indianz.com your internet resource indianz.com on facebook indianz.com on twitter indianz.com on Google+ indianz.com on soundcloud
phone: 202 630 8439
The University of Tulsa College of Law - Master's in Indian Law
Advertise on Indianz.Com
Home > News > Headlines
Print   Subscribe
Divided court upholds Native school admissions policy
Wednesday, December 6, 2006

A Native Hawaiian school whose admissions policy favors Native students won a major ruling from a deeply-divided federal appeals court on Tuesday.

The private Kamehameha Schools was sued by a non-Native student who said the policy violated the U.S. Constitution. In August 2005, a three-judge panel of the 9th Circuit Court of Appeals agreed that the boys' civil rights were violated based on his race.

But after a rehearing, the case went in favor of the school. By an 8-7 vote, an en banc panel of the court said a private institution that receives no federal funds can admit students based on race, so long as the policy meets certain goals.

Those goals, the majority said, include improving the educational status of Native Hawaiians. The court cited studies and Congressional findings that showed Native students fell behind their peers on standardized tests, graduation rates, college attendance, poverty levels and other socioeconomic factors.

"In view of those facts and congressional findings, it is clear that a manifest imbalance exists in the K-12 educational arena in the state of Hawaii, with Native Hawaiians falling at the bottom of the spectrum in almost all areas of educational progress and success," Judge Susan P. Graber wrote. "Furthermore, it is precisely this manifest imbalance that the Kamehameha Schools' admissions policy seeks to address."

The court made another key finding that could help with federal recognition efforts. The majority noted that Congress has repeatedly treated Native Hawaiians as a distinct entity through numerous laws going back to the early 1900s and continuing through present times.

"These steadfast congressional policies favoring remedial measures for Native Hawaiians -- and specifically remedial educational measures, some of them even mentioning the Schools and the Bishop Trust approvingly by name -- inform our analysis of the validity of the Kamehameha Schools’ admissions policy," Graber said.

Judge William Fletcher took this reasoning a step further and said the case could be decided solely on this basis. Comparing Native Hawaiians to American Indians and Alaska Natives, he cited the "special relationship" Congress has maintained between the United States and indigenous peoples.

"Congress has invariably treated 'Native Hawaiian' as a political classification for purposes of providing exclusive educational and other benefits," Fletcher wrote in a concurrence signed by four other judges.

But a dissenting group of judges said the case should be decided solely on civil rights grounds. Led by Judge Jay S. Bybee, the group said the admissions policy acts as an "absolute racial bar" to students who are not Native Hawaiian.

Bybee also rejected the "special relationship" argument outlined by Fletcher. "Despite opportunity to do so, Congress has never formally recognized the sovereignty of Native Hawaiians," he wrote.

"Native Hawaiians have never been accorded formal recognition as a Native American tribe, and while the 'special trust relationship' between Congress and Native Hawaiians bears many similarities to the relationship between Congress and Native American tribes, the two relationships are not identical," he continued.

With four other judges filing dissents, their divergent views, as well as the subject matter, make the case ripe for Supreme Court review. Just this past Monday, the justices heard a dispute over affirmative action policies in public schools.

The Kamehameha Schools case has drawn significant public attention, with Hawaii's top officials backing the school despite its status as a private entity. Gov. Linda Lingle (R) also supports recognition for Native Hawaiians. The National Indian Education Association and the Alaska Federation of Natives submitted an amicus brief as well.

En Banc Decision:
Doe v. Kamehameha Schools (December 5, 2006)

Panel Decision:
Doe v. Kamehameha Schools (August 2, 2005)

Native Hawaiian Recognition Bill:
Native Hawaiian Government Reorganization Act of 2005 (S.147)

