Doe v. Kamehameha Schools/Bernice Pauahi Bishop

Decision Date02 August 2005
Docket NumberNo. 04-15044.,04-15044.
PartiesJohn DOE, a minor, by his mother and next friend, Jane Doe, Plaintiff-Appellant, and Josephine Helelani Pauahi Rabago, Intervenor, v. KAMEHAMEHA SCHOOLS/BERNICE PAUAHI BISHOP ESTATE; Constance Lau, in her capacity as Trustee of the Kamehameha Schools/Bernice Pauahi Bishop Estate; Nainoa Thompson, in his capacity as Trustee of the Kamehameha Schools/Bernice Pauahi Bishop Estate; Diane J. Plotts, in her capacity as Trustee of the Kamehameha Schools/Bernice Pauahi Bishop Estate; Robert K.U. Kihune, in his capacity as Trustee of the Kamehameha Schools/Bernice Pauahi Bishop Estate; J. Douglas Ing, in his capacity as Trustee of the Kamehameha Schools/Bernice Pauahi Bishop Estate, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Eric Grant, Sacramento, CA, and John W. Goemans, Kamuela, Hawaii, for the plaintiff-appellant.

Kathleen M. Sullivan, Stanford, CA, and David Schulmeister, Cades Schutte, L.L.P., Honolulu, HI, for the defendants-appellees.

Patrick M.K. Richardson, McCracken, Byers & Haesloop, L.L.P., San Mateo, CA, for the 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 BEEZER, GRABER, and BYBEE, Circuit Judges.

BYBEE, Circuit Judge.

Since 1887, the Kamehameha Schools have operated as the charitable legacy of Princess Bernice Pauahi Bishop, the last direct descendant of King Kamehameha I. Private and non-sectarian, the Kamehameha Schools give preference to students who are of native Hawaiian ancestry. As a result of this policy, attendance at the Kamehameha Schools is effectively limited to those descended from the Hawaiian race. The issue considered here is a significant one in our statutory civil rights law: May a private, nonsectarian, commercially operated school, which receives no federal funds, purposefully exclude a student qualified for admission solely because he is not of pure or part aboriginal blood? The parties agree that this is a case of first impression in our circuit.

The plaintiff, John Doe, appeals the district court's grant of summary judgment in favor of defendants, the Kamehameha Schools and the Bernice Pauahi Bishop Estate and its individual trustees. He argues that he was denied entry to the Kamehameha Schools because of his race in violation of 42 U.S.C. § 1981, which forbids racial discrimination in the making and enforcement of contracts. For the following reasons, we agree with Doe and find that the Schools' admissions policy, which operates in practice as an absolute bar to admission for those of the non-preferred race, constitutes unlawful race discrimination in violation of § 1981. Accordingly, we reverse the district court's decision granting summary judgment to the Kamehameha Schools.

I

The facts are not in dispute. The Kamehameha Schools comprises a system of private, nonsectarian schools which are dispersed among the Hawaiian Islands. See EEOC v. Kamehameha Schs./Bishop Estate, 990 F.2d 458, 461 (9th Cir.1993).

The school system was founded in 1887 under a "charitable testamentary trust established by the last direct descendent of [Hawaii's] King Kamehameha I, Princess Bernice Pauahi Bishop." Burgert v. Lokelani Bernice Pauahi Bishop Trust, 200 F.3d 661, 663 (9th Cir.2000). At the time of her death in 1884, Princess Pauahi Bishop was the largest landowner in Hawai`i, owning approximately one-tenth of the aggregate lands. Her will provided that the bulk of her estate should be placed in a charitable trust "to erect and maintain in the Hawaiian Islands two schools, each for boarding and day scholars, one for boys and one for girls, to be known as, and called the Kamehameha Schools." Will of Bernice Pauahi Bishop, reprinted in WILLS AND DEEDS OF TRUST 17-18 (3d ed.1957) (hereinafter "Pauahi Bishop Will"). See also Kamehameha Schs./Bishop Estate, 990 F.2d at 459.

Under the direction of the original trustees, chaired by Pauahi's husband, Charles Reed Bishop, both schools opened shortly after her death; the boys' school in the Fall of 1887 and the girls' in the Fall of 1894. The two schools were consolidated into one coeducational institution during the 1965-66 academic year. Currently, the Kamehameha Schools operate K-12 campuses on three separate islands, Kapalama (O'ahu), Pukalani (Maui), and Kea`au (Island of Hawai`i), enrolling more than 16,000 children annually. While the Schools subsidize much of the educational costs through funds held in trust, annual tuition remains at $1,784 for K-12th grade students, with approximately sixty-five percent of those enrolled receiving some form of financial aid.1

