and the Kamehameha Schools in particular, preferences in the context of education, see 20 U.S.C. § 7901 et seq.; 20 U.S.C. § 7511 et seq., our analysis must harmonize these enactments by according the Schools greater deference under § 1981. Appellees argue that it is inconceivable that the same Congress that enacted preferences for native Hawaiians would think that the Schools preferences violate § 1981; additionally, they argue that we can give § 1981 this more generous reading because § 1981 was amended in the Civil Rights Act of 1991.
We have located no authority for the proposition that congressional intent, as manifested by scattered statutes adopted specially for the benefit of native Hawaiians, is sufficient to modify the standards embodied in a statute of general applicability. We cannot imagine the task of trying to harmonize all of the various acts of Congress — a prodigious output that is ever expanding and contracting — with statutes of general applicability such as § 1981.10 Congress is quite capable of creating exceptions for such laws, and we would intrude on its ability or willingness to do so if we scoured the U.S.Code for hints of contrary intent. For reasons both of separation of powers and our own sanity, we will not undertake such a task. Rather, our role, in the context of § 1981, "is limited to interpreting what Congress may do and has done." Patterson,
Judge GRABER, in dissent, urges us to consider 20 U.S.C. § 4905(a) (1991) (repealed 1994) as evidence of Congress's intent to abrogate the otherwise plain language of § 1981 as it applies to the Kamehameha Schools' racially exclusionary admissions policy. We are told that because the now repealed § 4905(a) authorized grants to the Kamehameha Schools to develop a demonstration program to support native Hawaiians who choose to attend college, it follows as an "inescapable conclusion" that Congress intends the Schools to refuse to admit, into its K-12 program, anyone without aboriginal blood. Dissent, at 8966. Even assuming, arguendo, the premise that § 1981 may affect parties differently when Congress so directs, we cannot agree that a statute adopted in 1988 and repealed in 1994 created a native Hawaiian carve-out for § 1981.11
Over the years, Congress has directed research, support and assistance at numerous minority groups, as well as the category of "minorities" in general. See, e.g., Minority Access to Research Careers Program, 42 U.S.C. §§ 241, 285k, 288, 288a (1988); Patricia Roberts Harris Fellowship Program, Pub.L. 99-498, Title IX, § 901(a), Oct. 17, 1986, 100 Stat. 1550 (repealed Pub.L. 105-244, Title VII, § 702, Oct. 7, 1998, 112 Stat. 1803); Excellence in Mathematics, Science and Engineering Act of 1990, Pub.L. No. 101-589, 104 Stat. 2881 (1990); African-American History Landmark Theme Study, Pub.L. 102-98, Aug. 17, 1991, 105 Stat. 485 (1991). But it would be overreaching to interpret these statutes as blanket approval for private race discrimination that is otherwise violative of § 1981. So far as we are aware, Congress has never even considered the racial bar to admission in place at the Kamehameha Schools, and we cannot infer implicit approval from a statute that merely authorized financial support for college-bound native Hawaiians. Thus, while we agree with the dissent that we should read statutes capable of co-existence "to give effect to each," we find no conflict between § 4905(a), which authorizes federal financial assistance to promote native Hawaiian higher education, and § 1981, which forbids a private institution from erecting an absolute bar to admission or advancement solely on the basis of race. Watt v. Alaska,
Importantly, we find little to suggest that Congress, in enacting the Civil Rights Act of 1991, intended to do anything more than overrule the holding in Patterson,
Absent proof that Congress has validly exempted the Schools — or the class of native Hawaiians as a whole — from the substantive commands of § 1981, we can ascertain no basis for subjecting a private school's racial preference premised on aboriginal blood to a wholly different standard than all other racial preferences challenged under the statute. We thus turn to the question of whether Congress has implicitly exempted the Schools from § 1981.
