In Some Parts of America, at Some Times in our History . . . [Part II]

Michael Stokes Paulsen

I've been AWOL from blogging, forbidding myself its joys (but not "Lost") until finished grading (my last set of exams at University of Minnesota Law School!).


In the meantime, John Doe v. Kamehameha Schools, settled out from under my planned "Part II." In Minnesota, fishing season has just begun. Kamehameha is the proverbial Big One that Got Away.

The petition for certiorari has been dismissed. As the New York Times reported last week, the terms of the settled "were not disclosed." The legal effect of the settlement is to leave in place the 8-7 en banc Ninth Circuit decision upholding the school's ethnic Hawaiians-only admissions policy, much as a "cert. denied" would have. As the Times reports: "The Supreme Court had considered whether to hear the case four times but had not reached a decision by Friday, when the parties informed the court of the settlement. The case was dismissed the same day."

As I noted last week, John Doe had graduated, leaving only a claim for damages. One can only speculate as to why the Supreme Court had re-listed the case several times. My own uninformed hypothesis was that the Court was considering a GVR in light of whatever it decides to do in the Seattle and Kentucky race-based public school student assignment cases. That might (or might not) give some clues as to what the Court will do in those cases. (If race-based public school assignments as a voluntary government "remedial" measure for de facto segregated public school districts were held unconstitutional, one could understand remanding Kamehameha to the en banc Ninth Circuit to see if that would flip any votes.)

At any rate, the parties evidently became uncertain enough, or nervous enough, that somebody's settlement offer was sufficiently attractive to the other somebody that the case went away. Perhaps it was Piscataway-ed away. (That's a reference to Taxman v. Piscataway, the Third Circuit case from a few years back in which a school district had laid off a white female teacher rather than a black female teacher, with race being the explicit tie-breaker. The Third Circuit upheld the school district's action, the Supreme Court granted cert, and worried backers of racial preferences put up the money to purchase a settlement and a dismissal of cert., avoiding an almost certain reversal -- and living to fight another day, and to win one half of the Grutter-Gratz doubleheader.)

The issue in Kamehameha will likely recur. The settlement settles only John Doe's individual claims, of course. A subsequent suit challenging the school's policy would need to confront the adverse Ninth Circuit en banc opinion, of course. But from the perspective of this academic / part-time litigator of provocative legal issues, this actually makes a subsequent challenge more attractive, because the case could proceed on a pretty smooth legal track: Complaint, Motion to Dismiss on Authority of Doe I granted, Appeal, Quick Loss in Ninth Circuit, En banc Denied, Cert. Petition. Any takers?

A few brief parting comments on the merits, responding (in part) to others raised this past week.

1. Marty Lederman says that I've missed the whole point: Kamehama Schools' Hawaiians-only policy is remedial. (See his post from last Saturday.)

Not in any legitimate legal sense of the term is Kamehameha's practice "remedial"! For the sake of argument, let's stipulate to an imperialist, unflattering history of Hawaii's becoming part of the United States; and let's stipulate to a history of social and economic subordination of ethnic Hawaiians. Then, let's assume further a history of racially segregated public schools.



Now, imagine Kamehameha as a race-exclusive public school, for native-ethnicity Hawaiins only, as a "remedy" for past, identified government discrimination in education. The idea is that it would be a super-duper, bells-and-whistles, above-the-curve school, for ethnic Hawaiians only. In other words, the (hypothesized) "remedy" for government discrimination and segregation in education would be an extremely high-quality racially segregated "magnet" school for the disadvantged race only. Can anyone imagine that this would be upheld as constitutional, on the theory that it is "remedial"? As a first-year exam question, I would fear that this would be too easy: Richmond v. Croson would clearly say no to such a 100% racial set-aside as "remedial," wouldn't it? Bakke and Grutter wouldn't help, either. One cannot use racial preferences to remedy general societal discrimination. "Diversity" certainly cannot justify a race-exclusive school (cf. VMI). And this just isn't a narrowly-tailored remedy for the government's past identified discrimination against individuals (or even groups).

2. But, of course, Kamehameha is a private school. It is not subject to the Equal Protection Clause. But it is subject to 42 U.S.C. section 1981, which forbids racial discrimination in the making of private contracts, and has never been Weber-ized to create a minority-race-exclusive contracts exception to its reasonably clear statutory language. Nor is there a "Hawaii exception" to 1981. Marty quotes Kamehameha's brief, at length, on all sorts of special Hawaii congressional legislation. Without even raising the question whether some of these provisions might be constitutionally problematic (under Rice v. Cayetano, 2000), certainly none of them repeals section 1981 with respect to discrimination in private contracts by ethnic Hawaiians, and none of them can fairly be read even as impliedly repealing 1981.

