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Last year, Ninth Circuit Judge Jay Bybee authored a controversial opinion that a nonprofit school set up to benefit native Hawaiians was discriminating against white students by denying them admission. Judge Susan Graber dissented. The judges restated their positions in ad-ditional detail on Tuesday � only this time Bybee was writing in dissent as Graber penned the 8-7 majority opinion in a strikingly contentious en banc case, in Doe v. Kamehameha Schools, C.D.O.S. 04-15044. The controversial case began when a white student sued the Kamehameha schools � established in the late 19th century will of a Hawaiian princess to improve the situation of island natives � for illegally discriminating against non-ethnic Hawaiians. A federal trial court threw out the suit, ruling that the school’s policy of giving native islanders preferential admission was legal. Bybee’s 2005 opinion (.pdf) reversed that ruling, but the Ninth Circuit decided to reconsider it en banc. In reversing Bybee, the 8-7 majority opinion said the judge had misconstrued the 1976 U.S. Supreme Court decision Runyon v. McCrary, 427 U.S. 160, which said a federal statute, 42 U.S.C. �1981, prohibits discrimination in private contracts. Writing the majority opinion that drew heavily on federal employment law, Graber said the school’s admissions system of preferring students of native descent was perfectly legal within the U.S. Supreme Court’s framework. “Because the schools are a wholly private K-12 educational establishment, whose preferential admissions policy is designed to counteract the significant, current educational deficits of native Hawaiian children in Hawaii,” Graber wrote, “and because in 1991 Congress clearly intended �1981 to exist in harmony with its other legislation providing specially for the education of native Hawaiians, we must conclude that the admissions policy is valid under 42 U.S.C. �1981.”
‘It’s sort of the usual split that you see, mostly � and I hate to say this � by who was appointed by Democrats and Republicans.’

Carl Tobias University of Richmond School of Law

Five of the seven judges who joined Graber’s opinion signed onto a concurrence by Judge William Fletcher, who wrote that while he agreed with Graber’s analysis, “there is an easier and narrower ground for upholding Kamehameha Schools’ admissions policy.” Fletcher said, in essence, that native “Hawaiian” may be construed as a political distinction analogous to “native American” � and that both native Hawaiians and native Americans have long been the subject of a “special relationship doctrine” with the government for special benefits to offset inequalities. “I see nothing in �1981 to indicate that Congress intended to impose upon private institutions a more restrictive standard for the provision of benefits to native Hawaiians that it has imposed upon itself,” Fletcher wrote. Carl Tobias, a professor at the University of Richmond School of Law who tracks the Ninth Circuit, remarked on the divisive-ness of the opinion. “It’s sort of the usual split that you see, mostly � and I hate to say this � by who was appointed by Democrats and Republicans,” he said. Indeed, only one Democratic appointee, Judge Richard Tallman, sided with the dissenters. Tobias also said he was struck by the straightforwardness of Fletcher’s concurrence, as opposed to the majority’s decision to apply employment law to the situation. Of course, neither of the arguments swayed Bybee. “Indeed, I believe the majority’s novel approach to statutory interpretation is readily emanipulable and would enable courts to rewrite statutes whenever they want to save a particular program, contract, or enactment,” he wrote in his 48-page dissent. And, Bybee added, “because native Hawaiians do not constitute a federally recognized tribe and Kamehameha is a private party, I also disagree with Judge Fletcher’s suggestion that the special relationship doctrine of Morton v. Mancari, 417 U.S. 535 (1974), can save Kamehameha’s racially exclusive admissions policy.” All six of the judges who joined Bybee’s dissent signed onto at least one of three other dissents by Judges Pamela Rymer, Andrew Kleinfeld and Alex Kozinski (who also signed on to every other dissent). Rymer saluted the school’s mission, but lamented that “as a practical matter, nonnative Hawaiians are precluded.” She also voiced discomfort with several aspects of the plaintiff’s case, including the application of civil rights law to a private school that takes no federal money. She also wondered “what business it is of the federal government to tell a native Hawaiian that she can’t choose to help other native Hawaiians whom she believes particularly need it.” Despite that, she concluded � with Judges Kozinski, Diarmuid O’Scannlain, Tallman and Consuelo Callahan � that precedent does not allow the Kamehameha Schools to justify preferential ad-missions as a means of redressing past injustices against Hawaii’s indigenous population. BYBEE STANDS TALL Tobias said that in reading the opinion, he took note of the fact that only Bybee’s dissent was joined by all of the disagreeing judges. “I think that he’s ready to take a significant leadership role on the court,” Tobias said. Bybee, who joined the court in 2003 after working as a Bush administration lawyer (a role in which he wrote a famous memo that seemed to ease the definition of torture), has asserted himself with verve several times over the last year, disagreeing with what he seems to see as judicial overreaching by his colleagues. In May, he wrote a blistering dissent from a court decision not to reconsider en banc an opinion in a case in which a three-judge panel decided that Congress made a typo, substituting the word “less” for “more” in a statute. “We command no army; we hold no purse,” Bybee wrote. “The only thing we have to enforce our judgments is the power of our words. When those words lose their ordinary meaning � when they become so elastic that they may mean the op-posite of what they appear to mean � we cede our right to be taken seriously.” More recently, Bybee dissented vigorously from an opinion authored by one of the circuit’s proudly liberal bastions, Judge Stephen Reinhardt, in which Reinhardt ordered a hearing for a convicted murderer after a witness recanted his testimony. “I disagree with nearly every word the majority has written, including ‘and’ and ‘the.’ My profound disagreement is not limited to the facts, but runs throughout the majority opinion,” Bybee wrote. In the end, there’s still a chance that Bybee could be vindicated: Tobias said he wouldn’t be surprised if the Supreme Court elected to hear the Kamehameha case.

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