C
Appellees' argument-that a preference for native Hawaiians should be analyzed under a relaxed level of scrutiny in light of the unique trust relationship between the federal government and the native Hawaiian people — is, essentially, a generalized appeal to the "special relationship doctrine" typically advanced to support preferences accorded members of federally recognized Indian tribes. Using this doctrine, the Supreme Court has, on numerous occasions, specifically upheld legislation granting preferential treatment to Native Americans. See, e.g., Mancari,
The seminal case recognizing the doctrine, upon which all subsequent cases rely, is the Supreme Court's 1974 decision in Morton v. Mancari,
As it has for Native Americans, Congress has enacted numerous statutes providing separate benefit programs for native Hawaiians or including them in benefit programs that assist other native people. See, e.g., Hawaiian Homes Commission Act § 1 et seq., 42 Stat. 108 (1920) (setting aside 200,000 acres and establishing a program of loans and long-term leases for the benefit of Native Hawaiians); Department of Defense Appropriations Act, Pub.L. No. 103-335, 108 Stat. 2599, 2652 (1994) ("In entering into contracts with private entities to carry out environmental restoration and remediation of Kaho`olawe Island . . . the Secretary of the Navy shall . . . give especial preference to businesses owned by Native Hawaiians"); Native Hawaiian Education Act, 20 U.S.C. § 7512(13) et seq. (establishing programs to facilitate the education of Native Hawaiians and asserting a "political relationship between the United States and the Native Hawaiian people"); Native American Graves Protection and Repatriation Act, 25 U.S.C. § 3001 et seq. (extending protection to American Indian and Native Hawaiian burial sites); Native Hawaiian Health Care Improvement Act of 1992, 42 U.S.C. § 11701(17) et seq. (creating a number of programs aimed at improving health care for Native Hawaiians and stating, "The authority of the Congress under the United States Constitution to legislate in matters affecting the aboriginal or indigenous peoples of the United States includes the authority to legislate in matters affecting the native peoples of Alaska and Hawaii"); Hawaiian Homelands Homeownership Act of 2000, Pub.L. No. 106-569, §§ 511-514, 114 Stat. 2944, 2966-67, 2990 (providing governmental loan guarantees "to Native Hawaiian families who otherwise could not acquire housing financing"); National Historic Preservation Act, 16 U.S.C. § 470-1(2) (to "provide leadership in the preservation of the prehistoric and historic resources of the United States and of the international community of nations and in the administration of the national preservation program in partnership with States, Indian tribes, Native Hawaiians, and local governments"); National Museum of the American Indian Act, 20 U.S.C. § 80q(8) (providing for the return of Native Hawaiian human remains and funerary objects as well as the creation of a museum exclusively for the preservation and study of the history and artifacts of Native Americans); Drug Abuse Prevention, Treatment and Rehabilitation Act, 21 U.S.C. § 1177(d) (involving grant applications aimed at combating drug abuse and providing: "The Secretary shall encourage the submission of and give special consideration to applications under this section to programs and projects aimed at underserved populations such as racial and ethnic minorities, Native Americans (including Native Hawaiians and Native American Pacific Islanders), youth, the elderly, women, handicapped individuals, and families of drug abusers."); Native American Languages Act, 25 U.S.C. §§ 2901-06 (including Native Hawaiian languages in the ambit of Native American languages accorded statutory protection); Workforce Investment Act of 1998, 29 U.S.C. § 2911(a) ("The purpose of this section is to support employment and training activities for Indian, Alaska Native, and Native Hawaiian individuals"); American Indian Religious Freedom Act, 42 U.S.C. § 1996 ("it shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian, Eskimo, Aleut, and Native Hawaiians, including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites."); Native American Programs Act of 1974, 42 U.S.C. §§ 2991-92, 2991a (including Native Hawaiians in a variety of Native American financial and cultural benefit programs: "The purpose of this subchapter is to promote the goal of economic and social self-sufficiency for American Indians, Native Hawaiians, other Native American Pacific Islanders (including American Samoan Natives), and Alaska Natives."); Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment, and Rehabilitation Act, 42 U.S.C. § 4577(c)(4) (giving preference to grant applications aimed at combating drug abuse: "The Secretary shall encourage the submission of and give special consideration to applications under this section for programs and projects aimed at underserved populations such as racial and ethnic minorities, Native Americans (including Native Hawaiians and Native American Pacific Islanders), youth, the elderly, women, handicapped individuals, public inebriates, and families of alcoholics."); 20 U.S.C. § 4441 (providing funding for Native Hawaiian arts and cultural development); Older Americans Act of 1965, 42 U.S.C. § 3001 et seq., 45 C.F.R. § 1328.1 (2004) (establishing a "program . . . to meet the unique needs and circumstances of Older Hawaiian Natives"). Insofar as these statutes have articulated a constitutional basis, they have usually asserted that the programs are enacted pursuant to a special relationship between the federal government and native Hawaiians akin to that with Native Americans. See, e.g., 20 U.S.C. § 7512(13) (containing findings); 42 U.S.C. § 11701(17) (same); 20 U.S.C. § 4901 (1991) (repealed 1994) (same).