Nor do ethnic Hawaiians, or Hawaii as a state, have some sort of unique constitutional exemption from section 1981. One may lament nineteenth century history; one may think that the acquisition of Hawaii was morally improper in the 1890s; one may even disapprove of Hawaii's admission as a state in 1959. But Hawaii is part of the United States of America. It has no recognized special status (ala Native American Indian tribes) that might afford a plausible basis for treating it (and its citizens) as nationals of a separate sovereign and thus not subject in all respects to the law governing other Americans. (Again, consider Rice v. Cayetano). It follows from the fact of Hawaii being a state of the union -- though some may dislike that -- and from Hawaiians being Americans -- though some may dislike that -- that, if 1981 means what it says, Kamehameha School's practice is a plain violation of federal law.

3. Unless, that is, Kamehameha possesses a First Amendment free speech / expressive association right to discriminate in admissions on the basis of race. Marty Lederman, astutely, hits me where I live on this point: I am on record as a strong defender of the right of private organizations, as an aspect of their First Amendment rights under the Free Speech Clause, to formulate, express, and maintain their distinctive identities and views; and to do so by controlling their own membership practices. The Boy Scouts get to determine their own rules and moral standards concerning scoutmasters. The Democratic Party gets to decide its rules for delegate selection. Parade organizers get to decide who is in their parade. Heck, Yale Law School gets to exclude Christian legal advocacy organizations (including one for whom I worked after graduating from Yale) because it dislike's the organization's values. Michael Stokes Paulsen, How Yale Law School Trivializes Religious Debotion, 27 Seton Hall L. Rev. 1259 (1997). I have doubts about the correctness of Roberts v. Jaycees and the private service club line of cases, though they are tolerably hedged to prevent too grave an interference with First Amendment association rights. See, e.g., Michael Stokes Paulsen, Scouts, Families, and Schools, 85 Minn. L. Rev. 1917 (2001). In fact, I am not at all certain that Rumsfeld v. FAIR was rightly decided (or at least I am not certain it was rightly reasoned) as to private universities, if the claim is one of direct government power to prescribe access (as opposed to conditions on funds).



It follows from these views that there is at least a plausible argument that private schools have a constitutional right to control their admissions policies so as to establish and maintain a distinctive identity and message of the school. (See Minnesota article pp. 1934-1937). Would that mean that segregated private academies have a First Amendment right to discriminate on the basis of race?! The issue is troubling; I trouble over it for several pages; I find Runyon's reasoning utterly unsatisfactory on this point (p. 1935) and offer several possible alternatives for accepting its outcome, one of which is that the racist private schools in that case (like the private club in Roberts, and like Kamehameha Schools here) really made "no showing that discontinuance of discriminatory admission practices would inhibit in any way the teaching in these schools of any ideas or dogma." Runyon, 427 U.S. at 176 (quoting the lower court's findings with apparent approval). Another possibility I suggest is that something like an O'Brien test should be applied to conduct (discriminatory admissions policies) where the government action is not directed at the expressive message entailed.



I would be open to -- and equally troubled by -- a claim by Kamehameha Schools of a First Amendment constitutional right to exclude non-ethnic-Hawaiians as essential to maintaining their distinctive message and viewpoint. I am not sure how it should be resolved, on first principles. But I am quite sure that the answer should be the same for all racist schools that maintain racially exclusive policies. The First Amendment surely does not permit a distinction between "good" racially-exclusive ideologies and "bad" racially-exclusive ideologies. (This may go a ways toward explaining why Kamehameha's lawyers did not press a First Amendment argument.) In principle -- and principle counts -- the two cases must be treated the same. Legally, each of these things is just like the other.



4. That brings me to my final point. Marty makes a good deal of the fact that even the dissenters in the Ninth Circuit were not harsh, as I was, on Kamehameha Schools, even writing admiringly of the school. There is much that might explain this -- "political correctness," generosity, an unwillingness to criticize one's colleagues too harshly, etc. My point is a simple, crude one. In principle, what is the difference between a racially-exclusive school whose ideology is that one race should be educated separately and treated specially (because Hawaiian) and one that holds the same views with respect to a different race?

Practically, one might well be inclined to think that there are differences between the two situations. But I question whether the differences are ones that should be indulged. They are not differences in principle, but, invariably, at some level, concessions away from principle. And it seems way too easy to make such concessions. Thus, I embrace the harsh comparisons to Little Rock and the racist private academies of a different area of America's south, at a different time. The analogy is shocking, disturbing. It should be. If one stood behind a veil of ignorance and were called on simply to address the issue on point of principle -- is it legally (and morally) proper to run a racially-exclusive, segregated private school, for ideological purposes? -- how many liberals (or conservatives) would truly wish to say yes? If one has to work so hard to distinguish various shades of different answers to this question, in different contexts, should not one be deeply concerned?



Michael Stokes Paulsen
Posted 3:50 PM by Michael Stokes Paulsen [link]