The opinion
Volume 1 of 2
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN DOE, a minor, by his mother
and next friend, Jane Doe,
Plaintiff-Appellant,
and
JOSEPHINE HELELANI PAUAHI
RABAGO,
Intervenor, No. 04-15044
v.
KAMEHAMEHA SCHOOLS/BERNICE
D.C. No.
CV-03-00316-ACK
PAUAHI BISHOP ESTATE; CONSTANCE OPINION
H. LAU, NAINOA THOMPSON, DIANE
J. PLOTTS, ROBERT K.U. KIHUNE, J.
DOUGLAS ING, in their capacities as
Trustees of the Kamehameha
Schools/Bernice Pauahi Bishop
Estate,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Hawaii
Alan C. Kay, District Judge, Presiding
Argued and Submitted En Banc
June 20, 2006—San Francisco, California
Filed December 5, 2006
19047
19048 DOE v. KAMEHAMEHA SCHOOLS
Before: Mary M. Schroeder, Chief Judge, and
Harry Pregerson, Stephen Reinhardt, Alex Kozinski,
Diarmuid F. O’Scannlain, Pamela Ann Rymer,
Andrew J. Kleinfeld, Susan P. Graber, William A. Fletcher,
Richard A. Paez, Marsha S. Berzon, Richard C. Tallman,
Johnnie B. Rawlinson, Jay S. Bybee, and
Consuelo M. Callahan, Circuit Judges.
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
DOE v. KAMEHAMEHA SCHOOLS 19053
COUNSEL
Eric Grant, Sweeney, Davidian, Greene & Grant LLP, Sacra-
mento, California, for the plaintiff-appellant.
Kathleen M. Sullivan, Stanford, California; David Schulme-
ister, Cades Schutte LLP, Honolulu, Hawaii, for the
defendants-appellees.
Patrick M.K. Richardson, McCracken, Byers & Haesloop
LLP, San Mateo, California; Mark J. Bennett, Attorney Gen-
eral of the State of Hawaii, Honolulu, Hawaii; Alexander E.
Dreier, Hogan & Hartson LLP, Washington, D.C.; Jeffrey N.
Watanabe, Honolulu, Hawaii; David M. Forman, Honolulu,
Hawaii; Wayne M. Pitluck, Pitluck, Kido, Stone & Aipa LLP,
Honolulu, Hawaii; Richard A. Guest, Native American Rights
Fund, Washington, D.C., and Carol H. Daniel, Alaskan Feder-
ation of Natives, Anchorage, Alaska; Carrie K.S. Okinaga,
Corporation Counsel for the City and County of Honolulu,
Honolulu, Hawaii; Moses K.N. Haia III, Native Hawaiian
Legal Corporation, Honolulu, Hawaii; Clayton A. Kamida,
Torkildson, Katz, Fonseca, Moore & Hetherington, Honolulu,
Hawaii; John Ishihara, Hawaii Civil Rights Commission,
Honolulu, Hawaii; Eric K. Yamamoto, Honolulu, Hawaii, for
amici curiae.
OPINION
GRABER, Circuit Judge:
Plaintiff John Doe, a student who has no Hawaiian ances-
try, 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
19054 DOE v. KAMEHAMEHA SCHOOLS
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 42 U.S.C. § 1981.
The majority of a three-judge panel held that the Kameha-
meha Schools’ admissions policy, with its preference for
Native Hawaiians, constituted unlawful race discrimination
under 42 U.S.C. § 1981.1 We took this case en banc to recon-
sider whether a Hawaiian private, non-profit K-12 school that
receives no federal funds violates § 1981 by preferring Native
Hawaiians in its admissions policy. We now answer “no” to
that question and, accordingly, affirm the district court.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
1. Historical Context2
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.” 20 U.S.C. § 7512. The land, abundant
in natural resources, allowed the Native Hawaiians to thrive.
Office of Hawaiian Affairs, Native Hawaiian Rights Hand-
book 3 (Melody Kapilialoha MacKenzie ed. 1991) (hereinaf-
ter “Rights Handbook”).
1
Doe v. Kamehameha Sch./Bernice Pauahi Bishop Estate, 416 F.3d
1025 (9th Cir. 2005), reh’g en banc granted, 441 F.3d 1029 (9th Cir.
2006).
2
This general information simply sets the stage for our more particular
consideration of the educational status of Native Hawaiian children.
DOE v. KAMEHAMEHA SCHOOLS 19055
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 popula-
tion had declined from an estimated 1,000,000 in 1778 to an
alarming 22,600.” 20 U.S.C. § 7512(7). But see Rice v. Caye-
tano, 528 U.S. 495, 500 (2000) (estimating the population in
1778 as between 200,000 and 300,000).
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 recogni-
tion to the islands. Other countries, too—including Great Brit-
ain, France, and Japan—recognized the Hawaiian Kingdom.
20 U.S.C. § 7512(1). Before 1893, the United States entered
into a number of treaties for peace, friendship, and commerce
with the Kingdom. U.S. Dep’t of Justice & U.S. Dep’t of the
Interior, From Mauka to Makai: The River of Justice Must
Flow Freely 1 (Oct. 23, 2000) (hereinafter “From Mauka to
Makai”). The first treaty was signed in 1826, and additional
treaties were signed in 1849, 1875, and 1887. See Rice, 528
U.S. at 504 (discussing the history of diplomatic relations
between the United States and the Kingdom of Hawaii before
the overthrow of the monarchy).
The Kingdom of Hawaii, located along shipping and fish-
ing 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 West-
erners 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
19056 DOE v. KAMEHAMEHA SCHOOLS
the traditional land tenure system, which did not provide for
individual land titles, intensified. Id. at 6. Pressure from West-
erners 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).
Western economic domination of the Hawaiian Islands was
followed by an interest in establishing political control. Id. at
861. “In 1893, the sovereign, independent, internationally rec-
ognized, and indigenous government of Hawaii, the Kingdom
of Hawaii, was overthrown by a small group of non-
Hawaiians, including United States citizens, who were
assisted in their efforts by the United States Minister, a United
States naval representative, and armed naval forces of the
United States.” 20 U.S.C. § 7512(5). The United States
annexed Hawaii not long thereafter. Id. § 7512(6). Laws were
then enacted suppressing the Hawaiian culture and language
and allowing for the displacement of Native Hawaiians from
their lands. From 1896 to 1986, almost a full century, the
Hawaiian language was banned as a medium of instruction in
schools. Id. § 7512(19). Hula, a Native Hawaiian dance form,
and local healing practices also had been banned during the
westernization of the islands. Such measures resulted in “mor-
tality, disease, economic deprivation, social distress and popu-
lation decline.” From Mauka to Makai at 1.
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).
DOE v. KAMEHAMEHA SCHOOLS 19057
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 educa-
tion and upbringing of Native Hawaiians.” Burgert v. Loke-
lani Bernice Pauahi Bishop Trust, 200 F.3d 661, 663 (9th Cir.
2000). Princess Bernice Pauahi Bishop’s will provided for the
erection and maintenance of schools in the Hawaiian Islands,
called the Kamehameha Schools, on the Hawaiian monar-
chy’s ancestral lands, with the purpose of providing “a good
education in the common English branches, and also instruc-
tion in morals and in such useful knowledge as may tend to
make good and industrious men and women.” Will of Bernice
Pauahi Bishop, reprinted in Wills and Deeds of Trust 17-18
(3d ed. 1957) (hereinafter “Pauahi Bishop Will”). The Pauahi
Bishop Will also bestowed on the “trustees full power to
make all such rules and regulations as they may deem neces-
sary for the government of said schools and to regulate the
admission of pupils.” Id. at 18.
Under the direction of the original trustees, chaired by
Pauahi Bishop’s widower, Charles Reed Bishop, the Kameha-
meha Schools opened in the late nineteenth century.3 During
a speech on the Schools’ first Founder’s Day, in December
1888, Charles Reed Bishop stated that Princess Bernice
Pauahi Bishop had created the Kamehameha Schools, “in
which Hawaiians have the preference,” so that “her own peo-
ple” could once again thrive. Charles R. Bishop, The Purpose
of the Schools, Handicraft, Jan. 1889, at 3.
In 1910, not long after the death of Princess Bernice Pauahi
3
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 consoli-
dated.
19058 DOE v. KAMEHAMEHA SCHOOLS
Bishop and the creation of the Kamehameha Schools, the
question arose as to who should be admitted to the Schools.
Cobey Black & Kathleen Mellen, Princess Pauahi Bishop
and Her Legacy 155 (The Kamehameha Schools Press 1965).
Charles Bishop wrote to the trustees: “Mrs. Bishop intended
that, in the advantages of her beneficence, those of her race
should have preference.” Id. Accordingly, he concluded that
the principal of the Schools was justified in refusing to admit
a student who had no native Hawaiian ancestry. Id. Bishop
went on to convey that only if Native Hawaiians failed to
apply to the Schools, or if conditions changed fundamentally,
should admissions be opened to other ethnicities: “It was wise
to prepare for and to admit natives only and I do not think the
time has come to depart from that rule.” Id.
Today, the Kamehameha Schools operate three K-12 cam-
puses: Kapalama on the island of Oahu, Pukalani on the
island of Maui, and Keaau on the island of Hawaii. 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 stu-
dents 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
DOE v. KAMEHAMEHA SCHOOLS 19059
campus programs. But the admissions policy is not an abso-
lute bar to non-Native Hawaiians; instead, it is intended to last
only for so long as Native Hawaiians suffer educational disad-
vantages.
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 stu-
dents’ 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, lan-
guage, and tradition, in addition to general college-
preparatory courses.
Kamehameha Schools also operate a number of other edu-
cational programs, including pre-schools, enrichment pro-
grams, 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
pre-school program (two of the children declined admission);
the following school year 12 non-Native Hawaiian children
were admitted to the pre-school; and the year after that—the
2003-2004 school year—16 students without Native Hawaiian
ancestry were admitted. And, in the summer of 2003, for
instance, non-Native Hawaiians were enrolled in several of
the enrichment programs run by the Kamehameha Schools: 6
of 133 students in the Performing Arts Academy; 33 of 1,741
19060 DOE v. KAMEHAMEHA SCHOOLS
students in Explorations; 5 of 18 students in Culinary Arts;
and 4 of 164 students in Hoolauna Keauhou.
3. Current Conditions in the Educational Status of
Native Hawaiians
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 depriva-
tion, low educational attainment, poor health status, substan-
dard housing and social dislocation.” From Mauka to Makai
at 2. In particular, Native Hawaiians have traditionally per-
formed much below national averages in the educational
arena.
In 1981, Congress instructed the Office of Educa-
tion to submit to Congress a comprehensive report
on Native Hawaiian education. The report, entitled
the “Native Hawaiian Educational Assessment Proj-
ect,” 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 nega-
tive social and physical statistics indicative of spe-
cial educational needs, and had educational needs
that were related to their unique cultural situation,
such as different learning styles and low self-image.
20 U.S.C. § 7512(14).
That trend continues today. In 2002, Congress recognized
that Native Hawaiians are severely disadvantaged in educa-
tion. It found that:
(A) educational risk factors continue to start even
before birth from many Native Hawaiian children[;]
...
DOE v. KAMEHAMEHA SCHOOLS 19061
(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 learn-
ing disabilities, mild mental retardation, emotional
impairment, and other such disabilities;
(F) Native Hawaiians continue to be underrepre-
sented in institutions of higher education and among
adults who have completed four or more years of
college;
(G) Native Hawaiians continue to be dispropor-
tionately represented in many negative social and
physical statistics indicative of special educational
needs[;] . . .
. . . and
(H) Native Hawaiians now comprise over 23 per-
cent of the students served by the State of Hawaii
Department of Education, and there are and will con-
tinue to be geographically rural, isolated areas with
a high Native Hawaiian population density.
19062 DOE v. KAMEHAMEHA SCHOOLS
20 U.S.C. § 7512(16)(A)-(H).
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/library?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 num-
ber 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 sec-
ondary 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 stu-
dents graduated from high school in 2002, compared to a state
average of 76.6% overall. Id. at 285.4
B. Procedural History
Plaintiff applied for admission to the Kamehameha
Schools. He has no Hawaiian ancestry. Although the school
4
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 heath 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 pregnan-
cies, 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 vio-
lent crimes than any other ethnic group in the state. Id. at 76-77.
DOE v. KAMEHAMEHA SCHOOLS 19063
deemed him a “competitive applicant” and put him on the
waiting list, he was repeatedly denied admission. The Kame-
hameha Schools concede that Plaintiff likely would have been
admitted had he possessed Hawaiian ancestry.
Plaintiff filed an action under 42 U.S.C. § 1981, challeng-
ing the Kamehameha Schools’ admissions policy. He sought
both damages and injunctive relief.5 The district court granted
summary judgment in favor of the Kamehameha Schools,
holding that the policy satisfied a variation of the standard
used to evaluate affirmative action plans challenged under
Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e–2000h-6:
The Court finds the plan has a legitimate justification
and serves a legitimate remedial purpose by address-
ing the socioeconomic and educational disadvan-
tages 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.
Doe v. Kamehameha Sch./Bernice Pauahi Bishop Estate, 295
F. Supp. 2d 1141, 1172 (D. Haw. 2003). The district court
also held that application of § 1981 to the admissions policy
should be consistent with other congressional enactments
involving Native Hawaiians. Id. at 1174. Plaintiff timely
appealed.
The majority of a three-judge panel reversed the district
court. Doe v. Kamehameha Sch./Bernice Pauahi Bishop
Estate, 416 F.3d 1025, 1048 (9th Cir. 2005). The panel con-
5
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.
