OPINION HIGHLIGHTS BY APPEALS COURT

Highlights of five opinions from the 9th U.S. Circuit Court of Appeals in its 8-7 ruling upholding Kamehameha Schools' policy aimed at giving preference to students with Hawaiian blood.

Appeals Court Judge Susan Graber wrote the 36-page majority opinion. She was joined by Appeals Court judges Mary Schroeder and Marsha Berzon.

GRABER WROTE:

The policy does not violate federal civil rights law because the policy tries to correct educational disadvantages of Native Hawaiians and is intended to last only as long as they suffer that disadvantage.

A U.S. Supreme Court 1976 decision, Runyon v. McCrary, that invoked the law to strike down a private school barring blacks does not apply to Kamehameha. The Runyon case involves "a straightforward case of discrimination." The Kamehameha Schools case involves a "remedial policy."

"The Civil Rights Act was passed specifically with the plight of African-Americans in mind. It is therefore unsurprising that the court labeled a whites-only admissions policy a 'classic violation of (the civil rights law).' "

Kamehameha Schools' policy is not an "absolute bar" to non-Native Hawaiians who generally are not admitted because qualified Native Hawaiian candidates outnumber the openings at the schools. Also, non-Native Hawaiians have "ample and adequate alternative educational options."

Congress did not intend the civil rights law to cover Kamehameha Schools, which has a long history of providing for Native Hawaiians.

"King Kamehameha I, on his death bed, is reported to have said, 'Tell my people I have planted in the soil of our land the roots of a plan for their happiness.' His great granddaughter, Princess Bernice Pauahi Bishop, echoed that sentiment when she established, though her will, the Kamehameha Schools.

"Because the schools are a wholly private K-12 educational establishment, whose preferential admissions policy is designed to counteract the significant, current educational deficits of Native Hawaiian children in Hawai'i ... we must conclude that the admissions policy is valid under 42 U.S.C. section 1981 (the federal civil rights law)."

Appeals Court Judge William Fletcher wrote a 12-page opinion agreeing with Graber's conclusion, but said he would uphold the ruling on an "easier and narrower ground." Appeals Court judges Harry Pregerson, Stephen Reinhardt, Richard Paez and Johnnie Rawlinson joined in the opinion.

FLETCHER WROTE:

Graber's majority opinion assumes Native Hawaiians are a "racial classification." But the admissions policy applies only to persons "descended from the aboriginal people who exercised sovereignty in the Hawaiian Islands prior to 1778." Native Hawaiians are also a "political classification."

The U.S. Supreme Court struck down state law restricting voting for Office of Hawaiian Affairs trustee to only Native Hawaiians in the landmark 2000 Rice v. Cayetano case. The high court ruled Native Hawaiians were a racial classification. But that decision dealt with constitutional voting rights, not whether Congress can provide benefit programs for Native Hawaiians.

"Congress has invariably treated 'Native Hawaiian' as a political classification for purposes of providing exclusive educational and other benefits. Under the special relationship doctrine, Congress has the power to do so. I see nothing in (the federal civil rights law) to indicate that Congress intended to impose upon private institutions a more restrictive standard for the provision of benefits to Native Hawaiians than it has imposed upon itself."

Appeals Court Judge Jay Bybee wrote a 49-page dissent. He was joined by Appeals Court judges Alex Kozinski, Diarmuid O'Scannlain, Richard Tallman and Consuelo Callahan. Appeals Court judges Pamela Ann Rymer and Andrew Kleinfeld joined in parts of the dissent.

BYBEE WROTE:

"This case involves the application of one of the Republic's oldest and most enduring civil rights statutes, 42 U.S.C. section 1981. That statute - originally enacted as section sixteen of the Civil Rights Act of 1870 - provides, in pertinent part, that, 'all persons within the jurisdiction of the United States shall have the same right in every state and territory to make and enforce contracts ... as is enjoyed by white citizens.' "

The majority "stands Runyon on its head" in holding that a private school can deny a student admission based on race.

"Though I agree with the majority that Native Hawaiians suffer from severe socio-economic disadvantages and believe that Kamehameha Schools should be commended for attempting to remedy those hardships, I cannot concur with the majority's dramatic departure from Runyon."

Kamehameha's policy actually operates as an "absolute bar" to non-Native Hawaiians. From 1962 to 2002, only one non-Native Hawaiian student was admitted, but it created a "firestorm of protest" with the school trustees apologizing to the Native Hawaiian community and trustees pledging to review the admissions process "presumably to prevent such a 'situation' from happening again."

"The majority exempts an organization with noble goals that seeks to remedy a significant problem in a community that is in great need, but it can do so only because the majority departs from clear principles and established precedent."

Appeals Court Judge Rymer wrote a separate four-page dissent. She was joined by Kozinski, O'Scannlain, Tallman and Callahan.

RYMER WROTE:

She's sympathetic to the schools mission, but the federal civil rights law applies to all races, and that includes Native Hawaiians who were classified as a race by the Rice v. Cayetano decision. She would have preferred that the court avoid deciding the case if the judges could find a way.

"Employment law, Indian law, our admiration for Kamehameha Schools and our sentiments about public policy are irrelevant."

Appeals Court Judge Kozinski wrote a separate three-page dissent.

KOZINSKI WROTE:

The federal civil rights law dealing with contractual relationships wouldn't apply to Kamehameha Schools if it didn't charge tuition.

The school tuition only reflects a small fraction of the operating costs and the schools' substantial endowment may enable it to continue operating without tuition for "a very long time - perhaps indefinitely."

"Given the passions this case has aroused, it's worth noting that what's really at stake may not be the operation of the Kamehameha Schools along their traditional (preferential) model, but merely a few million dollars a year the schools now get from their own students."

Advertiser Archives