On Tuesday, the Ninth Circuit Court of Appeals held that a minority-oriented school can exclude members of all but one race (Native Hawaiians), even if the school is covered by the civil-rights laws. That decision was issued in Doe v. Kamehameha Schools. It was decided by an 8-to-7 vote (the vote was almost along party lines: all but one of the Democratic appointees were in the majority, while all the Republican appointees dissented).
John Rosenberg discusses the decision in a post called “In Paradise, Diversity Means No Whites,” at his Discriminations blog.
The Ninth Circuit’s ruling shows it’s risky to give deference to educators on racial matters, as the Ninth Circuit did in its earlier decision in 2005 upholding the Seattle School District’s use of race to promote racial balancing. (The school district barred whites from attending schools with a lot of whites, and minorities from attending schools with a lot of minorities. So if a lot of blacks were already attending a particular school, resulting in it having a high minority enrollment, a Hispanic or Native American could be prevented from going there).
Now, the Ninth Circuit has used that same concept of deference to educators uphold a policy of racial segregation and exclusion.
Apparently, the defenders of using race in admissions are willing to make contradictory arguments.
When they want to admit more minority students to a predominantly white school, they argue that racial mixing enhances education for members of all races, requiring the use of race to increase minority enrollment.
But when they want to exclude whites from a predominantly minority school, they argue that racial mixing does nothing for education, and that educators’ decision to create a one-race school is entitled to deference.
One reason not to give schools deference when they use race is that they may have improper motives for using race, and deference makes it hard to smoke out such improper motives.
Consider an earlier Ninth Circuit decision in 2005 that upheld the Seattle Schools’ use of race to promote racial balancing. Although a Ninth Circuit judge accepted the argument that the Seattle Schools’ use of race was designed to create a “melting pot,” that was not their true motive.
In fact, the Seattle Schools denounce the very concept of a “melting pot” on their web site, as CEI noted in an amicus brief it filed with the Supreme Court.
As CEI noted, the Seattle Schools have promoted invidious racial stereotypes, such as claiming that planning ahead (“future time orientation”) is a white characteristic that minorities should not be expected to exhibit, and that only whites can be racists.
And they have treated students as members of competing racial groups rather than as individuals, claiming that “individualism” is a form of “cultural racism.”
Thus, their goal doesn’t seem to be to promote integration or the concept of a melting pot.
Rather, it seems to be based on the belief that whites and minorities have permanent, innately different racial characteristics that make racial balancing necessary to ensure that each school has a student body with roughly the same mix of characteristics.
That is a scary notion.
The sad thing is that there is an alternative argument in favor of the Kamehameha Schools that would not have set a bad precedent for governmental discrimination based on race: namely, that the Kamehameha Schools are private schools, and should have a free association right to prefer Native Hawaiians.
As Professor David Bernstein and others have noted, private schools should be given broader leeway in their admissions criteria by the courts, precisely because they are private and enjoy freedom of association.
But the Supreme Court may have foreclosed that argument in Runyon v. McCrary (1976), which held both that the federal civil-rights laws generally apply to private schools, and that those civil-rights laws override schools’ free association right to discriminate.
As Judge Alex Kozinski points out in his dissent, though, federal civil-rights laws only cover private schools that receive federal funds or charge tuition. So the Kamehameha Schools could have avoided those laws (and any need to admit non-Native Hawaiians) simply by not charging tuition (charitable trusts, not tuition, already cover most of the costs of the Kamehameha Schools).