19064 DOE v. KAMEHAMEHA SCHOOLS
cluded that the Title VII framework applied, id. at 1038-39,
but the majority held that the Kamehameha Schools’ prefer-
ence policy violated § 1981 because it “operates as an abso-
lute bar to admission for non-Hawaiians,” id. at 1041. We
then took the case en banc.6 Doe v. Kamehameha Schools/
Bernice Pauahi Bishop Estate, 441 F.3d 1029 (9th Cir. 2006).
STANDARD OF REVIEW
The parties, and we, agree that we review de novo a grant
of summary judgment. United States v. City of Tacoma, 332
F.3d 574, 578 (9th Cir. 2003). But the parties dispute vigor-
ously what standard we should use to analyze the validity of
the Kamehameha Schools’ admissions policy.
Plaintiff argues that the Schools’ policy should be evalu-
6
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 Cham-
ber 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 Kameha-
meha Schools, and the Alumni Association of Kamehameha Schools; (7)
the Native Hawaiian Legal Corporation, the Native Hawaiian Bar Associa-
tion, 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 gov-
ernor both submitted declarations to the district court on the importance
of maintaining the Kamehameha Schools’ admissions policy. Doe, 295 F.
Supp. 2d at 1169, 1171; see also Recent Case, Civil Rights—Section 1981
—Ninth Circuit Holds that Private School’s Remedial Admissions Policy
Violates § 1981—Doe v. Kamehameha Schools, 416 F.3d 1025 (9th Cir.
2005), 119 Harv. L. Rev. 661, 668 (2005) (concluding that a traditional
Title VII approach is not appropriate in the private school context).
DOE v. KAMEHAMEHA SCHOOLS 19065
ated under the “strict scrutiny” standard that applies to gov-
ernmental 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 rea-
sons that we detail below, we agree with the Schools.
DISCUSSION
A. History of § 1981, Runyon, and McDonald
[1] Title 42 U.S.C. § 1981 provides, in pertinent part, that
“[a]ll persons . . . shall have the same right . . . to make and
enforce contracts . . . as is enjoyed by white citizens.” The
genesis of the current statute was the Civil Rights Act of
1866, ch. 31, § 1, 14 Stat. 27 (hereinafter “1866 Act”), which
Congress enacted pursuant to the Thirteenth Amendment.7
Under its authority to enact laws to abolish the “badges and
incidents of slavery,” United States v. Stanley (Civil Rights
Cases), 109 U.S. 3, 20 (1883), Congress intended for the 1866
Act to counter the explicit discrimination faced by the
recently freed slaves. See Gen. Bldg. Contractors Ass’n v.
7
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 slav-
ery 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 per-
sonal property, and to full and equal benefit of all laws and pro-
ceedings 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, regula-
tion, or custom, to the contrary notwithstanding.
14 Stat. at 27.
19066 DOE v. KAMEHAMEHA SCHOOLS
Pennsylvania, 458 U.S. 375, 386-88 (1982) (“Congress
instead acted to protect the freedmen from intentional dis-
crimination by those whose object was to make their former
slaves dependent serfs, victims of unjust laws, and debarred
from all progress and elevation by organized social preju-
dices.” (internal quotation marks omitted)).
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”).8 See Runyon v. McCrary,
427 U.S. 160, 169 n.8 (1976) (describing the history of
§ 1981 and noting that section 16 of the 1870 Act was
“merely a re-enactment,” with some small changes, of the
1866 Act). Accordingly, § 1981 has “roots” in both the Thir-
teenth and the Fourteenth Amendments. Gen. Bldg. Contrac-
tors, 458 U.S. at 390 n.17. But the “events and passions of the
time in which the law was forged” make clear that the pur-
pose of § 1981 was to destroy the societal influences that
were intended to keep former slaves from achieving parity
with former masters. Id. at 386 (internal quotation marks
omitted).
Section 1981 largely lay dormant for nearly a century
when, in 1976, the Supreme Court reinvigorated the statute in
Runyon. In Runyon, the Supreme Court faced the question
8
In pertinent part, section 16 of the Enforcement Act of 1870 provides:
And it be further enacted, That all persons within the jurisdic-
tion 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 prop-
erty 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, regula-
tion, or custom to the contrary notwithstanding.
16 Stat. at 144.
DOE v. KAMEHAMEHA SCHOOLS 19067
whether § 1981 prevents “private, commercially operated,
nonsectarian schools from denying admission to prospective
students because they are Negroes,” 427 U.S. at 168, and held
that it does, id. at 172-73.9 The parents of African-American
children had sought to enter into contractual relationships
with the schools. “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.” Id. at 172. The schools’ refusal
to admit them therefore “amount[ed] to a classic violation of
§ 1981.” Id. The Court noted that Congress had the right to
reach private acts of discrimination in the private school set-
ting because of its power under the Thirteenth Amendment to
enact legislation to combat racial discrimination. Id. at 170-
71. Runyon, then, involved a straightforward case of discrimi-
nation, not a remedial policy.
[2] On the same day as it issued Runyon, the Court decided
that § 1981, notwithstanding its text, prohibits discrimination
against white people, as well as against non-whites. McDon-
ald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 296 (1976).
[3] 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 per-
missible in the educational context under § 1981, nor has it
since. But in considering the reach of § 1981, the Supreme
9
The Kamehameha 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 § 1981 would apply if the Schools charged no
tuition at all, but simply donated education to Native Hawaiian students.
In addition, for the purposes of our decision, we accept that “Native
Hawaiian"—like “Negro"—is a racial classification. See Rice v. Cayetano,
528 U.S. 495, 514 (2000) (so holding in the context of a voting rights
case).
19068 DOE v. KAMEHAMEHA SCHOOLS
Court has looked, in different ways, to both the Fourteenth
Amendment and Title VII for guidance.
B. Application of Title VII Standards to § 1981 Claims
[4] In General Building Contractors, the Court limited
§ 1981 to cover only acts involving intentional discrimination,
excluding from the statute’s reach actions that merely have a
disparate effect. 458 U.S. at 391. In so doing, the Court relied
on the fact that § 1981 traces its history, in part, to the Four-
teenth Amendment and, accordingly, to the Equal Protection
Clause. Id. at 390-91. Even though the Supreme Court
imported the purposeful discrimination element of its equal
protection jurisprudence to § 1981, later Supreme Court pre-
cedent regarding § 1981 and Title VII suggests that the “strict
scrutiny” standard of equal protection does not apply to a
wholly private school’s race-based remedial admissions plan.
In Patterson v. McLean Credit Union, 491 U.S. 164, 186
(1989), superseded by statute on other grounds as stated in
Estate of Reynolds v. Martin, 985 F.2d 470, 475 n.2 (9th Cir.
1993), the Supreme Court signaled its intention to apply the
Title VII analysis to § 1981 claims brought against a private
employer. In Patterson, the plaintiff brought a § 1981 suit
against her former employer, alleging that the employer had
harassed her, failed to promote her, and fired her on account
of her race. 491 U.S. at 169. The Court analyzed the ways in
which § 1981 and Title VII overlap, as well as the statutes’
differences, and concluded that the Title VII burden-shifting
system of proof established in Texas Department of Commu-
nity Affairs v. Burdine, 450 U.S. 248, 252-53 (1981), and
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973), applied to the case at hand. Patterson, 491 U.S. at
186. That is, the plaintiff first must establish a prima facie
case of discrimination by coming forward with evidence that
an employer considered race in its employment decisions. Id.;
Johnson v. Transp. Agency, 480 U.S. 616, 626 (1987). After
a prima facie case is established, the burden shifts to the
DOE v. KAMEHAMEHA SCHOOLS 19069
employer to provide a legitimate, non-discriminatory reason
for the decision. Patterson, 491 U.S. at 187. “The existence
of an affirmative action plan provides such a rationale.” John-
son, 480 U.S. at 626. If a relevant affirmative action plan
exists, then the burden shifts back to the plaintiff to show that
the justification provided was pretextual and that the plan is
invalid. Id.
Several courts expressly have applied Title VII’s substan-
tive standards when examining § 1981 challenges to private
affirmative action plans. The leading case, on which all the
others rely, is Setser v. Novack Investment Co., 657 F.2d 962
(8th Cir. 1981) (en banc). In Setser, the plaintiff, a white man,
sued Novack under § 1981 claiming that he had been refused
employment on account of his race because of an affirmative
action plan. Setser v. Novack Inv. Co., 638 F.2d 1137, 1139
& n.3 (8th Cir. 1981), opinion vacated in part on reh’g by
Setser, 657 F.2d at 962. The Setser court addressed two issues
that are relevant here: “(1) whether section 1981 prohibits all
race-conscious affirmative action; [and] (2) whether the stan-
dards for reviewing affirmative action under [T]itle VII gov-
ern the review of such plans under section 1981.” 657 F.2d at
965.
The Eighth Circuit first concluded that § 1981 does not bar
affirmative action programs, even in light of McDonald, 427
U.S. at 296, which held that § 1981 affords protection to
white people. In so holding, the Setser court looked to the
Supreme Court’s decision in United Steelworkers of Am. v.
Weber, 443 U.S. 193 (1979), which held that Title VII does
not bar all preferential treatment on the basis of race, and
applied the same rationale to § 1981:
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 prac-
tices against blacks and other minorities, when the
Act was virtually useless to prevent the occurrence
19070 DOE v. KAMEHAMEHA SCHOOLS
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 under section
1981. To open the door for such plans under [T]itle
VII and close it under section 1981 would make little
sense. The prohibition under section 1981 of affir-
mative action plans permissible under [T]itle VII
would bar a remedy Congress left within the discre-
tion of private employers when it passed [T]itle VII.
Setser, 657 F.2d at 966-67 (emphasis added).
Having determined that affirmative action plans were per-
missible, the Setser court expressly “equat[ed] the affirmative
action standards of [T]itle VII with those of section 1981.” Id.
at 967. The court did so in view of the general principle that,
“[i]n fashioning a substantive body of law under section 1981
the courts should, in an effort to avoid undesirable substantive
law conflicts, look to ethe principles of law created under
[T]itle VII for direction.” Id. (internal quotation marks omit-
ted). This principle of consistency was especially important to
the Setser court because it found untenable the prospect that
an employer could be ordered, under Title VII, to implement
an affirmative action plan, but simultaneously barred from
implementing that same plan under § 1981, if the two statutes
were interpreted differently. Id. at 967-68.
The Third Circuit in a recent decision, as well as other
courts, have followed Setser in using Title VII standards to
evaluate private affirmative action plans challenged under
§ 1981. See, e.g., Schurr v. Resorts Int’l Hotel, Inc., 196 F.3d
486, 498-99 (3d Cir. 1999); Edmonson v. U.S. Steel Corp.,
659 F.2d 582, 584 (5th Cir. 1981) (per curiam); Frost v.
Chrysler Motor Corp., 826 F. Supp. 1290, 1294 (W.D. Okla.
1993); Stock v. Universal Foods Corp., 817 F. Supp. 1300,
1306 (D. Md. 1993); see also Johnson v. Transp. Agency, 770
DOE v. KAMEHAMEHA SCHOOLS 19071
F.2d 752, 755 n.2 (9th Cir. 1985) (noting, with approval, the
Setser analysis), aff’d, 480 U.S. 616 (1987).
The Supreme Court’s recent University of Michigan cases
—Grutter v. Bollinger, 539 U.S. 306 (2003), and Gratz v.
Bollinger, 539 U.S. 244 (2003)—do not counsel a different
result. In those cases, the Supreme Court strictly scrutinized
the admissions policies of a public university, the University
of Michigan Law School and its undergraduate counterpart.
See Grutter, 539 U.S. at 326 (law school); Gratz, 539 U.S. at
270 (undergraduate institution). Plaintiff places great stock in
the fact that in both cases, the Supreme Court mentioned
§ 1981 in conjunction with the plaintiff’s Equal Protection
Clause claim. See Grutter, 539 U.S. at 343 (noting that,
because the law school’s admissions policy satisfied strict
scrutiny review under the Equal Protection Clause, it also sat-
isfied § 1981); Gratz, 539 U.S. at 275-76 & n.23 (noting that,
because the university’s undergraduate admissions program
failed strict scrutiny under the Equal Protection Clause, it also
violated § 1981).
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 § 1981.
See Grutter, 539 U.S. at 343 (noting that “the prohibition
against discrimination in § 1981 is co-extensive with the
Equal Protection Clause”); Gratz, 539 U.S. at 276 n.23
(“[P]urposeful discrimination that violates the Equal Protec-
tion Clause of the Fourteenth Amendment will also violate
§ 1981.”). As explained earlier, in General Building Contrac-
tors, the Court held that § 1981, like the Equal Protection
Clause, prohibits only purposeful discrimination and therefore
does not permit claims of disparate impact. 458 U.S. at 389.
Read in context, we believe that the Supreme Court’s citation
to General Building Contractors in the University of Michi-
gan cases was meant to signal only the fact that both § 1981
and the Fourteenth Amendment require intentional discrimi-
nation. Whether strict scrutiny applies to § 1981 claims was
19072 DOE v. KAMEHAMEHA SCHOOLS
not at issue. In Grutter and Gratz, cases involving state
action, the schools perforce did not argue that their programs
satisfied § 1981. The Court in Grutter and Gratz simply did
not consider the question.
[5] 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 § 1981
Only step three of the traditional three-stage Title VII anal-
ysis, Patterson, 491 U.S. at 187; Johnson, 480 U.S. at 626, is
at issue here. At step one, Plaintiff established a prima facie
case by showing (as the Schools concede) that the Kameha-
meha Schools consider applicants’ Hawaiian ancestry, or lack
thereof, in making admissions decisions. At step two, the
Kamehameha Schools have specified their remedial admis-
sions policy as the non-discriminatory rationale for their deci-
sions. See Johnson, 480 U.S. at 626 (holding that an
affirmative action plan provides a legitimate reason for a hir-
ing decision that considers race or ethnicity). The validity of
this policy is the focus of the parties’ attentions in this case.
