By Yasmin Anwar
Advertiser Staff Writer
With a Bush/Cheney bumper sticker on his automobile and dreams of a colorblind America, William Helfand is the kind of civil rights lawyer you might see on an "Ally McBeal" episode.
| William S. Helfand
 Born: August 25, 1962, in Chicago
Admitted to bar: 1987, Texas; 1988, U.S. District Courts for Texas, Northern, Southern, Eastern, and Western; 1989, Illinois; 1990, U.S. Court of Appeals, Fifth and Sixth Circuits. United States Supreme Court.
Education: Tulane University of Louisiana (B.A., 1984; J.D., cum laude, 1987).
Member: Moot Court; The Association of Trial Lawyers of America Trial Team; chief justice, Honor Board; Air Lifeline; Houston, American and Federal Bar Associations; State Bar of Texas; Bar Association of the Fifth Federal Circuit. |
In Florida, Virginia and North Carolina, the 38-year-old Texas litigator has used the 14th Amendment to dismantle gerrymandering, race-based busing and public school admission policies.
Now, the Houston constitutionalist has turned his equal-protection laser beam on Hawai‘i as lead counsel in the much-talked-about case of Barrett v State of Hawaii.
Up for its first major hearing in federal court on May 2, the lawsuit seeks to abolish government-financed programs that are restricted to people of Hawaiian ancestry.
Helfand says he has no personal stake in the outcome, despite suspicions of others to the contrary.
His motive is pure and simple, he says: uphold the U.S. Constitution and do a good job for his client, Patrick Barrett, a reclusive, middle-age Caucasian of modest means who lives in Honolulu.
But those familiar with Helfand’s work on the Mainland - and that includes his courtroom opponents - say there’s a pattern to the genre of cases he takes on.
"He represents white, conservative clients who want a completely race-blind society that ignores the historical past," said Gil Middlebrooks. Middlebrooks is a North Carolina lawyer who has opposed Helfand in a desegregation case affecting the Charlotte-Mecklenburg schools.
Battling affirmative action
A Chicago native and graduate of Tulane University in Louisiana, Helfand belongs to a cadre of civil rights lawyers who have turned constitutional protections against racial discrimination in favor of non-minorities battling affirmative action quotas.
He has provided pro bono services for clients through the Campaign for a Colorblind America, an anti-affirmative action organization which recently merged with the American Civil Rights Institute.
The Sacramento, Calif., organization was founded by Ward Connerly, whose campaign in California led to the abolition of race and gender as factors in university admissions and government contracting.
Helfand says he’s an equal opportunity civil rights lawyer who takes on clients of all races, genders and nationalities, and that the nature of his work is difficult.
"These are hard cases," he said. "You only get paid if you win, and a lot of people are very mean to you and very difficult to deal with, because they don’t agree with you."
As for how and why he is drawn to such cases, he says, "Every single one of them has found me or my firm."
Middlebrooks says that from what he has seen, Helfand is a good lawyer, but he doubts that he fell upon the Barrett case by accident.
"Helfand wouldn’t be involved in someplace as far away as Hawai‘i if he didn’t have a reputation in the conservative community as someone who would take on affirmative action," Middlebrooks said.
In the North Carolina case in which Helfand is facing off against Middlebrooks, Helfand represents parents whose children were denied admission to a magnet program that required a higher IQ for non-blacks seeking admission to the program.
The 103,000-student district has been using such programs to integrate its schools.
Middlebrooks is defending the district’s use of race as a criteria for admission to gifted classes and other assignments.
A 1999 court order for the district to halt race-based assignments was reversed on appeal and is awaiting a decision in a higher appeals court. Ultimately, it could land in the U.S. Supreme Court.
In Florida, Helfand won a similar challenge against the Hillsborough County School District’s gifted and talented magnet program, which allows minority children to enter programs with lower IQs than white children.
At issue in Hawai‘i’s Barrett case is a 1978 state constitutional amendment that created the Office of Hawaiian Affairs, adopted the federal Hawaiian Home Lands program and provided for native gathering rights on private property.
The suit contends the provision violates the 14th Amendment "unless the state proves a compelling government interest in such racial preferences and, as well, a narrowly tailored program for implementing such defined interest."
National movement
Helfand’s resume worries local champions of Native Hawaiian entitlements, who fear that hard-won gains for past injustices will be sacrificed at the altar of a national anti-affirmative action movement.
They contend the Constitution should not be one size fits all, particularly in the case of Hawai‘i, with the overthrow of its kingdom, annexation, near extinction of natives, and legacy of indigenous social ills.
Even those who oppose any kind of discrimination say that constitutional arguments don’t play out the same way in Hawai‘i as they might on the Mainland.
"When you live here, it doesn’t seem to be about race, and so those categories just don’t resonate with people’s experiences here," said Neal Milner, a University of Hawai‘i political scientist.
But constitutionalists say that once you make an exception to the equal protection clause, it’s a slippery slope, and in the words of U.S. Supreme Court Justice Antonin Scalia, you risk creating a nation of debtor and creditor races.
"The 14th amendment covers Hawaiians such as it covers people from Mississippi and New York," said Ed Blum, director of legal affairs for the American Civil Rights Institute, which opposes affirmative action.
"Even though Hawai‘i may not be on the national political radar screen, ultimately its legislation will have to pass constitutional muster," he added.
It was Blum who introduced Helfand to the Hawai‘i arena last year, following a U.S. Supreme Court ruling in the Rice v Cayetano case. The Rice v Cayetano ruling held that OHA could not restrict its elections to people of Hawaiian ancestry.
Helfand was to represent 13 non-Hawaiians in their suit demanding the right of non-Hawaiians to run for seats on the OHA governing board.
But Helfand withdrew from the case over differences with his co-counsel H. William Burgess, whose clients prevailed in the suit.
Meanwhile, John Goemans, the lawyer for Big Island cattle rancher Harold "Freddy" Rice, recruited Helfand to be lead counsel in a more sweeping challenge to Hawaiian entitlements.
Hawaiians rally
Thus was born the Barrett suit, filed in Honolulu last October in U.S. District Court.
Their move has spurred rallies at the State Capitol, along with heated community meetings attended by Hawaiian activists, Hawaiian language-immersion students, teachers, service providers, homesteaders and cultural practitioners.
From his office in Houston, more than 3,000 miles from Hawai‘i, Helfand has read the media reports of the response and expressed dismay.
"They’re telling people they’re going to lose their homes," he said about charges that if Barrett prevails, Hawaiian homesteaders could lose their leases.
He says such losses are not a foregone conclusion.
But attorneys defending the state’s Hawaiian entitlements say there’s no telling how the state attorney general will respond if the high court finds Hawaiian entitlements to be unconstitutional.
Their case is likely to hang on the 1974 case Morton v Mancari, in which the U.S. Supreme Court upheld an Indian hiring preference in the Bureau of Indian Affairs as "political rather than racial in nature."
State deputy attorneys general have used the case to argue that Hawaiians are entitled to the same political status as American Indians.
Lawyers for Barrett, on the other hand, are likely to cite a 1995 case called Adarand Constructors Inc. vs. Pena, which involved a white-owned Colorado company that lost a federal highway guard-rail construction job to a Hispanic-owned business that had submitted a higher bid.
The ruling drastically limited the ability of federal programs to award benefits on the basis of race or sex.
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