The Center for Excellence in Native Hawaiian Law Applauds the Recent Ninth Circuit Court of Appeals Decision in Doe v. Kamehameha Schools


The Center for Excellence in Native Hawaiian Law applauds the Ninth Circuit Court of Appeals December 5, 2006 en banc decision upholding Kamehameha Schools’ admissions policy favoring Hawaiian children.

A majority (8-7) of a 15-judge panel reversed the court’s earlier 3-judge panel decision that Kamehameha Schools’ policy was unlawful racial discrimination under 42 U.S.C. Section 1981, a Reconstruction-era statute designed to remedy discrimination against African Americans.

The Kamehameha Schools were established before the U.S. annexed Hawai‘i, under the will of Princess Bernice Pauahi Bishop, the last direct descendant of King Kamehameha I. She created the trust to uplift Native Hawaiian children through education because the forces of Westernization had nearly decimated the Hawaiian people.

The majority decision, authored by Judge Susan Graber, said, “Congress intended that a preference for Native Hawaiians, in Hawaii, by a Native Hawaiian organization, located on the Hawaiian monarchy’s ancestral lands, be upheld because it furthers the urgent need for better education of Native Hawaiians, which Congress has repeatedly identified as necessary.”

It also ruled that: “Because the Schools are a wholly private K-12 educational establishment, whose preferential admissions policy is designed to counteract the significant, current educational deficits of Native Hawaiian children in Hawaii, and because in 1991 Congress clearly intended § 1981 to exist in harmony with its other legislation providing specially for the education of Native Hawaiians, we must conclude that the admissions policy is valid under 42 U.S.C. § 1981.”

In a concurring opinion, in which four other judges joined, Judge William Fletcher fully agreed with the result, but suggested an alternative analysis. He concluded that “Congress has invariably treated ‘Native Hawaiian’ as a political classification [rather than merely a racial one] for purposes of providing exclusive educational and other benefits. Under the special relationship doctrine, Congress has the power to do so. I see nothing in § 1981 to indicate that Congress intended to impose upon private institutions a more restrictive standard for the provision of benefits to Native Hawaiians than it has imposed upon itself.”

For additional information, and/or to read the full opinion, please go to: www.ksbe.edu.