[ OUR OPINION ]

---

Hawaiian energy should
focus on Akaka bill

THE ISSUE Governor Lingle and Kamehameha Schools maintain that the schools' Hawaiians-only admissions policy is not racially discriminatory.

GOVERNOR Lingle testified before a U.S. Senate committee in February in favor of federal recognition of Hawaiians as an indigenous people comparable to American Indian tribes. She continues to speak out on the importance of the recognition bill sponsored by Senator Akaka. While the bill is in jeopardy, she and Hawaiians are protesting a lawsuit challenging the Hawaiians-only admissions policy of Kamehameha Schools, which is at the heart of why the Akaka bill is needed.

The energy directed against the lawsuit should be channeled into gaining the Bush administration's support of the Akaka bill and at wresting loose an anonymous stranglehold on the bill -- presumed to be that of Sen. John Kyl, R-Ariz. -- so it can be promptly brought to the Senate floor. Remarks made by Lingle tend to diminish the threat of the lawsuit and, thus, the importance of the Akaka bill.

"Defining this as a racial contest -- Hawaiians versus non-Hawaiians -- misses the point," Constance Lau, chairwoman of the Kamehameha Schools board of trustees, said of the lawsuit at a speech last week at the Native Hawaiian Conference. Lingle chimed in the next day that the issue "has nothing to do with civil rights. It's about honoring a legacy and living up to someone's will."

However, Princess Bernice Pauahi Bishop's will, to the extent that the courts decide it prescribes racial discrimination, is no more protected than a person's deathbed bequest that property in an estate be offered for rent or sale only to persons of a certain race. If the Akaka bill were enacted, race would not be an issue. Without enactment, legal arguments against the lawsuit appear weak.

The suit accuses Kamehameha Schools of violating the Civil Rights Act of 1866, which the Supreme Court ruled in two 1976 decisions prohibits private schools from discriminating and applies to all races. The high court took note of those decisions as recently as July, when it struck down the University of Michigan undergraduate school's affirmative action policy. Race, it said, may not be a decisive factor in whether a prospective student is admitted to any school, public or private.

The danger lies in the Supreme Court's decision three years ago in the lawsuit brought by Big Island rancher Freddie Rice against the Office of Hawaiian Affairs' Hawaiians-only voting restriction. The court ruled that the restriction was racially discriminatory. It would have to abandon the rationale behind that decision in order to rule that the Kamehameha admissions policy -- and important federal programs benefitting Hawaiians and challenged in a separate lawsuit -- are race-neutral.

We agree with Justice John Paul Stevens, who wrote in the Rice case that "it is quite wrong to ignore the relevance of ancestry to claims of an interest in trust property, or to a shared interest in a proud heritage." Unfortunately, Stevens' words came in dissent in a 7-2 decision. There is nothing to indicate that his colleagues will change their minds and conclude that Hawaiians are entitled to recognition equal to that afforded indigenous peoples of the continental United States.