Wednesday, August 3, 2005
Ninth Circuit Rules:
Special Schooling for Native Hawaiian Children Violates Rights Law
By KENNETH OFGANG, Staff Writer/Appellate Courts
The exclusive Kamehameha Schools’ policy of preferring native Hawaiians in admissions violates federal civil rights law, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
“[W]e...find that the Schools’ admissions policy, which operates in practice as an absolute bar to admission for those of the non-preferred race, constitutes unlawful race discrimination in violation of [42 U.S.C.] ß 1981,” Judge Jay Bybee wrote for a divided panel.
The Kamehameha Schools, located on the islands of Oahu, Maui, and Hawaii, were established in 1887 by Princess Bernice Pauahi Bishop, the last direct descendant of King Kamehameha I.
The princess created a testamentary trust for the benefit of the schools, and the trust came to own about 10 percent of all Hawaiian land prior to the passage of land reform legislation that required it be sold. The Bishop Estate is now one of the world’s wealthiest charities, with assets of about $6.2 billion, and the schools are its major beneficiary, educating more than 16,000 children from kindergarten through 12th grade.
Admission is prized because the schools offer rigorous educational standards and low tuition, with about two-thirds of the students on full or partial scholarship.
While the Bishop will does not restrict students by race, the trustees have long implemented a policy under which qualified native Hawaiians—meaning the descendants of the aboriginal people who occupied the islands prior to the arrival of Europeans in the 1770s—are given preference over members of other races.
Bybee continually referred to “native Hawaiians” in his opinion, while the dissent by Judge Susan Graber referred to “Native Hawaiians.”
Bybee reasoned that under Sec. 1981, which was enacted by Congress after the Civil War and amended as part of the Civil Rights Act of 1991, and which grants to every person “the same right in every State and Territory to make and enforce contracts...and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens,” a private school has no more right to discriminate on the basis of race than a public school system does under the Fourteenth Amendment Equal Protection Clause.
The trustees, the judge went on to say, had not demonstrated that the admission policy was supported by sufficient policy considerations to justify the racial classification.
Bybee acknowledged that there was “abundant evidence demonstrating that native Hawaiians are over-represented in negative socioeconomic statistics such as poverty, homelessness, child abuse and neglect, and criminal activity; they are more likely to live in economically disadvantaged neighborhoods and attend low-quality schools; and, because of low levels of educational attainment, they are severely under-represented in professional and managerial positions, and over-represented in lowpaying service and labor occupations.”
The trustees, however, are perpetuating racism, Bybee said, by suggesting “that of all those who are found in poverty, homelessness, crime and other socially or economically disadvantaged circumstances, only native Hawaiians count.”
Nor, the judge went on to say, has Congress authorized special treatment for Native Hawaiians as it has for Native Americans. While Congress has passed a number of measures that create benefit programs for native Hawaiians, including legislation authorizing grants to the Kamehameha schools to prepare native Hawaiians for college, “Congress has never even considered the racial bar to admission in place at the Kamehameha Schools, and we cannot infer implicit approval from a statute that merely authorized financial support for college-bound native Hawaiians,” Bybee wrote.
Senior Judge Robert Beezer concurred in the opinion.
Graber, dissenting, agreed with the district judge, Alan Kay, that native Hawaiians have a special status that permits a private entity such as the Kamehameha schools to grant them preference in order” to remedy abysmal socioeconomic and educational conditions.”
Hawaii’s senior U.S. senator, Daniel Inouye, issued a statement criticizing the decision.
“I would submit that Native Hawaiians are more than simply an ethnicity or a culture. They are the descendants of a sovereign nation who are on equal footing with the Alaskan Natives and the Indian tribes,” the senator wrote.
He noted that he and the state’s other members of Congress are trying to pass legislation that would formally recognize the status of Hawaii’s aboriginal people. His Senate colleague, Daniel Akaka, announced last Friday that an agreement had been reached to allow a debate on the bill in September.
“When we are successful,” Inouye wrote, “Native Hawaiians will be postured to reclaim their ancient dignity and forge a destiny for themselves in partnership with our State and our nation.”
John Goemans, an attorney for the plaintiff, a student identified only as John Doe who was turned down for admission in 2003, said the ruling was a “a very big event for Hawaiian history.” Kathleen Sullivan, the former Stanford Law School dean who argued the case for the schools, said en banc rehearing and, if necessary, review by the Supreme Court would be sought.
The case is Doe v. Kamehameha Schools, 04-15044.
Copyright 2005, Metropolitan News Company