Brief Analysis of 12/5/06 Ruling; Will this go to the Supreme Court?
A pono decision by the Ninth Circuit
A majority of the panel judges on December 5, 2006 upheld the Kamehameha Schools’ admissions policy giving preference to keiki who can trace their ancestry back to pre-1778 (i.e., when Captain Cook first came to Hawai’i). Most significantly, the Court acknowledged that:
The Kamehameha Schools are private. The Schools were founded and funded by the entirely private trust of Princess Pauahi Bishop when Hawai’i was yet a sovereign Kingdom.
The issue in this case is not “race” as John Doe alleges, but rather “remedy” for an indigenous peoples. The laws protecting Americans against race discrimination do not apply because the Kamehameha Schools’ mission is to remedy the plight of an indigenous peoples in their homeland. Native Hawaiians are “indigenous” because we were citizens of an independent kingdom before the illegal overthrow of our monarchy. The U.S. government formally acknowledged this action was illegal in the “Apology Resolution” (1993). Because the U.S. Congress and courts have recognized the overthrow as illegal, the U.S. government has a special obligation to remedy the wrongs that have been done to Native Hawaiians arising from the overthrow. That is why Congress itself has passed scores of laws creating special programs for Native Hawaiians - for everything from education to job training to the Hawaiian Homes Act. These laws seek to remedy historic inequities which (to this day) deprive far too many Native Hawaiians from full participation in our native land. The Ninth Circuit found that the Kamehameha Schools is therefore simply doing what Congress and the courts have already sanctioned. As trustee Robert Kihune recently stated, Princess Pauahi’s gift “helps thousands, but harms no one.”
Kamehameha Schools’ mission has already been specifically approved by Congress. Congress explicitly mentioned the Kamehameha Schools in the “No Child Left Behind” Act passed under the Bush administration. In that Act, Congress encouraged the Schools to “redouble their efforts” to serve Native Hawaiian children. In short, the majority of the Ninth Circuit ruled that if the U.S. Congress has itself already said, “Imua Kamehameha!” then why should U.S. courts say any different?
Will John Doe get a hearing before the U.S. Supreme Court?
John Doe’s attorneys have indicated that they intend to petition the Supreme Court for a hearing in this case. The Supreme Court typically receives over 8,000 requests a year to decide cases and the justices select about 100 for their docket annually. Because they hear so few cases, they choose cases (1) with national importance and (2) that appear to contradict previous Supreme Court rulings.
The Ninth Circuit Court ruling will not affect any other school or student in America. The Supreme Court is not likely to grant John Doe’s request for a hearing because the Kamehameha Schools case involves a one-of-a-kind private gift from a Native Hawaiian princess to her people while Hawaii was yet a sovereign kingdom. There is no other state in the United States where one would find the same (or even vaguely similar) circumstances. Because the ruling is so narrow in its scope, and limited in its application, the Supreme Court will not likely decide to hear the case.
The ruling does not contradict Supreme Court precedent. The only prior Supreme Court case that even concerned Native Hawaiians – not Kamehameha Schools – was Rice v. Cayetano (2000) but that case involved voting rights under the 15th Amendment of the Constitution. In that case, the Supreme Court was very clear in stating that “the validity of the voting restriction is the only question before us.” Since that case does not even apply to Doe v. KS, the Supreme Court does not need to be concerned with this ruling.
Is our battle pau?
As a people, may we remain ha’aha’a, and may we mahalo Ke Akua for the Ninth Circuit Court ruling. John Doe’s attorneys will in all likelihood petition the Supreme Court, so our battle is not pau. Therefore, I continue to urge us to pule kakou until the day our beloved Princess Pauahi’s legacy is secure once again. Imua Kamehameha! Imua Hawai’i!
p.s. Here is the link to a Letter to the Editor which was published in the Washington Post on New Year's Day, right below a reprint of President Lincoln's famous Emancipation Proclamation. I found the juxtaposition to be poetic (justice) given the statute John Doe's attorneys have used in this lawsuit, i.e., one designed to protect newly-freed slaves as they sought employment. My letter to the editor was in response to a historically inaccurate article in the Post a few days earlier about the Doe ruling. The letter after mine is from another Kamehameha alum(!), Jolene Uyehara Auvil. http://www.washingtontimes.com/op-ed/20061231-105619-4344r_page2.htm