Pauahi's will contains several instructions pertaining to the administration of the Kamehameha Schools, none of which establish race as an admissions criteria. She directs that all students attending the Kamehameha Schools should be provided "first and chiefly 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" and, in addition, that "the teachers of said schools shall forever be persons of the Protestant religion." Pauahi Bishop Will at 18-19. See also Kamehameha Schs./Bishop Estate, 990 F.2d at 461 (concluding that the Schools do not fall within any of the three religious exemptions provided in Title VII and, therefore, the failure to consider a non-Protestant teacher on account of her religion was discriminatory). She further instructs that a portion of the trust's annual income should be devoted "to the support and education of orphans, and others in indigent circumstances, giving the preference to Hawaiians of pure or part aboriginal blood." Pauahi Bishop Will at 18. While this racial preference is expressly listed as a criterion for the administration of estate resources charitably directed to orphans and indigents, the Will is notably devoid of any mention of race as a criterion for admission into the Kamehameha Schools. As the Schools' 1885 Prospectus observed: "The noble minded Hawaiian chiefess who endowed the Kamehameha Schools, put no limitations of race or condition on her general bequest. Instruction will be given only in English language, but The Schools will be opened to all nationalities."2

Rather than institute race as an admissions prerequisite, Pauahi left to her Trustees the discretion "to regulate the admission of pupils" and "to make all such rules and regulations as they may deem necessary for the government" of the Kamehameha Schools. Pauahi Bishop Will at 18. The original trustees determined, however, that it was Pauahi's intent to prefer students of native Hawaiian ancestry. Specifically, the policy articulated by Charles Bishop was that "boys and girls of pure or part aboriginal blood . . . should have preference; that is[,] they should have the first right." Accordingly, the admissions process at Kamehameha currently proceeds in two phases: first, the applicant must demonstrate that he possesses the minimum qualifications necessary to meet the Schools' rigorous academic standards and, second, he must complete an "Ethnic Ancestry Survey" designed to verify his aboriginal blood. The Schools forthrightly admit that as long as there are qualified students who possess at least some native Hawaiian ancestry, they will be admitted before even the most qualified of those who lack aboriginal blood. It is this "Hawaiians first" admissions policy that motivates the instant controversy.

The plaintiff-appellant, John Doe, twice sought admission to the Kamehameha Schools and, having met the academic requirements for admission, was twice determined to be a "competitive applicant." After completing the Ethnic Ancestry Survey, in which he acknowledged that he possessed no aboriginal blood, his application was each time, as expected, denied. Still desiring to attend the Kamehameha Schools, Doe filed suit alleging that the Schools' admissions policy violates 42 U.S.C. § 1981, as amended by the Civil Rights Act of 1991, Pub.L. No. 102-166, 105 Stat. 1071. Concluding that the admissions policy constituted a valid race-conscious remedial affirmative action program, the district court entered summary judgment in favor of the Kamehameha Schools and the Bernice Pauahi Bishop Estate. Doe v. Kamehameha Schs./Bernice Pauahi Bishop Estate, 295 F.Supp.2d 1141, 1172 (D.Haw.2003). This appeal followed.

II

Before proceeding to analyze the question presented in this appeal, it is worth clarifying those which are not. Specifically, the Kamehameha Schools does not contest, and candidly admits, that its admissions process is based upon an express racial classification. Cf. Rice v. Cayetano, 528 U.S. 495, 514, 120 S.Ct. 1044, 145 L.Ed.2d 1007 (2000) ("Ancestry can be a proxy for race."). The School does not attempt to justify its admissions policy by appealing to a First Amendment right to freedom of association, see Runyon v. McCrary, 427 U.S. 160, 176, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976) ("Invidious private discrimination may be characterized as a form of exercising freedom of association protected by the First Amendment, but it has never been accorded affirmative constitutional protections."); nor does it explicitly argue for a relaxed level of scrutiny by appealing to the political nature of classifications premised on membership in a federally recognized Indian tribe. See Morton v. Mancari, 417 U.S. 535, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974) (upholding a Bureau of Indian Affairs hiring preference for Native Americans under rational basis scrutiny due to the unique relationship between the federal government and members of federally recognized Indian tribes). See also Rice, 528 U.S. at 518, 120 S.Ct. 1044 (declining to extend Mancari to uphold a race-based voting restriction for native Hawaiians absent ...

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  • Doe v. Kamehameha Schools/Bernice Pauahi, 04-15044.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 5, 2006
    ...at 1174. Plaintiff timely appealed. The majority of a three-judge panel reversed the district court. Doe v. Kamehameha Sch./Bernice Pauahi Bishop Estate, 416 F.3d 1025, 1048 (9th Cir.2005). The panel concluded that the Title VII framework applied, id. at 1038-39, but the majority held that ......

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