In addition, Congress has expressly, and repeatedly, determined that the United States wrongfully participated in the demise of the Hawaiian Monarchy, see, e.g., Native Hawaiian Education Act, 20 U.S.C. § 7512 (findings); Native Hawaiian Health Care Improvement Act, 42 U.S.C. § 11701 (findings); Apology Resolution, S. Joint Res. No. 19, Pub.L. No. 103-150, 107 Stat. 1510 (1993), the harmful consequences of which, in terms of the decimation and suffering wrought on the native Hawaiian people and culture, are well documented. See, e.g., Kamehameha Schs.,
We find it of some significance, however, that, in legislating for native Hawaiians, Congress has not consistently treated them in the same manner as Native Americans. Rather, Congress has, on occasion, opted to exclude native Hawaiians from beneficial programs created for Native Americans. See Kahawaiolaa v. Norton,
Even assuming that Congress may validly exempt native Hawaiians from the substantive commands of § 1981,12 a private school's admissions preference cannot be exclusively racial, yet simultaneously subject to the special relationship doctrine. The Court's decision in Mancari,
Judge GRABER would find that the United States government enjoys a trust relationship "that parallels (but is not identical to) that between the federal government and Native Americans." Dissent, at 8967. Only five years ago, in the context of a challenge brought under the Fifteenth Amendment, the Supreme Court declined an invitation to hold as much, concluding that to do so "would [ ] require[ ] accept[ing] some beginning premises not yet established in [the Court's] case law." Rice,
We acknowledge that the status of native Hawaiians and their relationship, as a class, to the federal government presents difficult questions of serious import, complicated both by history and by politics, and carrying tremendously far-reaching consequences. See Rice,
V
We emphasize that our ruling today is a narrow one. We conclude only that the plaintiff-appellant has met his burden of establishing the invalidity of the racially exclusionary affirmative action plan in place at the Kamehameha Schools, as that plan currently operates as an absolute bar to admission for those of the non-preferred race. Nothing in our decision, however, implicates the validity of the Pauahi Bishop Will, as we do not read that document to require the use of race as an admissions prerequisite. Consequently, we affirm the entry of summary judgment for the Bernice Pauahi Bishop Estate and its individual trustees.
For the foregoing reasons, the decision of the district court granting summary judgment to the Kamehameha Schools is reversed. In all other respects, the judgment is affirmed. The case is remanded for proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART.
Notes:
Notes
With the forced sale of the Bishop trust lands under the Hawai`i Land Reform Act in the 1980s,see Haw. Hous. Auth. v. Midkiff,
Similarly, in a February 11, 1897 letter, Charles Bishop noted: "There is nothing in the will of Mrs. Bishop excluding white boys or girls from the Schools. . . ." In a February 20, 1901 letter he further stated: "According to the reading of Clause 13 on Page 8 of the Will as published, the preference to Hawaiians of pure or part aboriginal blood, applies only to education of orphans and others in indigent circumstances."