That is, at step three, Plaintiff asserts that the Schools’ “justi-
fication is pretextual and the [admissions] plan is invalid.” Id.
The burden of proof at this step lies with Plaintiff. Id. at 627.
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. 443 U.S. at 208. Weber
involved an employer that had established a training program
DOE v. KAMEHAMEHA SCHOOLS 19073
and reserved 50% of the program’s openings for black
employees until the percentage of black workers in its plant
reached the percentage of black workers in the local labor
force. Id. at 197. In concluding that the plan was permissible
under Title VII, the Court noted that the plan did not “unnec-
essarily trammel the interests of the white employees” or
“create an absolute bar to the[ir] advancement.” Id. at 208.
The Court based its decision in part on the fact that the plan
was a “temporary measure": “Preferential selection . . . will
end as soon as the percentage of black skilled craftworkers in
the Gramercy plant approximates the percentage of blacks in
the local labor force.” Id. at 208-09. The Court declined to
“define in detail the line of demarcation between permissible
and impermissible affirmative action plans.” Id. at 208; see
also Johnson, 770 F.2d at 757 (noting that the Supreme Court
had not “establish[ed] a rigid formula for testing the validity
of an affirmative action plan”), aff’d, 480 U.S. at 641.
[6] Eight years later, in Johnson, the Court concluded that
a county-agency employer did not violate Title VII by taking
into consideration the sex of a female employee in 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 “man-
ifest imbalance” in a “traditionally segregated job categor[y].”
Johnson, 480 U.S. at 631 (internal quotation marks omitted).
Like Weber, Johnson also considered whether the plan unnec-
essarily trammeled the rights of the non-preferred class, in
this case men, or created an absolute bar to their advance-
ment. Id. at 637-38. Finally, the Court considered whether the
plan was “temporary,” designed to “attain a balanced work
force, not to maintain one.” Id. at 639-40.
[7] We recently distilled the Court’s analysis this way: pri-
vate employers’ affirmative action plans (1) must respond to
a manifest imbalance in the work force; (2) must not “unnec-
essarily trammel[ ]” the rights of members of the non-
preferred class or “create an absolute bar to their advance-
19074 DOE v. KAMEHAMEHA SCHOOLS
ment"; and (3) must do no more than is necessary to attain a
balance. Rudebusch v. Hughes, 313 F.3d 506, 520-21 (9th Cir.
2002). In Rudebusch, we found that the pay equity plan at
issue was “not wholly analogous” to the hiring and promo-
tional plans at issue in Weber and Johnson because of “some
significant conceptual differences” between the types of
plans. Id. at 520. We nevertheless applied the three Johnson
factors, taking account of “the context of our case.” Id. at 521.
Similarly, we hold today that the Johnson factors, modified to
fit “the context of our case,” provide the appropriate frame-
work for determining whether a wholly private K-12 educa-
tional institution’s remedial admissions policy is valid.
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, 539 U.S. at 328
(deferring to education officials in admissions decisions);
Weber, 443 U.S. at 206 (giving deference to employers in hir-
ing decisions). In the employment context, the Supreme Court
held that, in enacting Title VII, Congress wished to preserve,
to the maximum extent possible, the freedom and discretion
traditionally afforded to private businesses. Weber, 443 U.S.
at 206-07. In the educational context, the Court has under-
scored that “complex educational judgments” should be left
largely to schools. Grutter, 539 U.S. at 328; see also Regents
of Univ. of Mich. v. Ewing, 474 U.S. 214, 226 n.12 (1985)
(noting that “[a]cademic freedom thrives . . . on autonomous
decisionmaking by the academy itself” (citations omitted)).
The importance of “educational autonomy"—at least in the
post-secondary environment—is rooted in the First Amend-
ment. See Grutter, 539 U.S. at 329 (“[G]iven . . . the expan-
sive freedoms of speech and thought associated with the
university environment, universities occupy a special niche in
our constitutional tradition.”); Regents of Univ. of Cal. v.
Bakke, 438 U.S. 265, 312 (1978) (opinion of Powell, J.)
(“Academic freedom . . . long has been viewed as a special
concern of the First Amendment.”). Consequently, we must
DOE v. KAMEHAMEHA SCHOOLS 19075
accord deference to private educational decisionmakers just as
we do to private business decisionmakers and public educa-
tional decisionmakers.
More importantly, schools perform a significantly broader
function than do employers. The Supreme Court has long rec-
ognized 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, 539 U.S. at 331
(“We have repeatedly acknowledged the overriding impor-
tance of preparing students for work and citizenship, describ-
ing education as pivotal to sustaining our political and cultural
heritage with a fundamental role in maintaining the fabric of
society.” (internal quotation marks omitted)); Brown v. Bd. of
Educ., 347 U.S. 483, 493 (1954) (“[E]ducation . . . is the very
foundation of good citizenship.”). Educational opportunity is
crucial to the development of tomorrow’s leaders. See Grut-
ter, 539 U.S. at 332 (“In order to cultivate a set of leaders
with legitimacy in the eyes of the citizenry, it is necessary that
the path to leadership be visibly open to talented and qualified
individuals of every race and ethnicity.”).
Primary and secondary school education is the gateway to
higher education and is of paramount importance for the train-
ing of our nation’s workforce. See Plyler v. Doe, 457 U.S.
202, 221 (1982) (“[E]ducation provides the basic tools by
which individuals might lead economically productive lives to
the benefit of us all.”); City of Cincinnati v. Discovery Net-
work, Inc., 507 U.S. 410, 437 (1993) (Blackmun, J., concur-
ring) (“Our cases have consistently recognized the importance
of education to the professional and personal development of
the individual.”). Perhaps more relevant here, increased pri-
mary and secondary school educational achievement by
minority groups can obviate the downstream need for affirma-
tive action programs by employers and institutions of higher
learning. See Johnson, 480 U.S. at 635 (noting that very lim-
ited numbers of women and minorities possess the “special-
ized training and experience” required for many categories of
19076 DOE v. KAMEHAMEHA SCHOOLS
jobs); Grutter, 539 U.S. at 346 (Ginsburg, J., concurring)
(noting that the need for affirmative action programs in higher
education will decrease “[a]s lower school education in
minority communities improves”).
In sum, schools educate students for their future endeavors
in society as a whole. While private employers strive primar-
ily 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 chil-
dren to become citizens, leaders, and workers.
[8] The Title VII cases, in the employment context, recog-
nize 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. By contrast, ensuring that signifi-
cantly underachieving minority groups are included fully as
tomorrow’s citizens, leaders, and workers necessarily focuses
externally. Considering this important difference, we con-
clude that we should use a standard for evaluating remedial
racial preferences by wholly private primary and secondary
schools that is akin to that used in Title VII employment
cases, but that takes into account the inherently broad and
societal focus of the educational endeavor.
[9] Adjusting the first Johnson factor to account for this
external focus, we hold that, to justify a remedial racial pref-
erence, a private school must demonstrate that specific, signif-
icant 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 dis-
tinguishes a more amorphous program that relies solely on
DOE v. KAMEHAMEHA SCHOOLS 19077
general past societal discrimination. See City of Richmond v.
J.A. Croson Co., 488 U.S. 469, 505-06 (1989).
[10] 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 tram-
mel” the rights of students in the non-preferred class or
“create an absolute bar” to their advancement. The third John-
son 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 conclu-
sion is particularly misplaced. As his dissent quotes several
times, diss. at 19105, 19106, 19110, the Supreme Court in
Runyon held that private primary schools in Virginia that cat-
egorically denied admission to African-American applicants
represented a “classic violation of § 1981.” Runyon, 427 U.S.
at 172. Nothing in the modified Johnson framework that we
adopt today, or indeed anywhere in this opinion, is to the con-
trary. Quite simply, Runyon is inapposite: The program at
issue in Runyon would certainly fail the first step of our anal-
ysis because specific, significant imbalances did not exist
favoring African-Americans. To the contrary, specific, signif-
icant imbalances did exist disfavoring African-Americans.
The Civil Rights Act was passed specifically with the plight
of African-Americans in mind. It is therefore unsurprising
that the Court labeled a whites-only admissions policy a
“classic violation of § 1981.”
By contrast, the very nature of affirmative action plans is
that historically disfavored and underachieving minorities
may be given preferential treatment in certain narrowly
19078 DOE v. KAMEHAMEHA SCHOOLS
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
[11] To meet the first modified Johnson factor, a private
school must demonstrate that, in the relevant community, spe-
cific, significant imbalances in educational achievement pres-
ently 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 disadvan-
tages suffered by Native Hawaiians and their marginalized
status. 20 U.S.C. § 7512.
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
DOE v. KAMEHAMEHA SCHOOLS 19079
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 educa-
tional 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 tai-
lored to students of Native Hawaiian descent. The Schools
have pinpointed areas in which Native Hawaiians, in particu-
lar, are severely disadvantaged and have developed a curricu-
lum to attend to those needs. The Schools have instituted a
“Leadership Model” of education, meant to “restore self-
identity, integrate Native Hawaiian culture, heritage, lan-
guage, and traditions into the educational process, and provide
a first-rate educational experience for Native Hawaiians.” The
Schools’ efforts are aimed at increasing scores on standard-
ized tests, increasing the number of Native Hawaiians attend-
ing colleges and graduate schools, improving Native
Hawaiian representation in professional, academic, and mana-
gerial positions, and developing community leaders who are
committed to improving the lives of all Native Hawaiians.
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 Hawai-
ian Cultural Program that continues today. Courses on Hawai-
ian history and culture are required before a student may
graduate.
[12] The Kamehameha Schools have shown that specific,
significant imbalances in educational achievement currently
affect Native Hawaiians in Hawaii and that the Schools aim
19080 DOE v. KAMEHAMEHA SCHOOLS
to remedy that imbalance. Accordingly, they have satisfied
the “manifest imbalance” criterion.
2. Do Not Unnecessarily Trammel the Rights of
Members of the Non-Preferred 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 tram-
mels 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.10 For the rea-
sons that follow, however, the Schools’ admissions policy
does not unnecessarily trammel the rights of non-Native
Hawaiians or create an absolute bar to their advancement.
[13] We begin by noting that nothing in the record suggests
that educational opportunities in Hawaii are deficient for stu-
dents, like Plaintiff, who lack any Native Hawaiian ancestry.
To the contrary, the same statistical data that portray the diffi-
culties of Native Hawaiian children generally portray much
greater educational achievement, in both public and private
10
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.
DOE v. KAMEHAMEHA SCHOOLS 19081
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 unnec-
essarily trammels the rights of non-Native Hawaiians nor
absolutely bars their advancement in the relevant community.
Our inquiry does not stop there, however. The history of
Native Hawaiians and of the Kamehameha Schools has cer-
tain unique features that Congress has acknowledged. In
1993, Congress admitted that the United States was responsi-
ble, 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 reen-
acted that legislation in 2002, Congress made findings regard-
ing the disadvantages faced by Native Hawaiian students in
the public school system in Hawaii. 20 U.S.C. §§ 7901-7941,
7512(16). As part of the 2002 reenactment, a congressional
committee even urged the Bishop Trust, which operates the
Kamehameha Schools, to “redouble its efforts to educate
Native Hawaiian children.” H.R. Rep. No. 107-63(I), at 333
(2001) (emphasis added).
Congressional recognition of the challenges faced by
Native Hawaiians in the educational arena supports our con-
clusion that the Schools’ policy does not unnecessarily tram-
mel 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 peti-
19082 DOE v. KAMEHAMEHA SCHOOLS
tioner.” 480 U.S. at 638. Similarly, here, we must ask whether
Plaintiff had a legitimate, firmly rooted expectation of admis-
sion to the Schools. The answer is “no.”
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 educa-
tional parity with others. See supra p. 19058. In the interven-
ing 118 years, the Schools’ admissions policy, and therefore
the expectations of the non-Native Hawaiians, has remained
constant. Thus, denial of Plaintiff’s application for admission
“unsettled no legitimate, firmly rooted expectation.” Johnson,
480 U.S. at 638.
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, 480
U.S. at 640; Weber, 443 U.S. at 208.
The Kamehameha Schools’ decision to give preference to
students with Native Hawaiian ancestry is limited in duration
DOE v. KAMEHAMEHA SCHOOLS 19083
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 in one recent
year, see supra note 10, the Schools’ policy is to open admis-
sions to any qualified candidate. Second, preference will be
given to students with Native Hawaiian ancestry only for so
long as is necessary to remedy the current educational effects
of past, private and government-sponsored discrimination and
of social and economic deprivation. These dual aspects of the
Kamehameha Schools’ policy constitute an “[e]xpress assur-
ance that a program is only temporary.” Johnson, 480 U.S. at
639-40. An explicit or immediately foreseeable end date has
never been required for an affirmative action plan to be valid.
See, e.g., id. at 639 (finding the lack of an “explicit end date”
"unsurprising” and upholding an employer’s affirmative
action plan even though “only gradual” improvements were
anticipated); see also Grutter 539 U.S. at 343 (adopting Jus-
tice Powell’s reasoning in the 25-year-old Bakke decision,
which upheld affirmative action programs in higher educa-
tion, and expecting that in 25 more years, these programs
“will no longer be necessary"—a span of 50 years).
[14] 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 con-
tinue to face.
[15] 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 con-
text. The Schools have shown that the admissions policy,
favoring students of Native Hawaiian descent, is legitimate
and valid.
