Doe

Since 1887, the Kamehameha Schools have operated as the charitable legacy of Princess Bernice Pauahi Bishop, the last direct descendant of King Kamehameha I. Private and non-sectarian, the Kamehameha Schools give preference to students who are of native Hawaiian ancestry. As a result of this policy, attendance at the Kamehameha Schools is effectively limited to those descended from the Hawaiian race. The issue considered here is a significant one in our statutory civil rights law: May a private, nonsectarian, commercially operated school, which receives no federal funds, purposefully exclude a student qualified for admission solely because he is not of pure or part aboriginal blood? The parties agree that this is a case of first impression in our circuit.

The plaintiff, John Doe,' appeals the district court’s grant of summary judgment in favor of defendants, the Kamehameha Schools and the Bernice Pauahi Bishop Estate and its individual trustees. He argues that he was denied entry to the Kamehameha Schools because of his race in violation of 42 U.S.C. § 1981 , which forbids racial discrimination in the making and enforcement of contracts. For the following reasons, we agree with…

concurring in part and dissenting in part:

I respectfully dissent from the majority’s conclusion that 42 U.S.C. § 1981 bars the admissions policy of the Kamehameha Schools. Our only task is to discern Congress’ intent with respect to the application of § 1981 to a wholly private, Hawaiian institution that educates Native Hawaiian children in Hawaii. Although I have no quarrel with many of the general principles set forth so gracefully in the majority opinion — and, indeed, I concur in the opinion insofar as it applies Title VII principles, rather than strict scrutiny, to admissions preferences by a private school — I cannot agree with the opinion’s narrow perspective on congressional intent.

When Congress first enacted § 1981 in 1866, the Hawaiian Islands were still a sovereign kingdom. But in 1991, when Congress revisited and reenacted § 1981 in the Civil Rights Act of 1991, Pub.L. No. 102-166, § 101 , 105 Stat. 1071 , Congress’ view of the statute’s proper scope presumptively was informed by the body of law that had developed in the interim. See Miles v. Apex Marine Corp., 498 U.S. 19, 32 , 111 S.Ct. 317 , 112 L.Ed.2d 275 (1990) (“We assume that Congress is aware of existing…

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, v.

KAMEHAMEHA SCHOOLS/BERNICE

PAUAHI BISHOP ESTATE; CONSTANCE

LAU, in her capacity as Trustee of the Kamehameha Schools/Bernice No. 04-15044

 Pauahi Bishop Estate; NAINOA D.C. No. THOMPSON, in his capacity as CV-03-00316-ACK Trustee of the Kamehameha Schools/Bernice Pauahi Bishop OPINION Estate; DIANE J. PLOTTS, in her capacity as Trustee of the Kamehameha Schools/Bernice Pauahi Bishop Estate; ROBERT K.U. KIHUNE, in his capacity as Trustee of the Kamehameha Schools/Bernice Pauahi Bishop Estate; J. DOUGLAS ING, in his capacity as Trustee of the Kamehameha Schools/Bernice Pauahi Bishop Estate, Defendants-Appellees.  Appeal from the United States District Court for the District of Hawaii Alan C. Kay, District Judge, Presiding

8921 8922 DOE v. KAMEHAMEHA SCHOOLS Argued and Submitted November 4, 2004—Honolulu, Hawaii

Filed August 2, 2005

Before: Robert R. Beezer, Susan P. Graber, and Jay S.…