Thursday, May 17, 2007

Doe v. Kamehameha Schools Settles
Gail Heriot

By now, you may have heard that Doe v. Kamehameha Schools, for which a petition for certiorari had been pending in the Supreme Court, has settled.  I'm disappointed, since I believed there was a good chance that the Court would take the case.  Now opponents of Hawaii's bizarre racial politics are back to square one.  (Although I suspect it won't take long for a new plaintiff to step up to the plate.  The settlement agreement is confidential, but it's likely that it involved a substantial sum of money for the plaintiff.  I doubt future plaintiffs will be able to resist the lure.)

The case was about the admissions policy at Hawaii's Kamehameha Schools.  But in some ways it was more notable for what it didn't concern than for what it did.  John Doe, a white applicant for admission, challenged the absolute preference given to ethnic Hawaiians there, which, with only a few scattered exceptions over the years, had resulted in nearly all students being ethnic Hawaiians.  Consequently, the case did not concern Grutter v. Bollinger, since the policy made the schools more uniform, not more diverse.  On the other hand, these are private (or at least quasi-private) schools that receive no federal funding.  (The huge Bishop Trust funds them.)  As a result, neither the Equal Protection Clause nor Title VI was applicable, and the case had to proceed under Section 1981. 

In July of 2005, a panel of the Ninth Circuit held that the Kamehameha Schools's admissions policies violate Section 1981.  Last year, however, a divided Ninth Circuit, sitting en banc, reversed that decision.  It was while the cert. petiton was pending that the settlement occurred.

Followers of civil rights cases may recall that a similar thing happened almost a decade ago in Piscataway School Board v. Taxman.  The Third Circuit had held that the Piscataway School Board had violated the law by giving an African American teacher extra seniority over a white teacher hired at the same time for purposes of a lay off.  The School Board appealed to the Supreme Court, but civil rights organizations, fearing that the case would provide a vehicle for the Supreme Court to put a halt to racially-preferential employment practices generally, raised $400,000 to settle the case.

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Gail Heriot