Thursday, February 23, 2006
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Court to Rule En Banc on Kamehameha Schools’ Admissions Preference for Native Hawaiians
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday agreed to decide en banc whether the exclusive Kamehameha Schools’ admissions preference for descendants of the aboriginal peoples who occupied Hawaii before whites came in the 18th Century violates federal civil rights law.
In a brief order signed by Chief Judge Mary M. Schroeder, the court said that a majority of its unrecused active judges had voted to reconsider an Aug. 2 panel decision in favor of a white student who was turned down for admission in 2003.
Judge Richard Clifton, the only Ninth Circuit judge from Hawaii, recused himself from the case.
Hawaii’s Republican governor, Linda Lingle, praised the decision to refer the case to a 15-judge limited en banc court.
“Courts ought to be instruments of justice, not of injustice,” the governor said in a statement. “I am glad the State was able to help Kamehameha Schools obtain this decision to have the full Court of Appeals review this matter, and I remain hopeful that Kamehameha Schools will ultimately win this case which is of such great importance to Hawai’i and our citizens, Hawaiian and non-Hawaiian alike.”
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 state 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 are given preference over members of other races. That policy violates 42 U.S.C. Sec. 1981, which grants all persons the equal right to “make and enforce contracts” without regard to race, Judge Jay Bybee wrote for a divided panel last summer.
The policy, Bybee said, “operates in practice as an absolute bar to admission for those of the non-preferred race.”
At the heart of the matter is the question, which has also been litigated in other contexts, as to whether Hawaii’s aboriginal people hold a legally protected status similar to that of native Americans. The judges’ opinions on the panel reflected the argument, as 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, 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.
Congress, he said, has not 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.
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.”
Senior Judge Robert Beezer concurred in the opinion.
Graber, dissenting, agreed with the U.S. 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.”
Public officials in Hawaii have been largely critical of the panel’s decision. Even before the panel ruling, the state’s all-Democratic congressional delegation was pushing legislation that would recognize the existence of a special status that would allow Native Hawaiians, in the words of Sen. Daniel Inouye, “to reclaim their ancient dignity and forge a destiny for themselves in partnership with our State and our nation.”
The American Bar Association’s House of Delegates voted to support that bill, the proposed Native Hawaiian Recognition Act, at the ABA Midyear Meeting last week.
The case is Doe v. Kamehameha Schools, 04-15044.
Copyright 2006, Metropolitan News Company