School admission suit hinges on 1866 act
By David Waite
Advertiser Courts Writer
A nearly 140-year-old law passed by Congress to protect freed slaves from being taken advantage of in commercial contracts will be at the heart of the arguments when Kamehameha Schools' Hawaiians-preferred admission policy is tested in court in November.
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Lawyers John Goemans of the Big Island and Eric Grant of Sacramento, Calif., the authors of two lawsuits filed in federal court in the past two months, claim the schools' admissions policy is discriminatory because it gives preferential treatment to Hawaiians.
Federal Judge Alan Kay will hear the case in November.
But school attorneys David Schulmeister and Kelly Laporte say the admissions policy amounts to an affirmative action plan, one designed to help offset what they say are historical inequities that have beset Hawaiians for more than a century.
The key in the case that will be heard by federal Judge Alan Kay in November will be whether the 1866 Civil Rights Act invalidates the schools admission policy.
The law was adopted to prevent even private institutions from acting in a discriminatory manner based on race. It was passed years before Princess Bernice Pauahi Bishop wrote her 1884 will establishing the charitable trust that runs Kamehameha Schools for Hawaiian children.
But will it invalidate the Hawaiians-preferred admissions policy?
Carl Varady, a Honolulu attorney who specializes in constitutional issues, said the case "presents some very difficult questions" for Kamehameha Schools.
"I don't know of another institution out there that advertises itself as a racially based school," Varady said. "They will have to convince the court that they have some very compelling reasons that would trump what otherwise is viewed as discrimination."
Kay's case involves a different lawsuit from the one that resulted in U.S. District Judge David Ezra issued the first court order of its kind on Wednesday directing Kamehameha Schools to enroll a non-Hawaiian student from Kaua'i.
Ezra's decision drew a firestorm of controversy over the admissions' policy for the school that has space for 4,800 students. About 48,000 Native Hawaiian students attend public schools.
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Ezra, however, made it clear he was not passing judgment on the school's admissions policy. Instead, Ezra said he was addressing the plight of 12-year-old Brayden Mohica-Cummings, who received a letter of acceptance from Kamehameha in July, only to have the acceptance rescinded Aug. 13 after school officials concluded the boy's mother could not document that she or her son were of Hawaiian ancestry.
In his decision last week, U.S. District Judge David Ezra made it clear he was not passing judgment on the school's admissions policy.
That shifted the focus of the legal battle to Kay.
The lawsuit before Kay involves a youth, not named in court papers, challenging the schools' admission policy on the same grounds
Kay will be asked at the hearing scheduled Nov. 17 essentially to decide whether a privately operated school, one that is entirely privately financed, can give preference to one racial group over all others in deciding which students it accepts for enrollment.
Both sides have indicated they will file for "summary judgment," meaning there is no dispute over facts in the case, which would require a trial. Instead, both sides will ask Kay to immediately rule in their favor based on the law.
Goemans and Grant, the same lawyers who represent Mohica-Cummings and his mother, Kalena Santos, also represent the unnamed student and say he is ready, willing and qualified to attend Kamehameha Schools, but that having to prove he is of Hawaiian ancestry is an insurmountable obstacle.
Legal arguments in the case before Kay have yet to be submitted, but legal memorandums filed by both sides in the case before Ezra provided a look at what the central issues will likely be.
Goemans and Grant say the matter is straightforward and uncomplicated. What started out as a federal law to protect the rights of freed slaves has evolved into a tool to help combat discrimination, the two said.
"As interpreted by the Supreme Court, (the federal law) prohibits privately, commercially operated non-sectarian schools from denying admission to prospective students because of their race," Goemans and Grant said in their argument in the case before Ezra.
But arguments Kamehameha attorneys Schulmeister and Laporte who are also representing the schools in the lawsuit by the unnamed youth contend the schools' admission policy does not constitute the type of "invidious discrimination," intended to rouse ill will or resentment that the 1866 federal law sought to prohibit.
"The (Hawaiian admission) preference was not motivated by any racial animus against any racial group," the Kamehameha attorneys said, adding that not all race-conscious decisions are unlawful.
They pointed to a decision by the U.S. Supreme Court in June upholding "a race-conscious admissions policy" at the University of Michigan law school to ensure diversity.
"Race-conscious contractual offers that are made solely for the purpose of extending assistance to a disadvantaged group, without an attempt to harm or cause adverse effects upon those not selected, do not constitute 'purposeful discrimination,' " the Kamehameha lawyers said in the case before Ezra.
Use of the Hawaiian-preference admissions policy by Kamehameha is aimed at helping Hawaiians overcome socio-economic disadvantages and is distinguishable from admission policies used by schools established by white segregationists in the South to deliberately circumvent federal school desegregation programs, the Kamehameha attorneys said.
They argued that the Hawaiian preference admissions policy is bolstered by the 2002 Native Hawaiian Education Act in which Congress declared it was "not extending services to Native Hawaiians because of their race, but because of their unique status as the indigenous people of a once sovereign nation as to which the United States has established a trust relationship."
Varady said the U.S. Supreme Court has ruled that schools can discriminate on the basis of race if they identify a compelling reason for doing so, as was case involving the University of Michigan.
But he said the case raises some profound issues for Kamehameha.
"Say the plaintiffs (challenging the schools admissions policy) prevail, then what? Is it simply a case of first-come, first served as to who is admitted," Varady said. "I really think the effects of this case have got to be examined very, very carefully and that this will be one the Supreme Court decides."
Reach David Waite at 525-8030 or dwaite@honoluluadvertiser.com.
