Covering the Courts

The hula, according to the New World Dictionary, is "a Hawaiian dance marked by flowing, pantomimic gestures." The Supreme Court this week is deciding in chambers whether to hear Case No. 06-1202. The case offers a legalistic hula of truly remarkable dimensions.

For the record, the case is John Doe, a minor, v. Kamehameha Schools. In flowing, pantomimic gestures, such eminences as Sens. Daniel Inouye and Daniel Akaka seek to preserve in Hawaii a system of racially separate schools. They have filed a friend-of-the-court brief in support of "the continuing special needs of the Native Hawaiian community."

There is a remarkable irony here, to find two certified liberal Democrats on a brief in support of segregated schools. They defend their position:

"Many Native Hawaiians face significant risk factors even before they are born, as the Native Hawaiian community endures high rates of teenage pregnancy and late or no prenatal care. These risk factors manifest themselves in low educational achievement later in life, with Native Hawaiians being underrepresented in institutions of higher education and among college graduates, while being disproportionately overrepresented in negative social statistics indicative of special educational needs."

The two senators, joined by their colleagues in the House, are among the interested bystanders in the pending case. First the facts:
The Kamehameha Trust, established in 1884 by a wealthy Hawaiian princess, is the largest private land owner in Hawaii. The princess left her estate, now estimated at $6.8 billion, to the education and upbringing of native Hawaiians. Toward that end, her residual trustees today operate a private school system consisting of three K-12 campuses, one each on the islands of Oahu, Maui and Hawaii. Together, the schools have an enrollment of nearly 5,000 students.

Evidently, these are first-class schools. The district court noted that their senior students "outperform both national norms and state averages on the SAT verbal and math tests." In 2004, every graduate of the Oahu high school was accepted for two- or four-year colleges. The alumni include "U.S. senators, state appellate judges, Olympic athletes, three-star admirals and university professors."

Understandably, competition for admission is fierce. Some 70,000 school-aged children meet the schools’ racial requirements. For the 2002 academic year, 4,518 applicants sought the 450 slots available on the Oahu campus. The schools’ publicly stated policy on admissions "is to give preference to children of Hawaiian ancestry." Over a period of 40 years, from 1962 until 2002, Kamehameha admitted exactly one student who was not of native Hawaiian descent — and as the district court noted, that was by accident. For this slip-up, the trustees "repeatedly apologized to the Native Hawaiian community." They promised "to prevent such a ‘situation’ from ever happening again."

As the 9th Circuit Court found, the schools’ curriculum "is meant to foster the self-esteem and self-identity of students as individuals of Native Hawaiian descent by teaching Native Hawaiian culture, heritage, language and tradition." In recent years the preference policy has relaxed a bit. In the summer of 2003, for example, six of 133 admissions to the Performing Arts Academy were non-native Hawaiians.

In 2003 a white child, having been rejected for enrollment, sued under the same Civil Rights Act of 1864 that figured in Brown v. Board of Education half a century ago. Last December he lost in the 9th Circuit. Sitting en banc, the court held that the Kamehameha 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." Seven members of the court strongly dissented. They termed the majority’s opinion "a classic violation of the Civil Rights Act."

Among the friend-of-the-court briefs at the Supreme Court is a brief from nine Hawaiian resident citizens. They say: "Along with many other Hawaii residents, (we) are weary, and wary, of Hawaiian activists … demanding superiority. (We) seek to reinstate in Hawaii the idea that, in the eyes of the government, we are just one race here. We are Americans."

If the circuit court is affirmed, they predict: "Explicit racial discrimination by a huge, tax-subsidized charity with a virtual monopoly on political power in Hawaii … will continue unabated with the blessing of the federal judiciary."

Maybe yes, maybe no. I hope the Supremes take the case and reverse. Sometimes nothing fits so comfortably as a shoe upon another foot.