Ninth Circuit holds that 42 U.S.C. section 1981 is not co-extensive with the Equal Protection Clause

As a result, the substantive standards of Title VII of the Civil Rights Act of 1964, not strict scrutiny, govern challenges to discriminatory conduct brought under 42 U.S.C. section 1981.  At issue in the case was this question: 

"May a private, nonsectarian, commercially operated school, which receives no federal funds, purposely exclude a student  qualified for admission solely because he is not of pure or part aboriginal blood?"

Applying Title VII standards, the court concluded that the answer to that question is "no."

Dissenting in part, Judge Graber would have concluded that "Congress did not intend for section 1981 to bar all exclusive preferences to remedy the severe educational deficits suffered by Native Hawaiians * * *."  Doe v. Kamehameha Schools, (Ninth Cir. August 2, 2005).

Comments

[Charlie Hinkle]

The Ninth Circuit's opinion says: "The School does not attempt to justify its admissions policy by appealing to a First Amendment right to freedom of association, see Runyon v. McCrary, 427 U.S. 160, 176 (1976) (“Invidious private discrimination may be characterized as a form of exercising freedom of association protected by the First Amendment, but it
has never been accorded affirmative constitutional protections.”)"

Is that statement from Runyon good law? If the organizers of the St. Patrick's Day Parade in Boston have a First Amendment right to exclude persons who want to express a certain message about their sexual orientation (Hurley, 515 US 557 238 (1995)), and if the Boy Scouts have a First Amendment right to exclude gays (and presumably atheists) (Boy Scouts v. Dale, 530 US 640 (2000)), why doesn't the School in Hawai'i have a First Amendment right to limit admissions to native Hawai'ians?

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