Court ruling limited to public schools

THE ISSUE The U.S. Supreme Court has ruled that public school systems cannot consider a student's race in trying to achieve integration.

A HONOLULU lawyer seeking plaintiffs to resurrect a challenge to Kamehameha Schools' restriction of admissions to native Hawaiians says he is encouraged by last week's Supreme Court's invalidation of racial diversity in public schools. However, he is remiss in applying the constitutional issues in that case to a private school's admission policies.

The ruling casts a cloud over the equal protection clause of the 14th Amendment in protecting blacks in the landmark 1954 decision in Brown v. Board of Education. Five justices, including Chief Justice John G. Roberts Jr., rejected student transfers on the basis of race as a "tiebreaker" for admission to particular schools. The ruling stands the amendment on its head.

The constitutional issue has no bearing on private schools. Kamehameha Schools was challenged as violating the 1866 Civil Rights Act, which forbids racial discrimination in contracts. On the same day in 1976, the Supreme Court ruled that private schools' tuition agreements are contracts and that all races, including Caucasians, are protected, although the law, enacted in the wake of the Civil War, obviously was aimed at protecting blacks.

David Rosen, while confusing the 14th Amendment with the 1866 law, may have captured the flavor of the new court with its recent addition of Roberts and Justice Samuel A. Alito Jr. Indeed, the court's general outlook on racial issues may create problems for Kamehameha if a new lawsuit is launched against its admission policies.

The safest way to avoid a new challenge to the policy would be for the well-endowed institution to stop charging tuition, thus eliminating contracts regulated by the Civil Rights Act.