Students for Fair Admissions v. Trustees of the Estate of Bernice Pauahi Bishop

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I
STUDENTS FOR FAIR ADMISSIONS,
Plaintiff,
vs.
TRUSTEES OF THE ESTATE OF BERNICE
PAUAHI BISHOP d/b/a KAMEHAMEHA
SCHOOLS,
Defendant.
Civil No. 25‐00450 MWJS‐RT
CERTIFICATION TO THE ATTORNEY
GENERAL OF THE UNITED STATES
THAT A FEDERAL STATUTE HAS BEEN
QUESTIONED, AND ORDER
PERMITTING INTERVENTION
INTRODUCTION
Lawsuits in which the United States and its representatives are not a party—for
example, suits between private litigants—sometimes raise questions about the
constitutionality of a federal statute. When that happens, federal law requires the court
to “certify” the constitutional challenge to the Attorney General of the United States and
afford her an opportunity to intervene in the case. See 28 U.S.C. § 2403; Fed. R. Civ. P.
5.1(b).
The question is whether this is one such lawsuit. The court called for the parties’
views on that issue, Dkt. No. 25, and each submitted a timely response, Dkt. Nos. 26, 32.
Having considered the parties’ helpful submissions, the court concludes that
certification is warranted.
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BACKGROUND
1. With the aim of “remov[ing] the possibility of having a federal statute
declared unconstitutional in a suit to which the United States was not a party,”
Congress in 1937 enacted 28 U.S.C. § 2403(a). Peruta v. County of San Diego, 771 F.3d 570,
575 (9th Cir. 2014), rev’d en banc on other grounds, 824 F.3d 919 (9th Cir. 2016) (quoting
Comment, The Judiciary Act of 1937, 51 Harv. L. Rev. 148, 148–49 (1937)). Under that
statute, whenever an “Act of Congress affecting the public interest” has been “drawn in
question” in a lawsuit in which the United States, its agencies, and its officers and
employees are not a party, the court “shall certify” the constitutional challenge to the
Attorney General and “shall permit” the Attorney General to intervene in the lawsuit.
28 U.S.C. § 2403(a).
The court’s obligation under § 2403(a) is repeated in Rule 5.1(b) of the Federal
Rules of Civil Procedure, which provides that the court “must, under 28 U.S.C. § 2403,
certify to the . . . attorney general that a statute has been questioned.” And to ensure
notice even if a court fails to act, Rule 5.1(a) of the Federal Rules of Civil Procedure
requires any party “that files a pleading, written motion, or other paper drawing into
question the constitutionality of a federal . . . statute” to separately serve a “notice of
constitutional question” on the Attorney General. 1
1 	Rule 5.1—and 28 U.S.C. § 2403(b)—similarly require notice and certification to a
state attorney general when a state statute has been called into question and the
relevant state is not a party.
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2. This is a lawsuit between Plaintiff Students for Fair Admissions (“SFFA”) and
Defendant Trustees of the Estate of Bernice Pauahi Bishop d/b/a Kamehameha Schools
(“Kamehameha Schools”); the United States and its representatives are not joined. In its
complaint, SFFA principally claims that Kamehameha Schools’ admissions policy
violates 42 U.S.C. § 1981—a federal civil rights statute that extends to private
contracts—because the policy allegedly favors Native Hawaiians. See Dkt. No. 1, at
PageID.36–51. SFFA does not allege that Kamehameha Schools’ alleged conduct
violates the U.S. Constitution; indeed, SFFA concedes that Kamehameha Schools is a
“‘nongovernmental’ actor[],” id. at PageID.36, to which the Constitution ordinarily
would not apply.
SFFA nonetheless filed and served a notice of constitutional question. Dkt. No.
18. It contended that in an earlier lawsuit challenging the legality of Kamehameha
Schools’ admissions policy, the Ninth Circuit “appeared to hold that, when Congress
amended § 1981 in 1991, it authorized a race‐based ‘preference’ in contracting ‘for
Native Hawaiians.’” Id. at PageID.98 (quoting Doe v. Kamehameha Schs./Bernice Pauahi
Bishop Est., 470 F.3d 827, 849 (9th Cir. 2006) (en banc)). SFFA’s contention is that if
§ 1981 has such a carveout, “then that carveout violates the Fifth Amendment’s equal‐
protection principle” and “should be severed” from the remainder of § 1981. Id. And it
is this constitutional issue, in SFFA’s view, that required it to serve a notice of
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constitutional question on the Attorney General and that requires this court now to
certify the question.
Kamehameha Schools disputes that certification is necessary. It argues that
SFFA’s complaint, fairly read, “raises only statutory‐interpretation arguments to
support its request to overturn the en banc Ninth Circuit’s binding construction of
Section 1981.” Dkt. No. 32, at PageID.155. That is because “SFFA’s complaint does not
question the constitutionality of Section 1981 but rather argues that the proper
construction of Section 1981 does not contain a ‘carveout’ permitting Kamehameha
Schools’ admissions policy.” Id. at PageID.157. So viewed, SFFA’s complaint
“advances only a constitutional‐avoidance argument in service of SFFA’s interpretation
of Section 1981,” and there does not appear to be any “decision holding that a
constitutional‐avoidance argument requires certification.” Id. Put differently,
Kamehameha Schools contends that “the constitutionality of Section 1981 is not ‘the
subject of direct inquiry’” here. Id. (quoting Peruta, 771 F.3d at 575).
