Appellate ruling creates
urgency for Akaka Bill passage


A federal appeals panel has ruled that Kamehameha Schools' admission policy is illegally discriminatory against non-Hawaiians.

A federal appeals court ruling that Kamehameha Schools' Hawaiians-only admissions policy illegally discriminates against other races places urgency on enactment of the Hawaiian recognition bill before Congress. The court made clear that federal recognition of Hawaiians, similar to that afforded Indian tribes, would validate the school's policy.

In a divided vote, a three-judge panel of the 9th U.S. Circuit Court of Appeals ruled that the school's exclusion of non-Hawaiians violates the Civil Rights Act of 1866, a post-Civil War statute aimed at assuring freedoms to former slaves. The Supreme Court ruled in two cases in 1976 that the law is binding on private schools, regardless of whether they receive federal funds, and protects whites as well as minorities.

Kamehameha Schools acknowledged that the admissions policy was based on race, the Supreme Court having ruled in Rice vs. Cayetano that "ancestry can be a proxy for race." U.S. District Judge Alan Kay ruled in 2003 that the school's policy was one of affirmative action to remedy racial injustices of the past. The appellate ruling overturns Kay's decision.

Dissenting 9th Circuit Judge Susan P. Graber agreed with Kay that the school's policy is proper, having been "motivated by the need to remedy abysmal socioeconomic and education conditions and by the United States government's unique relationship with and responsibility for native Hawaiians."

However, Judges Robert R. Beezer and Jay S. Bybee questioned an affirmative-action policy amounting to "an absolute bar to admission for non-Hawaiians." The policy's "subtext," Bybee wrote in the majority opinion, is "that of all those who are found in poverty, homelessness, crime and other socially and economically disadvantaged circumstances, only native Hawaiians count."

Without mentioning the Akaka Bill, Bybee cited a 1974 Supreme Court ruling that the Bureau of Indian Affairs' hiring preference for Native Americans was not directed toward a "racial" group but to "members of 'federally recognized' tribes." The high court ruled in that case that "the preference is political rather than racial in nature."

Bybee wrote that "it remains unclear" whether the trust relationship between the government and native Hawaiians is "similar to that enjoyed with organized tribes." In any case, he added, the Kamehameha Schools "do not argue that the classification in question should be viewed as anything but expressly racial." The Rice decision essentially limited the school to that argument.

Enactment of the Akaka Bill would allow Kamehameha Schools to argue that the admissions policy is political, not racial. Proponents of the Akaka Bill should argue forcefully and forthrightly in Congress that a political entity based on ancestry -- yes, race -- is justified by the unique hardships that Hawaiians have endured.

Yesterday's ruling can be construed as a party-line vote; Beezer and Bybee were nominated respectively by Presidents Reagan and the younger Bush, while Graber was a Clinton pick. The schools may ask for a review of the decision by the entire 9th Circuit panel, the nation's most liberal appeals court. In any case, it is heading to the Supreme Court.

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