In a closely divided 8-7 en banc opinion (eight Democrat appointees in the majority, six Republican and one Democrat appointees in dissent), the Ninth Circuit reversed an earlier panel ruling and held that the private Kamehameha Schools in Hawaii can prefer people of Native Hawaiin ancestry for admission, which effectively means that no one without such ancestry can attend the heavily subsidized schools. The opinions are 110 pages long, so I haven't had time to read them closely, but I do have the following observation. In the 1960s, the Supreme Court, in an effort to help the civil rights movement along, came to the rather remarkable conclusion that the 1866 Civil Rights Act's requirement that all citizens shall have the same right to make and enforce contracts as white citizens meant that discrimination in private contracting based on race was illegal. This was remarkable for several reasons. First "white citizens," as such, had no right to be free from private discrimination in 1866 or thereabouts, as any Irishman of the era could testify. Second, the law was clearly intended to ensure that courts would uphold and enforce contracts made by and with blacks. Third, the Court's interpretation of the Act made the private sector employment provisions of the Civil Rights Act of 1964, and the attendant controversy over them, somewhat superflouous. It turned out, said the Court, that blacks were protected from private sector discrimination all along, and indeed had more protections than the '64 Act gave them, because the 1866 Act doesn't require going to the EEOC first to get permission to sue.
The most famous use of this interpretation of the 1866 Act (now Section 1981) was in the 1976 case of Runyon v. McCrary, in which the Supreme Court held that a private school that accepted no public money is banned from discriminating by race. The Court made it clear in another opinion that same day that Secton 1981 bans discrimination against whites as well as against members of minority groups. This was a logical necessity, because, as noted, whites had no common law right to be free from discrimination in contracts, and if "white citizens" had no statutory freedom from discrimination, non-whites could not possibly claim such a right under the Act (not that the Court was exactly sticking to the plain meaning of the text anyway, but there are always some limits to legal gymnastics).
Fast forward to the Ninth Circuit's decision. The Kamehameha Schools receive no public money, and are the beneficiaries of a $6 billion private endowment set up to educate Native Hawaiins. But what about Section 1981? If the school in Runyon couldn't discriminate based on race (or ethnicity), why may Kamehameha? According to the New York Times, school attorney (and Stanford dean) argued that "their discrimination is remedial, meant to address historical wrongs; the beneficiaries are indigenous peoples; and the program has met with Congressional approval."
Those are all plausible public policy arguments in favor of the schools, and they have my libertarian sympathy as well. But the 1866 Act seems to suggest that whatever rights it gives, they must be given equally to whites and others. The Ninth Circuit, on my preliminary reading, tries to get around this by engaging in an amazing feat of legal alchemy (admittedly, in reliance on precedents from other circuits), under which the 1866 Act not only rendered much of the '64 Act superfluous, but that it has exactly the same tolerance for remedial affirmative action programs as Title VII of the '64 Act. Thus, the two acts are not just complimentary, but co-extensive. But again, if you look at the text of the 1866 Act, if everyone has the same right to make and enforce contracts as white people, and white people have no right to be free from discrimination in private school education, doesn't that mean that non-white people also have no right to be free from such discrimination? Which means that the Ninth Circuit is implicitly overruling Runyon by logical necessity, though it claims not to be. I guess all things are possible if you ignore the language of the statute you are supposed to be interpreting.
I should also note that while the Ninth Circuit relies on Supreme Court precedents upholding remedial affirmative action programs, the Court has never even come close to upholding what amounts to a 100% quota for a particular racial/ethnic group, and the Bakke majority explicitly rejected a much smaller quota for minority students at a state medical school under Title VI of the '64 Act. [Update: Commenter Hans Bader points out that the Supreme Court reiterated that Title VI bans quotas in a footnote in the 2003 Gratz case.]
I suspect the Supreme Court will agree to hear this case, unless Congress intervenes in the meantime by passing legislation affirmatively exempting Kamehameha Schools from Secton 1981. The case has the potential to not only rewrite the law of Section 1981, but for the Court to potentially reconsider its approval of remedial affirmative action programs under Title VII.
