Court decision gives Akaka Bill more time

THE ISSUE A federal appeals panel has agreed to rehear a case against Kamehameha Schools' Hawaiians-only admission policy.

KAMEHAMEHA Schools has won at least a temporary reprieve from a three-judge appellate panel that found its admission policy to be illegally discriminatory against non-Hawaiians. School officials were overjoyed by the decision granting the school's request for a rehearing before a 15-judge panel. However, congressional action remains needed, although not so urgently, for federal recognition of Hawaiians and protection of the school's policy.

In a split vote, the smaller panel ruled last August that Kamehameha's exclusion of non-Hawaiians violates the Civil Rights Act of 1866, a law aimed at ensuring freedom to former slaves. In 1976, the U.S. Supreme Court ruled that the law is binding on private schools and protects whites as well as minorities.

The Supreme Court has made clear that American Indian tribes can discriminate against non-Indians in school admissions, noting that "the preference is political rather than racial in nature." In the landmark Rice v. Cayetano case in 2003, the high court ruled that Hawaiians lack such political standing and that "ancestry can be a proxy for race."

A bill sponsored by Senator Akaka would fill that need by placing Hawaiians on an equal legal standing with Native Americans and Alaskan natives. Enactment of the Akaka Bill would allow the school to argue definitively that the admissions policy is political, not racial.

In the absence of such legislation, adversaries of the admissions policy will be free to argue that the opposite also is true. The Supreme Court rulings in the Civil Rights Act cases and the Rice case support their view.

Either way, the failure to gain enactment of the Akaka Bill will virtually ensure that the Kamehameha Schools case will be appealed to the Supreme Court.