Private school is allowed to favor Native Hawaiians in its admissions

Times Staff Writer

A sharply divided federal appeals court ruled Tuesday that a private school can favor Native Hawaiians for admissions in an effort to “counteract the significant, current educational deficits” experienced by the islands’ indigenous population.

In an 8-7 ruling, the U.S. 9th Circuit Court of Appeals in San Francisco held that the admissions policy of Hawaii’s Kamehameha Schools is constitutional because it is narrowly tailored to remedy a well-documented problem and does not unnecessarily trammel on the rights of other students.

The schools’ policy furthers a goal that “Congress has repeatedly identified as necessary,” Judge Susan P. Graber wrote for the majority.

Native Hawaiian students, she wrote, “are systematically disadvantaged in the classroom.” They score lower on standardized tests than other ethnic groups in the state, are more likely to be in special education classes, and are less likely to graduate from high school and attend college.


The Kamehameha Schools -- with campuses on Oahu, Maui and Hawaii -- admit students from kindergarten through 12th grade. They were founded in 1887 to educate Native Hawaiians and are supported by a $6.2-billion trust endowed by the last direct descendant of King Kamehameha I.

The schools receive no federal funding and typically cover 60% or more of a student’s tuition -- making them considerably less expensive than other private schools in Hawaii.

Graber said the schools’ admission policy “is not an absolute bar to non-Native Hawaiians; instead it is intended only for so long as Native Hawaiians suffer educational disadvantages.”

But Judge Jay S. Bybee, writing for the dissenters, said the policy clearly violated the rights of other students by in effect blocking their admission. Kamehameha has admitted only one non-Native Hawaiian since 1962, he said.


The case highlighted a stark ideological divide on the 9th Circuit, which considers federal appeals in nine Western states, including California. All eight judges who voted to uphold the school’s policy were appointed by Democratic presidents, whereas all but one of the dissenting judges were appointed by Republicans.

The ruling came one day after two affirmative action cases were argued before the U.S. Supreme Court, in which the debate suggested most justices favor halting the use of race to assign students to public schools.

But Stanford University law professor Kathleen Sullivan, who argued the case successfully for Kamehameha Schools, said: “Apart from the fact that both are about education, our case is nothing like” the Seattle and Louisville, Ky., school systems cases before the high court.

“Kamehameha is private; Seattle and Louisville are public. Kamehameha involves remedial preferences; Seattle and Louisville involved diversity,” Sullivan said. “Kamehameha involves preferences of a kind explicitly adopted by Congress; Seattle and Louisville do not.”

Kamehameha is highly selective, with only one in every eight students who applies gaining admission.

The case was brought by a white Hawaiian student who initially was denied admission to Kamehameha four years ago when he applied for the 9th grade, and then was turned down the next three years too, said the applicant’s attorney, Eric Grant.

A U.S. district judge in Honolulu initially dismissed the case. But the student, identified as John Doe, appealed to the 9th Circuit and prevailed, 2 to 1, last year in a decision written by Bybee. But Kamehameha was granted a rehearing by a larger panel of judges, setting the stage for Tuesday’s ruling.

Hawaii’s political establishment, including its Republican governor and its full congressional delegation, supported the schools’ position in the case.


Grant said he and his client were disappointed but planned to ask the Supreme Court to review the case. “We think the closeness of the decision bodes very well for the eventual resolution of this case by the U.S. Supreme Court,” Grant said. “The admissions policy does operate as an absolute exclusion of children with the wrong ancestry.”

He said John Doe is now a freshman in college but declined to say where.

But Sullivan said that “it is hard to see why the Supreme Court would be interested in a case that turns on such unique circumstances. There is no other case just like this one.”