As I said, my libertarian sympathies lie with the school, and given relevant Hawaiian history, I don't have any particular distaste for the Schools spending money left by a Hawaiian princess for Native Hawaiian education on Native Hawaiians. But I think it's too clever by half for courts to hold that minorities are protected from discrimination by a law that grants them the same rights as "white citizens", if "white citizens" (among others) do not have these rights to begin with. Put another way, it's hard to read the language of the 1866 Act as doing anything other than creating legal parity between whites and others. Any interpretation of the Act that disrupts that parity with regard to any right that is perceived to come within the protections of the Act lapses into incoherence.
Thanks to reader Hans Bader for the pointer. John Rosenberg also comments.
The Ninth Circuit, patently wrong as it so often is, claims that the Supreme Court did not decide the scope of the federal law banning racial discrimination in contracts (42 USC Section 1981) in its University of Michigan ruling, Gratz v. Bollinger (2003).
In fact, Gratz, in a footnote, expressly held that the University of Michigan had violated Section 1981. Gratz struck down the University of Michigan's undergraduate admissions racial quotas.
The Ninth Circuit wrongly claimed that the Supreme Court did not really rule on the scope of Section 1981, but merely assumed that it contained the same prohibitions as the Fourteenth Amendment, the primary grounds for the challenge to the University of Michigan.
Wrong. Petitioners devoted an entire section of their brief challenging the University of Michigan's use of race arguing that Section 1981 was violated, even if the Fourteenth Amendment was not. The issue of whether Section 1981 -- which reaches both private and public colleges -- bars, or restricts, affirmative action, was briefed by the parties, and squarely before the Court.
The Supreme Court ruled on the scope of Section 1981, treating its restriction on racial discrimination (which applies to both public and private schools) as containing restrictions on affirmative action coextensive with the Fourteenth Amendment (which applies to public schools). It did not assume anything.
Its ruling is binding on the Ninth Circuit, which had no authority to rule that Section 1981 prohibited less affirmative action at a private school than the Fourteenth Amendment does at a public school.
Gratz v. Bollinger (2003) ruled to the contrary, meaning that racial quotas, or outright racial segregation, are banned in private schools that charge tuition (and are thus covered by Section 1981) or receive federal funds (and are thus covered by Title VI).
And the Doe v. Kamehameha Schools case involves outright racial segregation.
Though I am not Hawaiian, my understanding is that the will was written in the context of not race but family -- `ohana in Hawaiian.
I hope US law would not prevent a person from establishing a trust for the education of members of her family, exclusively, and I think that is how this school should be evaluated. I doubt the law is flexible enough to take what I consider this common sense view.
Even if my interpretation were accepted (something I'm not expecting), there would then be the question whether such a family trust ought to be tax-exempt.
There is a dirty little secret that isn't mentioned in the pleadings: the assets of the trust are under attack from non-Hawaiians, who want to loot it and distribute the money to themselves.
And the Doe v. Kamehameha Schools case involves outright racial segregation."
Hans, I see your point about the law, but you citation of Gratz seems inapplicable. I'll give you that the schools practice racial segregation. Your citation to Gratz says that's not allowed if the schools "charge tuition...or receive federal funds." The schools here appear to be funded entirely by funds received from the trust of the Princess. So how does Gratz bar what the schools are doing (based on your logic)?
"Families of students pay a modest tuition to cover the remaining cost, which is $2,170 for a high school day student and $4,040 for boarders."
Kamehameha school is funded purely by a private (family) trust, it is free to accept whoever it wants under whatever criteria it chooses. I was not aware of the
Section 1981 Act which may make the Kamehameha
admissions criteria illegal.
The interesting questions are
1. Why did the 9th court decision break along
clearly partisan lines? What is it about Democrats
vs. Republicans that generated such a hard dividing
line?
2. Assume that an individual endowed a white
supremacist school via a trust, with requirements that
only whites, say of the "Nordic race" could
attend? Would the 9th court, and especially its
Democrat justices have ruled in favor of such
overt discrimination?
Again, I agree that the indigeneous Hawaiians had
their land stolen, and a purely privately-funded
effort to provide for Hawaiian-only education should
be legal. But even with sympathy for the Hawaiians,
there is something still distasteful about
exclusion by race.
As Justice Roberts said
"It is a sordid business, this divvying us up by race."
Even the latter view, though, is historically somewhat dubious, as numerous critics of that book have pointed out.
And surely in the context of the 1866 Civil Rights Act, Irish people, who never had any LEGAL disabilities in the U.S., were part of "white people."
Anyway, substitute "Pole" or "Swede" or whatever for "Irishman," and you have basically the same point.