The parties have not contested the constitutionality of § 1981 as applied to the discriminatory admissions policy in place at the Kamehameha Schools. Although we note the constitutional questions that are implicated, we decline to restrictMcDonald to its context, in part, because of the alternative constitutional concerns that a "racial minorities only" reading of § 1981 would raise. See, e.g., Adarand,
After oral argument, however, the Court requested the parties to brief and argue an additional question: "Whether or not the interpretation of 42 U.S.C. § 1981 adopted by [the] Court inRunyon v. McCrary,
BeforePatterson the decisions of our court frequently assumed, without discussion, that both the nature and the order of proof applicable to Title VII claims also applied to claims brought under § 1981. See Jurado v. Eleven-Fifty Corp.,
We find our recent decision inSagana inapplicable for the same reason that we find the Supreme Court's decision in Grutter irrelevant to the facts of this appeal. See Sagana,
As is true with respect to the application of theMcDonnell Douglas proof structure in the context of Title VII employment discrimination claims, the elements of a prima facie case will vary depending on the particular facts involved. See McDonald,
Appellees argue that the racial preference is not an absolute bar to the admission of non-Hawaiians because if spaces exceed the number of qualified native Hawaiian applicants, Kamehameha will admit non-Hawaiian students. They point out that, in 2003, a non-Hawaiian student was admitted to the Kamehameha Schools; a fact which, the record suggests, owed more to accident than design as it prompted an immediate full-scale investigation and promise, on the part of School administrators, to ensure that admission remained for native Hawaiians only. Whether or not the policy is, in the abstract, an absolute bar to admission for those of the non-preferred race, it certainly operates as one
Under the plan, the preference was slated to end as soon as the percentage of minority skilled craftworkers approximated the percentage of minorities in the local labor forceWeber,
This is particularly true when we deal with a statute of such venerable provenance as § 1981, one that long pre-dates Congress's more recent native Hawaiian preferences
Reading § 4905(a) to authorize exclusive racial preferences for native Hawaiians in education may raise constitutional problems in light of the Supreme Court's decision inRice. See Rice,
Cf. Rice,
Moreover, the Court, inMancari, was careful to note that its decision was confined to the authority of the Bureau of Indian Affairs,
GRABER, Circuit Judge, concurring in part and dissenting in part:
I respectfully dissent from the majority's conclusion that 42 U.S.C. § 1981 bars the admissions policy of the Kamehameha Schools. Our only task is to discern Congress' intent with respect to the application of § 1981 to a wholly private, Hawaiian institution that educates Native Hawaiian children in Hawaii. Although I have no quarrel with many of the general principles set forth so gracefully in the majority opinion—and, indeed, I concur in the opinion insofar as it applies Title VII principles, rather than strict scrutiny, to admissions preferences by a private school—I cannot agree with the opinion's narrow perspective on congressional intent.
When Congress first enacted § 1981 in 1866, the Hawaiian Islands were still a sovereign kingdom. But in 1991, when Congress revisited and reenacted § 1981 in the Civil Rights Act of 1991, Pub.L. No. 102-166, § 101, 105 Stat. 1071, Congress' view of the statute's proper scope presumptively was informed by the body of law that had developed in the interim. See Miles v. Apex Marine Corp.,
In 1988, just three years before its reenactment of § 1981, Congress recognized the United States government's unique relationship with Native Hawaiians, acknowledged the severe socioeconomic and educational disadvantages experienced by Native Hawaiians, and authorized federal money for private entities—including the Kamehameha Schools—to provide loans and scholarships exclusively to Native Hawaiians. For example, Congress found, in the Native Hawaiian Health Care Act of 1988, Pub.L. No. 100-579, § 2(2) 102 Stat. 2916, that the federal government's contributions to improving the health of Native Hawaiians "are consistent with the historical and unique legal relationship of the United States with the government that represented the indigenous native people of Hawaii."
Congress spoke particularly, and at length, to the educational needs of Native Hawaiians in the Augustus F. Hawkins-Robert T. Stafford Elementary and Secondary School Improvement Amendments of 1988 ("Hawkins-Stafford Amendments"), Pub.L. No. 100-297, tit. IV, § 4001 ("Education for Native Hawaiians"), 102 Stat. 130:
The Congress finds and declares that —
(1) the Federal Government retains the legal responsibility to enforce the administration of the State of Hawaii's public trust responsibility for the betterment of the conditions of Native Hawaiians;
(2) in furtherance of the responsibility for the betterment of the conditions of Native Hawaiians, Congress has the power to specially legislate for the benefit of Native Hawaiians;
(3) the attainment of educational success is critical to the betterment of the conditions of Native Hawaiians;
(4) it is the policy of the Federal Government to encourage the maximum participation of Native Hawaiians in the planning and management of Native Hawaiian Education Programs;
. . . .
