Law: Doe v. Kamehameha Schools

Our reporter sat in as the case was argued in a San Francisco courtroom.

On June 20, along with about two dozen other expatriate Islanders (plus 100 white-shoe lawyers, law-school students and circuit-court externs), we jostled for places in San Francisco’s historic Post Office and Courthouse. We were there to hear the arguments before the U.S. Court of Appeals in Doe v. Kamehameha Schools.

Kamehameha Schools’ chief executive officer, Dee Jay Mailer, at left, looks on as Nainoa Thompson, one of the schools’ trustees, speaks at the courthouse. photo: Michael Young

The case has sparked passionate debate in Honolulu, where 15,000 people marched downtown last fall in support of the defendant school. Now, as it moves up through the federal courts, the case is also garnering national attention. It raises an intriguing question that may ultimately be decided by the U.S. Supreme Court: Are there circumstances that would allow an American school in the 21st century to exclude students on the basis of race?

Kamehameha Schools argues that its “Hawaiians first” admissions policy is valid affirmative action, remediating a century of suffering by the Hawaiian people. John Doe, the non-Native Hawaiian plaintiff who was refused admission, is using an 1866 statute on contracts to assert that the admissions policy is illegal discrimination.

For the schools, the outcome will determine whether the institution founded in accordance with the will of Princess Bernice Pauahi Bishop can continue to admit only children of Native Hawaiian ancestry. With 5,400 slots and 70,000 eligible Native Hawaiians—and a tuition of only $2,686 a year—the top-flight prep school is not just highly competitive. For the 210,000 Island students excluded, it is also cause for considerable envy.

The case was filed in 2003 in Honolulu District Court, which found for Kamehameha Schools. Doe appealed to the 9th Circuit, where in August 2005, a three-judge panel ruled in his favor. But last February, the appellate court decided to rehear the case en banc, which is why all 15 judges who serve on this court came to the San Francisco courtroom.

Eric Grant, Doe’s Sacramento-based attorney, was the first to get grilled. (Doe’s Big Island-based attorney, John Goemans, listened from the plaintiff’s table.) Telling the judges they faced a “stark choice,” Grant called the school’s admissions policy both “racially exclusionary” and “illegal.”

The judges pounced on Grant’s reliance on precedents barring discrimination in employment contracts. Judge Alex Kozinski noted that the tuition doesn’t come close to covering the $20,000 cost of a year of high school at Kamehameha. “It’s not a commercial contract, it’s a gift!” he exclaimed.

Representing Kamehameha Schools, Kathleen Sullivan, the former dean of the Stanford Law School, followed Grant. At issue, she argued, was whether the nation’s oldest civil rights law prohibits a privately funded school “from providing remedial educational preference for an indigenous people.” Sullivan noted, “We have scoured the laws. There is no case in which any court has struck down any remedial educational program.” But some judges remained skeptical that a private institution can ever remedy social wrongs.

As for Doe, he graduated from a public school this year, but is seeking damages for the residual benefits he would have received from being a Kamehameha Schools student, including college scholarships. The Circuit Court can take as long as a year to decide the case, and both sides have promised to appeal to the Supreme Court. The legal battle is far from finished.