Nobody is telling us that nativity is just one of several factors in the mix, or that these native hawaiians just happen to have better interpersonal skills, leadership ability and extracurricular activities than the non-native applicant pool.
It's refeshing to see a case determined, whichever way it goes, without regard to "diversity".
Unless things changed significantly in four years, you are seriously mistaken. The enumeration sheet for the 1870 census that lists my great-great-grandfather both lists him as "white" and reports his birthplace as "Ireland."
No Irish or Hawaiian need apply I aguess.
The Bishop Estate is the largest education-related trust in the world with vast real estate holdings in Hawaii and elsewhere, and it would accomplish far, far more for Hawaiians if it were to fund programs in the public schools in Hawaiian-dominated areas.
Harry Eagar, besides maligning the motivations of those critical of Kamehameha policy, also conveniently neglects to mention the long &sordid history of gross corruption among the estate trustees.
if any school is 100% privately funded, it should be able to exclude whomever it pleases by race, gender, religion, whatever
if they receive any public monies, it should not be able to use race AT ALL
i realize this is not a perfect world, and the constitution has been twisted by years of lawyer games, but it really should be that simple.
hawaii is the only place i have ever lived where people know their "blood quanta" of hawaiian/caucasian/japanese etc.
Now, the Ninth Circuit has used that same concept of deference to educators uphold a policy of racial segregation and exclusion.
Apparently, the defenders of using race in admissions are willing to make contradictory arguments.
When they want to admit more minority students to a predominantly white school, they argue that racial mixing enhances education for members of all races, requiring the use of race to increase minority enrollment.
But when they want to exclude whites from a predominantly minority school, they argue that racial mixing does nothing for education, and that educators’ decision to create a one-race school is entitled to deference.
One reason not to give schools deference when they use race is that they may have improper motives for using race, and deference makes it hard to smoke out such improper motives.
Consider an earlier Ninth Circuit decision in 2005, now under review by the Supreme Court, that upheld the Seattle Schools’ use of race to promote racial balancing. Although a Ninth Circuit judge accepted the argument that the Seattle Schools’ use of race was designed to create a “melting pot,” that was not their true motive.
In fact, the Seattle Schools denounce the very concept of a “melting pot” on their web site, as George Will noted in his syndicated column.
As George Will noted, the Seattle Schools have promoted invidious racial stereotypes, such as claiming that planning ahead (”future time orientation”) is a white characteristic that minorities should not be expected to exhibit, and that only whites can be racists.
And they have treated students as members of competing racial groups rather than as individuals, claiming that “individualism” is a form of “cultural racism.”
Thus, their goal doesn’t seem to be to promote integration or the concept of a melting pot.
Rather, it seems to be based on the belief that whites and minorities have permanent, innately different racial characteristics that make racial balancing necessary to ensure that each school has a student body with roughly the same mix of characteristics.
That is a scary notion.
The sad thing is that there is an alternative argument in favor of the Kamehameha Schools that would not have set a bad precedent for governmental discrimination based on race: namely, that the Kamehameha Schools are private schools, and should have a free association right to prefer Native Hawaiians.
As Professor Bernstein and others have noted, private schools should be given broader leeway in their admissions criteria by the courts, precisely because they are private and enjoy freedom of association.
But the Supreme Court may have foreclosed that argument in Runyon v. McCrary (1976), which held both that the federal civil-rights laws (specifically, Section 1981)generally apply to private schools, and that those civil-rights laws override schools’ free association right to discriminate.
As Judge Alex Kozinski points out in his dissent, though, federal civil-rights laws only cover private schools that receive federal funds or charge tuition. So the Kamehameha Schools could have avoided those laws (and any need to admit non-Native Hawaiians) simply by not charging tuition (charitable trusts, not tuition, already cover most of the costs of the Kamehameha Schools).
But the common sense in me says this is wrong. Racial, religious, or other exclusion is a serious problem in most of the world. People slaughter one another over this. The question about whether a white supremacist could start a whites only school is illustrative. And bussing, though painful, was probably the main reason race relations in the US aren't worse. When people, especially young people, are isolated from "the other", it's easy to dehumanize the other. But when young people mix with the other, they realize we're all the same, and mom or dad's prejudices have less influence.
