Thursday, August 21, 2003


Kamehameha Schools
should prepare for adversity


A federal judge has ordered Kamehameha Schools to admit a non-Hawaiian student, despite its Hawaiians-only policy.

FEDERAL Judge David Ezra's order that Kamehameha Schools admit a non-Hawaiian seventh grader at its Kapalama campus provides no signal that the schools' prohibition against non-Hawaiians is doomed. However, an indication of legal problems ahead for the institution is provided by the judge's acknowledgment that the U.S. Supreme Court's 2000 decision opening Office of Hawaiian Affairs elections to non-Hawaiian voters may be relevant to the case.

Congressional approval of the Akaka bill recognizing Hawaiians as an entity equivalent to that of American Indian tribes could provide deserved legal protection to Kamehameha Schools and government programs aiding Hawaiians. The schools should be prepared to tailor their future admission policy to conform with an eventual adverse ruling in the event that Congress neglects to enact the Akaka bill.

Ezra granted the order not on the legal merits of the case but on the basis that student Brayden Mohica-Cummings had missed the first three weeks of the academic year at his public school on Kauai and that denying him admission to Kamehameha would cause him irreparable harm. Kamehameha had given preliminary approval of his admittance before learning that his mother had incorrectly stated that her part-Hawaiian adoptive father was her biological father. A more substantive ruling is expected from federal Judge Alan Kay after a Nov. 17 hearing on a similar lawsuit filed against Kamehameha Schools in June.

In the case of Rice vs. Cayetano, the high court ruled that OHA's election restriction violated the 15th Amendment, concluding that a requirement that voters be able to trace their ancestry to pre-Western contact with the islands amounted to racial discrimination. The court rejected OHA's assertion that Hawaiians be given legal consideration comparable to that afforded Indian tribes, but it chose to "stay far off that difficult terrain" of whether the same argument could be made successfully in other areas.

By a 7-2 vote, the court overturned Ezra's decision in the Rice case. In a hearing Monday on the Mohica-Cummings lawsuit, Ezra insisted that his Rice ruling, which would have retained Hawaiians-only voting, was correct and that the Supreme Court was wrong, but he said he would abide by the high court's decision.

In two rulings issued on the same day in 1976, the Supreme Court held that the Civil Rights Act of 1866 prohibited racial discrimination in public schools and that the law protects any race, not just minorities, from discrimination. In its decision striking down the University of Michigan's undergraduate affirmative action program earlier this year, the court cited those two rulings, affirming the doctrine established 27 years ago.

Kamehameha Schools argues that its enrollment -- mostly part-Hawaiians -- is racially diverse, even though non-Hawaiians are not allowed. In the Michigan case, the court ruled that race cannot be the decisive factor in disallowing an applicant's entry. In the absence of congressional recognition of Hawaiians similar to that of Indian tribes, race -- as defined by the court in the Rice case -- is a decisive factor for non-Hawaiians seeking entry to Kamehameha.



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