DISCUSSION
There is no dispute that the United States and its representatives are not parties
to this lawsuit. And there is no doubt that § 1981 is an “Act of Congress affecting the
public interest.” 28 U.S.C. § 2403(a). The only question, then, is whether “the
constitutionality” of § 1981 is “drawn in question.” Id. SFFA says that it is;
Kamehameha Schools says that it is not.
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The answer is not obvious, and as SFFA candidly acknowledges, the issue raised
here “is novel.” Dkt. No. 26, at PageID.109. Kamehameha Schools presents a
thoughtful description of SFFA’s complaint—one which this court could, conceivably,
agree with at a later stage in this case. There is force to Kamehameha Schools’
contention that SFFA is not truly seeking to strike down § 1981 as unconstitutional; after
all, SFFA is seeking relief under § 1981, and its constitutional arguments could—at
most—alter how the court would construe the statute in this case. The bottom line is
that the court cannot, at this early stage of the case, conclude that Kamehameha Schools’
interpretation of the complaint is wrong. For that reason, it cannot yet say that SFFA’s
contrary interpretation is right.
What breaks the tie is that, in the end, the court agrees with SFFA that “it should
still certify” even if it “is unsure whether SFFA’s complaint challenges the
constitutionality of § 1981.” Id. at PageID.110. Given Congress’ goal of “remov[ing] the
possibility of having a federal statute declared unconstitutional in a suit to which the
United States was not a party,” Peruta, 771 F.3d at 575, the court agrees with SFFA that a
“liberal understanding of what it means to question a statute’s constitutionality” is
properly embraced. Dkt. No. 26, at PageID.111. A broad interpretation of § 2403
certification advances Congress’ “purpose” of “ensuring that courts not rule on the
constitutionality of an Act of Congress without first receiving input from the United
States.” Peruta, 771 F.3d at 575 n.2 (cleaned up). Granted, § 2403 plainly does not fully
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accomplish Congress’ goal: the Attorney General is not required to intervene even after
certification is made. And due attention must be paid to the concern that too
“expansive” an “understanding of the certification requirement would impose
unwarranted burdens on courts, litigants, and the Department of Justice.” Dkt. No. 32,
at PageID.157. It is for that reason that, as the Ninth Circuit has explained, certification
is unwarranted where a plaintiff is merely objecting to “an exercise of authority under a
statute, whose validity is not attacked.” Peruta, 771 F.3d at 575. But where a party has
plausibly articulated how their complaint calls a federal statute into question,
certification is warranted even if the later course of the lawsuit proves that what was
once plausible is in fact incorrect.
SFFA has crossed that plausibility threshold here. The court therefore concludes
that certification is warranted and that the Attorney General must be afforded an
opportunity to intervene.
There is one final matter to address: The deadline to intervene ordinarily would
run from the date of SFFA’s notice of constitutional question. See Fed. R. Civ. P. 5.1(c)
(affording 60 days from the earlier of the party’s notice and the court’s certification).
But an extension of that deadline is warranted here. SFFA’s complaint was filed on
October 20, 2025, and it properly filed its notice of constitutional question shortly
thereafter. Kamehameha Schools was served and made its appearance in this case on
November 25, 2025, and submitted its views on the certification question that same day.
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Given the amount of time that has passed between when SFFA served its notice on the
Attorney General and the date of this order—and given that, in the novel circumstances
of this case, SFFA’s notice alone would not have made it obvious that the Attorney
General could intervene as of right—it is appropriate to extend the deadline so that the
Attorney General has a full 60 days to determine whether to exercise her right to
intervene.
CONCLUSION
Under 28 U.S.C. § 2403(a) and Rule 5.1(b) of the Federal Rules of Civil Procedure,
the court hereby certifies to the Attorney General of the United States that this action, in
part, calls into question the constitutionality of 42 U.S.C. § 1981. The United States shall
be permitted to intervene in accordance with 28 U.S.C. § 2403(a) and Rule 5.1(c), except
that the court extends the deadline for intervention so that it expires 60 days from the
date of this order. The Clerk of Court shall serve this certification and order on the
Attorney General for the United States.
IT IS SO ORDERED.
DATED: December 1, 2025, at Honolulu, Hawai‘i.
Civil No. 25‐00450 MWJS‐RT, Students for Fair Admissions v. Trustees of the Estate of
Bernice Pauahi Bishop d/b/a Kamehameha Schools; CERTIFICATION TO THE ATTORNEY
GENERAL OF THE UNITED STATES THAT A FEDERAL STATUTE HAS BEEN
QUESTIONED, AND ORDER PERMITTING INTERVENTION
/s/ Micah W.J. Smith
Micah W.J. Smith
United States District Judge
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