19084 DOE v. KAMEHAMEHA SCHOOLS
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 19104-52.) For the reasons that we
have detailed, we believe that the dissent’s focus is too nar-
row 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, 480 U.S. at
640 (“In evaluating the compliance of an affirmative action
plan with Title VII’s prohibition on discrimination, we must
be mindful of this Court’s and Congress’ consistent emphasis
on the value of voluntary efforts to further the objectives of
the law.” (internal quotation marks omitted)); see also Rude-
busch, 313 F.3d at 522-24 (revising the third Johnson factor
to analyze quantitative rather than temporal limitations
because of the context).
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 cau-
tioned, “[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,
443 U.S. at 201 (internal quotation marks omitted). The
Kamehameha Schools’ admissions policy holds true to the
spirit of § 1981 by supporting Native Hawaiian students so
that they may attain parity with their non-Native Hawaiian
peers. See Gen. Bldg. Contractors, 458 U.S. at 386.
D. Alternatively, and in Addition, Congress Specifically
Intended to Allow the Kamehameha Schools to Operate
When, in 1991, It Re-enacted § 1981.
Plaintiff brought suit under § 1981. He has brought no con-
stitutional claims. Thus, we are charged only with determin-
ing Congress’ intent.
DOE v. KAMEHAMEHA SCHOOLS 19085
Congress originally enacted what later became 42 U.S.C.
§ 1981 in 1870. At that time, the statute did not apply in
Hawaii because it was an independent, sovereign kingdom.
Congress could not have had any conscious intention as to
how the statute would apply in Hawaii, because it did not
apply at all. When Hawaii became a territory in 1898, § 1981
applied, as it continued to do when Hawaii became a state in
1959, see Hawaiian Statehood Act, Pub. L. No. 86-3, § 15, 73
Stat. 4.11 (1959), but it was not until 1991 that Congress
again addressed and amended § 1981, see Civil Rights Act of
1991, Pub. L. No. 102-166, § 101, 105 Stat. 1071. The 1991
amendments are the most recent, and indeed the only, time
since Hawaii became a territory that Congress has reenacted
§ 1981.
Therefore, we must determine what Congress intended,
with regard to Native Hawaiians, when it reenacted § 1981 in
1991. Because “[w]e assume that Congress is aware of exist-
ing law when it passes legislation,” Miles v. Apex Marine
Corp., 498 U.S. 19, 32 (1990), we must consider Congress’
long history of providing for Native Hawaiians through legis-
lation. See Goodyear Atomic Corp. v. Miller, 486 U.S. 174,
184-85 (1988) (noting that courts “generally presume that
Congress is knowledgeable about existing law pertinent to the
legislation it enacts”). By construing § 1981 in the context of
past congressional action that recognizes and provides for
Native Hawaiians, we preserve the “sense and purpose” of all
relevant statutes. See Watt v. Alaska, 451 U.S. 259, 267
(1981) (noting that it is the duty of the courts to give effect
to differing and conflicting statutes so as to preserve their
“sense and purpose”). Importantly, the Supreme Court has
expressly considered contemporaneous legislation when inter-
preting the scope of § 1981. 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 § 1981 to reach private acts of discrimina-
tion. 427 U.S. at 174; see also Weber, 443 U.S. at 201 (noting
that the application of Title VII to remedial affirmative action
19086 DOE v. KAMEHAMEHA SCHOOLS
plans must be read in light of its legislative history and “the
historical context from which the Act arose”).
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 § 1981. We consider
the post-1991 statutes to the extent that they demonstrate
Congress’ own understanding of § 1981. That is, we presume
that Congress acts consistently with the extant body of law;
statutes enacted after 1991, therefore, must be read consis-
tently with the revised version of § 1981. See Cannon v. Univ.
of Chi., 441 U.S. 677, 696-97 (1979) (concluding that elected
officials are presumed to know the law, and that statutes
should be read consistently with each other).
Beginning as early as 1920, Congress recognized that a
special relationship existed between the United States and
Hawaii. See Hawaiian Homes Commission Act, 1920, 42 Stat.
108 (1921) (designating approximately 200,000 acres of
ceded public lands to Native Hawaiians for homesteading).
Over the years, Congress has reaffirmed the unique relation-
ship that the United States has with Hawaii, as a result of the
American involvement in the overthrow of the Hawaiian
monarchy. See, e.g., 20 U.S.C. § 7512(12), (13) (Native
Hawaiian Education Act, 2002); 42 U.S.C. § 11701(13), (14),
(19), (20) (Native Hawaiian Health Care Act of 1988).
Congress has relied on the special relationship that the
United States has with Native Hawaiians to provide specifi-
cally 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
DOE v. KAMEHAMEHA SCHOOLS 19087
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 § 1981, Congress passed the Augustus F. Hawkins-
Robert T. Stafford Elementary and Secondary School
Improvement Amendments of 1988. 20 U.S.C. §§ 4901-4909
(1988) (repealed 1994) (hereinafter “Hawkins-Stafford
Amendments”). Congress made extensive findings, similar to
the findings that it later made in 2002, see supra pp. 19060-
61, about the educational needs of Native Hawaiians and rec-
ognized the necessity for “special efforts in education recog-
nizing the unique cultural and historical circumstances of
Native Hawaiians.” 20 U.S.C. § 4901(9) (1988) (repealed
1994). For instance, Congress concluded that it has the power
to “specially legislate for the benefit of Native Hawaiians,”
encouraged Native Hawaiians to play an active role in plan-
ning and managing Native Hawaiian educational programs,
and noted that Native Hawaiians disproportionally fell below
their peers in terms of educational achievement and progress.
Id. § 4901(2) (1988) (repealed 1994). Congress then went on
to affirm specifically the mission of Kamehameha Schools
and the Schools’ model elementary curriculum, approving by
name the Schools’ continued research and assessment activi-
ties. Id. § 4904(a) (1988) (repealed 1994). Similarly, Congress
directed the Secretary of Education to make grants to the
Schools “for a demonstration program to provide Higher Edu-
cation fellowship assistance to Native Hawaiian students.” Id.
§ 4905(a) (1988) (repealed 1994). The sole recipients of that
assistance were to be “Native Hawaiians,” a term that was
defined in the statute, as it is by Kamehameha Schools, as “a
descendant of the aboriginal people, who prior to 1778, occu-
19088 DOE v. KAMEHAMEHA SCHOOLS
pied and exercised sovereignty in the area that now comprises
the State of Hawaii.”11 Id. § 4909(1)(C) (1988) (repealed
1994).
The Hawkins-Stafford Amendments were repealed in 1994.
20 U.S.C. § 4901 (1991) (repealed 1994). But for two reasons
that fact does not alter the landscape of Native Hawaiian-
oriented congressional enactments against which § 1981 must
be read. First, when Congress reenacted § 1981 in 1991, the
Hawkins-Stafford Amendments were still in effect. Second,
Congress has continued thereafter to emphasize the need for
special educational opportunities for Native Hawaiian stu-
dents. (See Concurrence, pp. 19101-02.)
After reenacting § 1981, Congress passed the Native
Hawaiian Education Act of 1994, 20 U.S.C. §§ 7901-7941,
and then reenacted that statute in 2002, 20 U.S.C. §§ 7511-
7517 (hereinafter “NHEA”). Like the Hawkins-Stafford
Amendments, the NHEA recognized the special needs of
Native Hawaiian students and the great disadvantages that
they still face in Hawaii. Id. § 7512. As part of the No Child
Left Behind Act of 2001, a congressional committee favor-
ably mentioned the Bishop Trust and exhorted the Schools to
“redouble [their] efforts” to provide for Native Hawaiians.
H.R. Rep. No. 107-63(I), at 333.
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 § 1981. It would be incongruous to
conclude that while Congress was repeatedly enacting reme-
dial measures aimed exclusively at Native Hawaiians, at the
same time Congress would reject such Native Hawaiian pref-
11
According to the record, as we have noted, the Kamehameha Schools
currently receive no money from Congress.
DOE v. KAMEHAMEHA SCHOOLS 19089
erences through § 1981. Moreover, by reenacting § 1981 in
the midst of passing other legislation to provide specifically
and particularly for the education of Native Hawaiians, Con-
gress signaled its clear support for the Kamehameha Schools
and for the validity of the Schools’ admissions policy.
[16] Accordingly, the most plausible reading of § 1981, in
light of the Hawkins-Stafford Amendments and the NHEA, is
that Congress intended that a preference for Native Hawai-
ians, 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 has repeatedly identified
as necessary.
CONCLUSION
[17] 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, Prin-
cess 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 def-
icits of Native Hawaiian children in Hawaii, and because in
1991 Congress clearly intended § 1981 to exist in harmony
with its other legislation providing specially for the education
of Native Hawaiians, we must conclude that the admissions
policy is valid under 42 U.S.C. § 1981.
AFFIRMED.
19090 DOE v. KAMEHAMEHA SCHOOLS
W. FLETCHER, Circuit Judge, with whom Judges PREGER-
SON, REINHARDT, PAEZ, and RAWLINSON join, concur-
ring:
I fully concur with Judge Graber’s majority opinion. How-
ever, I write separately because there is an easier and nar-
rower ground for upholding Kamehameha Schools’
admissions policy.
The question in this case is whether 42 U.S.C. § 1981 for-
bids Kamehameha Schools from giving Native Hawaiian
applicants a conclusive preference for admission into its K-12
programs. In answering this question, the majority opinion
assumes that “Native Hawaiian is a racial classification.” Op.
at 19067 n.9. Based on this assumption, it holds that § 1981
permits private schools, in certain circumstances, to prefer
disadvantaged minority groups — not limited to Native
Hawaiians — based on race. But the case before us does not
involve an admissions policy generally favoring disadvan-
taged minorities, or favoring specific racial or ethnic groups
such as African-Americans or Hispanics. It involves only an
admissions policy favoring “Native Hawaiians,” defined as
persons “descended from the aboriginal people who exercised
sovereignty in the Hawaiian Islands prior to 1778.” Op. at
19058.
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, includ-
ing educational benefits, to descendants of Native Hawaiians
because “Native Hawaiian” is a political classification? Sec-
ond, if the answer to this question is yes, has Congress done
so in § 1981?
I. Constitutionality of Preference for Native Hawaiians
Because of their history, ably recounted in the majority
opinion, Native Hawaiians constitute a unique population that
DOE v. KAMEHAMEHA SCHOOLS 19091
has a “special trust relationship” with the United States. Con-
gress has repeatedly “affirmed,” “acknowledged,” “reaf-
firmed,” and “recognized” that relationship. See 20 U.S.C.
§ 7512(8)-(13); 42 U.S.C. § 11701(13)-(16), (19)-(21); see
also S. Joint Res. No. 19, Pub. L. No. 103-150, 107 Stat. 1510
(1993) (“Apology Resolution”). Based on this “historical and
unique legal relationship,” Congress has enacted more than
150 laws that “extend to the Hawaiian people the same rights
and privileges accorded to American Indian, Alaska Native,
Eskimo, and Aleut communities.” 42 U.S.C. § 11701(19); see
Rice v. Cayetano, 528 U.S. 495, 533 (2000) (Stevens, J., dis-
senting); see also Jon M. Van Dyke, The Political Status of
the Native Hawaiian People, 17 Yale L. & Pol’y Rev. 95, 106
n.67 (1998) (listing a sampling of statutes that provide sepa-
rate benefit programs for Native Hawaiians or include them
in benefit programs that assist other native people).
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,” 20 U.S.C.
§ 7512(12)(D), and that “[t]he authority of 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 peo-
ples of Alaska and Hawaii.” 42 U.S.C. § 11701(17). Congress
has emphasized that it “does not extend services to Native
Hawaiians because of their race, but because of their unique
status as indigenous people of a once sovereign nation as to
whom the United States has established a trust relationship.”
20 U.S.C. § 7512(12)(B).
In Morton v. Mancari, 417 U.S. 535, 539, 551 (1974),
“non-Indian employees” of the Bureau of Indian Affairs chal-
lenged a hiring preference for American Indians as “invidious
racial discrimination in violation of the Due Process Clause of
the Fifth Amendment.” The Court held that the tribal Indian
classification is “political rather than racial in nature.” Id. at
554 n.24. Benefits were “granted to Indians not as a discrete
19092 DOE v. KAMEHAMEHA SCHOOLS
racial group, but, rather, as members of quasi-sovereign tribal
entities.” Id. at 554. Citing the “special relationship” doctrine,
the Court held that the tribal Indian classification did not trig-
ger strict scrutiny.
The special relationship doctrine is based on an acknowl-
edgment 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 (quoting Bd. of County Comm’rs v. Seber, 318 U.S. 705,
715 (1943)); see also United States v. Kagama, 118 U.S. 375,
384 (1886) (“From their very weakness and helplessness, so
largely due to the course of dealing of the federal government
with them, and the treaties in which it has been promised,
there arises the duty of protection, and with it the power.”).
The Court in Mancari noted that “[i]t is in this historical and
legal context that the constitutional validity of the Indian pref-
erence is to be determined.” 417 U.S. at 553. Since the prefer-
ence “can be tied rationally to the fulfillment of Congress’
unique obligation toward the Indians,” the Court held that it
does not violate the equal protection component of the Due
Process Clause. Id. at 555.
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, 437 U.S. 634 (1978), decided after Mancari,
the Court held that “Indian country,” as used in 18 U.S.C.
§ 1151, included the Choctaw Indian Reservation in Missis-
sippi. The Court noted that for many years the Choctaw lands
in Mississippi had not been reservation lands, and that some
Choctaws may have been considered to be reservation Indians
based on their having “one-half or more Indian blood” rather
than on any tribal membership. Id. at 650. The Court con-
cluded, “Neither the fact that the Choctaws in Mississippi are
merely a remnant of a larger group of Indians, long ago
removed from Mississippi, nor the fact that federal supervi-
sion over them has not been continuous, destroys the federal
DOE v. KAMEHAMEHA SCHOOLS 19093
power to deal with them.” Id. at 653. In Delaware Tribal
Business Committee v. Weeks, 430 U.S. 73 (1977), also
decided after Mancari, the Court upheld against a due process
challenge a distribution of funds to both tribal and non-tribal
Indians as “ ‘special treatment [that] can be tied rationally to
the fulfillment of Congress’ unique obligation toward the
Indians.’ ” Id. at 85 (quoting Mancari, 417 U.S. at 555).
