Metropolitan News-Enterprise


Wednesday, December 6, 2006


Page 1


Ninth Circuit Upholds Special Schools for Native Hawaiian Children




The exclusive Kamehameha Schools’ policy of preferring native Hawaiians in admissions does not violate federal civil rights law, a sharply divided Ninth U.S. Circuit Court of Appeals ruled yesterday.

The en banc court, in an 8-7 decision, concluded that descendants of the aboriginal people who populated the islands prior to the arrival of Caucasians in 1778 have a special status, and that preferring them in admissions to the private schools does not violate 42 U.S.C. Sec. 1981.

A divided three-judge panel had ruled otherwise.

Judge Susan Graber, who wrote the panel dissent, authored yesterday’s opinion for a majority that also included Chief Judge Mary M. Schroeder and Judges Harry Pregerson, Stephen Reinhardt, William Fletcher, Richard A. Paez, Marsha Berzon, and Johnnie B. Rawlinson.

Graber said the policy “furthers the urgent need for better education of Native Hawaiians, which Congress has repeatedly identified as necessary.” Because the Kamehameha Schools are entirely privately funded and run, she declared, the validity of the school’s remedial policy must be judged by a more deferential standard than the strict scrutiny that would be given to a race-based policy implemented by a governmental body.

Judge Jay Bybee dissented, joined by Judges Alex Kozinski, Diarmuid F. O’Scannlain, Richard C. Tallman and Consuelo Callahan, and in part by Judges Pamela Ann Rymer and Andrew Kleinfeld.

‘Absolute Bar’

Bybee acknowledged “that Native Hawaiians suffer from severe socioeconomic disadvantages” and commended the schools “for attempting to remedy those hardships.” But he said the schools went too far in enacting a policy that acts as an “absolute bar” to admission of members of other racial groups.

While those persons have access to other educational opportunities, the dissenting jurist wrote, the Kamehameha Schools are unique because of “an illustrious network of alumni and a record of success that exceeds that of any other school in Hawaii.”

The 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 $6.8 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, only one non-native student has been admitted since 1962, the year the schools stopped granting admissions preference to the children of faculty members.

Relaxed Standard

Graber agreed with U.S. District Judge Alan Kay of the District of Hawaii that the policy does not violate the 1870 law 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.”

Noting that there were no constitutional claims in the case, Graber said claims of discrimination in education under Sec. 1981 should be judged by “a standard for evaluating remedial racial preferences by wholly private primary and secondary schools that is akin to that used in Title VII employment cases, but that takes into account the inherently broad and societal focus of the educational endeavor.”

Under that relaxed standard, Graber wrote, the Kamehameha policy passes muster. She said there was plenty of evidence that Native Hawaiians are disproportionately poor and in need of improved educational opportunity, and none that non-Native Hawaiian students, such as the rejected applicant who brought the suit, cannot obtain a good education in Hawaii.

Congress, she noted, has enacted legislation noting the disadvantages that Native Hawaiians face in the public schools and endorsing remedial measures.

She also noted that the schools allow non-Native Hawaiians to be admitted when the number of qualified Native Hawaiian students in a particular year’s pool is too small to fill every space; while only K-12 student has been admitted under that rule, a larger number have been let in to the preschool and after-school enrichment programs.

Graber also offered a separate reason for upholding the policy. Since Congress reenacted Sec. 1981 in 1991, and did so with full knowledge of the legislation favoring Native Hawaiians that Congress had enacted in the intervening years and of the preference given by the Kamehameha Schools, lawmakers must have intended to preserve the preference, she said.

Fletcher, in a separate concurrence joined by Pregerson, Reinhardt, Paez, and Rawlinson, said there was “an easier and narrower ground for upholding Kamehameha Schools’ admissions policy.” He argued that “’Native Hawaiian’ is not merely a racial classification” and that it is also “a political classification,” just like “American Indians and Alaska Natives,” who have been given special recognition under the law.

Bybee, however, argued that unlike those groups, Native Hawaiians have not been given special recognition by Congress, legislation seeking to do accomplish that end having failed to obtain a floor vote last year.

Eric Grant, the plaintiff’s attorney, said he would seek review in the Supreme Court. “Discrimination in favor of native Hawaiians and against other persons is racial discrimination,” he told the Associated Press.

The case is Doe v. Kamehameha Schools, 04-15044.


Copyright 2006, Metropolitan News Company