About Doe v. Kamehameha
In June 2003, a plaintiff identified as “John Doe” filed suit against the Kamehameha Schools, a private educational institution founded through the Last Will and Testament of a Princess in the Hawaiian Kingdom to provide educational opportunities for Native Hawaiian children and funded by the revenues from its private endowment.
In keeping with the wishes of its benefactress, Kamehameha Schools offers admissions preference to applicants of Native Hawaiian ancestry. Doe has sought admission to Kamehameha four times. In at least one instance, he met the scholastic requirements for admission, but was not invited to attend because all of the available spaces were filled by Native Hawaiians under the preference policy. Doe’s lawsuit claims the policy violates section 1981 of the Civil Rights Act of 1866. His lawsuit asked the court to (1) order his admission to any of the three Kamehameha Schools campuses, (2) overturn the preference policy, and (3) order Kamehameha to pay unspecified monetary damages.
In November 2003, the lawsuit was dismissed on summary judgment in U.S. District Court in Honolulu. Federal Judge Alan Kay ruled that the policy is legally justified because of Kamehameha’s unique circumstances as a private institution that exists to remedy past harms and present imbalances and whose policy is continually reviewed and will be utilized only as long as the manifest imbalances exist. Specifically, Judge Kay ruled:
“[T]his case involves exceptionally unique circumstances involving a private school, which receives no federal funding, with a remedial race-conscious admissions policy to rectify socioeconomic and educational disadvantages of indigenous Native Hawaiians resulting from the influx of western civilization.”
“The Court finds the plan has a legitimate justification and serves a legitimate remedial purpose by addressing the socioeconomic and educational disadvantages facing Native Hawaiians, producing Native Hawaiian leadership for community involvement, and revitalizing Native Hawaiian culture thereby remedying current manifest imbalances resulting from the influx of western civilization.”
In August 2005, Judge Kay’s ruling was overturned in a 2-1 decision by a three-judge panel of the 9th Circuit Court of Appeals. In February 2006, the 9th Circuit Court granted an en banc review of the case, vacating the August panel ruling. Arguments were presented to a 15-judge panel in San Francisco on June 20, 2006. During the arguments, the plaintiff’s attorney acknowledged that his client has graduated from high school.
On December 5, 2006, in an 8-7 ruling, the en banc panel upheld the legality of Kamehameha Schools’ preference policy. In the majority ruling, Judge Susan Graber wrote:
“We took this case en banc to reconsider whether a Hawaiian private, non-profit K-12 school that receives no federal funds violates chapter 1981 by preferring Native Hawaiians in its admissions policy. We now answer “no” to that question and, accordingly, affirm the district court.”
The majority opinion acknowledged the educational imbalances faced by Native Hawaiians are undisputed in the court record, and noted that “Congress has expressly recognized the educational disadvantages suffered by Native Hawaiians and their marginalized status.”
“In view of those facts and congressional findings, it is clear that a manifest imbalance exists in the K-12 educational arena in the state of Hawaii, with Native Hawaiians falling at the bottom of the spectrum in almost all areas of educational progress and success. Furthermore, it is precisely this manifest imbalance that the Kamehameha Schools’ admissions policy seeks to address. The goal is to bring Native Hawaiian students into educational parity with other ethnic groups in Hawaii.”
“[N]othing in the record suggests that educational opportunities in Hawaii are deficient for students, like Plaintiff, who lack any Native Hawaiian ancestry. To the contrary, the same statistical data that portray the difficulties of Native Hawaiian children generally portray much greater educational achievement, in both public and private primary and secondary schools, for children of all other racial and ethnic groups in Hawaii. Those students denied admission by Kamehameha Schools have ample and adequate alternative educational options.”