The fate now of Native Hawaiian programs and entitlements, which have come under intense legal scrutiny during the past six years, may be more optimistic in light of yesterday's appellate court ruling upholding the Kamehameha Schools' century-old admissions policy.

While the 9th U.S. Circuit Court of Appeals' majority opinion is narrowly written to apply only to the school's educational programs, the decision marks a turning point in a series of legal woes set off by the U.S. Supreme Court's ruling in the Rice v. Cayetano case in 2000 that abolished Hawaiians-only voting in Office of Hawaiian Affairs elections, legal experts and Hawaiian rights activists said.

"I think this shifts the momentum in the other direction," said Jon Van Dyke, a University of Hawai'i law professor, who assisted Kamehameha's legal team.

In yesterday's ruling, the 9th Circuit ruled that the school's Hawaiian-preference admission policy is permissible to remedy social and economic imbalances suffered by Native Hawaiians and that Congress has passed legislation explicitly recognizing the school's mission.

The ruling reverses last year's decision by a three-judge 9th Circuit panel to strike down Kamehameha Schools' admission policy in a suit filed by an unnamed non-Hawaiian student who didn't get into the school.

It made no specific reference to Hawaiian programs and agencies such as the Office of Hawaiian Affairs and the state Department of Hawaiian Homelands.

But the 41-page majority opinion, which was written by 9th Circuit Judge Susan Graber, includes language recognizing the special relationship between the federal government and Native Hawaiians.

A concurring opinion written by 9th Circuit Judge William Fletcher went further by saying that Kamehameha's admissions policy doesn't violate federal civil rights laws since Native Hawaiians aren't "merely a racial classification" but also "are a political classification."

That language is similar to that found in the Akaka bill, which aims to establish a process that could lead to establishment of a Native Hawaiian entity recognized by the federal government. Supporters of the Akaka bill say that such federal recognition would help stave off legal challenges against millions of dollars that go to Hawaiian-preference programs such as OHA and the DHHL.

NEW PUSH FOR BILL

The Akaka bill is currently stalled in Congress, but Hawai'i's congressional leaders have vowed to push the bill in next year's session.

While Fletcher's concurring opinion isn't binding, it shows that the 9th Circuit would vote to uphold the Akaka bill if it's ever passed by Congress, Van Dyke said.

"That's huge," added Moses Haia, staff attorney for the Native Hawaiian Legal Corp.

"This basically puts Hawaiians on a different footing. This assumes that there's a political relation with the federal government."

Since the Rice decision, Native Hawaiian programs have been the target of a number of lawsuits that alleged that the programs are race-based and discriminate against non-Hawaiians.

Those cases include the 2002 Arakaki v. Lingle lawsuit in which 18 local residents are seeking to dismantle the Office of Hawaiian Affairs and the Department of Hawaiian Home Lands and the 2003 lawsuit by Brayden Mohica-Cummings, the non-Hawaiian Kaua'i boy who sued to get into Kamehameha Schools.

The 9th Circuit dismissed most of the claims in the Arakaki case in August 2005 but allowed the local residents to challenge the expenditure of about $2.8 million a year in state tax money by OHA. The Supreme Court reversed that decision in June, ruling that payment of taxes alone isn't enough to provide legal standing to sue OHA.

Kamehameha Schools settled the Mohica-Cummings suit in 2003, allowing Mohica-Cummings to attend the school's Kapalama Heights campus until he graduates from high school.

BROAD IMPLICATIONS

Opponents of affirmative action and other racial-preference systems agree that the decision could have broad implications beyond the admissions policy at Kamehameha Schools.

Attorney Eric Grant, who represents the unnamed student who sued to overturn the school's admissions policy, said yesterday's ruling could be applied to the context of the workplace where an employer would be able to justify discriminatory practices against non-Hawaiians.

Grant, who plans to appeal yesterday's decision to the Supreme Court, said employers would be able to violate federal civil rights laws by arguing that their hiring policies aim to remedy socio-economic problems suffered by Hawaiians.

"Anytime a court allows racial discrimination, there's the potential that it will be used as a precedent to justify other discrimination," added Roger Clegg, president and general counsel for the Center for Equal Opportunity, a Sterling, Va., think tank that opposes affirmative action and other race-based programs.

"This is something that ought to concern everyone. Today's politically correct discrimination can come back to haunt all of us."

OPINION HIGHLIGHTS BY APPEALS COURT

Highlights of five opinions from the 9th U.S. Circuit Court of Appeals in its 8-7 ruling upholding Kamehameha Schools' policy aimed at giving preference to students with Hawaiian blood.

Appeals Court Judge Susan Graber wrote the 36-page majority opinion. She was joined by Appeals Court judges Mary Schroeder and Marsha Berzon.

GRABER WROTE:

The policy does not violate federal civil rights law because the policy tries to correct educational disadvantages of Native Hawaiians and is intended to last only as long as they suffer that disadvantage.

A U.S. Supreme Court 1976 decision, Runyon v. McCrary, that invoked the law to strike down a private school barring blacks does not apply to Kamehameha. The Runyon case involves "a straightforward case of discrimination." The Kamehameha Schools case involves a "remedial policy."

