Kamehameha Schools Opposes Request For Supreme Court Review
From: DeeJay Mailer
To: Kamehameha 'ohana
Sent: Friday, March 16, 2007 4:47 PM
Aloha kakou! Kamehameha Schools today filed a legal brief with the U.S. Supreme Court opposing a plaintiff’s request for a Supreme Court review of last December’s 9th Circuit Court en banc ruling, which upheld our preference policy. Our brief, which is available on our website, http://www.ksbe.edu/, opposes the “petition for writ of certiorari” filed by John Doe and his attorney earlier this month. I encourage you to read it.
When a review is requested of the Supreme Court, they evaluate the case with 2 important considerations: 1) whether the decision by the circuit court is in conflict with other court decisions and 2) whether the decision has national importance. Our legal team has presented a strong argument in opposition to Doe’s request, basing our opposition on the absence of these two considerations. To quote from the brief:
“No constitutional issue is presented. The decision neither conflicts with any decision of this Court nor presents any important question that warrants this Court’s attention.” (p. 2)
“Nothing in this ruling extends to any circumstance beyond the Kamehameha Schools, nor the unique statutory setting of congressional programs directed at remedying the damage done to Native Hawaiians by the overthrow of their kingdom and near destruction of their culture.” (p 24)
“Nowhere in the United States does there exist another school like Kamehameha Schools, which is entirely private and not-for profit, and which carries out a remedial educational mission for the benefit of the children of an indigenous people with whom Congress has a special trust and political relationship.” (p. 24)
The opposition brief makes several points in response to Doe’s assertions:
· No “absolute bar.” John Doe claims that because of the limited space in our campus programs, our preference policy amounts to “an absolute bar” for non-Hawaiians. In Nov. 2003, Federal District Judge Alan Kay ruled that no absolute bar exists, because non-Hawaiians are admitted to Kamehameha Schools programs when places are available, as happens frequently in our off-campus programs. He also affirmed that the Trustees continually review the preference policy in light of the demand for enrollment on our campuses and the ever present need to remedy disadvantage which still exists today.
· No conflict with Rice vs. Cayetano. John Doe claims that the 9th Circuit Court ruling conflicts with the ruling in Rice vs. Cayetano in 2000, in which the court opened voting for OHA elections to non-Hawaiians. In that case, the court was considering voting rights in a statewide public election. We are an entirely privately-funded school, not a public institution; we receive no federal money. Our circumstances, who we are and how we are funded, are very different.
· Congress has supported remedial programs such as ours. Because we are being challenged under a federal statute and not the constitution, the intent and actions of Congress are very important. Congress has repeatedly supported funding remedial measures aimed exclusively at Native Hawaiians. There are more than 85 acts that reflect this. That indicates that Congress never intended for Chapter 1981 (the federal statute in this case) to be used to exclude a remedial program such as ours.
· Political status of Hawaiians is being actively debated in Congress Doe has raised the issue of whether Hawaiians have a special political status with the U.S.. As Congress may soon debate this issue, via the Native Hawaiian Government Reorganization Act (the Akaka Bill), judicial intervention is unwarranted while this issue is undergoing active debate in the Congress.
John Doe has ten days to respond to our brief. We expect to receive an answer from the Supreme Court in the next several weeks.
As always, our duty to uphold the wishes of our founder and your steadfast support has been our core strength. As we continue this important battle, we will keep Pauahi’s vision for her people in our hearts and your efforts on behalf of our community in our minds.
I Mua Kamehameha!
Dee Jay Mailer
Chief Executive Officer
See our filing at: http://www.ksbe.edu/pdf/writresponse.pdf