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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

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Column: Native Hawaiian advocates weigh Plan B (07/11)
9th Circuit to hear Native Hawaiian school case (06/20)
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