For its part, Congress has repeatedly provided special treat-
ment, including distribution of funds, based on broad defini-
tions of the terms “Indian,” “native,” “Native American,” and
“tribal organization” that encompass Indians who are not
members of federally recognized tribes. See, e.g., 25 U.S.C.
§ 479 (defining “Indian” to include “persons of one-half or
more Indian blood” who are not also tribal members); id.
§ 500n (defining “natives of Alaska” as “native Indians, Eski-
mos, and Aleuts of whole or part blood inhabiting Alaska at
the time of the Treaty of Cession of Alaska to the United
States and their descendants of whole or part blood”); id.
§ 1603(c) (defining “Indian” to include “any individual who
(1), irrespective of whether he or she lives on or near a reser-
vation, is a member of a tribe, band, or other organized group
of Indians, including those tribes, bands, or groups terminated
since 1940 and those recognized now or in the future by the
State in which they reside, or who is a descendant, in the first
or second degree, of any such member, or (2) is an Eskimo
or Aleut or other Alaska Native, or (3) is considered by the
Secretary of the Interior to be an Indian for any purpose”); id.
§ 1679(b)(2) (defining “Eligible Indians” to include members
of non-federally recognized tribes so long as the person can
demonstrate descent from an Indian resident in California as
of 1852); id. § 2902(1) (defining “Native American” as “an
Indian, Native Hawaiian, or Native American Pacific Island-
er”); 38 U.S.C. § 3765(4) (defining “tribal organization” to
include “the Department of Hawaiian Homelands, in the case
of native Hawaiians, and such other organizations as the Sec-
retary may prescribe”); 42 U.S.C. § 3002(20) (defining “Na-
tive American” as a member of an Indian tribe or a Native
19094 DOE v. KAMEHAMEHA SCHOOLS
Hawaiian); 43 U.S.C. § 1602(b) (defining “Native” as “a per-
son of one-fourth degree or more Alaska Indian (including
Tsimshian Indians not enrolled in the Metlaktla Indian Com-
munity) Eskimo, or Aleut blood, or combination thereof”).
We observe “the time-honored presumption” that the pas-
sage of the many federal statutes benefitting Native Hawai-
ians, Alaska Natives, and American Indians “is a
‘constitutional exercise of legislative power.’ ” Reno v. Con-
don, 528 U.S. 141, 148 (2000) (quoting Close v. Glenwood
Cemetery, 107 U.S. 466, 475 (1883)). The basis for this exer-
cise of power is Congress’ conclusion that “Native Hawai-
ian,” like “Alaska Native” and “Indian,” is a political
classification subject to the special relationship doctrine.
Unless we were to hold that Congress cannot legislate for the
special benefit of Native Hawaiians, thereby striking down
the enormous swaths of the United States Code enacted pur-
suant to the special relationship doctrine, we must conclude
that the doctrine permits Congress to provide special benefits
to Native Hawaiians.
I recognize that the Court has struck down a statute grant-
ing preferential voting rights to Native Hawaiians, but voting
rights are sui generis. In Rice v. Cayetano, 528 U.S. 495
(2000), the Supreme Court addressed a provision of the
Hawaiian Constitution limiting to “Hawaiians” the right to
vote in a certain statewide election. The term “Hawaiians”
was generally defined as descendants of people inhabiting the
Hawaiian Islands in 1778. Id. at 499, 509. The Court held that
under the Fifteenth Amendment “Congress may not authorize
a State to create a voting scheme of this sort.” Id. at 519. In
so holding, the Court assumed “authority in Congress, dele-
gated to the State, to treat Hawaiians or native Hawaiians as
tribes,” id., but it refused to extend the special relationship
doctrine to the “new and larger dimension” of voting restric-
tions in state elections. Id. at 520.
The Court in Rice was careful to confine its analysis to vot-
ing rights under the Fifteenth Amendment. It cautioned that
DOE v. KAMEHAMEHA SCHOOLS 19095
“[t]he validity of the voting restriction is the only question
before us.” Id. at 521. Emphasizing the importance and
unique character of voting rights under the Fifteenth Amend-
ment, the Court wrote, “the Amendment is cast in fundamen-
tal terms, terms transcending the particular controversy which
was the immediate impetus for its enactment.” Id. at 512. Fur-
ther, “use of racial classifications is corruptive of the whole
legal order democratic elections seek to preserve.” Id. at 517;
see also Shaw v. Reno, 509 U.S. 630, 657 (1993) (“Racial
classifications with respect to voting carry particular dan-
gers.”).
Unlike Rice, the case before us does not involve preferen-
tial voting rights subject to challenge under the Fifteenth
Amendment. Rather, it involves the preferential provision of
educational benefits. To the extent that the federal Constitu-
tion is implicated at all, the relevant text is the Equal Protec-
tion Clause of the Fourteenth Amendment. The Court in Rice
never questioned the validity of the special relationship doc-
trine 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 treat-
ment to Native Hawaiians. The remaining question is whether
Congress has in fact done so under § 1981.
II. Section 1981
When Congress enacted § 1981 in the Civil Rights Act of
1866, Act of Apr. 9, 1866, ch. 31, § 1, 14 Stat. 27, and reen-
acted it four years later in the Enforcement Act of 1870, Act
of May 31, 1870, ch. 114, §§ 16, 18, 16 Stat. 144, the Hawai-
ian Islands were still a sovereign kingdom whose people were
not “within the jurisdiction of the United States.”1 As stated
1
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.
19096 DOE v. KAMEHAMEHA SCHOOLS
by Congress, “from 1826 until 1893, the United States recog-
nized the independence of the Kingdom of Hawaii, extended
full and complete diplomatic recognition to the Hawaiian
Government, and entered into treaties and conventions with
the Hawaiian monarchs to govern commerce and navigation
in 1826, 1842, 1849, 1875, and 1887.” Apology Resolution,
Pub. L. No. 103-150, 107 Stat. at 1510.
For many years after the Hawaiian Kingdom was over-
thrown in 1893, and even after the State of Hawaii was admit-
ted to the Union in 1959, § 1981 posed no threat to
Kamehameha Schools’ preferential admissions policy. But in
1976 the Supreme Court held that § 1981 reaches both (1)
admissions programs at private schools that categorically
exclude African-Americans, Runyon v. McCrary, 427 U.S.
160 (1976), and (2) racial discrimination in private employ-
ment against whites as well as nonwhites, McDonald v. Santa
Fe Trail Transp. Co., 427 U.S. 273 (1976). Together, these
cases intimated that § 1981 might prohibit private school
admissions policies that exclude whites.
In 1991, Congress revised and reenacted § 1981. See Civil
Rights Act of 1991, Pub. L. No. 102-166, § 101, 105 Stat.
1071, 1071-72. By this time, Congress had enacted numerous
statutes that provided exclusive benefit programs for Native
Hawaiians or included them in benefit programs for other
native peoples. Indeed, just a few years before reenacting
§ 1981, Congress passed many laws that gave exclusive con-
tractual or grant benefits to Native Hawaiians and Native
Hawaiian organizations.2 Congress proclaimed that its Native
2
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 Stu-
dents Education Act of 1988, Pub. L. No. 100-297, tit. I, § 4104, 102 Stat.
237, 238 (authorizing grants or contracts with institutions (including
Indian tribes and Native Hawaiian organizations) to carry out programs or
DOE v. KAMEHAMEHA SCHOOLS 19097
Hawaiian benefit programs are “consistent with the historical
and unique legal relationship of the United States with the
government that represented the indigenous native people of
Hawaii,” Native Hawaiian Health Care Act of 1988, Pub. L.
No. 100-579, § 2(2), 102 Stat. at 2916 (codified as amended
at 42 U.S.C. § 11701), and that this relationship gives Con-
gress “the power to specially legislate for the benefit of
Native Hawaiians.” Hawkins-Stafford Amendments, Pub. L.
No. 100-297, tit. IV, § 4001(2), 102 Stat. at 358 (formerly
codified at 20 U.S.C. § 4901(2)) (repealed 1994).
When Congress reenacted § 1981, two recently passed laws
directed Kamehameha Schools — by name — to provide edu-
cational benefits to Native Hawaiians, and only Native
Hawaiians. The Hawkins-Stafford Amendments, passed in
1988, instructed the Secretary of Education to “make grants
projects designed to meet the educational needs of gifted and talented chil-
dren); Drug-Free Schools and Communities Act of 1986, Pub. L. No. 100-
297, tit. I, § 5134, 102 Stat. 252, 261 (1988) (authorizing education grants,
cooperative agreements, or contracts with organizations that primarily
serve and represent Native Hawaiians); 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 et seq. (“Education for Native Hawaiians”), 102 Stat. 130, 358-63
(repealed 1994) (authorizing and developing supplemental educational
programs to benefit Native Hawaiians); Native Hawaiian Health Care Act
of 1988, Pub. L. No. 100-579, 102 Stat. 2916 (authorizing programs to
improve the health status of Native Hawaiians); Handicapped Programs
Technical Amendments Act of 1988, Pub. L. No. 100-630, § 102, 102
Stat. 3289, 3296 (amending the Education of the Handicapped Act to pro-
vide handicapped Native Hawaiian (and other native Pacific basin) chil-
dren with a free appropriate public education); Business Opportunity and
Development Reform Act of 1988, Pub. L. No. 100-656, § 207, 102 Stat.
3853, 3861-62 (amending the Small Business Act by including economi-
cally disadvantaged Native Hawaiian organizations as socially and eco-
nomically disadvantaged small business concerns); Indian Health Care
Amendments of 1988, Pub. L. No. 100-713, § 106, 102 Stat. 4784, 4787-
88 (amending the Public Health Service Act by creating a Native Hawai-
ian Health Professions Scholarship program).
19098 DOE v. KAMEHAMEHA SCHOOLS
to the Kamehameha Schools/Bernice Pauahi Bishop Estate for
a demonstration program to provide Higher Education fellow-
ship assistance to Native Hawaiian students.” Id. § 4005(a),
102 Stat. at 360. One year before reenacting § 1981, Congress
amended the Public Health Service Act to direct the Secretary
to “provide funds to Kamehameha Schools/Bishop Estate for
the purpose of providing scholarship assistance” to eligible
Native Hawaiian students. Act of Nov. 29, 1990, Pub. L. No.
101-644, § 401, 104 Stat. 4662, 4668 (codified as amended at
42 U.S.C. §254s). These federal statutes specifically directed
Kamehameha Schools to do precisely what plaintiffs in this
case say is forbidden by § 1981.
It was not until the 1991 amendments to § 1981 that Con-
gress specified that it intends courts to apply the statute to
substantive discrimination by private actors. See 42 U.S.C.
§ 1981(c) (“The rights protected by this section are protected
against impairment by nongovernmental discrimination and
impairment under color of State law.”). In order to hold for
plaintiff in this case, we would have to conclude that Con-
gress intended this provision to invalidate, sub silentio, the
recently enacted legislation that provided loans and scholar-
ships exclusively to Native Hawaiians at Kamehameha
Schools. But this conclusion would require us to turn our back
on the Supreme Court’s analysis in Mancari, where it rejected
the challenge of non-Indian plaintiffs to Indian employment
preferences as inconsistent with the federal Equal Employ-
ment Opportunity Act of 1972.
The Mancari plaintiffs argued that
since the [Equal Employment Opportunity Act of
1972] proscribed racial discrimination in Govern-
ment employment, the Act necessarily, albeit sub
silentio, repealed the provision of the [Indian Reor-
ganization Act of 1934] that called for the preference
in the [Bureau of Indian Affairs] of one racial group,
Indians, over non-Indians.
DOE v. KAMEHAMEHA SCHOOLS 19099
Mancari, 417 U.S. at 547. The 1972 Act, upon which the
Mancari plaintiffs relied, amended Title VII of the Civil
Rights Act of 1964. Id. at 546-47. Whereas the 1964 Civil
Rights Act had expressly exempted certain Indian prefer-
ences, neither the text nor the legislative history of the amend-
ing 1972 Act made any reference to such preferences. Id.
Given that the 1972 Act was specifically modeled on the 1964
Act, the omission of an exemption for Indian preferences was
especially glaring, and the plaintiffs’ argument for sub silentio
repeal especially strong.
Nevertheless, the Supreme Court unanimously and emphat-
ically rejected the argument for sub silentio repeal by the
1972 Amendment:
It would 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 reaf-
firming 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 attribu-
tion we do not share.
. . . Three months after Congress passed the 1972
amendments, it enacted two new Indian preference
laws . . . . It is improbable, to say the least, that the
same Congress which affirmatively approved and
enacted these additional and similar Indian prefer-
ences 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.
***
19100 DOE v. KAMEHAMEHA SCHOOLS
This is a prototypical case where an adjudication
of repeal by implication is not appropriate. The pref-
erence 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 gov-
erned 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 between the Federal Government and
tribal Indians.
Furthermore, the Indian preference statute is a
specific provision applying to a very specific situa-
tion. The 1972 Act, on the other hand, is of general
application. Where there is no clear intention other-
wise, a specific statute will not be controlled or nul-
lified 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 stat-
utes 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 (emphasis added) (citations omitted).