Relevant Links:
Office of Hawaiian Affairs - http://www.oha.org

Related Stories:
Editorial: Another shot for Native Hawaiians (11/14)
Column: Native Hawaiian advocates weigh Plan B (07/11)
9th Circuit to hear Native Hawaiian school case (06/20)
Opinion: Native Hawaiian debate far from over (6/16)
Republicans traded votes for Native Hawaiian bill (6/14)
Some hope for Native Hawaiians in court case (6/13)
John Fund: Defeat for Sen. Akaka on Hawaiians (6/12)
Native Hawaiian debate ends in Senate (6/8)
Opinion: Native Hawaiian recognition 'racist' (6/7)
Opinion: Native Hawaiians have it better than Indians (6/6)
Commentary: GOP death wish on Native Hawaiians (6/6)
Bob Novak: GOPs lobby for Hawaiian Indians (6/5)
John Fund: A Native race-based government (6/5)
WSJ: Native Hawaiian recognition an ugly act (6/2)
Editorial: Unconstitutional Native Hawaiian bill (6/1)
Opinion: GOP traitors on Hawaiian recognition (5/31)
Sen. McCain voted against Hawaiian apology (5/29)
Editorial: Oppose Native Hawaiian recognition (5/24)
Hawaii governor lobbies for Native recognition (5/18)
Native Hawaiian recognition bill heads for debate (5/17)
Appeals court to rehear Native Hawaiian school case (02/23)
Miers cited Native Hawaiian work before withdrawing (10/28)
Bush questions legality of Native Hawaiian bill (09/28)
Opinion: 'Racist' Hawaiian recognition bill (9/22)
Roberts mentions Indian law work on final day (9/19)
Hawaii governor lobbies Senate on Hawaiian recognition (9/8)
Native Hawaiian work an issue for Roberts (9/7)
Linda Chavez: GOP panders on Native Hawaiian bill (9/1)
Native Hawaiian bill set for debate in Senate (8/29)
Opinion: GOP policy rejects Native Hawaiians (08/26)
Amendments in the works for Native Hawaiian bill (8/25)
Slade Gorton: Don't recognize Native Hawaiians (08/19)
Letter: Native Hawaiians are indigenous too (08/08)
Editorial: Native Hawaiians never had a government (8/4)
Appeals court blocks Native Hawaiian school policy (08/03)
Editorial: Native Hawaiian bill is un-American (07/21)
Debate on Native Hawaiian bill delayed in Senate (7/20)
Bush names John G. Roberts to U.S. Supreme Court (07/20)
House, Senate hearings on housing, land dispute (7/18)
Native Hawaiian bill set for vote on Senate floor (7/18)
Opinion: Native Hawaiian bill sets bad precedent (7/18)
Commentary: Bill creates 'race-based' government (07/07)
Novak: Native Hawaiian bill creates new 'Indians' (7/5)
Column: Bill creates 'tribe' of Native Hawaiians (6/23)
High court won't take on Native Hawaiian recognition (06/14)
Panel approves Native Hawaiian, NAGPRA changes (03/10)
Native Hawaiian recognition bill gets another shot (02/22)
Native Hawaiian recognition bill introduced again (01/27)
McCain won't block Hawaiian recognition bill (01/14)
McCain opposes Native Hawaiian recognition bill (1/6)
Appeals court leaves Hawaiian recognition to Congress (11/02)
Bush investigating Native Hawaiian scholarships (03/17)
Hawaii senators consider deal on recognition bill (2/25)
Norton continues to question Native Hawaiian bill (2/23)
Native Hawaiian programs survive big court test (01/16)
Norton worried about 'pitfalls' for Native Hawaiians (01/13)
Alaska-Hawaii ties stir controversy among Natives (12/01)
Judge strikes down one Native Hawaiian lawsuit (11/21)
Lawsuits challenging Native Hawaiians benefits resume (11/12)
Legal threats galvanize Native Hawaiian community (09/15)
Native Hawaiians in limbo as courts open up programs (09/04)
Native Hawaiian recognition stalled in Congress (09/01)
Judge to rule in Native Hawaiian school case (08/20)
Native Hawaiians fight for federal recognition (07/21)
Student denied entry into Hawaiian school sues (06/30)
DOJ objected to Native Hawaiian legislation (06/06)
Native Hawaiians denied party status in suit (04/01)
Native Hawaiian office established in D.C. (02/27)
Opinion: Oppose Native Hawaiian bill (2/21)
Court affirms Native Hawaiian ruling (01/06)
Native Hawaiians press sovereignty (10/14)
U.S. dismissed from Native Hawaiian case (09/04)
Inouye: Native Hawaiian bill won't pass (8/8)
Native Hawaiian bill supported (7/16)
Native Hawaiians intervene in lawsuit (7/12)
Judge won't halt Hawaiian funding (3/14)
Native Hawaiian trust challenged (3/6)
Native Hawaiian bill on Senate agenda (7/20)
Federal judge blocks Army training (7/19)
Native Hawaiian lawsuit dismissed (7/13)
Shift in Senate means changes for Indian Country (5/25)
Senate confirms Olson as Solicitor General (5/25)
Native Hawaiian lands threatened (5/24)
A first for Native Hawaiians (4/5)
Indian Law and the Supreme Court (12/11)
OHA survives elections (11/14)
Final Hawaiian report released (10/24)
Native Hawaiian bill passes House (9/27)
Hawaiian affairs still controversial (9/13)
US recommends Hawaiian sovereignty (8/24)
Non-Natives win battle in suit (8/17)
Where are the Dems on tribes? (8/16)
March raises sovereignty awareness (8/14)
The GOP 2000 Platform on Native Americans (8/1)
Group challenges Hawaii (7/7)
Hawaiians march for sovereignty (7/5)

