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The Honolulu Advertiser
Posted on: Tuesday, August 30, 2005

Admissions policy isn’t ‘exclusively racial’

By Walter Heen


In his opinion piece in the Aug. 25 Advertiser, "Kamehameha should change its approach," Russell Motter correctly pointed out how ridiculous and alarming it is that a civil rights statute, enacted to help oppressed minorities and former slaves, is being used to strike down Kamehameha Schools' admissions policy, which helps to strengthen the Native Hawaiian population.

Motter's message regarding the position of Kamehameha Schools, however, needs clarification: Kamehameha has never argued or conceded that its admissions policy is "exclusively racial."

Kamehameha Schools argued in the district court, and the court agreed, that the policy "serves a legitimate remedial purpose by addressing the socioeconomic and educational disadvantages facing Native Hawaiians, producing Native Hawaiian leadership for community involvement, and revitalizing Native Hawaiian culture."

The 9th Circuit panel accepted these premises, but reversed on the narrow ground that Kamehameha's policy posed an "absolute bar" to the admission of non-Native Hawaiians. The panel majority assumed, incorrectly, that the policy was "exclusively racial" in nature. In doing so, the panel majority chose to ignore numerous congressional enactments reflecting the United States' "special trust relationship" with the Native Hawaiian people, which were enumerated repeatedly by Kamehameha Schools counsel.

Although the panel majority claimed that Kamehameha Schools conceded that the preference at issue constitutes "discrimination on the basis of race," these assertions, made without any basis in fact, wholly misrepresent the position of the school.

Kamehameha Schools never "conceded" that a Native Hawaiian preference is "exclusively racial." To the contrary, the school has vigorously asserted throughout the litigation that Native Hawaiians have a special trust relationship with the United States and a political status akin (though not identical) to that of Native Americans and Alaska natives that must be taken into account in construing the application of the statute upon which the lawsuit is based.

Motter's statement that Kamehameha Schools "agreed with their accusers that Hawaiians are indeed a race" is simply incorrect.

Rather it is Judge Susan Graber's dissent to the 9th Circuit panel majority opinion that captures both the school's position and the current state of the law: "I do not perceive such a dichotomy between the racial and the political aspects of the school's preference for Native Hawaiian applicants. That is, if 'Native Hawaiian' is indeed a racial category, then Congress has shown by its actions that an exclusive, remedial, racial preference can be permissible" when used to remedy ongoing harms to a once-sovereign indigenous people with whom the U.S. "enjoys a special trust relationship."

Again, Mr. Motter mistakenly stated that the court "reject(ed) the school's argument that its admissions policy constitutes a race-based affirmative action program." It was the panel majority, in fact, not Kamehameha Schools, who wholeheartedly embraced the erroneous and simplistic idea that the admissions policy was an impermissible race-based affirmative action program that "categorically trammeled" the rights of non-Hawaiians.

From the beginning, Kamehameha Schools' position has been that its admissions policy must be viewed in the unique context of remedying extreme educational and socioeconomic deficiencies faced by a population that (a) descended from people whose sovereignty and culture were upended and nearly destroyed, in part by the actions of the United States, and (b) consequently enjoys a special trust relationship with the United States government that parallels that between the federal government and Native Americans.

This case presents issues of first impression to the 9th Circuit, and indeed, to the United States, and so it was with grave concern that we saw the panel majority overlook the unique history and culture of Hawai'i and its native people in favor of applying a mechanical legal analysis meant to protect oppressed minorities from discrimination.

On Aug. 23, Kamehameha Schools filed a "petition for rehearing en banc" in the 9th Circuit, arguing the majority panel gravely erred in holding that the admissions policy constitutes impermissible race discrimination. Kamehameha Schools has made it overwhelmingly clear that this case is not just about "a race-based affirmative action program," as Motter insists. I only hope that the 9th Circuit judges agree.

Walter Heen is president of Na 'A 'ahuhiwa, a group of retired Native Hawaiian judges. He wrote this commentary for The Advertiser.