The principal dissent insists that the failure of § 1981 to
include in its text an explicit exception for Native Hawaiians
DOE v. KAMEHAMEHA SCHOOLS 19101
is fatal to Kamehameha Schools’ admissions policy. But of all
the federal statutes to which strict text-based rules of statutory
construction might be applied, § 1981 is a particularly inap-
propriate candidate. The text of § 1981 only guarantees “the
same right . . . to make and enforce contracts . . . as is enjoyed
by white citizens.” 42 U.S.C. § 1981(a). It does not guarantee
the converse — the right of white persons or citizens to enjoy
the same contractual rights as non-whites. Therefore, accord-
ing to the dissent’s interpretive method, § 1981 should not be
read to protect nonwhites against private racial discrimination.
But we know that, despite the clear text of § 1981, this con-
clusion would be wrong, for the Supreme Court held in 1976
that whites as well as non-whites are protected under § 1981.
McDonald, 427 U.S. at 286-87.
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
20 U.S.C. §§ 7901 et seq.) (repealed 2002), which Congress
later reenacted in the No Child Left Behind Act of 2001. 20
U.S.C. §§ 7511 et seq. As part of the No Child Left Behind
Act of 2001, a congressional committee exhorted the Bishop
Trust, which finances Kamehameha Schools, to “redouble its
efforts to educate Native Hawaiian children.” H.R. Rep. No.
107-63(I), at 333.
The NHEA continues to allocate money to private non-
profit organizations to provide programs for the exclusive
benefit of Native Hawaiians. See 20 U.S.C. § 7515. Kameha-
meha Schools’ definition of “Native Hawaiian” is virtually
identical to that used in the NHEA. See 20 U.S.C.
§ 7517(1)(B) (defining “Native Hawaiian” as “a descendant
of the aboriginal people who, prior to 1778, occupied and
exercised sovereignty in the area that now comprises the State
of Hawaii”). The NHEA expressly declares that “Congress
19102 DOE v. KAMEHAMEHA SCHOOLS
does not extend services to Native Hawaiians because of their
race, but because of their unique status as the indigenous peo-
ple of a once sovereign nation as to whom the United States
has established a trust relationship.” 20 U.S.C. § 7512(12)(B).
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 relation-
ship doctrine to Native Hawaiians. The well established gen-
eral 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 § 1981 forbids private institutions from giving
Native Hawaiians educational benefits when, at the same
time, Congress itself provides such benefits and provides pub-
lic funds for private organizations to do the same.
Conclusion
Congress has invariably treated “Native Hawaiian” as a
political classification for purposes of providing exclusive
educational and other benefits. Under the special relationship
doctrine, Congress has the power to do so. I see nothing in
§ 1981 to indicate that Congress intended to impose upon pri-
vate institutions a more restrictive standard for the provision
of benefits to Native Hawaiians than it has imposed upon
itself.
DOE v. KAMEHAMEHA SCHOOLS 19103
Volume 2 of 2
19104 DOE v. KAMEHAMEHA SCHOOLS
BYBEE, Circuit Judge, with whom Judges KOZINSKI,
O’SCANNLAIN, TALLMAN, and CALLAHAN join, and
with whom Judges RYMER and KLEINFELD 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, 42 U.S.C.
§ 1981. That statute—originally enacted as section sixteen of
the Civil Rights Act of 1870—provides in pertinent part that,
“All persons within the jurisdiction of the United States shall
have the same right in every State and Territory to make and
enforce contracts . . . as is enjoyed by white citizens.” 42
U.S.C. § 1981(a) (2000). Enacted soon after the passage of
the Thirteenth and Fourteenth Amendments, § 1981 like—and
perhaps more than—most of the reconstruction era civil rights
enactments was intended to ensure “that a dollar in the hands
of [any citizen] will purchase the same thing as a dollar in the
hands of a white man.” Jones v. Alfred H. Mayer Co., 392
U.S. 409, 443 (1968). Applying that principle in Runyon v.
McCrary, 427 U.S. 160, 168, 179 (1976), the Supreme Court
held that § 1981 “prohibits private, commercially operated,
DOE v. KAMEHAMEHA SCHOOLS 19105
non-sectarian schools from denying admission to prospective
students because they are” not members of a favored racial
group. Indeed, as Runyon makes clear, discriminating against
a private school applicant solely on the basis of that appli-
cant’s race “amounts to a classic violation of § 1981.” Id. at
172.
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 attempt-
ing 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 mis-
takes. Thus, as set out below in Part I, even though I agree
with the majority that Title VII and not strict scrutiny pro-
vides 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 construc-
tion the majority’s view that Congress implicitly exempted
racial preferences for Native Hawaiians from § 1981 by pass-
ing unrelated—and even since repealed—statutes. Indeed, I
believe the majority’s novel approach to statutory interpreta-
tion is readily emanipulable and would enable courts to
rewrite statutes whenever they want to save a particular pro-
gram, contract, or enactment. Finally, as set out in Part III,
because Native Hawaiians do not constitute a federally recog-
nized tribe and Kamehameha is a private party, I also disagree
with Judge Fletcher’s suggestion that the special relationship
doctrine of Morton v. Mancari, 417 U.S. 535 (1974), can save
Kamehameha’s racially exclusive admissions policy.
19106 DOE v. KAMEHAMEHA SCHOOLS
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 disadvan-
tages facing Native Hawaiians, I cannot turn a blind eye to a
classic violation of § 1981. Noble as Kamehameha’s goals
may be, good intentions are not license to violate our civil
rights laws. Accordingly, I respectfully dissent.
I. REVIEW OF § 1981 UNDER TITLE VII
STANDARDS
The John Doe plaintiff contends that Kamehameha’s
admissions policy—which bars the admission of any non-
Native Hawaiian student, see Maj. Op. at 19080 & n.10—
violates 42 U.S.C. § 1981 because, as Runyon v. McCrary,
427 U.S. 160 (1976), makes clear, discriminating against a
private school applicant solely on the basis of that applicant’s
race “amounts to a classic violation of § 1981.” Id. at 172.
Despite the inherent logic of plaintiff’s argument, the majority
avoids reaching a similar conclusion by holding “[q]uite sim-
ply, Runyon is inapposite,” Maj. Op. at 19077, and grafting a
modified Title VII standard onto § 1981.
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, how-
ever, the majority ignores the critical fact that the admissions
programs involved in Runyon—like Kamehameha’s- violated
§ 1981 because they used race as the determinative admis-
sions factor. Instead, the majority converts Runyon into a case
about a “whites-only admissions” program that is “inappo-
site” to Kamehameha’s Native Hawaiians-only admissions
policy. Id. I find the majority’s decision to dismiss Runyon in
order to approve a policy that bars African American (and any
other) children who lack Native Hawaiian ancestry to be
unfortunate and wrong.
Putting those concerns aside for the moment, and turning
to the next step in the majority’s analysis, the majority holds
DOE v. KAMEHAMEHA SCHOOLS 19107
that Title VII scrutiny, and not strict scrutiny, applies to
alleged § 1981 violations. Maj. Op. at 19071-72. That second
step in the majority’s analysis is sound. Like the majority, I
agree that Title VII standards and not strict scrutiny must
apply to § 1981 actions because to hold otherwise would
effectively render the Title VII’s provisions that expressly
contemplate affirmative action plans nonsensical. Maj. Op. at
19070-71; see also Schurr v. Resorts Int’l Hotel, Inc., 196
F.3d 486, 498-99 (3d Cir. 1999); Edmonson v. United States
Steel Corp., 659 F.2d 582, 584 (5th Cir. 1981) (per curiam);
Setser v. Novack Inv. Co., 657 F.2d 962, 966-68 (8th Cir.
1981) (en banc).
Applying the Title VII approach, the majority also correctly
holds that the burden shifting analysis of McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), applies to plaintiff’s
§ 1981 claim. See Maj. Op. at 19068-69. Under that test,
“[t]he complainant in a Title VII trial must carry the initial
burden under the statute of establishing a prima facie case of
racial discrimination.” McDonnell Douglas, 411 U.S. at 802.
Where an explicit race-based policy exists, proof of that fact
alone is sufficient to establish a prima facie case. If the plain-
tiff proves his prima facie case, a rebuttable presumption of
intentional discrimination arises, see Tex. Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 254 (1981), and the burden
of production “shift[s] to the employer to articulate some
legitimate, nondiscriminatory reason” for the conduct at issue.
McDonnell Douglas, 411 U.S. at 802. “The existence of an
affirmative action plan provides such a rationale.” Johnson v.
Transp. Agency, 480 U.S. 616, 626 (1987). “If such a plan is
articulated as the basis for the employer’s decision, the burden
shifts to the plaintiff to prove that . . . the plan is invalid.” Id.
As Kamehameha concedes that it employs a preference that
favors Native Hawaiian applicants, plaintiff has met his bur-
den to show a prima facie case of racial discrimination. Maj.
Op. at 19072. Kamehameha argues, however, that its conduct
is permissible because its admissions policy was executed
19108 DOE v. KAMEHAMEHA SCHOOLS
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 19072-73.
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, 443 U.S. 193 (1979), and
Johnson v. Transportation Agency, 480 U.S. 616 (1987), an
affirmative action program must satisfy the following factors
to be considered valid: (1) It must be “justified by the exis-
tence of a ‘manifest imbalance’ ” in the employer’s workforce
that is reflective of traditionally segregated job categories; (2)
it may not “ ‘unnecessarily trammel[ ] the rights of [other]
employees or create[ ] an absolute bar to their advance-
ment’ ”; and (3) it must “be designed to do [no] more than
‘attain a balance.’ ” Rudebusch v. Hughes, 313 F.3d 506, 520
(9th Cir. 2002) (first and third alteration in original) (quoting
Johnson, 480 U.S. at 631, 637-38, 639).1
Reasoning that primary and secondary educational con-
tracts are different, however, the majority alters all three fac-
tors and holds that a private school may discriminate on the
basis of race whenever: (1) “significant imbalances in educa-
1
Rudebusch did not include the requirement that the “manifest imbal-
ance” be present in a job category that was traditionally segregated in its
statement of the Title VII test. See 313 F.3d at 520. However, all of the
cases we cited in Rudebusch to support the manifest imbalance factor
included the traditional segregated job category requirement in their state-
ment of the test. See Johnson, 480 U.S. at 631; Weber, 443 U.S. at 204;
Higgins v. City of Vallejo, 823 F.2d 351, 356 (9th Cir. 1987). Rudebusch
gives no indication that it intentionally excluded this aspect of the require-
ment, and the defendant did not argue that this requirement had not been
met. Thus, I do not believe that Rudebusch loosened the requirement that
a job category must be traditionally segregated before an affirmative
action plan is permissible.
DOE v. KAMEHAMEHA SCHOOLS 19109
tional 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 abso-
lute bar to their advancement”; and (3) “the [discriminatory]
policy [does] no more than is necessary to correct the imbal-
ance . . . identified at the first step.” Maj. Op. at 19077.
Though I recognize that the Title VII standard was forged
in the employment discrimination context and that some mod-
ification may be necessary to adapt it to other settings, I dis-
agree, as explained below, with the majority’s general
justification for departing from precedent and with each spe-
cific alteration it makes to the Title VII standard. Further-
more, I also disagree with the majority’s application of its
own standard.
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 § 1981’s text to suggest
that contracts made with “private employers [that] strive pri-
marily to make money[ ] and public employers [that] perform
a specific public function” should be subject to a different
standard than primary and secondary schools that have “a
much broader [external] mission.” Maj. Op. at 19076. Indeed,
the majority neglects the fact that § 1981 guarantees to “[a]ll
persons . . . the same right . . . to make and enforce contracts
. . . as is enjoyed by white citizens.” 42 U.S.C. § 1981(a)
(emphasis added). Given § 1981’s plain text, then, it is not
surprising that the majority cannot cite a single case to sup-
port the novel proposition that primary and secondary educa-
tional contracts are different from other contracts and are
entitled to special treatment under § 1981.
19110 DOE v. KAMEHAMEHA SCHOOLS
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 relation-
ships 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 . . . .
[N]either 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].
427 U.S. at 172-73 (quotation and citation omitted) (footnote
omitted). Thus, the majority’s argument that primary and sec-
ondary private school educational contracts should be treated
differently from other contracts under § 1981 was squarely
rejected in Runyon, and I would adhere to that precedent.
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. 480 U.S. at 626-
40; see also id. at 631 (“[W]e must first examine whether [the
employment] decision was made pursuant to a plan prompted
DOE v. KAMEHAMEHA SCHOOLS 19111
by concerns similar to those of the employer in Weber. Next,
we must determine whether the effect of the plan on [the non-
preferred race] is comparable to the effect of the Plan in that
case.”); id. at 627 (“The assessment of the legality of the
Agency Plan must be guided by our decision in Weber.”
(footnote omitted)).
Our own jurisprudence has closely followed the Supreme
Court’s lead in this area, and, as the majority candidly con-
cedes, under Title VII, we have always applied the same stan-
dard, even when the program “at issue was not wholly
analogous to the hiring and promotional plans at issue in
Weber and Johnson because of some significant conceptual
differences between the types of plans,” Maj. Op. at 19074
(citation and internal quotation marks omitted).2 Our sister
circuits have done the same, even when the case involved pri-
2
We have considered the validity of affirmative action plans in a wide
variety of contexts, and we have always applied the same Title VII stan-
dard. See, e.g., Officers for Justice v. Civil Serv. Comm’n, 979 F.2d 721,
723, 725-26 (9th Cir. 1992) (evaluating a police examination scoring
regime designed “to promote a higher percentage of minority officers”
under an unmodified Title VII standard); Higgins v. City of Vallejo, 823
F.2d 351, 356-58 (9th Cir. 1987) (evaluating a fire department’s affirma-
tive action program under an unmodified Title VII standard); La Riviere
v. EEOC, 682 F.2d 1275, 1278-80 (9th Cir. 1982) (holding that affirmative
action plans by public employers should be subjected to an unmodified
Title VII standard, and evaluating a California Highway Patrol affirmative
action program under that standard); see also Gilligan v. Dep’t of Labor,
81 F.3d 835, 837 (9th Cir. 1996) (discussing an affirmative action program
at the Department of Labor and stating that the test of its validity is an
unmodified Title VII standard). Indeed, we have also ruled in multiple
Title VII cases involving affirmative action practices at educational insti-
tutions, and we have never even suggested that conduct by such institu-
tions might be subjected to a different standard. See, e.g., Rudebusch, 313
F.3d 506 (considering a university’s equity pay adjustment under Title
VII’s standards for affirmative action programs); Cerrato v. S.F. Cmty.
