Wednesday, August 03, 2005

COM: Further degrading of natives . . .

Court Finds Bias in Policy of Schools for Hawaiians
By ADAM LIPTAK, August 3, 2005, The New York Times

The Kamehameha Schools in Hawaii are practicing unlawful race discrimination by restricting enrollment to Native Hawaiian children, a federal appeals court panel in San Francisco ruled yesterday.

The schools, the only beneficiary of a $6 billion legacy of a 19th-century Hawaiian princess, have an enrollment of about 5,100 students, from kindergarten through 12th grade, on campuses on three islands. Yesterday's ruling means that the plaintiff in the case, a teenager, will start his senior year at one of the schools in the next few weeks, one of his lawyers, Eric Grant, said.

The schools' admissions policy requires prospective students to prove that at least one ancestor lived on the Hawaiian Islands in 1778, when the British explorer Capt. James Cook arrived.

Tuition at the schools is heavily subsidized, and the families of students who are admitted often feel they have hit a sort of academic jackpot. Many of them say that the schools are the last great legacy of the Hawaiian monarchy, one that should be preserved for Native Hawaiians. The schools are private and receive no money from the federal government.

The plaintiff in the suit sued under the name John Doe. His real name was not used, Mr. Grant said, because he and his mother feared retaliation and intimidation.

A lawyer for the schools, Kathleen M. Sullivan, said they would ask the full appeals court and, if necessary, the United States Supreme Court to hear the case.

Yesterday's decision turned on the proper interpretation of a Reconstruction-era law, the Civil Rights Act of 1866, which is usually referred to as Section 1981, after its numerical listing in the United States Code. The law guarantees, as the majority in yesterday's 2-to-1 decision put it, "the right to make and enforce contracts free from illegitimate and unlawful discrimination on the basis of race."

The schools conceded that their admissions policy was based on racial classifications. But they said the exclusion of non-Hawaiians was part of a lawful affirmative action plan.

Their admissions policy is justified, the schools said, as an effort to redress hardships suffered by Native Hawaiians to produce Native Hawaiian leaders and to revitalize Native Hawaiian culture.

Judge Jay S. Bybee of the United States Court of Appeals for the Ninth Circuit, writing for the majority, said those goals might be valid but only so long as they did not create an absolute bar to people of other races.

Judge Bybee was joined by Judge Robert R. Beezer.

A bill pending in Congress to extend sovereignty to Native Hawaiian people could alter the outcome of the case if it becomes law, Ms. Sullivan, the lawyer for the schools, said. One of the bill's goals, its sponsors have said, is to inoculate entitlement programs for Native Hawaiians against race-based challenges.

Ms. Sullivan said more than 100 federal laws already gave preferences to Native Hawaiians. Those laws should have been enough, she said, to refute the majority interpretation of Section 1981.

Judge Susan P. Graber dissented from the ruling. She said the admissions policy was permissible given the "extreme educational and socioeconomic deficiencies" faced by Native Hawaiians., a group "descended from people whose sovereignty and culture were upended and nearly destroyed, in part by actions of the United States" and who have "a special trust relationship with the United States" akin to that between the federal government and Native Americans.

Mr. Grant, the lawyer for the student, said yesterday's ruling affirmed that "the regular rules - the civil rights laws of the United States - apply in Hawaii."