Civil Rights - Section 1981 - Ninth Circuit Holds That Private School's Remedial Admissions Policy Violates Section 1981

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CIVIL RIGHTS--SECTION 1981--NINTH CIRCUIT HOLDS THAT PRIVATE SCHOOL'S REMEDIAL ADMISSIONS POLICY VIOLATES [section] 1981.--Doe v. Kamehameha Schools, 416 F.3d 1025 (9th Cir. 2005).

For a century, 42 U.S.C. [section] 1981 lay dormant, a forgotten remnant of the Civil Rights Act of 1866 (1) that guaranteed to "[a]ll persons" the "same right in every State and Territory to make and enforce contracts ... as is enjoyed by white citizens." (2) Then, in the 1970s, the Supreme Court resurrected [section] 1981, holding that it reached purely private discrimination, (3) protected all races, (4) and prevented all-white private schools from refusing to admit black students. (5) But thirty years later, no federal court had considered whether [section] 1981 allows a private school to turn away nonminority students under an affirmative action or other remedial admissions policy. Recently, in Doe v. Kamehameha Schools, (6) the Ninth Circuit held that a private educational institution violated [section] 1981 by admitting all qualified Native Hawaiians before any non-native applicant. (7) The court bridged the gap in precedent by importing from Title VII jurisprudence a test for analyzing "reverse discrimination" claims brought against private employers. The court's application of this test was flawed, however, reflecting the court's assumption that no exclusive remedial policy--no policy that exclusively targets members of a harmed group--could ever pass muster. A better approach would have replaced the employment test with an evaluation of the exclusive remedial policy in light of history, current need, and unique circumstances.

The first Westerner reached Hawaii in 1778; after a century of Western immigration, American business leaders overthrew the Hawaiian monarchy in 1893 with the assistance of the U.S. military. (8) In 1884, while Hawaii was still sovereign, Princess Bernice Pauahi Bishop left her estate--consisting of approximately one-tenth of all land in Hawaii (9)--in trust "for a school dedicated to the education and upbringing of Native Hawaiians." (10) That gift enables Kamehameha Schools to be entirely private, receiving no federal funding. (11) Today there are three Kamehameha campuses, enrolling 4856 students (12) under a "Hawaiians first" admissions policy: as long as any academically qualified student can claim Native Hawaiian ancestry, he or she will be admitted before any qualified non-native applicant. (13) Given the roughly 70,000 Native Hawaiian school-aged children in Hawaii, this policy effectively excludes non-natives from admission. (14) John Doe, a non-Native Hawaiian, twice applied to Kamehameha Schools and twice qualified as a "competitive applicant," but both times he was denied admission after completing an Ethnic Ancestry Survey. (15) Doe filed suit in 2003, alleging that the Kamehameha admissions policy violated [section] 1981 and seeking an injunction admitting him to the school. (16)

The United States District Court for the District of Hawaii granted summary judgment for Kamehameha Schools. (17) Because Kamehameha Schools is a private institution, the court declined to apply strict scrutiny to the admissions policy under an equal protection analysis, instead turning to Title VII's more deferential framework. (18) Recognizing that this framework was designed for an employment context, however, the court applied the test generously to accommodate Kamehameha Schools's unique history and mission (19) and to align with congressional efforts to remedy past wrongs against Native Hawaiians. (20) The court found that the Kamehameha admissions policy had a legitimate remedial purpose, given the "exclusion and marginalization" of Native Hawaiians, (21) and that the policy furthered this purpose by improving Native Hawaiian test scores, increasing Native Hawaiian college enrollment, and producing Native Hawaiian leaders in both the public and private sectors. (22)

The Ninth Circuit reversed. …