Kamehameha Schools gets reprieve but no victory

THE ISSUE Kamehameha Schools and a former student who was denied admission have settled a lawsuit challenging its admissions policy.

KAMEHAMEHA Schools' settlement of a legal challenge to its Hawaiians-only admissions policy has given it a reprieve but makes it vulnerable to similar lawsuits in the future. The only way to remove that risk might be to eliminate all tuition, a key ingredient in what was alleged to be a racially discriminatory contract between students and the well-endowed institution.

The U.S. Supreme Court had scheduled and rescheduled its decision during the past month about whether to review December's 8-7 ruling by the 9th U.S. Circuit Court of Appeals upholding the admissions policy. While terms of the settlement were sealed, Kamehameha trustees issued a statement that it "has the same legal effect as a denial" of such a review.

Legally, yes, the 9th Circuit ruling is now the law of the land throughout the circuit's Western states, including Hawaii, in the absence of a Supreme Court opinion. However, a denial to review the case would have had more sting, would have been interpreted as a Kamehameha victory and would have discouraged similar lawsuits.

Eight judges nominated to the 9th Circuit bench by Democratic presidents joined in upholding the Kamehameha policy, while six GOP nominees and a Democrat dissented. Justices nominated by Republican presidents control the Supreme Court, which struck down the University of Michigan's undergraduate affirmative action program four years ago and likely would have overturned the 9th Circuit ruling.

The 9th Circuit majority made a strong case about the "special relationship" between the federal government and Kamehameha. However, a relationship equal to that of Indian tribes would be created only by enactment of Sen. Daniel Akaka's bill granting Hawaiian sovereignty, and that might not be sufficient in shielding Kamehameha from future lawsuits.

In the 9th Circuit dissent, Judge Jay S. Bybee asserted that "the special relationship doctrine (regarding Indian tribes) applies only to preferences by the federal government or by the tribes themselves. 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."

The lawsuit was based on an 1866 civil-rights law that prohibits racial discrimination in contracts. In Kamehameha's case, the contract is the agreement to exchange tuition for education. The Supreme Court ruled in 1976 that the law is binding on private schools, regardless of whether they receive federal funds, and protects whites as well as minorities. However, without tuition, no contract would exist.

The majority in the 9th Circuit maintained that Kamehameha's admissions policy is not an "absolute bar" to non-Hawaiians, as a three-judge panel had found, but that was also true at the University of Michigan. A non-Hawaiian can be admitted at Kamehameha only if Hawaiians have not filled all the slots.