The Strange Legal Hierarchy of Discrimination
Most Americans grow up believing a simple principle: discrimination is wrong. We learn that you shouldn’t judge people or exclude them based on things they can’t control, like their race, sex, or where they come from.
But American law tells a more complicated story. Under our legal system, some types of discrimination are severely prohibited, some require special justification, and some are perfectly legal. The ongoing legal battle over Kamehameha Schools in Hawaii reveals this uncomfortable truth in stark terms.
The Legal Hierarchy of Discrimination
American courts have created what lawyers call different “levels of scrutiny” for different types of classifications. Think of it as a ladder, with the most strictly prohibited discrimination at the top and the most easily justified discrimination at the bottom.
Level 1: Race (Strictest Rules)
The Law: Racial discrimination faces the highest legal barrier, something called “strict scrutiny.” Under this standard, any policy that treats people differently based on race is presumed unconstitutional or illegal unless it serves a “compelling” interest and is “narrowly tailored” to achieve that interest.
What It Covers: The federal civil rights law at the heart of the Kamehameha case is Section 1981 (42 U.S.C. ยง 1981). This law has its origins in the Civil Rights Act of 1866, passed right after the Civil War to protect freed slaves. After the Fourteenth Amendment was ratified, Congress re-enacted this law in the Enforcement Act of 1870, which is where today’s Section 1981 comes from. It says that all people shall have “the same right to make and enforce contracts as is enjoyed by white citizens.” In 1976, the Supreme Court applied this law to private school admissions in Runyon v. McCrary.
The Bottom Line: Private schools generally cannot exclude or prefer students based on race, even if they have good intentions.
The Two Lives of Section 1981
Level 2: Sex/Gender (Middle Ground)
The Law: Sex discrimination faces “intermediate scrutiny,” a somewhat less demanding standard. Policies based on sex must serve “important” governmental objectives and be “substantially related” to achieving those objectives.
What It Covers: Title VII of the Civil Rights Act of 1964 prohibits sex discrimination in employment. But notably, there’s no federal law that broadly prohibits private schools from operating single-sex admissions policies.
The Bottom Line: Private all-boys schools and all-girls schools are generally legal. In Hawaii, schools like St. Louis School (an all-boys Catholic school in Honolulu) and Sacred Hearts Academy (an all-girls school) operate legally with single-sex admissions. St. Andrew’s Schools even operated with separate all-boys and all-girls divisions until recently announcing they’ll go fully co-educational in 2026. These schools make admissions decisions based on sex without facing the same legal challenges that Kamehameha faces for its race-based preference.
Level 3: Other Categories (Easiest to Justify)
The Law: Most other types of classifications, like age, wealth, or general disability, face only “rational basis review.” This means the government or institution just needs a reasonable justification.
The Bottom Line: These types of distinctions are generally permitted as long as they’re not completely arbitrary.
Wait, Section 1981 Is From 1866? Not 1964?
This confuses almost everyone, so you’re not alone. Most people think “civil rights law” means the famous Civil Rights Act of 1964, which ended Jim Crow segregation and is what we learn about in school. But the Kamehameha case is brought under a much older law.
Here’s what you need to know:
Section 1981 (the old law from 1866/1870):
- Originally passed in 1866 right after the Civil War
- Re-enacted in the Enforcement Act of 1870
- Prohibits racial discrimination in making contracts
- This is what the Kamehameha lawsuit is based on
The Civil Rights Act of 1964 (the famous one):
- Includes Title VII (prohibits employment discrimination)
- Includes Title II (prohibits discrimination in public accommodations)
- Does NOT directly apply to private school admissions
So why use the old 1866 law instead of the 1964 law? Because Title VII only covers employment discrimination. It doesn’t cover private school admissions. Section 1981, which covers “contracts,” is the only federal law that clearly applies when parents pay tuition in exchange for education.
The Two Lives of Section 1981
Here’s where it gets even weirder:
Life #1 (1866-1976): The Dormant Years
- For about 100 years, Section 1981 was rarely used and largely forgotten
- Most civil rights enforcement came from other laws
- It basically sat on the books gathering dust
Life #2 (1976-Present): The Reinvigoration
- In 1976, the Supreme Court decided Runyon v. McCrary
- This case said: “This old law from 1866? It actually applies to private schools that discriminate”
- Suddenly, Section 1981 became a powerful tool again
- In 1991, Congress amended it to make clear it covers private discrimination
The Shocking Comparison
Here’s what makes this hierarchy so striking when you see it in practice:
Most people find this jarring. If you’re excluding someone based on something they can’t control, isn’t that discrimination? But the law draws these distinctions based on which groups have historically faced systematic oppression and which constitutional protections apply.
Why Does This Hierarchy Exist?
The courts justify these different levels based on American history. Racial classifications receive the strictest scrutiny because of slavery, Jim Crow laws, and the Reconstruction Amendments to the Constitution. The Fourteenth Amendment, ratified in 1868, specifically aimed to guarantee equal protection of the laws after the Civil War.
Sex discrimination is treated less strictly, in part because it wasn’t addressed by the Reconstruction Amendments and courts have sometimes viewed biological differences between men and women as relevant to certain policies (a position that remains controversial).
The Bigger Picture
The case reveals a tension in how Americans think about civil rights. We generally support the principle that “discrimination is wrong,” but we’ve created a legal system where different types of discrimination face wildly different treatment. A school that excludes boys faces no federal legal challenge, but a school that prefers Native Hawaiians faces repeated lawsuits.
It’s a reminder that our legal system doesn’t always match our intuitive sense of fairness, and that sometimes the law makes distinctions that most people would find surprising or even shocking.