The 9th U.S. Circuit Court of Appeals in San Francisco yesterday ruled that the private, non-profit educational institution Kamehameha Schools can no longer racially discriminate against students who are not native Hawaiian who want to attend the school.
See the full 37-page ruling here: http://tinyurl.com/88fjg
The case, known as John Doe vs. Kamehameha Schools, was brought by a non-Hawaiian student, now entering his senior year at a public school in Hawaii, who applied but was not admitted to Kamehameha Schools over the last four years.
The 2-to-1 written decision by the three-member panel on the case says the schools' admission policy constitutes "unlawful race discrimination," and that the private school's policy violates federal civil rights law, including a law passed in 1866 to end racial discrimination against African Americans in the South.
Appeals Court Judges Robert Breezer and Jay Bybee joined in the majority decision, noting Congress has recognized Native Hawaiians in several federal programs, but did not give the institution a "blanket approval for private race discrimination." Appeals Court judge Susan Graber issued a partial dissent.
Justices say the decision does not overturn the 1884 will of Hawaiian Princess Bernice Pauahi Bishop, which funded the establishment of Kamehameha Schools, noting the will did not say that race is a requirement for admission.
The policy of native Hawaiians-only was set forth by the first trustees of the school who believed the princess wanted to first educate students of Hawaiian ancestry.
As with a ruling by the U.S. Supreme Court against the private, non-profit Hillsdale College in Michigan, the fact that the school no longer accepts federal funding did not help Kamehameha School’s case.
The Aug. 2, 2005, decision outraged Hawaiian activists, parents, students and graduates of the school and supporters in the community who favor the Hawaiians-only admissions policy and special rights for native Hawaiians. Competition is extremely tough to enter Kamehameha Schools for students who are ethnically Hawaiian, and proponents of the racial preference policy say any change to the policy will further dilute the chances of native Hawaiian students to get a good education.
Nainoa Thompson, one of five trustees of the school, said at a press conference yesterday that the multi-billion trust will use whatever resources it has at its disposal to fight the decision. That includes seeking a second ruling from additional members of the appeals court and appealing the case to the U.S. Supreme Court.
Supporters of Kamehameha Schools also will hold a protest march on Saturday starting at Iolani Palace at 8 a.m. Thousands of native Hawaiians and supporters of the school are expected to show up for the event.
Legal experts consulted by Hawaii Reporter, however, say it is unlikely the decision in the case will be reversed, no matter how angry supporters of the school become.
They base their analysis on the recent rulings made at the Supreme Court level, which have sought to unite, rather than divide, the United States along racial lines.
A Hawaii case also set precedent in this area. In 2000, in a case known as Rice v. Cayetano, seven of nine justices ruled unconstitutional the policy of barring non-Hawaiians from voting for trustees for the state Office of Hawaiian Affairs.
The decision by the 9th Circuit Court of Appeals will fuel the debate between many factions in Hawaii who are passionately debating whether native Hawaiians should be entitled to federal recognition.
Adding to the power and money at stake is another legal challenge against the Office of Hawaiian Affairs pending before the appeals court, which was filed by Earl Arakaki. In 2004, Arakaki's case was dismissed by U.S. District Judge Susan Oki Mollway on the basis that it may interfere with the congressional debate in Congress on the SB 147, named the Akaka Bill for Hawaii Senator Daniel Akaka who introduce the legislation 5 years ago.
The bill, introduced to "protect" native Hawaiian rights and lands, and possibly further expand them, may be debated and voted on Sept. 6, 2005, in the Senate when Congress goes back into session.
Sen. Akaka has filed a petition for a cloture, which could force debate and a vote on the bill if 60 senators support his petition.
That may happen because Hawaii's Republican Governor, Linda Lingle, is fighting for the passage of the bill along with Hawaii's Democrat Congressional delegation. Lingle has rallied the support of the president behind the bill, and behind the scenes President Bush is said to be lobbying Republican Senators to pass the measure. In addition, the president's administration reportedly has asked the U.S. Justice Department to downplay its concerns over the constitutionality of the bill.
Lingle says the importance of the passage of the Akaka Bill was made all the more clear by yesterday's 9th Circuit Court of Appeals ruling.
However, several U.S. Senators and many native Hawaiian and non-Hawaiian groups are concerned about the implications and long-term effects of the Akaka Bill on land ownership, taxation, taxpayer subsidies, military affairs and the justice system in Hawaii are fighting against the passage of the bill.
These Senators and critics also cite concerns that the Akaka Bill could inadvertently allow the sovereign Hawaiian government appointed under this bill to legalize gambling in the state. Hawaii is one of two states in America without any form of legalized gambling.
To see the full text of the Akaka Bill in the article "Akaka Bill (S. 147) - Native Hawaiian Government Reorganization Act of 2005" click here: http://tinyurl.com/eyr4k
Malia Zimmerman, editor and president of Hawaii Reporter, can be reached via email at mailto:Malia@hawaiireporter.com
