Legal threat to schools remains despite favorable ruling

THE ISSUE Kamehameha Schools won a narrow ruling by a 15-judge federal appeals panel supporting its admissions policy.

HAWAIIANS and many other island residents cheered a federal appeals court decision upholding the Hawaiians-only admissions policy of Kamehameha Schools, but the ruling is anything but final. The 8-7 ruling was decided -- with the exception of one judge -- along party lines, boding a possible reversal by the U.S. Supreme Court. The ruling is fragile in both numbers and substance.

Eight judges nominated to the bench by Democratic presidents comprised the majority, which reversed a three-judge panel's ruling last year that Kamehameha's admissions policy violated the Civil Rights Act of 1866. All six Republican-appointed judges on the 15-judge panel, along with one Democrat nominee, dissented.

Republican-nominated justices control the Supreme Court, which struck down the University of Michigan's undergraduate affirmative action program three years ago. The high court ruled in that case that race may not be the determinative factor in whether an applicant is admitted to any school, public or private.

The majority in last week's 9th Circuit ruling concluded that Kamehameha's admissions policy is not an "absolute bar" to non-Hawaiians, as the three-judge panel had found. A non-Hawaiian can gain admittance if all the slots have not been filled by Hawaiians, the larger panel pointed out.

That has occurred only once -- four years ago -- since 1962, when Kamehameha stopped allowing non-Hawaiian offspring of faculty to enroll in the school. The panel's dissenters pointed out that the single admission was followed by "a firestorm of protests" and repeated apologies to the native Hawaiian community by the Kamehameha trustees.

The majority made a strong case in citing congressional appreciation of the "special relationship" between the federal government and Hawaiians in several areas, including education. While that can be used to bolster the Hawaiian recognition bill in Congress, Circuit Judge Jay S. Bybee, who wrote the main dissent, contended that enactment of the Akaka Bill will not shield Kamehameha Schools.

Even if Hawaiians were afforded sovereignty similar to American Indian tribes, "the special relationship doctrine applies only to preferences by the federal government or by the tribes themselves," Bybee wrote. "It does not apply to private parties discriminating on the basis of tribal status; indeed, we have been quite clear that such private racial discrimination remains illegal."

While a promised appeal is pending before the Supreme Court, Kamehameha Schools should seriously consider an option suggested by Circuit Judge Alex Kozinski during oral arguments in June and in a separate written dissent. He pointed out that the lawsuit alleges racial discrimination in a contract, the contract being the exchange of tuition for education.

"The schools' substantial endowment may enable them to continue operating without charging any tuition for a very long time -- perhaps indefinitely," Kozinski wrote. No tuition, no contract, no violation of the 1866 law.