"The Civil Rights Act was passed specifically with the plight of African-Americans in mind. It is therefore unsurprising that the court labeled a whites-only admissions policy a 'classic violation of (the civil rights law).' "

Kamehameha Schools' policy is not an "absolute bar" to non-Native Hawaiians who generally are not admitted because qualified Native Hawaiian candidates outnumber the openings at the schools. Also, non-Native Hawaiians have "ample and adequate alternative educational options."

Congress did not intend the civil rights law to cover Kamehameha Schools, which has a long history of providing for Native Hawaiians.

"King Kamehameha I, on his death bed, is reported to have said, 'Tell my people I have planted in the soil of our land the roots of a plan for their happiness.' His great granddaughter, Princess Bernice Pauahi Bishop, echoed that sentiment when she established, though her will, the Kamehameha Schools.

"Because the schools are a wholly private K-12 educational establishment, whose preferential admissions policy is designed to counteract the significant, current educational deficits of Native Hawaiian children in Hawai'i ... we must conclude that the admissions policy is valid under 42 U.S.C. section 1981 (the federal civil rights law)."

Appeals Court Judge William Fletcher wrote a 12-page opinion agreeing with Graber's conclusion, but said he would uphold the ruling on an "easier and narrower ground." Appeals Court judges Harry Pregerson, Stephen Reinhardt, Richard Paez and Johnnie Rawlinson joined in the opinion.

FLETCHER WROTE:

Graber's majority opinion assumes Native Hawaiians are a "racial classification." But the admissions policy applies only to persons "descended from the aboriginal people who exercised sovereignty in the Hawaiian Islands prior to 1778." Native Hawaiians are also a "political classification."

The U.S. Supreme Court struck down state law restricting voting for Office of Hawaiian Affairs trustee to only Native Hawaiians in the landmark 2000 Rice v. Cayetano case. The high court ruled Native Hawaiians were a racial classification. But that decision dealt with constitutional voting rights, not whether Congress can provide benefit programs for Native Hawaiians.

"Congress has invariably treated 'Native Hawaiian' as a political classification for purposes of providing exclusive educational and other benefits. Under the special relationship doctrine, Congress has the power to do so. I see nothing in (the federal civil rights law) to indicate that Congress intended to impose upon private institutions a more restrictive standard for the provision of benefits to Native Hawaiians than it has imposed upon itself."

Appeals Court Judge Jay Bybee wrote a 49-page dissent. He was joined by Appeals Court judges Alex Kozinski, Diarmuid O'Scannlain, Richard Tallman and Consuelo Callahan. Appeals Court judges Pamela Ann Rymer and Andrew Kleinfeld joined in parts of the dissent.

BYBEE WROTE:

"This case involves the application of one of the Republic's oldest and most enduring civil rights statutes, 42 U.S.C. section 1981. That statute — originally enacted as section sixteen of the Civil Rights Act of 1870 — provides, in pertinent part, that, 'all persons within the jurisdiction of the United States shall have the same right in every state and territory to make and enforce contracts ... as is enjoyed by white citizens.' "

The majority "stands Runyon on its head" in holding that a private school can deny a student admission based on race.

"Though I agree with the majority that Native Hawaiians suffer from severe socio-economic disadvantages and believe that Kamehameha Schools should be commended for attempting to remedy those hardships, I cannot concur with the majority's dramatic departure from Runyon."

Kamehameha's policy actually operates as an "absolute bar" to non-Native Hawaiians. From 1962 to 2002, only one non-Native Hawaiian student was admitted, but it created a "firestorm of protest" with the school trustees apologizing to the Native Hawaiian community and trustees pledging to review the admissions process "presumably to prevent such a 'situation' from happening again."

"The majority exempts an organization with noble goals that seeks to remedy a significant problem in a community that is in great need, but it can do so only because the majority departs from clear principles and established precedent."

Appeals Court Judge Rymer wrote a separate four-page dissent. She was joined by Kozinski, O'Scannlain, Tallman and Callahan.

RYMER WROTE:

She's sympathetic to the schools mission, but the federal civil rights law applies to all races, and that includes Native Hawaiians who were classified as a race by the Rice v. Cayetano decision. She would have preferred that the court avoid deciding the case if the judges could find a way.

"Employment law, Indian law, our admiration for Kamehameha Schools and our sentiments about public policy are irrelevant."

Appeals Court judge Kozinski wrote a separate three-page dissent.

KOZINSKI WROTE:

The federal civil rights law dealing with contractual relationships wouldn't apply to Kamehameha Schools if it didn't charge tuition.

The school tuition only reflects a small fraction of the operating costs and the schools' substantial endowment may enable it to continue operating without tuition for "a very long time — perhaps indefinitely."

"Given the passions this case has aroused, it's worth noting that what's really at stake may not be the operation of the Kamehameha Schools along their traditional (preferential) model, but merely a few million dollars a year the schools now get from their own students."

— Ken Kobayashi

Reach Rick Daysog at rdaysog@honoluluadvertiser.com.