(9) special efforts in education recognizing the unique cultural and historical circumstances of Native Hawaiians are required.
20 U.S.C. § 4901 (1991) (repealed 1994).1
Having made those findings, Congress specifically directed the Secretary of Education to "make grants to the Kamehameha Schools/Bernice Pauahi Bishop Estate" — that is, to the Defendants in this case — "for a demonstration program to provide Higher Education fellowship assistance to Native Hawaiian students." 20 U.S.C. § 4905(a) (1991) (repealed 1994) (emphasis added).2 The sole beneficiaries of this federal fellowship assistance were to be "Native Hawaiian," a term that was defined in the statute—as it is in the Kamehameha Schools' admission policy—to mean "a descendant of the aboriginal people, who prior to 1778, occupied and exercised sovereignty in the area that now comprises the State of Hawaii." 20 U.S.C. § 4909(1)(C) (1991) (repealed 1994). Compare id. with Doe v. Kamehameha Schs./Bernice Pauahi Bishop Estate,
That exclusive educational preference for Native Hawaiians, which was motivated by the need to remedy abysmal socioeconomic and educational conditions and by the United States government's unique relationship with and responsibility for Native Hawaiians, was part of the statutory context into which § 1981 was reenacted. Having just adopted this private, remedial, exclusive preference for Native Hawaiians, Congress could not have intended for § 1981 to bar, categorically, every private program that provides an exclusive preference to Native Hawaiians. And, for that reason, I disagree that the mere fact that Kamehameha Schools grants an exclusive preference to Native Hawaiian applicants is dispositive of this case. Indeed, the inescapable conclusion from the statutory context is that in 1991 Congress intended that a preference for Native Hawaiians, in Hawaii, by a Native Hawaiian organization, located on the Hawaiian monarchy's ancestral lands, be upheld because it furthers the urgent need for better education of Native Hawaiians, which Congress had identified explicitly in 1988.
The majority holds that § 1981 forbids all exclusive racial preferences (whether remedial or not) and suggests that political status is the only alternative justification for the Schools' exclusive preference for Native Hawaiians. See maj. op. at 1041-42. Thus, the Schools' concession that "Native Hawaiian" is a racial category, for purposes of this case, dooms its policy under the majority's view. See maj. op. at 1045-47. I do not perceive such a dichotomy between the racial and the political aspects of the Schools' preference for Native Hawaiian applicants. That is, if "Native Hawaiian" is indeed a racial category, then Congress has shown by its actions that an exclusive, remedial, racial preference can be permissible, at least when it is employed to remedy demonstrable and extreme educational and socioeconomic deficiencies that are faced by a racial group that (a) is descended from people whose sovereignty and culture were upended and nearly destroyed, in part by the actions of the United States, and (b) consequently enjoys a special trust relationship with the United States government that parallels (but is not identical to) that between the federal government and Native Americans. These factors distinguish Native Hawaiians from the other racial groups mentioned by the majority, see maj. op. at 1043-44, who have received special funding. In other words, we need not decide that Native Hawaiians have any particular political status in order to recognize, as Congress has, that the Kamehameha Schools pursue unique remedial objectives and may, consistent with congressional intent, employ special remedial tools.
The Supreme Court has not established "a rigid formula for testing the validity of an affirmative action plan" applied by a private employer, Johnson v. Transp. Agency,
Notes:
Even though the quoted sections were repealed in 1994, they signal Congress' sustained intent. First, the statutes were in effect in 1991 when Congress re-enacted § 1981. Second, Congress has continued throughout the years to make similar findings about the unique educational needs of Native Hawaiian children and the unique relationship between the United States government and the Native Hawaiian peopleSee, e.g., 20 U.S.C. § 7512. Congress also has continued to authorize funds for educational programs serving Native Hawaiian children. See, e.g., id. § 7515.
In 1987, a year before the enactment of the Hawkins-Stafford Amendments, Congress had provided funds for a "Native Hawaiian organization" to "make loans to Native Hawaiian organizations and toindividual Native Hawaiians for the purpose of promoting economic development in the State of Hawaii." Native American Programs Act Amendments of 1987, Pub.L. No. 100-175, tit. V, § 506(a), 101 Stat. 926 (emphasis added).