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Published in Print: January 7, 2004, as Rule Favoring Native Descent Faces Appeal

Rule Favoring Native Descent Faces Appeal

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A white student will be allowed to remain enrolled at the Kamehameha Schools, under a settlement of one of two legal challenges to the heavily endowed private institution's native-Hawaiians-only admissions policy.

Meanwhile, an appeal is planned in the other case, which a federal judge decided in the schools' favor.

The 6,000-student, pre-K-12 schools—spread across three campuses in Hawaii—were founded in 1887, before Hawaii became a U.S. territory, through the will of Princess Bernice Pauahi Bishop. Her great-grandfather, Kamehameha I, had united the Hawaiian islands.

Concerned about the rising number of foreigners in positions of power in the islands and the sharp decline in the native population, the princess specified in her will that the schools were to give "preference to Hawaiians of pure or part aboriginal blood."

The two lawsuits challenged the validity of the schools' admissions guidelines under the Civil Rights Act of 1866, a Reconstruction-era statute that bars race discrimination in private contracts, which would include enrollment in private schools.

The suit that is headed for an appeal, Doe v. Kamehameha Schools, was filed in a federal court last June, two days after the U.S. Supreme Court ruled on two affirmative action cases involving admissions policies at University of Michigan and its law school. ("Justices Give K-12 Go-Ahead to Promote Diversity," July 9, 2003.)

The high court ruled that the undergraduate policy, which allotted points for applicants' various characteristics, including race, was unconstitutional. The law school case, Grutter v. Bollinger, was decided in favor of the school, conveying the court's opinion that race-conscious admissions policies were acceptable in higher education, provided they involved individualized reviews of applicants.

Experts say that although the Michigan cases provide an interesting backdrop to the Kamehameha lawsuits, the Hawaii suits involve different circumstances, and that Grutter v. Bollinger should not influence the Doe case.

Remedy for Past Wrongs

The challenge to Kamehameha's admissions policy involved an unidentified minor, John Doe, who was turned away from the school in August 2002 and again last August because of his lack of Hawaiian lineage. On Nov. 17, Senior U.S. District Judge Alan C. Kay, of Honolulu, upheld the institution's admissions policy, citing several justifications for it.

First, Judge Kay noted, Kamehameha is a private institution and receives no federal funding. Second, the schools' preferential admissions policy was designed to remedy the disadvantaged situation of native Hawaiians, he found. And he pointed out that the policy envisions that the schools will open up admissions to non-native Hawaiians when native Hawaiians' need for education no longer exceeds the schools' capacity.

Eric Grant, who represents students in both cases, has vowed to appeal Judge Kay's decision to the U.S. Court of Appeals for the 9th Circuit, in San Francisco.

"I think the crucial aspect of Judge Kay's decision is that what he has approved is segregation in our schools," Mr. Grant said. "And I think that is an unfortunate return to a policy that the courts overturned decades ago."

The case that has yielded a settlement, Mohica-Cummings v. Kamehameha Schools, which was filed Aug. 18, involves Brayden Mohica-Cummings, an applicant from Kapaa, on the island of Kauai.

Brayden, a 7th grader, was accepted to Kamehameha, but his admission was rescinded because he is not related by blood to his maternal grandfather—listed on his application as his link to Hawaiian ancestry.

The terms of the settlement allow the boy, who has been attending the school's Kapalama campus since August under a court order, to attend Kamehameha through high school graduation, provided he remains "a student in good standing," according to the schools' Web site.

U.S. District Judge David A. Ezra, of Honolulu, approved the settlement Dec. 4. It is now headed for a Hawaii probate court for approval because the student is a minor.

Both sides in the case said they were pleased with the settlement.

"This means that this particular threat to our Hawaiian-preference admissions policy is eliminated," says a statement on the schools' Web site. "By settling this case, we believe we simplify the issues and improve our chances of winning [the Doe case] on appeal."

Vol. 23, Issue 16, Page 6

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