Coll. Dist., 26 F.3d 968 (9th Cir. 1994) (affirming a district court judg-
ment dismissing a claim, brought by a professor who was passed over for
the position of dean, that challenged the district’s affirmative action policy
under an unmodified Title VII standard).
19112 DOE v. KAMEHAMEHA SCHOOLS
mary and secondary schools that have “a much broader
[external] mission.” See, e.g., Taxman v. Bd. of Educ. of Twp.
of Piscataway, 91 F.3d 1547, 1564 (3d Cir. 1996) (en banc)
(evaluating a plan for the hiring and firing of primary and sec-
ondary school teachers under the Weber standard), cert.
granted, 521 U.S. 1117 (1997), cert. dismissed, 522 U.S.
1010 (1997); Cunico v. Pueblo Sch. Dist. No. 60, 917 F.2d
431, 437-38 (10th Cir. 1990) (evaluating a race conscious lay-
off plan for primary and secondary school personnel under the
Weber standard).
The majority fails to explain why we must create a special
standard for primary and secondary educational contract cases.3
If anything, as highlighted above, Runyon compels the con-
clusion that a primary and secondary educational contract—
like any other contract—that discriminates solely on the basis
of race violates § 1981. See 427 U.S. at 172. As noted above,
I also disagree with the majority’s far-reaching adaption of all
three of the Supreme Court’s factors for determining the
validity of an affirmative action program, to which I now turn.
3
The majority’s reference to the First Amendment roots of “educational
autonomy,” see Maj. Op. at 19074, is misleading since the Supreme Court
has consistently rejected First Amendment interests as a justification for
racial discrimination. See, e.g., Runyon, 427 U.S. at 176 (holding that
while, “it may be assumed that parents have a First Amendment right to
send their children to educational institutions that promote” racial discrim-
ination, “it does not follow that the practice of excluding racial minorities
from such institutions is also protected by the same principle”); Norwood
v. Harrison, 413 U.S. 455, 470 (1973) (holding, “[i]nvidious private dis-
crimination may be characterized as a form of exercising freedom of asso-
ciation protected by the First Amendment, but it has never been accorded
affirmative constitutional protections”); see also Hishon v. King & Spal-
ding, 467 U.S. 69, 78 (1984) (noting that under the First Amendment,
“[t]here is no constitutional right, for example, to discriminate in the selec-
tion of who may attend a private school or join a labor union”).
DOE v. KAMEHAMEHA SCHOOLS 19113
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 tradi-
tionally segregated job categories.” Johnson, 480 U.S. at 631
(internal quotation marks ommitted); accord Weber, 443 U.S.
at 208, 209; id. at 212-15 (Blackmun, J., concurring). Our
cases have consistently and faithfully applied this require-
ment. See, e.g., Officers for Justice v. Civil Serv. Comm’n,
979 F.2d 721, 725 (9th Cir. 1992) (“Under Title VII analysis,
voluntary adoption of a race-based remedy may be justified
by a showing that a manifest imbalance exists, reflecting
underrepresentation of [the favored group] in traditionally
segregated job categories.” (internal quotations omitted));
Davis v. City & County of S.F., 890 F.2d 1438, 1448 (9th Cir.
1989) (same); Higgins v. City of Vallejo, 823 F.2d 351, 356
(9th Cir. 1987) (same); La Riviere v. EEOC, 682 F.2d 1275,
1278 (9th Cir. 1982) (applying the same standard to a sex-
based affirmative action plan).
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 com-
parison of the percentage of minorities . . . in the employer’s
work force with the percentage in the area labor market . . .
is appropriate . . . .” Johnson, 480 U.S. at 631-32 (emphasis
added); accord Weber, 443 U.S. at 204-206; Davis, 890 F.2d
at 1448 (“To determine whether such an imbalance has
occurred, the court may compare the percentage of minorities
or women in the employer’s work force with the percentage
in the area labor market or general population.” (emphasis
added)); Higgins, 823 F.2d at 356-57 (similar).
In other words, until today, two findings were required to
satisfy this first factor: (1) the present existence of a manifest
19114 DOE v. KAMEHAMEHA SCHOOLS
imbalance in a particular job category in the employer’s work-
force; and (2) that this imbalance stems from historical segre-
gation 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 dis-
advantaged group in the employer’s workforce in proportion
to its representation in the relevant labor pool. Johnson, 480
U.S. at 631-32, 633 n.10; Weber, 443 U.S. at 198-99, 208-09.
By requiring a goal based on the employer’s own practices,
Weber and Johnson were willing to permit affirmative action
programs without giving all employers license to discriminate
in favor of any group that currently finds itself disadvantaged
anywhere in the labor market. Second, those requirements
ensured that there was a temporal constraint, a well-defined
point after which the preference program would no longer be
necessary—that is, once the “manifest imbalance” in the
employer’s workforce had been corrected. Johnson, 480 U.S.
at 632 (“The requirement that ‘the manifest imbalance’ relate
to a ‘traditionally segregated job category’ provides assurance
both that sex or race will be taken into account in a manner
consistent with Title VII’s purpose of eliminating the effects
of employment discrimination, and that the interests of those
employees not benefiting from the plan will not be unduly
infringed.”); Weber, 443 U.S. at 208-09 (“[T]he plan is a tem-
porary measure; it is not intended to maintain racial balance,
but simply to eliminate a manifest racial imbalance. Preferen-
tial selection of craft trainees at the Gramercy plant will end
as soon as the percentage of black skilled craftworkers in the
Gramercy plant approximates the percentage of blacks in the
local labor force.”). Moreover, an affirmative action program
that correlates to an employer’s own internal practices is nec-
essarily limited in scope and time, because correcting the
“manifest imbalance” is reasonably within the employer’s
control.
In contrast to Weber and Johnson, the majority’s test
merely requires a private school to “demonstrate that specific,
DOE v. KAMEHAMEHA SCHOOLS 19115
significant imbalances in educational achievement presently
affect the target population” in the relevant community.4 Maj.
Op. at 19076. Thus, by completely eliminating any school-
based analysis and jettisoning any historical inquiry,5 the
majority rejects the constraint developed in the Title VII con-
text that affirmative action programs must be limited in scope
and duration. Indeed, the majority effectively green-lights dis-
crimination so long as the identified group currently suffers
from “significant imbalances in educational achievement.” Id.
at 19079. Because such a broad and perpetual license con-
flicts with the Supreme Court’s consistent emphasis on the
limited and temporary nature of permissible affirmative action
plans, see, e.g., Sheet Metal Workers’ Int’l Ass’n v. EEOC,
478 U.S. 421, 475-79 (1986), I cannot endorse the majority’s
new standard. See also, e.g., Grutter v. Bollinger, 539 U.S.
306, 342 (2003) (“The requirement that all race-conscious
admissions programs have a termination point ‘assure[s] all
citizens that the deviation from the norm of equal treatment
of all racial and ethnic groups is a temporary matter, a mea-
sure taken in the service of the goal of equality itself.’ ” (quot-
ing Richmond v. J.A. Croson Co., 488 U.S. 469, 510 (1989)
(plurality opinion)); Weber, 443 U.S. at 208 (noting the affir-
mative action plan in that case was “a temporary measure”);
W. States Paving Co., Inc. v. Wash. State Dep’t of Transp.,
4
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 19076.
For instance, in announcing its new test, the majority maintains that “the
relevant population is the community as a whole,” id., but when the major-
ity applies that test, it appears that, “[t]he relevant community in this case
is the state of Hawaii,” id. at 19078.
5
Whereas the majority justifies neither purge, the second modification
is particularly puzzling given the majority’s repeated suggestion that his-
tory is of particular significance in this case. See, e.g., id. at 19054-56 &
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 19072 (“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.” (emphasis added)).
19116 DOE v. KAMEHAMEHA SCHOOLS
407 F.3d 983, 994 (9th Cir. 2005) (“A narrowly tailored
remedial program must also include adequate durational limi-
tations.”); Smith v. Univ. of Wash., 392 F.3d 367, 375 (9th
Cir. 2004) (“[R]ace-conscious admissions programs must be
limited in time.”).
2. Unnecessary Trammeling the Rights of the Non-
Preferred Group
The majority’s alteration of Weber and Johnson’s second
factor is similarly problematic. Under the second factor, an
affirmative action plan must not “unnecessarily trammel[ ] the
rights of [members of the disfavored group] or create[ ] an
absolute bar to their advancement.” Johnson, 480 U.S. at 637-
38; accord Weber, 443 U.S. at 208. The majority echoes this
test, Maj. Op. at 19077, but it makes two important modifica-
tions.
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 19077. 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 con-
text of his ability to access quality education. See id. at 19077.
Again, as indicated above, that standard conflicts with the
established principle that we look 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, 480 U.S. at 638 (“[W]hile peti-
tioner in this case was denied a promotion, he retained his
employment with the Agency, at the same salary and with the
same seniority, and remained eligible for other promotions.”);
id. at 638 n.15 (“Of the 111 new Skilled Craft jobs [at the
Agency] during [the relevant] period, 105, or almost 95%,
went to men.”); id. at 642 (“The decision to [hire Joyce
DOE v. KAMEHAMEHA SCHOOLS 19117
instead of the plaintiff] was made pursuant to an affirmative
action plan that represents a moderate, flexible, case-by-case
approach to effecting a gradual improvement in the represen-
tation of minorities and women in the Agency’s work force.”
(emphasis added)); Weber, 443 U.S. at 208 (“The plan does
not require the discharge of white workers and their replace-
ment with new black hirees. Nor does the plan create an abso-
lute bar to the advancement of white employees; half of those
trained in the program will be white.” (citation omitted)).
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 discrimi-
nated 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 ade-
quate 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 can-
not 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 commu-
nity as a whole” has been denied an opportunity. See Maj. Op.
at 19080-81 (holding that because “nothing in the record sug-
gests that educational opportunities in Hawaii are deficient for
students, like Plaintiff, who lack any native Hawaiian ances-
try,” Kamehameha’s admissions “policy neither unnecessarily
trammels the rights of non-Native Hawaiians nor absolutely
bars their advancement in the relevant community.” (empha-
sis added)); id. at 19081 (holding that because “[non-Native
Hawaiian] students denied admission by Kamehameha
19118 DOE v. KAMEHAMEHA SCHOOLS
Schools[, as “statistical data” demonstrates,] have ample and
adequate alternative educational options,” Kamehameha’s
admissions policy does not unnecessarily trammel rights or
create an absolute bar (emphasis added)). That standard, how-
ever, conflicts with both the plain meaning of § 1981 and the
basic premise that civil rights laws are “design[ed] to protect
individuals of all races,” McDonald v. Santa Fe Trail Transp.
Co., 427 U.S. 273, 288 n.19 (1976) (emphasis added), and
“not merely a group of individuals, or a body of persons
according to their numbers,” Mitchell v. United States, 313
U.S. 80, 97 (1941). Since, by its own terms, § 1981 “explic-
itly applies to ‘all persons’ ” and not simply groups of indi-
viduals, McDonald, 427 U.S. at 287 (quoting 42 U.S.C.
§ 1981(a)), the majority’s holding that § 1981 protects groups
instead of “all persons” contradicts the statute’s plain meaning.6
Indeed, as the Supreme Court has made clear, “[§] 1981, at a
minimum, reaches discrimination against an individual
because he or she is genetically part of an ethnically and
physiognomically distinctive sub-grouping of homo sapiens,”
Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 613 (1987)
(emphasis added) (internal quotation marks omitted), and not
6
Recognizing that the majority’s new standard conflicts with § 1981’s
plain text, Judge Fletcher suggests that “of all the federal statutes to which
strict text-based rules of statutory construction might be applied, § 1981
is a particularly inappropriate candidate” because under a plain-text read-
ing Ҥ 1981 should not be read to protect nonwhites [sic] against private
racial discrimination.” Conc. Op. at 19101. Because McDonald departed
from Judge Fletcher’s plain-text reading of § 1981, he reasons that we
should reject the plain text of § 1981 altogether and turn to unrelated,
repealed legislation and the pronouncement of a single congressional com-
mittee to interpret § 1981. Id. at 19101-02. What Judge Fletcher forgets,
however, is that McDonald stands for exactly the opposite proposition,
namely that “the language and history of § 1981” demonstrate that
Ҥ 1981 is applicable to racial discrimination in private employment
against white persons.” 427 U.S. at 286-87 (emphasis added). Indeed,
applying the plain text of the statute, McDonald emphasized that, “the
statute explicitly applies to ‘all persons’, including white persons.” Id. at
287 (emphasis omitted); see also id. at 287-96 (discussing the history of
§ 1981).
DOE v. KAMEHAMEHA SCHOOLS 19119
simply, as the majority holds, racial groups qua racial groups.
See Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001)
(holding that under Title VII “the ultimate issue is the rea-
son[ ] for the individual plaintiff’s treatment, not the relative
treatment of different groups within the workplace”); accord
Connecticut v. Teal, 457 U.S. 440, 453-54 (1982) (“[Title
VII’s] principal focus . . . is the protection of the individual
employee, rather than the protection of the minority group as
a whole.”); Furnco Constr. Corp. v. Waters, 438 U.S. 567,
579 (1978) (stating that an employer must “provide an equal
opportunity for each applicant regardless of race, without
regard to whether member’s of the applicant’s race are
already proportionately represented in the workforce”).
This bedrock principle has its origins in the history of the
Fourteenth Amendment, from which § 1981 derives. The
Equal Protection Clause provides in pertinent part that, “No
State shall . . . deny to any person within its jurisdiction the
equal protection of the laws.” U.S. CONST. amend. XIV, § 1
(emphasis added). Just as courts have read Title VII and—
until now—§ 1981 to protect individual rights, courts have
consistently held that the Equal Protection Clause “protect[s]
persons, not groups.” Adarand Constructors, Inc. v. Pena,
515 U.S. 200, 227 (1995). Accordingly, the Supreme Court
has required that “group classification[s] . . . be subjected to
detailed judicial inquiry to ensure that the personal right to
equal protection of the laws has not been infringed.” Id.;
accord Mitchell, 313 U.S. at 97 (“It is the individual . . . who
is entitled to the equal protection of the laws,—not merely a
group of individuals . . . .”); Shelley v. Kraemer, 334 U.S. 1,
22 (1948) (“The rights established [by the Fourteenth Amend-
ment] are personal rights.”); Missouri ex rel. Gaines v. Can-
ada, 305 U.S. 337, 349-351 (1938) (similar); McCabe v.
Atchison, Topeka, & Sante Fe Ry. Co., 235 U.S. 151, 161-62
(1914) (similar); J.E.B. v. Alabama, 511 U.S. 127, 152 (1994)
(Kennedy, J., concurring in judgment) (“The neutral phrasing
of the Equal Protection Clause, extending its guarantee to
‘any person,’ reveals its concern with rights of individuals,
19120 DOE v. KAMEHAMEHA SCHOOLS
not groups (though group disabilities are sometimes the mech-
anism by which the State violates the individual right in ques-
tion).”)
This principle is manifest in one of the cornerstones of our
modern civil rights laws, Shelley v. Kraemer, 334 U.S. 1. In
Shelley, the Supreme Court rejected the argument that
because courts could enforce racially restrictive covenants
equally against both whites and African Americans, enforcing
a racially restrictive covenant against African Americans in
that case did not violate the Equal Protection Clause. Id. at
21-22. In so holding, Shelley reasoned that because “[t]he
rights created by the first section of the Fourteenth Amend-
ment are, by its terms, guaranteed to the individual . . . [i]t is
. . . no answer to . . . say that the courts may also be induced
to deny white persons rights of ownership and occupancy on
grounds of race or color.” Id. at 22. Indeed, “[e]qual protec-
tion of the laws is not achieved through indiscriminate impo-
sition of inequalities.” Id. Contrary to Shelley, the majority
holds that equality can be achieved “through indiscriminate
imposition of inequalities.” Id.7
As there is no reason to depart from the plain meaning of
§ 1981 or the framework espoused in Shelley, I would follow
Supreme Court precedent by considering the rights of individ-
uals, not of groups. Consequently, I cannot concur in the
majority’s modification of the second Weber and Johnson fac-
tor.
3. Attaining a Balance
Finally, the majority reworks the third Weber and Johnson
factor, which requires that an affirmative action plan be “in-
7
The majority’s reasoning cannot be limited to the § 1981 context.
Indeed, if equality can only be achieved through inequality, it is unclear
why the majority’s rationale would not apply with equal force to employ-
ment, housing, or public schools.
DOE v. KAMEHAMEHA SCHOOLS 19121
tended to attain a balanced work force, not to maintain one.”
Johnson, 480 U.S. at 639; accord Weber, 443 U.S. at 208
(holding an affirmative action “plan [should be] a temporary
measure[,] . . . not intended to maintain racial balance, but
simply to eliminate a manifest racial imbalance”). Though the
Supreme Court has not required that all affirmative action
programs contain an explicit end date, Johnson also holds
that, “Express assurance that a program is only temporary
may be necessary if the program actually sets aside positions
according to specific numbers.” 480 U.S. at 639-40. Indeed,
in such cases, a sunset provision is “necessary both to mini-
mize the effect of the program on other employees, and to
ensure that the plan’s goals ‘[are] not being used simply to
achieve and maintain . . . balance.’ ” Id. at 640 (quoting
Weber, 478 U.S. at 477-78); accord Taxman v. Bd. of Educ.
of Twp. of Piscataway, 91 F.3d 1547, 1564 (3d Cir. 1996) (en
banc) (“[B]oth Weber and Johnson unequivocally provide that
valid affirmative action plans are temporary measures that
seek to attain, not maintain a permanent racial . . . balance.”
(internal quotation marks omitted)), cert. granted, 521 U.S.
1117 (1997), cert. dismissed, 522 U.S. 1010 (1997).
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 19082; accord id. at 19077. Pro-
claiming that “[a]n explicit or immediately foreseeable end
date has never been required for an affirmative action plan to
be valid,” Maj. Op. at 19083, however, the majority com-
pletely ignores Johnson’s suggestion that even a partial pref-
erence 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 19082 (hold-
ing that Kamehameha may use race as an exclusive admis-
sions factor “so long as is necessary to remedy the current
educational effects of past, private, and government-
sponsored discrimination and of social and economic depriva-
tion”); id. at 19079 (“The goal [of Kamehameha’s admissions
19122 DOE v. KAMEHAMEHA SCHOOLS
policy] is to bring Native Hawaiian students into educational
parity with other ethnic groups in Hawaii.”); see also id. at
19082 (noting that in the last “118 years, the Schools’ admis-
sions policy . . . has remained constant”). The majority thus
not only rejects Johnson but also the Court’s admonishment
that “race-conscious admissions policies . . . however compel-
ling their goals, are potentially so dangerous that they . . .
must have reasonable durational limits.” Grutter, 539 U.S. at
342 (internal quotation marks and emphasis omitted); accord
id. (“The requirement that all race-conscious admissions pro-
grams have a termination point assure[s] all citizens that the
deviation from the norm of equal treatment of all racial and
ethnic groups is a temporary matter, a measure taken in the
service of the goal of equality itself.” (internal quotation
marks omitted)).
Far from placing a durational limit on Kamehameha’s use
of race as a dispositive admissions factor, the majority actu-
ally 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 majori-
ty’s standard effectively issues private schools a license to
engage in perpetual racial discrimination. Because such a lim-
itless use of race in determining admissions contravenes pre-
cedent, 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
DOE v. KAMEHAMEHA SCHOOLS 19123
that specific, significant imbalances in educational achieve-
ment presently affect the target population” in the relevant
community. Maj. Op. 19077. I have explained above in Part
I.A.1. why the majority’s test is fundamentally flawed and
conflicts with precedent. The majority’s modifications—
eliminating any focus on the schools’ own population and any
reliance on historical practices—relieves Kamehameha of the
burden of demonstrating its policy is limited in scope and
duration. For the reasons I explain in the next two sections,
Kamehameha’s affirmative action program fails both inqui-
ries. Nevertheless, under the majority’s modest thesis, Kame-
hameha’s admissions policy arguably survives the first
revised factor because it is clear that Native Hawaiians suffer
from significant imbalances in educational achievement rela-
tive to most other ethnic groups in Hawaii.
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 19080. 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) “noth-
ing in the record suggests that educational opportunities in
Hawaii are deficient for [non-Native Hawaiian] students”; (3)
non-Native Hawaiians have no “legitimate, firmly rooted
expectation of admission to the Schools”; and (4) “Kameha-
meha 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 chil-
dren with Native Hawaiian ancestry before admitting children
with no such ancestry.” Maj. Op. at 19080-82. None of these
19124 DOE v. KAMEHAMEHA SCHOOLS
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 monar-
chy” 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 19081 (quoting H.R. REP.
NO. 107-63(I), 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 Hawai-
ians 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.8
8
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 Com-
mittee’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, estab-
lished by the last Hawaiian princess, which exists solely to edu-
cate Native Hawaiian children. The Bishop Trust is currently one
of the largest charitable trusts in the world, valued in excess 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(I), at 333 (2001).
DOE v. KAMEHAMEHA SCHOOLS 19125
The majority’s second finding—that non-Native Hawaiians
have other educational opportunities—also fails to justify the
majority’s holding that Kamehameha’s admissions policy
does not create an absolute bar or trammel the rights of the
non-preferred race. In fact, as I have previously discussed, at
pp. 19116-20, supra, I believe that considering non-Native
Hawaiians’ alternatives in this way is unsound under prevail-
ing civil rights case law. But even neglecting that fact, such
reliance is particularly problematic here. Kamehameha has an
illustrious network of alumni and a record of success that
exceeds that of any other school in Hawaii. The tremendous
trust corpus of the Bishop Foundation enables Kamehameha
to offer this excellent education at a severely discounted
price; as the majority notes, the cost of educating each student
approaches $20,000 annually, but tuition at Kamehameha is
less than 10% of this figure, and most students receive finan-
cial aid. See Maj. Op. at 19057-58. No other school in Hawaii
offers the same benefits at such low cost. Thus, the majority’s
second justification flies in the face of logic and cannot justify
the majority’s holding.
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
19082 (citation omitted)—to be unavailing.9 In other words,
9
Moreover, the majority ignores what Johnson actually said. The plain-
tiff in that case was eligible for promotion but he had to compete with
seven other applicants who could have been promoted over him. 480 U.S.
at 638. Accordingly, he did not have a “firmly rooted expectation” in the
position he was denied. Id. (“[P]etitioner had no absolute entitlement to
the road dispatcher position. Seven of the applicants were classified as
qualified and eligible, and the Agency Director was authorized to promote
any of the seven. Thus, denial of the promotion unsettled no legitimate,
firmly rooted expectation on the part of petitioner.” (emphasis added)).
Nowhere did Johnson hold, as the majority concludes, however, that
knowledge of a long-standing discriminatory policy justifies discrimina-
tory decisions made pursuant to that policy.
19126 DOE v. KAMEHAMEHA SCHOOLS
according to the majority, because non-Native Hawaiians
have been discriminated against on the basis of their race for
a long time, they have no cause of action under § 1981. This
view is contrary to history and logic. Perhaps more than any
other enactments in our history, the Fourteenth Amendment
and the civil rights acts unsettled the expectations of an entire
nation accustomed to judging people by their race. Surely the
schools in Runyon would have found no defense by arguing
that their exclusionary policies were open and notorious and
that African-American students had “no expectation of admis-
sion to the Schools.” Maj. Op. at 19082. Advising non-Native
Hawaiians that they have no possibility of admission to
Kamehameha may settle their expectations, but it does not—
for that reason—make the policy lawful.
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 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 19080; accord id. at 19082-83
(noting, “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. (foot-
note omitted) (emphasis added)). The majority then notes, in
a bit of an understatement, that, “[b]ecause the pool of quali-
fied potential students with Native Hawaiian blood greatly
outnumbers the available slots at the Schools, non-Native
Hawaiians generally are not admitted.” Id. at 19080. High-
lighting the understated nature of its conclusion, the majority
then proceeds to drop a footnote explaining that its euphemis-
tic phrase “generally are not admitted” means that, from 1962
until 2002, Kamehameha admitted exactly one student who
was not of Native Hawaiian descent. Id. at 19080 n.10.
DOE v. KAMEHAMEHA SCHOOLS 19127
Proceeding as if its statement that Kamehameha generally
does not admit non-Native Hawaiians proves that Kamehame-
ha’s policy is not an absolute bar, the majority entirely
neglects to mention the circumstances surrounding the admis-
sion 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. Thereaf-
ter, the school did not admit a single non-Native Hawaiian
student until 2002, when it admitted one non-Native Hawaiian
student to its Maui campus. In response to a firestorm of pro-
tests following that decision, Kamehameha’s trustees repeat-
edly apologized to the Native Hawaiian community, stated
that the “situation” had “brought the problems with the admis-
sions process into sharp focus,” Members of Trs. of Kameha-
meha Sch., Kamehameha’s Policy Will Remain, HONOLULU
ADVERTISER, July 27, 2002, and acknowledged that they had
“screwed up major,” Rick Daysog, Angry Ohana Grills Trust-
ees, 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 veri-
fied by the data center.10 Second, Kamehameha temporarily
10
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 biolog-
19128 DOE v. KAMEHAMEHA SCHOOLS
waived application fees for its Maui and Big Island campuses
in order to induce more Native Hawaiians to apply for admis-
sion. Third, Kamehameha further increased the number of
Native Hawaiians applying to its Big Island campus by allow-
ing certain students, who had previously only been eligible for
admission to its main campus in O’ahu, to apply for admis-
sion at the Big Island campus.11 Fourth, Kamehameha also
ceased its preliminary screening for O’ahu and Big Island
applicants.
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 1B. 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 qual-
ified 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 ances-
ical 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 1B;
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 1B (stating that the district court indicated it believed that,
legally, the boy was Native Hawaiian).
11
Kamehameha’s flagship campus on O’ahu receives approximately ten
applications for every available opening, so reducing its applicant pool did
not present the danger that the school would not receive enough qualified
Native Hawaiian applicants.
DOE v. KAMEHAMEHA SCHOOLS 19129
try to the extent permitted by law.” Kamehameha Schools
Admissions Office, Main Page, http://www.ksbe.edu/
admissions/mainpage.html (last visited Sep. 7, 2006). Thus,
because that policy provides no objective guidance whatso-
ever, Kamehameha’s decision leaves it free to restrict admis-
sion solely to Native Hawaiian children, and as the trustees
promised, Kamehameha need never admit a non-Nati
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