The U.S. 9th Circuit Court of Appeals has ratified racism that celebrates Native Hawaiian ancestry with tortured reasoning reminiscent of Jim Crow. The 9th Circuit's 8-7 en banc ruling in Doe v. Kamehameha Schools (Dec. 5) upholding a racially exclusionary admissions policy for Kamehameha Schools marks manipulative judging at its worst.
King Kamehameha I's signature contribution to Hawaii's legal and political culture was the general erasure of distinctions between Native and non-Native Hawaiians. The king anticipated United States Chief Justice Harlan Fiske Stone's admonition that racial distinctions are odious to a free people.
The Kamehameha Schools were created under a charitable testamentary trust established by the last direct descendant of King Kamehameha I, Princess Bernice Pauahi Bishop. The trustees chose to confine admissions to students with at least one Native Hawaiian ancestor because the exclusion of non-Native Hawaiians was thought to represent the wishes of Mrs. Bishop. Native Hawaiians were not preferred to overcome past legal, social, economic or other discrimination. Indeed, Native Hawaiians have been special favorites of the law for more than a century since annexation.
A non-Native applicant challenged the Kamehemeha Schools' "Native Hawaiians Only" admissions policy under a federal civil rights statute prohibiting racial discrimination in making or enforcing contracts, Title 42 of the U.S. Code, Section 1981. (The social ostracism unleashed against persons in Hawaii who challenge the political correctness of Native Hawaiian preferences obligated the plaintiff to sue under the pseudonym "John Doe.") The Supreme Court held in Runyon v. McCrary (1976), that Section 1981 prohibits private schools from racially discriminatory admissions policies. Indeed, the high court later held in Bob Jones v. United States (1983) that an unexpressed public policy of the United States prohibited tax exemptions for discriminating private schools.
Judge Graber scolded plaintiff Doe for complaining about his race-based exclusion. She lectured that "students denied admission by Kamehameha Schools have ample and adequate alternative educational options," a variation of the "separate-but-equal" doctrine that the Supreme Court repudiated 52 years ago in Brown v. Board of Education (1954).
Of course where Hawaii's schools are concerned there is little that is equal regarding quality. And this is intentional. Earlier this year Laura Brown reported on how state representative Lyla Berg (D) let the cat out of the bag. Education expert Matthew Gandal was testifying to the state legislature when Berg stated: "But you are aware that our economy is based on the service industry?" Hawaii has a two-tiered education system. Graber is probably clueless about this, but those in Hawaii who support the Kamehameha School's policy are not.
Crossposted at The Dougout