While I normally want the government to stay the *&%$ out of my business, sometimes the state hand is needed. Homogeneity of US society is a good thing. If you don't agree, check out who's killing whom in other parts of the world--arabs killing blacks in Darfur, shia killing sunnis in Iraq... Defining ourselves first by race or religion and second by nationality enables the worst in us.
I'd like to teach the world to sing in perfect harmony, I'd like to buy the world a Coke...
I concur with David Bernstein's point here, because in a legal sense it was indeed true that the IRISH were considered white. But the federal government also clearly separated some Europeans from "whiteness" in a way that went beyound the "social" sense in the referred to book. Consider the census survey of 1890, which asked respondents their race and listed "White" and "Italian" as distinct entries.
matt
Although we are talking about a private institution not subject to the Equal Protection Clause, your point about the contradictory arguments is especially salient in the context of the 14th Amendment/Title VI and has huge implications for historically black colleges and universities, as Justice Thomas pointed out in his concurring opinion in United States v. Fordice, 505 U.S. 717 (1992). If schools have a compelling interest in the educational benefits that flow from diversity, how can a college/university have a compelling interest in a predominantly (if not exclusively) one-race school?
The assumption that underlies all this discussion (and brings the contradictory arguments to the fore) is that any racial classification should be subject to strict scrutiny. In my mind, that is the problem. As Justice Stevens pointed out Monday in the Louisville argument, and as Judge Kozinski stressed in this concurring opinion upholding the Seattle plan, strict scrutiny and its requirement of a "compelling state interest" is what's causing all these problems. If instead of a compelling state interest, school districts were required only to justify their plans with a significant/important state interest (or satisfy "rigorous rational basis" as Judge Kozinski and Chief Judge Boudin of the First Circuit advocate, see Comfort v. Lynn School Committee, 418 F.3d 1), the contradiction would disappear.
Now, I'm not advocating a lower level of scrutiny as a post hoc way of imposing consistency on an argument, but I think heightened scrutiny is particularly inappropriate for programs such as those in Seattle/Louisville. Justice Kennedy (sounding almost angry) rejected Justice Stevens suggestion that anything other than strict scrutiny should apply, and the SCOTUS has consistently required strict scrutiny for all racial classifications even when those classifications are benign. In the end, Judge Kozinski and Judge Boudin's advocacy of lesser scrutiny is highly unlikely to prevail, but I think their arguments have tremendous merit.
You raise a more interesting issue than I think you realize. Bernice Pauahi Bishop's will, which created the Kamehameha Schools Trust, has two paragraphs which are relevant, both within section thirteen of her will. The first paragraph sets up a trust:
Two paragraphs down, the will says:
Notice that the paragraph establishing the schools doesn't say anything about Hawaiian ancestry, while the paragraph directing the remainder of the trust to be used for charitable purposes does? This point is raised occasionally, but quietly, given the firestorm that ensues.
For example, as to whether the classification is one of race or, e.g., "family," both the majority and the dissenters agreed that under existing law the classification of native Hawaiians was a classification by race (some concurring judges said it was also a "political," and thus OK, form of discrimination).
Second, people are arguing that there is a distinction between schools that take public funds and those that don't. The distinction between taking public funds and being privately funded is nowhere found in the statute and is irrelevant. The issue is whether there is discrimination in the making of a "contract," as to which the school's source of funding is not on point. (Judge Kozinski, dissenting, suggests that if the school was entirely self funding, not accepting any tuition, there would be no "contract" as to which the discrimination applied, but that is a different argument, and is probably wrong anyway, since a contract for educational services can arise without being supported by tuition).
1) If they are a family trust and open only to the family, they don't have a charitable purpose.
2) If there is no charitable purpose then they should be subject to taxation as any other private trust would be.
3) If they are not a charitable trust they are subject to the Rule Against Perpetuitities. Since the trust was created long ago, barring any significant statutory extension of the perpetuities period the trust would have to be reformed in order to continue.
As a libertarian I'm all for allowing private individuals to contract any way they want. However, the Kamehameha trust shouldn't get a free pass on the rules all other trusts have to abide by.
I doubt any of the ancestors of the true aboriginals who suffered under the oppression of the King would take his family's blood money.
I don't feel sorry for a King's family who was overthrown by the "Oppressor." They're just jealous.
It will fail, of course. I expect a decision, 5-4, with 4 votes going to a minority following the concurrance in the case, and probably 3 with a rationale approaching the majority (Ginsberg, Stevens, and Breyer).
That has been changed.
