470 F.3d 827 (9th Cir. 2006), 04-15044, Doe v. Kamehameha Schools/Bernice Pauahi Bishop Estate

Docket Nº:04-15044.
Citation:470 F.3d 827
Party Name:John DOE, a minor, by his mother and next friend, Jane Doe, Plaintiff-Appellant, v. Josephine Helelani Pauahi Rabago, Intervenor, KAMEHAMEHA SCHOOLS/BERNICE PAUAHI BISHOP ESTATE; Constance H. Lau, Nainoa Thompson, Diane J. Plotts, Robert K.U. Kihune, J. Douglasing, in their capacities as Trustees of the Kamehameha Schools/Bernice Pauahi Bishop Esta
Case Date:December 05, 2006
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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470 F.3d 827 (9th Cir. 2006)

John DOE, a minor, by his mother and next friend, Jane Doe, Plaintiff-Appellant,


Josephine Helelani Pauahi Rabago, Intervenor,

KAMEHAMEHA SCHOOLS/BERNICE PAUAHI BISHOP ESTATE; Constance H. Lau, Nainoa Thompson, Diane J. Plotts, Robert K.U. Kihune, J. Douglasing, in their capacities as Trustees of the Kamehameha Schools/Bernice Pauahi Bishop Estate, Defendants-Appellees.

No. 04-15044.

United States Court of Appeals, Ninth Circuit.

December 5, 2006

Argued and Submitted En Banc June 20, 2006—San Francisco, California.

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Eric Grant, Sacramento, CA; John W. Goemans, Kamuela, Hawaii; Michael

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Stokes Paulsen , Minneapolis, MN, for the plaintiff-appellant.

Kathleen M. Sullivan, Stanford, California; David Schulmeister, Cades Schutte LLP, Honolulu, Hawaii, for the defendants-appellees.

Patrick M.K. Richardson, McCracken, Byers & Haesloop LLP, San Mateo, California; Mark J. Bennett, Attorney General of the State of Hawaii, Honolulu, Hawaii; Alexander E. Dreier, Hogan & Hartson LLP, Washington, D.C.; Jeffrey N. Watanabe, Honolulu, Hawaii; David M. Forman, Honolulu, Hawaii; Wayne M. Pitluck, Pitluck, Kido, Stone & Aipa LLP, Honolulu, Hawaii; Richard A. Guest, Native American Rights Fund, Washington, D.C., and Carol H. Daniel, Alaskan Federation of Natives, Anchorage, Alaska; Carrie K.S. Okinaga, Corporation Counsel for the City and County of Honolulu, Honolulu, Hawaii; Moses K.N. Haia III, Native Hawaiian Legal Corporation, Honolulu, Hawaii; Clayton A. Kamida, Torkildson, Katz, Fonseca, Moore & Hetherington, Honolulu, Hawaii; John Ishihara, Hawaii Civil Rights Commission, Honolulu, Hawaii; Eric K. Yamamoto, Honolulu, Hawaii, for amici curiae.

Appeal from the United States District Court for the District of Hawaii; Alan C. Kay, District Judge, Presiding. D.C. No. CV-03-00316-ACK.

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. Fletcher; Dissent by Judge Bybee; Dissent by Judge Rymer; Dissent by Judge Kleinfeld; Dissent by Judge Kozinski.


GRABER, Circuit Judge.

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 answer "no" to that question and, accordingly, affirm the district court.

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A. Factual Background

1. Historical Context2

The islands of Hawaii are geographically isolated in the South Pacific Ocean and were originally settled sometime between 1 and 750 A.D. The Native Hawaiians developed a well-organized, efficient, and thriving civilization "based on a communal land tenure system with a sophisticated language, culture, and religion." 20 U.S.C. § 7512. The land, abundant in natural resources, allowed the Native Hawaiians to thrive. Office of Hawaiian Affairs, Native Hawaiian Rights Handbook 3 (Melody Kapilialoha MacKenzie ed. 1991) (hereinafter "Rights Handbook").

The first Western contact with the Hawaiian islands occurred in 1778 when Captain James Cook landed on the island of Kauai. The immediate result of that first encounter was that Native Hawaiians were introduced to Western goods and Western diseases. "By 1919, the Native Hawaiian population had declined from an estimated 1,000,000 in 1778 to an alarming 22,600." 20 U.S.C. § 7512(7). But see Rice v. Cayetano, 528 U.S. 495, 500, 120 S.Ct. 1044, 145 L.Ed.2d 1007 (2000) (estimating the population in 1778 as between 200,000 and 300,000).