Copyright © 2000-2006 Indianz.Com
More headlines...
Stay Connected:
On Facebook

On Twitter

On Google+

On SoundCloud
Local Links:
Federal Register | Indian Gaming | Jobs & Notices | In The Hoop | Message Board
Latest News:
Judge won't rush ruling on Dakota Access easement amid change (12/9)
Mark Trahant: Trump's pick for Interior poses problems for tribes (12/9)
Lakota Country Times: Rosebud housing program wins top award (12/9)
Native Sun News Today: More tribal citizens sign up for Medicaid (12/9)
Elizabeth Cook-Lynn: Maybe we can learn from our tragic history (12/9)
Brandon Ecoffey: Reservation basketball coaches deserve better (12/9)
Mike Myers: What Trump's election means for indigenous nations (12/9)
Caleb Trotter: New law in Oklahoma hurts legitimate Indian artists (12/9)
Gun Lake Tribe shares nearly $5.8M in gaming revenue in Michigan (12/9)
Little River Band payment puts gaming revenue sharing at $32.1M (12/9)
Mashpee Wampanoag Tribe files notice of appeal in casino lawsuit (12/9)
Bureau of Indian Affairs opens door to big shift in tribal economies (12/8)
Tribes promise fight against Dakota Access ahead of court hearing (12/8)
Tribes bringing #NoDAPL battle to international human rights forum (12/8)
Dakota Access Pipeline disputes small fine for disturbing tribal site (12/8)
Harold Frazier: 'Wopila tanka' to all the #NoDAPL water protectors (12/8)
Native Sun News Today: Temporary win on Dakota Access Pipeline (12/8)
Lakota Country Times: Arrests made in fatal Pine Ridge shootings (12/8)
Native Sun News Today Editorial: A bumpy ride with Donald Trump (12/8)
Delphine Red Shirt: We must step up and take care of our children (12/8)
James Giago Davies: Obama could have stopped #NoDAPL abuses (12/8)
Steven Newcomb: 'Unjust' war against #NoDAPL water protectors (12/8)
Keweenaw Bay Indian Community starts work on casino upgrades (12/8)
Seminole Tribe still shares gaming revenue despite lack of compact (12/8)
Chukchansi Tribe finally distributes $1.4M in overdue gaming funds (12/8)
Tribal sovereignty foe slated to join Donald Trump's administration (12/7)
Rep. Markwayne Mullin denies speculation of 'privatizing' tribal land (12/7)
Sen. Barrasso passing on gavel at Senate Indian Affairs Committee (12/7)
North Dakota county wants 'Sheriff Kirchmeier' account off Twitter (12/7)
Indian Health Service plans to award $1.4M in Native youth grants (12/7)
Rosalyn R. LaPier: How Standing Rock became a site of pilgrimage (12/7)
Lakota Country Times: North Dakota county sheriff hit with lawsuit (12/7)
Vi Waln: The #NoDAPL movement reminds them we are still here (12/7)
Native Sun News Today: Lakota artist designs 'Water is Life' tipi (12/7)
Ivan Star Comes Out: The lust for oil and the #NoDAPL movement (12/7)
Common Dreams: Veterans ask for forgiveness at Standing Rock (12/7)
Tiffany Midge: Don't shame Standing Rock Sioux Tribe for pipeline (12/7)
Editorial: A 'false victory' on the Dakota Access Pipeline easement (12/7)
Nick Zaiac: Let tribes decide what to do with their own homelands (12/7)
Redding Rancheria 'excited' about bid to move casino to new site (12/7)
Aquinnah Wampanoag Tribe defends right to use land for gaming (12/7)
Dakota Access resumes push to complete final portion of pipeline (12/6)
Dave Archambault: It's time for water protectors to return home (12/6)
Kirk Francis: Tribes must remain vigilant despite #NoDAPL victory (12/6)
Tracy Loeffelholz Dunn: Numbers behind Standing Rock's victory (12/6)
Supreme Court schedules oral argument in tribal immunity case (12/6)
more headlines...

Home | Arts & Entertainment | Business | Canada | Cobell Lawsuit | Education | Environment | Federal Recognition | Federal Register | Forum | Health | Humor | Indian Gaming | Indian Trust | Jack Abramoff Scandal | Jobs & Notices | Law | National | News | Opinion | Politics | Sports | Technology | World

Indianz.Com Terms of Service | Indianz.Com Privacy Policy
About Indianz.Com | Advertise on Indianz.Com

Indianz.Com is a product of Noble Savage Media, LLC and Ho-Chunk, Inc.