Court-Protected Racial Discrimination?

A federal appeals court has upheld a tax-exempt Hawaii organization's policy of barring "non-Hawaiian" students from their schools:

The Kamehameha Schools in Hawaii, private schools with an endowment of more than $6 billion, are entitled to limit their enrollment to Native Hawaiian children, a federal appeals court panel in San Francisco ruled yesterday by a vote of 8 to 7.

Students may be denied admission based on their race without running afoul of a civil rights law, the majority ruled, citing what it said were unique factors in the history of Hawaii, the plight of Native Hawaiians and the schools’ distinctively remedial mission, which Congress has repeatedly endorsed.

The schools are the only beneficiary of the enormous legacy of a 19th-century Hawaiian princess. They have an enrollment of some 5,000 students, from kindergarten through 12th grade, on campuses on three islands. Admission is a great prize, as students pay about $1,800 in annual tuition for an education worth about $20,000.

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.

The suit was brought by a student identified as John Doe. The schools conceded that the student probably would have been admitted had he possessed Hawaiian ancestry. The suit argued that the admission policy ran afoul of a Reconstruction-era law, the Civil Rights Act of 1866. The court, splitting almost entirely along partisan lines, ruled that the prohibition did not apply to the schools’ admissions program. (The eight judges in the majority were appointed by Democratic presidents. All but one of the dissenters were appointed by Republicans.)

“The schools are a wholly private K-12 educational establishment, whose preferential admissions policy is meant to counteract the significant, current educational deficits of Native Hawaiian children in Hawaii,” Judge Susan P. Graber wrote for the majority. That fact, coupled with Congressional praise for the schools’ mission, she wrote, meant that the admission program did not violate the civil rights law.

The ruling overturned a decision by a divided three-judge panel last year. Judge Graber was in dissent in that decision. Judge Jay S. Bybee, who wrote the principal dissent yesterday, wrote the majority decision last year.

Eric Grant, the plaintiff’s lawyer, said he would ask the United States Supreme Court to hear the case. “We’re disappointed to be on the seven side rather than the eight,” Mr. Grant said. But the closeness of the vote, he added, made Supreme Court review more likely.

Kathleen M. Sullivan, a lawyer for the schools and a law professor at Stanford, said her clients were elated by the decision and particularly by its unanimity on some points.

“All of the judges agreed that the Kamehameha School has a noble mission and has had extraordinary success in addressing what all the judges admitted are the continuing disadvantages suffered by Native Hawaiians,” Professor Sullivan said.

The schools’ history and mandate is so unusual, she added, that yesterday’s decision will have “no precedential impact on any other school in the nation.”

In a dissent joined at least in part by six other judges, Judge Bybee said the schools’ worthy mission nonetheless violated the law.

“I cannot reconcile its admissions preferences — a racially exclusive policy that operates as a complete bar to all applicants who are not of the preferred race — with the Supreme Court’s requirements for a valid affirmative action plan,” Judge Bybee wrote. “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.”

The case from Hawaii is only superficially similar to the ones from Seattle and Louisville, Ky., argued Monday before the United States Supreme Court, Professor Sullivan said.

In contrast to the schools involved in the Supreme Court case, the Kamehameha schools are private, receiving no federal funds; they say their discrimination is remedial, meant to address historical wrongs; the beneficiaries are indigenous peoples; and the program has met with Congressional approval.

The student-assignment programs before the Supreme Court, Professor Sullivan said, involve public schools, mean to achieve racial diversity, are not directed at any particular racial group and come without similar Congressional endorsement.

As far as the un-elected-appointed-for-life judges lawmakers of San Francisco's federal court are concerned, it seems as though some races are More Equal than others...

The legally-privileged outfit syndicate that operates the Kamehameha Schools is known as the "Bishop Estate and Trust." The Trust, as it is called by many, is by far the biggest (and richest) landowner in the Hawaiian Islands and has been plagued by repeated scandals (cute cartoons here) caused by some of the Trust's sinecure-holding well-paid board members who have been Living Large and charging the costs to their expense accounts.
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