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Published in Print: May 23, 2007, as Lawsuit Over Hawaii Schools’ Admissions Policy Is Settled

Lawsuit Over Hawaii Schools’ Admissions Policy Is Settled

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A prestigious private school established to serve children of Hawaiian descent has settled a lawsuit challenging its admissions policy, heading off a possible review by the U.S. Supreme Court over whether the policy violates federal civil rights laws.

The Kamehameha Schools, which enroll 6,550 students on three campuses in Hawaii, had successfully defended a longtime admissions preference for Native Hawaiians, with the U.S. Court of Appeals for the 9th Circuit, in San Francisco, ruling 8-7 in December to uphold the policy.

The family that challenged the policy appealed to the Supreme Court. The court had not acted on the appeal as of this month, but the justices had considered it at several private conferences in recent weeks. That may have motivated the Kamehameha Schools to seek the settlement and thus end the case while the institution was ahead.

“By settling this case, we protect our right to offer admissions preference to Native Hawaiians,” said a May 14 statement by board of trustees Chairman J. Douglas Ing and other school officials.

The school declined to disclose the terms of the settlement with the family of the student identified in court papers as John Doe. The suit, filed in 2003, had sought the student’s admission to the school and an end to the admissions policy, in addition to damages and attorneys’ fees. Because the student is no longer of high school age, the settlement is widely believed to involve money.

Eric Grant, a Sacramento, Calif., lawyer representing the student, said in a statement that his client “had sound reasons to enter into the settlement,” but that he could not elaborate on the terms.

Mr. Grant said the trustees of the Kamehameha Schools appear to view the 9th Circuit court’s ruling as a “complete vindication of their racially exclusionary admissions policy. But I see it … as a reprieve for that policy.”

“I hope the trustees will take advantage of that reprieve to reassess the wisdom and justice of maintaining an admission standard that categorically excludes children solely because they have the ‘wrong’ ancestry or bloodline,” Mr. Grant added.

The Hawaii case arrived at the Supreme Court at a potentially momentous time for the consideration of race in policies related to K-12 student enrollment. The justices heard arguments in December in cases from the Jefferson County, Ky., and Seattle public schools over voluntary consideration of race to promote student diversity in classrooms. Decisions in those cases are expected by the end of June. ("Diversity on the Docket," Oct. 4, 2006, and "Race Plans Get Rough Reception," Dec. 13, 2006.)

Civil Rights Challenge

The Kamehameha Schools point out in court papers that the institution was founded in 1887 under a trust established by Princess Bernice Pauahi Bishop, the last direct descendant of Hawaii’s King Kamehameha I, to use education to lift up the Native Hawaiian people from the detrimental effects of Western contact.

The school, like the state of Hawaii in various governmental programs, defines Native Hawaiians as the descendants of indigenous inhabitants of the Hawaiian Islands before the first landfall of Westerners in 1778. The school says it admits significant numbers of non-Native Hawaiian children to preschool, enrichment, and summer school programs. But thousands more Native Hawaiians apply for its regular openings than can be admitted.

The Doe family challenged the policy under the federal Civil Rights Act of 1866, the Reconstruction-era law that guaranteed all citizens, including the newly freed slaves, the right to make and enforce contracts without regard to race. In a 1976 case, Runyon v. McCrary, the Supreme Court held that the law applied to private schools that had denied admission to black students on the basis of their race.

The 9th Circuit Court majority held that the school’s preferential admissions policy did not violate the law because it was “designed to counteract the significant, current educational deficits of Native Hawaiian children,” and because Congress had created federal educational programs for the benefit of Native Hawaiians, which it must have intended to work in harmony with the civil rights law.

Although they disagreed on the legality of the school’s policy, most judges on the 9th Circuit agreed that the school’s definition of Native Hawaiian was a racial classification.

That’s the conclusion the Supreme Court reached in 2000 about Hawaii’s definition of Native Hawaiian in a case challenging the state’s policy limiting who could vote for trustees of an agency called the Office of Hawaiian Affairs. The court held 7-2 in Rice v. Cayetano that the state was using Hawaiian ancestry as “a proxy for race,” and that allowing only Native Hawaiians to vote in the trustee elections was an unconstitutional racial classification.

Vol. 26, Issue 38, Page 8

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