Ninth Circuit Decision Allows School to Exclude Non-Native Hawaiians:

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.