|
Gathering Place
David Rosen
|
Private schools subject to 5th, 14th amendments
I WRITE in response to the Star-Bulletin's editorial regarding a recent decision by the U.S. Supreme Court in two cases involving purported affirmative action programs ("Court ruling limited to public schools,"
Our Opinion, July 2). In one of the cases children were classified as "nonwhite or white" and in the other as "black or other." In both cases, the first groups of children were given a preference in admission to certain schools based solely on their race.
The Supreme Court, in ruling that both programs were unconstitutional, reaffirmed that while race could be considered as a factor in a legal affirmative action program, it could not be the only factor. The Supreme Court further reaffirmed that the appropriate standard for it to review the legality of programs that seek to use race as a factor was "strict scrutiny."
That standard, as it applies to grades K-12, requires that the party seeking to prefer a certain race(s) establish that it (not society in general) previously engaged in intentional discrimination against the group now sought to be favored.
While the Supreme Court's recent decision related to public schools, it is equally applicable to private schools that receive governmental support. Contrary to the protestations of its trustees, each year, the Kamehameha Schools receive hundreds of millions of dollars in governmental support through federal, state and county tax exemptions. There also are a number of other factors that subject Kamehameha Schools to the 5th and 14th Amendments' prohibitions against illegal discrimination.
Consequently, ceasing to charge tuition is not going to allow the Kamehameha Schools trustees to continue a policy that all of the courts considering this issue (including the 9th U.S. Circuit Court of Appeals) have concluded is not only discriminatory, but also is not required or contemplated by the will of Princess Bernice Pauahi Bishop.
Rather, an admissions policy that would be legal and could benefit those Hawaiians most in need of the trust's resources would give a substantial preference to "indigents and orphans" of all races. This is the type of affirmative action that I support.
David B. Rosen is an attorney in Honolulu.