It seems relevant to me that the trust was set up under the Kingdom. It's one thing to impose the colonialists' laws against, for example, suttee; but it ought to be another to impose them to stop something beneficent. Then we could argue whether, following BSG, an exclusive school for Hawaiians is a good idea. (My notion on that is, not up to me; let the Hawaiians decide.)
I dunno whether the Kingdom laws included the Law of Perpetuities. They probably did, having been written mostly by Americans. Hawaiians, however, have long memories, and a Law of Perpetuities would have perplexed them. They tend to think perpetuities are a good thing.
The misbehavior of the former trustees seems irrelevant to me. The policy preceded their appointment and survived their dismissal. So what?
Lastly, nunzio sez: 'I doubt any of the ancestors of the true aboriginals who suffered under the oppression of the King would take his family's blood money.'
He's wrong about that.
Hawaiians don't think western, they think Hawaiian. There's even a book about it, very politically incorrect: 'How Natives Think (About Captain Cook, For Example)' by the U. of Chicago anthropologist Marshall Sahlins.
There were, however, carefully graded social attitudes toward race. Portuguese, for example, were considered 'not white' but also not Native. Sorta like the Irish in America about that time.
There is a very small movement of Native Hawaiians who contend that all land transfers since 1893 -- the overthrow of the Kingdom -- are invalid. They have set up a parallel system of courts and land registries; and they pay my newspaper to publish legal notices of quiet title actions.
'
The publisher cheerfully accepts their money (in U.S. dollars, of course) and everybody ignores them. There are somewhere around 30,000-40,000 part-Hawaiians in the county, and as near as I can tell, the number who support this rejectionist position is in the low hundreds.
But, heck, I am personally acquainted with four men and women who claim to be the king or queen of Hawaii, and there are several more kings I haven't had the pleasure of meeting.
Anyhow, I own land, or will will when the mortgage is paid off, deriving from a grant in the Kingdom Land Court. As I noted above, the Kingdom laws were all race neutral. Anybody could own land, following the Great Mahele (1851), when a western-style real property regime was established. (Under the Hawaii Supreme Court decision called PASH-2 [Public Access Shoreline Hawaii] Native Hawaiians can claim usufruct in some cases on undeveloped land they do not own.)
As the dissent points out, the Supreme Court precedent in this case (Runyon v. McCrary) is directly on point, simple, and perfectly clear. Private schools may not discriminate against would-be students on the basis of race. The Supreme Court requested special briefs and reconsidered the Section 1981 rationale of Runyon in Patterson v. Mclean Credit Union (1988)--then explicitly ruled in that case that Runyon remained good law. Then in 1991 Congress codified Runyon's interpretation(!).
But the 9th Circuit majority does not want to disturb the Kamehameha Schools' race-based admissions. So what do they do? They gin up a complex theory (two, actually) as to why Runyon doesn't apply when the favored students are non-white.
Besides being complex, this theory rests on deliberate misstatements of both the applicable law and precedents, and the facts. So it is intellectually- dishonest. I call that a sad thing to see: judges ready to sacrifice any good reputations they might have earned for legal scholarship or personal integrity, to their policy goal of limiting the protection of civil-rights law to non-whites.
I truly wish the plaintiff had been a black child, so we could have seen whether any of the majority judges' heads would have exploded.
I've read the (White+Rhenquist) dissent in Runyon. I agree with it, and like many other commenters, would prefer to let private schools choose their students by any criteria they wish. However, so long as Supreme Court precedent and (since 1991) Federal statute say otherwise, I don't think the 9th Circuit has discretion to give me my druthers. Furthermore, I believe that nearly everyone in our society thinks we should forbid schools (and other institutions) to discriminate against blacks on the basis of race. That opinion is so strong that our laws are bound to reflect it. Since sauce for the goose is sauce for the gander, if we protect blacks against racial discrimination, we must protect everyone equally against racial discrimination. Our civil society can only endure on the basis of impartial laws.
(To echo what others have said above: as a libertarian, I think all private entities should be free to discriminate on any criteria they want, and no public entities should be, regardless of any bogus claims about the importance of "diversity." But also as a libertarian, I want judges who follow the law, not their policy preferences.)
You're right--I was using benign as a term of art to describe programs not motivated by racial hostility.
From context, it seems clear that David meant the superfluous comment to apply to Title VII's race provision, but I thought I'd pick a nit.