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Wednesday, August 3, 2005



Excerpts from
judges’ opinions

Majority opinion written by Circuit Judge Jay S. Bybee:

» The school's admission policy operates as an absolute bar to admission for non-Hawaiians. Kamehameha's unconditional refusal to admit non-Hawaiians so long as there are native Hawaiian applicants categorically "trammels" the rights of non-Hawaiians. The Court in Runyon made clear that an admissions policy that consciously and conspicuously denies admission to all members of the non-preferred race on account of their race is "a classic violation of § 1981." 427 U.S. at 172.

» In sum, it remains unclear whether the United States government enjoys a trust relationship with native Hawaiians similar to that enjoyed with organized tribes. But under the statutes and case law as they exist now, we, like the Court in Rice, find it advisable to "stay far off that difficult terrain." Rice, 528 U.S. at 519.

» We emphasize that our ruling today is a narrow one. We conclude only that the plaintiff-appellant has met his burden of establishing the invalidity of the racially exclusionary affirmative-action plan in place at the Kamehameha Schools, as that plan currently operates as an absolute bar to admission for those of the non-preferred race. Nothing in our decision, however, implicates the validity of the Pauahi Bishop will, as we do not read that document to require the use of race as an admissions prerequisite.

» Indeed, the subtext to the Schools' policy -- that of all those who are found in poverty, homelessness, crime and other socially or economically disadvantaged circumstances, only native Hawaiians count -- "perpetuate[s] the notion that race matters most" and "'may exacerbate the very [conditions that Kamehameha's policy is intended] to counteract.'"

» We cannot agree with the district court's conclusion that the challenged program constitutes a valid affirmative-action plan supplying a legitimate nondiscriminatory reason for the Schools' racially exclusionary admissions policy. Under the principles we find controlling, the Schools' absolute bar to admission on the basis of race is invalid.

» We have located no authority for the proposition that congressional intent, as manifested by scattered statutes adopted specially for the benefit of native Hawaiians, is sufficient to modify the standards embodied in a statute of general applicability. ... Congress is quite capable of creating exceptions for such laws, and we would intrude on its ability or willingness to do so if we scoured the U.S. Code for hints of contrary intent. For reasons both of separation of powers and our own sanity, we will not undertake such a task.

Partial dissent by Circuit Judge Susan P. Graber:

» I disagree that the mere fact that Kamehameha Schools grants an exclusive preference to native Hawaiian applicants is dispositive of this case. Indeed, the inescapable conclusion from the statutory context is that in 1991 Congress intended that a preference for native Hawaiians, in Hawaii, by a native Hawaiian organization, located on the Hawaiian monarchy's ancestral lands, be upheld because it furthers the urgent need for better education of native Hawaiians, which Congress had identified explicitly in 1988.


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Decision raises
several questions

What did the court rule yesterday?

In the case John Doe v. Kamehameha Schools, a panel of the 9th U.S. Circuit Court of Appeals in San Francisco ruled 2-1 that the schools' policy of admitting only native Hawaiians violates federal civil rights law. The ruling reversed a Nov. 17, 2003, decision by U.S. District Judge Alan Kay, who ruled that the Kamehameha Schools could continue the Hawaiians-only admission policy because of its unique historical circumstances.

What reasons did the appeals judges give for their opinion?

The majority opinion stated that the private school's admission policy was "unlawful race discrimination" and that it is "as an absolute bar to admission of those of the non-preferred race."

Who are the plaintiffs and defendants?

The suit was filed on behalf of an anonymous boy and his mother, identified only as John and Jane Doe, by Sacramento, Calif.-based attorney Eric Grant, and John Goemans, a Big Island attorney whose constitutional challenge of Hawaiians-only voting for trustees of the Office of Hawaiian Affairs on behalf of Big Island rancher Harold "Freddy" Rice was upheld by the Supreme Court in 2000. John Doe had been turned down for admission in 2003. The defendants are Kamehameha Schools and its trustees.

What did the plaintiffs want?

The plaintiffs contend that John Doe was denied admittance to Kamehameha Schools because he is non-Hawaiian. They sought to overturn the admission policy and to have the boy admitted.

What happens next?

The plaintiffs' attorneys expect the boy, who will be in the 12th grade, to be accepted for the upcoming academic year, starting this month. However, the Kamehameha Schools trustees vow to appeal the decision to the full Appeals Court and to fight any court order demanding that they admit the boy.

If admitted, would the boy be the only non-Hawaiian at Kamehameha Schools?

No. In a controversial decision in 2002, the schools' trustees admitted a non-Hawaiian to its Maui campus. After an outcry from alumni and the Hawaiian community, the trustees reaffirmed their policy to give preference to children of Hawaiian ancestry. But in 2003, U.S. District Judge David Ezra ordered Kamehameha Schools to admit a non-Hawaiian, 12-year-old boy pending a decision in the child's civil rights challenge to the school's Hawaiians-only admission policy. Brayden Mohica-Cummings' mother, who is non-Hawaiian but had been adopted and raised by a Hawaiian man, stated on his application that Brayden was Hawaiian. He was initially accepted, but the school rescinded his acceptance after learning he had no Hawaiian blood. The boy later dropped the lawsuit in exchange for being allowed to remain at the school.


Associated Press, Star-Bulletin



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