Kamehameha Schools should consider future options

THE ISSUE A 15-judge federal appeals panel heard arguments in a lawsuit challenging Kamehameha Schools' admission policy.

SET BACK by the Akaka Bill's rejection by the Senate, Kamehameha Schools' admission policy is at risk in a case heading for the U.S. Supreme Court. Along the way, it is hearing ways to remain in operation in compliance with federal law. The institution should seriously consider those suggestions.

A three-judge panel of the 9th U.S. Circuit Court of Appeals ruled in August that the Hawaiians-only admission policy violated the Civil Rights Act of 1866. The Supreme Court ruled in 1976 that the law prohibits private schools from discriminating on the basis of race, and that the law protects all races, not just minorities.

The high court noted those rulings three years ago when it struck down the University of Michigan undergraduate school's affirmative action policy. The court ruled that race may not be a determining factor in whether an applicant is admitted to any school, public or private.

All of those rulings were based on the 1866 law's prohibition of racial discrimination in contracts. "The contract is the exchange of tuition for educational services" in the Kamehameha Schools case, said Eric Grant, a Sacramento, Calif., attorney for a Caucasian student denied admission to Kamehameha.

In this week's hearing in review of the August decision by 15 members of the 9th Circuit Court, Judge Alex Kozinski, a Reagan appointee to the bench, suggested that Kamehameha Schools would not be bound by that law if it waived the $1,700 tuition.

That amounts to a fraction of the $20,000 annual cost of educating a child at Punahou School. Kozinski pointed out that 65 percent of the students at Kamehameha pay "hardly anything" in tuition because of scholarship aid, so tuition income amounts to "a drop in the bucket" for one of the world's largest charitable institutions.

"I don't know," Grant said when Kozinski asked if waiving tuition would relieve Kamehameha from compliance with the 1866 law. He agreed with Kozinski that a person of Chinese ancestry, for example, would be allowed to distribute his estate as gifts to people of similar ancestry without violating the 1866 law. Obviously, elimination of tuition would similarly free Kamehameha from the law's contract restrictions.

William A. Fletcher, a Clinton appointee, asked Grant if Kamehameha would be free of the constraints if Congress were to enact a law exempting Hawaiian children from the statute created by the 1866 law as "being a political category" rather than a racial group.

"I do not know," Grant replied. "That would raise some troubling issues." Those are the same issues cited by opponents of the Akaka Bill, and they surely would be raised again if such an exemption were sought.