Doe

Opinion by Judge GRABER; Concurrence by Judge W. FLETCHER; Dissent by Judge BYBEE; Dissent By Judge RYMER; Dissent By Judge KLEINFELD; Dissent by Judge KOZINSKI.

Plaintiff John Doe, a student who has no Hawaiian ancestry, applied for admission to Defendant Kamehameha Schools, a private, non-profit K-12 educational institution in Hawaii that receives no federal funds. He was denied entry. The Kamehameha Schools were created through a charitable testamentary trust, established by the last direct descendant of the Hawaiian monarchy, for the education and upbringing of Native Hawaiians. As a result, the Kamehameha Schools’ admissions policy gives preference to students of Hawaiian ancestry. Plaintiff argues that he was denied admission because of his race in violation of 42 U.S.C. § 1981 .

The majority of a three-judge panel held that the Kamehameha Schools’ admissions policy, with its preference for Native Hawaiians, constituted unlawful race discrimination under 42 U.S.C. § 1981 . 1 We took this case en banc to reconsider 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…

join, concurring:

I fully concur with Judge Graber’s majority opinion. However, I write separately because there is an easier and narrower ground for upholding Kamehameha Schools’ admissions policy.

*850 The question in this case is whether 42 U.S.C. § 1981 forbids 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 837 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 disadvantaged 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 832.

A narrower ground for sustaining Kamehameha Schools’ admissions policy is that “Native Hawaiian” is not…

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 , 88 S.Ct. 2186 , 20 L.Ed.2d 1189 (1968). Applying that principle in Runyon v. McCrary, 427 U.S. 160, 168, 179 , 96 S.Ct. 2586 , 49 L.Ed.2d 415 (1976), the Supreme Court held that § 1981 “prohibits private, commercially operated, non-sectarian schools from denying admission to prospective students because they are” not members of a favored racial…

join, dissenting:

This is altogether infelicitous.

On the one hand, the Kamehameha Schools is a well-recognized, widely-acclaimed private school, established before Hawaii became a state, whose primary mission has been to educate Native Hawaiian students in a culturally sensitive, challenging way. It receives no federal funds and does not operate for profit. Its purpose of providing meaningful access to educational opportunity is intuitively salutary. On the other hand, the admissions policy of the Kamehameha Schools prefers students of Native Hawaiian ancestry in such a way that, as a practical matter, nonNative Hawaiian students are precluded.

The question is whether Kamehameha’s admissions policy violates 42 U.S.C. § 1981 . Section 1981 was originally enacted as part of the 1866 Civil Rights Act, and confers on “[a]ll persons ... the same right in every State ... to make and enforce contracts as is enjoyed by white citizens .... ”

We do not write on a clean slate, otherwise I would question how a statute that accords to all persons the same right to contract as is enjoyed by white citizens can mean the same right to contract as is enjoyed by Native Hawaiians. Yet it was…

dissenting:

I join all three of my dissenting colleagues. Judges Rymer, Kleinfeld and Bybee have catalogued eloquently the many reasons why neither the majority nor the concurrence reflects what the law is, or should be, and there’s nothing I can add on that score.

I write only to point out that the issue we are called on to decide may be a problem of the schools’ own making. Runyon v. McCrary, 427 U.S. 160, 172-73 , 96 S.Ct. 2586 , 49 L.Ed.2d 415 (1976), and McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 295-96 , 96 S.Ct. 2574 , 49 L.Ed.2d 493 (1976), prohibit private racial discrimination in the making and enforcing of contracts. The provision is implicated here because the schools charge tuition and must therefore enter into a contractual relationship with each student. I don’t believe section 1981 would apply at all if the schools were run entirely as a philanthropic enterprise and allowed students to attend for free. In Runyon , “the racial exclusion practiced by the [schools] amounted] to a classic violation of § 1981,” because “[t]he parents ... sought to enter into contractual relationships with [the schools] for educational services.” 427 U.S. at 172, 96…

Volume 1 of

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.…

join, dissenting:

I agree in large part with Judge Bybee’s dissent and join in Parts II and III. His analysis of the majority and concurring opinions is in my view correct.

I write separately because I do not agree with Judge Bybee’s view that Title VII provides the standard of review in this case. Title VII prohibits discrimination in employment. 1 This case does not involve employment. Title VII has nothing to do with exclusion of students from schools because of race. Nor is there a need to mine Title VII for some sort of analogy.

The recent U.S. Supreme Court decisions about affirmative action, Grutter 3 and Gratz, 4 also have nothing to do with this case. Those cases involved whether racial discrimination by public schools under affirmative action plans violated the Equal Protection Clause of the Fourteenth Amendment. This case does not involve a public school or state action, so Grutter, Gratz, and the Equal Protection Clause do not come into the analysis.

We are not free to treat Hawaiian ancestry as a political rather than racial designation under Morton v. Mancari 5 because the Supreme Court held in Rice v. Cayeta-no that Hawaiian ancestry is a “racial…