In 1810, Kamehameha I created a unified monarchy over all the Hawaiian Islands, becoming the first King of Hawaii and affording the islands a level of cohesion and security that they had not previously known. The United States officially recognized the sovereignty of the Kingdom of Hawaii in 1826 and, from 1843 until 1893, extended full diplomatic recognition to the islands. Other countries, too—including Great Britain, France, and Japan—recognized the Hawaiian Kingdom. 20 U.S.C. § 7512(1). Before 1893, the United States entered into a number of treaties for peace, friendship, and commerce with the Kingdom. U.S. Dep't of Justice & U.S. Dep't of the Interior, From Mauka to Makai: The River of Justice Must Flow Freely 1 (October 23, 2000) (hereinafter "From Mauka to Makai"). The first treaty was signed in 1826, and additional treaties were signed in 1849, 1875, and 1887. See Rice, 528 U.S. at 504, 120 S.Ct. 1044 (discussing the history of diplomatic relations between the United States and the Kingdom of Hawaii before the overthrow of the monarchy).

The Kingdom of Hawaii, located along shipping and fishing routes, was commercially desirable. Initially, trade with the Kingdom of Hawaii revolved around the islands' fur and sandalwood resources, as well as the whaling industry. Rights Handbook at 5. When over-harvesting destroyed the sandal-wood trade and depleted the whaling stocks, wealthy Westerners turned to large-scale plantations, primarily growing sugar, to make money. Id. as foreign investment became more and more tied to land ownership, demand for change in the traditional land tenure system, which did not provide for individual land titles, intensified. Id. at 6. Pressure from Westerners eventually led the Hawaiian government to reject the land tenure system in favor of privatized land ownership, which allowed Westerners "[w]ith a permanent population of fewer than two thousand" to take "over most of Hawaii's land in the next half-century and manipulate[] the economy for their own profit." Neil M. Levy, Native Hawaiian Land Rights, 63 Cal. L. Rev. 848, 857-58 (1975) (footnote omitted).

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Western economic domination of the Hawaiian Islands was followed by an interest in establishing political control. Id. at 861. "In 1893, the sovereign, independent, internationally recognized, and indigenous government of Hawaii, the Kingdom of Hawaii, was overthrown by a small group of non-Hawaiians, including United States citizens, who were assisted in their efforts by the United States Minister, a United States naval representative, and armed naval forces of the United States." 20 U.S.C. § 7512(5). The United States annexed Hawaii not long thereafter. Id.§ 7512(6). Laws were then enacted suppressing the Hawaiian culture and language and allowing for the displacement of Native Hawaiians from their lands. From 1896 to 1986, almost a full century, the Hawaiian language was banned as a medium of instruction in schools. Id.§ 7512(19). Hula, a Native Hawaiian dance form, and local healing practices also had been banned during the westernization of the islands. Such measures resulted in "mortality, disease, economic deprivation, social distress and population decline." From Mauka to Makai at 1.

Hawaii finally attained statehood in 1959. Rights Handbook at 18. More than 30 years later, in recognition of the United States' role in the overthrow of the independent Hawaiian monarchy, Congress officially apologized to the Hawaiian people and expressed its commitment to "provide a proper foundation for reconciliation between the United States and the Native Hawaiian people." 1993 Apology Resolution, Pub. L. No. 103-150, 107 Stat. 1510, 1513 (1993).

2. The Kamehameha Schools

The Kamehameha Schools were created under a "charitable testamentary trust established by the last direct descendent of King Kamehameha I, Princess Bernice Pauahi Bishop, who left her property in trust for a school dedicated to the education and upbringing of Native Hawaiians." Burgert v. Lokelani Bernice Pauahi Bishop Trust, 200 F.3d 661, 663 (9th Cir. 2000). Princess Bernice Pauahi Bishop's will provided for the erection and maintenance of schools in the Hawaiian Islands, called the Kamehameha Schools, on the Hawaiian monarchy's ancestral lands, with the purpose of providing "a good education in the common English branches, and also instruction in morals and in such useful knowledge as may tend to make good and industrious men and women." Will of Bernice Pauahi Bishop, reprinted in Wills and Deeds of Trust 17-18 (3d ed. 1957) (hereinafter "Pauahi Bishop Will"). The Pauahi Bishop Will also bestowed on the "trustees full power to make all such rules and regulations as they may deem necessary for the government of said schools and to regulate the admission of pupils." Id. at 18.

Under the direction of the original trustees, chaired by Pauahi Bishop's widower, Charles Reed Bishop, the Kameha-meha Schools opened in the late nineteenth century.3 During a speech on the Schools' first Founder's Day, in December 1888, Charles Reed Bishop stated that Princess Bernice Pauahi Bishop had created the Kamehameha Schools, "in which Hawaiians have the preference," so that "her own people" could...

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