Wednesday, November 19, 2003


Akaka bill would help
defend against lawsuits


A federal judge has ruled that Kamehameha Schools' policy of admitting only Hawaiians conforms with federal civil rights law.

FEDERAL court rulings favorable to Hawaiians do not reduce the need for enactment of the Hawaiian recognition bill now languishing in Congress. The bill, sponsored by Senator Akaka, could put the trust relationship between the federal government and Hawaiians on firm footing and protect the admission policy of Kamehameha Schools. This week's ruling by Judge Alan Kay did not end the threat to Hawaiians.

Kay ruled that Kamehameha Schools' Hawaiian-only admission policy is not in violation of federal civil rights law. Federal Judge David Ezra heard arguments in a similar case yesterday and is expected to issue his ruling next month.

Those decisions will be subject to the same appellate scrutiny that resulted in the U.S. Supreme Court's reversal three years ago of Ezra's ruling in the case of Rice vs. Cayetano, setting the stage for the current cases. Appellate judges will not be subject to pressure from local sentiment and demonstrations, which Lilikala Kameeleihiwa, director of the University of Hawaii's Center for Hawaiian Studies, said "certainly did influence his (Kay's) understanding of our pain that these court cases have come this far."

One of the lawsuits pending before U.S. District Court seeks to abolish the Office of Hawaiian Affairs and the Department of Hawaiian Home Lands as unconstitutionally race-based programs that discriminate against non-Hawaiians. Judge Susan Mollway indicated she intends to scale back that suit, but on technical issues of the plaintiffs' authority to bring the suit rather than on substantive, constitutional issues, which could presage future lawsuits.

Two other suits challenge the Kamehameha Schools' admission policy. Judge Kay ruled that the schools' "race conscious" admission policy is justified "to rectify socioeconomic and educational disadvantages of indigenous native Hawaiians" caused by the overthrow of the Hawaiian monarchy. In the University of Michigan undergraduate case earlier this year, the U.S. Supreme Court ruled that affirmative action policies are allowed for such reasons, but race cannot be the "decisive factor" in determining an applicant's eligibility.

The justices held that the university's admission policy was in violation of the federal Civil Rights Act of 1866, which also prohibits private schools from discriminating by race. Kamehameha is a private school supported by a trust created by the 1884 will of Princess Bernice Pauahi Bishop.

State and Kamehameha Schools attorneys would have an easier task if the Hawaiian Akaka bill were law. The bill essentially would provide Hawaiians recognition equal to that of American Indian and native Alaskan tribes. In the Rice vs. Cayetano decision, the Supreme Court ruled that designation of Hawaiians is racial, and thus unconstitutional, because of the lack of such status. The Akaka bill could overcome that obstacle.



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